author: JUSTICE WHITE

text:
    LINDA BRANNOCK, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.
    First District (3rd Division)
    No. 88—0288
    Opinion filed February 1, 1989.

      Robert J. Biswurm and Kurt D. Hyzy, both of Chicago (Biswurm & Myers, Ltd., of counsel), for appellant.
    Judson H. Minor, Corporation Counsel, of Chicago (Ruth M. Moscovitch and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff Linda Brannock appeals from an order of the circuit court granting a motion for summary judgment filed by defendant, the City of Chicago. Plaintiff argues that a genuine issue of material fact existed and, therefore, the court erred in granting the city’s motion.

Plaintiff was injured when the motorcycle on which she was a passenger struck a barrier curb located at 3800 north on Lake Shore Drive in Chicago. Plaintiff filed suit against the city alleging that it had carelessly and negligently designed, constructed, and maintained the portion of Lake Shore Drive where the accident occurred.

The city filed a motion for summary judgment alleging that it was not responsible for the design, construction, or improvement of the portion of Lake Shore Drive in question; that Lake Shore Drive was constructed by the State of Illinois; and that the city’s sole responsibility with respect to that portion of Lake Shore Drive was the performance of routine surface repairs to the roadway and median. In support of its motion for summary judgment, the city presented the affidavit of Richard Callbeck, deputy commissioner of the bureau of streets, department of streets and sanitation. Callbeck stated that he had personal knowledge of the relevant records and that if called as a witness he would testify that Lake Shore Drive is an extension of the State highway system and that the city was not responsible for the construction, design, or improvement of the portion of the roadway in question. Callbeck also stated that the city and the State had entered into a maintenance agreement under which the city was responsible for performing routine maintenance, such as surface and pothole repairs, and that this was the city’s sole responsibility with respect to the roadway. Attached to Callbeck’s affidavit was a copy of the 1984-85 maintenance agreement between the city and the State. Also attached was a State of Illinois, Department of Transportation, computation sheet. However, the computation sheet did not refer to the portion of Lake Shore Drive in question.

In response, plaintiff filed a pleading entitled “Plaintiff’s Motion to Strike Defendant’s Motion for Summary Judgment,” in which she alleged that the records attached to Callbeck’s affidavit were not sworn or certified; that the records made no reference to who was responsible for constructing, designing, or improving Lake Shore Drive; and that they made no reference to the 3800 block of North Lake Shore Drive.

Subsequently, the city sought leave to file an amended motion for summary judgment. This motion was identical to the city’s original motion except that the computation sheet attached to the original motion was replaced by one referring to the correct portion of Lake Shore Drive. The court granted the city leave to file the amended motion at a hearing held on October 16, 1987. At that same hearing, the court ordered that plaintiff’s motion to strike be addressed to the city’s amended motion and set a hearing for November 13, 1987. On that date, both the city’s motion for summary judgment and plaintiff’s motion to strike were continued until December 22, 1987. At the December 22 hearing, the court denied plaintiff’s motion to strike and entered summary judgment for the city. Plaintiff appeals.

Plaintiff contends that the trial court erred in entering summary judgment for the city because the city’s motion and its attachments did not resolve all issues of material fact concerning the city’s responsibility for the portion of the roadway in question. Citing the Illinois Supreme Court’s decision in Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213, plaintiff argues that because the city’s motion failed to show any acts by the State divesting the city of jurisdiction over the property, summary judgment was improper.

In Janssen, a motorcyclist was injured when he struck a traffic island while travelling on a State-owned street. The island was located immediately south of the intersection of Standford Avenue, which marked the southern boundary of the city of Springfield, and Fifth Street, which was owned by the State. Janssen filed suit against the City of Springfield, alleging that the city was negligent in failing to remove the traffic island and in failing to warn motorists of the hazard. In an appeal filed by the city following a judgment for Janssen, the supreme court held that because the State planned, constructed, and maintained the traffic island, the trial court erred in refusing to direct a verdict for the city on the count alleging that the city was negligent in failing to remove the island. However, the court also noted that the city had control over Fifth Street north of the intersection of Standford and Fifth, that the traffic island was located just a few feet south of the city-controlled portion of Fifth Street, and that the island blocked the continuation of the outer part of Fifth Street and thus presented a hazard to motorists using the city-controlled part of the street. Therefore, the court found that the city had a duty to warn motorists of the island since it constituted a hazard incidental to that portion of the roadway still under the city’s control.

In the present case, plaintiff argues that the city failed to produce evidence sufficient to establish that the portion of Lake Shore Drive in question was under the State’s control. Plaintiff further argues that even if the State was in control of the roadway, the city might have owned adjacent property and thus owed a duty under Janssen to warn of the alleged hazard. This argument is without merit.

In Janssen, the traffic island that constituted the hazard was located immediately to the south of a city-controlled street and it was clear that motorists using the city-controlled portion of Fifth Street would encounter the hazard if they continued past Standford Avenue, the southern boundary of the city. Therefore, the supreme court ruled that the city had a duty to warn of the hazard. In Predny v. Village of Park Forest (1988), 164 Ill. App. 3d 688, 518 N.E.2d 1243, another case relied upon by plaintiff, a 10-year-old boy was severely injured when he was struck by a truck while riding his bike on a Park Forest bike path. The accident occurred at the intersection of the bike path and a shopping center driveway where the path was lined with lilac bushes, which prevented a clear view of the driveway. Summary judgment was entered for the village after it produced evidence that it did not own the property on which the accident occurred. In reversing the trial court, the appellate court pointed out that although the village did not own the intersection where the accident occurred, it owned all of the bike path except the Hk feet before the intersection, that the village had required the lilac bushes to be planted, that the bushes extended 3.9 feet over village property, and that a village employee was charged with trimming them. The court found that these facts supported an inference that the village exercised such control and maintenance over the accident area that it owed plaintiff a duty to maintain it in a reasonably safe manner.

The complaint in the present case alleged that plaintiff’s accident occurred at 3800 north as she was travelling north in the westernmost lanes of Lake Shore Drive. The city’s motion for summary judgment established that the State owned Lake Shore Drive between Fullerton (2400) and Irving Park Road (4000). Thus, it appears that plaintiff’s accident occurred nearly two miles into a stretch of State-owned property, and this case is clearly distinguishable from Janssen and Predny, where the accidents were caused by hazards on property that was located within a few feet of city-owned property.

Plaintiff’s claim that the city’s motion failed to allege facts sufficient to establish the State’s ownership of and control over Lake Shore Drive is equally without merit. As support for her arguments concerning the sufficiency of the city’s motion, plaintiff relies on Bowen v. City of Harvey (1987), 164 Ill. App. 3d 637, 518 N.E.2d 203, and Heintz v. Vorwerk (1983), 115 Ill. App. 3d 899, 451 N.E.2d 551.

In Heintz, the City of Kankakee moved for summary judgment in an action brought by a plaintiff injured in an automobile accident that occurred at an intersection located in the city. After the city produced a construction agreement, showing that the State had undertaken to widen, improve, and maintain the intersection, and a maintenance agreement, similar to the one involved in the present case, under which the city had agreed to perform routine surface repairs, the trial court entered summary judgment for the city. The appellate court affirmed, holding that the agreements established that the city only had limited rights and responsibilities with respect to the street.

In Bowen, the City of Harvey based its motion for summary judgment on the affidavit of the city’s commissioner of streets and sanitation and the affidavit of the State of Illinois Department of Transportation’s safety and claims manager. The affidavits stated that the street in question was not owned by the City of Harvey and that the State of Illinois constructed the street and maintained it as a State highway.

In the present case, the computation sheet attached to the city’s motion for summary judgment indicated that the portion of Lake Shore Drive in question was built by the State. In addition, the maintenance agreement stated that the street was being used as an extension of the State's highway system and it established that the city’s responsibilities with respect to that portion of Lake Shore Drive were limited, as in Heintz, to surface repairs, cleaning and litter pickup, snow and ice removal, and other similar duties.

Plaintiff points out that in Bowen the city submitted the affidavit of a State employee as well as the affidavit of its own employee and argues that, in the present case, the affidavit of the city’s agent, standing alone, is insufficient to establish that the portion of Lake Shore Drive in question was under State control. Plaintiff cites no authority for this claim and we note that there is nothing in the summary judgment statute (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005) which requires a movant to produce additional affidavits when its own or those of its agent clearly establish that it is entitled to summary judgment. See, e.g., Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810, where the affidavit of a defendant was held to provide a sufficient basis for entry of summary judgment in his favor.

Callbeck’s affidavit and its attachments state that the portion of Lake Shore Drive in question was built by the State and that the city’s sole responsibility was the performance of routine maintenance. These facts, which must be taken as true because of plaintiff’s failure to file counteraffidavits in opposition to the city’s motion for summary judgment, clearly provide a sufficient basis for the trial court’s entry of summary judgment for the city.

Plaintiff argues that she was given no opportunity to obtain counteraffidavits in opposition to the city’s motion for summary judgment and that the trial court erred in denying her motion to strike and granting the city’s motion in the same hearing without giving time to respond. However, we note that there is nothing inherently improper in a trial court denying a party’s motion to strike an affidavit and granting an opponent’s motion for summary judgment in the same hearing. (See Anderson v. Dorick (1975), 28 Ill. App. 3d 225, 327 N.E.2d 541; Hearst Corp. v. Associated Trade Press, Inc. (1968), 96 Ill. App. 3d 231, 238 N.E.2d 231.) Further, the record shows that the city’s motion was originally filed on August 11, 1987, that both plaintiff’s motion to strike and the city’s motion for summary judgment were continued to December 22, 1987, and that at no time prior to, during, or after the hearing did plaintiff indicate that she wished to respond to the city’s motion.

In Winger v. Richards-Wilcox Manufacturing Co. (1961), 33 Ill. App. 2d 115, 178 N.E.2d 659, a defendant’s motion to strike and a plaintiff’s motion for summary judgment were granted at the same hearing and in the absence of the defendant. On appeal, the court stated that when both a motion for strike and a motion for summary judgment are set for hearing on the same date, upon denial of its motion to strike, a party should ask leave for time to file affidavits in response to the motion for summary judgment. The court also stated that after the plaintiff’s motion for summary judgment was granted it was proper for defendant to seek leave to file counteraffidavits in response to the motion for summary judgment. The court added that whether to grant leave to file was within the discretion of the trial court.

Here, unlike Winger, plaintiff was present when the trial conducted its hearing on the motion to strike and the motion for summary judgment, yet, she never requested leave to respond to the city’s motion either before or after it was granted. The transcript of the hearing reveals that after hearing the arguments of both parties, and discussing the merits of plaintiff’s motion to strike, the trial court began a discussion of the law relevant to the issue of whether summary judgment was proper in actions against a municipality for injuries occurring on State-owned property within the municipality. Citing Bowen, Heintz, and other authorities, the court concluded that the city owed no duty to plaintiff and granted the motion for summary judgment.

During the course of the trial court’s discussion, plaintiff made no attempt to advise the court that she desired an opportunity to file affidavits in response to the city’s motion, nor did she seek leave to file counteraffidavits after the court granted the city’s motion. Thus, plaintiff has waived any objection to the trial court’s actions. See Prendergast v. Rush-Presbyterian-St. Lukes Medical Center (1979), 78 Ill. App. 3d 538, 397 N.E.2d 432.

The city’s motion, affidavit, and attachments clearly indicated that the State and not the city was responsible for the construction and design of the portion of Lake Shore Drive in question. Therefore, the trial court properly denied plaintiff’s motion to strike and in the absence of any other evidence, the court properly entered summary judgment for the city.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

FREEMAN, P.J., and McNAMARA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE WELCH LEWIS, J., JUSTICE HARRISON,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. PAUL HADLEY, Defendant-Appellee.
    Fifth District
    No. 5-87-0188
    Opinion filed January 13, 1989.

      HARRISON, J., dissenting.
    Dick Allen, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Debra A. Buchman, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Edwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This cause comes before us on appeal by the State of Illinois from an order of the circuit court of Madison County suppressing as evidence a pair of tennis shoes seized from the defendant, Paul Hadley. We reverse.

The evidence adduced at the suppression hearing, as pertinent, is as follows. In the early morning hours of January 22, 1986, a Clark gasoline station in Granite City, Illinois, was burglarized. Among the items taken in the burglary were “biker” wallets, cigarettes and sunglasses which had been for sale in the station.

In the evening of January 22, 1986, an individual entered the Granite City police station with a biker wallet similar to those which had been stolen from the Clark station. He told Lieutenant Pomeroy of the Granite City police department that he had purchased the wallet from Paul Hadley at Goldie’s Tavern in Granite City. The individual stated that Hadley had had a bag of “things,” including wallets, which he was selling.

Lieutenant Pomeroy gave the wallet to Officer Walkenbach to verify that it was, in fact, the same kind of wallet as those which had been stolen from the Clark station. Walkenbach did so. Lieutenant Pomeroy then sent Officer Walkenbach and Officer Tapp to Goldie’s Tavern to determine if there was someone there by the name of Paul Hadley selling items that possibly had been taken in the burglary.

Officers Tapp and Walkenbach proceeded to Goldie’s Tavern, where they were met outside by a white female. She informed the offleers that Paul Hadley was in the tavern sitting at the bar and gave the officers a description. When the officers entered the tavern, they observed a white male sitting at the bar who matched the description they had been given. The male produced identification indicating that his name was Paul Hadley. He did not have in his possession any items that possibly could have been taken in the burglary.

Hadley was asked, and agreed, to accompany Officer Walkenbach outside. Officer Tapp remained inside the tavern, where he inquired of the bartender whether Hadley had been trying to sell any items. The bartender responded that Hadley had been in the tavern earlier in the day attempting to sell cigarettes and sunglasses out of a green paper or plastic trash bag. The bartender had asked Hadley to “take his business elsewhere.” Hadley had left, but later returned without the trash bag.

Officer Walkenbach and Hadley went outside, where Hadley stated that he knew nothing about the burglary. Hadley was handcuffed and transported to the Granite City police department, where he was booked. As part of the police department’s standard procedure, Hadley’s tennis shoes and jewelry were taken from him and placed in the department’s prisoner property room.

The following morning, January 23, 1986, the lead investigator on the burglary, Detective Sergeant Don Knight, suggested to Detective Rosenburg that Hadley’s shoes be seized as evidence of the burglary. Detective Rosenburg testified that he decided to seize Hadley’s shoes after he saw a piece of plexiglass which had been taken from the burglary scene and had footprints on it. Rosenburg removed Hadley’s shoes from the prisoner property room and compared the soles to the prints on the plexiglass. He determined that they appeared to be similar.

Hadley was released from custody at 2:01 p.m., January 23, 1986, because an assistant State’s Attorney advised that there was insufficient evidence upon which to obtain an arrest warrant. The assistant State’s Attorney further advised Detective Rosenburg to forward Hadley’s shoes to the crime lab; no search warrant was sought or obtained. Hadley was released from custody, but his shoes were retained by the Granite City police department and forwarded to the crime lab.

At the conclusion of the hearing, the trial court ruled that the police had had probable cause to arrest defendant at the time they did so, and the arrest was, therefore, lawful. However, the court ruled that the warrantless seizure of defendant’s shoes violated defendant's fourth amendment rights and ordered them suppressed as evidence. The court explicitly found that the shoes were seized at the time, or before, defendant was released from custody and that there were no factors upon which to determine that a warrantless seizure of the shoes was necessary.

The State appeals, arguing that defendant’s shoes were properly seized without a warrant for three reasons: the shoes were seized pursuant to standard jail procedure; the shoes were seized incident to the lawful arrest of defendant; and there were exigent circumstances requiring an immediate, warrantless seizure of the shoes. We agree with the State and reverse the order of the trial court suppressing the shoes as evidence.

We start by pointing out that the trial court found that defendant was lawfully arrested. No one contends otherwise, and we agree that defendant was lawfully arrested and was lawfully in custody. The fact that defendant was released from custody less than 24 hours later does not change the finding of probable cause for the arrest or the lawfulness of the arrest. People v. Gholston (1984), 124 Ill. App. 3d 873, 883, 464 N.E.2d 1179, 1186, (a determination as to whether probable cause for an arrest existed must be judged upon the facts and circumstances known at the time of the arrest).

The defendant’s shoes were initially taken by the police as part of their standard booking procedures. The testimony indicates that when suspects are formally arrested, any personal property in their pockets, as well as any jewelry and shoes, are taken from them prior to their being placed in a cell. Such a search and/or seizure does not violate the fourth amendment proscription against unreasonable searches and seizures. It has long been recognized that it is reasonable for police to search and/or seize, without a warrant, the personal effects of a person under lawful arrest as part of the routine administrative procedure at a police station incident to booking and jailing the suspect. (Illinois v. Lafayette (1983), 462 U.S. 640, 643, 77 L. Ed. 2d 65, 69, 103 S. Ct. 2605, 2608.) As the United States Supreme Court pointed out in Lafayette, the practical necessities of routine jail administration may even justify taking a prisoner’s clothes before confining him. (462 U.S. at 645, 77 L. Ed. 2d at 71, 103 S. Ct. at 2609.) Such an inventory procedure is necessary to ensure the safety and integrity of the jailhouse, and to protect the prisoner from himself and others.

Once the police have lawfully seized property of an accused pursuant to a valid inventory procedure, no warrant is required to retrieve the property from the property room to examine it further for evidence. (People v. Deacon (1985), 130 Ill. App. 3d 280, 290, 473 N.E.2d 1354, 1361, cert, denied (1985), 474 U.S. 921, 88 L. Ed. 2d 260, 106 S. Ct. 253.) A second inspection of personal effects which have been previously exposed to police view under unobjectionable circumstances does not invade any substantial privacy interest of the accused. (People v. Richards (1983), 94 Ill. 2d 92, 96, 445 N.E.2d 319, 321.) However, the cases make it clear that a second look may only be taken at property which is in plain view or has already been exposed to the police. Richards, 94 Ill. 2d 92, 445 N.E.2d 319.

The property at which the police took a second look in the case sub judice was the soles of defendant’s tennis shoes. These soles were in plain view and had already been exposed to the police. They did not constitute new evidence not previously seen (although, as in Richards, at first look the police did not know the property was evidence), nor did defendant have any reasonable expectation of privacy in them, as he might in items concealed in a container, or the inside of a locked motor vehicle. As did the necklace in Richards, the soles of defendant’s tennis shoes legitimately came into plain view of the police officers and thereafter remained in their possession, custody and control.

We find this case to be similar in many respects to United States v. Edwards (1974), 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234, in which the United States Supreme Court held that no warrant was required to seize an accused’s clothing while he was in lawful custody. That the accused’s clothing was not seized until approximately 10 hours after his arrest made no difference, as the accused was no more imposed upon at that time than he would have been immediately following his arrest.

“It must be remembered that on both May 31 and June 1 the police had lawful custody of Edwards and necessarily of the clothing he wore. When it became apparent that the articles of clothing were evidence of the crime for which Edwards was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered. *** Indeed, it is difficult to perceive what is unreasonable about the police examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest.” (415 U.S. at 806, 39 L. Ed. 2d at 777, 94 S. Ct. at 1238.)

The Supreme Court found that it was irrelevant whether the police could have obtained a search warrant, for the test is not whether it is reasonable to procure a search warrant, but whether the search itself was reasonable, which, the Court found, it was. Finally, the Court stated that the same is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the property room of the jail, and at a later time searched and taken for use at the subsequent criminal trial.

Once the property is lawfully seized, it may later be subjected to laboratory analysis, and the test results are admissible at trial. Edwards, 415 U.S. at 804, 39 L. Ed. 2d at 776, 94 S. Ct. at 1237; People v. Hester (1968), 39 Ill. 2d 489, 514, 237 N.E.2d 466, 481.

Edwards has been interpreted by the Illinois Supreme Court to mean that when an object lawfully came into plain view at the time of a search upon the arrestee’s arrival at the place of detention, later investigation establishes that the item is of evidentiary value and the item remains in police custody as part of the arrestee’s inventoried property, then it is permissible for the police, without a warrant, to retrieve that object and thereafter deal with it as an item of evidence. (People v. Richards (1983), 94 Ill. 2d 92, 97, 445 N.E.2d 319, 321-22.) That is precisely the situation presented in the case now before us.

Defendant seeks to distinguish this case from Edwards and Richards on the basis that in those cases the defendants were apparently retained in custody along with their property, while in this case, the defendant was released while his property was retained by the police as evidence. This seems to us to be a distinction without a difference. As in Edwards, at the time defendant’s property was seized, both he and his property were in lawful police custody. When it became apparent that the property was possibly evidence of a crime, the police were entitled to seize it, just as they are normally permitted to seize evidence of crime when it is lawfully encountered. That the defendant was released from custody after the lawful seizure of his property does not invalidate the lawful seizure.

In People v. Pruitt (1974), 16 Ill. App. 3d 930, 307 N.E.2d 142, cert, denied (1974), 419 U.S. 968, 42 L. Ed. 2d 184, 95 S. Ct. 232, the defendant was lawfully arrested for a robbery and taken into police custody. At the police station, some of his clothing was seized and a hair sweeping was conducted, revealing glass and paint chips possibly connecting defendant to the crime. When the victim was unable to positively identify the defendant as the robber, defendant was released from custody. His clothing and the hair sweeping were retained by the police and subjected to laboratory analysis. The trial court concluded that defendant’s arrest had been lawful and that the seizure of his clothing and the hair sweeping while he was detained did not violate his fourth amendment rights. Defendant conceded that the seizure of the clothes and hair sweeping was valid, but argued on appeal that his clothing and the hair sweeping were illegally retained by the police in violation of section 108 — 2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 108-2).

Section 108 — 2 provides that if a person arrested is released without a charge pending against him, any property seized, other than contraband, must be returned to him. Defendant argued that failure to comply "with this provision mandated suppression of any evidence unlawfully retained. The appellate court held that violation of section 108 — 2 is only a violation of a statutory right, not a constitutional right, and suppression of the evidence is not required for such a violation. The court held that the initial seizure of the items had been lawful and retention of the items did not violate defendant’s fourth amendment rights because the items could have been easily destroyed.

Similarly in Cupp v. Murphy (1973), 412 U.S. 291, 36 L. Ed. 2d 900, 93 S. Ct. 2000, the United States Supreme Court allowed the warrantless seizure of fingernail scrapings from a defendant lawfully detained although he was subsequently released from custody. The Court based its holding in part on the fact that the evidence seized was “highly evanescent” and easily destroyed. The Court pointed out that the defendant was “sufficiently apprised of his suspected role in the crime to motivate him to attempt to destroy what evidence he could without attracting further attention.” 412 U.S. at 296, 36 L. Ed. 2d at 906, 93 S. Ct. at 2004.

As in Pruitt and Cupp, we see nothing wrong with the police retaining items lawfully seized as evidence even though the defendant is released from custody. The property seized in the case sub judice, as in Pruitt and Cupp, could have been easily destroyed. The defendant could have thrown away the tennis shoes, hidden them or even destroyed them. The defendant argues that the State has waived any argument relating to “exigent circumstances.” We find no waiver, as the trial court specifically ruled on this particular point and based its decision in part on what it perceived to be a lack of exigent circumstances. In such a case, the rationale underlying the waiver rule does not apply.

The tennis shoes were initially lawfully seized as evidence. As in Pruitt and Cupp, the retention thereof after the release of defendant did not violate defendant’s fourth amendment rights.

Because we find that the defendant was lawfully arrested and his tennis shoes were lawfully seized without a warrant, we reverse the order of the circuit court of Madison County suppressing as evidence the defendant’s shoes.

For the foregoing reasons, the order of the circuit court of Madison County is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded for further proceedings.

LEWIS, J.,

concurs.

JUSTICE HARRISON,

dissenting:

The authorities cited by the majority involved situations in which the evidence in question was lawfully in police custody at the time of the challenged search. Such was not the case here. Although, as the majority correctly observes, defendant now appears to have been lawfully arrested and was lawfully in custody when his shoes were originally seized, the assistant State’s Attorney decided, at the time, that there was no probable cause to hold him. He was therefore released. Once this happened, the police no longer had any lawful authority to continue to hold his shoes for inventory purposes, for scientific examination, or for any other reason. No claim has been made that defendant voluntarily agreed to allow the police to retain the shoes, and, by State law, the police were required to return them to him upon his release. Section 108 — 2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 108 — 2) expressly provides:

“If the person arrested is released without a charge being preferred against him all instruments, articles or things seized, other than contraband, shall be returned to him upon release.”

Because the police ceased to have a lawful claim on defendant’s shoes following his release, they were prohibited by the fourth amendment to the Federal Constitution from subjecting the shoes to scientific examination, or even just continuing to hold them, without first obtaining a warrant. No warrant was secured here. Accordingly, I must conclude that the circuit court acted properly in granting defendant’s motion to suppress.

The majority attempts to justify a contrary position by citing People v. Pruitt (1974), 16 Ill. App. 3d 930, 307 N.E.2d 142, cert, denied (1974), 419 U.S. 968, 42 L. Ed. 2d 184, 95 S. Ct. 232, but its reliance on that case is misplaced. In Pruitt, the constitutionality of the seizure of the evidence was not contested. Whatever remarks the court may have made on the subject were therefore nothing more than dicta.

As an alternative rationale for its decision, the majority argues that retention of the shoes following defendant’s release was justified by exigent circumstances. In particular, the majority suggests that retention of the shoes was proper because “[t]he defendant could have thrown away the tennis shoes, hidden them or even destroyed them.” (179 Ill. App. 3d at 158.) I find this contention singularly unpersuasive. No serious claim could be made the tennis shoes have the “highly evanescent” quality of the scrapings taken from the defendant’s fingernails in Cupp v. Murphy (1973), 412 U.S. 291, 36 L. Ed. 2d 900, 93 S. Ct. 2000. While I do not dispute that tennis shoes are susceptible of being concealed or destroyed, the same can be said for almost all evidence.

In making its exigent circumstances argument, the majority overlooks a fundamental rule, namely, that the potential destruction of evidence, standing alone, does not excuse obtaining a warrant. (People v. Cohen (1986), 146 Ill. App. 3d 618, 625, 496 N.E.2d 1231, 1236.) For the exigent circumstances exception to the fourth amendment prohibition against warrantless and nonconsensual searches to apply, the police must fear imminent destruction of evidence. United States v. Rivera (7th Cir. 1987), 825 F.2d 152, 156, cert, denied sub nom. Robles v. United States (1987), 484 U.S. 979, 98 L. Ed. 2d 492, 108 S. Ct. 494.

In this case, the police could claim no such fear. Unlike the situation in Cupp v. Murphy (1973), 412 U.S. 291, 36 L. Ed. 2d 900, 93 S. Ct. 2000, the evidence here, the pair of tennis shoes defendant had been wearing, was safely stored in the police department’s prisoner property room at the time the police decided to retain it for further examination. There is no indication that defendant ever attempted to hide, deface, or destroy the shoes when they were initially taken from him, nor is there any indication that defendant might have attempted to hide, deface, or destroy the shoes had they been returned to him pending issuance of the warrant. Defendant was not, after all, given any reason to believe that his shoes might be used as evidence against him. As the majority points out, the shoes were initially seized as part of the routine inventory procedure followed by the police when booking a suspect, not as part of any specific investigation into their evidentiary value. Under the circumstances, any exigency was purely hypothetical.

For the foregoing reasons, I would affirm the order of the circuit court of Madison County granting defendant’s motion to suppress. I therefore dissent.


author: PRESIDING JUSTICE WELCH

text:
    DAVID GOSNELL et al., Plaintiffs-Appellants, v. KELLY HOGAN et al., Defendants-Appellees.
    Fifth District
    No. 5—87—0554
    Opinion filed January 24, 1989.

      Robert B. Hoemeke and Mary B. Schultz, both of Lewis & Rice, of St. Louis, Missouri, for appellants.
    William W. Schooley, of Law Offices of William W. Schooley, of Granite City, for appellees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This appeal is from a judgment entered July 2, 1987, in the circuit court of Madison County, denying plaintiffs’ motion for preliminary injunction and petition for permanent injunction to prohibit defendants from continuing their alleged violations of the Open Meetings Act (Ill. Rev. Stat. 1987, ch. 102, pars. 41 through 46).

This action was initiated by plaintiffs David Gosnell and East Side Publications. East Side Publications is a publisher of a newspaper circulated in and near Granite City, Illinois, and David Gosnell is a reporter for the newspaper. The defendants are members of the Board of Education for Community Unit School District Number 9, with the exception of Gilbert Walmsley, who is the superintendent of schools. Plaintiffs filed suit seeking to enjoin defendants from holding closed meetings during which defendants allegedly discussed topics not within the exceptions enumerated in the Open Meetings Act.

During the school year, the Board of Education for Community Unit School District Number 9 (hereinafter the Board or Board of Education) holds regular public meetings on the first and third Tuesday of every month. Additional meetings are arranged when necessary. A written agenda is made available to the public prior to each meeting, whether regular or special. Each agenda makes reference to executive sessions, providing in general terms that during executive session, if necessary, the Board will discuss personnel, negotiations and legal matters. The executive sessions may occur as part of either a regular meeting or a special meeting. In either case, the executive sessions are not open to the public and often last longer than that portion of the meeting which is open to the public. Plaintiffs bring into issue three separate meetings, held on December 16, 1986, January 20, 1987, and February 3, 1987, in support of their claim that the bulk of the business undertaken by the Board of Education is executed during closed sessions in violation of the Open Meetings Act.

The first meeting at issue occurred on December 16, 1986. A special meeting was scheduled for this date to discuss the issuance of bonds and an amendment to the district’s tax levy. During the open portion of this meeting, the employment of a certain architect was brought into issue, but was not discussed in detail because it was considered appropriate to hold the discussion of this matter for closed session. When the Board of Education voted to retire into executive session, plaintiff David Gosnell, who was attending the meeting in his capacity as a reporter, objected to the Board of Education's closed discussion concerning the hiring of an architect and stated that he considered this a violation of the Open Meetings Act. Gosnell’s objection notwithstanding, the Board continued the meeting in executive session.

During the executive session on December 16, 1986, which lasted approximately 2 hours and 30 minutes, the Board and superintendent discussed several topics, two of which are brought into issue in this appeal. The first topic objected to by plaintiffs is the Board’s discussion of an architect hired to perform services for the school. The Board’s discussion focused on problems concerning work previously performed for the school by an incorporated architecture business located in Granite City, Illinois. The Board discussed whether, in performing the services under a given contract, the architecture business had completed all services for which it was hired, and whether it had done so within the time provided in the contract.

The relationship established between the school and the architecture business is such that the architecture business does not work exclusively for the school district, although the school entered into several contracts with this architecture business between 1960 and 1980. In performing the services under a contract with the school district, the owner of the architecture business retains complete control over the design of the particular project. During the evidentiary hearing on plaintiffs’ motion to enjoin defendants’ compliance with the Open Meetings Act, the owner of the architecture business testified that in performing his services, he does not work under the supervision of any other party.

In ruling on whether the discussion of the architecture business’ performance of its contracts was appropriate for executive session, the trial court found that the architecture work was discussed and evaluated by the Board in conjunction with the discussion of whether the architecture business’ service should be retained for future developments. During executive ■ session, the district director of school grounds and maintenance expressed to the Board some dissatisfaction with the work being performed by the architecture business. The trial court ruled that this was not a violation of the Open Meetings Act because it was within the exception enumerated in section 2 of the Act, which provides that information regarding appointment, employment or dismissal of an employee or officer may be considered in closed session. Ill. Rev. Stat. 1987, ch. 102, par. 42.

The second topic plaintiffs contend was improperly discussed by the Board during the closed portion of the meeting held on December 16, 1986, is the policy goals and proposed evaluation of Superintendent Walmsley. During executive session, an evaluation form used in another school district was distributed among members of the Board to be used as a guideline in evaluating the superintendent’s goals. The trial court found that the evaluation form was discussed by the Board in expectation of further evaluations of Walmsley’s performance as superintendent of schools, and held this was not prohibited by the Act as it fell within the exception of the Act pertaining to discussion of the employment or dismissal of employees. Ill. Rev. Stat. 1987, ch. 102, par. 42.

The second Board meeting at issue in this appeal was held on January 20, 1987. At this meeting, the agenda enumerated 41 items for consideration. During the open portion of the meeting, approximately seven items were held for executive session. The minutes of the meeting indicate that approximately 16 topics were discussed during executive session. Plaintiffs contend that eight of the topics considered in closed session should not have been so considered; instead, these eight topics, according to plaintiffs, should have been discussed in a meeting open to the public. The eight contested topics are as follows:

(1) Contract with the Granite City School of Beauty Culture;
(2) In-service teacher training program;
(3) Continuing education requirement for administrators;
(4) Policy change for reimbursement of teachers’ seeking further education;
(5) Recall rights of dismissed teachers;
(6) Enrollment statistics from 1967 to 1987;
(7) Hiring of speaker; and
(8) District staff needs.

Beginning with the first topic listed above, plaintiffs contend defendants again violated the Open Meetings Act when they discussed in executive session the terms of a contract the school has with the owner of Granite City School of Beauty Culture. Specifically, defendants reviewed and discussed a memorandum prepared by the district director of vocational and career education which listed various beauty schools in the area and their fees for teaching students from various school districts. Since 1969 or 1970 Granite City School District has entered into annual contracts with Granite City School of Beauty Culture (hereinafter the beauty school) whereby the beauty school agrees to teach high school students beautician skills. Under the contract in existence on January 20, 1987, the students from the school district attend classes at the beauty school along with regular students of the beauty school. The school district does not dictate or retain daily control of the instruction given to the high school students at the beauty school, although the beauty school staff takes attendance, reports absentees and grades the performance of the high school students it agrees to teach.

The memorandum discussed by defendants in executive session was not a summary of bids from other beauty schools and was to be used for comparison only. The owner of the beauty school had requested a substantial increase in the amount paid for each student instructed. The trial court found that the district director of vocational and career education and an attorney representing the school district negotiated an agreement with the owner of the beauty school outside the Board’s closed meeting, and then returned to the closed meeting and explained the agreement. The Board approved the agreement in open session. The trial court ruled that the discussions during executive session concerning the renewal of the contract with the beauty school fell within the exception in the Act pertaining to the appointment, employment or dismissal of an employee or officer. El. Rev. Stat. 1987, ch. 102, par. 42.

The second topic plaintiffs argue should not have been discussed during the executive session on January 20, 1987, is a program of instruction on effective teaching. The discussion of the proposed program was of a general nature and did not relate to any teachers in particular. The school district desired an amendment to its agreement with the teachers’ union requiring nontenured teachers to perform in-service training. The Board and the school administration discussed such an amendment during executive session. The trial court found that the Board instructed the administration to prepare a memorandum proposing an amendment to the agreement between the school district and the teachers’ union. No final action was taken at this time because the amendment proposed by the administration was subject to the approval of the teachers’ union and the school district. The trial court ruled that the discussion of this topic in executive session was consistent with the Open Meetings Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.

The next topic alleged to have been improperly discussed during the January 20, 1987, executive session is whether the Board should require school district administrators to acquire a certain number of hours of continuing higher education. Although certain administrators were identified, and their qualifications discussed, the proposal itself was general in nature and included all persons in administrative positions. Again, the trial court found this discussion consistent with the Act in that it related to the appointment, employment or dismissal of an employee or officer. Ill. Rev. Stat. 1987, ch. 102, par. 42.

The next topic plaintiffs considered inappropriate for executive session is a tuition reimbursement program which obligates the school district to reimburse teachers the expense of enrolling in college courses, provided the teacher receives a specified grade. Although individual teachers were named during the discussion, the program was discussed primarily in general terms. Superintendent Walmsley testified during the evidentiary hearing that under a new article in the contract between the teachers’ union and the school district, only teachers attending classes taught at Southern Illinois University at Edwardsville would be reimbursed. This created a problem for some teachers who were already enrolled at other schools and would be forced either to attend Southern Illinois University at Edwardsville or forfeit any tuition reimbursement. The Board discussed during executive session the possibility of extending the life of the prior agreement which reimbursed tuition paid to other schools. This would apply only to five or six teachers who were then enrolled in programs at other universities, and only so long as they remained in the same program. The trial court held that the discussion of tuition reimbursement fell within two exceptions provided in the Open Meetings Act. In addition to the exception for discussions relating to the appointment, employment or dismissal of an employee or officer, the court ruled that this also fell within the exception for collective negotiations between a public employer and its employees. Ill. Rev. Stat. 1987, ch. 102, par. 42.

In the same executive session, the Board discussed the recall rights of five teachers who were offered teaching positions for one semester rather than on a full-time basis. The district and the teachers’ union had previously negotiated a method of recalling teachers based on the relative seniority of teachers who had been honorably dismissed for economic reasons. Five of the teachers so dismissed were recalled on a part-time basis. The teachers’ union threatened to initiate a grievance procedure on behalf of the five teachers recalled on a part-time basis. During executive session, the Board and the school district administration discussed the employment of the five teachers, and the administration explained to the Board the administration’s dispute with the teachers’ union. At that time, the administration presented a proposed amendment to the existing agreement under which the teachers worked. This proposed amendment was approved after the Board returned to open session. The trial court held that the discussion of recall rights fell within the “appointment, employment or dismissal of employee or officer” exception in the Act, and the “collective negotiating matters between public employers and their employees or representatives” exception in the Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.

The sixth topic alleged by plaintiffs to have been inappropriate for executive session at the January 20, 1987, meeting is the Board’s discussion of school enrollment statistics from 1967 to 1987. Superintendent Walmsley testified that the statistics were considered in assessing the school district’s future property needs. The trial court found that the statistics were discussed in relation to a possible sale of school property and ruled that this fell within the exception provided in the Act for meetings where the acquisition of real property is being considered or where the selling price of real estate is being considered by the school board of a public school district. Ill. Rev. Stat. 1987, ch. 102, par. 42.

The next contested topic is the discussion of whether to hire a speaker to make a presentation to the teachers of the school district entitled “Positive Things About Teaching.” The proposed speaker was not an employee of the school district. The trial court held that the Board’s discussion of this topic during executive session was a violation of the Act and ruled that this violation was unintentional and of minor importance to the overall operation of the school district.

The final contested topic discussed at the January 20, 1987, meeting is the needs of the district staff. During closed session, Superintendent Walmsley and the Board discussed expected vacancies in certain staff positions and the need to fill those vacancies. The possibility of upgrading certain noncertified teachers to certified status was discussed, -with individual teachers being identified and discussed by name. The court held that this discussion fell within the exception in the Act for appointment, employment or dismissal of an employee or officer. Ill. Rev. Stat. 1987, ch. 102, par. 42.

Continuing with the third Board meeting at issue in this appeal, plaintiffs allege that certain topics discussed during the executive session of a regularly scheduled meeting held on February 3, 1987, meeting were discussed in violation of the Open Meetings Act. Similar to the previous meetings, the agenda of this meeting referred to an executive session wherein the Board would discuss any personnel, negotiations or legal matters as necessary. Of the 38 items enumerated in the agenda for Board consideration, four were held for executive session. Plaintiffs contend that the following topics should not have been discussed in closed session:

(1) Manpower study;
(2) Proposal to prohibit administration communication with the news media;
(3) Request for mediation with teachers’ union; and
(4) Extension of contract with bus company.

Taking these topics in the order listed, the Board discussed a memorandum prepared by district administrators which recommended the transfer of certain personnel within the administrative staff. The circuit court found that this discussion involved the consideration of qualifications, personalities and skill levels of certain individuals, and therefore the discussion was appropriately undertaken during executive session. In addition to the exception for discussions of “appointment, employment or dismissal of an employee or officer,” the court noted that the discussion also came within the exception allowing testimony on a complaint lodged against an employee or officer to determine its validity. Ill. Rev. Stat. 1987, ch. 102, par. 42.

The second topic listed began as a discussion of a special education student enrolled in a Granite City school. After discussing the student, the Board discussed the negative effects that might result from revealing to the media the discussion of the special education student. This developed further into a discussion of recent confrontations between members of the school administration and the media. These confrontations interrupted the work of the school administrators who were questioned by the media, and one Board member suggested that administrators be prohibited from talking to the news media without having the media first consult the superintendent of schools. This proposition was rejected by the Board. The trial court held that the discussion of media contacts with the school administration fell within the exception of the Act regarding the appointment, employment or dismissal of an employee or officer, and another exception in the Act which frees from the open action requirement discussion regarding “litigation when an action against, affecting, or on behalf of the particular public body has been filed and is pending in a court or administrative tribunal, or when the public body finds that such an action is probable or imminent.” Ill. Rev. Stat. 1987, ch. 102, par. 42.

The next contention brings into issue the Board’s decision to request mediation with the teachers’ union. During the February 3 executive session, the administration explained to the Board the advantages and disadvantages of such mediation. During executive session, and without ratification during subsequent open session, the Board agreed to make a joint request for mediation. The trial court held that the Board’s decision to request mediation was not a final action within the realm of the Open Meetings Act and ruled that the discussions fell within the collective negotiating exception provided in the Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.

The final topic alleged to have been inappropriate for discussion during executive session is the school district’s contract with a bus company. During the February 3 executive session, the superintendent and Board discussed the advantages and disadvantages of extending an existing contract between a bus company and the school district. The Board and superintendent decided to extend the then existing contract rather than accept bids from other companies. The trial court recognized that public knowledge of this decision would be disadvantageous to the school district when it negotiated with the bus company. The court ruled that this discussion fell within the appointment, employment or dismissal of an employee or officer exception of the Act. Ill. Rev. Stat. 1987, ch. 102, par. 42.

In addition to the numerous topics we are asked to consider as allegedly having been inappropriately discussed during executive session, plaintiffs also contend that defendants failed to comply with the procedural requirements under the Act. In holding an executive session pursuant to the exceptions enunciated in the Open Meetings Act, it is necessary to abide by the procedural dictates of the Act. Plaintiffs assert that the three meetings discussed above are typical of all Board meetings and violative of the Act in the following measures:

(1) The Board adjourned from each open meeting and went into executive session by referring during open session to “personnel, negotiations, and legal matters.” The subjects which the Board had voted to be held for executive session were not repeated specifically.
(2) Topics which the Board did not specifically vote to be held for executive session were considered during executive session.
(3) The exceptions of the Act, pursuant to which the Board discussed matters in executive session, were not cited during the open portion of the meeting.
(4) The executive sessions last at least as long, and usually longer, than the open portion of the meeting of which they are a part.
(5) The Board reaches decisions by consensus during executive session, without a formal roll call vote, and acts on that decision without making reference to or offering ratification of its executive session deliberations and decisions after returning to open session.
(6) Following the Board’s closed meetings, the discussions undergone during a closed meeting are not revealed to the public.

The first issue we are asked to consider is whether the trial court erred in liberally construing certain exceptions provided in the Act. The court held that the exceptions encompass matters collateral to the specifically excepted subjects, so long as those matters are relevant to, bear on, and are incidental to the specifically excepted subjects. It is the plaintiffs’ contention that this interpretation emasculates the Act and is contrary to public policy, case law, and the express language of the Act. We disagree.

The cardinal rule of statutory construction is that a statute must be construed so as to give effect to the legislative intent. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 536, 332 N.E.2d 649, 658.) Statutes must be given sensible interpretation by the courts, and a strict construction means only that it must be confined to such subjects or applications as are obviously within its terms and purposes, and it does not require such an unreasonably technical construction that the words used cannot be given their fair and sensible meaning in accord with the obvious legislative intent. (DuBois v. Gib bons (1954), 2 Ill. 2d 392, 410-11, 118 N.E.2d 295, 305.) The Open Meetings Act provides that public agencies exist to aid in the conduct of the people’s business and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly. Ill. Rev. Stat. 1987, ch. 102, par. 41.

While we are aware of the ruling that the exceptions allowing closed meetings must be narrowly construed because they derogate the general policy of open meetings (Illinois News Broadcasters Association v. City of Springfield (1974), 22 Ill. App. 3d 226, 228, 317 N.E.2d 288, 290), we do not consider it judicious to apply this ruling blindly and technically such that every instance wherein a public body’s actions do not fall squarely within the language of the exceptions provided in the Act constitutes a violation of the Act. Instead, the language of the Act, and the intent of the legislature expressed therein, must be interpreted and applied on the facts of each case. See People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 538, 332 N.E.2d 649, 660.

While we keep in mind that the purpose of the Act is to promote the openness of public business, we must not overlook the larger, overriding purpose of the Act within which the promotion of openness is subsumed and made a constituent part — aiding the conduct of the people’s business, or, in other words, securing public advantage. (People ex rel. Hopf v. Barger (1975), 30 Ill. App. 3d 525, 332 N.E.2d 649.) In promoting the ultimate goal of requiring public bodies to carry out their business in the manner most beneficial to the public they represent, there are occasions on which it is not to the public’s advantage that a public body carry on its business in a meeting open to the public. Therefore, it is not always possible for both of the above-stated purposes of the Act to be promoted in harmony. It is our belief that where the purposes of the Act cannot be promoted in harmony, priority should be given to the more dominant or overriding purpose.

This is particularly true in the instant case, where the purpose of promoting openness is not separate and distinct from the overriding purpose of promoting the ultimate goal of public advantage. Openness is in most circumstances an element fundamental in furthering public advantage; however, in some instances openness simply prevents or defeats public advantage.

For example, consideration of topics concerning matters such as personal information, bargaining position and negotiating strategy makes it necessary that a public body meet in private, lest it run the risk that the business undertakings will be rendered, for all practical purposes, ineffective and meaningless. Public knowledge of their officials’ intentions and actions resulting from compulsory public deliberative sessions when considering matters such as the purchase of real estate would destroy any advantage to be gained from negotiation and work a severe detriment upon the officers and the public they represent. (Collinsville Community Unit School District No. 10 v. Witte (1972), 5 Ill. App. 3d 600, 603, 283 N.E.2d 718, 720-21.) Likewise, forcing public officers to discuss sensitive issues in meetings open to the public may result in these topics being intentionally overlooked, at the public’s expense. Premised by a familiarity with the common use of discretion which results in many sensitive issues being better left alone, especially when the audience is large and confidence is wanting, consider the negative effects resulting from open discussion of personal problems that might impede upon the work place of a public office, such as alcohol abuse, tardiness, poor hygiene or cigarette smoking. While these problems might be resolved if the appropriate public body were able to discuss the matter freely, it is unlikely that this will occur when such matters cannot be discussed in confidence. As a result, work quality continues to wane, at the public’s expense.

Restricting public officials’ ability to discuss sensitive issues freely may also breed contempt. The supreme court in People ex rel. Difanis v. Barr (1980), 83 Ill. 2d 191, 414 N.E.2d 731, recognized that there are obvious problems of enforcement inherent in the Act. (83 Ill. 2d at 202, 414 N.E.2d at 735.) The facts in Difanis can be summarized, for the limited purpose of this discussion, as a city council holding an informal caucus prior to a regularly scheduled meeting in order to discuss some of the matters which were to be considered at the upcoming meeting. A dispute over whether the informal caucus was actually a meeting within the scope of the Act ensued. In confronting the problem of determining what constitutes a “meeting” in terms of the Act, the Difanis court quoted Sacramento Newspaper Guild, Local 92 v. Sacramento County Board of Supervisors (1968), 263 Cal. App. 2d 41, 50-51, 69 Cal. Rptr. 480, 487, which stated in part that “ ‘[a]s operative criteria, formality and informality are alien to the law's design, exposing it to the very evasions it was designed to prevent.’ ” (83 Ill. 2d at 200, 414 N.E.2d at 734.) In Difanis the supreme court ruled that, regardless of the informal or formal appearance, officials are required, pursuant to the Act, to speak of public business with their fellow officials only when they are in an open forum. (83 111. 2d at 210, 414 N.E.2d at 739.) The supreme court adopted the reasoning of the appellate court in Difanis in holding that public officials’ desire to consult privately must give way to the open conduct of the public’s business “or else the people risk having their business done in secret, with the possibility that private deals will supplant the public interest.” 83 Ill. 2d at 211, 414 N.E.2d at 739, citing People ex rel. Difanis v. Barr (1979), 78 Ill. App. 3d 842, 845, 397 N.E.2d 895.

In the case before us, we are not asked to consider whether the school Board evaded the proscriptions of the Act by meeting informally, but rather, whether the Board violated the Act by discussing during executive session matters not excepted in the Act, and whether the Board failed to comply with the formal requisites of the Act. We are cautious to observe and protect the same public interest that the dictates of Difanis place in high regard, and we interpret the Act such that its application will not choke and inhibit the Board to the extent that its duties cannot be fulfilled. We recognize the delicate balance between interpreting the Act too broadly, thereby running the risk that the public interest will take second seat to the interest of private individuals, and interpreting the Act too narrowly, thereby overwhelming the public officials with time-consuming formalities and public exposure in sensitive areas. Therefore, we agree with the holding that the Act only requires that a public body “substantially” comply with the Act’s provisions (Argo High School Council of Local 571, IFT, AFT, AFL-CIO v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 583, 516 N.E.2d 834, 837.) Accordingly, we are unable to find that the trial court erred in not interpreting the Act in the strict manner proposed by plaintiffs.

Turning to other issues raised by plaintiffs, we are unable to find that the trial court erred in interpreting the term “employee” as used in the exceptions provided in the Act. (Ill. Rev. Stat. 1987, ch. 102, par. 42.) Plaintiffs contend that the court erred in interpreting “employee” to include independent contractors. Construing the Act and the exceptions provided therein, giving plain and sensible meanings to the words used by the legislature, and interpreting the Act’s provisions consistently with the expressed intention of the legislature, we find that the exception providing that closed meetings are permissible to consider information regarding appointment, employment or dismissal of an employee or officer may properly be interpreted to include independent contractors where the facts of a given case make such a determination consistent with the underlying intention of the Act.

The Act does not elaborate qualifications or definitions for determining whether someone is an employee or officer. Strictly construed in a legal sense, the term employee does not include independent contractors, and the two classifications may be distinguished by considering the manner and method in which anyone so classified performs the duties for which they are hired. (Kouba v. East Joliet Bank (1985), 135 Ill. App. 3d 264, 481 N.E.2d 325.) However, we find it unnecessary in the present case to delve into a determination of whether certain speakers, architects, beauty school operators and other persons hired by the school district performed services in the capacity of employee or independent contractor. Instead, we focus on the intention of the legislature in excepting discussions of matters relating to employment and decide whether the legislature intended a strict legal construction of the term employee so as not to include independent contractors.

In the instant case, we are not persuaded that there exists a compelling reason to distinguish between an employee and an independent contractor for purposes of determining whether the Board may properly discuss in closed session the hiring, performance or other matters relating to a person or persons in either classification. In balancing the public’s right to know against the Board’s need to discuss matters in confidence, we find that the narrow, legal definition of employee urged by plaintiffs is inconsistent with the rule that in construing a statute the words must be given their fair and sensible meaning in accord with the legislature’s intent. Taking a more workable approach, we find that the legislature did not intend to exclude independent contractors from the exception providing for discussion of information regarding the appointment, employment or dismissal of employees. The need to discuss in privacy the hiring and performance of an independent contractor is generally the same as that for any other employee. In fact, because an independent contractor may be hired relatively frequently, and usually under a new and separate contract for each job, there is arguably a greater need to preserve confidence in discussing such hiring because each contract may be approached with a varied strategy, whereas, on the average, there is less need for negotiating strategy when hiring personnel. Therefore, we are unable to find that the court erred in finding that the exception for employees and officers also applies to independent contractors under the facts of this case.

The next issue raised by plaintiffs is that the court erred in concluding that the superintendent and board did not violate the Act when they considered during executive session educational goals, policy and programs and school district statistics. Plaintiffs argue that the host of policy issues that were discussed in executive session related to the conduct of the people’s business and therefore should have been discussed in open session. Superintendent Walmsley testified at the evidentiary hearing conducted in the trial court that he and the Board discussed in executive session his goals as superintendent. Because the district had been in turmoil for over a year, goals were set for the superintendent’s office in attempt to improve his performance and relationship with the school district in general. Plaintiffs concede that, because Walmsley is an officer of the school district, the discussion of matters relating to his employment may be held in executive session. Plaintiffs dispute the propriety of the formulation during executive session of general policy, such as the goals of the superintendent’s office. Plaintiffs assert that even if discussion of the superintendent’s goals arose in the context of an evaluation of Walmsley’s particular job performance, the Act requires that only those portions of any meeting expressly enumerated in the exceptions to the open meeting requirement may be discussed during executive session. Therefore, according to plaintiffs, the discussion of the superintendent’s goals should have been separated from any particular complaint regarding Walmsley’s performance and discussed in open session.

In another subject falling under this issue, plaintiffs argue that the exception for “collective negotiating matters” must be limited to preparation by the Board for actual negotiations with the various unions; the possibility that unions may take advantage of information revealed in open meetings is irrelevant. The possibility that matters discussed during open session may be used by the unions to the people’s detriment is very relevant in considering whether the legislature intended that particular topics be discussed openly.

Further, not only would such a strict interpretation of the Act work to the public’s disadvantage, thereby undermining the intentions of the Act, it also results in time-consuming technicalities for which the benefit does not offset the burden. Common experience dictates that discussions of matters relating to complaints against an officer and goals developed in attempting to resolve the complaints can become one and the same. An attempt to discuss only the complaints in closed session and then the proposed goals in open session would be tedious and frustrating when the goals are in direct response to and interrelated with the complaints they are intended to resolve. In order to discuss the goals effectively, it is necessary to consider simultaneously the complaints which prompted the need for the goals. The complaints present problems, and the goals the intended solutions. Forcing the Board to discuss the solutions in public would result in one of two equally unfavorable outcomes. First, the Board would run the risk of exposing personal information regarding the superintendent to the public. In discussing the solutions in public, it is likely that reference will be made to the problems. Second, if the Board were to attempt discussion of the solutions without making reference to the problems, the discussion would be inhibited by the precaution given to avoiding the mention of confidential information in public. Neither of these results is consistent with the Act’s purpose of protecting the public’s business and therefore should not be promoted.

Plaintiffs’ next issue presented to this court is that the trial court erred in finding that a joint request for mediation was not a final action under the Act. In their closed meeting on February 3, 1987, the Board and superintendent discussed the advantages and disadvantages of engaging in mediation to resolve an impasse in contract negotiations between the Board and the secretaries’ union. Plaintiffs argue that this constituted a “final action” within the contemplation of the Act and should have been discussed in open session, or, at a minimum, reported as a final action in open session. We disagree.

The section of the Act which enumerates the exceptions to the open meeting requirement also expressly states that no final action may be taken at a closed meeting. (Ill. Rev. Stat. 1987, ch. 102, par. 42.) In the instant case, the Board chose mediation as an alternative to unsuccessful negotiations with the secretaries’ union. The circuit court found this to be within the exception for discussion of “collective negotiating matters between public employers and their employees or representatives.” (Ill. Rev. Stat. 1987, ch. 102, par. 42.) Plaintiffs argue to the contrary that the Board’s decision to request mediation was unilateral and not a collective negotiation falling within this exception. We agree with the circuit court and find that the request for mediation was part of the process of reaching a final action with the secretaries union. Mediation, similar to negotiating, is not an end in itself, but rather, a means to an end. Negotiations and mediations are made up of many “unilateral” decisions, such as what to offer or counteroffer, and to hold that each of the unilateral strategical decisions that make up the constituent parts of a negotiation is in and of itself a final action is unreasonable.

Next, plaintiffs argue that the court erred in holding that the superintendent and Board did not violate the Act when it discussed whether to prohibit district administrators from speaking with the media. The underlying action was initiated on January 28, 1987, and the allegedly violative discussion was had on February 3, 1987. Plaintiffs contend that the trial court wrongfully categorized this discussion under the exception for discussion of “litigation when an action against, affecting, or on behalf of the particular body has been filed and is pending in a court or administrative tribunal.” Although the discussions were of a general nature, attending to the relationship between the newspaper and the Board and attempting to resolve plaintiffs’ attempts to question school administrators, we find that a fair interpretation of the Act brings these discussions within the exception of the Act.

The final issue requires that this court determine whether the Board failed to comply with the procedural requirements of the Act. We find that the Board substantially complied with the Act consistent with Illinois law. (Argo High School Council of Local 571 IFT, AFT, ALF-CIO v. Argo Community High School District 217 (1987), 163 Ill. App. 3d 578, 516 N.E.2d 834; Williamson v. Doyle (1983), 112 Ill. App. 3d 293, 445 N.E.2d 385.) For example, plaintiffs complain that the Board’s inclusion in the agenda preceding each meeting of a general reference to “Executive Session — personnel, negotiations and legal matters” is insufficient to give notice to the public of what topics will be discussed during closed session. However, the Act does not require notice in the agenda of topics to be considered in closed session. The Act provides:

“At any open meeting of a public body, for which proper notice under this Act has been given, the body may, without additional notice under Section 2.02, hold a closed meeting in accordance with this Act. Only topics specified in the vote to close under this Section may be considered during the closed meeting.” (Ill. Rev. Stat. 1987, ch. 102, par. 42a.)

According to the record, the topics to be discussed in closed session were included in the minutes of each meeting prior to the Board’s voting to go into closed session. In instances when a topic not specifically held for closed session was discussed during closed session, the relationship between the items held for closed session and the items not specifically held for closed session is such that the Board’s discussion of these items is in compliance with the Act. It is to be expected that during the discussion of a given topic, other related topics germane to the primary topic may be brought into discussion. In instances when a related topic plays an integral part in the discussion of the original topic to be considered in closed session, business practicality and efficiency dictate that the related topic be discussed along with the primary topic. For example, the trial court held that school enrollment statistics, a topic not falling within any exception to the Act, could be discussed during closed session when discussed collateral to the discussion of offers to purchase real estate — a topic excepted under subsection (c) of section 2 of the Act. This section provides that “meetings where the acquisition of real property is being considered or where the selling price of real estate is being considered by the school board of a public school district” need not be open to the public. Ill. Rev. Stat. 1987, ch. 102, par. 42.

Construing the exceptions to the Act applying the fair and sensible statutory interpretation stated in DuBois above, and applying the substantial compliance requirement stated in Argo, we are unable to find merit in plaintiffs’ arguments, and we therefore affirm the judgment of the trial court.

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

Affirmed.

HARRISON and GOLDENHERSH, JJ., concur.

       Justice Goldenhersh replaces Justice Calvo, who was elected to the Illinois Supreme Court after this cause was taken under advisement.


text:
    CYNTHIA L. SHOFF, Petitioner-Appellant, v. DANNY R. SHOFF, Respondent-Appellee.
    Fifth District
    No. 5—88—0181
    Opinion filed January 25, 1989.

      Endicott & Finch, of Carmi, for appellant.
    Mark R. Stanley, of Stanley Law Office, of Carmi, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Appellant, Cynthia L. Shoff, appeals from an order of the circuit court of White County, entered March 28, 1988, modifying a child custody order previously entered in a proceeding dissolving her marriage to appellee, Danny R. Shoff, and entering a judgment against appellee for past-due child support. We affirm.

The parties were divorced by a Nevada State court on July 22, 1981. Appellant was granted custody of the only child of the marriage, Christy, who was born December 18, 1979. Appellee was granted reasonable visitation rights and ordered to pay child support in the amount of $150 per month.

In March 1981, appellee and the minor child moved to White County, Illinois. Appellant moved there shortly thereafter, and the Nevada divorce decree was properly registered with the circuit court of White County on September 18, 1981. At the same time, the parties agreed to modify the visitation provisions of the divorce decree to accommodate appellant’s intention to move with the child to the State of Florida. The circuit court of White County accordingly ordered the divorce decree modified to allow visitation by appellee for 60 consecutive days between June and September of every year, and for reasonable visitation at other times. The child continued to live with appellee until November 1981, when she was sent to live with her mother in Florida. In November 1984, the child was returned to Elinois where she has continued to reside.

Between September 1983 and August 1986, appellant made numerous attempts to collect child support from appellee. Although appellee was repeatedly ordered by the circuit court of White County to pay past-due and future child support, appellee remained delinquent in his payments. Admittedly, the child has been in the exclusive physical custody of appellee since November 1984 and he has provided for all of her needs.

On November 3, 1986, appellee filed a petition for temporary and permanent custody of the parties’ minor child, Christy. Notice of the hearing on the petition for temporary custody was duly mailed to appellant by appellee’s attorney; however, appellant failed to appear at the hearing. On November 25, 1986, the circuit court of White County entered an order on both appellee’s petition for temporary custody and on appellant’s most recent petition for rule to show cause for appellee’s failure to pay child support. The court found that it was in the best interest of the minor child that temporary custody be placed with appellee, and so ordered. The order also found that appellee was in arrears in child support in the amount of $3,050 and entered judgment in that amount, but ordered that execution on the judgment be stayed for a period of 30 days. The cause was set for hearing on the petition for permanent custody.

On December 2, 1986, appellant filed a petition for rule to show cause for appellee’s failure to pay child support and for his wilful and contumacious refusal to return the minor child to the appellant. On the same date, appellant also filed a petition to vacate the temporary custody order, claiming that it was not in accordance with the law and that she had not received required notice of the hearing.

The cause came on for hearing on February 5, 1988. Appellee testified that he lives with his wife, Janice, his son, Aaron and his daughter, Christy, in Herrin, Illinois. They live in a three-bedroom house, where Christy has her own room. The house is fully furnished.

Appellee has worked at Marion penitentiary as a correctional officer since April 1984, where he earns a gross salary of $20,000 to $25,000 per year. Appellee has provided for all of Christy’s needs since November 1984.

Christy was eight years old at the time of the hearing and had lived with appellee and his family since November 1984. Appellant had made no request to have the child returned to her during that period of time. From October or November 1981 until November 1984, when Christy lived primarily with her mother in Florida, she also visited frequently and for extended periods of time with appellee.

Christy gets along very well in her new home and with her stepmother. Appellee explained that Christy was only four years of age when she came to live with appellee and his wife. Appellee and his wife had been married three years at the time of the hearing. Christy has a brother, Aaron, born October 8, 1984.

Christy has adjusted very well to her school and community. Christy was in the second grade and was a good student earning mostly B’s. She is a member of Brownies and is proud of the cookies she has sold. She has many friends in Herrin with whom she rides bicycles. She has friends stay overnight at her house and she stays overnight at their houses.

Appellee described his relationship with Christy as very good. He stated that she consults him on problems at school and other matters. He loves Christy very much. Appellee described Christy as happy.

With regard to child support, appellee testified that he could not prove that he had made any child support payments since November 1984. He admitted that appellant had made numerous attempts to collect child support. He testified that he had been unemployed from September 1981 until sometime in 1983.

Appellant testified as an adverse witness pursuant to section 2—1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—1102). She stated that other than one weekend, appellee had never denied her visitation with Christy. She has never requested appellee to return the child to her. She admitted that Christy was well cared for at appellee’s home. She also admitted that in October or November 1984, while Christy was in appellant’s custody, the child welfare agency in Florida had taken custody of Christy because appellant had left her home alone too long. This is how Christy came to be in appellee’s custody in November 1984. Appellant testified that she receives approximately $600 every two weeks from her boyfriend in return for helping out in his seafood business. Her boyfriend gives her just enough money every two weeks to pay her household expenses.

Appellant also testified in her own case. She testified to her repeated efforts to collect child support payments from appellee. She explained the reason she had relinquished custody of Christy in the fall of 1984. In October 1984, she lost her job and was extremely upset. She picked Christy up from school and took her home. That evening, she left Christy home alone while she went for a drive to think things through. This was the reason the Florida child welfare agency took custody of Christy. Christy had been in bed, and appellant had assumed she would be all right, as Christy knew all the neighbors. Appellant explained, however, that she had already decided prior to this to allow Christy to come to Illinois to live with her father for a while. However, she did not intend for it to be permanent. Appellant lives alone in a furnished, two-bedroom home in Florida.

Appellant did not visit with Christy during 1985 or 1986. Appellant only visited with Christy in March 1987 for 7 to 10 days, and again in August 1987 for 7 to 10 days.

With regard to her past employment, appellant testified that prior to November 1984, she had been employed for a year making $5.35 per hour, 40 hours per week. She lost that job in November 1984, but found another job within two weeks. She made $5.75 or $6 per hour working 40 hours per week. After a year and a half, she again changed jobs and began making $7 per hour. She continued to make $7 per hour until she began working for her boyfriend in August 1987. She received a child support payment of $1,000 in 1987, which was appellee’s income tax refund.

The child, Christy, was interviewed in chambers by the trial court, with both counsel present. She stated that she had been four years old when she came to live with her father. She was in kindergarten when she first returned to Illinois. She turned five at her father’s house. They had a birthday party for her at a pizza restaurant in Marion. She calls her stepmother “Mom.” She enjoys school and earns good grades. She stated that she has no friends who live very close to her; she must go to a different neighborhood and doesn't really have anyone to play with. She is involved in Brownies, is going to take ballet lessons and has taken gymnastics lessons. She also played in a softball league. She expected to get to live with her mother because most girls live with their mothers, while most boys live with their fathers. She wants to live with her mother, and has wanted to for a long time. She could not give any reason for her preference for living with her mother other than stating that she loved her mother a lot. She stated that she also loved her father. She stated that her father has another child and her mother has no one. She stated that she would miss her little brother if she went to live with her mother.

At the conclusion of the hearing, the trial court found that appellee had made child support payments of $75 in September 1984, $75 in October 1984, $1,000 in March 1985, and $1,000 in 1987, for a total of $2,150. The court found that when the temporary custody order was entered in November 1986, appellee’s support obligation terminated. Thus, appellee was obligated to pay child support in the amount of $150 per month from August 1, 1981, through November 1, 1986, for a total of $9,600. He had made total payments of $2,150. The court therefore entered a judgment of $7,450 against appellee and in favor of appellant. The court ordered appellee to pay appellant the sum of $250 per month on the judgment, but suspended the order until such time as a hearing could be held to determine what amount, if any, appellant would be required to pay to appellee as child support.

With respect to custody, the trial court properly found that sections 610(b) and 602 of the Illinois Marriage and Dissolution of Marriage Act apply. (Ill. Rev. Stat. 1985, ch. 40, pars. 610(b), 602.) Section 610(b) provides that a court shall not modify a custody judgment unless it finds by clear and convincing evidence, upon facts that have arisen since, or were unknown at the time of, the prior custody order, that a change has occurred in the circumstances of the child or his custodian and that modification is necessary to serve the best interest of the child. (Ill. Rev. Stat. 1985, ch. 40. par. 610(b).) Section 602 sets forth certain factors to be considered in determining the best interest of the child, including the wishes of the child’s parents, the wishes of the child, the interaction and interrelationship of the child with his parents, his siblings and any significant others, and the child’s adjustment to his home, school and community. Ill. Rev. Stat. 1985, ch. 40, par. 602.

In the instant case, the trial court found that a change had occurred in the circumstances of the child and her custodian in that the custodial parent (appellant) had voluntarily surrendered custody of the child to appellee in November 1984, had subsequently had no contact with the child until 1987, and then had had only limited visitation. With respect to the best interests of the child, the court found that both parents wanted custody of the child. Although the child stated that she preferred to live with her mother, there was no indication that she did not like living with her father. The court found the child to be well-adjusted, happy, normal and healthy and noted that this spoke well of her present environment. She was well adjusted to her home, school and community and was quite active. The child’s interaction and relationship with her family was warm, loving and affectionate and she had a stable, healthy environment. The trial court pointed out that appellant had failed to take any interest in the child from November 1984 until March 1987, although she had had sufficient income to visit with the child. Thus, the trial court found that appellee had met his burden of proof by showing by clear and convincing evidence that a change in circumstances had occurred and that it was in the best interest of the child that permanent custody be placed in appellee.

Appellant appeals, arguing that appellant’s relinquishment of custody to appellee was not a sufficient change in circumstances to warrant a modification in custody and that the modification in custody is not in the best interest of the child. She argues that the court erred in equating her leaving the child with appellee because of financial difficulties with the child’s becoming integrated into appellee’s family and by giving this factor controlling weight. She argues that there is a legislative presumption in favor of maintaining custody in the present custodian and against modification.

We think the trial court properly found, by clear and convincing evidence, that a change in circumstances had occurred and that modification of custody was in the best interest of the child. Although appellant retained legal custody of the child, she relinquished physical custody of the child to appellee in November 1984, when the child was only four years of age. The child continued to live with appellee until the time of the hearing, when she was eight years of age. During the almost four years in which she lived with appellee, the child saw appellant only on two occasions in 1987 and only for brief periods of time. During that time, the child became well integrated into her new family, home, school and community. The trial court did not err in finding this to be a material change in circumstances relating to the child’s best interest sufficient to warrant a modification in custody.

Nor do we think the trial court erred in finding that modification of custody was in the best interest of the child. The trial court carefully considered each of the factors set forth in section 602 of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1985, ch. 40, par. 602.) The court did not give controlling weight to the child’s integration into appellee’s family, but properly considered it as one of the factors in determining whether modification of custody was in the best interest of the child. (See In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 788, 450 N.E.2d 1385, 1391.) In doing so, the court properly considered the child’s interaction and interrelationships with her father, stepmother and brother, and her adjustment to her home, school and community. (Ill. Rev. Stat. 1985, ch. 40 pars. 602(a)(3), (aX4).) Although the child expressed a preference for living with her mother, she was unable to state the reason for her preference except that her mother had no one else, while her father did. She was not unhappy living with her father. While a mature child’s preference as to custody is to be given considerable weight when it is based on sound reasoning (In re Marriage of Leff (1986), 148 Ill. App. 3d 792, 810, 499 N.E.2d 1042, 1054), the child involved in the instant case is not mature, nor is there anything to indicate that her preference is based on sound reasoning. Furthermore, a court is not precluded from finding that the child’s preference is not in the child’s best interest (Leff, 148 Ill. App. 3d at 810, 499 N.E.2d at 1054), especially when the child’s reasons are not related to her best welfare. (In re Marriage of Jones (1987), 160 Ill. App. 3d 593, 597, 513 N.E.2d 1181, 1184.) We find no error in the trial court’s conclusion that a modification of custody was in the best interest of the child.

Finally, appellant argues that there is a legislative presumption in favor of the present custodian and against modification. While this is true, it must be remembered that the purpose of this presumption is to promote the stability and continuity of the child’s custodial and environmental relationships. (In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 786, 450 N.E.2d 1385, 1389.) In the instant case, that goal is better served by modification of custody.

A trial court’s determination with respect to modification of custody will not be overturned on appeal unless it is contrary to the manifest weight of the evidence or amounts to an abuse of discretion. (Wechselberger, 115 Ill. App. 3d at 786, 450 N.E.2d at 1390.) We do not find such to be the case now before us.

Appellant also argues that the trial court erred in finding that appellee’s obligation to pay child support terminated on November 25, 1986, when he obtained temporary custody of the child, and in determining the amount of appellee’s arrearage in child support. Specifically, appellant points out that appellee did not move for a modification of custody until the date of the hearing on permanent custody, February 5, 1988, and citing section 510(a) (Ill. Rev. Stat. 1987, ch. 40, par. 510(a)), argues that appellee’s obligation to pay child support continued until that date. Appellant also contends that appellee made total payments of child support only in the amount of $1,150, as opposed to the trial court’s finding of $2,150. Appellant asks that judgment be entered against appellee for past-due child support in the amount of $8,750.

The trial court found, as a matter of equity and fairness, that appellee’s obligation to pay child support terminated when the temporary custody order was entered. We agree, and also think common sense dictates that, once legal and physical custody is placed in one parent, that custodial parent has no obligation to pay child support to the noncustodial parent. Appellant points out that section 510(a) of the Illinois Marriage and Dissolution of Marriage Act provides that a judgment respecting child support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of a motion for modification. (Ill. Rev. Stat. 1987, ch. 40, par. 510(a).) However, we think that in this case, appellant was put on due notice by the filing of the petition for temporary custody that she might lose custody of the child, and thereby also the right to collect child support payments. Although this does not follow the exact language of section 510(a), we think it fulfills the purpose of that section. Child support is just that — financial support for a child. Where a custodial parent is directly providing for all of a child’s financial needs, there is no reason to require the custodial parent to pay child support to the noncustodial parent. The trial court properly determined that appellee’s obligation to pay child support terminated on the date the order was entered granting him temporary custody of the child.

With respect to the amount of the arrearage, the trial court found that appellee had made child support payments totalling $2,150, representing payments of $75 in September 1984, $75 in October 1984, $1,000 in March 1985 and $1,000 in 1987. The first three payments are substantiated by the record of the circuit clerk of White County to whom the payments were made, of which the trial court took judicial notice. The final payment of $1,000 is not noted on the record of the circuit clerk, but appellee testified that he paid it, and appellant testified that she received it. Therefore, we find that the trial court’s determination of the amount of child support payments made by appellee is not against the manifest weight of the evidence.

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

Affirmed.

HARRISON and HOWERTON, JJ., concur.