text:
    ELZO LINT, Plaintiff-Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY et al., Defendants-Appellants.
    Fifth District
    No. 5—89—0349
    Opinion filed filed July 27, 1990.

      James C. Cook and Leslie G. Offergeld, both of Walker & Williams, RC., of Belleville, for appellants.
    John H. Hustava, of John H. Hustava, P.C., of Collinsville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Elzo Lint, brought a negligence action in the circuit court of St. Clair County to recover damages for personal injuries he sustained when his vehicle was struck by a train at a highway/railway grade crossing in Steeleville, Illinois, which is located in Randolph County. Named as defendants were Missouri Pacific Railroad Company (Mo-Pac); Union Pacific Railroad Company; and James G. Smith, the train’s engineer. The defendants’ motion to transfer plaintiff’s action to Randolph County on grounds of intrastate forum non conveniens was denied by the St. Clair County circuit court on April 28, 1989. This court has granted defendants’ petition for leave to appeal under Supreme Court Rule 306(a)(l)(ii) (107 Ill. 2d R. 306(a)(l)(ii))» We affirm.

Forum non conveniens is an equitable doctrine that assumes the existence of more than one forum with jurisdiction over the parties and the subject matter of the case. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 223, 506 N.E.2d 1291, 1294.) In resolving a forum non conveniens question, the court must balance private interest factors affecting the litigants and public interest factors affecting the administration of the courts. 116 Ill. 2d at 223-24, 506 N.E.2d at 1294.

Private interest factors to be considered are the convenience of the parties, the relative ease of access to sources of proof, the accessibility of witnesses, and “all other practical problems that make trial of a case easy, expeditious and inexpensive.” (Griffith v. Mitsubishi Aircraft International, Inc. (1990), 136 Ill. 2d 101, 105-06, 554 N.E.2d 209, 211.) Relevant public interest factors include the administrative difficulties caused when litigation is handled in congested venues, the unfairness of imposing jury duty upon residents of a county with no connection to the litigation, and an interest in having localized controversies decided locally. 136 Ill. 2d at 106, 554 N.E.2d at 211.

A further consideration under the forum non conveniens doctrine is deference to the plaintiff’s choice of forum. A plaintiff’s right to select a forum is a substantial one, and unless the factors strongly favor transfer, then the plaintiff should be allowed to exercise his statutory right to choose his forum. (Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211; Bland, 116 Ill. 2d at 225, 506 N.E.2d at 1295.) However, the plaintiff’s choice deserves less deference where he is not a resident of the chosen forum. Griffith, 136 Ill. 2d at 106, 554 N.E.2d at 211.

The record before us indicates that the factors do not so strongly favor transfer that plaintiff’s choice of forum should be overturned. The party seeking transfer of venue On forum non conveniens grounds has the burden of showing that plaintiff’s chosen forum will be unduly burdensome or inconvenient to him. (Hoffmeister v. K mart Corp. (1989), 181 Ill. App. 3d 739, 743, 537 N.E.2d 460, 462.) Here, defendants have failed to provide such a showing.

Examining the relevant factors, the parties agree that venue is properly fixed in either Randolph County, where the cause of action arose, or in St. Clair County, where defendant Smith resides. (See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 101.) Additionally, venue is proper in either forum as defendant Mo-Pac does business in both Randolph and St. Clair Counties. See Ill. Rev. Stat. 1989, ch. 110, par. 2 — 102.

As to the accessibility of sources of proof and witnesses, the record reveals that the four members of the train crew, including defendant Smith, all reside in St. Clair County. The City of Steeleville police officer and ambulance attendants who responded to the accident, as well as Mo-Pac’s manager-train operations, and Mo-Pac’s investigator reside in Randolph County. Plaintiff, who resides in Perryville, Missouri, obtained treatment from one physician and hospital located in Randolph County, and from two physicians and one hospital located in Cape Girardeau, Missouri.

Although defendants argue that the presence of pertinent business records, reports, and the greater number of witnesses in or near Randolph County militates its choice as the most convenient forum, the extent to which this proximity affects their “accessibility” is not so apparent. The witnesses from Randolph County can all be subpoenaed to testify at trial in St. Clair County. (See Darnell v. Ralph Korte Equipment Co. (1986), 144 Ill. App. 3d 564, 568, 494 N.E.2d 1206, 1209.) Those witnesses who reside out of State are not subject to compulsory process and may have their testimony presented by evidence deposition regardless of the forum. If an out-of-State witness is disposed to appear voluntarily, the extra time involved in travel to St. Clair County would be unlikely to dissuade them, and the extra expense borne by defendants would be negligible. Where Randolph County, the situs of the alleged injury, and St. Clair County are adjoining counties, trial in St. Clair County would not be significantly more costly or inconvenient. (See Griffith, 136 Ill. 2d at 113, 554 N.E.2d at 214; see also Hoffmeister, 181 Ill. App. 3d at 744, 537 N.E.2d at 463.) As this court stated in Daiber v. Montgomery County Mutual Fire Insurance Co. (1989), 191 Ill. App. 3d 566, 568, 548 N.E.2d 17, 19, “it is most difficult to demonstrate inconvenience when the alternative forum adjoins the county in which venue otherwise properly was laid. ’ ’ v

Considering the public interest factors, defendants argue that court congestion is much greater in St. Clair County than in Randolph County, citing a 1985 Annual Report of the Administrative Office of the Illinois Courts to the Supreme Court. However, as this court stated in Hoffmeister, where a similar claim was made:

“While court congestion is certainly a factor to be considered, the circuit court of St. Clair County, which denied defendant’s motion to transfer venue, apparently did not consider this factor to weigh heavily in defendant’s favor. The trial court was in a better position than this court to assess the burden posed by its own docket, and we will not second-guess its judgment.” 181 Ill. App. 3d at 744, 537 N.E.2d at 462.

Defendants also argue that Randolph County, the situs of the alleged accident, has an interest in having the controversy decided locally, while St. Clair County does not. However, plaintiff claims that it was the failure of defendant Smith, a St. Clair County resident, to perform his duties as engineer of the train which precipitated the accident. Thus, although defendant’s residence in plaintiff’s choice of forum is not dispositive (see Overturf v. Illinois Central Gulf R.R. Co. (1989), 195 Ill. App. 3d 962, 965, 553 N.E.2d 1, 2), it does give St. Clair County a local interest in the litigation. Similarly, we cannot say that it would be unfair to burden St. Clair county jurors with the trial of one of their fellow residents.

Whether a forum non conveniens motion should be granted or denied rests within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion. (Hoffmeister, 181 Ill. App. 3d at 744, 537 N.E.2d at 463.) Thus, on review, the role of this court is not to substitute our judgment for that of the trial court, or to decide whether we would have weighed the factors differently. Rather, our task is to determine whether the trial court abused its discretion. Griffith, 136 Ill. 2d at 115, 554 N.E.2d at 215; Hoffmeister, 181 Ill. App. 3d at 744, 537 N.E.2d at 463.

While we are mindful that the plaintiff’s choice of forum is entitled to less deference, as he is not a resident of that forum, less deference does not mean no deference. (Hoffmeister, 181 Ill. App. 3d at 742, 537 N.E.2d at 462.) Therefore, where the record does not reveal factors weighing strongly in favor of transfer to Randolph County, we conclude that the trial court did not abuse its discretion in denying defendants’ motion to transfer.

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

Affirmed.

LEWIS, P.J., and WELCH, J., concur.


source: Caselaw Access Project

author: JUSTICE CHAPMAN

license: Public Domain

text:
    GERALD S. REED et al., a Partnership, d/b/a Reed, Heller & Mansfield, Plaintiffs-Appellees, v. RUTH HOLDER, Defendant-Appellant.
    Fifth District
    No. 5—89—0100
    Opinion filed July 30, 1990.

      Sharon S. Costa, of Costa & McHaney, of Mt. Vernon, for appellant.
    Edward J. Heller, of Reed, Heller & Mansfield, of Murphysboro, for appellees.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Legal services were rendered on behalf of Ruth Holder by Gerald Reed and the partnership of which he is a member, Reed, Heller & Mansfield. To secure payment of the court costs and attorney fees incurred by Holder, Reed prepared a promissory note which was executed by Holder on September 1, 1983, at Reed’s office. That note reads:

“PROMISSORY NOTE
$17,056.25 Pinckneyville, Illinois July 27, 1983
For legal services and out-of-pocket expenses, I Ruth Holder promise to pay to the Order of Reed, Heller & Mansfield, the sum due as of July 27, 1983 of FOURTEEN THOUSAND NINE HUNDRED FORTY FIVE DOLLARS AND SIXTY CENTS ($14,945.60) for attorneys fees accrued, plus such additional amounts as may accrue thereafter, and the additional sum of TWO THOUSAND ONE HUNDRED TEN DOLLARS AND SIXTY FIVE CENTS ($2,110.65) for out-of-pocket expenses at an interest rate thereof of TEN PER CENT (10%) per annum calculated against unpaid principal, as soon as practical, but no later than the date of sale of any real estate awarded to me as part of the Judgement of Dissolution of Marriage from Joseph Holder.
I further promise that my Oxbow residence home shall either be placed on the market immediately, or if an appeal is taken on the property division, as soon as possible after the appeal is determined, and I will take all reasonable necessary steps to sell said property. Should I elect not to sell said property, the entire amount shall be immediately due and payable.
RUTH HOLDER”

While not disputing the execution of the note, Holder does dispute that interest is owed on the attorney fees. Holder contends that the note clearly shows that interest is due only as to out-of-pocket expenses.

On May 3, 1988, $18,041.95 was paid on the note. On September 16, 1988, the partnership of Reed, Heller & Mansfield filed a complaint against Ruth Holder, claiming the balance due on the promissory note, $7,411.48, plus interest from and after the date the complaint was filed. Following a bench trial, judgment was entered in favor of the plaintiffs, and the court found that: (1) Ruth Holder executed the promissory note on September 1, 1983, promising to pay the principal of $17,056.25 plus interest from and after July 27, 1983, at the rate of 10% per annum; (2) the only payment made on the note was on May 3, 1988, in the sum of $18,041.95; (3) the note is clear on its face and not ambiguous; and (4) plaintiff is entitled to judgment in the sum of $7,642.07, plus costs.

Ruth Holder appeals, contesting only that provision of the judgment awarding interest on the attorney fees due under the promissory note. She argues that the clear language of the note supports her position that no interest is owed on the attorney fees. In the alternative, Holder argues that the note is ambiguous and, therefore, the note should be construed in her favor.

The terms of a note must be determined in accordance with the intention of the parties when that can be ascertained from the language used. (Wheeling Trust & Savings Bank v. Citizens National Bank (1986), 142 Ill. App. 3d 333, 336, 491 N.E.2d 866, 869.) Parol evidence is otherwise inadmissible to vary or contradict the clear written provisions of an integrated contract. (Main Bank v. Baker (1981), 86 Ill. 2d 188, 199, 427 N.E.2d 94, 98-99.) In the absence of ambiguous language, there is no legal basis to support a judicial reformation of the note. (See Lustgarten v. First Federal Savings & Loan Association (1963), 42 Ill. App. 2d 86, 191 N.E.2d 434.) In the case at bar, we believe, as did the trial court, that the language of the promissory note is plain and its terms unambiguous.

The critical provision of the note here is that which reads:

“For legal services and out-of-pocket expenses, I Ruth Holder promise to pay *** ($14,945.60) for attorneys fees accrued, plus such additional amounts as may accrue thereafter, and the additional sum of *** ($2,110.65) for out-of-pocket expenses at an interest rate thereof of TEN PER CENT (10%) per annum J

Holdér argues that the language regarding attorney fees is separated by a comma, differentiating attorney fees from out-of-pocket expenses and the interest rate, both of which are referred to in a phrase uninterrupted by commas. Plaintiff reasons that the note distinguishes between the amount of attorney fees and the amount of costs to designate which sum is interest free and which is not.

Defendant’s reliance on the placement of a single comma in support of her position, while creative, is illogical when the language of the promissory note is considered in its entirety. The cardinal rule of construction is to give effect to the intention of the parties as expressed by the language of the entire instrument. (In re Estate of Feldman (1944), 387 Ill. 568, 574, 56 N.E.2d 405, 407.) The first line of the body of the note, “for legal services and out-of-pocket expenses,” refers to the principal sum due. We cannot presume, as defendant suggests, that the delineation between the principal amount owed for attorney fees and the principal amount owed for costs is made to differentiate between an interest-bearing sum and a non-interest-bearing amount. The recitation of the amount owed for attorney fees and then out-of-pocket expenses clearly relates back to the first phrase of the note, “for legal services and out-of-pocket expenses,” advising the reader what consideration was given for execution of the note. We find it significant that in the upper corner of the note, the principal sum of $17,056.25 is typewritten. If we were to interpret the note as defendant does, the $17,056.25 sum in the upper corner of the note would have no meaning in calculating the amount due under the note. Reading the typewritten $17,056.25 in conjunction with the two sums representing the amounts owed for attorney fees and costs, we find that the designation of the two sums was made to establish the sums that were used to calculate the total principal.

Defendant further submits that the extrinsic evidence admitted at trial as to the conduct of the parties with regard to the note supports her position. In determining the meaning of a contract, a court may consider the conduct of the parties. (Mendelson v. Flaxman (1975), 32 Ill. App. 3d 644, 647, 336 N.E.2d 316, 319.) Contrary to defendant’s conclusion, a review of the testimony adduced at trial supports the trial court’s finding that the intent of the parties was to apply interest to both attorney fees and out-of-pocket expenses.

There was admitted into evidence correspondence from Holder’s attorney, Kathleen Moran, dated February 29, 1988. This letter made reference to a potential sale of Holder’s residence, with an anticipated closing date of April 1, 1988. The letter also stated in pertinent part:

“I calculated out the attorney’s fees, costs, and interest and came up with a figure of $18,041.95.
Attorney’s Fees 14,945.60
Costs 2,110.65
Interest on Costs 986.35
$18,041.95
If you calculate out the figure and it comes to a different amount then [sic] what I have calculated, please let me know immediately.”

Gerald Reed’s letter in reply, dated March 3, 1988, stated:

“I am in receipt of your February 29, 1988, correspondence. I have no problems with the figures that you set out in that letter. I am cautiously optimistic that this matter may settle.”

Defendant contends that these letters evidence that the parties intended to apply interest only to costs.

Ruth Holder testified that when she executed the note, Gerald Reed explained to her that interest would be charged only on the out-of-pocket expenses. Holder’s attorney testified that it was not until she prepared the closing statements on the sale of Holder’s residence that she realized there was a dispute over the terms of the note. The calculations in her letter of February 29, 1988, were made after discussing the terms of the note with Ruth Holder. Holder’s attorney testified that she had had a prior discussion with Reed wherein Holder’s interpretation of the note was mentioned, and Reed did not at that time deny such interpretation. She did testify, however, that approximately one year prior to the sale of the Holder residence she spoke with Reed and asked if he would be willing to cut his fee in an attempt to get Ruth Holder to refinance so that Reed could get paid. Reed told her at that time, that in that context he would be willing to waive the interest, but that he really did not want to cut his fee.

Gerald Reed testified that he spoke with Kathleen Moran in the spring of 1987 about a possible compromise to settle the payment due on the note. While no agreement was reached at that time, Reed stated that during that conversation he verbally denied that Holder’s interpretation of the note as precluding interest on fees was accurate. He testified that in February of 1988, he once again discussed with Moran a possible waiver of the interest due, premised on the condition that closing occur on or before April 1,1988.

Reed further testified that the context of the February 29, 1988, letter and his response thereto was towards compromising the balance due on the note. Reed explained that there was an agreement to compromise the amount due on the note in the spring of 1988, which required payment by April 1, 1988, to be effective. He testified, “In February, 1988, I received a phone call from Kathleen Moran, indicating that there was a possible buyer *** inquired if I would be willing to settle for less at that time *** I said, when is the closing? And she said, we are shooting for April 1st *** I got back with her and said, if you can close by April 1st, we will waive interest on the principal.” Reed continued, “Payment was not made by April 1, 1988, and that agreement was not placed in effect and the full amount due under the note remained due and owing.”

When testimony is contradictory in a trial without a jury, the weight to be accorded testimony is a matter to be determined by the trial court, and its findings will not be disturbed unless clearly against the manifest weight of the evidence. (Village of Hillside v. John Sexton Sand & Gravel Corp. (1983), 113 Ill. App. 3d 807, 816, 447 N.E.2d 1047, 1053.) Here, the trial judge heard evidence on the intent of the parties and their conduct with regard to the promissory note. After reviewing the record, we are of the opinion that there was sufficient evidence to support his finding that the note in question was intended to bear interest on both attorney fees and out-of-pocket expenses.

In light of the foregoing, we affirm the judgment of the trial court.

Affirmed.

LEWIS, P.J., and RARICK, J., concur.


author: JUSTICE HARRISON

text:
    SHARON LEE LEICHT, Ex’x of the Estate of Walter E. Leicht, Deceased, Petitioner-Appellant, v. JAMES L. QUIRIN, Respondent-Appellee.
    Fifth District
    No. 5—88—0552
    Opinion filed July 30, 1990.

      George E. Marifian, of Mathis, Marifian & Richter, Ltd., of Belleville, for appellant.
    Robert H. Rice, of Rice Law Offices, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of St. Clair County which held, inter alia, that respondent, James L. Quirin, was the “beneficial owner” of the stock of Trans Truck, Inc. For the reasons which follow, we reverse and remand.

The facts pertinent to this case were addressed briefly in the order issued by this court on February 8, 1990, directing petitioner to show cause why this appeal should not be dismissed for lack of jurisdiction. We subsequently discharged that show cause order, and the appeal is now before us for a decision on the merits. In order to analyze the substantive issues raised by this appeal, we shall now set forth the facts of the case in some detail.

The litigation which gave rise to this appeal commenced when Sharon Lee Leicht, as executor of the estate of Walter E. Leicht, deceased, brought a citation proceeding in the circuit court of St. Clair County pursuant to section 16 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. llCP/z, par. 16 — 1). The proceeding was initiated in an effort to establish that the stock of a company known as Trans Truck, Inc., belonged entirely to Walter Leicht’s estate and not to respondent, James Quirin.

A bench trial was held in the case at which evidence was adduced which established that Trans Truck, Inc., was incorporated in the State of Illinois on June 27, 1978. The company’s articles of incorporation indicated that it was organized “[f]or general trucking, hauling, and construction.” The articles authorized the issuance of 1,000 shares of common stock. Although there were no actual share certificates, there is no dispute that 100% of that stock was held in the name of the decedent, Walter Leicht. The Federal income tax returns filed by Trans Truck up through the time of the decedent’s death consistently showed that the decedent owned 100% of the corporation’s stock. Decedent was also listed as owning 100% of the Trans Truck stock in the “Motor Carrier Annual Reports” filed by the corporation with the Illinois Commerce Commission for the two years preceding his death.

The decedent and his father owned a “certificate of public convenience and necessity as a common carrier of property” issued by the Illinois Commerce Commission. On July 18, 1978, the. decedent and his father applied to the Illinois Commerce Commission to transfer that certificate to Trans Truck. The application specified that Trans Truck, the transferee, was “wholly owned by the Transferor or members of his immediate family,” and the only stockholder listed was decedent, who was represented as owning 100% of the stock. The application for transfer was granted by the Illinois Commerce Commission shortly thereafter.

In the meantime, the decedent and respondent entered into an option agreement on September 7, 1978, under which the respondent was given the right to purchase all of the stock in Trans Truck from the decedent for $4,000. The agreement specified that this right had to be exercised within two years. In addition, a nonrefundable $2,000 payment was required upon execution of the agreement, which would be applied to the $4,000 purchase price in the event the option was exercised. Respondent made this initial $2,000 payment to the decedent. By the time the agreement expired, however, the decedent had not received the remaining $2,000. After expiration of the agreement the decedent did receive a check for $600 drawn on a Trans Truck account, but there is no dispute that the remaining balance due under the option agreement was never paid.

When the option agreement was executed, a second agreement was entered into between respondent and the decedent. The second agreement recited that the decedent owned all of the shares of Trans Truck stock and specified that the decedent was the president of the corporation, that the decedent’s father was its secretary, and that respondent would be elected its vice-president and treasurer. The agreement indicated that respondent would be hired as general manager and operations officer of the company for a salary of $1,000 per month, plus a bonus equal to 90% of the corporation’s profit after taxes. The agreement had a two-year term, which coincided with the duration of the option agreement.

This second agreement, which has been referred to as the “employment agreement,” also provided that

“in no way is [the decedent] personally responsible for any of the obligations assumed by the corporation in the employment of James Quirin, nor shall he be personally responsible for any of the corporation debts created as a result of the operation under the management and supervision of James Quirin.”

At the same time, the agreement further provided that

“the control of the corporation shall remain in [the decedent] until such time as James Quirin shall have exercised his option to purchase the stock pursuant to a separate agreement which may have been entered into between the parties.”

The purpose of these agreements between the decedent and respondent was to provide a means by which the decedent could transfer his certificate of necessity and convenience to respondent. After the agreements were executed, the decedent did not exercise and evidently did not want to exercise any control over the corporation. The corporation was run exclusively by respondent. The only day-to-day involvement the decedent had with the company was that the company paid him to drive a truck. Moreover, respondent testified that he “provided all the start-up money for this corporation to get it going.” How much this was was never established. We do know, however, that with the exception of the certificate of public convenience and necessity, whatever contributions were made to the assets of the corporation to enable it to begin business were made by respondent and not by the decedent.

The option agreement provided that it was “subject to the approval of the Illinois Commerce Commission if the same is deemed to be necessary.” On August 17, 1982, respondent applied to the Illinois Commerce Commission for approval of acquisition of control of the company by stock purchase, but that application was denied. As we have previously discussed, respondent never paid the decedent the balance due him under the option agreement, the option was not exercised, and the stock remained in the decedent’s name until his death.

Based upon this evidence, the circuit court concluded that although Quirin had had an option to purchase the stock from the decedent, he had not satisfied the conditions of the option and that “the stock therefore remain[ed] vested in [the decedent] at the time of his death.” The question of what, if any, further relief should be granted was reserved pending further proceedings.

Thereafter, both Quirin, the respondent, and Sharon Leicht, as executor of the decedent’s estate, filed what they denominated as post-trial motions. Sharon Leicht also filed a motion for reconsideration. These motions were argued before a new trial judge, Earle McCaskill, after the original judge in the case, Joseph Cunningham, was assigned to fill a vacancy on our supreme court.

In an order dated August 12, 1988, Judge McCaskill (1) denied Sharon Leicht’s motion for reconsideration and her post-trial motion, (2) granted the post-trial motion filed by Quirin, and (3) found that

“neither the estate of Walter E. Leicht nor Sharon Lee Leicht individually have [sic] any monetary ownership in either the stock of or equity of Trans Truck, Inc.; FURTHER, that because of the representation of ownership of stock by [the decedent], that [the decedent] was the owner of stock in Trans Truck, Inc.; it is the judgment of this Court that such ownership is determined to be special and limited purpose stock, and James L. Quirin is determined to be, and hereby is declared to be the beneficial owner of said stock.”

From this judgment, Sharon Leicht, as executor of the estate of Walter E. Leicht, now appeals.

As a preliminary matter, we note that there is no support in the record for Judge McCaskill’s conclusion that the stock held by decedent was a “special and limited purpose stock,” and respondent makes no attempt to defend the circuit court’s judgment under this analysis. Respondent nevertheless contends that the result reached by the circuit court was correct and that its judgment should be affirmed because the record established that respondent was, in fact, the “beneficial owner” of the stock under either a constructive or a resulting trust.

We agree that the circuit court’s reasoning is not dispositive on this appeal. As this court has recently held, a judgment is sustainable on any grounds warranted by the record, regardless of whether the particular reasons or specific findings stated by the trial court are correct. (People ex rel. Skinner v. FGM, Inc. (1988), 166 Ill. App. 3d 802, 806, 520 N.E.2d 1024, 1027.) In our view, however, the alternative theories advanced in support of the circuit court’s judgment here must fail.

Our supreme court has made clear that some form of wrongdoing is a prerequisite to the imposition of a constructive trust. (Suttles v. Vogel (1988), 126 Ill. 2d 186, 193, 533 N.E.2d 901, 905.) Respondent does not claim that the decedent engaged in any wrongdoing in this case. The constructive trust doctrine can therefore have no application.

Respondent’s attempt to rely on the doctrine of resulting trust is also without merit. As a general rule, a resulting trust arises by operation of law where one person furnishes the consideration for property and the title is taken in another. (In re Estate of Habel (1967), 88 Ill. App. 2d 194, 201, 231 N.E.2d 616, 620.) The theory of a resulting trust is “founded upon a natural equity that one who pays for the property should enjoy it, unless he intended by the vesting of title to confer a beneficial interest upon the grantee.” (Gary-Wheaton Bank v. Meyer (1984), 130 Ill. App. 3d 87, 91, 473 N.E.2d 548, 551.) The problem with the application of this doctrine to the stock at issue in the case before us is that respondent cannot be said to have furnished any consideration for the original acquisition of the stock when it was first placed in the decedent’s name. As our review of the record has shown, whatever payments or contributions respondent made to this enterprise were made only after Trans Truck had been incorporated and title to the shares had vested in the decedent, and the' purpose of those payments or contributions was to (1) facilitate the operation of the business following its incorporation and (2) secure an option so that respondent could buy the shares for himself at a later date. They were not made to fund the initial acquisition of the stock by decedent.

Our supreme court has consistently held that a resulting trust arises at the instant title is taken or vests, or not at all. (Tilley v. Shippee (1958), 12 Ill. 2d 616, 623, 147 N.E.2d 347, 352; Suwalski v. Suwalski (1968), 40 Ill. 2d 492, 495, 240 N.E.2d 677, 679; In re Es- tote of Wilson (1980), 81 Ill. 2d 349, 355-56, 410 N.E.2d 23, 27.) Because no consideration was furnished or paid by respondent at or before the time the title to the stock vested in the decedent and because the consideration which was subsequently furnished or paid by respondent was not intended to help finance the original transaction by which the decedent acquired the stock in his name, respondent can therefore claim no resulting trust in the shares of Trans Truck stock held by the decedent. (89 C.J.S. Trusts §120 at 973-74 (1955).) This is so no matter how substantial the payments made by respondent following the vesting of title to the stock in the decedent’s name may have been, for “moneys paid after the passing of title do not have the effect of creating a resulting trust” (Hille v. Barnes (1948), 399 Ill. 252, 258, 77 N.E.2d 809, 811), and “[a]cts of the alleged trustee or equitable owner subsequent to the taking of title, have no bearing upon the question of whether a resulting trust was raised” (Hanley v. Hanley (1958), 14 Ill. 2d 566, 572, 152 N.E.2d 879, 882).

Respondent has not suggested, and we have not found, any other basis upon which the circuit court’s judgment can be sustained. Accordingly, the judgment of the circuit court of St. Clair County is reversed, and this cause is remanded for further proceedings consistent with this order.

Reversed and remanded.

LEWIS, P.J., and WELCH, J., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DWAYNE ROBY, Defendant-Appellant.
    Fifth District
    No. 5—89—0328
    Opinion filed August 1, 1990.

      Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Darrell Williamson, State’s Attorney, of Chester (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

On August 29, 1988, defendant, Dwayne Roby, was charged by information with the offense of aggravated battery for striking a correctional officer in the face with his fist while that correctional officer was in the execution of his duties. The incident occurred on June 26, 1988. At all times pertinent hereto, defendant was incarcerated at the Menard Correctional Center serving a 25- to 75-year sentence for murder.

On February 6, 1989, the aggravated battery charge was dismissed by the circuit court of Randolph County due to the State’s failure to provide defendant with a prompt preliminary hearing as required by article I, section 7, of the Illinois Constitution (Ill. Const. 1970, art. I, §7), and section 109 — 3.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 109 — 3.1). On that same date, pursuant to section 114 — 1(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(e)), the People of the State of Illinois filed a new information charging defendant with the offense of aggravated battery based upon the same incident. Preliminary hearing on this new charge was held that day.

On April 21, 1989, defendant filed a motion to dismiss the new charge for failure to provide him with a prompt preliminary hearing because the second information was based on the same conduct as the first information, he had been in custody on the charge since the filing of the first information and had not received a preliminary hearing. This motion to dismiss was denied by order of court dated April 21,1989.

On that same date, the cause was tried in a stipulated bench trial. Defendant was found guilty and was sentenced to an agreed sentence of two years’ imprisonment, to be served consecutively to any sentences defendant was already serving.

Defendant argues on appeal that section 114 — 1(e) of the Code of Criminal Procedure of 1963 is unconstitutional to the extent it allows the State to file a new information charging the same offense as an original information which was dismissed for failure to provide a prompt preliminary hearing. Defendant argues that allowing such refiling defeats the purpose of requiring a prompt hearing, deprives defendant of a remedy for the violation of his constitutional right to a prompt preliminary hearing and renders that right meaningless. Therefore, he argues, section 114 — 1(e) is contrary to article I, section 7, of the Illinois Constitution, which provides for a prompt preliminary hearing, and to that extent it is unconstitutional and void, citing In re Tingle (1977), 52 Ill. App. 3d 251, 367 N.E.2d 287. Defendant also argues that section 114 — 1(e) is unconstitutional for the reason that it violates article I, section 12, of the Illinois Constitution, which provides that every person “shall find a certain remedy in the laws for all injuries and wrongs which he receives.” Ill. Const. 1970, art. I, §12.

Defendant argues that the original information should have been dismissed with prejudice for failure to provide a prompt preliminary hearing, and therefore, his conviction should be reversed. In the alternative, defendant argues that, if we do not find section 114 — 1(e) to be unconstitutional, we should follow the decision in People v. Kirkley (1978), 60 Ill. App. 3d 746, 377 N.E.2d 540, which reversed the conviction of a defendant who had been held 176 days without a preliminary hearing as a sanction for the State’s deprivation of defendant’s substantial constitutional right to a prompt preliminary hearing.

Article I, section 7, of the Illinois Constitution provides:

“No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.” (Ill. Const. 1970, art. I, §7.)

Section 109 — 3.1(b) of the Code of Criminal Procedure of 1963 provides that

“[ejvery person in custody in this State for the alleged commission of a felony shall receive either a preliminary examination *** or an indictment by Grand Jury *** within 30 days from the date he or she was taken into custody. Every person on bail or recognizance for the alleged commission of a felony shall receive either a preliminary examination *** or an indictment by Grand Jury *** within 60 days from the date he or she was arrested.” (Ill. Rev. Stat. 1989, ch. 38, par. 109—3.1(b).)

Thus, section 109 — 3.1(b) sets a time limit of 30 or 60 days on the constitutional right to a “prompt” preliminary hearing.

Prior to the enactment of section 114 — 1(e), no remedy was provided, either by the Constitution or by statute, for a violation of the constitutional or statutory rights to a prompt preliminary hearing. Our courts repeatedly recognized that the fashioning of a remedy for such a violation was a subject for legislative rather than judicial action. (People v. Howell (1975), 60 Ill. 2d 117, 122-23, 324 N.E.2d 403, 406; People v. Holman (1984), 103 Ill. 2d 133, 155, 469 N.E.2d 119, 130; People v. Riddle (1986), 141 Ill. App. 3d 97, 101, 489 N.E.2d 1176, 1178.) However, those same courts repeatedly recognized that the remedy of dismissal of the charge with prejudice was not available to a defendant as a sanction for such a violation. Howell, 60 Ill. 2d at 122-23, 324 N.E.2d at 404; Holman, 103 Ill. 2d at 155, 469 N.E.2d at 129; Riddle, 141 Ill. App. 3d at 100, 489 N.E.2d at 1178.

In 1984, the legislature saw fit to provide a remedy for violation of the statutory and constitutional rights to a prompt preliminary hearing. Section 114—1(a)(11) of the Code of Criminal Procedure of 1963 provides that, upon the written motion of the defendant made prior to trial, either before or after a plea has been entered, the court may dismiss the indictment, information or complaint for failure to provide a preliminary hearing in accordance with the requirements of section 109 — 3.1. (Ill. Rev. Stat. 1989, ch. 38, par. 114—1(a)(11).) However, section 114 — 1(e) of the Code of Criminal Procedure of 1963 provides that dismissal of a charge for failure to comply with section 109-3.1

“shall not prevent the return of a new indictment or the filing of a new charge and upon such dismissal the court may order that the defendant be held in custody or if he had been previously released on bail that his bail be continued for a specified time pending the return of a new indictment or the filing of a new charge.” (Ill. Rev. Stat. 1989, ch. 38, par. 114 — 1(e).)

As stated in People v. Bartee (1988), 177 Ill. App. 3d 937, 941, 532 N.E.2d 997, 999, this section allowing filing of a new information “clearly signals the legislature’s intent that the dismissal should not be with prejudice.”

Defendant presents us with the question whether section 114 — 1(e) is contrary to article I, section 7, of the Illinois Constitution and therefore void because it defeats the purpose of requiring a prompt preliminary hearing, deprives defendant of a remedy for violation of his constitutional right to a prompt preliminary hearing and renders meaningless that right. We think not.

In People v. Bartee (1988), 177 Ill. App. 3d 937, 532 N.E.2d 997, it was held that the purpose behind the constitutional and statutory requirements of a prompt preliminary hearing is to ensure that a defendant will not be held in custody or to bail, that is, that his freedom will not be restricted without a prompt showing of evidence that a crime has been committed. (177 Ill. App. 3d at 941, 532 N.E.2d at 999.) Bartee held that allowing the State to file a new charge or return a new indictment after a prior dismissal would not defeat the purpose of ensuring that a defendant is not unjustly detained. 177 Ill. App. 3d at 941, 532 N.E.2d at 999.

Nor do we think that allowing the State to file a new charge deprives defendant of a remedy for violation of his constitutional right to a prompt preliminary hearing and renders meaningless that right. The remedy with which the legislature chose to provide a defendant for violation of this right was a dismissal of the charge without prejudice. This remedy is real and substantial and fulfills the purpose of the right to a prompt preliminary hearing, i.e., to ensure that a defendant is not unjustly detained. That the State is empowered to file a new charge does not render that right nugatory for, again, defendant is entitled to a prompt preliminary hearing on the new charge or to dismissal without prejudice. Thus, section 114 — 1(e) does not deprive a defendant of a remedy for violation of his right to a prompt preliminary hearing. It is not contrary to article I, section 7, of the Illinois Constitution or article I, section 12, of the Illinois Constitution. Defendant is not entitled to a reversal of his conviction for the reason that section 114 — 1(e) of the Code of Criminal Procedure of 1963 is unconstitutional.

Finally, we decline to follow People v. Kirkley (1978), 60 Ill. App. 3d 746, 377 N.E.2d 540, which was decided prior to the enactment of section 114 — 1(e), at a time when the legislature had not yet established any remedy for the violation of defendant’s right to a prompt preliminary hearing. Because the legislature has now clearly expressed its intent that dismissal with prejudice not be available as a sanction for failure to provide a prompt preliminary hearing (see Bartee, 177 Ill. App. 3d at 941, 532 N.E.2d at 999), we are not at liberty to follow Kirkley.

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

Affirmed.

GOLDENHERSH and HOWERTON, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE ex rel. ANITA HARRIS, County Treasurer and Ex Officio Collector of Taxes of Jasper County, Applicant-Appellee, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Objector-Appellant.
    Fifth District
    No. 5—88—0812
    Opinion filed August 2, 1990.

      Thomas M. Atherton and Louis E. Miller, both of Bagley, Atherton, Clark & Miller, of Pekin, for appellant.
    James G. Tomaw, State’s Attorney, of Newton, and Robert G. Grierson, of Craig & Craig, of Mattoon, for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

Objector, Central Illinois Public Service Company (CIPS), filed a tax objection in the circuit court of Jasper County contending that a tax levy imposed by South Muddy Township was a replacement levy for taxes previously found to be improper. The trial court found that the levy was not a replacement tax and denied CIPS’ objection.

During the years 1980-83, CIPS was involved in two real estate tax disputes with the taxing bodies of Jasper County. The first involved the assessment of CIPS’ Newton generating station and the second concerned various tax rate objections filed in response to the collector’s annual application for judgment.

Pursuant to a stipulation between CIPS, the board of review and several governmental bodies, including South Muddy Township, which had intervened, the Property Tax Appeal Board (PTAB) entered an order setting the assessed value of the Newton generating facility. The parties also agreed that the refund due CIPS would be paid in four annual installments.

The second dispute was also resolved pursuant to a stipulation between the parties. The circuit court’s order, based upon the stipulation, provided that the refund due CIPS would be paid in four annual installments.

As a result of these two judgments, the total annual payment due CIPS for the two refunds was $186,000, the first installment of which was due on January 15, 1985. To pay this, the township levied an additional tax and CIPS objected, contending that it should not be required to pay its own refund. The record indicates that approximately 97% of the township’s tax revenue comes from CIPS. The township also levied an additional tax to pay the 1986 installment and again CIPS objected. The trial court ruled, inter alia, that the refund orders were judgments against the township, that the township had the authority to levy a tax to pay the judgments, and that the tax levied to pay the judgments was not intended as a replacement levy for taxes previously found improper.

On appeal, CIPS argues that the rate objection and assessment valuation refund orders are not judgments, at least not within the meaning of the above-quoted statutes, and that there is no legal authority for the township to impose the additional levy. We agree.

A taxing authority must be able to show the specific authority to tax within the bounds of the statute purportedly granting the power to tax (People ex rel. Newbould v. Wabash Ry. Co. (1932), 349 Ill. 93, 181 N.E. 610) and the township maintains on appeal, as it did below, that sections 5 — 5 and 13 — 9 of the Township Law of 1874 (the Act) (Ill. Rev. Stat. 1985, ch. 139, par. 0.1 et seq.) provide the legal basis for levying the additional tax. Section 5 — 5 of the Act provides:

“In all suits or proceedings prosecuted by or against town officers, in their name of office, costs shall be recovered as in like cases between individuals. Judgments recovered against a town or against town officers in actions prosecuted by or against them, in their name of office, shall be a town charge, and when collected shall be paid to the person or persons to whom the same shall have been adjudged.” (Ill. Rev. Stat. 1985, ch. 139, par. 49.)

Section 13 — 9 of the Act provides:

“The moneys necessary to defray the town charges of each town shall be levied on the taxable property in such town in the manner prescribed in the act for raising revenue and other moneys for state and county purposes and expenses.” Ill. Rev. Stat. 1985, ch. 139, par. 125.

The township argues that the tax refund orders were judgments, that under section 5 — 5 of the Act the judgments were township charges, that under section 13 — 9 of the Act money to pay town charges can be raised by a levy on taxable property, and, therefore, a tax levy to pay CIPS’ refund was proper. While appealing on the surface, this is sophistry at its worst and does not alter the fact that the taxing authority has effectively avoided refunding the illegally collected tax. To permit such would be a triumph of form over substance, of language over reason. Under the township’s reasoning, the very illegality of the first levy would form the basis for legally keeping it.

By levying a new tax to pay the refund for taxes illegally collected in the first instance, the township effectively deprived CIPS of its refund and circumvents the orders of the trial court and the PTAB. It would be illogical to hold that a tax refund order is a judgment for purposes of sections 5 — 5 and 13 — 9 of the Act. We must presume that in passing this legislation, the General Assembly did not intend an unjust, absurd, or unreasonable result. (Harris v. Manor Healthcare Corp. (1986), 111 Ill. 2d 350, 489 N.E.2d 1374.) If an order to refund illegally collected taxes is considered a judgment for which a township could levy a tax, then the tax appeal process becomes meaningless, and refund orders become exercises in futility.

CIPS also argues that the levy was a “replacement tax” for a tax previously found improper. The township responds that CIPS did not raise this objection before the circuit court. Specifically, the township argues that CIPS did not advance this argument in either its motion for summary judgment or the memorandum in support thereof. In holding that the equities of the case were with the township, however, the trial court ruled on this issue and found that the levy was not a replacement tax. We need not resolve this issue, however, as our previous holding on the issue of whether the refund orders were judgments is dispositive of this cause.

In holding that the equities were with the taxing authority, the trial court reasoned that if taxes are illegally collected and used for purposes that benefit the residents of the township, it is only fair that those who received the benefit of the ill-gotten tax be the ones to repay it. Therefore, the court reasoned, there was nothing wrong or inequitable with CIPS paying an additional assessment to pay the refund. This reasoning ignores the underlying fact that the township has effectively retained taxes to which it was not legally entitled.

For the foregoing reasons, the judgment of the circuit court of Jasper County is reversed.

Reversed.

CHAPMAN and HOWERTON, JJ., concur.


author: JUSTICE RAR.ICK

text:
      In re MARRIAGE OF ELVIS D. NOLEN, Petitioner-Appellant, and FRANCES L. NOLEN, Respondent-Appellee.
    Fifth District
    No. 5—88—0755
    Opinion filed August 3, 1990.

      David M. Smith, of Springfield, for appellant.
    Robert H. Rath, of Rath & Fornes, of Harrisburg, for appellee.
   JUSTICE RAR.ICK

delivered the opinion of the court:

Petitioner, Elvis D. Nolen, appeals from the judgment of the circuit court of Franklin County denying his motion for termination of maintenance to his former wife, Frances “Miki” Nolen. We affirm.

In May of 1984, the 31-year marriage of Elvis and Miki was dissolved. Under the terms of the final judgment of dissolution of marriage, Miki was to receive from Elvis monthly payments of $791 for maintenance and health insurance costs. In February of 1988, Elvis unilaterally terminated such payments and filed a motion for modification of the judgment of dissolution pursuant to section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510(c)), alleging that Miki had since on or about August 1, 1986, engaged in a continuous, conjugal, residential cohabitation with Oscar L. DePriest, the half-brother of Elvis’ mother, at DePriest’s residence in Lemont, Illinois. Miki responded that she was nothing more than a housekeeper/nurse to DePriest in exchange for room and board. After numerous witnesses and several days of testimony, the trial court ruled Elvis did not sustain his burden of proving a continuing conjugal relationship existed between Miki and DePriest so as to terminate spousal maintenance.

The evidence revealed Miki had known Oscar and Esther DePriest for many years. In June of 1986, Miki stayed at the DePriest residence for several weeks to help take care of Esther, who was then dying of cancer. Miki returned home once Esther passed away, but was asked shortly thereafter to return to Lemont to take care of Oscar, whose health was also failing. After staying at the DePriest residence for a few months, Miki gave up her rental home in Franklin County and moved many of her belongings to store in DePriest’s basement.

In exchange for room and board, Miki performed most of the cooking, cleaning, and laundry around the DePriest residence. In addition she made certain that DePriest took all of his required medications. Miki and DePriest did the shopping together while he was able, and occasionally would have lunch at a restaurant while shopping. Miki, however, did not contribute financially to any of the costs of running the residence. While DePriest did turn over some money to Miki for household expenses, all was accounted for with paid receipts. Any items of a personal nature for her alone were paid out of Miki’s own funds. The two did not share bank accounts or property of any kind. As for sleeping arrangements, Miki slept upstairs in one of the home’s seven bedrooms while DePriest typically slept on a couch in the family room downstairs. The two had no sexual or intimate relations with each other except for an occasional kiss on the cheek. Evenings were usually spent watching television in the family room. Other than occasional restaurant meals, Miki and DePriest did not go to social events together. Unless Miki was friends with DePriest’s visitors and specifically requested to stay, Miki often retired to her room until such company left. While DePriest and Miki did spend one Thanksgiving together at DePriest’s niece’s home, Miki was also friends with the niece. DePriest and Miki spent the night in separate rooms. Miki did not hold herself out to be the wife of DePriest, and DePriest never held her out to be his wife. Moreover, there was some evidence that DePriest had a girlfriend who spent the night at DePriest’s house on the average of once every two weeks. Upon his death in July 1988, DePriest left Miki a life estate in some unimproved property in Franklin County.

Elvis’ principal argument on appeal is that the trial court’s refusal to terminate his maintenance obligation to Miki is contrary to the manifest weight of the evidence. Specifically, Elvis contends the court erred in concluding receipt of food and shelter was inconsistent with a conjugal relationship and further erred in finding there was no adequate proof on the record Miki intended to reside permanently with DePriest.

Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act provides:

“Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated *** if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” (Ill. Rev. Stat. 1987, ch. 40, par. 510(b).)

This section was designed to right old inequities arising from a former spouse entering into a husband-wife relationship, although not formalized legally, while still being entitled to maintenance merely because Illinois does not recognize common-law marriages. (See In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 1017, 495 N.E.2d 1383, 1385.) Consequently, a former spouse’s obligation to pay maintenance can be terminated pursuant to section 510(c) by order of court whenever the recipient spouse has entered into a husband-wife relationship with another person, whether by legal or other means. (See In re Support of Halford (1979), 70 Ill. App. 3d 609, 612, 388 N.E.2d 1131, 1134.) Termination, however, requires a showing that the recipient spouse is indeed involved in a de facto husband-wife relationship. (See Reeder, 145 Ill. App. 3d at 1017, 495 N.E.2d at 1385.) While proof of sexual conduct between the spouse receiving maintenance and the person with whom the spouse is living is no longer necessary to establish cohabitation on a conjugal basis (see In re Marriage of Sappington (1985), 106 Ill. 2d 456, 468, 478 N.E.2d 376, 381), something more than merely living with another person of the opposite sex is required (see In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 663, 404 N.E.2d 469, 473). (See also Reeder, 145 Ill. App. 3d at 1017-18, 495 N.E.2d at 1385-86.) A “lesser involvement” by the recipient spouse does not require termination of maintenance. (Bramson, 83 Ill. App. 3d at 662, 404 N.E.2d at 472.) Here we have just such an example of “lesser involvement.”

We further note that whether a husband-wife relationship exists between two people so as to justify termination of maintenance is a factual determination which the spouse seeking to terminate such maintenance has the burden of proving. (Reeder, 145 Ill. App. 3d at 1018, 495 N.E.2d at 1386; Schoenhard v. Schoenhard (1979), 74 Ill. App. 3d 296, 301, 392 N.E.2d 764, 768.) Consequently, a trial court’s finding that the recipient spouse is not living with another person under circumstances amounting to a de facto husband-wife relationship will be affirmed unless contrary to the manifest weight of the evidence. Reeder, 145 Ill. App. 3d at 1018, 495 N.E.2d at 1386.

We cannot say looking at the record before us that the finding Miki was not cohabiting with another person on a resident, continuing and conjugal basis is against the manifest weight of the evidence. Clearly the opposite is true. Miki, plain and simple, was a live-in housekeeper and nurse’s aide to DePriest. Contrary to a husband-wife relationship, the two shared little more than a residence and certain friends and relatives. They did not sleep together, or, for that matter, even on the same floor; they did not travel together unless by necessity because of DePriest’s ill health; they infrequently socialized together to the point Miki would absent herself when visitors called on DePriest. They shared no expenses or property, and in fact, Miki exercised so little authority in the DePriest household that she felt obligated to ask permission to move items of furniture for cleaning purposes. DePriest consistently introduced Miki as his housekeeper, and the numerous witnesses who testified at trial who had reason to have visited DePriest at his home during the time Miki was taking care of him all believed DePriest treated her as though she were an employee although with respect. It is with little wonder the private investigator whom Elvis hired to watch Miki and DePriest had little, if anything, to report. Surely a husband-wife relationship involves more than that exhibited from the relationship here.

The nature of Miki’s employment as a full-time housekeeper and nurse required she live in her employer’s house. Whether her payment was in salary, or in the form of room and board, does not matter. Nor do her reasons for taking such a position. What is important is the lack of any indication that either she or DePriest considered themselves to have a husband-wife relationship. The mere fact there was no agreement between Miki and DePriest as to the length of her employment does not mean the arrangement was intended to be permanent. Miki’s belongings were packed and stored in DePriest’s basement, ready to be moved at any time.

While it is possible Elvis may have been able to have the amount of Miki’s maintenance modified if properly petitioned because of a reduced need for support (see Sappington, 106 Ill. 2d at 467, 478 N.E.2d at 381; Bramson, 83 Ill. App. 3d at 663, 404 N.E.2d at 473), her relationship with DePriest certainly did not justify termination of all support. Elvis simply did not meet his burden of proving a de facto marriage existed between Miki and DePriest as envisioned by the legislature in enacting section 510(c) so as to terminate spousal maintenance in this instance.

Elvis also contends on appeal the trial court erred in finding he did not have reasonable cause to believe Miki was cohabiting in a resident, continuous and conjugal manner with DePriest so as to cease payment of support. Much of Elvis’ argument directs blame at Miki for not communicating to him the reason for her presence in DePriest’s home. Miki is no longer Elvis’ wife. She has no obligation to keep Elvis apprised of her daily movements. What is even more incredulous are Elvis’ claims he knew nothing of the true nature of arrangement between DePriest and Miki. DePriest was Elvis’ uncle. Elvis surely had the means, without going to the expense of hiring a private investigator, to verify through the family network Miki’s assistance to DePriest. Numerous relatives on both sides, as evidenced by their testimony at trial, were well aware of the situation. Moreover, Elvis knew Miki often helped take care of relatives, including Elvis’ own mother, when needed or asked. Elvis has no one else to blame but himself. This is the risk one takes in making unilateral decisions to stop paying maintenance.

For the aforementioned reasons, we affirm the judgment of the circuit court of Franklin County.

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL E. BARR, Defendant-Appellant.
    Fifth District
    No. 5—89—0155
    Opinion filed August 3, 1990.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, and Basil G. Greanias, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, Paul E. Barr, was charged in the circuit court of Jackson County with residential burglary and misdemeanor theft. Following a bench trial, Barr was convicted and sentenced to 10 years’ imprisonment on the burglary count and 364 days’ imprisonment on the theft count, with the sentences to run concurrently, but consecutive to a sentence on an unrelated Federal charge. Barr appealed and this court affirmed. People v. Barr (1985), 137 Ill. App. 3d 1168, 499 N.E.2d 182 (unpublished order under Supreme Court Rule 23).

Barr subsequently filed a pro se petition for post-conviction relief alleging, inter alia, ineffective assistance of trial counsel. An amended petition for post-conviction relief was filed by appointed counsel, again alleging ineffective assistance of trial counsel. Specifically, the petition alleged that trial counsel failed to interview three alibi witnesses who could have corroborated Barr’s alibi defense. Attached to the amended petition was an affidavit signed by Barr in which he stated that he had provided trial counsel with the names of the alibi witnesses.

The State moved to dismiss the amended petition, arguing that Barr’s allegations were waived because they had not been raised in his appeal. The trial court granted the motion, and this appeal followed.

On appeal, Barr maintains that because the State did not rebut any of his evidence in support of his claim, he made a sufficient showing that his constitutional right to effective assistance of counsel was violated and was therefore entitled to an evidentiary hearing. In support of his claim that his trial attorney failed to interview or call key witnesses to corroborate his alibi defense, he attached to his petition an affidavit in which he identified the witnesses, detailed how he had informed trial counsel of their whereabouts and indicated their importance to his case.

Barr argues that the trial court erred in failing to order an evidentiary hearing on his post-conviction petition. He maintains that because the evidence in support of his allegations was uncontradicted, he made a substantial showing that his constitutional right to effective assistance of counsel was violated and so was entitled to a hearing. Barr further argues that while he did not raise this issue in his previous appeal, it was not waived for purposes of the post-conviction proceedings because it involved a review of facts not contained in the record.

Addressing the waiver argument, it is well established that affirmance of a conviction on direct appeal acts as res judicata for purposes of a subsequent post-conviction proceeding concerning all issues actually raised or which could have been raised in the appeal. (People v. Montgomery (1986), 141 Ill. App. 3d 428, 490 N.E.2d 206.) Where, however, a post-conviction petition alleges ineffective assistance of trial counsel due to a failure to call certain witnesses, whose testimony the substance of which does not appear of record, res judicata does not apply and it cannot be contended that the issue should have been raised on direct appeal. (People v. Edmonds (1979), 79 Ill. App. 3d 33, 398 N.E.2d 230.) Since the allegations contained in defendant’s post-conviction petition do not appear of record, there is no waiver because of his failure to raise the issue in the prior appeal. Nevertheless, we affirm the decision of the trial court.

Section 122 — 2 of the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.) provides that a petition for post-conviction relief shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached. (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.) To merit an evidentiary hearing, the petition must make a substantial showing that the petitioner’s constitutional rights have been violated and such showing must be based on factual allegations, not conclusory statements. (People v. Hysell (1971), 48 Ill. 2d 522, 272 N.E.2d 38; People v. Pittman (1989), 192 Ill. App. 3d 943, 549 N.E.2d 742; People v. Cox (1985), 136 Ill. App. 3d 623, 483 N.E.2d 422.) It is the petitioner’s burden to support the allegations by affidavits, records, or other evidence containing specific facts. (People v. Graham (1977), 48 Ill. App. 3d 689, 363 N.E.2d 124.) When a defendant attacks competency of counsel for failing to call or contact certain witnesses, he must attach to his post-conviction petition affidavits showing the potential testimony of such witnesses and explain the significance of their testimony. (People v. Carmickle (1981), 97 Ill. App. 3d 917, 920, 424 N.E.2d 78, 80; see also Montgomery, 141 Ill. App. 3d at 432, 490 N.E.2d at 208.) Attached to Barr’s post-conviction petition was his affidavit, which alleged that he was in the company of the witnesses in question when the burglary occurred, but not the affidavits of the witnesses themselves. Without these affidavits, there is no evidence to support the petitioner’s allegations and the post-conviction petition did not merit an evidentiary hearing. People v. Smith (1985), 136 Ill. App. 3d 300, 483 N.E.2d 655.

Apart from questions involving the legal sufficiency of defendant’s amended petition, our review of the record also supports the trial court’s dismissal of the petition without an evidentiary hearing. (People v. Jones (1977), 66 Ill. 2d 152, 361 N.E.2d 1104; People v. Dixon (1987), 160 Ill. App. 3d 65, 513 N.E.2d 134.) At trial, a special agent of the Illinois Department of Law Enforcement, Division of Criminal Investigation (DCI) testified that while working in an undercover capacity he met with Barr at defendant’s residence in a housing project at which time defendant offered to sell the agent stereo equipment which defendant was going to take from another apartment in the housing project. The agent further testified defendant instructed him to return in approximately 30 minutes. When the agent returned as instructed, he met with defendant and another person and purchased the equipment from defendant, who told the DCI agent he had taken the property from another apartment in the project and described the manner of entry. The burglary of the other apartment was confirmed by the occupant of the apartment and her son and investigated by an officer of another police agency whose testimony as to manner of entry was consistent with that described by defendant to the undercover agent. The items sold by Barr to the DCI agent were identified by their owners as missing from the apartment. Testifying in his own defense, Barr agreed he had met with the agent on the day in question and further testified he sold the agent two grams of cocaine but denied any involvement in the burglary and denied selling any stereo equipment to the agent. In his testimony, defendant presented no alibi. Consequently, there was no alibi defense for defendant’s alleged witnesses to corroborate. Had the alleged witnesses testified as alleged in defendant’s petition, such testimony could only have served to contradict and impeach defendant’s own testimony. Under such circumstances, it can hardly be said that failure to call the alleged alibi witnesses constituted ineffective assistance of counsel. Indeed, it could well be argued that trial counsel would have been incompetent had he called these witnesses as their testimony would have contradicted Barr’s and all but ensured his conviction. Even assuming the legal sufficiency of Barr’s post-conviction petition, it would not have entitled him to an evidentiary hearing. Claims of ineffective assistance of counsel reach constitutional dimension only if such representation probably affected the outcome of the trial, and it is the defendant’s burden to so demonstrate. (People v. Hanrahan (1985), 132 Ill. App. 3d 640, 478 N.E.2d 31.) Given that any alibi testimony would have contradicted Barr’s testimony at trial, such could hardly be the case. We conclude, therefore, that Barr’s allegations, even if true, do not sufficiently demonstrate a substantial deprivation of his right of effective assistance of counsel. Denial of an evidentiary hearing on a post-conviction petition will not be reversed absent an abuse of discretion (People v. Adams (1987), 164 Ill. App. 3d 742, 518 N.E.2d 266) and no such abuse occurred here.

The order of the circuit court of Jackson County is affirmed.

Affirmed.

WELCH and GOLDENHERSH, JJ., concur.