text:
    ZONA HOUSH, Plaintiff-Appellant, v. KAREN SWANSON, Defendant-Appellee (Wesley Keown, Defendant).
    Second District
    No. 2—90—0124
    Opinion filed September 25, 1990.

      John Munday, of Lane & Munday, and Frank Leonard LaPort, of Frank Leonard LaPort & Associates, Ltd., both of Chicago, for appellant.

      Craig S. Mielke, of Murphy, Hupp, Foote, Mielke & Kinnally, of Aurora, and H. Case Ellis, of Ellis & McNerney, of Crystal Lake, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, Zona Housh, appeals from an order of the circuit court of Kane County granting the motion of defendant, Karen Swanson, for summary judgment. We note here that another defendant, Wesley Keown, is not a party to this appeal. Plaintiff raises two issues on appeal: (1) whether defendant established that the alleged defect in the leased premises was not the proximate cause of plaintiff’s injury; and (2) whether defendant established that the alleged defect was not a latent defect.

Plaintiff filed a two-count second amended complaint alleging that plaintiff suffered permanent injuries when she fell from a balcony on September 27, 1986. Count I of the complaint alleged that the fall resulted from the negligence of Wesley Keown, the lessee of the premises. Count II of the complaint was directed at defendant and alleged that she was the owner of the premises and had a duty to exercise ordinary care and caution in the management, maintenance and control of the premises.

Plaintiff further alleged that defendant was negligent in that she failed to install guardrails along the balcony; failed to warn plaintiff of the dangerous condition of the balcony; placed an antenna wire on the floor of the balcony; failed to remove the loose antenna wire; failed to warn plaintiff of the loose antenna wire; and failed to inspect the premises. Plaintiff alleged that the defective condition of the balcony, caused in part by the existence of the loose antenna wire, was a latent defect unknown to plaintiff and Keown which defendant knew or should have known existed.

Defendant filed a motion for summary judgment and incorporated therein the transcripts of the depositions of both plaintiff and Keown. The depositions established the following facts. Keown leased the premises in 1983. The leased premises consist of a single-family house, and Keown rented the entire building. Plaintiff moved in with Keown approximately one year prior to the accident. Defendant took care of the major repair work to the house and inspected the house at least once every year.

The house has a deck area off a second-story bedroom. The door to the deck area had been sawed in half, and Keown nailed the bottom half of the door shut. The deck area is made of some kind of black substance, probably roofing material, and is not a wood deck. There is no railing around the deck area. Keown and plaintiff used the deck area to lie in the sun and to sit out and listen to the radio. Both Keown and plaintiff were aware that there was no railing. Under normal conditions, they were never close to the edge. Plaintiff stated that she had probably been out on the deck more than 50 times. Neither Keown nor plaintiff had ever complained to defendant about the lack of a railing, and defendant never promised to put a railing around the deck area. Plaintiff did not know if defendant knew that they used the deck area for sitting out. Keown performed any maintenance work on the deck, including sweeping off acorns and leaves.

There were also two antennae wires right above that area. One wire went to one side of the house and one wire was just free, hanging. To Keown’s knowledge, the wire had never been attached to anything. It was not in use because they have cable television. The wind would sometimes catch the wire and blow it around. Keown stated that the piece of wire had been there since he moved into the house and that he never gave it much thought. Keown and plaintiff never complained to defendant about the antenna wire, and defendant never promised to do anything about the wire.

On the night of the accident, Keown thought he heard prowlers and, a little after 2 a.m., went out on the deck area to investigate. Plaintiff followed him onto the deck. Both Keown and plaintiff stated that there was no lighting on that side of the house. There was no moon that night. It was dark and the edge of the deck was not visible. Keown went up on the peaked part of the roof to get a better look. When he came down, plaintiff was not on the deck. Keown found her on the ground in back of the house. At the time he found her, she had part of the antenna wire wrapped around her legs.

Plaintiff stated that she did not recall ever noticing or seeing the antenna wire on the deck area. She does not remember falling the night of the accident and does not remember what caused her to fall.

The trial court granted defendant’s motion for summary judgment stating, in a written order, that the alleged “latent defect” was, in fact, open and obvious and that, further, there was no proximate cause between the alleged defect and the injury. This appeal followed.

Plaintiff argues that defendant’s motion for summary judgment should not have been granted because defendant did not establish that there was no proximate cause between the alleged defect in the leased premises and plaintiff’s injury and because defendant did not establish that the alleged defect was not a latent defect.

Plaintiff contends that, even though she does not remember what caused her to fall, there was sufficient circumstantial evidence to raise a genuine issue of material fact as to the proximate cause of the fall. This is because Keown’s deposition testimony established that plaintiff had part of the antenna wire wrapped around her legs when he found her on the ground. We agree.

Summary judgment should be granted only when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c); Wilder Binding Co. v. Oak Park Trust & Savings Bank (1990), 135 Ill. 2d 121, 130.) The purpose of a summary judgment proceeding is to determine whether there are any genuine issues of material fact. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) In making this determination, a court must construe the pleadings, depositions, admissions, exhibits and affidavits on file “strictly against the movant and liberally in favor of the opponent” and enter a summary judgment “only when the right of the moving party is clear and free from doubt.” Purtill, 111 Ill. 2d at 240.

The facts in this case, whiqh are established by the deposition transcripts attached to the motion for summary judgment, are not in dispute. The only dispute is in the inferences to be drawn from these facts.

Defendant argues, correctly, that liability cannot be predicated upon surmise or conjecture as to the cause of injury and that proximate cause can be established only when there is a reasonable certainty that the defendant’s acts caused the injury. (Vanee v. Lucky Stores, Inc. (1985), 134 Ill. App. 3d 166, 168.) It is also true that the mere possibility of a causal connection is insufficient to raise the requisite inference of fact. (N. W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 1077.) Defendant contends that proximate cause cannot be established in this case because plaintiff has admitted that she does not know what caused her to fall.

Assuming, for purposes of this discussion, that the presence of the antenna wire can be attributable to negligence on the part of defendant, it is our conclusion that the antenna wire cannot be excluded as a proximate cause of plaintiff’s injuries as a matter of law. “Negligence may be established by using either direct or circumstantial evidence.” (Mort v. Walter (1983), 98 Ill. 2d 391, 396.) Circumstantial evidence is the proof of facts and circumstances from which a jury may infer other connected facts which usually and reasonably follow, according to the common experience of mankind. (Pace v. Me Clow (1983), 119 Ill. App. 3d 419, 423-24.) The “use of circumstantial evidence is not limited to those instances in which the circumstances support only one logical conclusion.” (Mort, 98 Ill. 2d at 396.) “Instead, circumstantial evidence will suffice whenever an inference may reasonably be drawn therefrom [citations], and the facts established by such inferences are considered when an issue is decided as a matter of law or a verdict is directed.” (Mort, 98 Ill. 2d at 396-97.) The inquiry here then is whether plaintiff presented sufficient circumstantial evidence to raise a genuine issue of material fact as to whether the antenna wire caused her injuries.

A reasonable inference to be drawn from the uncontradicted fact that a part of the antenna wire was wrapped around plaintiff’s legs when she was found on the ground after the fall is that plaintiff came in contact with the wire immediately before her fall. It is therefore reasonable to infer that the wire could have caused the fall. (Cf Snell v. Village of University Park (1989), 185 Ill. App. 3d 973, 977 (no evidence that decedent or her bicycle came into contact with allegedly defective curb).) The cases cited by defendant in support of her position are distinguishable. The cases all dealt with situations where there was no proof of contact between the plaintiff and the allegedly defective condition. (See Vance v. Lucky Stores, Inc. (1985), 134 Ill. App. 3d 166 (no evidence that any substance on floor caused plaintiff to fall where plaintiff stated that, after her fall, she saw an undisturbed, clear, milky-colored puddle about the size of her hand which was not smeared or tracked about with footprints); Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813 (no evidence that plaintiff came into contact with grease spots she saw after her fall); Truelsen v. Levin (1974), 24 Ill. App. 3d 733 (no evidence that a leaky dishwasher caused the floor to be wet at the time of the accident).) In this case, there is evidence of contact between plaintiff and the antenna wire at the time of the fall.

We therefore find that the trial court erred in finding that there was, as a matter of law, no proximate cause between the alleged defect, the antenna wire, and the injury.

Plaintiff also argues that there is a genuine issue of material fact as to the existence of a latent defect. Plaintiff concedes that the absence of a railing around the edge of the deck area was a condition known to Keown. The evidence in the record also establishes that this fact was known to plaintiff. Plaintiff contends, however, that a question exists as to whether the antenna wire was a latent defect because defendant has failed to show that either plaintiff or Keown had prior knowledge that the antenna wire could be blown onto the surface of the deck area. She asserts that it was the combined hazard of a loose antenna wire and the absence of a railing that was a latent defect.

Basically, this argument relates to the existence of a duty on the part of defendant. In an action for negligence, a plaintiff is required to set out sufficient facts establishing the existence of a duty owed to the plaintiff by the defendant, a breach of that duty, and an injury proximately caused by the breach. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140; Rowe v. State Bank (1988), 125 Ill. 2d 203, 215.) We need to determine whether summary judgment was properly granted based on the fact that defendant did not owe plaintiff a duty. We find that there was no duty under these circumstances and therefore affirm.

It is well settled that a landlord is not liable for injuries caused by a defective condition on premises leased to a tenant and under the tenant’s control. (Rowe v. State Bank (1988), 125 Ill. 2d 203, 220-21; see also Wright v. Mr. Quick, Inc. (1985), 109 Ill. 2d 236, 238. ) This is true whether it is the tenant or the tenant’s invited guest who is injured (Gilbreath v. Greenwalt (1980), 88 Ill. App. 3d 308, 310), as a guest stands in the same position as the tenant and has no greater rights against the landlord (Roseman v. Wilde (1969), 106 Ill. App. 2d 93, 97). In this case, there is no dispute that Keown was lessee of the entire premises and maintained the deck area.

There are, however, some recognized exceptions to this rule. A “landlord may be liable for latent defects existing at the time the premises were leased, fraudulent concealment of a known dangerous condition, defects causing harm which amounts to a nuisance, breach of contracts to repair the premises, and a violation of a statute or ordinance.” (McCombs v. Dexter (1989), 186 Ill. App. 3d 484, 486; see also Gilbreath, 88 Ill. App. 3d at 309-10.) The only exception which plaintiff contends applies here is the existence of a latent defect.

A latent defect is a defect which is known or should have been known to the landlord in the exercise of reasonable care and which could not have been discovered upon a reasonable examination of the premises by the tenant. (See Gilbreath, 88 Ill. App. 3d at 309; Cerniglia v. Farris (1987), 160 Ill. App. 3d 568, 573.) The tenant has a duty to inspect the premises and determine their safety and suitability. (Greenlee v. First National Bank (1988), 175 Ill. App. 3d 236, 239. ) If the defect is of such a nature that the tenant can or does discover it himself, then there is no liability on the part of the landlord. Roseman v. Wilde (1969), 106 Ill. App. 2d 93, 97.

In this case, Keown acknowledged during his deposition that he was aware of the existence of the loose antenna wire. While plaintiff argues that defendant failed to show that either plaintiff or Keown had prior knowledge that the antenna wire could be blown onto the deck area or that they were ever on the deck area at the same time that the antenna wire was present, the transcript of Keown’s deposition compels an opposite conclusion. Pertinent to this issue, Keown’s responses at his deposition are as follows:

“Q. And do you have any understanding prior to this accident as to where that lead went from the inclined roof?
A. No. It was just — like I said, it was a cable that was— there was [sic] two leads coming off the antenna.
The antenna was right above there, and there was one lead that went to one side of the house and one lead that was just free, hanging. It wasn’t attached to anything.
Q. The other end of this lead, then, was just laying [sic] on the roof?
A. Yes.
Q. And the other end was not connected to something, as far as you know?
A. No.
Q. If you know, Wesley, how long was that antenna lead there prior to the accident?
A. I am really not sure. Like I said, the wind would catch it and blow it from one side of the house to the other. So it could have blown over.
Q. Whether it was blown in one position or the other, the piece of wire had been there since you moved in?
A. Yes.”

Keown therefore indicated that the antenna wire had been on the house since he moved in, that it was not attached to anything, and that the wind blew it around. He acknowledged that it may have blown over the deck area prior to the accident. Contrary to plaintiff’s assertions, even construing these statements liberally in favor of plaintiff, no inference can exist from these facts that Keown was not aware that the antenna wire could be blown onto the surface of the deck area. It is also clearly not possible to infer from these facts that Keown would not be able to discover that the antenna wire could blow onto the deck area upon a reasonable examination of the premises.

The undisputed facts establish that Keown was aware, or certainly should have been aware, that the unattached antenna wire could blow onto the deck area. A-lso, while plaintiff has attempted to distinguish the cases defendant relied on in support of her motion for summary judgment, plaintiff has not cited any authority supporting her position that the antenna wire was a latent defect.

If, as here, there are no material facts in dispute, “ ‘inferences may be drawn from the undisputed facts to determine if the defendant is entitled to judgment as a matter of law. If no fair-minded person could draw different inferences from these facts, then there is no triable issue and the motion for summary judgment should be granted.’ ” (Alcorn v. Stepzinski (1989), 185 Ill. App. 3d 1, 4, quoting Peltz v. Chicago Transit Authority (1975), 31 Ill. App. 3d 948, 951.) Based on the uncontroverted facts in this case, we determine that no fair-minded person could draw different inferences from these facts. There is therefore no triable issue as to the existence of a latent defect, and defendant, as a landlord, owed no duty to plaintiff.

Because there was no latent defect, there was no duty on the part of the defendant. Consequently, plaintiff’s cause of action was properly disposed of by way of summary judgment in favor of defendant.

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

Affirmed.

DUNN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
      In re MARRIAGE OF RALPH L. SCAFURI, Petitioner-Appellant, and PAMELA A. SCAFURI, Respondent-Appellee.
    Second District
    No. 2— 89—1131
    Opinion filed October 2, 1990.
    Rehearing denied November 5, 1990.

      Howard W. Broecker, of Howard W. Broecker & Associates, Ltd., of Geneva, and Evan James Mammas, of Mammas & Goldberg, of Chicago (Jerry S. Goldberg, of counsel), for appellant.
    Benedict Schwarz II, of Schwarz & Golden, Ltd., of West Dundee (Patricia Piper Golden, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Petitioner, Ralph Scafuri, appeals from several orders entered by the circuit court of Kane County relating to issues surrounding his dissolution of marriage from respondent, Pamela Scafuri. Ralph alleges seven instances of error: (1) the court’s child support award was based upon erroneous calculations of Ralph’s net income; (2) the court’s award of $10,000 per month in child support was excessive; (3) the court’s valuation of Ralph’s interest in a medical practice was improper; (4) the court’s distribution of marital assets was improper; (5) the court’s reservation of maintenance for five years was improper; (6) the court’s imposition of an interest rate of 1% over prime on a $375,000 “balancing” cash payment to Pamela was improper; and (7) the court’s order requiring Ralph to pay 90% of Pamela’s attorney fees was improper.

The parties were married on December 27, 1972, and had three children. Ralph graduated from medical school in 1976 and is an orthopedic surgeon. He is a part owner of Orthopedic and Spine Surgery Associates (OSSA) and Orthopedic and Sports Rehabilitation Clinic Management, Inc. (OSRCM). Ralph filed a petition for dissolution of marriage on January 27, 1987. A hearing to resolve all issues was begun on January 25,1988.

Ralph and Pamela each testified as to their respective education and employment backgrounds, present and potential income and expense levels, vacation expenses, assets and liabilities, and child care responsibilities. Ralph also testified in detail as to his business and investment interests. Ralph also presented testimony from several other witnesses to explain the financial details of his medical practice and other business interests. Each party presented expert testimony as to the value of Ralph’s medical practice and other various business and investment interests. Likewise, each party presented expert testimony as to the value of the marital residence.

The court rendered a written memorandum of opinion on August 2, 1988, and entered a judgment of dissolution on January 5, 1989. The judgment order awarded the parties joint custody of their three children with physical custody placed with Pamela. A visitation schedule was also set forth in the order. The court also ordered Ralph to pay $10,000 per month for child support. The court noted that this sum represented approximately 32% of Ralph’s statutory net income as found by the court.

The court reserved the question of maintenance for a period of five years. The court found this to be necessary as “the level of future earnings and needs of the parties is uncertain,” and “[t]he ability to review financial data for future periods (upon motion by any party hereto) will be necessary to assess fairly this issue in the next five (5) years.”

The court also made a property distribution award. The court found that it was necessary to give Pamela a “balancing” cash award of $375,000 due to the substantial portion of marital property represented by Ralph’s medical practice. The court also ordered this sum to be paid in quarterly installments over a 10-year period. Ralph was ordered to pay interest at the rate of 1% over prime on the unpaid balance. The court found that these payments would make the overall division of marital property approximately 55% to Pamela and 45% to Ralph.

On February 6, 1989, Ralph filed a post-trial motion for rehearing, retrial, modification, or to vacate the order of January 5, 1989. On April 17, the court conducted a hearing on the post-trial motion and the remaining issue of attorney fees. On July 26, the court entered an order denying Ralph’s motion and ordering Ralph to pay approximately $68,000, about 90%, of Pamela’s attorney fees. The court modified the award of attorney fees in August and September with the final order being entered on October 2. The court found Pamela to be liable to her attorneys for the sum of $74,516. Ralph was ordered to pay $67,064 of this obligation with the remainder charged to Pamela.

Ralph filed a notice of appeal attacking the court’s orders of January 5, July 26, August 16, September 12, and October 2,1989.

The first contention we address is that the court erred in calculating Ralph’s net income for child-support purposes. Ralph argues that the court erroneously inflated several items of income and disregarded several debt obligations in arriving at net income. Specifically, Ralph argues that the court erred by including $22,500 of income from OSRCM, and $40,000 of income from OSSA’s reserve account in Ralph’s net income. Ralph asserts that the $22,500 figure should really be only $14,500, and the $40,000 figure should be omitted in its entirety. Additionally, Ralph objects to the court’s treatment of several debt obligations. Ralph contends that these obligations represent “[expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income” (111. Rev. Stat. 1989, ch. 40, par. 505(a)(3)(h)) and should have been deducted from income to arrive at net income. Although Ralph points out that the court did not make specific findings regarding net income in its January 5, 1989, judgment order, the court did set forth a detailed discussion of its determination of net income in its opinion letter of August 2,1988.

The trial court’s letter opinion is quite clear in demonstrating that the court carefully reviewed the appropriate factors in arriving at net income. The court based its net income determination on the figures contained in Pamela’s trial brief with certain adjustments. The court also rejected several items of indebtedness as set forth by Ralph. The court specifically discussed and provided its reasoning for rejecting the three items of indebtedness that Ralph claims should have been deducted to arrive at net income. These findings are within the trial court’s discretion. The court did not abuse its discretion in determining net income.

Ralph next contends that the court erred in awarding child support of $10,000 per month. Since the parties had three children, the court used the statutory guideline of 32% of Ralph’s net income to determine the amount of support to be paid. (See Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(1).) Ralph argues that using the guideline was error in this case and the court should have deviated downward from the guideline.

The amount of a child support award is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. (In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 812.) The guidelines establish a beginning point for analysis. (In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 1040.) “No judge should, or properly could, surrender the responsibilities of considering all relevant factors dictated by Illinois law in reaching an appropriate result.” (Blaisdell, 142 Ill. App. 3d at 1040.) The guidelines shift the burden of presenting evidence to the parent who is asking the court to deviate from the guidelines in setting a child support award. In re Marriage ofRogliano (1990), 198 Ill. App. 3d 404, 411.

Ralph contends that he met his burden of establishing that the child support award should have been below the statutory guideline. Ralph argues that the affidavit submitted by Pamela in which she claimed monthly expenses totaling $11,371 was impeached and shown to be an inaccurate reflection of the needs of the three Scafuri children. Ralph contends that, after disregarding the impeached portions of Pamela’s affidavit, the actual neéds of the children and Pamela are approximately $6,500 per month, and this figure should be further reduced by the portion attributable to Pamela’s needs. Ralph points out that, while receiving temporary support, Pamela purchased home furnishings, took several vacations and placed sums of money in both demand and investment accounts. Ralph contends that, since Pamela was able to expend such sums when Ralph’s support contribution was approximately $8,000 per month, an award of $10,000 per month is more than the children need.

Initially, we note that a child support award is not limited to the “shown needs” of the children. (See In re Marriage of Bussey (1985), 108 Ill. 2d 286, 297.) A court may award support in excess of the needs of the children (In re Marriage of Boyden (1987), 164 Ill. App. 3d 385, 388), or in deviation from the guidelines (see Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2)) if necessary to enable the children to enjoy the standard of living they would have had if the marriage had not been dissolved. Ralph contends that the standard of living that the children would have enjoyed had the marriage not been dissolved does not require a $10,000-per-month support payment.

The court noted in its July 26, 1989, order that the support award clearly exceeded the current needs of the children and reflected a response to the standard of living the children would have enjoyed had the marriage continued. The trial court found that an element of the children’s standard of living is the presence of Pamela in the home instead of in the work force. The court went to great lengths to explain the importance of Pamela remaining at home to nurture and tend to the children’s physical, educational and emotional needs. The court stated that it took into consideration “all appropriate factors” when arriving at a child-support award of 32% of net income. We interpret this to mean that, after considering the appropriate factors, the court was not inclined to deviate from the statutory guideline. We believe this to be an abuse of discretion.

One commentator has expressed the view that the support schedules contained in the statute have less utility as the net income of the parties increases because the schedules are premised upon percentages related to average child-rearing expenses. (See K. Levin, The Use (and Abuse) of Child Support Schedules in Illinois, 71 Ill. B.J. 314 (1983).) We agree with this assessment. When dealing with above-average incomes, the specific facts of each case become more critical in determining whether the guidelines should be adhered to.

In the case at bar, the facts establish that, while the children enjoy a very comfortable lifestyle, they are not accustomed to a lavish or extravagant lifestyle. Pamela’s affidavit contains expenses that are reasonably related to “lifestyle.” These expenses include, inter alia, restaurants, clothes, sports, lessons, vacations, camp and entertainment. We agree with Ralph that many of the expenses listed do not reflect the current needs of the children. For example, the expenses related to the Galena home which are now Ralph’s exclusive responsibility are not needs of the children.

Additionally, we point out that the trial court stated in its order:

“6. The probable future income of the wife, her ability to acquire assets and her probable standard of living are enormously less than the husband’s. Her independent gross income is less than 2% of his net income. Even considering the child support, her income is 35% of his. If broken down per person, the wife and three children receive $31,250.00 each. The husband after payment of child support, receives $237,000 for support of himself alone. The ratio is nearly 8 to 1.”

While we cannot be certain from this passage that the court intended a portion of the child support award to be ersatz maintenance for Pamela, we note that any such practice would be improper. Child support is for the support of the children, and maintenance is for the support of the spouse. While the two concepts are related, one should not be substituted for the other.

We conclude that, after a thorough review of all the evidence presented, the children’s shown needs and lifestyle to which they are accustomed can be adequately maintained on a total award of $6,000 per month for the three children. Rather than remand this cause and protract the litigation, we shall reduce the award pursuant to our authority to do so. See 107 Ill. 2d R. 366(a)(5); In re Marriage ofHirsch (1985), 135 Ill. App. 3d 945, 959.

Ralph next argues that the court erred in valuing his interest in the medical corporation at $600,000. Ralph contends that the issue boils down to whether goodwill exists in a professional service practice. Ralph’s expert testified that there was no goodwill in the medical corporation. Therefore, Ralph’s interest was valued at $193,200. Pamela’s expert testified that goodwill did exist in the corporation. Therefore, Ralph’s interest was valued at $730,000.

Recently, this court has reiterated its position that goodwill does exist and should be included in the value of a professional practice. (In re Marriage of Feldman (1990), 199 Ill. App. 3d 1002, 1005-06; see also In re Marriage of Rubinstein (1986), 145 111. App. 3d 31, 37; In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 386.) The court did not err by including goodwill in the value of Ralph’s interest.

With respect to the overall valuation of Ralph’s interest in OSSA, the trial court reviewed the testimony and opinions of Robert Kleeman, Ralph’s expert witness. Kleeman stated that he did not include an amount for goodwill in his $193,000 valuation of Ralph’s interest because there was no enterprise goodwill. The court questioned Kleeman’s $630,000 valuation of OSSA as he did not take into consideration the value of a corporate asset valued at $525,000 by Daniel Kennedy, a certified public accountant who testified on Ralph’s behalf. The court concluded that Kleeman’s opinion was “so flawed and so lacking in reasonable support, research or understanding that it must be rejected.”

The court also reviewed the testimony of Dwain Tataryn, Pamela’s expert. Tataryn placed a value of approximately $2,919,000 on OSSA, and a corresponding value of $730,000 on Ralph’s 25% interest therein. The court also noted some weaknesses in Tataryn’s opinion.

The court also considered an employment contract titled “Fister Buy-in Agreement.” This document was executed when Dr. Fister joined the practice in 1984. Dr. Fister requested Kenneth Schwartz, the business manager of OSSA, to calculate the cost of a one-quarter interest in OSSA. Schwartz did so and placed a value of $450,000 on the one-quarter interest.

The court reviewed the testimony of Daniel Kennedy. Kennedy testified that he is intimately aware of the history of OSSA, having been associated with the corporation since its creation as a partnership. The court also noted that Kennedy had placed the value of Ralph’s share in OSSA at $609,000 in April 1986. Kennedy testified that this was in error, however, because he mistakenly calculated a one-half interest in OSSA and not the one-third interest that Ralph really had at that time. The court noted that if $609,000 was equal to one-half of OSSA, then OSSA in total was valued at $1,218,000, and a one-third interest would have been worth $406,000 in April 1986. The court also set forth the fact that gross receipts of OSSA were $1,524,217 in 1984 and $3,232,021 in 1987. This represents a 212% increase. The court concluded the valuation portion of its letter opinion by stating:

“The court has carefully considered all of the foregoing *** and considering all other relevant factors the court finds the value of the husband’s interest in OSSA to be $600,000.”

The court considered all the testimony concerning the valuation of OSSA. There is sufficient evidence in the record to support the court’s finding that Ralph’s one-quarter interest in OSSA is worth $600,000. Therefore, the court did not abuse its discretion in placing such a value on his interest.

Ralph next contends that the court abused its discretion in distributing the marital property. The trial court, in its letter opinion and judgment order, stated that the distribution of marital assets constituted an award of 55% of the assets to Pamela and 45% to Ralph. The court further stated in its letter opinion:

“Again, considering all of the factors suggested under Section 503 of Chapter 40 (111. Rev. Stat. 1987, Ch. 40, Sec. 503) including the tax impacts, probability of future acquisition of capital assets and the enormous difference in future earning capacity, this is considered an appropriate disposition by this Court.”

The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 971.

In the case at bar, it is obvious that Ralph’s ability to earn income and acquire assets in the future is far superior to that of Pamela. While Pamela is a certified special education teacher, the evidence indicates that her salary, were she to return to teaching, would be approximately $18,000 per year. Ralph’s gross income is approximately 25 times this amount. It is clear that the court considered all the appropriate factors in distributing the marital assets. We find the trial court’s decision regarding distribution of assets to be a proper exercise of its broad discretion.

. Ralph also contends that the court erred by reserving the issue of maintenance for a five-year period. Ralph first argues that Pamela received sufficient marital assets to maintain herself. Therefore, she is not entitled to maintenance. Ralph also argues that section 504(b) of the Illinois Marriage and Dissolution of Marriage Act introduces the concept of rehabilitative maintenance and the inherent, affirmative duty of a recipient spouse to seek financial independence through employment and, if necessary, education and training. (See Ill. Rev. Stat. 1989, ch. 40, par. 504(b); In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 634.) Pamela is an educated woman, and Ralph asserts that she has the ability to provide for her own support through gainful employment.

The pertinent portion of the court’s letter opinion states:

“The five year period should give the wife an opportunity to determine whether she can maintain herself and her children on the support ordered, as from time to time modified, and whether she can demonstrate good reason for not returning to the work force. *** During the five year period of reservation she is free to seek maintenance but must be able to show need on her part as well as the ability of Ralph to pay. This Court is presuming that she will be able to meet all of her own and the children’s needs from the support ordered as well as from the income earned on the assets awarded her: to a degree this is speculation since there is no way of knowing, on the current record, what additional earnings she may have. Leaving an open door for a reasonable period seems the appropriate solution.”

It is apparent from the court’s discussion that the court felt that at this time Pamela had sufficient assets and resources, including child support payments, to provide for the reasonable needs of herself and the children. The court apparently considered that some part of the child support payments would be available to support Pamela. The court did, however, leave the issue of maintenance open for a five-year period. This was apparently done because the court decided that circumstances were such that Pamela should not be required to seek employment outside the home at this time. This decision was premised on the fact that the children’s lifestyle included having their mother at home.

There is precedent for the reservation of maintenance in a dissolution proceeding. See In re Marriage of Cohn (1982), 93 Ill. 2d 190, 199; In re Marriage of Smith (1985), 132 Ill. App. 3d 694, 701; In re Marriage of Shafer (1984), 122 Ill. App. 3d 991, 999.

In Cohn, the court found that there are circumstances that would justify entering a judgment of dissolution of marriage while reserving the issue of maintenance. (Cohn, 93 Ill. 2d at 199.) One such situation is where the responsible party is unable at this time to pay maintenance if so ordered. Cohn, 93 Ill. 2d at 199; Smith, 132 Ill. App. 3d at 701; see also Shafer, 122 Ill. App. 3d at 999 (this court suggested on remand that the trial court take a “reserved-jurisdiction approach” as the husband’s present ability to pay a significant amount of maintenance was limited).

Another situation in which a reserved jurisdiction approach has been applied is when the court seeks to monitor the actual circumstances of the parties. In In re Marriage of Asch (1981), 100 Ill. App. 3d 293, the trial court awarded maintenance of $150 per week. Additionally, the trial court reserved jurisdiction over the maintenance award for three years to ascertain whether the maintenance recipient had made a reasonable effort to procure suitable employment and become self-sufficient. The court in upholding the maintenance award stated:

“By reserving the right to review the award after three years to determine whether respondent has made reasonable efforts to find suitable employment, the trial court has chosen a practical alternative designed to avoid the speculation often inherent in future maintenance awards. Rather than speculate regarding the necessity of maintenance three years hence [citation], the trial court added an element of flexibility to its order. If at the end of the three years the court determines that respondent has reasonably sought employment and failed to find anything suitable, the court will undoubtedly decide that the maintenance should continue, possibly at a higher amount. If, however, respondent has chosen not to seek employment and begin supporting herself, the court could then deny her further maintenance.” Asch, 100 Ill. App. 3d at 298.

In In re Marriage of Lord (1984), 125 Ill. App. 3d 1, the court entered an order of dissolution of marriage and reserved the issue of maintenance. At the time of the dissolution, the wife presented medical evidence to establish that she had symptoms of Raynaud’s disease which might develop into a disabling disease. If the wife did become afflicted with this disease, it would most likely occur within a two-year period. The court reserved the issue of maintenance finding that, at the hearing date, the wife was not entitled to maintenance, but if the disease progressed, the distribution of property would be inadequate to meet her needs. (Lord, 125 Ill. App. 3d at 4.) This court affirmed the reservation of maintenance under the circumstance presented. Lord, 125 Ill. App. 3d at 5.

The case at bar is distinguishable from the cases cited above. Ralph’s ability to pay maintenance at this time is not questioned. Also, the court is not seeking to monitor Pamela’s efforts to procure suitable employment and become self-sufficient so as to justify a future reduction in the maintenance payments.

Additionally, in Lord, the wife had no control over the future consequences that would entitle her to maintenance. In this case, Pamela does have some control. The court has excused Pamela from attempting to support herself through appropriate employment. This means that as time goes by Pamela will be more removed from the labor force. Presumably, the longer she remains unemployed the more difficult it will be for her to obtain employment in the future. The court provided Pamela with $120,000 a year in child support, approximately $50,000 a year in cash payments, and income from property. The court has also allowed Pamela to refrain from working and, if she cannot “maintain herself and her children,” to petition the court for more money. Pamela has no incentive to be cost conscious, or to become gainfully employed.

This position is inappropriate. Not only does the five-year reservation of maintenance protract the litigation, but it does not get Pamela moving in the right direction, i.e., towards a position of self-sufficiency. In fact, this allows Pamela to stagnate and move in the wrong direction, i.e., continued dependence. The court should have determined if maintenance was warranted and, if so, ordered it. Furthermore, the award should not have been implicitly included in an excessive child support award. To place Ralph in a position where his future obligations are uncertain and under his ex-wife’s exclusive control was an abuse of discretion or, rather, the failure to exercise discretion.

Ralph next contends that the court erred by requiring him to pay interest at the rate of 1% over prime rate on the outstanding balance of the cash balancing award. Ralph argues that section 2 — 1303 of the Code of Civil Procedure mandates an interest rate of 9%. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303.) Pamela argues that section 2 — 1303 is limited to interest on judgments and does not apply to the situation at bar because the interest is accruing on a cash balancing award, not a judgment.

We find Pamela’s argument to be disingenuous. The cash balancing award and attendant interest provisions are set forth in paragraph 9 of an order titled “Judgment of Dissolution.” This paragraph is directly below the heading “Property Division.” It is obvious that awards pertaining to property distribution are judgments. (See Ill. Rev. Stat. 1989, ch. 40, par. 503(i) (“The court may make such judgments affecting the marital property as may be just and may enforce such judgments”).) (Emphasis added.) Pamela has not cited any authority that stands for the proposition that a “balancing” cash award made as part of a property distribution award is not a judgment. We determine that the “balancing” award is a judgment.

Section 2 — 1303 of the Code of Civil Procedure provides:

“Judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of the judgment until satisfied ***. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment. Interest shall be computed and charged only on the unsatisfied portion of the judgment as it exists from time to time.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303.)

It is established that the trial court has the authority to award interest on a judgment for support payments. (See Finley v. Finley (1980), 81 Ill. 2d 317, 332.) Additionally, authority exists for the proposition that the interest provisions of section 2 — 1303 are mandatory and not within the discretion of the trial court. (See In re Marriage of Morris (1989), 190 Ill. App. 3d 293, 296-97; In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 640. But see Robinson v. Robinson (1986), 140 Ill. App. 3d 610, 612.) It is clear that if an interest award is entered by the trial court, it should be set at the statutory rate. (See Morris, 190 Ill. App. 3d at 298; Passiales, 144 Ill. App. 3d at 640; see also Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303.) Pamela has. not provided this court with any authority, nor are we aware of any, that would allow the trial court, in its discretion, to award interest on a judgment at a rate higher than the statute provides. Therefore, the award of interest at the rate of 1% over prime was in error. Pursuant to our authority to do so (107 Ill. 2d R. 366(a)(5); Hirsch, 135 Ill. App. 3d at 959), we will reduce the interest rate on the cash balancing award to the statutory rate of 9% per annum.

Additionally, it appears that the court’s order is internally inconsistent with respect to the amount of the quarterly payments to be paid to Pamela. The order states in pertinent part:

“The ‘cash to balance’ property award of $375,000.00 shall be paid in quarterly installments over a ten year period. Interest shall accrue on the unpaid balance at the rate of 1% over the prime rate as established by the First National Bank of Chicago (FNBC). *** Example: If FNBC’s prime rate on 11/15/88 is 9%, 1% will be added to this to total 10%. 10% interest on the unpaid balance of $375,000,000, amortized (p & i) over 10 years is $14,938.59. $14,938.59 is to reach Pamela by 12/3-88 [sic] as payment for the 4th quarter of 1988.”

While the first two sentences set forth above appropriately provide for simple interest to be paid (see Lewis v. Stran-Steel Corp. (1978), 58 Ill. App. 3d 280, 282), the example describes a different interest calculation.

The first sentence provides for the $375,000 cash balancing award to be paid in quarterly installments over 10 years. This results in 40 payments of $9,375. The second sentence states that interest shall accrue on the unpaid balance at the rate of 1% over prime. Therefore, using the court’s assumed prime rate of 9%, Ralph’s first quarterly payment would total $18,750. This payment would consist of the $9,375 principal payment ($375,000 / 40) plus $9,375 in interest. ($375,000 x ,10)/4. Ralph’s second quarterly payment would total $18,515.63 and consist of the $9,375 principal payment plus $9,140.63 in interest. (($375,000 - 9,375) x ,10)/4. The monthly payments would be calculated in such a manner until paid in full.

The example set forth by the court provides for payments to. be calculated as would be necessary to amortize a mortgage at 10% over 10 years. This would result in 40 equal quarterly payments of $14,872.50. The use of the mortgage amortization formula would result in substantially more interest being paid over the duration of the loan. However, this does not amount to compound interest as Ralph suggests. Compound interest exists when a party has to pay interest on interest. This is not the case in a situation where a loan is amortized over a period of time in equal monthly payments. The reason that the total interest cost is higher is due to the fact that the principal is not being reduced as quickly in the early portion of the loan term. Most of the payments made in the beginning of the term are used to pay interest costs and, therefore, the principal remains relatively constant. It appears that the court wanted the payments to be made according to an ordinary simple interest calculation, but the example is inconsistent with this approach. As there are distinct advantages to each party depending on which method is used, this issue is remanded to determine by which method the balancing award is to be paid.

Ralph finally argues that the court abused its discretion by ordering him to pay approximately 90% of Pamela’s attorney fees. We disagree.

The allowance of attorney fees and the proportion to be paid by each party are within the trial court's discretion and will not be disturbed on appeal absent an abuse of discretion. (Bussey, 108 Ill. 2d at 299.) The party seeking fees must show an inability to pay the fees and an ability of the other spouse to pay the fees. Bussey, 108 Ill. 2d at 299-300; In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 916.

In the case at bar the trial court set forth its findings regarding attorney fees in three separate orders totaling seven full pages. The court clearly stated the factors it considered in apportioning attorney fees. Most noteworthy is the fact that Ralph earned approximately $350,000 per year and Pamela earned less than $5,000 per year. Ralph argues that Pamela will be receiving cash payments of approximately $15,000 per quarter plus interest income from several assets awarded to her pursuant to the court’s property distribution award and, therefore, is able to pay her legal fees. Pamela is not required to divest herself of assets awarded to pay her attorney fees. (See Head v. Head (1988), 168 Ill. App. 3d 697, 704.) It was not an abuse of discretion to require Ralph to pay a substantial portion of Pamela’s attorney fees.

The decisions of the circuit court of Kane County are modified to reflect a child-support award of $6,000 per month as opposed to $10,000 per month, and an interest rate of 9% per annum on the cash balancing award as opposed to the rate of prime plus 1%. The issue of how the cash balancing award is to be paid is remanded solely to clarify the method of calculating the monthly payments. The five-year reservation of maintenance is reversed, and this issue is remanded for the trial court to determine whether Pamela is entitled to maintenance given the disposition of the other financial issues in this cause, and, if so, in what amount. All other decisions of the circuit court are affirmed.

Affirmed in part; reversed in part; modified in part; and remanded.

INGLIS and REINHARD, JJ., concur.