author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF DONNA WERRIES, Petitioner-Appellant and Cross-Appellee, and LARRY WERRIES, Respondent-Appellee and Cross-Appellant.
    Fourth District
    No. 4—92—0277
    Argued March 24, 1993.
    Opinion filed July 15, 1993.

      Michael B. Metnick, Diana N. Cherry (argued), and Kathryn Saltmarsh, all of Metnick, Barewin, Wise & Cherry, of Springfield, for appellant. ■
    Howard W. Feldman and Fredric Benson (argued), both of Feldman & Wasser, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner Donna Werries appeals the judgment of dissolution of her marriage to respondent Larry Werries, challenging the distribution of the marital property and award of maintenance. Respondent cross-appeals.

On appeal, the issues raised by the parties are (1) whether any or all of respondent’s partnership interest in a farm operation was a marital asset and, if not, whether the marital estate was entitled to reimbursement for contributions thereto; (2) assuming the marital estate did not include respondent’s farm partnership interest and was not entitled to reimbursement therefrom, whether the distribution of marital property was inequitable; (3) whether the award of maintenance was an abuse of discretion; and (4) whether the trial court committed an abuse of discretion by ordering respondent to pay $12,000 of petitioner’s attorney fees. We affirm.

The record in this case is substantial. A great deal of evidence and testimony was presented in the trial court. However, only those facts necessary to an understanding of this court’s decision will be set forth, and relevant facts will be discussed in the analysis of the issues to which they are pertinent.

I. General Background

The parties were married on July 2, 1967. The petition to dissolve the marriage was filed September 14, 1988. After grounds for dissolution were found to exist, a trial was conducted on the remaining issues on March 28, 29, and October 15 through 18, 1990. At the time the trial began, the children of the parties, Kristen and Neil, were 18 and 21 years of age, respectively. Respondent was director of intergovernmental affairs with the United States Department of Agriculture, having left a position as Director of the Illinois Department of Agriculture in 1989. Respondent became the Director of the Illinois Department of Agriculture in 1981. Petitioner was not employed outside the home.

II. Farm Partnership

Petitioner challenges the property distribution for three reasons: (1) the farm partnership of Leland Werries and Sons, or the partnership assets acquired after the marriage, should have been determined to be marital property; or (2) there should have been reimbursement to the marital estate for contributions to the nonmarital farm operation; and (3) even if this court rejects her arguments (1) and (2), the property distribution was inequitable.

Defendant was assigned his entire interest in the farm partnership as nonmarital property. Because the determination of whether an asset is a marital asset rests largely in the determination of the credibility of the witnesses, on review the trial court’s determination that an asset is nonmarital will be overturned only if that determination is against the manifest weight of the evidence. (In re Marriage of Leisner (1991), 219 Ill. App. 3d 752, 757, 579 N.E.2d 1091, 1094; In re Marriage of Flory (1988), 171 Ill. App. 3d 822, 826, 525 N.E.2d 1008, 1011.) The trial court’s finding on the tracing of marital or non-marital funds also will not be disturbed on review unless it is contrary to the manifest weight of the evidence. See Stacke v. Bates (1990), 200 Ill. App. 3d 85, 91, 557 N.E.2d 1305, 1309; In re Marriage of Preston (1980), 81 Ill. App. 3d 672, 679, 402 N.E.2d 332, 338.

All the property of the parties to a marriage belongs to one of three estates, the estate of the husband, the estate of the wife, or the marital estate. Property brought to the marriage by the husband belongs to him. Property brought to the marriage by the wife belongs to her. (Ill. Rev. Stat. 1991, ch. 40, par. 503(a)(6).) Property acquired during the marriage is presumed to be marital property unless clear and convincing evidence establishes otherwise. (In re Marriage of Cecil (1990), 202 Ill. App. 3d 783, 787, 560 N.E.2d 374, 376.) One exception to this presumption of marital property is property acquired by gift as set out in section 503(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 503(a)(1)). Property can be transferred between these estates, intentionally or unintentionally. Such transfers occur in two ways, gift or commingling. A husband (H) can, for example, make a gift of his nonmarital farm outright to his wife (W) or to the marital estate in some form of co-ownership. (Ill. Rev. Stat. 1991, ch. 40, par. 503(b).) If an asset is given to the marital estate, the characterization of the asset changes from nonmarital to marital property.

Commingling of assets can occur in two ways. First, one asset can be so intermingled with another as to lose its identity. This often occurs when cash is involved. H uses his personal savings account to buy the family station wagon after the kids are born. In this example, the cash loses its identity as a nonmarital asset. Second, assets from two different estates can be combined to acquire new property. H and W each sell nonmarital homes to buy a new home. The new homé becomes marital property. (Feldman & Fleck, Taming Transmutation: A Guide to Illinois’ New Rules on Property Classification and Division Upon Dissolution of Marriage, 72 Ill. B.J. 336 (1984).) While there is no right to reimbursement when a gift has been made, there is a right to reimbursement when assets have changed character by reason of commingling as long as the contributions between estates can be traced by clear and convincing evidence. (Ill. Rev. Stat. 1991, ch. 40, par. 503(c).) The determination of all issues regarding the credibility of the parties and their witnesses or the weight to give the evidence lies with the trier of fact. In re Marriage of Nagel (1985), 133 Ill. App. 3d 498, 502, 478 N.E.2d 1192, 1194.

Petitioner argues that because the business has experienced tremendous growth since the parties’ marriage, it was error for the trial court to find the partnership or its assets to be nonmarital property. Section 503(a) of the Act sets forth the following additional exceptions to the presumption of marital property:

“(7) the increase in value of [nonmarital property], irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
(8) income from [nonmarital property] if the income is not attributable to the personal effort of a spouse.” (Ill. Rev. Stat. 1991, ch. 40, pars. 503(a)(7), (a)(8).)

Section 503(c)(2) of the Act provides:

“When one estate of property makes a contribution to another estate of property, or when a spouse contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant and results in substantial appreciation of the non-marital property. Personal effort of a spouse shall be deemed a contribution by the marital estate. The court may provide for reimbursement out of the marital property to be divided or by imposing a lien against the non-marital property which received the contribution.” Ill. Rev. Stat. 1991, ch. 40, par. 503(c)(2).

The evidence is uncontroverted that respondent’s entire 45% interest in the partnership was acquired in part prior to the marriage and in part as a result of a gift from his father. The interest in the partnership is clearly nonmarital property.

After obtaining a degree in agriculture from the University of Illinois in 1962, respondent farmed with his father, Leland Werries. In 1964, respondent and his father became partners. Respondent purchased a 50% interest in the farm operation with $25,000 he borrowed from Edith Fox. Respondent admitted that a significant portion of the loan from Fox was repaid subsequent to and with earnings from the marriage. There is no evidence of the balance due at the time of the parties’ marriage or of the amount which was actually paid back after the marriage. In 1966, respondent’s brother, John Werries, purchased a one-third interest in the partnership which then became known as Leland Werries and Sons. John purchased the interest for $30,000. In 1979, Leland gifted to Larry and John a portion of his interest such that each son owned 45% of the partnership and Leland retained only 10%. The partnership interest remained the same to the date of hearing in this case. The farm partnership, a hog-raising operation which owned no real estate, had a value of approximately $1.5 million at the time of the dissolution proceedings. The partners were paid by allowing them to make draws against the partnership, subject to an “evening up” of the draws at the end of the year. However, after respondent became the Illinois Director of Agriculture in 1981, there was an agreement that John would be allowed to draw off the top, before any distributions, a salary equal to the government salary respondent was receiving.

Petitioner points to the repayment of the Fox loan as a basis for arguing that the portion of the partnership acquired prior to the marriage was really marital property. Petitioner relies on In re Marriage of Ohrt (1987), 154 Ill. App. 3d 738, 741-42, 507 N.E.2d 160, 163, which is clearly distinguishable because it involved the purchase of a marital home two months prior to the marriage and the mortgage was entirely paid with marital funds. Petitioner also cites In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 527 N.E.2d 1351. In Tatham, the trial court determined a tractor purchased prior to marriage by one spouse was a marital asset. The loan on the tractor was paid for after the marriage and the court found there was commingling of assets. The tractor in Tatham was also purchased two months prior to the marriage, and there was no indication in that decision that any payments were made other than from marital assets. (Tatham, 173 Ill. App. 3d at 1090, 527 N.E.2d at 1361.) For these reasons, the Tatham case is also distinguishable.

In this case, the loan was taken out several years prior to the marriage and only a portion, albeit a significant portion, was paid back after the marriage. The clear result is that the partnership interest is nonmarital, as the trial court found. An order of reimbursement to the marital estate would be appropriate if there is clear and convincing evidence to establish the right to reimbursement. The burden of proof is on the party requesting reimbursement, however, and petitioner never established how much the marital estate contributed to the repayment of the loan from Fox.

Petitioner also argues that the farm equipment and hog-confinement buildings acquired by the partnership after the marriage are themselves marital property irrespective of whether the partnership interest is marital property. The two cases cited by respondent in support of this position are also distinguishable.

In re Marriage of Kennedy (1981), 94 Ill. App. 3d 537, 547-48, 418 N.E.2d 947, 955, determined that stores, although owned by several corporations, were substantially owned by the ex-husband and that stores acquired after the marriage were new and distinguishable from, and not improvements to, previously owned stores or the corporations or the business. The court in Kennedy (1) declined to treat all stores, including those owned before the marriage, as marital; and (2) determined it was proper to award (a) all the shares of stocks in the stores to the ex-husband to avoid friction over the conduct of the business, and (b) a just proportion of the marital estate otherwise to the ex-wife. By contrast, in this case, there are no separable units, but one ongoing enterprise.

In re Marriage of Perlmutter (1992), 225 Ill. App. 3d 362, 375, 587 N.E.2d 609, 617, decided that assets acquired by an investment partnership were marital because those assets were “sufficiently separable and distinct from one another, and their acquisition clearly constitute[d] more than an ‘increase in value’ ” in the partnership. Petitioner concedes, as Perlmutter notes, that increases in value of nonmarital property are nonmarital. But so is the income from the nonmarital asset if that income is not attributable to the personal efforts of the spouse. Since 1981, none of the income of the partnership in the case at bar can be attributed to the personal efforts of the respondent and none can ever be attributed to the personal efforts of petitioner, which the testimony established was minimal with regard to the farm operation.

In any event, there is a distinction between assets of an “investment” partnership and assets of a farm partnership where the farm equipment was purchased for the purpose of keeping the business operating. Without the equipment, a farm operation would not be viable. In In re Marriage of Kamp (1990), 199 Ill. App. 3d 1080, 1082-83, 557 N.E.2d 999, 1000-01, although the partnership continued to purchase farm equipment and increase the acreage farmed, the partnership interest acquired before the marriage retained its non-marital classification in spite of a significant increase in value during the marriage.

At oral argument, the parties were asked to submit supplemental briefs to address this court’s recent decision in In re Marriage of Patrick (1992), 233 Ill. App. 3d 561, 569-70, 599 N.E.2d 117, 122-23. That case involved a farm operation which was a sole proprietorship and determined that crops grown and equipment purchased after the marriage were marital property. To reach the same result in this case would require substantially undoing long-standing legal principles relating to partnerships.

A partnership, although not a separate legal entity, is a separate entity for the purpose of owning property. Under section 25 of the Uniform Partnership Act (Partnership Act), a partner’s property rights in specific partnership property are restricted. (Ill. Rev. Stat. 1991, ch. 1061/2, par. 25 (now 805 ILCS 205/25 (West 1992)).) Section 25 of the Partnership Act indicates that a partner is a co-owner of specific partnership property as a tenant in partnership, but the partner has no rights to (1) possess specific partnership property for non-partnership purposes without the consent of the other partners; (2) assign specific partnership property except in connection with the assignment of the rights of all the partners in the same property; or (3) attach or execute against specific partnership property except on a claim against the partnership, and when so attached, homestead and exemption laws do not apply to such property. There is no right to a surviving spouse’s or child’s award against specific partnership property. The legal principle that partners do not own any separate part of partnership property is a long-standing one. The partnership interest, which itself is personal property, consists of the partner’s share of the profits and surplus. (Swirsky v. Horwich (1943), 382 Ill. 468, 469, 47 N.E.2d 452, 453.) This does not mean that, in every case, partnership interests will automatically receive different treatment from assets held by a sole proprietorship. Nonmarital, closely held corporations, partnerships, or individually owned businesses, including farm operations, can accumulate income and assets in a variety of ways resulting in a substantial increase to the nonmarital estate which should continue to be treated as nonmarital property. If this fact can be demonstrated by competent evidence, such as accurate bookkeeping and a segregation of business funds, a court is justified in finding that some or all of the increased value of the business is nonmarital. The issue is not the business’ form. Rather, it is whether there has been an actual segregation of the nonmarital estate from the marital and whether adequate proof of the separation of business from personal assets is offered. In the case at bar, the evidence shows the separation of the nonmarital business from marital personal assets was maintained. Petitioner failed to prove by clear and convincing evidence that the marital estate had a right to reimbursement by tracing contributions made from the marital estate. (Ill. Rev. Stat. 1991, ch. 40, par. 503(c)(2).) In addition, during the marriage, the parties were adequately compensated for respondent’s personal efforts with regard to the farm partnership. Therefore, we decline to apply the reasoning of Patrick to this case.

Petitioner also argues that there were contributions made to the partnership from the marital estate in many forms, including (1) respondent’s personal efforts, (2) the use of farmland owned by the parties jointly with John and Ruth Werries to provide corn to feed the hogs, and (3) the use of the 295 acres jointly owned by the parties and John and Ruth Werries as collateral to borrow money to make enhancements to the farm operation. The potential liability of a spouse as a signor of a mortgage on one tract of land does not transmute to marital property another tract of land for which part of the money was used to pay off a preexisting mortgage thereon. In re Marriage of Swanson (1981), 100 Ill. App. 3d 824, 828, 427 N.E.2d 574, 577.

To be entitled to reimbursement, there must be a tracing of funds in Illinois. The cited case of Pereira v. Pereira (1909), 156 Cal. 1, 103 P. 488, does not lend support to petitioner’s position. There the court decided the trial court erred by including the entire “gain” of a business as community property where there was no showing that all of the gain was due to defendant’s efforts alone. The court held that there should have been an allowance provided for the probable contribution of capital to the income at least equal to the usual interest on a long-term investment. (Pereira, 156 Cal. at 7, 103 P. at 491.) It appears that petitioner proposes the use of such a formula instead of evidence which would trace the contributions from the marital estate. In Illinois, however, no contribution which is not traceable by clear and convincing evidence is reimbursable. (Ill. Rev. Stat. 1991, ch. 40, par. 503(c)(2).) No reimbursement is to be made for personal efforts unless the effort was significant and resulted in substantial appreciation of the nonmarital property. Ill. Rev. Stat. 1991, ch. 40, par. 503(c)(2).

While there certainly was an interrelationship between the personally owned farmland and the partnership operation, this was a relationship which was mutually beneficial and not solely a contribution to the partnership. Corn grown on the land had a ready market. There were no fees to be paid such as trucking expenses or a deduction for moisture content. The partnership paid the average market price over the prior year. In return, the partnership received feed corn for the hogs. But the land also produced soybeans which were not sold to the partnership. While the land may not have been a great investment, the fact the parties decided to buy the land and sell the corn crop to the partnership does not change the partnership into marital property or result in a contribution to the nonmarital partnership interest which is reimbursable to the marital estate. The land was owned separate from the partnership and was kept separate, there being a landlord-tenant relationship.

Furthermore, it is pure speculation to suggest that the parties could or would have invested their money in an investment other than the land. There was no testimony that the parties ever considered any other investments. The parties decided to use marital assets to buy the land, however wise the investment decision. As for the loan for the hog-confinement building, the testimony was that the bank required the parties and John and Ruth Werries to take the loan personally, rather than the partnership, and use the land as collateral. Some of the borrowed funds were used for purposes other than the hog-confinement building, such as installing drainage tiles in the nonpartnership farmland. However, the portion of the loan used for this building was completely repaid by the partnership. No personal assets of the parties were expended on the hog-confinement building. In short, there was nothing to reimburse as no contribution was proved.

Finally, we get to the personal efforts of respondent which, since 1981, have been de minimis. The evidence is that whenever petitioner and respondent needed any funds, respondent could draw from the partnership subject to “evening up” the draw at the end of the year with the other partners. Substantial amounts were withdrawn, and the parties’ disposable cash was testified to by accountant Jay Baxter.

In determining whether the marital estate is entitled to reimbursement from a nonmarital business for the contribution of personal efforts of a spouse, the court may inquire as to whether the spouse was reasonably compensated by the business for those efforts. If the spouse has already been reasonably compensated for the personal effort, no reimbursement is necessary. (Perlmutter, 225 Ill. App. 3d at 372, 587 N.E.2d at 615; In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 855, 493 N.E.2d 1088, 1092.) Based on the evidence in this case, the trial court could reasonably have found that the appreciation in value of the partnership since 1981 was not due to the personal efforts of respondent and that, in any event, he had been reasonably compensated for his personal efforts.

The trial court indicated that there appeared to be reimbursable contributions which were not established by the evidence and which the trial court attempted to even up by the award of property and maintenance. There were three hog-confinement buildings built shortly after the marriage, and there was a substantial increase in the net worth of the partnership, suggesting retention of earnings for capital improvements. However, we agree with the trial court that the absence of clear and convincing evidence of traceable contributions from the marital estate to the nonmarital partnership interest precludes any reasonable attempt to order reimbursement to the marital estate.

In spite of the apparent substantial growth in value of the partnership, there is no specific evidence of the amount of earnings retained by the partnership. There is no detailed evidence that equipment purchased by the partnership and other expenditures made were unnecessary to maintain the ongoing operation at its current size, as opposed to being designed to increase the size and value of the operation. “Retained earnings” are simply undistributed profits, and “profits” may simplistically be defined as net earnings after deduction of business expenses. (See Black’s Law Dictionary 1183, 1090 (5th ed. 1979).) The trial court need not guess how much could have been distributed to the partners had they chosen to reduce the size of the hog operation as long as respondent, and therefore the marital estate, was reasonably compensated for his efforts. Petitioner did not present any evidence from which the trial court could determine that the compensation received by respondent was unreasonably low, or that compensation to other partners was unreasonably high. The findings that the partnership interest was nonmarital property and that no right to reimbursement of the marital estate was established by clear and convincing evidence are not against the manifest weight of the evidence.

III. Other Property

The next issue is whether the distribution of marital property was inequitable even assuming the marital estate did not include respondent’s farm partnership interest and was not entitled to reimbursement therefrom. In dividing property, each spouse is to receive his or her own nonmarital property. The trial court is to consider the 11 factors listed in section 503(d) of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)) when dividing marital property. (In re Marriage of Frazier (1988), 164 Ill. App. 3d 207, 210, 517 N.E.2d 775, 777.) In the absence of an abuse of discretion, the division of marital property will not be disturbed on appeal. (In re Marriage of Flemming (1986), 143 Ill. App. 3d 592, 595, 493 N.E.2d 666, 668.) An abuse of discretion will be found only where no reasonable person would have distributed the property as did the trial court. (In re Marriage of Mayzner (1986), 144 Ill. App. 3d 645, 650, 494 N.E.2d 615, 618-19.) The distribution need not be equal, as long as it is equitable. (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 847, 551 N.E.2d 737, 741.)

“The court should consider: the value of the nonmarital and marital property; the contribution of each party in acquiring property, including any homemaker contribution; the age, health, occupation, source of income, and employability of each party; and whether maintenance is also to be awarded. No specific findings are necessary.” Hart, 194 Ill. App. 3d at 846-47, 551 N.E.2d at 741.

Where one party is substantially responsible for the creation of the debt and has a substantially greater capacity to earn money, it is not an abuse of discretion for the trial court to assign the overwhelming majority of debt to that party. (In re Marriage of Ryan (1985), 138 Ill. App. 3d 1077, 1081-82, 487 N.E.2d 61, 64-65.) Nor is the trial court required to award marital assets to a party in an amount equal to or in excess of the amount of marital liability assigned to that party. (See In re Marriage of McCartney (1983), 116 Ill. App. 3d 512, 516-17, 452 N.E.2d 114, 117.) One court has stated:

“Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 503(c)) (Act) incorporates a partnership theory of marriage, and thus an order disposing of the parties’ property should recognize and compensate each party for his or her contribution to the marriage. (In re Marriage of Goforth (1984), 121 Ill. App. 3d 673, 459 N.E.2d 1374.) An important objective to be reached by the trial court in entering such an order is to place the parties in a position from which they can begin anew, in addition to providing adequate support for the children. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.)” In re Marriage of Calisoff(1988), 176 Ill. App. 3d 721, 725-26, 531 N.E.2d 810, 814.

The marital assets which were distributed to petitioner were as follows: (1) household furnishings, appliances, personal effects and belongings in her possession or stored with Illinois Moving and Storage, and items of personal property located at the Leland Werries residence; (2) the parties’ half interest in 60 acres northeast of Chapin, valued at $69,000; (3) the parties’ half interest in a contract for deed for the Galva farm, worth $144,887, and the 1990 payment of $19,417 received by respondent and all interest accrued thereon since its receipt; (4) $100 of respondent’s pension and interest accruing thereon from June 18, 1991, held in the Federal Employee’s Retirement System; and (5) half of the 1990 marital crop, amounting to $11,424.75. The following marital assets were distributed to respondent: (1) all personal property currently in his possession; (2) half interest in 75 acres north of Concord, Illinois, and half interest in 160 acres northeast of Concord, with a total value of $270,250, and respondent was to bear any indebtedness on said real estate and hold petitioner harmless therefor; (3) Federal Land Bank stock, worth $20,000; (4) an Aid Association for Lutheran’s Life Insurance policy worth $10,000; (5) United Trust stock worth $600; (6) his pension in State of Hlinois retirement system, valued at $6,343; (7) all of the pension in the Federal Employees’ Retirement System except the $100 plus interest awarded to petitioner, described as being a small amount; and (8) half of the 1990 marital crop amounting to $11,424.75. With regard to marital liabilities, petitioner would pay the debt to her parents, total-ling $11,449, all her own prescription bills unreimbursed by insurance, and $100 to Dr. Michael D. Kant. Respondent was delegated the following marital liabilities: (1) $119,602 debt to the Federal Land Bank; (2) $144,000 debt to the Chapin State Bank; (3) $7,845 debt to Illinois Moving and Storage; (4) $312 debt to Illinois Bell Telephone Company; (5) $35,000 debt to Leland Werries and Sons; (6) any and all other debts in his name; and (7) all medical and dental bills of petitioner except prescription bills and the $100 to Dr. Kant.

The distribution of marital assets was not an abuse of discretion. Because of his interest in the partnership, it is fair that respondent be assigned a significantly greater part of the marital debt.

IV. Maintenance

Both parties challenge the maintenance award. Petitioner argues it should have been “permanent” and higher. Respondent argues that, although the trial court correctly determined the maintenance should not be “permanent,” the award was set too high.

First of all, an award of maintenance is not permanent and may be modified upon a showing of a substantial change in circumstances. (Ill. Rev. Stat. 1991, ch. 40, par. 510(a).) The general principles recited by this court in the decision of In re Marriage of Mantei (1991), 222 Ill. App. 3d 933, 938-41, 583 N.E.2d 1192, 1195-97, are applicable here as well. Section 504 of the Act sets out the factors to be considered by the court in determining whether maintenance is necessary and, if so, how much. (Ill. Rev. Stat. 1991, ch. 40, pars. 504(a), (b).) Not only must the trial court determine whether one party needs maintenance, but also whether the other party has the ability to pay. (In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300.) Only if it finds that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs and is either unable to support herself through appropriate employment or is otherwise without sufficient income may the trial court issue a maintenance order. (Ill. Rev. Stat. 1991, ch. 40, par. 504(a).) The amount and duration of an appropriate maintenance award shall be “as the court deems just” after consideration of all relevant factors, including (1) the financial resources of the party seeking maintenance and her ability to meet her needs independently; (2) the time necessary to acquire sufficient education or training to enable her to find suitable employment; (3) the standard of living established during the marriage; (4) the duration of the marriage; (5) the age, physical and emotional condition of both parties; (6) the ability of the spouse from whom maintenance is sought to meet his needs while yet meeting those of the recipient spouse; and (7) the tax consequences of the property division. (Ill. Rev. Stat. 1991, ch. 40, par. 504(b).) The propriety of a maintenance award, as well as the amount and duration thereof, are matters which lie within the discretion of the trial court, and we will not substitute our own judgment absent an abuse of that discretion, which occurs “ ‘only where no reasonable man would take the view adopted by the trial court.’ ” In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 916, 466 N.E.2d 925, 933, quoting In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 508, 436 N.E.2d 228, 232.

Although an award may be for a definite time period, it should not be based on speculation as to the future conditions, but on circumstances disclosed by the evidence. (In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 269, 511 N.E.2d 156, 166; In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 351, 461 N.E.2d 447, 456.) Where there is specific evidence regarding educational background, present educational pursuits, and income at the time of dissolution, there is sufficient evidence to set a specific period of time for maintenance. (Wisniewski, 107 Ill. App. 3d at 719, 437 N.E.2d at 1306-07.) In the event the spouse is employable at an income not overly disproportionate relative to the standard of living established during the marriage, maintenance for a limited period is appropriate. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 465, 426 N.E.2d 1087, 1096.) Conversely, where the spouse is not employable or is employable only at a low income as compared to the previous standard of living, maintenance for an indefinite period would be appropriate. There is an affirmative obligation on the party requesting maintenance to seek appropriate employment and to make a good-faith effort to become financially independent. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748.) When the primary complaint of the party seeking maintenance is that her life-style is not the same as it was, this court has pointed out that the resources of the parties dictate whether they can maintain their life-style after dissolution. See Wade, 158 Ill. App. 3d at 269, 511 N.E.2d at 166.

“In some failed marriages, the parties are fortunate enough to have resources adequate to satisfy both of their reasonable needs in full. The spouse seeking maintenance would therefore be awarded the whole difference between her resources and her reasonable needs. But the Simmonses, like most divorced couples, do not have enough to go around. Living apart costs most couples more than living together. The court is unable to provide both parties with the standard of living they enjoyed during marriage; one or both have to take a cut. The court must apportion the deficit.” In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 661, 409 N.E.2d 321, 328.

In this case, the trial court’s orders provided that commencing June 15, 1991, and on the 15th day of each month thereafter for 24 months, respondent shall pay $1,500 to petitioner as maintenance and, commencing on June 15, 1993, and on the 15th day of each month thereafter for 24 months, respondent shall pay $1,200 maintenance. Modification of maintenance may be had during the four-year period upon a showing of substantial change in circumstances and, during the fourth year, a review hearing may be scheduled at the request of either party to consider extending maintenance for a finite or indefinite period of time. “The duration of the extension, and the amount thereof, will largely depend upon Plaintiff’s efforts at rehabilitation, her employment income, if any, and the financial circumstances of each party at that time.” Judgment was entered in favor of petitioner for $5,503.90 as an arrearage in temporary maintenance, and this arrearage was to be paid at the rate of $250 per month. An additional relevant portion of the order concerned the educational expenses of Kristen. The responsibility for Kristen’s college expenses was allocated so that respondent paid for 75%, petitioner paid for 15%, and Kristen was responsible for the remaining 10%. This allocation applied to direct college expenses including tuition, books, miscellaneous supplies, and room and board while she was a full-time college student. The balance of Kristen’s living expenses, including clothing, car expenses, car insurance, maintenance costs during school holidays, and spending money would be Kristen’s own responsibility and not that of either parent except on a voluntary basis. Any scholarship monies or college loans that Kristen obtained would be credited first to her share of responsibility for her direct college expenses, second to her parents’ shares, pro rata, and last to her extra living expenses.

In the case at bar, the parties’ marriage was of long duration. Petitioner, while licensed as a licensed practical nurse, testified she was physically unable to perform that work. Petitioner had no other training or recent job experience which could enhance her employability. For most of the marriage, she did not work outside the home. However, she was under a doctor’s care and her physical condition may change and she may find a nursing position which does not require her to perform the physical tasks of which she complained, or some other type of employment. It was no abuse of discretion for the trial court to allow for the maintenance to be reviewable after four years. This order did not, after all, automatically deny any further maintenance, although it required petitioner to affirmatively seek additional maintenance.

As for the amount of maintenance, respondent’s argument that the petitioner was not entitled to an amount of this size is meritless, given the size of the respondent’s partnership interest. The parties once owned a $155,000 house which they had to sell at a loss because they could not afford it. Other than that, they never owned or rented a residence. Up to July 1981, they lived in a house located on the farm owned by respondent's parents and paid no rent, although they did make some physical improvements to the property. From February 1984 to the date of separation, they lived in a home provided by the State to the Hlinois Director of Agriculture. The partnership provided beef and pork and respondent took an advance in the form of a draw against his anticipated partnership income whenever the parties needed money. They apparently never saved any significant amount of money and their major investment was the 295 acres and the Galva farm. What money they got they apparently spent on clothing, furniture, entertainment and food, vacations, and the like. Clearly, on the assets of this marriage, after considering the liabilities, neither party could continue to maintain that standard of living. However, in light of the partnership interest in an ongoing and growing farm operation, respondent could afford to give petitioner $1,500 per month, even though she did get about half the marital assets and very little of the marital liability.

With regard to petitioner’s argument that she did not get a large enough maintenance award, in the initial four years following the dissolution, petitioner is going to be getting half of the 1990 crop, two payments on the Galva farm, plus a substantial balloon payment when the contract is paid off, and the cash crop on the 60-acre farm. A party ought not be required to sell assets to maintain the standard of living attained during that marriage. (In re Marriage of Holman (1984), 122 Ill. App. 3d 1001, 1014, 462 N.E.2d 30, 38; In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1088, 412 N.E.2d 1336, 1344.) However, there does not appear to be a need for petitioner to sell assets to live as the parties did during the marriage. She has all the furniture and money to buy a house. Her obligation to contribute to Kristen is ended or ending shortly, and she does not have a substantial amount of debt to repay.

Petitioner argues she ought not be required to sell or impair capital assets to provide for her support. This is so only if respondent has sufficient income to meet both of their needs. (In re Marriage of Tietz (1992), 238 Ill. App. 3d 965, 973, 605 N.E.2d 670, 676.) Although the members of this court might have set a higher amount of maintenance for a longer period of time, that is not our prerogative. The standard of review is not whether this court would have made the same award as did the trial court, but whether any reasonable trier of fact would have done so. The judgment provided maintenance for a fixed period of time, but petitioner is specifically permitted to request a review hearing. Therefore, we conclude that the trial court’s award of maintenance was not an abuse of discretion.

V. Attorney Fees

Finally, respondent argues by cross-appeal that the trial court committed an abuse of discretion by ordering him to pay $12,000 of petitioner’s attorney fees.

Petitioner testified at the October 15, 1990, hearing that she was unable to pay her attorney fees, which then amounted to $17,000. The trial court, after considering the financial resources of the parties, may order either spouse to pay the attorney fees necessarily incurred by the other spouse. Ill. Rev. Stat. 1991, ch. 40, par. 508(a).

“An award of attorney fees is a matter within the sound discretion of the trial court, and its decision will not be disturbed on appeal, absent an abuse of discretion. (In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 523 N.E.2d 573.) Attorney fees are the primary responsibility of the person for whom the services are rendered. (In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 483 N.E.2d 316.) A person seeking an award of fees must establish that he is unable to pay the fees and the other party is able to pay them. (Stockton, 169 Ill. App. 3d 318, 523 N.E.2d 573; In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 516 N.E.2d 566.) It is not necessary that the spouse seeking fees be destitute; it is sufficient that the payment would exhaust his estate or strip him of his means of support or undermine his economic stability. (In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 956, 511 N.E.2d 1157, 1158.) The court may properly consider that one party’s conduct precipitated the proceedings. In re Marriage of Cotton (1984), 103 Ill. 2d 346, 469 N.E.2d 1077.” (In re Marriage of Ziemer (1989), 189 Ill. App. 3d 966, 969, 546 N.E.2d 229, 230-31.)

This court also stated in Mantei that just as a party does not have to be destitute to receive an award of fees, neither does the opposing party have to be destitute to avoid paying attorney fees. (Mantei, 222 Ill. App. 3d at 941, 583 N.E.2d at 1198.) After considering the facts in this case, it is abundantly clear that the award of attorney fees was not an abuse of discretion.

For the foregoing reasons, the judgment of the circuit court of Sangamon County is affirmed.

Affirmed.

STEIGMANN, P.J., and LUND, J., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    BERNISE BLOOMQUIST, Plaintiff-Appellant, v. JAMES R. ELY et al., Defendants-Appellees.
    Third District
    No. 3—92—0858
    Opinion filed July 22, 1993.

      Samuel S. McHard, of Katz, McAndrews, Balch, Lefstein & Fieweger, of Rock Island (Stuart Lefstein, of counsel), for appellant.
    Quinn, Johnston, Henderson & Pretorius, Chartered, of Peoria (Paul Gilfillan, of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Bernise Bloomquist, brought a negligence • action against the defendants, James R. Ely and Black Fertilizer, Inc., for injuries she received when her car went off a rural highway on May 1, 1989. The jury returned a verdict for the defendants. The plaintiff appeals, raising numerous alleged errors on the part of the trial court. At trial, the parties presented the testimony of numerous occurrence and expert witnesses. Only those facts necessary for an understanding of the case and for disposition of the issues presented will be set forth.

At trial, the plaintiff testified she was driving her 1982 Chevy Citation to work on Monday morning, May 1, 1989. The weather that day was clear and the roads were dry. The plaintiff lived in Wyoming, Illinois, and worked in Pekin. The route she took to work included a stretch of Route 91. At approximately 7 a.m., the plaintiff was driving south on Route 91 in Peoria County. Just south of Dunlap, Illinois, the plaintiff crested a hill. In front of her she noted a car traveling behind a large chemical/fertilizer spreader truck (hereinafter referred to as the spreader). At the time, her car was operating on cruise control and she was traveling between 50 and 52 miles per hour. She applied the brake, thus taking the car out of cruise control. The car in front of her pulled over into.the northbound lane and proceeded to pass the spreader.

As a point of reference, the record shows that just south of Dunlap, there is a stretch of Route 91, approximately six-tenths of a mile long, which is relatively flat and straight. Along this stretch, the highway is divided by a broken yellow line. The record shows there are no “no-passing” signs along this portion of the highway. The record also shows a number of roads and driveways cross or lead off to the left and right from Route 91. One of these, Fox Road, is a gravel road going east from Route 91. The only sign indicating the presence of Fox Road to southbound traffic is a green sign approximately 270 feet north of the intersection. The sign contains the words “FOX ROAD” and an arrow pointing to the left.

In any event, as the plaintiff entered this stretch of Route 91, she came up behind the spreader. She testified she had noticed no lights on the rear of the spreader. She testified that just before the intersection of Dickison Cemetery Road and Route 91, she turned on her left-turn signal and moved out into the northbound lane. (Dickison Cemetery Road is one quarter mile north of Fox Road.) The plaintiff pulled back into the southbound lane behind the spreader, when she thought she noticed an oncoming northbound vehicle. She testified it was difficult to see around the spreader because it was very wide and had spray booms attached to the sides.

The plaintiff glanced in her rearview mirror and observed a number of cars behind her. She again turned on her left-turn signal and moved out into the northbound lane. She did not see any oncoming traffic so she decided to pass the spreader. The plaintiff testified she commenced this second passing maneuver just past Dickison Cemetery Road.

As the front of her car came about even with the spreader’s cab, she noted out of the corner of her eye that the large rear tire of the spreader was moving toward her. She then noticed a light near the front of the spreader. The plaintiff testified that at that moment she wondered if the truck was about to turn left into a nearby field. She moved her car as far over to the left as she could. Realizing she could not pass the truck, she contemplated turning left onto Fox Road. Fearing that she might turn her car over, the plaintiff decided to drive into a farmyard which was situated on the southeast corner of the intersection of Fox Road and Route 91. When she noticed a ditch separating the farmyard from Fox Road she “stomped on” the brakes. Her car skidded on the gravel surface of Fox Road and into the ditch. The car then “bounced” out of the ditch and continued toward a garage. When the car came to a stop, the plaintiff put the car in park and turned the car off.

The driver of the spreader, the defendant, James Ely, pulled into Fox Road and stopped. The plaintiff testified she heard Ely say that he had looked in his mirror, but had not seen her car because the truck was too big. The plaintiff suffered injuries to her head, abdomen and right knee.

Ely testified to being an employee of the codefendant, Black Fertilizer, Inc. Ely testified the spreader he was driving on May 1, 1989, was a modified Ford truck, which when purchased had only the cab and chassis. Ely testified he had done some of the modifications himself. Ely stated he did not refer to any rules or regulations in modifying the Ford truck. He further testified that he did not design the modifications, he only installed them. The record shows that part of the modification included very large rear “floatation” tires. These tires were feet high and 3^2 feet wide. This enabled the vehicle to travel over farm fields causing less compaction of the soil and lessening the chances of the spreader getting stuck. The tires were not to be driven at a speed in excess of 30 miles per hour. With the tanks and other apparatus mounted on the back of the spreader, the vehicle was 11 feet wide. The large rear tires also extended out from the side of the spreader farther than the front tires.

Ely testified that the side mirror mounts were not modified to take into account the widening of the rear of the vehicle. These were the mirror mounts which came with the original cab and chassis. He testified that when driving the spreader he could not see small vehicles that were right behind the spreader or right beside it toward the rear.

On May 1, 1989, Ely was on his way to the farm of Dayton Reed, whose farmhouse was located at the southeast corner of the intersection of Fox Road and Route 91. Ely was proceeding southbound on Route 91 from Dunlap around 7 a.m. At trial, Ely testified that approximately 150 to 300 feet north of Fox Road he moved the left rear tire of the spreader onto the center line. Ely indicated he did this to notify persons driving behind him that he was going to make a left turn. Ely conceded that his rear wheel may have crossed over the center line; however, he did not know how far.

Ely testified he turned on his turn signal and “made his move.” A half second later he noticed the plaintiff’s car next to the cab of the spreader. The plaintiff’s left tires were on the shoulder. Ely indicated this may have been 150 to 180 feet north of Fox Road. He moved his vehicle back over to the right. The plaintiff’s car went across Fox Road, hit a ditch and went into Dayton Reed’s farmyard. Ely pulled into Fox Road, stopped the spreader and went over to the plaintiff’s car. Ely testified he could not recall anything he said to the plaintiff.

Rick Roberts testified he was driving southbound behind the plaintiff on May 1, 1989. Roberts saw the plaintiff signal, indicating she was going to pass the spreader. Roberts testified that the plaintiff commenced this pass approximately 100 to 200 feet north of Fox Road. As the plaintiff was passing the spreader, Roberts noticed the spreader moving left into the northbound lane. Roberts testified this took place within three or four seconds of the plaintiff’s commencing her pass. The plaintiff’s car also moved to the left and went off the road. Roberts testified the vehicles came within one or two feet of each other. Roberts testified if the plaintiff had not moved to the left, the vehicles would have collided.

Roberts testified the spreader crossed the center line about 50 feet north of Fox Road and that the plaintiff may have been as close as 10 feet north of Fox Road when she left the roadway. Roberts did not recall seeing any lights blinking on the spreader prior to the spreader moving to the left. After the plaintiff’s car came to a stop, Roberts stopped his car on the shoulder of Route 91 and went over to the plaintiff’s car. The plaintiff was bleeding from the head and complained that she had hurt her leg. Ely also came over to the car. Roberts heard Ely say he could not see her coming around on the left side and that “he couldn’t see around the truck with those mirrors.”

As stated above, the jury returned a verdict finding in favor of the defendants. Therefore, the jury did not reach the issue of damages.

Initially, we note the defendants have filed a motion to strike the statement of facts contained in the plaintiff’s appellant brief. This motion has been taken with the case. The defendants maintain the statement of facts breaches the provisions of Supreme Court Rule 341 (134 Ill. 2d R. 341) in that it is one-sided, argumentative, conclusory and less than accurate. We have reviewed the record on appeal and do not find the plaintiff’s statement of facts sufficiently egregious to warrant granting the motion. We also note our review of the record reveals the defendants’ attorney utilized and in some cases came very close to skirting the rules, e.g., his interpretation of the case law surrounding Supreme Court Rule 220 (134 Ill. 2d R. 220), and used other trial procedures to his clients’ full advantage. The practices of both parties tended to complicate and extend the litigation in this matter. In any event, we will rely on the record in reviewing the issues raised on appeal. The defendants’ motion to strike is denied.

As an additional preface to our discussion of the issues raised by the plaintiff, we note many of the asserted errors center on whether the meeting of Fox Road and Route 91 is an intersection as defined in section 1 — 132 of the Illinois Vehicle Code (hereafter the Code) (Ill. Rev. Stat. 1991, ch. 95V2, par. 1—132). Section 11 — 706(a)(2) of the Code provides: “No vehicle shall be driven on the left side of the roadway under the following conditions: *** (2) When approaching within 100 feet of or traversing any intersection or railroad grade crossing.” (Ill. Rev. Stat. 1991, ch. 951/2, par. 11—706(a)(2).) The issue raised, therefore, as a defense, was whether the plaintiff attempted her pass, i.e., drove on the left side of the roadway, within 100 feet of or while traversing the intersection of Fox Road and Route 91.

The plaintiff asserts this is the only basis upon which the jury could have found her “contributorily” negligent. The defendants claim this issue was not the main focus of their defense and cite numerous other defenses they relied on. While it is true that other defenses were raised, and the jury so instructed, review of the record shows the main focus of the testimony centered on the nature and attributes of the spreader, and on whether the meeting of Fox Road and Route 91 constituted an intersection, thus, for all intents and purposes, creating a “no-passing zone.” With this in mind, we now address the issues raised by the plaintiff.

We first address the plaintiff’s contention that the trial court erred in allowing the expert testimony of Peoria County Deputy Sheriff Larry Bernard and Illinois Department of Transportation District 4 traffic engineer Mike Ripple. (The report of proceedings contains the spelling “Rippel,” but other parts of the record, as well as the parties, refer to this gentleman as “Ripple.”) The trial court denied the plaintiff’s motion in limine seeking to bar the opinion testimony of Bernard and Ripple.

At trial, Larry Bernard testified he was the police officer called to the scene after the incident. Inter alia, Bernard testified that in his opinion the meeting of Fox Road and Route 91 constituted an intersection under section 1 — 132 of the Code. Bernard also opined it was “illegal” to pass another vehicle at such an intersection. Bernard was further allowed to testify that the fertilizer spreader was an implement of husbandry under the Code and therefore exempt from some of the vehicle equipment and licensing requirements of the Code.

Mike Ripple testified that Fox Road was a publicly maintained roadway and that the meeting of Fox Road and Route 91 constituted an intersection as defined by the Code. He was of the opinion the road markings and signage were appropriate on this stretch of Route 91. Ripple also testified a vehicle cannot be driven on the left side of a roadway within 100 feet of an intersection.

On appeal, citing Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1992), 154 Ill. 2d 543, 610 N.E.2d 77, the plaintiff asserts Bernard and Ripple were experts under Supreme Court Rule 220 (134 Ill. 2d R. 220) who were not properly disclosed pursuant to the requirements of that rule. In response, the defendants maintain that under the case law in existence at the time, these men were not experts for purposes of Rule 220, in that they were not “retained” as experts. In any event, the defendants argue even if they were experts under Rule 220, their existence and opinions were fully disclosed to the plaintiff within the period mandated for disclosure of expert witnesses.

In pertinent part, Rule 220(b) states: “In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed ***.” (134 Ill. 2d R. 220(b).) Rule 220(c)(1) provides that upon being served with Rule 220 interrogatories, a party “retaining or employing” an expert witness must disclose the subject matter of the expert’s expected testimony, the expert’s opinion on the matter, the basis for that opinion and the expert’s qualifications. 134 Ill. 2d R. 220(c)(1).

In the instant case, on November 13, 1991, the defendants responded to the plaintiff’s Rule 220 interrogatories regarding experts. In pertinent part, the defendants stated in response to the first question: “These Defendants have not retained any ‘Rule 220’ experts to date according to Illinois case law. However, in the spirit of good faith compliance with discovery herein, these Defendants would state that they intend to call Deputy Larry Bernard of the Peoria County Sheriff’s Office, who investigated this accident and who rendered opinions in this cause in his deposition on Nov. 13, 1991.” The subsequent questions are answered by referring generally to Bernard’s deposition.

Also on November 13, 1991, the defendants filed a motion to extend the time to disclose experts. The trial court subsequently granted the motion extending the time to disclose experts to January 10,1992.

The record contains a letter addressed to the plaintiff’s attorney, dated January 8, 1992, wherein the defendants’ attorney informs the plaintiff that he has spoken with Mike Ripple, who he believes will testify that “no-passing” markings at the intersection of Route 91 and Fox Road were not required. Ripple would also state that “the department” considered it improper for a person to attempt to pass within 100 feet of the intersection. The letter went on to state: “I don’t technically consider Mr. Ripple a Rule 220 expert, since I have not ‘retained’ him and will be paying him no fee. Specifically, he is simply an individual who has knowledge of pertinent facts in this lawsuit as a result of issues raised by your experts.” Ripple was deposed on March 30, 1992. The trial in the instant case commenced on July 13,1992.

We think it clear that Bernard and Ripple were Rule 220 experts even under the case law in existence at the time. In Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, the supreme court found that Rule 220 obliges litigants to disclose the identity and opinions only of those witnesses who are engaged for the purpose of giving an expert opinion at trial. In Tzystuck, the court held a treating physician is not an expert within the meaning of Rule 220. In discussing the case law since the Tzystuck opinion, the supreme court in Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1992), 154 Ill. 2d 543, 610 N.E.2d 77, noted that the appellate court, in deciding if an expert was subject to the disclosure requirements of Rule 220, looked to the expert’s relationship to the case. The court stated: “If the expert is intimately involved in the underlying facts giving rise to the litigation and he would reasonably be expected to form an opinion through that involvement, then disclosure is not required. In such a case, the opposing party is unlikely to be surprised by the testimony. On the other hand, where the expert’s contact with the case is slight, or where the opinion rendered is unrelated to the expert’s involvement in the case, then disclosure is required.” Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1992), 154 Ill. 2d 543, 549, 610 N.E.2d 77, 80.

The defendants cite no appellate court case following the Tzystuck case, which interpreted the treating physician exception to include the type of experts involved here. Ripple had no involvement in this occurrence whatsoever other than his being called as an expert. The opinions expressed by Bernard were unrelated to his involvement as investigating officer. We note the defendants were hesitant in fully asserting that Bernard and Ripple were not Rule 220 experts, in that they disclosed the identity of these experts within the time required by the trial court order.

However, this said, we find under the circumstances of this case that the trial court did not err in allowing the expert testimony of Bernard and Ripple. The Wakeford court stated that the primary basis for its decision in Tzystuck was the need to eliminate surprise expert testimony. In the instant case, the opinions expressed by Bernard and Ripple were disclosed in their deposition testimony. We find the plaintiff had knowledge of the proffered expert testimony months in advance of trial. Although we do not condone the practice of the defendants’ attorney in this matter, we find under the circumstances the plaintiff was not surprised by the testimony and therefore can claim no prejudice.

The plaintiff contends the trial court erred in instructing the jury on the statutory prohibition against driving on the left side of a roadway within 100 feet of or while traversing an intersection. (See Ill. Rev. Stat. 1991, ch. 951/2, par. 11—706(a)(2).) The plaintiff maintains the meeting of Fox Road and Route 91 is not an intersection for purposes of the Code. Secondly, she argues the “direct cause” of the occurrence, i.e., the spreader crossing the center line, took place more than 100 feet from the intersection; therefore, this statutory prohibition was not relevant.

The Code defines an “intersection” in pertinent part as: “The area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles ***.” (Ill. Rev. Stat. 1991, ch. 951/2, par. 1-132.) A “highway” is defined as: “The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.” Ill. Rev. Stat. 1991, ch. 951/2, par. 1—126.

The record in the instant case fully supports the finding that this area constituted an intersection within the meaning of section 1—132. The roadway was publicly maintained and served as access to a number of farms. The record also shows, despite the plaintiff’s representation to the contrary, that the road continued until it eventually intersected another highway. In other words, it was not a dead end as asserted by the plaintiff. Also, we note indications in the record of a stop sign at the T-intersection of Fox Road and Route 91 for traffic turning onto Route 91. All of these factors point to the area falling within the relatively broad definition of an intersection as found in section 1—132 of the Code.

In regard to whether or not the “direct cause” of the incident took place more than 100 feet from the intersection, we note the testimony was conflicting on this issue. While James Ely believed he first saw the plaintiff after he moved the spreader toward the center line some 100 to 300 feet from the intersection, witness Rick Roberts estimated the spreader crossed over the center line approximately 50 feet from the intersection. Based on this conflicting testimony, we cannot say the evidence did not support giving this instruction. Generally, a jury instruction is justified if it is supported by some evidence in the record, and the trial court has the discretion to determine which issues have been so raised. Caballero v. Royston (1991), 219 Ill. App. 3d 477, 579 N.E.2d 994.

In a related argument, the plaintiff maintains the trial court erred in refusing two proffered instructions. Section 11 — 707(b) states: “Where signs or markings are in place to define a no-passing zone as set forth in paragraph (a) no driver may at any time drive on the left side of the roadway within the no-passing zone or on the left side of any pavement striping designed to mark such no-passing zone throughout its length.” (Ill. Rev. Stat. 1991, ch. 951/2, par. 11—707(b).) Section 11—707(c) provides in pertinent part: “The pavement striping designed to mark the no-passing zone may be crossed from the left hand lane for the purpose of completing a pass that was begun prior to the beginning of the zone in the driver’s direction of travel.” Ill. Rev. Stat. 1991, ch. 951/2, par. 11—707(c).

The plaintiff’s proffered instruction No. 24 basically related the substance of the above-quoted statute. In addition, proffered instruction No. 34 stated in pertinent part: “There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provided that the center line may be crossed from the left hand lane for the purpose of completing a pass that was begun prior to one-hundred (100) feet prior to an upcoming intersection.” Both proffered instructions told the jury that if they found a party had violated the statute, they could consider that fact along with all the other facts and circumstances in deciding if that party was negligent.

The trial court refused to give instruction No. 24 because there was no evidence the area where the incident occurred was designated a “no-passing zone” by signs or pavement striping. The trial court refused to give instruction No. 34 because it was an incorrect statement of sections 11—707(b) and (c). The plaintiff argues that if a party may complete a pass on the left, whenever the maneuver is commenced prior to entering the no-passing zone, then by analogy, a person should be able to complete a pass within 100 feet of an intersection, if the pass was commenced more than 100 feet from the intersection. Thus, the plaintiff argues the trial court should have given the proffered instructions.

While the trial court is given considerable discretion in determining the form of the instructions to be given, the instructions given must be supported by some evidence in the record and they must correctly state the law. (Ramos v. Pankaj (1990), 203 Ill. App. 3d 504, 561 N.E.2d 744.) Specifically, instructions concerning violation of a statute should not be given unless the evidence is adequate to support a finding that a violation actually occurred. (Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 409 N.E.2d 336.) It is not error to refuse an instruction if there is no evidentiary basis for that instruction or to refuse an instruction containing a mere abstract proposition. Blake v. Tri-State Crane Service, Inc. (1983), 114 Ill. App. 3d 1059, 449 N.E.2d 946.

In the instant case, the area was not designated a no-passing zone pursuant to section 11 — 707. The provisions of section 11 — 707 apply to those portions of the highway designated no-passing zones by signs and roadway markings. This statute was unrelated to the situation in the instant case. There was no evidence presented that this statute applied to this stretch of Route 91. Therefore, the trial court correctly refused plaintiff’s proffered instructions Nos. 24 and 34. In addition, we note instruction No. 34 is an incorrect statement of the law. The instruction embodies the plaintiff’s attempt to apply the exemption found in section 11 — 707(c) to the situation in this case. However, this proffered instruction does not reflect the wording of the Code and is a misstatement of the law.

The plaintiff also asserts the trial court erred in refusing to instruct the jury on the doctrine of imminent peril. We note the Committee on Jury Instructions in Civil Cases recommends that no instruction be given on the duty of one in imminent peril. (See Illinois Pattern Jury Instructions, Civil, No. 12.02 (3d ed. 1992).) Therefore, we find the trial court did not abuse its discretion in refusing to give this instruction.

During the trial, the plaintiff moved for a finding by the court that the spreader was not an implement of husbandry as defined by the Code. Implements of husbandry are exempt from certain provisions of the Code, such as those dealing with equipment requirements (see Ill. Rev. Stat. 1991, ch. 951/2, par. 12—101(b)), and size, weight and load requirements (see Ill. Rev. Stat. 1991, ch. 951/2, par. 15—101(b)). In pertinent part, the Code defines an implement of husbandry as “[e]very vehicle designed and adapted exclusively for agricultural, horticultural, or livestock raising operations.” (Ill. Rev. Stat. 1991, ch. 951/2, par. 1—130.) Following argument, the trial court denied the motion stating that it could not direct a factual finding on the issue of whether the spreader was an implement of husbandry under the Code. The court found this was a question of fact for the jury to decide.

On appeal, the plaintiff contends the trial court erred in denying the motion because the evidence showed the spreader was not “designed and adapted exclusively for agricultural” purposes. The plaintiff points to the fact that the tank and spraying apparatus were not permanently attached to the truck body and could be removed.

It is the function of the jury to resolve controverted issues of fact. (Fakhoury v. Vapor Corp. (1991), 218 Ill. App. 3d 20, 578 N.E.2d 121.) Questions on which reasonable men could arrive at different results should never be determined as a matter of law. Berner v. Kielnik (1983), 117 Ill. App. 3d 419, 453 N.E.2d 729.

In the instant case, we view the issue of whether the spreader was an implement of husbandry as at the most a mixed question of law and fact. In any event, we find the trial court did not err in leaving this question of fact for the jury to decide.

Also during trial, the plaintiff orally moved that an answer to interrogatories involving photographs of the spreader be admitted as a judicial admission. The plaintiff requested the court instruct the jury that there was a binding admission that these photographs, previously admitted as plaintiff’s exhibits 26-A and 26-B, showed the exact vehicle involved in the incident. Apparently, the photographs were actually of a similar but different vehicle. Following argument, the trial court denied the motion.

The record indicates that sometime after the incident, the defendant, Black Fertilizer, Inc., sold or otherwise disposed of the cab and chassis of the spreader involved in this case. On August 29, 1990, the defendants responded to the plaintiff’s request to produce and propounded interrogatories. One of the interrogatories in part asked: “Were any photographs, videotapes or motion pictures taken which in any way relate to the occurrence alleged in the complaint?” The defendants responded: “Defense counsel has possession of nine Polaroid photographs of the vehicle/scene of the occurrence, which are attached to the response to the request for production.” Two of the photographs were later admitted during trial as Exhibits 26-A and 26-B. Defense counsel utilized the fact that these photographs were not of the actual spreader involved in cross-examining the plaintiff’s witnesses. Thereafter, the plaintiff moved to have the defendants bound by their previous representation that these photographs were of the actual vehicle.

In response to the motion, the defendants asserted in affidavits that they personally did not view the photographs prior to the response to the request for production. Most of the work in completing the final answers to the interrogatories and request to produce was done by their attorney. The defendants further asserted that the fact that the photographs were of a similar vehicle and not the actual spreader involved in the incident was made clear to the plaintiff’s attomey at the depositions of James Ely and Dale Black taken on October 26,1990.

Generally, a judicial admission is a deliberate, clear, unequivocal statement of a party about a concrete fact within that party’s peculiar knowledge. (Hansen v. Ruby Construction Co. (1987), 155 Ill. App. 3d 475, 508 N.E.2d 301.) A judicial admission can be either documentary or testimonial. Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 415 N.E.2d 599.

In the instant case, the record shows the plaintiff’s attorney knew nearly two years before trial that the photographs were of a similar vehicle and not the actual vehicle driven by James Ely on May 1, 1989. Under these circumstances, the plaintiff can claim no prejudice. The trial court correctly denied the plaintiff’s motion.

The plaintiff also maintains the jury erred in finding her “contributorily” negligent. She contends the manifest weight of the evidence shows she was not contributorily negligent.

We note the jury signed verdict form C, which they were instructed to use if they found for the defendants or if they found the plaintiff’s contributory negligence amounted to 50% or more of the total proximate cause of her injury. Therefore, the jury could have simply found the defendants were not negligent. We do not know the final basis for their decision.

Even if the jury found the plaintiff contributorily negligent, we cannot say on the record presented that such a finding is unsupportable. The question of contributory negligence is ordinarily a question of fact for the jury. If there is any evidence of contributory negligence on the part of the plaintiff, a question of fact is presented that must be left to the jury for determination. Gruidl v. Schell (1988), 166 Ill. App. 3d 276, 519 N.E.2d 963.

The remaining issues raised on appeal by the plaintiff relate to the issue of damages. Since the jury did not reach this issue, and we find no error requiring a new trial, we need not address these issues.

For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

Affirmed.

McCUSKEY, P.J., and BRESLIN, J., concur.


author: JUSTICE LYTTON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONOVAN SIMS, Defendant-Appellant.
    Third District
    No. 3—92—0590
    Opinion filed July 16, 1993.

      Ronald S. Ellis, of Snyder, Sabuco, Aeschliman & Washburn, of Joliet (Roy A. Sabuco, of counsel), for appellant.
    James Glasgow, State’s Attorney, of Joliet (John X. Breslin and J. Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LYTTON

delivered the opinion of the court:

The defendant, Donovan Sims, was convicted of murder. On appeal, the defendant raises three issues: (a) whether the trial judge erred in admitting certain testimony of the State’s firearms expert, (b) whether the prosecutor committed reversible error in closing argument, and (c) whether the trial judge erred in denying defendant’s request that the jury receive an instruction on involuntary manslaughter. After considering the defendant’s claims, we affirm the judgment below.

I. Facts

The defendant and two others were charged with the murder of Ola Kelly. The cases were severed for trial, and the defendant’s trial commenced on April 30,1992.

Rene Medel testified that, at approximately 1 p.m. on October 13, 1991, he was driving an orange and white Blazer owned by his brother, Mauricio. Donnie Creal was a passenger. As Medel was driving in an area of Joliet known as “the Hill,” he arrived at the intersection of California and Woodruff. He then observed a group of people wearing team jackets.

Medel testified that while he had never belonged to a gang, his brother had been a member of the Vice Lords. Two gangs, the Two-six and the Gangsters, were enemies of the Vice Lords. Medel stated that he didn’t know the defendant, Donovan Sims. He did know Jermaine Ammons and Alex Mitchell and considered them to be his friends. Ammons and Mitchell were members of the Gangsters.

A short time later, as Medel approached the intersection of Wood-ruff and Fuller, someone in the middle of the street started shooting. Medel kept driving, but heard about 15 shots. It sounded like different guns were firing. One shot hit the Blazer, damaging the front windshield and dashboard.

Joliet police officer Cecile Gavin also testified. On October 13, 1991, she received a radio dispatch that shots were being fired in the area of Woodruff and Fuller. While proceeding to that location, she received a second dispatch and proceeded directly to a house at 1210 Fuller. In the living room was a woman, Ola Kelly, lying facedown. Gavin examined Kelly for a pulse but could not detect one. The paramedics arrived and turned Kelly over. Gavin saw blood on Kelly’s gown and assisted in placing the woman on a stretcher. Gavin then went to the kitchen and found what appeared to be a bullet hole in the window. From this window, Gavin could see a vacant lot and the intersection of Woodruff and Fuller.

The State also called occurrence witnesses Levar Woods and Charles Williams. Both men testified that they were in the vicinity at the time of the shooting, and each stated that he knew Sims, Ammons and Mitchell. However, when asked where the three were located as the Blazer went by and the shooting occurred, Woods testified, “I do not know.” When asked whether Sims, Ammons, and Mitchell ran after the shooting stopped, Woods replied, “I don’t know.” Similarly, Williams testified that he did not know where the defendant was at the time of the shooting, and Williams denied telling a Detective Stein that he saw the three men flee.

The State called Detective Thomas Stein as a witness. Pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115—10.1), the prosecution introduced evidence of prior inconsistent statements by Woods and Williams. Specifically, Stein testified that Woods had made and signed a written statement that he saw three subjects — Ammons, Mitchell and Sims-standing and firing upon the Blazer. In his statement, Woods said that Sims was standing in the grass to the east of 1112 Woodruff, and that Ammons and Mitchell were near a bush to the east of 1112 Woodruff. Woods saw Ammons and Mitchell flee, but did not know where Sims went. Also, Stein testified that Williams had made and signed a statement that he heard multiple shots being fired, and then observed Sims and the two other men flee.

Stein stated that he interviewed the defendant on December 3, 1991. According to Stein, the defendant stated that he, Williams, Woods, Mitchell and Ammons were standing around when the orange Blazer drove past their location. Sims then ran to a location where he had hidden a nine-millimeter gun, and positioned himself near the northeast corner of a residence. Mitchell and Ammons were armed with a .357 Python and a .45 automatic, respectively, and were positioned in an overgrown bushy area. When the Blazer returned, Sims opened fire and emptied his gun. The defendant believed that he had six rounds in the gun. The defendant then ran away. Sims told Stein that he had not intended to ambush the vehicle; rather, he armed himself for protection against Mauricio. Later that night, Sims spoke with Ammons on the telephone and learned that the police were looking for him. The defendant then went to Bloomington, Illinois, to hide from the authorities.

On cross-examination, Stein testified that Sims had told him that he believed the Blazer belonged to a member of a rival gang. Sims said that he ran and got his gun for protection. Sims thought that a door on the vehicle opened, and he thought that Mauricio was going to shoot. The defendant also stated that he was scared because Ola Kelly had been shot as a result of the shooting at the vehicle.

Another witness called by the prosecution was Walter Sherk, a firearm and tool mark examiner at the Illinois State Police Crime Laboratory in Joliet. After Sherk testified as to his education, experience and qualifications, the prosecutor moved that Sherk “be considered an expert witness.” Defense counsel stated that he had no objection, and the prosecution was permitted to examine the witness.

Sherk testified that the bullet taken from Ola Kelly’s body was a metal-piercing bullet, capable of being fired from a .38-caliber or .357-caliber weapon. He also testified that, in the past 16 years, he had fired thousands of bullets from semi-automatic weapons. Sherk testified that a shell casing would eject from a nine-millimeter gun at a distance of two to four feet; that a nine-millimeter bullet fired from a semi-automatic weapon could pass through the dashboard of a vehicle; that a nine-millimeter bullet fired from a semi-automatic weapon would travel a distance of one-quarter mile; and that a nine-millimeter bullet fired from a semi-automatic weapon could pass through a wall of a frame house about one-half block to one block away.

The defense rested without calling any witnesses. The jury found the defendant guilty, and he was sentenced to a 50-year term of incarceration in the Department of Corrections.

II. Analysis

A. STATE’S EXPERT WITNESS

On appeal, the defendant argues that it was reversible error for the State’s expert witness to testify regarding the distance a nine-millimeter shell casing would eject, the distance a nine-millimeter bullet could travel, and whether a nine-millimeter bullet could pass through a vehicle’s dashboard or the wall of a frame house.

The defendant’s argument appears to be somewhat inconsistent. He argues that the foregoing matters were outside the scope of any expertise which the witness may have possessed. However, the defendant also argues these matters are common knowledge and, therefore, no expert testimony was needed. After reviewing the record, we conclude that the trial judge did not err in admitting the testimony of the prosecution’s expert "witness.

The burden of establishing the qualifications of an alleged expert witness is upon the proponent of his testimony. The question of whether the proponent has met that burden is a matter within the discretion of the trial court. (People v. Allison (1992), 236 Ill. App. 3d 175, 189, 602 N.E.2d 1288.) Absent an abuse of that discretion, the ruling will not be disturbed on appeal. (People v. Turner (1993), 241 Ill. App. 3d 236, 245, 608 N.E.2d 906.) Only if the trial judge’s error is “clear and prejudicial” will the appellate court reverse. People v. Moody (1990), 199 Ill. App. 3d 455, 462, 557 N.E.2d 335.

In this case, we find no abuse of discretion in allowing the testimony of the State’s expert. Expert testimony is admissible when the subject matter of the inquiry is such that only persons of skill and experience in it are capable of forming a correct judgment as to any facts related to it. (People v. White (1993), 241 Ill. App. 3d 291, 300, 608 N.E.2d 1220.) A witness may be allowed to testify as an expert if his experience and qualifications give him knowledge not common to lay persons and where such testimony will aid the trier of fact in reaching a conclusion. (Turner, 241 Ill. App. 3d at 244-45.) The indicia of expertise is not a given level of academic qualification, but whether the expert has knowledge and experience beyond the average citizen which would assist the jury in evaluating the evidence. Whether the specialized knowledge is acquired through education, training, experience, or a combination of each, the witness may testify if he possesses such knowledge. (People v. Pollard (1992), 225 Ill. App. 3d 970, 976, 589 N.E.2d 175.) Thus, an expert may be qualified on the basis of experience alone. (Turner, 241 Ill. App. 3d at 244.) In any event, a jury need not accept expert testimony to the exclusion of other evidence. It may reject the expert testimony if it considers other evidence more probative. White, 241 Ill. App. 3d 291.

Applying the foregoing authority to the case at bar, we conclude that the trial judge properly allowed the testimony of Walter Sherk. We do not accept the defendant’s assertion that the average layman sitting on the jury would possess knowledge and experience regarding the distance and direction of shell casing ejections and the power of bullets.

The defendant’s argument that Sherk lacked the requisite qualifications to testify about such matters is also without merit. Sherk held a degree in forensic science, received two years on-the-job training at the Illinois State Police Crime Laboratory in Joliet, and attended numerous courses and classes pertaining to firearms. For the past lG1^ years, he had been employed as a firearm and tool mark examiner at the State laboratory. During that period, he had used guns similar to those involved in this case and fired thousands of rounds from such weapons.

B. PROSECUTOR’S CLOSING ARGUMENT

Next, the defendant argues that three statements made by the prosecutor during closing argument constituted reversible error. We will address each of these comments in order.

First, the defendant challenges the prosecutor’s statement:

“The mental state required and the only mental state required is that he [the defendant] knew when he fired his gun at an occupied vehicle that created a strong probability of death or great bodily harm.”

The defendant complains that this constituted an improper statement of the law inasmuch as the prosecutor failed to include the requirement that the killing be without lawful justification.

“Mental state” is a precise, technical term under Illinois law. Except for absolute liability offenses, each criminal offense must consist of both a voluntary act and a culpable mental state. (See Ill. Rev. Stat. 1991, ch. 38, pars. 4—1, 4—3.) In Illinois, the recognized mental states for various criminal offenses are “intent,” “knowledge,” “recklessness,” and “negligence.” (Ill. Rev. Stat. 1991, ch. 38, pars. 4—4, 4—5, 4—6, 4—7.) “Without lawful justification” is not a mental state.

After reviewing the record, we conclude that this comment did not prejudice the defendant’s case by confusing the jury regarding the requirement that the killing be without lawful justification. Both counsel informed the jury that first degree murder required a finding of no lawful justification, and the trial judge properly instructed the jury as to this requirement.

Second, the defendant challenges the prosecutor’s statement:

“If you find that he knew that shooting at the Blazer that he thought contained Mauricio Medel created a strong probability of death or great bodily harm when he pulled that trigger, then that is all you need.”

The defendant again argues that this statement failed to advise the jury that, in order to convict the defendant of first degree murder, the jury would have to find the absence of lawful justification.

Placed in its proper context, however, the prosecutor’s statement did not constitute error. After reviewing the record, we conclude that the challenged statement did not mislead the jury into believing that the prosecutor was listing the elements of the offense, or even the requisite mental state. This statement was made within the context of the prosecutor discussing the concept of transferred intent:

“Transferred intent means simply this, ladies and gentlemen: It doesn’t matter if he [Sims] thought he was firing at Mauricio, that he was, in fact, firing at Rene [Medal] and Donnie Creal and that he killed Ola Kelly.
The intent, the knowledge for first degree murder, occurs at the time the trigger is pulled, and it flies with the bullet. It doesn’t matter that Mauricio wasn’t in that truck, and they missed Donnie and Rene, and that it was Ola Kelly that was killed.
The intent was formed at the moment that bullet was fired and [the] moment that each and every bullet was fired. That is transferred intent, ladies and gentlemen.
If you find that he knew that shooting at the Blazer that he thought contained Mauricio Medel created a strong probability of death or great bodily harm when he pulled that trigger, then that is all you need.
Transferred intent says it doesn’t matter that Mauricio wasn’t in the — .”

At that moment, defense counsel objected on the grounds that the State was also required to prove that the defendant acted without lawful justification. In spite of the fact that the trial court overruled the objection, the prosecutor immediately stated, “Ladies and gentlemen, what defense counsel states is correct. We also have to prove that this was without lawful justification.” The prosecutor then resumed his comments regarding transferred intent.

Thus, read in context, the challenged statement occurred during the prosecutor’s comments regarding a specific aspect of the case: transferred intent. And, once again, on numerous occasions, both counsel and the trial judge informed the jury that the prosecution had the burden of proving the absence of lawful justification.

Third, the defendant challenges the prosecutor’s statement:

“We are confident that if you look at all the evidence, you will find that the People have proven the Defendant guilty of first degree murder, and that the defense has failed to meet their burden of proving that the Defendant believed he was acting in self-defense.”

Here, the defendant argues that the prosecutor improperly attempted to shift the burden of proof to the defendant to show that he acted in self-defense.

Two points should be noted. First, it is clear from the record that, at the time that the prosecutor made the challenged statement, he was discussing the elements for second degree murder, urging the jury to reject the lesser offense and to convict the defendant of first degree murder. Second, the prosecutor did not state that the defendant had the burden of proving that he acted in self-defense. Rather, the prosecutor stated that the defendant failed to meet his burden of proving that the defendant believed he was acting in self-defense.

Section 9 — 2(c) of the Criminal Code of 1961 provides that a person is guilty of second degree murder when he commits first degree murder, and either of two mitigating factors is present. (Ill. Rev. Stat. 1991, ch. 38, par. 9—2(a).) The first mitigating factor is the presence of sudden and intense passion. (Ill. Rev. Stat. 1991, ch. 38, par. 9—2(a)(1).) The second mitigating factor is that, at the time of the killing, the defendant believed the circumstances to be such to legally justify or exonerate the killing, but the belief was unreasonable. Ill. Rev. Stat. 1991, ch. 38, par. 9—2(a)(2).

Section 9 — 2(c) also states, “the burden of proof is on the defendant to prove either factor by a preponderance of the evidence before the defendant can be found guilty of second degree murder.” (Ill. Rev. Stat. 1991, ch. 38, par. 9 — 2(c).) However, when a defendant is on trial for first degree murder, and evidence of either mitigating factor has been presented, the burden remains on the State to prove the elements of first degree murder and, when appropriately raised, the absence of circumstances which would legally justify or exonerate the killing. Ill. Rev. Stat. 1991, ch. 38, par. 9—2(c).

“Under the present statute, which became effective July 1, 1987, the State still bears the burden to prove the elements of first degree murder; however, the defendant now bears the burden to prove, by a preponderance of the evidence, one of the factors in mitigation which must be present to reduce an offense of first degree murder to second degree murder.” (People v. Savickas (1992), 230 Ill. App. 3d 322, 332, 594 N.E.2d 1233, citing People v. Shumpert (1989), 126 Ill. 2d 344, 351-52, 533 N.E.2d 1106.)

Thus, the prosecutor did not misstate the law when he said that the defense had the burden of proving that the defendant believed he was acting in self-defense.

C. INVOLUNTARY MANSLAUGHTER INSTRUCTION

Finally, the defendant argues that the trial court erred in denying his request that the jury be instructed on involuntary manslaughter.

A defendant is entitled to an instruction consistent with his theory of his case if there exists evidence to support that theory. (People v. Solis (1991), 216 Ill. App. 3d 11, 18, 576 N.E.2d 120.) If there is even “the slightest amount of evidence in the record to justify an underlying theory,” the instruction must be given. People v. Garcia (1988), 169 Ill. App. 3d 618, 620, 523 N.E.2d 992.

“The offenses of murder and involuntary manslaughter are distinguished only in terms of the mental state required. *** Murder requires the intent to kill or do great bodily harm or knowledge that the acts create a strong probability of such result while involuntary manslaughter requires only reckless conduct which causes death.” People v. Maldonado (1992), 240 Ill. App. 3d 470, 481, 608 N.E.2d 499.

In this case, the defendant asserts that the jury should have been instructed on involuntary manslaughter since there existed some evidence that he acted in a reckless manner. When ascertaining whether or not a defendant’s actions were reckless or intentional, courts examine the manner in which the defendant used his weapon. (Solis, 216 Ill. App. 3d at 18.) “A defendant’s assertion that he did not intend to kill anyone is not a sufficient basis to warrant an involuntary manslaughter instruction where the defendant intended to fire a gun, pointed it, and shot in the victim’s general direction.” Maldonado, 240 Ill. App. 3d at 481.

In People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984, the defendant testified that he was returning to a party, when he observed a fight in the street. Several persons were swinging bats and sticks at his friends who were unarmed. One of the defendant’s friends was clutching his throat and bleeding, and women were screaming. In response, the defendant obtained a pistol from a friend’s car. The defendant testified that he fired three shots at a car’s gas tank, trying to ignite it and create a diversion to break up the fight. One participant in the fight was shot and killed. Santiago was tried and convicted of voluntary manslaughter. Santiago, 108 Ill. App. 3d at 789-98.

On appeal, Santiago argued that the trial judge should have instructed the jury regarding involuntary manslaughter. In its response, the State relied upon cases where defendants had fired directly into crowds. (See People v. DeMumbree (1981), 98 Ill. App. 3d 22, 424 N.E.2d 73; People v. Mitchell (1973), 12 Ill. App. 3d 960, 299 N.E.2d 472.) The appellate court held that such an act was “significantly different from firing at an empty car with the intent of causing a diversion by possibly igniting the gas tank.” (Santiago, 108 Ill. App. 3d at 803.) Accordingly, the court reversed Santiago’s conviction on the ground that the defendant was entitled to an involuntary manslaughter instruction. Santiago, 108 Ill. App. 3d at 803.

In People v. Maldonado (1992), 240 Ill. App. 3d 470, 608 N.E.2d 499, two groups were engaged in a street fight. After the defendant fired one shot at his adversaries’ station wagon, two men fled on foot and another began to drive the vehicle away. The defendant fired several more shots at the station wagon. One of the passengers was struck by a bullet and died. The defendant was tried and convicted of murder. Maldonado, 240 Ill. App. 3d at 473-74.

On appeal, the defendant argued that the trial judge erred in denying his request for an involuntary manslaughter conviction. In support of his contention, Maldonado cited the Santiago decision. The appellate court disagreed. Even if the defendant had only intended to scare the other people, as he claimed, the evidence indicated that this was accomplished when they began to flee after the first shot. Thereafter, Maldonado “fired into a moving vehicle,” unlike Santiago, where “there was no evidence that anyone was in or near the car when the defendant fired and the likelihood of injury or death was more remote since the car was unoccupied.” (Maldonado, 240 Ill. App. 3d at 482.) Accordingly, the court held, the trial judge did not err in refusing to instruct the jury on involuntary manslaughter. Maldonado, 240 Ill. App. 3d at 482.

The present case is closer to the situation presented in Maldonado than Santiago. At the time that Sims and his accomplices opened fire on the van, the vehicle was moving. Thus, the defendant knew that the van was occupied, and he was firing at its occupants. Unlike Santiago, the defendant was not attempting to create a diversion. Moreover, it cannot be maintained that Sims believed that he was acting in self-defense. Although no one in the van fired a gun, or even displayed a weapon, Sims continued to fire until his gun was emptied. The defendant’s actions could not be considered reckless.

Neither the fact that the bullet may have come from an accomplice’s gun, nor the fact that the deceased was not the intended victim, affects our conclusion that the defendant was not entitled to have the jury instructed on involuntary manslaughter. Under the “common design rule,” the State needed only to prove that the defendant had the specific intent to promote or facilitate a crime to hold the defendant accountable for any criminal act done in furtherance of the intended crime. (People v. Gil (1992), 240 Ill. App. 3d 151, 159, 608 N.E.2d 197.) Under the doctrine of “transferred intent,” where the defendant shot at one person, with the intent to kill, but actually killed the other, he may be convicted of the crime of murder of the unintended victim. (People v. Migliore (1988), 170 Ill. App. 3d 581, 589, 525 N.E.2d 182.) The latter principle is embodied within the wording of the murder statute:

“A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death:
(1) he either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another.” (Emphasis added.)
(Ill. Rev. Stat. 1991, ch. 38, par. 9—1(a)(1).)

The trial judge did not err in denying the defendant’s request that the jury be instructed on involuntary manslaughter.

III. Conclusion

We conclude that the trial judge properly allowed the testimony of the State’s expert witness; that the prosecutor’s statements during closing argument were proper; and that the trial judge did not err in denying defendant’s request for a jury instruction on involuntary manslaughter.

The judgment of the circuit court of Will County is hereby affirmed.

Affirmed.

SLATER and STOUDER, JJ., concur.