text:
    THE CITY OF BURBANK, Appellant, v. ILLINOIS STATE LABOR RELATIONS BOARD et al., Appellees.
    First District (4th Division)
    No. 1-87-0061
    Opinion filed June 29, 1989.

      Robert E. Mann and Gretchen A. Winter, both of Seyfarth, Shaw, Fair-weather & Geraldson, of Chicago, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Roma Jones Stewart, Solicitor General, and Bret A. Rappaport, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois State Labor Relations Board.

      Jacqueline A. Kinnaman, of AFSCME Council 31, of Chicago, for respondent American Federation of State, County & Municipal Employees, AFL-CIO.
   JUSTICE JOHNSON

delivered the opinion of the court:

The City of Burbank (hereinafter the City) appeals from the decision and order of the Illinois State Labor Relations Board (hereinafter the Board), finding that it had committed unfair labor practices in violation of sections 10(a)(1) through (a)(4) of the Illinois Public Labor Relations Act (Ill. Rev. Stat. 1985, ch. 48, pars. 1610(a)(1) though (aX4)) (hereinafter the Act). The City also appeals from the Board’s decision awarding attorney fees to the Board and to American Federation of State, County and Municipal Employees (hereinafter AFSCME). The following issues are raised on appeal: (1) whether the Board’s decision is against the manifest weight of the evidence and (2) whether the Board has the authority to award attorney fees.

We affirm in part and reverse in part.

On June 28, 1985, AFSCME Council 31, AFL-CIO (hereinafter the Union) was elected as the exclusive representative of a group of employees of the Public Works Department (hereinafter Department) located in Burbank, Illinois. Before the Union was certified by the Board, but after the election, the City enacted an ordinance restructuring the Department. The ordinance eliminated the foremen positions, reduced the receptionist position from full-time to part-time status, and created a deputy director position, whereby one of the foremen was promoted and the remaining foreman was terminated. On August 6, 1985, the Union filed an unfair labor practice charge with the Board (No. S — CA—89), alleging that the City’s action violated sections 10(aXl), (aX2), and (aX4) of the Act. Ill. Rev. Stat. 1985, ch. 48, pars. 1610(a)(1), (a)(2), (aX4).

In September 1985, the City accepted a bid from an independent contractor to pave and resurface its streets. This work was previously performed by the Department employees. However, as a consequence of this subcontracting, four employees were laid off. On October 24, 1985, the Union filed another unfair labor practice claim (No. S — CA— 103) against the City, alleging that its act of subcontracting violated sections 10(a)(1) and 10(aX4) of the Act. Ill. Rev. Stat. 1985, ch. 48, pars. 1610(aXl), (aX4).

After the Union filed its second charge with the Board, the parties entered into settlement negotiations. Michael Newman, a Union representative, testified that during October 1985 he met several times with Nick A. Cetwinski, attorney for the City, to discuss settlement of the two pending unfair labor practice charges. On November 5, 1985, Newman again met with Cetwinski. Also present at this meeting were five members of the city council, the City’s mayor and administrator, and Leonard Sullivan, one of the employees laid off by the City and a member of the Union’s negotiating committee.

With respect to No. S — CA— 89, the City proposed to return the receptionist position to a full-time status with back pay. However, in lieu of reinstating Bob Randle, the ex-foreman, the City offered him severance pay calculated at one-half of the salary he would have earned from the date of his termination less any other compensation earned since the date.

Concerning No. S — CA—103, the City proposed to reinstate the four laid-off employees with back pay less other compensation earned during the layoff. The proposal also provided that subcontracting of unit work was to be discussed at the parties’ collective bargaining negotiations. Finally, the City’s proposal required the Union to withdraw its unfair labor practice charges.

The Union found the proposal acceptable except for the provisions granting Randle severance pay in lieu of reinstatement. Newman agreed to recommend to the Union members that the City’s proposal be accepted. The Union would then be obligated to withdraw its unfair labor practice charges. It was further agreed that the provision concerning Randle would be left for resolution by the Board. However, Newman informed the City that he could not authorize any settlement without the approval of the Union members. Thereafter, the City representatives signed the proposal as originally written, but the Union did not sign the document.

On November 6, 1985, Newman presented the proposal to the Union. The members voted to accept the settlement. On November 20, 1985, prior to the hearing in No. S — CA—89, Cetwinski met with Jacqueline A. Kinnaman, counsel for the Union (Newman was unavailable), to sign the agreement. At this meeting they amended the proposal signed by the City representatives on November 5 to make it consistent with their final agreement to eliminate all references in the proposal to Randle. Also, they agreed to either withdraw or amend the pending unfair labor practice claim. The amendments were initialled by Cetwinski and Kinnaman. In order to encompass what was agreed upon, the parties signed a document entitled “Parties Settlement Agreement.”

At the hearing, both settlement agreements were entered into the record. Pursuant to the terms of the agreement, Kinnaman moved to amend the complaint in No. S — CA—89 to strike all references to the receptionist and to the foreman who was promoted to deputy director. On December 13, 1985, Kinnaman notified the Board by letter that it was withdrawing its unfair labor practice charge in No. S — CA—103. On December 18, 1985, the Board notified all parties of the withdrawal.

The City reinstated the employees in December 1985; however, they did not receive any back pay. The Union sent a letter to Cetwinski requesting payment of the back wages, but it did not get any response. Accordingly, on March 10, 1986, the Union filed an unfair labor practice charge (No. S — CA—151) against the City alleging violations of sections 10(a)(1), (a)(2), and (a)(4) of the Act. Ill. Rev. Stat. 1985, ch. 48, pars. 1610(a)(1), (a)(2), (aX4).

Subsequent to the filing of the charge, the City initiated its process of subcontracting Department services by approving a budget ordinance, including $300,000 for subcontracting street repairs. Based on this action, the Union amended No. S — CA—151 on March 24, 1986, to allege a violation of section 10(aX3) of the Act. (Ill. Rev. Stat. 1985, ch. 48, par. 1610(a)(3).) On March 28, 1986, Kinnaman sent a letter to the City demanding to bargain over the decision to subcontract and its effect on the Union. The record does not reveal whether Kinnaman received a response; however, no bargaining occurred on the issue.

Upon investigation of the charge, as amended, the Board issued a complaint on May 9, 1986. A hearing was held on June 9, 1986. The hearing officer made the following recommendations to the Board:

“1. The City has violated Sections [10(aXl) through (a)(4)] of the Act by entering into a settlement agreement in bad faith.
2. The City has violated Sections [10(aXl) through (aX3)] of the Act by refusing to pay back pay to employees Carol Budds, Kevin Miller, Jim Burris, Dan Jacobson and Len Sullivan as required by its settlement agreement.
3. The City has violated Sections 10(a)(1) and 10(a)(4) of the Act by failing to notify and bargain with AFSCME over the decision to subcontract bargaining unit work or the effects of that decision.
4. The appropriate remedy requires the City to pay [the above] employees back pay from the date of their layoff to the date of their reinstatement with interest calculated at 6% per annum, from [November] 20, 1986, the date of the settlement agreement.
5. The appropriate remedy also requires the City to bargain with AFSCME over any decision to subcontract street repairs.
6. The appropriate remedy also requires the City to pay to AFSCME all litigation expenses and attorneys fees incurred in the investigation, preparation, presentation and conduct of this case.”

On December 16, 1986, the Board adopted the recommended decision of the hearing officer. One Board member dissented on the award of attorney fees. The City filed a petition for review by this court on January 1,1987.

The City’s first contention is that the Board’s decision, that the City committed unfair labor practices by failing to abide by its settlement agreement, is against the manifest weight of the evidence. The City makes two arguments under this contention. Its first argument is that no settlement agreement existed between it and the Union. Secondly, it argues that if we find a settlement agreement did exist, such an agreement is void.

Pursuant to section 3 — 110 of the Administrative Review Law, “[t]he findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct” (Ill. Rev. Stat. 1985, ch. 110, par. 3 — 110), and must be affirmed unless they are against the manifest weight of the evidence. In order to determine whether a finding is against the manifest weight of the evidence, it must be established that an opposite conclusion is clearly evident. (Meyers v. Illinois Department of Public Aid (1983), 114 Ill. App. 3d 288, 291.) Accordingly, it is not the function of the reviewing court to reweigh the evidence or judge its probative value; rather, its function is only to determine whether the agency’s decision is supported by the evidence. Caldbeck v. Chicago Park District (1981), 97 Ill. App. 3d 452, 458.

Concerning the City’s first contention, it argues that under general contract principles the Union did not accept the terms of the November 5 proposal. First, the Union objected to the term providing for severance pay to the ex-foreman, and secondly, the Union did not accept the term requiring it to withdraw the unfair labor practice charge No. S — CA—89. Therefore, the City claims the document entitled “Parties Settlement Agreement” was a counteroffer not accepted by the City. The City also claims Cetwinski lacked the authority to enter into an agreement on behalf of the City.

There is authority which holds that “traditional laws of contract govern the offer and acceptance of labor agreements.” (National Labor Relations Board v. Donkin’s Inn, Inc. (9th Cir. 1976), 532 F.2d 138, 141, cert. denied (1976), 429 U.S. 895, 50 L. Ed. 2d 179, 97 S. Ct. 257.) In order to form a contract, there must be an offer and an acceptance, and the acceptance must strictly comply with the terms set forth in the offer. (Loeb v. Gray (1985), 131 Ill. App. 3d 793, 799.) An acceptance conditioned on the modification of terms constitutes a rejection of the original offer and becomes a counteroffer that the original offeror must accept before a valid contract is established. Loeb, 131 Ill. App. 3d at 799; Ebert v. Dr. Scholls Foot Comfort Shops, Inc. (1985), 137 Ill. App. 3d 550, 558.

“In the context of labor disputes, *** the technical question of whether a contract was accepted in the traditional sense is perhaps less vital than it otherwise would be. Rather a more crucial inquiry is whether the two sides have reached an ‘agreement,’ even though that ‘agreement’ might fall short of the technical requirements of an accepted contract.” Donkin’s Inn, Inc., 532 F.2d at 141.

Initially, we must address City attorney Cetwinski’s authority to enter into a final agreement on behalf of the City. The existence of an agency relationship, its nature and extent, may be determined from circumstantial evidence, with reference to the situation of the parties, their acts and other relevant circumstances. (Tomaso v. Plum Grove Bank (1985), 130 Ill. App. 3d 18, 23.) “Apparent authority results when the principal does something or permits the agent to do something which reasonably leads another to believe that the agent had the authority he purported to have ***.” National Labor Relations Board, v. Donkin’s Inn, Inc. (9th Cir. 1976), 532 F.2d 138, 141.

The record reveals that Cetwinski filed an appearance on behalf of the City and responded to the unfair labor practice charges in both No. S — CA—89 and No. S — CA—103. He was also present at the November 5 meeting with the mayor, aldermen, and the Union representatives where the initial settlement terms were proposed. Thereafter, he and Newman met several times to further negotiate the settlement. Finally, Cetwinski, on November 20, initialed the changes proposed by the Union and signed the other agreement. These acts evidence at least apparent authority, if not actual authority.

Even if Cetwinski exceeded his authority by signing the document, the record reveals that the City ratified the agreement. “Ratification occurs upon the express or implied adoption of the acts of another by one for whom the other assumes to be acting, even without authority; and the consequences are the same as if the acts ratified had been authorized in the beginning.” (Mateyka v. Schroeder (1987), 152 Ill. App. 3d 854, 866.) The principal can ratify the actions of his agent by not repudiating such acts once he has knowledge of them or by accepting the benefits of those acts. There is no evidence in the record that the City took any steps to repudiate Cetwinski for signing the agreement.

More importantly, the City’s knowledge of the agreement is clearly evident from its compliance with the terms of the agreement. It reinstated the particular employees and accepted their documentation regarding unemployment compensation during the pendency of the charges as required by the agreement. Further, the City was aware that the Union had withdrawn its charge in No. S — CA—103 and had amended its charge in No. S — CA—89. It is for these reasons the Union properly believed it had entered into a binding settlement agreement with the City. However, the City failed to comply with the terms of the settlement agreement, which is the basis of the Board’s finding that it violated the Act.

Given the fact that Cetwinski did have the authority to enter into the agreement on behalf of the City, we must find that a binding agreement existed between the parties.

The City further argues that even if there had been an agreement between the parties, it is not bound by the agreement because it is null and void. It claims that the agreement is void since it was not approved by a majority vote of the city council as required by the Illinois Municipal Code (Code) (Ill. Rev. Stat. 1985, ch. 24, par. 3 — 11— 17). The City also claims that the agreement is void because it did not appropriate any funds to cover the backpay obligation. It cites section 8 — 1—7 of the Code, which provides:

“No contract shall be made by the corporate authorities, or by any committee or member thereof, and no expense shall be incurred by any of the officers or departments of any municipality, whether the object of the expenditure has been ordered by the corporate authorities or not, unless an appropriation has been previously made concerning that contract or expense. Any contract made, or any expense otherwise incurred, in violation of the provisions of this section shall be null and void as to the municipality, and no money belonging thereto shall be paid on account thereof.” (Ill. Rev. Stat. 1985, ch. 24, par. 8 — 1—7.)

The record shows that the parties stipulated that the settlement was entered into without a prior appropriation of funds to cover the back-pay obligation. For this reason, the City argues, the agreement is null and void.

Pursuant to section 6 of article VII of the Illinois Constitution, the City of Burbank is a home rule unit. A home rule unit may supersede a statutory provision, such as the Code, enacted prior to the effective date of the Illinois Constitution. Accordingly, the Illinois Supreme Court has held that home rule units are not bound by the requirements of the Illinois Municipal Code. (Stryker v. Village of Oak Park (1976), 62 Ill. 2d 523, 527, cert. denied (1976), 429 U.S. 832, 50 L. Ed. 2d 97, 97 S. Ct. 95, reh’g denied (1976), 429 U.S. 988, 50 L. Ed. 2d 600, 97 S. Ct. 511; Clarke v. Village of Arlington Heights (1974), 57 Ill. 2d 50, 53-54.) Thus, the City may exercise its home rule authority by approving the settlement agreement without a majority vote of the city council or entering into a contract without prior appropriation.

Nevertheless, the Board found, and we agree, that the City had the opportunity to cure the appropriation deficiency by appropriating the necessary funds on March 26, 1986, when it passed its 1986 appropriation ordinance. The City’s failure to pass such an ordinance, subsequent to accepting all the benefits of the settlement agreement, evidences its bad faith in entering into the agreement.

Section 10(a) of the Act provides:

“It shall be an unfair labor practice for an employer or its agents:
(1) to interfere with, restrain or coerce public employees in the exercise of the rights guaranteed in this Act or to dominate or interfere with the formation, existence or administration of any labor organization ***;
(2) to discriminate in regard to hire or tenure of employment *** in order to encourage or discourage membership in or other support for any labor organization. ***•;
(3) to discharge or otherwise discriminate against a public employee because he has signed or filed an affidavit, petition or charge or provided any information or testimony under this Act; or
(4) to refuse to bargain collectively in good faith with a labor organization which is the exclusive representative of public employees in an appropriate unit, including, but not limited to, the discussing of grievances with the exclusive representative; ***.” (Ill. Rev. Stat. 1985, ch. 48, pars. 1610(a)(1) through (aX4).)

We find that the breach of the settlement agreement or the bad-faith negotiation of the settlement agreement by the City constitutes a violation of sections 10(a)(1) and 10(aX4) of the Act. We also find that the City’s refusal to comply with the settlement agreement violates sections 10(aX2) and 10(aX3) of the Act. Hence, the Board’s decision that the City committed unfair labor practices is not against the manifest weight of the evidence.

The City next contends that the Board improperly awarded attorney fees. It argues that the Act does not provide for the award of such fees as a remedy for a violation of the Act.

The Board found that the City had engaged in frivolous litigation and thereby forced the Union to spend considerable time and money in this case. The Board stated that merely forcing the City to comply with the agreement would not put the Union in the position it would have been absent the unfair labor practice charge, i.e., make it whole. Therefore, the Board concluded that in order to maintain the integrity of the administrative process and to make the Union whole, it must affirm the hearing officer’s award of reasonable attorney fees.

The Board does not cite, neither do we find, any authority granting the Board authority to award attorney fees. The hearing officer originally reviewed the Act’s legislative history for a source of authority; however, he failed to find a basis for awarding fees. He, therefore, relied on the only two National Labor Relations Board cases authorizing the award. The Board states that its power to award attorney fees is derived from section 11(c) of the Act, which provides in relevant part:

“If, upon a preponderance of the evidence taken, the Board is of the opinion that any person named in the charge has engaged in or is engaging in an unfair labor practice, then it shall state its findings of fact and shall issue and cause to be served upon the person an order requiring him to cease and desist from the unfair labor practice, and to take such affirmative action, including reinstatement of public employees with or without back pay, as will effectuate the policies of this Act.” (Ill. Rev. Stat. 1985, ch. 48, par. 1611(c).)

The Board also cites several cases from other States for its interpretation of this remedial provision. Specifically, the Board cites to a Florida case, Firefighters of Boca Raton v. City of Boca Raton, 12 Pub. Employee Rep. (Fla.) par. 17205 (1986). However, unlike section 11(c) of the Act, Florida’s statute expressly authorizes attorney fee awards to be assessed against the nonprevailing party. Fla. Stat. Ann. §760.10(13) (West 1986).

We must find that the Pennsylvania decision cited by the dissenting Board member is more akin to the present case. The Pennsylvania statute states, in pertinent part, that “the board *** shall *** issue *** an order requiring such person to cease and desist from such unfair labor practice, and to take such reasonable affirmative action, including reinstatement of employees *** with or without back pay, as will effectuate the policies of the act.” (Pa. Stat. Ann. tit. 43, §211.8(c) (Purdon 1964).) The Pennsylvania Board specifically held that the above provision was remedial and not punitive. Pennsylvania Department of Education, 15 Pub. Employee Rep. (Pa.) par. 15206, at 472 (Pennsylvania Employee Relations Board 1984).

The Act and rules promulgated thereunder grant the party charged the right to participate in proceedings conducted by the Board. (Ill. Rev. Stat. 1985, ch. 48, par. 1611(a); 80 Ill. Adm. Code §1220.20 — 60 (1986).) Thus, we find that section 11(c) of the Act does not authorize the Board to award attorney fees.

For the foregoing reasons, the decision of the Board with respect to its finding that the City committed unfair labor practices in violation of the Act is affirmed, and its award of attorney fees is reversed.

Affirmed in part and reversed in part.

McMORROW and LINN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McMORROW

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BAGGETT, Defendant-Appellant.
    First District (4th Division)
    No. 1-87-2444
    Opinion filed June 29, 1989.

      Michael Pelletier and Martin Carlson, both of State Appellate Defender’s Office, and Cotton, Watt, Jones & King, both of Chicago (Irving M. King, of counsel), for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund and Andrea Muchin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court:

Following a jury trial, defendant was convicted of aggravated criminal sexual assault, criminal sexual assault and aggravated criminal sexual abuse. The trial court ruled that the conviction of criminal sexual assault merged with the conviction of aggravated criminal sexual assault and sentenced defendant to concurrent terms of 15 years and 7 years for aggravated criminal sexual assault and abuse, respectively. On appeal, defendant contends that (1) the erroneous admission of prejudicial hearsay testimony concerning the details of a complaint made by the complaining witness constituted reversible error; and (2) he was denied a fair trial by the trial court’s refusal to grant him a continuance to locate and present certain character witnesses.

At trial, Sherita Tigue (Sherita), the mother of the complainant (hereafter T.C.) testified that defendant is T.C.’s father and that between September 1984 and January 1985, defendant’s mother, Mary Baggett, babysat T.C. and Sherita’s younger son two or three weekends each month at her (Mrs. Baggett’s) apartment in a senior citizens’ apartment complex. Defendant did not live with his mother but visited her frequently. She stopped taking her children to Mrs. Baggett’s home in January 1985 at the request of T.C., who gave as her reason for not wanting to go there that defendant was “not really a father to her.” In May 1986, Sherita was contacted by Patrice Keleher (Keleher), a social worker at T.C.’s elementary school. Shortly thereafter, she spoke to T.C., who told her that defendant had been “fondling and petting her and had violated her by entering her with his penis.” T.C. described additional details of what had occurred in subsequent conversations with Sherita.

On cross-examination Sherita stated that prior to May 1986, T.C. had said nothing to her regarding sexual abuse by defendant. She described T.C. as a very quiet and passive child and had not noticed anything unusual about her between late 1984 and early 1985.

At trial, T.C. testified that in the latter part of 1984, she and her younger brother spent almost every weekend at defendant’s mother’s apartment in a senior citizen residential complex. Defendant lived there “on an off-and-on basis.” One evening near the day of her tenth birthday in September 1984, defendant came to the apartment after her grandmother and brother had gone to sleep in her grandmother’s bedroom. She buzzed defendant in through the intercom system and then unlocked the apartment door for him to enter. They watched an old cowboy movie on television for about an hour. He then arose from the couch where he had been sitting, came to where she was sitting on a cot and told her to rub him. She was wearing a nightgown and underwear; he was wearing a security guard’s uniform. When defendant pulled down his pants, she asked him if “he would go to the bathroom,” to which defendant responded by laughing. He then pulled down his underwear, took her hand, and put it on his penis. He also placed his hand under her nightgown, pulled down her underwear and began to “feel around [her] vagina” with his hand. She simultaneously hit at him and attempted, unsuccessfully, to pull up her underclothes. He then put his penis inside her vagina, which caused her pain. She tried to scream but he put his hand over her mouth. Defendant also placed his hands under her nightgown and touched her breasts. He removed his penis from her vagina after “about a minute” and told her that if she told anyone what had happened she “would be in big trouble.” The same events occurred on four or five subsequent occasions at her grandmother’s apartment. She did not mention the incidents to anyone, but in January 1985 she told her mother she did not want to go to her grandmother’s apartment anymore because “he [defendant] wasn’t being a father to [her].” She gave this explanation because she was afraid to tell her mother the truth.

In May 1986, T.C. saw a movie on television dealing with the sexual abuse of a girl by her uncle. In a conversation with her school friends Maya, Frances, Jean and Jenny about the movie, she told them that she knew someone who had been sexually abused. In a later conversation, Maya asked her if she was that person, to which she responded that she was. She thereafter spoke to the school social worker and her mother about what had happened and was also examined by a doctor.

On cross-examination, T.C. acknowledged that at a preliminary hearing she testified to seven or eight incidents of sexual contact with defendant. She stated that “the lady who was working with her” told her to add up how many times defendant “did it to [her] and the times he was rubbing on [her]”; but, in response to defense counsel’s question, she stated that “it happened five or six times.” She denied that she told the school social worker that there was only one incident, stating that she was merely describing one occasion that it happened. She stopped into the office of the school nurse at lunch two or three times a week to talk but never mentioned anything about any incidents of sexual abuse. She acknowledged that she told no one of these incidents between September 1984 and May 1986, when she told her friends. She met with Keleher for approximately 30 minutes every Friday after their initial conversation in early May 1986 until the end of the school year. She stated that her mother and defendant did not get along and that her mother did not like defendant.

Maya Garcia testified that one afternoon in May 1986 she and her friends, T.C., Jennifer and Jean were talking at school about a movie shown on television about a girl who was molested by her uncle. When they asked T.C. whether she had been molested, she responded that she had a friend who had been molested. Maya and Jean then had a discussion in which they both expressed their suspicions that T.C. was referring to herself since she had not mentioned the name of the friend. They approached T.C. and asked if she had been the person who was molested and she said “yes,” she had been molested by her father. The four girls then went to the school social worker’s office and informed Keleher of what T.C. had reported.

Keleher testified that at about 2:30 p.m. on May 2, 1986, T.C., Maya, Jennifer and Jean came to her office. The girls informed her that they had something important to tell her and then proceeded to relate their conversation in art class in which T.C. told them she had been sexually abused. She asked T.C. whether she felt comfortable talking about the details, and asked who had abused her, how long ago and where it had taken place. T.C. told her that she had been abused by defendant in a senior citizen’s home where her grandmother lived. She and T.C. had additional conversations about the abuse on May 9 and May 16. On May 20, Keleher contacted the Department of Children and Family Services (DCFS) and, the following day, made a formal report of what T.C. had told her in their conversations.

On cross-examination, Keleher identified a document consisting of notes she had taken about T.C.’s case in which she (Keleher) stated that T.C. “may have been sexually abused.” In their conversation on May 2, T.C. mentioned only one incident of abuse. Keleher did not ask nor did T.C. tell her how many times such abuse had occurred. In their subsequent meetings, she encouraged T.C. to discuss the sexual abuse with her. T.C. never mentioned hitting her father or that he prevented her from screaming during the incident she described. She acknowledged waiting 18 days to notify DCFS, explaining that because she established that T.C. had had no contact with defendant for l1 k to 2 years, she considered T.C. to be in a safe situation; that because sexual abuse charges can be very threatening to a family and the child involved, it is necessary to compile sufficient information before filing a formal report; and that it is her policy in sexual abuse cases to give the child adequate time to feel comfortable discussing the abuse with her before speaking to a stranger.

On redirect examination, the prosecutor asked Keleher if T.C. had told her that defendant touched her breasts, touched her vagina, had penetrated her by sexual intercourse, and that she experienced pain and had tried to push him away. Keleher responded in the affirmative to each question. On re-cross-examination, Keleher stated that T.C. had related these matters to her during their third meeting, on May 16, 1986.

Doctor Carl Turner testified that he performed both a general physical and pelvic examination of T.C. on August 2, 1986. T.C. was alert and cooperative with no signs of acute distress, physical injuries or abnormalities. T.C. was unable to cooperate in an internal, speculum examination, but from his visual and single-digit vaginal examination it appeared that T.C.’s hymen was separated, which was suggestive of some type of penetration.

On cross-examination Dr. Turner stated that although he was reasonably certain T.C.’s vagina had been penetrated, he could not determine in what manner penetration had occurred. He did not, however, believe that the separation was caused by an accidental injury because any such injury would have to have been substantial to separate the hymen, and there was no evidence of a healed injury as would normally be visible if one had occurred.

Detective Richard Curley testified that he was assigned to this case in late July 1986. He interviewed T.C. and her mother, two DCFS workers, T.C.’s friends Maya and Jean, the assistant school principal, Keleher and, subsequently, defendant’s mother. His attempts to locate defendant were unsuccessful. On August 12, 1986, he contacted the State’s Attorney’s office after which a warrant was issued for defendant’s arrest. Curley stated that the following day, approximately one hour after he spoke with defendant’s mother, defendant came to the police station and surrendered himself.

Defendant testified that he worked as a maintenance man in a residential building and as a helper in his godmother’s store and was involved in an employment dispute with a railroad for which he formerly worked. He was not employed during September 1984 and could not specifically remember his whereabouts on or about the weekend of September 26, 1984; but he surmised that he was at his girlfriend’s home. Prior to T.C.’s birth, he and Sherita had been engaged to be married but at one point during the pregnancy she attacked him with a knife and cut him across his back and other areas of his body and that, as a result of her conduct, he terminated their relationship. Thereafter, the only contact between them consisted primarily of demands by Sherita for money from him. T.C. did not know that he was her father until she was almost five years old. She and T.C. had a progressively good relationship from the time she was five years old until May 1984 when he lost his job and could no longer provide the weekly child support he had been paying to Sherita. He did not see T.C. after that time because he did not know where she and Sherita were living. His mother babysat for T.C. and her younger brother about one weekend each month and Sherita also went there to collect or borrow money. Defendant denied having any type of sexual contact with T.C. at any time.

Defendant further testified that he first learned that the police were looking for him when he arrived at his mother’s house in the afternoon of August 13, 1986. He called the police station and was told to remain where he was and that someone would return his call. After waiting for approximately 15 minutes, he asked a friend to drive him to the police station where he spoke with Detective Curley.

On cross-examination, defendant stated that he kept a few clothes at his mother’s apartment and, prior to May 1984, he occasionally stayed overnight there. His mother continued to babysit periodically for T.C. and her brother until November 1984, but he (defendant) did not stay at his mother’s house or see T.C. after May 1984 when he lost his job and his car became inoperable. In response to the prosecutor’s questions, defendant denied having ever touched T.C.’s vagina, put her hand on his penis, examined her vagina, fondled her breasts or slept in the same bed with her. He also denied telling Detective Curley that at one time he and T.C. had been laying in bed together at his mother’s house when she began rubbing against him and told him that a “boy had laid on top of her, but nothing happened” and that he then pushed aside her underwear and examined her vagina to see if anything was wrong. Rather, he stated, he told Curley that at one time, possibly in 1982, he felt her underwear when she complained of being wet; and that on another occasion, when she spent the afternoon at his mother’s apartment because of a school strike in October 1982, she rubbed her leg against him while laying next to him on the couch listening to him read her homework to her.

In rebuttal, Detective Curley testified that after informing of the allegations against him, defendant related an incident which occurred at his mother’s house. According to Curley, defendant stated that he and T.C. were laying in bed together; that she rubbed against him; that when he asked her what she was doing, she told him a boy had lain on top of her; and that he thereupon pushed aside her underwear and examined her vagina. On cross-examination, Curley acknowledged that both before and after describing this incident, defendant denied ever having any sexual relations with T.C.; and Curley did not recall whether his questions or defendant’s responses regarding this incident were directed to the period between September 1984 and January 1985.

The trial was recessed until the following morning, at which time the trial judge advised defendant that he had reconsidered and decided to reverse his earlier ruling denying defendant’s motion to present character witnesses on the ground that defendant’s reputation for truth and veracity had not been placed in issue by the State and his reputation for honesty had no relation to the offenses charged. Defendant informed the court that on the basis of the court’s ruling the day before, he had called those witnesses and can-celled their scheduled appearances, but that he would attempt to contact them and arrange for their appearance.

Following a morning recess, Reverend John W. Petty testified that he was the pastor of a Baptist church and had known defendant for 11 or 12 years. According to Reverend Petty, defendant had a reputation within the church congregation of being a truthful and honest person.

Following a lunch recess defense counsel informed the court that he had been unable to contact the three other witnesses he had intended to call and asked for a one-day continuance to make them available. The court denied the motion, but when defense counsel informed the court that a long-term acquaintance of defendant’s was in another courtroom, the trial judge allowed counsel three minutes to bring her to court. That witness, Estella Sims, testified that she had known defendant for 15 or 16 years and that he had a reputation in the community as being a truthful and honest person.

Following closing arguments, the jury found defendant guilty of aggravated criminal sexual assault, criminal sexual assault and aggravated criminal sexual abuse. Defendant’s motion for a new trial was denied and, after a hearing, the court ruled that the conviction of criminal sexual assault merged with that of aggravated criminal sexual assault and sentenced defendant to concurrent terms of 15 years for aggravated criminal sexual assault and seven years for aggravated criminal sexual abuse. This appeal followed.

Opinion

Defendant contends that the erroneous admission into evidence of the inadmissible hearsay testimony of three State witnesses concerning the details of T.C.’s report of sexual assault by him constituted reversible error. Defendant does not dispute that the legislature enacted a statutory exception to the hearsay rule in section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 10) (the Code), providing:

“In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Section 12 — 13 through 12 — 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child that he or she complained of such act to another; and
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child’s testimony.”

Defendant argues, however, that the testimony of T.C.’s mother, her friend, Maya, and social worker Keleher greatly exceeded the scope of section 115 — 10 and that the prejudice resulting therefrom entitles him to a new trial.

As a general rule, the testimony of a witness cannot be bolstered by evidence that she made similar statements out of court. However, exceptions have been long recognized at common law in cases involving sexual offenses. Under the first exception, commonly known as the “prompt complaint,” the complainant was allowed to testify that she made a prompt complaint of the incident. (People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25.) The rationale underlying the exception is that it is entirely natural that the victim of a forcible sexual assault would speak out regarding it and, conversely, that the failure to do so would, in effect, be evidence that the alleged incident had not occurred. (People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25.) While the exception imposes no fixed time limits within which the complaint should be made to qualify as “prompt,” it does require that the complaint was made without any inconsistent or unexplained delay, and that it was voluntary and spontaneous rather than the product of a series of questions. (People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25.) Courts reasoned that since the sole purpose of the exception was to rebut any presumption which might arise from the complainant’s silence, only the fact of the complaint was admissible; neither the details of the complaint nor testimony concerning the identity of the perpetrator named in the complaint were allowable. People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25; People v. Evans (1988), 173 Ill. App. 3d 186, 527 N.E.2d 448.

Similarly, common law recognized and applied an exception known as the “corroborative complaint” exception to the hearsay rule in rape cases. The common law corroborative complaint exception allowed a person to whom a timely complaint of rape was made to testify to that fact. As under the “prompt complaint” exception, the corroborative complaint exception did not permit a recitation of the details of the rape complaint (People v. Damen (1963), 28 Ill. 2d 464, 193 N.E.2d 25). Moreover, it did not apply to cases of indecent liberties with children. See People v. Romano (1923), 306 Ill. 502, 138 N.E.2d 169; People v. Hernandez (1980), 88 Ill. App. 3d 698, 412 N.E.2d 572; People v. Buckley (1976), 43 Ill. App. 3d 53, 356 N.E.2d 1113.

In January 1983, the legislature enacted section 115 — 10 as a statutory exception to the hearsay rule applicable to cases charging indecent liberties against children. (Ill. Rev. Stat. 1983, ch. 38, par. 115— 10.) Thereafter, the provisions encompassing the indecent liberties offense (Ill. Rev. Stat. 1961, ch. 38, par. 11 — 4), along with rape and other sexual offenses, were repealed and recodified as part of new sections 12 — 13 through 12 — 16 of the Code (Ill. Rev. Stat., 1984 Supp., ch. 38, pars. 12 — 13 through 12 — 16). The new sections comprise a comprehensive set of sex crimes characterized by bodily harm and include offenses against both children and adults. Section 115— 10, as quoted above, was amended at approximately the same time to reflect its applicability to the new provisions.

As explained by the sponsor of the bill which was ultimately enacted as section 115 — 10.

“It provides that, in a prosecution for a sexual act on a child *** the child may testify that he or she complained of such act, and the person who heard the complaint may testify that it was made, in order to corroborate the child’s testimony. In other words, the person who corroborates [the complainant’s] testimony does not talk about the act itself. All he talks about is the fact that the child, in fact, did make a complaint, and that would be *** corroboration of the child’s testimony.”

Consistent therewith, Illinois jurisprudence has held that section 115 — 10 limits corroborative complaint testimony to the fact that a complaint was made, and that it does not expand the prompt complaint exception so as to permit others apart from the complainant to testify as to the details of the incident about which she complained. (People v. Laremont (1988), 174 Ill. App. 3d 201, 528 N.E.2d 249; People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137.) Although it has been recognized that, often, corroborative complaint testimony will necessarily include some detail in order to effectively corroborate the fact of the complaint and to identify the incident as the one before the court (People v. Powell (1985), 138 Ill. App. 3d 150, 485 N.E.2d 560), courts have consistently held that the admission of testimony which contains unnecessarily excessive details of the complaint or which identifies the name of the alleged perpetrator is error. People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376; People v. Jackson (1987), 165 Ill. App. 3d 665, 520 N.E.2d 640; People v. Sexton (1987), 162 Ill. App. 3d 607, 515 N.E.2d 1359; People v. Johnson (1986), 149 Ill. App. 3d 128, 500 N.E.2d 657; People v. Salas (1985), 138 Ill. App. 3d 48, 485 N.E.2d 596.

The admission of unnecessary or impermissible detail may be deemed harmless error when it is substantially corroborated by the testimony of the complainant who is present in court and available for cross-examination or by other competent evidence. (E.g., People v. Laremont (1988), 174 Ill. App. 3d 201, 528 N.E.2d 249; People v. Jackson (1987), 165 Ill. App. 3d 665, 680, 520 N.E.2d 640; People v. Powell (1985), 138 Ill. App. 3d 150, 485 N.E.2d 560.) However, in the absence of substantial corroborating evidence, a danger is created that the repetition of the complainant’s version of the incident will prejudicially bolster the child’s testimony (People v. Laremont (1988), 174 Ill. App. 3d 201, 528 N.E.2d 249) and that a guilty verdict may be the result of the jury hearing the child’s version of the alleged incident more than once (People v. Johnson (1986), 149 Ill. App. 3d 128, 500 N.E.2d 657; see also People v. Andino (1981), 99 Ill. App. 3d 952, 425 N.E.2d 1333; People v. Evans (1988), 173 Ill. App. 3d 186, 527 N.E.2d 448).

Here, in addition to T.C., the State presented three witnesses whose testimony was being offered, according to the prosecutor in his opening statement, to corroborate that T.C. had complained of sexual abuse. However, each of the witnesses testified not only to the fact of the complaint but also to the substance of it. As noted earlier, Maya Garcia testified that T.C. told her and two other classmates that she had been molested by defendant. Sherita Tigue testified that after being contacted by Keleher, she spoke with T.C., and then described the various acts of sexual molestation and intercourse recounted to her by T.C. and testified that T.C. had related “more of the details of what had occurred” in subsequent conversations. Patrice Keleher testified that over the course of several conversations T.C. told her that defendant had touched her breasts and vagina, that he had sexual intercourse with her, that the penetration was painful and that she had resisted him. The inclusion of explicit details of the conduct constituting the offense and the repeated identification of defendant went well beyond what was necessary to corroborate that a complaint was made and clearly exceeded the bounds of the corroborative complaint exception embodied in section 115 — 10.

Moreover, we are unable to conclude that the inadmissible evidence was so substantially corroborated by other evidence as to render the error in its admission harmless beyond a reasonable doubt. Omitting the inadmissible portions, the testimony of Sherita, Maya and Keleher established that T.C. did not complain to anyone of sexual abuse until May 2, 1986, approximately V-k years after its alleged occurrence and then only in response to direct questions by her friends, following a movie they had recently viewed dealing with the sexual abuse of a young girl by a male relative, as to whether she had ever been sexually abused. When first questioned by her classmates, T.C. states that a friend of hers had been molested, and it was only after further inquiries by her friends that she later stated that it was she who had been abused. The three girls then accompanied her to Keleher’s office and reported that T.C. had been sexually abused. Keleher acknowledged that in their first conversation on May 2, as well as in subsequent meetings, she asked T.C. numerous questions concerning when and where the abuse had occurred and the identity of the offender and that she had encouraged T.C. to recount the details of the acts perpetrated upon her. Keleher also acknowledged that T.C. mentioned only one incident of sexual abuse on May 2 and that it was not until their discussion on May 16 that T.C. described the alleged acts which constituted sexual assault and abuse. According to T.C.’s mother, Sherita, she first learned of the alleged abuse from Keleher and thereafter discussed the subject with T.C. Sherita also testified that in January 1985, when she asked T.C. the reason for her request that she no longer spend weekends at her grandmother’s apartment, T.C. stated only that defendant “was not really a father to [her]”; and that she noticed nothing unusual about T.C. at that time.

Although a lack of promptness or spontaneity in the making of a complaint does not render corroborative complaint testimony inadmissible, they are factors which affect the credibility of the complainant and the weight to be given the evidence. (People v. Goebel (1987), 161 Ill. App. 3d 113, 514 N.E.2d 60.) The case at bar, as in most cases of sexual assault, turned largely on the credibility of the complainant and the defendant, respectively. Defendant unequivocally denied committing the offenses. Given the conflicts in the testimony of T.C. and defendant in this case, the issue of credibility was of vital importance (People v. Sexton (1987), 162 Ill. App. 3d 607, 515 N.E.2d 1359; People v. Johnson (1986), 149 Ill. App. 3d 128, 500 N.E.2d 657). We are unable to gauge the extent to which the jury was influenced by the erroneous admission of the testimony detailing the acts described by T.C. in her conversations with her friends, her mother and the school social worker. However, we do not find T.C.’s testimony so clear and convincing as to the numerous incidents of sexual assault which allegedly occurred in the home of her grandmother while her grandmother and brother were in another room, or her explanation for her failure to report them until approximately V-k years later and then only in response to questioning, so as to be able to conclude that the inadmissible corroborative complaint testimony did not have the effect of improperly bolstering TC.’s testimony in the minds of the jurors.

We are mindful of, but not persuaded otherwise by, the testimony of the physician who examined T.C. Although he opined that the separation of her hymen was likely the result of penetration, we note that the examination was performed nearly two years after the incident which purportedly caused the separation; that the doctor, based on his limited examination of T.C. acknowledged that it could not be determined when or in what manner penetration had occurred.

In summary, we conclude that the testimony concerning T.C.’s report of sexual assault and abuse erroneously exceeded the bounds of the corroborative complaint exception of section 115 — 10 and that because the testimony lacked sufficient evidentiary corroboration, its admission created a strong possibility of prejudice to defendant and cannot be said to have been harmless error beyond a reasonable doubt.

In view of our decision that this cause must be reversed and remanded for a new trial, we need not address defendant’s contention that the trial court erred in denying his motion for a continuance to contact and reschedule the appearances of reputation witnesses after the court’s reversal of its prior ruling that their testimony would not be allowed.

For the reasons stated, defendant’s convictions for aggravated criminal sexual assault and aggravated sexual abuse are reversed and this cause is remanded for a new trial.

Reversed and remanded.

LINN and JOHNSON, JJ., concur.


text:
    ROBERT W. LAGERSTROM, Plaintiff-Appellant, v. JAMES F. DUPRE, Defendant-Appellee.
    First District (4th Division)
    No. 1-87-2964
    Opinion filed June 29, 1989.
    Walter M. Ketchum, Ltd., of Chicago (Paul E. Peldyak, of counsel), for appellant.
    Wildman, Harrold, Allen & Dixon, of Chicago (Joseph P. Switzer, of counsel), for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff Robert W. Lagerstrom (plaintiff) filed suit against defendant James F. Dupre, M.D. (defendant), for work-related injuries plaintiff sustained after defendant rendered an allegedly erroneous medical opinion,- to the workers’ compensation insurance carrier of plaintiff’s employer, that plaintiff was fit to return to work. The trial court entered summary judgment for defendant, and plaintiff appeals. Because we conclude that plaintiff’s exclusive remedy against defendant is found in the Workers’ Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), we affirm.

The following facts stand uncontradicted in the parties’ pleadings and documents submitted with respect to defendant’s summary judgment motion. Plaintiff sustained a back injury at work in January 1983 and for a time received workers’ compensation benefits therefor. Plaintiff’s injury was treated by physicians whom he selected and retained on his own behalf.

In July 1984, plaintiff was seen by defendant at the request of the workers’ compensation insurance carrier retained by plaintiff’s employer. The purpose of this examination was to obtain the defendant’s medical opinion with respect to plaintiff’s fitness to return to work. Based upon his examination of plaintiff, defendant reported to the insurance carrier that plaintiff was healthy and could return to work without restriction in his work activities. Plaintiff understood at the time of the examination that defendant’s role was not to treat plaintiff’s injuries, but to report to the insurance carrier regarding plaintiff’s fitness to work. Defendant was aware that his report could be used by the workers’ compensation insurance carrier in connection with plaintiff’s claim for workers’ compensation benefits.

The insurance carrier terminated plaintiff’s workers’ compensation benefits in July 1984. However, based on the advice of his treating physicians, plaintiff did not return to work in July 1984. In January 1985, defendant again examined plaintiff in response to the insurance carrier’s request and reconfirmed his opinion that plaintiff was fit to work without restriction. Plaintiff did not feel capable of returning to work, however, and his treating physicians advised against his return.

Because of financial hardship, plaintiff returned to employment in April 1985. Following his resumption of work activities, plaintiff sustained additional job-related injuries. None of these subsequent injuries was compensated by the workers’ compensation insurance carrier. Plaintiff’s work activities have been substantially curtailed, and he is no longer offered the opportunity to work overtime.

Plaintiff filed a three-count complaint against defendant to recover damages for the personal injuries he suffered following his return to work. Count I of the complaint alleged the existence of a physician-patient relationship between the plaintiff and the defendant, and sought recovery based on defendant’s alleged medical malpractice for having negligently recommended that plaintiff return to work. Count II acknowledged that defendant acted only as an examining physician with respect to plaintiff’s injuries, and alleged that defendant breached a duty to plaintiff to exercise ordinary care in the preparation and submission of the medical evaluation report. Count III alleged that defendant’s actions amounted to wilful and wanton misconduct and requested punitive damages. Defendant answered the complaint and later filed a motion for summary judgment. Following briefing and argument, the trial court allowed defendant’s motion and entered judgment for defendant. Plaintiff appeals.

We determine that the trial court’s summary judgment was properly entered in favor of defendant. The Workers’ Compensation Act provides an exclusive remedy for plaintiff to attempt to recover damages from defendant for plaintiff’s personal injuries following his return to work. The Act states in pertinent part that “[n]o common law or statutory right to recover damages from the employer, his insurer *** or the agents or employees of any of them for injury *** sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act.” Ill. Rev. Stat. 1985, ch. 48, par. 138.5(a).

The Illinois Supreme Court has held that a physician who is retained by a workers’ compensation insurance carrier to examine the fitness of a claimant is deemed an agent of the insurance carrier. (Keystone Steel & Wire Co. v. Industrial Comm’n (1969), 42 Ill. 2d 273, 246 N.E.2d 228; Nollau Nurseries, Inc. v. Industrial Comm’n (1965), 32 Ill. 2d 190, 204 N.E.2d 745; Tee-Pak, Inc. v. Industrial Comm’n (1986), 141 Ill. App. 3d 520, 490 N.E.2d 170.) Furthermore, recovery under the Workers’ Compensation Act is permitted for subsequent work-related injuries if these later injuries would not have occurred but for the initial work-related injuries. International Harvester Co. v. Industrial Comm’n (1970), 46 Ill. 2d 238, 263 N.E.2d 49; Lincoln Park Coal & Brick Co. v. Industrial Comm’n (1925), 317 Ill. 302, 138 N.E.2d 79; see also Unger v. Continental Assurance Co. (1985), 107 Ill. 2d 79, 481 N.E.2d 684.

Applying this precedent to the case at bar, defendant was acting as the agent of the insurer of plaintiff’s employer when the defendant examined plaintiff with respect to plaintiff’s fitness to work. As plaintiff was aware, defendant’s examination of plaintiff occurred only to assess plaintiff’s eligibility for continued workers’ compensation benefits for work-related injuries. If plaintiff had not sustained his original on-the-job injuries, plaintiff would not have been later required to submit to defendant’s examination as directed by the workers’ compensation insurance carrier. As a result, plaintiff’s subsequent work-related injuries, allegedly occasioned by defendant’s negligence, would not have occurred but for plaintiff’s initial on-the-job injuries. Accordingly, under section 5(a) of the Workers’ Compensation Act, any alleged negligence on defendant’s part was compensable to plaintiff as a workers’ compensation claim. Because plaintiff’s exclusive remedy against defendant fell within the purview of the Workers’ Compensation Act, the trial court properly entered summary judgment in favor of defendant with respect to plaintiff’s complaint.

In view of this disposition, we need not address the parties’ remaining arguments, and plaintiff’s motion to file a proposed amended complaint is denied.

For the reasons stated, the trial court’s judgment is affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: JUSTICE LINN

text:
    ABNER T. HARRIS, Plaintiff-Appellant and Cross-Appellee, v. PHILIP HANDMACHER et al., Defendants-Appellees and Cross-Appellants (Irving Waxman et al., Defendants-Appellees).
    First District (4th Division)
    No. 1-88-1541
    Opinion filed June 29, 1989.
    Rehearing denied August 2, 1989.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Alvin R. Becker and Timothy M. Kelly, of counsel), for appellant.
    Schwartz, Cooper, Kolb & Gaynor, Chartered, of Chicago (David N. Missner and David O. Lehman, of counsel), for appellees Philip Handmacher and Betty Handmacher.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, Abner Harris, deposited $250,000 in a bank as security for the debts of the Handmacher Company, Inc. Defendants, Philip and Betty Handmacher and Irving and Sandra Waxman, also secured the debts of the corporation. The business subsequently petitioned for bankruptcy and the bank seized Harris’ deposit.

Harris brought an action in the circuit court of Cook County against defendants. Harris sought, inter alia, contribution from all defendants. The trial court granted summary judgment for Harris on his contribution claim and subsequently entered judgment against Irving and Sandra Waxman totalling $67,342 as their contribution.

Harris thereafter claimed that the Waxmans were insolvent and sought a redetermination of Philip Handmacher’s proportionate share. The trial court denied Harris the motion for redetermination and Harris appeals from the denial.

We affirm the order of the trial court.

Background

A

The record contains the following pertinent facts. Beginning in 1959, Harris and Philip Handmacher sold ladies’ clothing and accessones in and around Chicago under the name of “Handmoor.” At first they were co-owners in a partnership, then later became shareholders of the Handmacher Company, Inc. In 1981, Harris sold his shares in the corporation and thereafter served the corporation occasionally as a consultant.

The Handmacher Company, Inc., borrowed money from the Continental Illinois National Bank. By February 1984, the corporation owed the bank $2,773,603. Continental refused to lend more money to the corporation unless it received sufficient collateral. On February 21, 1984, Harris deposited and pledged $250,000 with the bank, which in turn loaned the corporation additional funds.

On August 10, 1984, the corporation filed a petition for bankruptcy. (See 11 U.S.C. §1101 et seq. (1982).) The outstanding balance on the corporation’s debt to the bank was $2,321,751. On that day, the parties made several agreements with the bank regarding the debt. Harris repledged his $250,000; Philip Handmacher and Irving Waxman each signed an unlimited guaranty; Philip and Betty Handmacher pledged their Chicago residence; and Irving and Sandra Wax-man pledged their Highland Park residence.

Beginning November 29, 1984, the bank applied the following capital to the corporate debt: the Harris pledge, the proceeds from the sale of the corporation’s assets, and the proceeds from the sale of the Handmachers’ Chicago residence. The Waxmans made no payment to the bank under either their pledge or Irving’s guaranty.

B

Harris filed a two-count complaint against defendants on December 14, 1984. In count I, Harris alleged that he and defendants are either coguarantors or copledgers of the debts of the corporation, and that he paid more than his proportionate share of the common debt, as compared to that of defendants. In count II, Harris sought reimbursement solely from Philip Handmacher, based on Handmacher’s alleged oral promise to repay Harris the amount of his pledge.

On November 26, 1986, Harris moved for summary judgment against the Waxmans on count I of the complaint, which the trial court granted on March 30, 1987. On April 8, Harris filed another motion for summary judgment on count I, this time against the Handmachers. On July 17, the trial court granted Harris summary judgment against all defendants. Also in the judgment, the trial court ruled that it would determine the relative percentages of contribution as of August 10, 1984, and that the contribution would be based on a debt of $2,321,751.

On August 19, 1987, the trial court determined the actual amounts of defendants’ contribution to Harris. The court entered judgment against Sandra Waxman in the amount of $17,982, and Irving Waxman in the amount of $49,360. The trial court found that Philip and Betty Handmacher had paid their proportionate shares; Harris, therefore, was not entitled to contribution from either of them. The court made no special findings pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

On March 3, 1988, Harris filed a motion to redetermine Philip Handmacher’s contribution. Harris alleged that the Waxmans were insolvent. He included with his motion an affidavit by Irving and Sandra Waxman purporting to establish a prima facie case of their insolvency. He further alleged that Betty Handmacher was a pledger rather than a guarantor, and that she had paid the full amount of her pledge. Philip Handmacher, however, was a guarantor. Therefore, his proportionate share of contribution should be recalculated as if the Waxmans did not participate.

Handmacher contested Harris’ motion to redetermine his (Handmacher’s) contribution. He argued: (1) the court’s August 19, 1987, order was a settlement agreement and, therefore, was binding on all parties, and (2) the doctrine of law of the case, or alternatively, equitable estoppel, prevented Harris from seeking a redetermination.

On April 20, 1988, the trial court denied Harris’ motion for a re-determination of Philip Handmacher’s contribution. The court found that the August 19, 1987, order was not a settlement agreement. Rather, the court established the guidelines which the parties used to calculate their proportionate shares, based on stipulations only as to the dates and amounts of the pertinent obligations. The court also found, however, that the August 19 order contained no contingency for redetermination, and that the Waxmans’ affidavit failed to make a prima facie showing of insolvency. The court lastly found no just reason to delay the enforcement or appeal of its order. (See 107 Ill. 2d R. 304(a).) Harris appeals from the denial of his motion.

Opinion

I

The general principles of contribution that govern between cosureties also govern between coguarantors. (Golsen v. Brand (1874), 75 Ill. 148, 150.) If any one or more of a number of coguarantors of a debt is required to pay the whole or any portion of the debt, the co-guarantors become liable to contribute their proportionate share of the amount paid. A court presumes that all coguarantors should contribute equally to the discharge of any liability occurring by reason of the guaranty. Coguarantors that are insolvent are excluded in determining the proportions. This liability to contribute arises not from any contract, but from equitable principles. The presumption that all guarantors should contribute a proportionate share of the amount paid may be rebutted by parol evidence. McDavid v. McLean (1903), 202 Ill. 354, 357, 66 N.E. 1075, 1076; see generally Restatement of Restitution §85 (1936).

II

Harris contends that the trial court’s August 19, 1987, order, which determined the amounts of defendants’ contribution, was open to revision. We agree. However, we also agree with the trial court that Harris failed to make the requisite showing to warrant the revision.

A

Handmacher again argues that the August 19 order was a settlement agreement. Therefore, the order was conclusive and not subject to revision. The party who relies upon an alleged settlement agreement carries the burden of proving its existence. (Knoll v. Swanson (1968), 92 Ill. App. 2d 398, 403, 234 N.E.2d 543, 546.) In the instant case, the record shows that the parties stipulated only to the dates and amounts of the pertinent obligations. It was the trial court that established the guidelines, based on which the parties calculated their proportionate shares. We conclude that Handmacher failed to carry his burden of proving the existence of the settlement agreement.

Additionally, the August 19 order contained no findings pursuant to Supreme Court Rule 304(a). (107 Ill. 2d R. 304(a).) The rule allows appeals to be taken from judgment as to fewer than all of the parties or claims in a lawsuit if the trial court expressly finds that there is no just reason for delaying the appeal. Further, in the absence of this special finding, such a judgment is not enforceable or appealable and is subject to revision prior to the entry of a judgment adjudicating all of the claims of all of the parties. (107 Ill. 2d R. 304(a).) Our courts have applied Rule 304(a) to multicount complaints as follows:

“[Wjhere a judgment is entered for plaintiffs on one or more but fewer than all the counts in a multicount complaint, but the judgment does not dispose of the other counts, the judgment is not appealable in the absence of an express certification by the trial court that there is no just reason for delaying appeal. [Citation.] Such judgments are, by operation of Rule 304(a), subject to revision before entry of a judgment that does in fact adjudicate all the claims and liabilities of the parties.” Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 120, 382 N.E.2d 1217. 1219-20.

In the instant case, Harris filed a two-count complaint. The August 19, 1987, order adjudicated only count I. Because the order neither disposed of count II, nor contained Rule 304(a) findings, it was not enforceable or appealable and was subject to revision prior to the entry of a judgment resolving all of the claims of all of the parties.

B

Beyond contending that the August 19, 1987, order was open to revision, Harris further contends that the trial court should have revised that order. He argues that he presented sufficient evidence to warrant a redetermination, that evidence being the Waxmans’ affidavit wherein they attest to their insolvency.

As we concluded earlier, the August 19 order was subject to revision prior to entry of a judgment that adjudicated all of the claims of all of the parties. (107 Ill. 2d R. 304(a).) The trial court exercises this power in its sound discretion. (23 Ill. L. & Prac. Judgments §171 (1979).) Whether to allow affidavits to be filed after a summary judgment hearing, on a motion to vacate or modify, also rests in the sound discretion of the trial court. (Schierer v. Ameritex Division, United Merchants & Manufacturers, Inc. (1980), 81 Ill. App. 3d 90, 95, 400 N.E.2d 1072, 1076; Winger v. Richards-Wilcox Manufacturing Co. (1961), 33 Ill. App. 2d 115, 121, 178 N.E.2d 659, 662.) Harris argues that the Waxmans’ affidavit established a prima facie case of their insolvency, which was sufficient to warrant a redetermination of the August 19 order.

We disagree. The Waxmans’ affidavit states only that their liabilities exceed their assets. The affidavit listed their assets as $3,000 in the bank; Irving’s 50% stock interest in an Illinois corporation, which he appraised at approximately $5,000; and their Highland Park home, appraised at $285,000 — totalling $293,000. The affidavit lists their liabilities as $35,000 in debts to creditors, $9,000 in credit card debt, a $250,000 mortgage debt, and the $67,342 judgment against him for contribution to Harris — totalling $361,342. However, the affidavit is silent on the repayment terms, installments, and conditions of the various debts, and the dates when the debts were undertaken.

The trial court concluded that the Waxmans’ averments were insufficient to show insolvency: the inability to meet debts as they become due. The trial court reasoned that a contrary conclusion would permit parties to escape liability for making contribution, after the judgment, by incurring large consumer debt or similar self-serving conduct. The trial court was well within its discretion in finding that Harris failed to present sufficient evidence warranting a redetermination of the August 19,1987, order.

Ill

We note that the Handmachers bring a cross-appeal, in the event that we reverse the trial court and order a redetermination of defendants’ contribution. In their cross-appeal, the Handmachers argue that Philip should not have been held liable to make contribution to Harris at all. We agree with the Handmachers that since we uphold the trial court’s denial of Harris’ motion to redetermine, we need not reach the cross-appeal.

For the foregoing reasons, the order of the circuit court of Cook County, which denied Harris’ motion to redetermine the August 19, 1987, order, is affirmed.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


text:
      In re MARRIAGE OF JACKIE CULLMAN, Petitioner-Appellant and Cross-Appellee, and PHILIP CULLMAN, Respondent-Appellee and Cross-Appellant.
    First District (4th Division)
    No. 1-88-2170
    Opinion filed June 29, 1989.

      Mary Ellen Dienes, of Chicago, for appellant.
    Greenberg, Keele, Lunn & Aronberg, of Chicago (Nathan H. Lichtenstein and Ellen K. Lawson, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Jackie Cullman appeals from portions of the trial court’s judgment in the dissolution of her marriage to Philip. Specifically, she challenges the court’s determination that the marital residence was Philip’s separate, nonmarital property. She further contends that the trial court erroneously limited her recovery of attorney fees by misinterpreting the parties’ prenuptial agreement. Philip cross-appeals from the partial award of attorney fees to Jackie and also from the order denying his motion for fees under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611).

We reverse in part, affirm in part, and remand.

Background

On October 3, 1979, three days before their marriage, Jackie and Philip executed a prenuptial agreement. Philip’s assets included shares of common stock valued at over one-half million dollars, representing his interest in his family-owned business, Cullman Wheel. He also owned a home in Deerfield, Illinois, valued at $145,000. His total assets were listed as $778,625 and his net as $687,625. Jackie’s assets, including equity in a condominium, totalled $43,000.

The prenuptial agreement specifies that each party’s listed assets were to be considered as his or her nonmarital property. Further, the agreement stated that property acquired “in exchange for” nonmarital property or “acquired with the proceeds from the sale of” non-marital property “and the increase in value of” nonmarital property would retain its nonmarital treatment.

The prenuptial agreement further provided that, if the parties divorced within five years, Jackie would receive $10,000, paid in three equal annual installments, in lieu of any marital rights to maintenance or support. After five years of marriage, but before 10, the sum would increase to $25,000, payable in equal annual installments over five years. After the tenth year of marriage, the agreement would terminate.

At the time the divorce proceedings began the parties had been married for over five years. Jackie filed, on grounds of physical cruelty, and Philip did not contest the action. Jackie did not dispute the validity or general interpretation of the prenuptial agreement. However, she claimed that the house in which the couple were living, placed in joint tenancy, was marital property. The trial court agreed with Philip, however, that the house was his nonmarital property and awarded it to him.

The evidence reveals that when the parties were married in 1979, Philip owned as his nonmarital property the Deerfield house. In 1981 he sold it and put $75,000 of the sales proceeds towards the purchase of the house in Kildeer. Title was taken in the names of Jackie and Philip, in joint tenancy. To obtain the $110,000 balance of the purchase price, the parties acquired a mortgage loan. Both signed the mortgage documents, which included the sale contract, mortgage, note, warranty deed, and bill of sale. The title insurance policy showed both parties as owners.

Jackie testified that she believed that she was an owner of the Kildeer home when they purchased it in May 1981. She did not furnish any of the purchase money but she did pay the fee for the mortgage papers. Philip did not tell her when they purchased the property that he did not intend for her to acquire an interest in the Kildeer home. Nor did he ever tell her that he did not consider her an owner.

Philip testified that he did not intend for her to become a co-owner of the property. He admitted that no one forced him to place title in joint tenancy. He said that there was no particular reason why Jackie’s name was included on the real estate contract.

Philip also testified, over objection, regarding a telephone conversation he allegedly had with his attorney on May 8 or 9, 1981, regarding the effect that the prenuptial agreement might have on the purchase of the Kildeer home. The attorney did not testify.

Philip paid all of the mortgage payments, except for one $1,400 installment that Jackie had supplied. He also paid the taxes, insurance and utilities. Jackie purchased all of the food, household cleaning needs, and linens. She landscaped the property, spending her own money on gardening expenses. She also paid for some house repairs, including electrical work, air-conditioning, and waterproofing the basement. Both parties contributed approximately equal amounts toward purchasing the furnishings. Jackie painted some of the interior rooms of the house.

Jackie and Philip each maintained separate bank accounts. They did not deposit into or withdraw from each other’s accounts, nor did they open joint bank accounts. Jackie paid for the parties’ vacations. She bought her own clothes and paid her own medical bills.

In its order distributing the property the court ruled that the Kildeer residence was Philip’s sole, nonmarital property.

After an evidentiary hearing on Jackie’s request for attorney fees the court determined that the prenuptial agreement provided for each side to bear his own fees and costs. The court did allow Jackie’s fees on the issue of whether the Kildeer property was marital or nonmarital property, however.

PHILIP’S CROSS-APPEAL

Philip had filed a motion for sanctions under section 2 — 611 of the Code of Civil Procedure after Jackie requested the court to award her temporary maintenance. The basis for his motion was that the general waiver clause in the prenuptial clause included temporary maintenance and that, since Jackie clearly had waived maintenance, she should be sanctioned. Additional facts concerning the cross-appeal will be given as part of our analysis of the issues Philip raises.

Opinion

I

When a spouse transfers property acquired before marriage int have made a gift to the marital estate. (In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 257, 483 N.E.2d 316, 320; In re Marriage of Severns (1981), 93 Ill. App. 3d 122, 416 N.E.2d 1235.) The donor spouse may rebut the presumption of gift only with clear, convincing, and unmistakable evidence. In re Marriage of Wingader (1981) , 95 Ill. App. 3d 9, 419 N.E.2d 611; In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 440 N.E.2d 1028.

In the pending case, Philip presumptively transmuted the nonmarital proceeds from the Deerfield home into marital property when he put the Kildeer house in joint tenancy. The Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.) reveals a legislative preference for classifying property as marital. (In re Marriage of Smith (1981), 86 Ill. 2d 518, 529, 427 N.E.2d 1239, 1244.) The resulting presumption should not be lightly overcome by judicial decision where the facts do not warrant it. (See Comstock v. Comstock (1977), 55 Ill. App. 3d 140, 370 N.E.2d 645.) The Illinois Supreme Court in Smith explained the legislative theory of marriage as being one of equal partnership with a “unitary concept” of property. The court further noted that the Act allows parties to preserve the nonmarital character of property, as long as the parties’ actions have not created ambiguity in that regard. In re Marriage of Smith (1981), 86 Ill. 2d 518, 530, 427 N.E.2d 1239, 1245.

Our review of this record reveals that, at the least, Philip’s actions created ambiguity concerning the ownership of the Kildeer house. Philip had carefully planned for the preservation of his non-marital property, as evidenced by the prenuptial agreement and the segregation of bank accounts. He had some experience with the purchase and titling of real estate, as evidenced by his separate ownership of the Deerfield house. Then, after several years of marriage Philip sold the Deerfield house and used a portion of the proceeds as a down payment on the Kildeer home. When he did so he allowed title to be placed in both his and Jackie’s names. Jackie obligated herself on the mortgage papers as a co-owner. Philip did not request title to be put in his name, nor did he put the property in a land trust with himself as sole beneficiary. There is no evidence that he objected to the joint tenancy arrangement. Hence we find little competent evidence of record to rebut the legal presumption that the placement of the home in joint tenancy transmuted it into marital property.

Philip admitted that there was “no particular reason” why Jackie was made co-owner on the deed and mortgage papers. Jackie testified that she thought she was a co-owner and that she was not told otherwise. She also paid part of the closing fees on the property and one $1,400 mortgage installment. Philip did not treat these payments as a loan to him.

These payments, while small in relation to the mortgage, tax, and insurance payments Philip made, are nevertheless probative on the issue of donative intent. Certainly, Jackie was legally bound on the mortgage papers to repay the loan, something that she might not have agreed to if she believed that Philip did not intend to allow her to acquire an ownership interest in the house. Even if neither party gave much thought to the form of the transaction, the legal presumption that marital property was created remains in effect.

In those cases in which a donor spouse has been found to have successfully rebutted the presumption of gift, more evidence than his own statement of intent has been required. For example, in In re Marriage of Rink (1985), 136 Ill. App. 3d 257, 483; N.E.2d 316, the evidence established that the blind husband’s bank accounts were put in joint tenancy simply to facilitate banking transactions and that he had maintained a similar arrangement with his mother before he married. In the case of In re Marriage of Guerra (1987), 153 Ill. App. 3d 550, 505 N.E.2d 748, the court found that certain property put in joint tenancy was actually the nonmarital property of the husband. Both parties controlled separate bank accounts and did not use each others’, despite the fact that both names appeared on all of the accounts. The husband used one of his accounts as a conduit for the sales proceeds from his nonmarital stock, never intending to make it a gift to the marriage. Several loans that the wife had made to the husband’s company had been repaid, with interest. Both parties had previously married, the husband three times before. The marital residence was titled in a land trust and the wife was not made a trust beneficiary, nor did she sign any mortgage papers or pay any part of the purchase price or expenses of maintaining the house.

In the pending case, the only evidence Philip offers to rebut the presumption is his testimonial reference to a conversation with his attorney concerning the effect of the prenuptial agreement on the purchase of the Kildeer home. The evidence appears to be inadmissible hearsay if offered to prove the truth of the matter asserted. Even assuming the testimony was properly admitted under a hearsay exception, it is vague and inconclusive. If the attorney assured Philip that the property would remain nonmarital — and the testimony does not go so far — there remains a question as to Philip’s reasonable reliance on this opinion and the effect of his secret belief on the ownership of the house. Since the attorney did not testify and since Philip’s interest is obvious, we believe that this testimony is entitled to little weight.

Philip additionally argues that the presumption of gift is negated by the fact the parties kept separate bank accounts. We find, however, that the careful segregation of all other property just as easily supports the inference that the Kildeer home was deliberately put in joint tenancy to give Jackie a marital interest in it.

We conclude that the trial court’s classification of the Kildeer home as Philip’s nonmarital property is erroneous. In its ruling, the court noted that the Kildeer property was placed in joint tenancy for “reasons other” than creating marital property. The.court did not list these reasons, however, nor has Philip given any. None exist in the record. We cannot merely assume that he had other reasons or speculate on what they may be. Therefore, we hold that Philip failed to present the clear and convincing evidence necessary to rebut the legal presumption that he created marital property in placing the Kildeer home in joint tenancy.

Because of our holding, we need not discuss at length Jackie’s “sweat equity” in the home. Under section 503(d)(1), of the Act, the trial court must consider various factors in awarding marital property to the parties, including the contribution of a spouse as a homemaker or to the “family unit.” (Ill. Rev. Stat. 1985, ch. 40, par. 503(d)(1).) A spouse who has no income and contributes no money to a marital residence is nonetheless entitled to consideration of her homemaking contributions under this section. Jackie helped to increase or at least maintain the value of the home by landscaping the property, painting the interior, and seeing to needed repairs and cleaning. These considerations are relevant to the division of marital property under section 503; however, in this case the prenuptial agreement provides that all marital property is to be divided equally. Accordingly, on remand the trial court shall award Jackie her 50% interest in the house as marital property.

II

Jackie also appears from the trial court’s ruling regarding her request for attorney fees. While conceding that the award of such fees is discretionary in any event, Jackie maintains that the trial court erroneously concluded that her claim for fees was expressly prohibited by the prenuptial agreement. Paragraph 1 of the agreement, the general waiver clause, provides:

“Each party hereby waives, releases and relinquishes any and all claims, interests and rights, of every kind, nature and description, including, but not limited to any right to dower, curtesy, surviving spouse’s award, statutory fee, distribution, intestacy, homestead, right to renounce the Will of the deceased spouse, alimony, maintenance and property settlement, which he or she may acquire by reason of marriage in the other party’s property, owned by him or her at the time of the marriage or at any time thereafter except as otherwise provided for in Paragraphs 2 through 8 hereof.”

Under section 508(a) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 508(a)), the trial court may award attorney fees after considering certain factors. In the pending case the court did determine that Jackie was entitled to some fees, for the time spent litigating the classification of the Kildeer property. Regarding the balance of her claim, however, the court construed the waiver provision of the prenuptial agreement as barring Jackie’s claim for attorney fees.

We first consider whether this paragraph of the prenuptial agreement operates as a total bar to Jackie’s claim for attorney fees, as Philip asserts in his cross-appeal.

Paragraph 1 does not expressly mention attorney fees. The broad language of the provision is clearly intended to bar recovery of all rights and claims that arise directly out of the marital relation. Paragraph 1 lists the common law and statutory rights accorded spouses in the other spouse’s property “which he or she may acquire by reason of marriage.” If attorney fees are considered claims in Philip’s property that Jackie may acquire by reason of marriage, she would be barred from recovering them by her contractual agreement and it would appear that even the partial award of fees for the Kildeer litigation would be barred.

We do not agree with Philip, however, that such an interpretation is proper. A waiver of claims, particularly ones involving significant rights granted by law, must be strictly limited to the claims that are expressly enumerated, or which follow so closely as to be deemed of like kind under the principle of ejusdem generis. (See Genung v. Hagemann (1968), 103 Ill. App. 2d 409, 242 N.E.2d 790.) We believe that the rights contemplated under this paragraph are those which are integral to the marital status — inheritance rights and entitlements to property — that a person acquires by law upon marriage. In contrast, a potential claim for attorney fees is ancillary to the claims at issue in divorce proceedings. Attorney fees are expenses that result from the litigation of such matters as proper classification and distribution of the property. While Jackie and Philip could have agreed to bear their own legal expenses, and thus explicitly waive the right to seek fees from the other, we conclude that paragraph 1 of the prenuptial agreement cannot be so interpreted.

To the extent the trial court construed the agreement to bar attorney fees, we reverse the finding. As previously noted, however, the trial court did award Jackie fees for a portion of the litigation, that which centered upon the classification of the Kildeer property as marital or nonmarital. We find this award to be within the trial court’s discretion; however, on remand, the trial court should reconsider the attorney fee issue in light of this opinion. Whether and to what extent the ultimate award is adjusted is for the trial court to determine upon review of the pertinent factors. See In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229.

For the above reasons we reverse the trial court’s ruling classifying the Kildeer property as Philip’s nonmarital property, vacate the award of attorney fees, and remand for further proceedings.

CROSS-APPEAL

We have disposed of the first contention in Philip’s cross-appeal, which challenges the trial court’s award of attorney fees to Jackie. He additionally challenges the trial court’s refusal to assess Jackie attorney fees under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611), for filing a petition for temporary maintenance.

Philip argues that Jackie should be penalized for filing a motion for “temporary maintenance” when she had knowingly waived claims for “maintenance” under the waiver provisions of the prenuptial agreement.

We agree with the trial court’s specific finding that Jackie “had a right to file” her petition for temporary maintenance in June of 1986. The record reveals that when the request was made, Jackie, a flight attendant for 17 years, had lost her job because of a TWA strike. She also had spent virtually all of her savings on living expenses and fees related to the litigation. She never contested the validity of the prenuptial agreement. She did not claim that she was entitled to permanent maintenance from Philip. What she requested was money for immediate living expenses, money that could have been offset against the sum to which Jackie was entitled under the prenuptial agreement, upon entry of judgment. In fact, Jackie had asked for such an offset as alternative relief. Philip, however, did not agree with that procedure, apparently taking a hard-line position on the waiver issue. Notably, Philip had not moved to dismiss the petition for temporary maintenance as being affirmatively barred by the prenuptial agreement. The trial court pointed this out and ruled that the evidentiary hearing on the petition would proceed.

After several continuances of the evidentiary hearing on the petition, Philip entered an agreed order, without prejudice to his rights, to pay Jackie temporary maintenance for a brief period. Shortly thereafter he filed for partial summary judgment on the grounds that the prenuptial agreement barred Jackie’s claim for temporary maintenance. The court granted the motion. Subsequently, Philip moved to sanction Jackie for requesting temporary maintenance in the first place.

We do not condone the use of section 2 — 611 as a tool of harassment or intimidation. Jackie’s request, based on financial need, was not expressly barred by the terms of the prenuptial agreement. Temporary relief, moreover, is based on different considerations than is permanent relief, and we do not find Philip’s citation to Volid v. Volid (1972), 6 Ill. App. 3d 386, 286 N.E.2d 42, authority for imposing fee sanctions on a litigant in Jackie’s position. Volid does not involve the application of section 2 — 611.

Since the prenuptial agreement entitled Jackie to a sum of money in lieu of maintenance and other claims, her request for what could be treated as an advance on those sums seems to be entirely reasonable. Jackie’s petition was certainly not frivolous or unfounded, and in pursuing attorney fees against Jackie, Philip not only ran up his own fees but increased hers as well. We conclude that Philip’s motion for sanctions was ill-advised. The trial court properly denied it.0

The judgment of the trial court is reversed as to the classification of the Kildeer property, vacated as to the attorney fee issue, affirmed on the remaining issues, and remanded for further proceedings.

Reversed in part, affirmed in part, and remanded.

JOHNSON and McMORROW, JJ., concur.

       Jackie’s financial contribution to the marriage should not be totally disregarded simply because she spent her income on the parties’ food, vacations, cleaning supplies and the like instead of real estate taxes and mortgage installments. Her payment of living expenses not directly related to the real estate enabled Philip to apply his money directly to the retirement of the mortgage loan. See Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 446 N.E.2d 499 (wife’s earnings and labors accounted at least in some part for husband’s ability to make the purchase payments on a farm).

      We find it difficult to understand why the parties, or their attorneys, could not have simply stipulated to allowing Jackie a temporary award, to be offset against the amount of her final judgment. Such an agreement could have been structured to preserve the rights of either side to present argument in a declaratory proceeding as to whether temporary maintenance was included in the general waiver provision. If so, Philip would receive a credit on the amounts paid to Jackie as interim relief (and possibly interest). If not, Jackie would receive the full amount provided in the prenuptial agreement, without offsets.