author: MR. JUSTICE MORAN

text:
    (Nos. 53276, 53404 cons.
    HENRY ARNOLD et al., Appellees, v. THE BOARD OF TRUSTEES OF THE COUNTY EMPLOYEES’ ANNUITY AND BENEFIT FUND OF COOK COUNTY et al., Appellants.—VITO ABBINANTI, Appellee, v. PARK EMPLOYEES’ ANNUITY AND BENEFIT FUND et al., Appellants.

      Opinion filed February 20, 1981.

    SIMON, J., took no part.

      Bernard Carey, State’s Attorney, of Chicago (Paul P. Biebel, Jr.. Deputy State’s Attorney, and Mark V. Chester, Assistant State’s Attorney, of counsel, for appellants Board of Trustees of the County Employees’ Annuity and Benefit Fund of Cook County et al.

    Harry R. Posner and Julian J. Frazin, of Chicago, for appellants Park Employees’ Annuity and Benefit Fund et al.

    John R. Leitz, Jr., and Michael D. Firsel, of Kamensky & Landan, of Chicago, for appellees Henry Arnold and Edythe Arnold.
    Mark L. Schwartzman, of Rotenberg & Schwartzman, of Chicago, for appellee Vito Abbinanti.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Plaintiffs Henry Arnold and Vito Abbinanti had their pension benefits revoked by defendants, the board of trustees of the County Employees’ Annuity and Benefit Fund of Cook County and the Park Employees’ Annuity and Benefit Fund, respectively, because Arnold and Abbinanti had each been convicted of a felony relating to his employment. Upon administrative review in the circuit court of Cook County the decisions of the defendants were affirmed. On appeal, the appellate court reversed, finding that the statutes upon which the defendants relied did not apply to Arnold and Abbinanti, as each entered public service before the applicable date set forth in the statutes, July 11, 1955. (81 Ill. App. 3d 874; 81 Ill. App. 3d 1197.) We allowed defendants’ petitions for leave to appeal and consolidated the cases for review.

The pertinent provisions of the statutes with which we are concerned (now codified in the Illinois Pension Code) are essentially identical and provide:

“None of the benefits provided [for] in this Article shall be paid to any person who is convicted of any felony relating to or arising out of or in connection with his service as an employee.
This section shall not operate to impair any contract or vested right heretofore acquired under any law or laws continued [sic] in this Article, nor to preclude the right to a refund.
All future entrants entering service [after] [subsequent to] July 11, 1955, shall be deemed to have consented to the provisions of this section as a condition of coverage.” (Ill. Rev. Stat. 1977, ch. 108½, pars. 9-235, 12-191.)

Defendants’ position is that these statutory felony-forfeiture provisions mandate the denial of pension benefits to the plaintiffs by virtue of their convictions for felonies arising from their employment. On the other hand, plaintiffs contend that the statutes are applicable only to those employees who entered service after July 11, 1955. Plaintiffs also claim that, as to them, article XIII, section 5, of the Illinois Constitution of 1970 prevents the retroactive application of the felony-forfeiture provisions of the Illinois Pension Code.

Plaintiff Arnold became an employee of Cook County and a participant of the pension fund in November of 1940. He retired from.public service on January 1, 1973, at which time his pension payments began. On August 2, 1973, he pleaded guilty to a felony arising out of his employment. The defendant board of trustees of the County Employees’ Annuity and Benefit Fund of Cook County voted to terminate his pension on September 7, 1973, pursuant to section 9 — 235 of the Illinois Pension Code (Ill. Rev. Stat. 1977, ch. 108½, par. 9-235). Plaintiff Abbinanti became an employee of the Chicago Park District and a member of its pension fund in 1947. He retired on April 26, 1977, and received his first pension payment on May 1, 1977. On December 3, 1977, he was found guilty of a felony relating to his employment. As a consequence, his pension payments were terminated on February 16, 1978, pursuant to section 12 — 191 of the Illinois Pension Code (Ill. Rev. Stat. 1977, ch. 108½, par. 12 — 191). Each plaintiff was enrolled under separate compulsory pension plans.

Both parties concede that under the law, as it existed in 1955, the status of a participant’s pension rights was dependent upon whether his participation was compulsory or voluntary. (Keegan v. Board of Trustees (1952), 412 Ill. 430; Raines v. Board of Trustees (1937), 365 Ill. 610; People ex rel. Donovan v. Retirement Board (1927), 326 Ill. 579.) If compulsory, participation created no vested or contractual rights in the participant. (Keegan v. Board of Trustees (1952), 412 Ill. 430, 434.) This is founded on the ancient premise that “a pension is a bounty springing from the appreciation and graciousness of the sovereign and may be given or withheld at its pleasure.” (People ex rel. Donovan v. Retirement Board (1927), 326 Ill. 579, 582.) Consequently, the legislature, if it saw fit, could change, amend or repeal the pension rights of employees under such plan. Bergin v. Board of Trustees (1964), 31 Ill. 2d 566, 574.

If a pension program was voluntary, however, the plan was characterized as contractual in nature. Therefore, the contractual rights of the employee became vested at the moment he began contributing to the pension fund. (Keegan v. Board of Trustees (1952), 412 Ill. 430, 434.) The legislature had no power to diminish or repeal these vested contractual rights, and a participant was entitled to a pension based on the status of the plan at the time he began his contributions. Raines v. Board of Trustees (1937), 365 Ill. 610, 615-16; also see Kraus v. Board of Trustees (1979), 72 Ill. App. 3d 833, 837.

It is the contention of defendants that the statutes before us must be read in light of this compulsory/voluntary distinction. It is argued that the first paragraph of the provisions set out above expresses the clear intent of the legislature to include “any person who is convicted of any felony.” It is claimed that this phrase includes all persons in compulsory programs regardless of their initial date of participation. Defendants assert that it would be contrary to the intent of the legislature to arbitrarily exempt from this provision all persons who entered service prior to 1955. Defendants argue that to construe the statute to prohibit its application to a person working 17 years after the effective date of the provision is entirely unreasonable and obviously contrary to the intent of the legislature. They rely on the statement of legislative purpose found in Kerner v. State Employees’ Retirement System (1978), 72 Ill. 2d 507:

“[T] he obvious purpose of the statute [is] to discourage official malfeasance by denying the public servant convicted of unfaithfulness to his trust the retirement benefits to which he otherwise would have been entitled.” (Kerner v. State Employees’ Retirement System (1978), 72 Ill. 2d 507, 513.)

However, the Kerner case is distinguishable from the cases before us. There, the participant entered the State Employees’ Retirement System in 1965. He was granted pension benefits upon his resignation in 1968. Such benefits were terminated following his conviction of several felonies relating to his employment pursuant to a felony-forfeiture statute identical to the ones here in issue. Therefore, the position of the participant was not the same as that of plaintiffs, since his entrance into the pension system was after the effective date of the felony forfeiture statute. We therefore find the Kerner case inapplicable.

The intent of the legislature must be found by construing the act as a whole. Meaning must be given to each part of the statute, for the legislature will not be presumed to have done a useless act. (People ex rel. Barrett v. Barrett (1964), 31 Ill. 2d 360, 364-65.) The defendants assert that their interpretation is not inconsistent with the second and third paragraphs of the quoted statutes. They claim (1) that both paragraphs have application only for those persons in voluntary plans; (2) that the second paragraph recognizes the vested rights of persons in voluntary programs; and (3) that the third paragraph adds a condition of coverage for all future voluntary pension participants, i.e., consent to the felony-forfeiture provision of the first paragraph. We do not agree.

In 1955, the identical three-paragraph provision (with minor exceptions) was added to most of the State’s public-employee pension acts regardless of whether participation in those plans was compulsory or voluntary. A review of the Illinois Pension Code reveals only 2 of the 17 plans so amended were voluntary plans — the General Assembly Retirement System and the Judge’s Retirement System. If defendants’ interpretation is accepted, it would mean that the legislature used the same body of language in both types of plans, voluntary and compulsory, but intended the results to be different and contradictory in each. In the compulsory plan the amendment would apply to all employees regardless of the date of their initial participation in the pension system. However, the same language used in the voluntary plan would subject to the amendment only those persons who began their participation in the pension plan after July 11, 1955. We find this theory unpersuasive. It is logical to believe that, by amending each provison with identical language, the legislature intended to achieve identical results. That identical result is to make the provision applicable only to those persons entering public service after 1955 regardless of of the type of plan in which they were enrolled. Defendant’s interpretation would render the second and third paragraphs totally meaningless and superfluous in 15 of the 17 pension codes which it amended — the compulsory plans. There is, however, a strong presumption against finding statutory language to be mere “surplusage.”

The question of the effect of the felony-forfeiture provision was addressed by the appellate court in a strikingly similar case, Shanahan v. Policemen’s Annuity & Benefit Fund (1976), 43 Ill. App. 3d 543. There, Shanahan and his fellow officer, Goodrich, entered service in 1946 and 1950, respectively. A statute identical to the ones at issue here was passed in 1955. Both were convicted of a felony connected with their service in 1972 and consequently had their pension benefits revoked under the felony-forfeiture provision. The trial court affirmed. On review the appellate court reversed, holding that, because both plaintiffs entered service before the effective date of the felony-forfeiture provision, the forfeiture provision did not apply. The court found that the language of the third paragraph of the statute manifested the clear and unambiguous intent of the legislature to make the statute applicable only to those persons entering service after July 11, 1955.

“If a contrary intent had been intended then the inclusion of the final paragraph *** would be meaningless and serve no purpose. We would be forced to label it mere surplus verbiage, and clearly such a presumption of surplusage is impermissible under the traditional rules of statutory construction.” Shanahan v. Policemen’s Annuity & Benefit Fund (1976), 43 Ill. App. 3d 543, 547.

We agree with Shanahan that it was the intent of the legislature to make the felony-forfeiture provision applicable only to those employees “entering service after July 11,1955.”

Because of our holding, we need not consider or reach the constitutional effect of article XIII, section 5, of the Illinois Constitution of 1970. For the reasons stated above we affirm the judgments of the appellate court.

Judgments affirmed.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.


source: Caselaw Access Project

author: MR. JUSTICE MORAN MR. JUSTICE RYAN,

license: Public Domain

text:
    (No. 52385.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JIMMY BEAN et al., Appellants.

      Opinion filed February 20, 1981.

      SIMON, J., took no part.
    RYAN and UNDERWOOD, JJ., concurring in part and dissenting in part.
    Brown, Goodman and Carper, Ltd., of Chicago (J. Chris Goodman, of counsel), for appellant Jimmy Bean.
    James J. Doherty, Public Defender, of Chicago (James L. Rhodes, Assistant Public Defender, of counsel), for appellants Jessie Byrd and Frank Byrd.
    Tyrone Fahner, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Joan S. Cherry, and Mark A. Graf, Assistant State’s Attorneys, and Melbourne A. Noel, Jr., and Mark L. Rotert, Assistant Attorneys General, of Chicago, of counsel), for the People.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Defendants, Jimmy Bean, Jessie Byrd and Frank Byrd, were charged by indictment with two counts of armed robbery. The circuit court of Cook County quashed the arrest and suppressed statements of Jimmy Bean, and quashed the arrest and suppressed the identification evidence of Jessie and Frank Byrd. Upon appeal, the appellate court reversed and remanded both causes. 73 Ill. App. 3d 918.

All three defendants contend that their arrests violated their rights guaranteed by the fourth amendment to the United States Constitution. Defendant Bean argues (1) his arrest was without probable cause and (2) the circumstances surrounding the arrest in his apartment required a warrant. Defendants Jessie and Frank Byrd assert that (1) their arrest was invalid, having occurred as a direct result of Bean’s illegal arrest, and (2) in any event, the circumstances surrounding their own arrest required a warrant.

On March 5, 1975, two men, armed with a sawed-off shotgun and pistol, entered a cleaning store and took money and phonograph records. On March 6, the investigating officer, Thomas Lahm, telephoned Lucinda Birmingham, whose name, address and telephone number had appeared on a police report of the March 5 incident. Ms. Birmingham told Officer Lahm that while she was standing across the street she observed two men come out of the cleaners and join two other men who were outside. She then saw all four run from the scene. She told Lahm that one of the men who had been outside the cleaners was Jimmy Bean, with whom she had previously gone to school. She further told Lahm that Bean was 17 or 18 years old and that he lived in the vicinity of Keeler and Gladys Streets (4200 West) in Chicago.

Subsequent to this conversation, Lahm checked the police alphabetic file and discovered that a Jimmy Bean had been arrested by Oak Park police in June 1974 and had given his address as 4211 West Gladys. Lahm then visited schools in the vicinity of 4211 West Gladys and learned that a Jimmy Bean went to school at Van Burén and Keeler Streets and had listed his address as 4211 West Gladys Street.

On March 13, at approximately 8 a.m., Lahm and Officer Korte accompanied by two other policemen arrived at 4211 West Gladys without a warrant. The accompanying officers went to the rear of the residence while Lahm and Korte approached the front door and knocked. The mother of defendant, Mrs. Bean, testified that when she opened the door the officers showed her their badges and said, “Police officers, we want to see Jimmy.” Mrs. Bean then asked them into the vestibule area; once inside; she requested the officers to wait while she left to put on a robe. The officers complied with this request. Upon her return, the officers again stated they wanted to see defendant. Mrs. Bean again asked them to wait while she went to get defendant. At this point, Korte went past her with his gun drawn. Mrs. Bean also testified that the officers went into defendant’s bedroom and told him to get dressed.

Officer Lahm testified that while they were in the apartment the defendant emerged from a bedroom. Lahm stated that he walked as far as the bedroom doorway, but did not enter the bedroom, although he could not recall whether Korte entered. Lahm informed defendant he was under arrest and then searched him for weapons. Thereafter, defendant was taken to the police car where he was advised of his constitutional rights.

Lahm further testified that five minutes after the arrest the defendant made an oral statement concerning the robbery. This statement was substantially the same as a written statement later made at the police station. The statements indicated that Frank and Jessie Byrd participated in the robbery with him. Following defendant’s oral statement to the police, the four officers and defendant proceeded to 4132 West Van Buren, where defendants Frank and Jessie Byrd were arrested. Later that day, the Byrds took part in a lineup and were identified as being participants in the armed robbery.

The trial court allowed Bean’s motion to quash his arrest on the basis that no probable cause existed. One week later, the trial court entered an order to suppress both of Bean’s statements as fruits of the illegal arrest. The court continued the hearing as to the voluntariness of the statements. On October 27, the trial court allowed a motion to quash the Byrds’ arrests and a motion to suppress the identification evidence. This action was founded on the ground that the illegal arrest of Bean led to the arrest and identification of the Byrds. The appellate court reversed and remanded both causes, noting that the police had probable cause to arrest Bean. In Bean’s case, the appellate court directed the trial court to conduct a hearing on the voluntariness of his in-custody statements. With respect to Jessie and Frank Byrd, the appellate court directed a hearing on the circumstances of their arrests. Defendants now appeal that decision.

We first consider defendant Bean’s contention that probable cause did not exist for his arrest. He argues that Lahm’s telephone conversation with a person who identified herself as Lucinda Birmingham, the eyewitness to the crime, failed to provide trustworthy information upon which probable cause could be based.

Birmingham’s name appeared as a witness on the original police report. When Lahm called her, she identified herself and identified Bean as one of the men who waited outside the cleaners and fled with the other three men. She told Lahm she had attended school with Bean and gave an approximate address of his home. The information as to Bean’s school and residence was verified by a search of police files and school records. As an ordinary citizen (the record indicates no evidence that she was a paid, professional informant), as well as an eyewitness to the offense, the officer was justified in relying upon Birmingham’s information. (People v. Hoffman (1970), 45 Ill. 2d 221, 225-26; People v. Hester (1968), 39 Ill. 2d 489, 513-14.) Although Lahm did not personaUy interview Birmingham, this court has held that a phone conversation can be the basis for estabhshing probable cause to arrest. (People v. Parks (1971), 48 Ill. 2d 232, 236; People v. Lucus (1968), 41 Ill. 2d 370, 375.) Under the facts and law stated, we conclude that Lahm had probable cause at the time he arrested defendant Bean.

Having ascertained the existence of probable cause, we must determine if the arrest of Bean without a warrant in his apartment violated his rights under the fourth amendment. Bean contends, under Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371, that even if probable cause is present, an arrest cannot be made in a person’s dwelling without a warrant in the absence of exigent circumstances. In Payton, however, the Supreme Court specifically excluded from its consideration entries accompanied by consent. (445 U.S. 573, 583, 63 L. Ed. 2d 639, 649, 100 S. Ct. 1371, 1378.) In the instant case, the State contends the officers’ entry was made with consent.

We agree that generally an arrest warrant is the desired means by which an individual’s right to privacy is protected. (Payton v. New York (1980), 445 U.S. 573, 590, 63 L. Ed. 2d 639, 653, 100 S. Ct. 1371, 1381-82; McDonald v. United States (1948), 335 U.S. 451, 453, 93 L. Ed. 153, 157, 69 S. Ct. 191, 192.) However, when voluntary consent is given to enter one’s residence and an arrest is effected based on probable cause, the suspect’s rights under the fourth amendment are not violated, even in the absence of exigent circumstances. The standard for valid consent applied by the Supreme Court in a variety of circumstances is whether that consent is voluntarily given. (Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2058-59; Bumper v. North Carolina (1968), 391 U.S. 543, 548, 20 L. Ed. 2d 797, 802, 88 S. Ct. 1788, 1791. See Johnson v. United States (1948), 333 U.S. 10, 13, 92 L. Ed. 436, 440, 68 S. Ct. 367, 368-69.) When a warrantless entry is justified by voluntary consent, that consent need not be given by defendant; it may be obtained from a third party who has control over the premises. United States v. Matlock (1974), 415 U.S. 164, 171, 39 L. Ed. 2d 242, 249-50, 94 S. Ct. 988, 993; People v. Heflin (1978), 71 Ill. 2d 525, 541.

Here, the entry, unlike that in Payton, was in no way forceable. (In Payton, the police used crowbars to break down the door and in Riddick v. New York, decided with Payton, defendant’s three-year-old son answered the door, whereupon the police entered. 445 U.S. 573, 583, 63 L. Ed. 2d 639, 649, 100 S. Ct. 1371, 1378.) Nor was the entry obtained by means of deception. Compare Bumper v. North Carolina (1968), 391 U.S. 543, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (consent obtained from defendant’s grandmother, the owner of the home, after policeman claimed that police had a search warrant, the existence of which was not shown).

According to Mrs. Bean’s own testimony, upon the officers identifying themselves and asking to see Jimmy Bean, Mrs. Bean invited them to come inside the apartment. The officers then waited until Mrs. Bean returned with her robe. The testimony of all parties established that Mrs. Bean voluntarily invited the officers into the apartment. After she returned, and then started to leave to get the defendant, Korte went past her with his gun drawn. Whether Bean was found inside or outside his bedroom is not controlling. When officers are given consent to enter an apartment to arrest a suspect who was involved in an armed robbery, they should not be required to wait for that person (who might be armed) to approach them or possibly attempt to escape. We hold that Bean’s arrest, based on probable cause and with consent to enter his apartment, was legal.

Defendants Jessie and Frank Byrd contend that their arrests occurred only as a result of Bean’s oral statement obtained after his illegal arrest. Consequently, they argue, their arrests and identifications also were illegal as the fruits of Bean’s arrest. Having held Bean’s arrest to be legal, this contention must fail.

The Byrds also argue that the circumstances surrounding their own arrest violated their fourth amendment rights. At the hearing on motions to quash their arrests and suppress their identifications, the State and the Byrds stipulated as to the following facts: (1) at the point of Bean’s arrest, the police investigation had not yet focused on the Byrds, (2) within minutes of Bean’s arrest, he made an oral statement naming the Byrds as participants with him in the armed robbery, (3) acting upon this statement the police then traveled to 4132 West Van Burén and there made the arrests of Jessie and Frank Byrd at approximately 8 a.m., and (4) the Byrds were identified in a lineup that day. The record, however, does not indicate if the above arrests were in the Byrds’ home, if the police entered the building, or if the police did enter the Byrds’ home, whether such entry was with consent. Like the appellate court, we are unable to determine from the record the circumstances surrounding the Byrds’ arrest.

We agree with the appellate court that these causes must be remanded to the trial court for further hearings as to the voluntariness of Bean’s statements and the circumstances surrounding the arrests and identifications of Jessie and Frank Byrd.

For the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.

MR. JUSTICE RYAN,

concurring in part and dissenting in part:

I concur in the majority opinion insofar as it relates to the defendant Jimmy Bean, but I dissent from that part of the opinion of my colleagues which remands the case of Jessie and Frank Byrd to the trial court for a determination of the circumstances surrounding their arrest.

The burden was on the Byrds to prove the illegality of their arrest. They relied, in the trial court and in our court, on the fact that Bean was illegally arrested and that Bean’s statement could not supply probable cause for their warrantless arrest. The opinion disposes of this contention by finding that Bean’s arrest was legal.

Whatever other reason there may be for holding the arrest of the Byrds to be illegal, the burden was on them to establish facts in support of such a determination in the trial court. The opinion of my colleagues states that we are unable to determine from the record the circumstances surrounding the Byrds’ arrest. To me, this says that the Byrds have not proved that they were illegally arrested and thus they have not sustained their burden of proof. I can see no reason for giving them another opportunity to do so. I would therefore reverse the holding of the appellate court as to the Byrds and remand their cause to the trial court for trial on the question of guilt.

MR. JUSTICE UNDERWOOD joins in this partial concurrence and partial dissent.


author: MR. JUSTICE CLARK

text:
    (No. 52759.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LARRY FRITZ, Appellant.

      Opinion filed February 20, 1981.

      SIMON, J., took no part.
    Mary Robinson, Deputy Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Melbourne A. Noel, Jr., Thomas E. Holum and William M. Wippold, Assistant Attorneys General, of Chicago), for the People.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The defendant, Larry Fritz, was charged by indictment with three counts of committing indecent liberties with a child (Ill. Rev. Stat. 1975, ch. 38, par. 11 — 4). One count was dismissed prior to trial for lack of venue. After a jury trial in the circuit court of Kane County, the defendant was convicted of the remaining two counts. He was sentenced to 5 to 10 years in prison on one count only. The court declined to impose sentence on the other count, but ordered the guilty verdict to stand. Defendant’s post-trial motion was denied. On appeal, the Appellate Court for the Second District affirmed. (77 Ill. App. 3d 1.) We allowed the defendant’s petition for leave to appeal. 73 Ill. 2d R. 315.

The defendant and his wife, Mary Fritz, spent the summer of 1976 sharing an apartment with a married couple and the couple’s children. On Saturday evening, August 14, 1976, Mary was babysitting for the children while the children’s parents were away for the weekend. One of the chüdren, 14-year-old Randy, was in his room working on his model cars. It was alleged that the defendant entered the room at approximately 8 p.m., and began to help Randy work on the cars. The defendant then allegedly committed the acts of deviate sexual conduct. At or near 8:45 p.m., the defendant left Randy’s room.

During the direct examination of the defendant’s wife, Mary Fritz, the following occurred:

“Q [defense counsel] : Okay. Now, earlier on Saturday at any time did your husband leave the house?
A. He left Saturday morning.
Q. About what time did he leave?
A. About 10:00, 11:00 in the morning.
Q. What time did he then come back, if he did?
A. I don’t know what time he came back.
Q. Was he back before 6:00 o’clock?
A. Yes.
Q. Then did he leave again?
A. He left about 2:00 or 3:00 in the afternoon and said he was going to work.
Q. When’s the next time that you saw him?
A. 12:00 o’clock that night.
MR. DOERR [prosecutor] : Your Honor, I’m going to object at this point to this line of testimony. All that this testimony was elicited for is alibi defenses or affirmative defenses. I have never been given notification of it.
MR. ANDERSON [defense counsel] : Your Honor, this is not in the nature of an alibi defense.
MR. DOERR: She just said he was at work from 3:00 to 12:00.
MR. ANDERSON: Can I have that statement stricken as to— I’m not sure I understand the State’s objection, that we’re going to testify at all here or just simply the statement she made as to what he said.
THE COURT: The jury may retire for a brief recess while we consider this.” (Emphasis added.)

The defendant contends that the trial court erred when it decided that the defendant was beginning to interpose the defense of alibi, and was doing so without informing the State in advance, as required by Supreme Court Rule 413(d)(iii) (73 Ill. 2d R. 413(d)(iii)). Further, the defendant contends that the court erred when it subsequendy recessed the trial and ordered Mary Fritz to submit to cross-examination under oath by the State’s Attorney.

We think it is clear that the witness volunteered a statement as to where the defendant told her he was going. There is no indication that the defendant intended to produce evidence that he was at work on August 14, 1976. In fact, as later testimony showed, he had been fired earlier in the week. While the defendant was attempting to prove through Mary Fritz’ testimony that the defendant was not at the scene of the alleged offense at or near 8 p.m., he did not intend to do so by establishing that he was at work.

The meaning of the word alibi is “elsewhere.” (Black’s Law Dictionary 95 (rev. 4th ed. 1968).) The defense of alibi does not, in theory, deny that the crime was committed, but is designed to prove that the defendant, during the whole time, was so far from the place where the crime was committed that he could not have participated in it. (People v. Thomas (1946), 393 Ill. 573, 580; People v. Lukoszus (1909), 242 Ill. 101, 108-109; see generally 21 Am. Jur. 2d Criminal Law sec. 136 (1965).) To establish an alibi, the accused must show that he was at another specified place at the time the crime was committed, thus making it impossible for him to have been at the scene of the crime. It is not enough for the accused to say he was not at the scene and must therefore have been elsewhere. 21 Am. Jur. 2d Criminal Law sec. 136 (1965).

In People v. Ashley (1960), 18 Ill. 2d 272, the defendant was convicted of the armed robbery of a tavern. On appeal, he argued that the trial court erred when it refused to give a jury instruction regarding an alibi. The defendant had offered the testimony of the defendant’s employer to the effect that the defendant did work in a restaurant for the employer and that defendant’s regular hours were 7 p.m. to 2 a.m. When the employer was asked who was in the restaurant between 2:50 and 3 a.m. on May 19, 1958, the time of the armed robbery, the employer responded that he was there alone. That testimony was held insufficient to establish an alibi since it “entirely failed to indicate the whereabouts of defendant during the time the crime was committed. Under these circumstances an instruction on alibi was properly refused.” 18 Ill. 2d 272, 281.

Our Rule 413 (73 Ill. 2d R. 413(d)(iii)), which was amended effective November 15, 1976, specifies that defense counsel, upon written motion, shall inform the State “if the defendant intends to prove an alibi, [and shall provide] specific information as to the place where he maintains he was at the time of the alleged offense.” The Supplement to Historical and Practice Notes (Ill. Ann. Stat., ch. 110A, par. 413, Supplement to Historical and Practice Notes, at 195 (Smith-Hurd Supp. 1980)) states that “if a defendant intends to raise an alibi defense, he must, upon motion by the State, provide specific information as to his asserted whereabouts during commission of the crime.” A motion was filed by the State herein, and the defendant answered that he did not intend to prove an alibi.

In People v. Pearson (1960), 19 Ill. 2d 609, 614, this court approvingly quoted an instruction given in that trial. It stated in part:

“If a person on trial for a crime shows that he was in another place at the time when the act was committed, he is said to prove an alibi.”

Since the State must prove that the defendant was present at the time an offense allegedly occurred (People v. Pearson (1960), 19 Ill. 2d 609, 614), a defendant may introduce the testimony of an occurrence witness that the witness did not see the defendant at the time and place in question. Such testimony is elicited to rebut the State’s case. It is not designed to establish that a defendant was at any other definite place.

We think there is a difference between attempting to prove that a defendant was in some definite place other than where the crime occurred, and attempting to prove that the defendant was not at the scene of the offense at the time it allegedly occurred. In the instant case, in order to present competent evidence of an alibi, the defendant would have had to produce evidence that he was at a definite place elsewhere than at the apartment, during the time the offense allegedly occurred. Mary Fritz could not competently testify as to the defendant’s presence at any place except the apartment, since that is where she was all Saturday evening. Thus, Mary Fritz could only competently testify as to whether defendant was at the apartment, in her capacity as an occurrence witness, but she would be incapable of testifying, as an alibi witness, of defendant’s whereabouts anyplace else. Therefore, Mary Fritz’ volunteered, unresponsive statement that defendant told her he was going to work cannot be considered as evidence of an alibi: first, because it was volunteered; second, because Mary Fritz did not know whether defendant was actually going to work; and third because Mary Fritz was present at the scene of the alleged offense, not elsewhere. Moreover, other than Mary Fritz’ statement, the defendant never offered any evidence that he was present at any other definite place. His theory was simply that he was not at the apartment between 8 and 9 p.m. on August 14, 1976. Hence no evidence of an alibi was presented in this case.

The defendant next argues that the court abused its discretion when, upon the State’s objection that an alibi was being raised, the court recessed the trial to give the State an opportunity to cross-examine Mrs. Fritz. The State argues that the court was within its discretionary power to order the defendant to disclose information not previously disclosed, pursuant to Rule 415(g). 73 Ill. 2d R. 415(g).

The record discloses that the trial court’s commendable intention in permitting the prosecutor to cross-examine Mary Fritz outside the presence of the jury as to whether the defendant was at work was to discover if the defendant was, indeed, working, and thus not culpable of the charged offenses. Defense counsel attempted to tell the court, without revealing the client’s confidential communication, that the defendant had not been at work on August 14, 1976. Over defense counsel’s continued objection, the prosecutor then extensively questioned the defendant’s wife, Mary Fritz, concerning her husband’s place of employment, his hours, his working associates, and when he told her he had been fired. The prosecutor also asked Mrs. Fritz about conversations she had with the defendant and defense counsel concerning whether the defendant was working on August 14, 1976. Defense counsel objected to any questions involving these conversations, arguing that they were protected by the marital and attorney-client privileges, respectively. The objections were overruled and Mrs. Fritz answered the questions.

The day after the prosecution examined Mrs. Fritz outside the presence of the jury, the State elicited testimony from Mrs. Fritz at trial and before the jury that her husband told her on Saturday afternoon he was going to work. Mrs. Fritz also testified that she was not certain where the defendant had worked other than at a truck stop, she did not know his hours, or his working associates. In the course of its cross-examination, the State was able to impeach Mrs. Fritz, on a number of points, including where the defendant was supposed to have worked, where the victim, Randy, was between 8 and 9 p.m. on August 14, 1976, and where the defendant was at the same time. The State then recalled Mrs. Olga Francis, who testified that the defendant told her husband and herself on Friday, August 13, 1976, that he had been fired because he was suspected of stealing $150.

We think that the foregoing testimony, adduced due to Mrs. Fritz’ volunteered remark which should have been stricken, is extremely prejudicial to the defendant. The defendant did not intend to produce evidence that he was at work at the time in question. It is the duty of the court to strike nonresponsive answers to questions, when a proper motion to do so is made. (Math v. Chicago City Ry. Co. (1909), 243 Ill. 114, 122.) Thus, the testimony elicited by the State put the defendant in the position of rebutting evidence which would not have been admitted if the motion to strike had been granted.

Additionally, in People ex rel. Bowman v. Woodward (1976), 63 Ill. 2d 382, 386-89, we held that a defendant’s privilege against self-incrimination, guaranteed under both the Federal and State constitutions (U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10), is violated when a defendant is compelled to produce information of a testimonial or communicative nature (Schmerber v. California (1966), 384 U.S. 757, 761, 16 L. Ed. 2d 908, 914, 86 S. Ct. 1826, 1830) that he did not intend to introduce at trial. We think the admission of this prejudicial evidence, produced in violation of the defendant’s privilege against self-incrimination and introduced for the ostensible purpose of rebutting evidence of an alibi (see People v. Pearson (1960), 19 Ill. 2d 609, 614), which could not have been established by Mary Fritz’ testimony, requires reversal.

Thus, we need not consider whether the trial court abused its discretion in ordering the cross-examination of Mrs. Fritz, without the jury being present. We need only decide that, since Mrs. Fritz was not an alibi witness but an occurrence witness, it was unnecessary for the court to order an examination of her.

The defendant also argues that the prosecutor’s examination of Mrs. Fritz, both outside the presence of the jury and at trial, violated the marital and attorney-client privileges. Specifically, Mrs. Fritz was asked whether she discussed with the defendant and defense counsel whether the defendant was at work on August 14, 1976. Mrs. Fritz stated that she discussed this matter with the defendant while he was in the Kane County jail and then she discussed it separately with defense counsel. We agree with the appellate court that the marital privilege was not waived when Mrs. Fritz took the stand, and that the privilege was violated by the examinations she was compelled to undergo. We do not agree with the court that no prejudice resulted. Since Mrs. Fritz’ conversations with her husband in the jail were confidential, she could not be compelled to reveal their contents. (People v. Simpson (1977), 68 Ill. 2d 276, 279-80; Ill. Rev. Stat. 1975, ch. 38, pan. 155 — 1.) The implication was clear from the examination of Mrs. Fritz that, if the defendant had been working the night in question, some evidence of that fact would have been adduced at trial. The jury could easily speculate that no evidence was adduced because none was available. We think that prejudicial error therefore resulted from the violation of the marital privilege. It becomes unnecessary then to decide whether, as defendant urges, Mrs. Fritz was defense counsel’s agent for purposes of the application and violation of the attorney-client privilege.

Since we are remanding this matter for a new trial and, concomitantly, vacating the sentence imposed by the trial court, it is unnecessary to consider whether, as defendant urges, the trial court improperly considered the defendant’s arrest record, or “rap sheet,” when it sentenced the defendant. That issue is not squarely presented on this appeal.

Accordingly, for the reasons stated, the judgments of the appellate and circuit courts are reversed, and the cause is remanded to the circuit court for a new trial.

Reversed and remanded.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.


author: MR. JUSTICE WARD

text:
    (No. 53196.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. LYNN MICHAEL PATES, Appellee.

      Opinion filed February 20, 1981.

      SIMON, J., took no part.
    William J. Scott, Attorney General, of Springfield, and Carl E. Hawkinson, State’s Attorney, of Galesburg (Donald B. Mackay and Melbourne Noel, Assistant Attorneys General, of Chicago, and John X. Breslin and Gerry R. Arnold, of the State’s Attorneys Appellate Service Commission, of Ottawa, of counsel), for the People.
    Dennis A. DePorter, of Braud, Warner, Neppl & Westensee, Ltd., of Rock Island, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

The defendant, Lynn Michael Pates, after a jury trial, was convicted in the circuit court of Knox County of the possession, with intent to deliver, of more than 500 grams of cannabis in violation of section 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56x/2, par. 705(e)). He was sentenced to serve four years’ probation, with 150 days to be served in the county jail, and was also fined $4,000. On appeal the appellate court reversed the judgment of conviction and remanded the cause for a new trial. (80 Ill. App. 3d 1062.) We allowed the State’s petition for leave to appeal under Rule 315 (73 Ill. 2d R. 315). The only issues before us are whether the jury was properly instructed on a defense of entrapment, and whether marijuana found in the defendant’s car following his arrest should have been admitted into evidence.

The circumstances leading to the defendant’s arrest are set forth in the opinion of the appellate court. Since no claim is made here that the evidence failed to prove beyond a reasonable doubt that the defendant was guilty, no more than a summary of it is required. On May 22, 1978, Craig Bultemeir was arrested by officers of the Knox County sheriff’s department for the unlawful delivery of cocaine. While in the custody of the arresting officers Bultemeir was told by Deputy Sheriff William Muir that his cooperation with the police in making additional arrests for narcotic violations would be considered in connection with the charge pending against him.

The testimony was in conflict as to whether the name of the defendant, whom Bultemeir knew, was volunteered by Bultemeir or was suggested by Officer Muir. In any event, Bultemeir telephoned the defendant at Muir’s direction and relayed a fictitious story supplied by Muir to the effect that Bultemeir had with him two friends from Rockford who wished to buy 10 pounds of marijuana. The defendant, who had no record of prior arrests, stated initially that he had no marijuana in his possession, but after several additional phone calls made by Bultemeir at Muir’s direction, the defendant said that he knew someone who did have some marijuana for sale, and a meeting was set up for the following day at which the marijuana would be delivered.

The defendant appeared at the rendezvous in his car, followed by a pickup truck occupied by two other persons, Stephen Hall and Ronald Boone. Bultemeir arrived in the company of two agents of the Illinois Department of Law Enforcement, dressed in plain clothes, who posed as the friends of Bultemeir that wanted to purchase the marijuana. The officers approached the defendant, who gave them two marijuana cigarettes as samples, and told the officers that the marijuana to be sold was in the back of the pickup truck, where the officers then viewed two five-pound bags. There followed a conversation in which the officers, in answer to their inquiry, were told either by the defendant or by one of his companions that the price was $4,000. All three suspects were then arrested. Hall and Boone were charged with the same offense as the defendant, but were tried separately.

At the trial, the defendant asserted the affirmative defense of entrapment. Both the defendant and the State tendered instructions on entrapment. The defendant’s instruction was No. 24.04 of the Illinois Pattern Jury Instructions (IPI), Criminal (1968). It was refused. The State’s instruction was a modification of No. 24.04, and it was given to the jury over the objection of the defendant. For clarity of exposition we set out below section 7 — 12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 7 — 12), which defines entrapment, IPI Criminal No. 24.04, and the State’s instruction.

Section 7 — 12 of the Criminal Code of 1961 provides:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” Ill. Rev. Stat. 1979, ch. 38, par. 7 — 12.

IPI Criminal No. 24.04 (1968) reads:

“It is a defense to the charge made against the defendant that he was entrapped, that is, that for the purpose of obtaining evidence against the defendant he was incited or induced by a [public (officer) (employee)] [an agent of a public (officer) (employee)] to commit a crime which he otherwise would not have committed.
However, the defendant was not entrapped if a [public (officer) (employee)] [an agent of a public (officer) (employee)] merely afforded to the defendant the opportunity or facility for committing a crime [which he was willing to commit] in furtherance of a criminal purpose which the defendant originated.”

People’s Instruction No. 16 stated:

“It is a defense to the charge made against the defendant that he was entrapped, that is, that for the purpose of obtaining evidence against the defendant he was incited or induced by an agent of a public officer to commit a crime which he otherwise would not have committed.
However, the defendant was not entrapped if an agent of a public officer merely afforded to the defendant the opportunity or facility for committing a crime which he was willing to commit. ”

The clause, “which he was willing to commit,” that appears at the close of the second paragraph of the State’s instruction also appears in IPI Criminal No. 24.04, but in brackets. Although the committee’s notes to this instruction do not discuss the matter, the pattern instructions, in general, use brackets to designate additional language which may be appropriate for inclusion in some particular cases. The defendant suggests that the use of the clause above would be proper only in cases where it is claimed that the defendant’s conduct is rendered noncriminal on some ground other than entrapment, such as duress (see Ill. Rev. Stat. 1979, ch. 38, par. 7 — 11). No question of that character is involved in the present case.

As the appellate court pointed out (80 Ill. App. 3d 1062, 1066), it is an element of the crime charged that the defendant possessed the marijuana with the intent to sell it. It would therefore be superfluous for an instruction on entrapment to refer to the defendant’s having been “willing” to commit the crime, since the requisite intent is established simply by the occurrence of the transfer of the marijuana (People v. Lewis (1980), 83 Ill. 2d 296).

By the addition of the “which he was willing to commit” clause and the deletion from the pattern instruction of the phrase “in furtherance of a criminal purpose which the defendant originated” the State’s instruction could lead the jury to believe that the State could rebut the claim of entrapment without showing that the defendant had been predisposed to the commission of an offense of this kind. The instruction was thus improper under People v. Cross (1979), 77 Ill. 2d 396, 405, and People v. Tipton (1980), 78 Ill. 2d 477, 487-88, which held that the presence or absence of a predisposition on the part of the defendant was relevant in determining whether entrapment had been established.

The State contends, on the other hand, that its modification of IPI Criminal No. 24.04 was necessary because the second paragraph of the pattern instruction itself is incorrect and would mislead or confuse the jury. We have some difficulty in following the State’s argument, but the objection to No. 24.04 seems to be that it would lead the jury to believe that entrapment is established, without more, whenever contact with a defendant is initiated by an informer’s request that a narcotic be procured. We fail to see how the pattern instruction would convey that meaning. We are also unpersuaded by the State’s assertion that the courts have altered their construction of section 7 — 12 so that instruction No. 24.04, however legitimate it may have been in 1968, has now been rendered obsolete. In any event, the question for decision here is whether the State’s instruction was incorrect, and we agree with the appellate court that it was.

After the arrest of the defendant and his companions one of the officers observed a partially burned marijuana cigarette in the ashtray of the defendant’s car. The officer then searched the car and discovered additional small quantities of marijuana, which were each admitted into evidence. No question is made as to the validity of the search and seizure, but since the State admitted that these specimens of marijuana were not of the same type as the marijuana carried in the pickup truck which was the subject of the criminal charge, the appellate court held that possession of the specimens was not relevant to the charge, and that their admission was prejudicial to the defendant. The appellate court accordingly directed that on retrial the marijuana found in the car should not be admitted.

We agree with the ruling of the appellate court. The possession of the small amount of marijuana was not probative under the circumstances.

For the reasons given in this opinion the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.


text:
    (No. 52964.

      In re MARRIAGE OF MYRA Z. KOMNICK, Appellee, and LOREN J. KOMNICK, Appellant.

      Opinion filed January 20, 1981.

    Rehearing denied March 27, 1981.

      SIMON, J., took no part.
    Leon J. Zanoni and G. Michael Prall, of Yoder, Yoder, Zanoni, Flynn & Prall, of Bloomington, for appellant.
    James R. Ensign, of Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

After 30 years of marriage, Myra Komnick, on October 21, 1977, filed a petition in the circuit court of McLean County for dissolution of marriage or, in the alternative, for legal separation from Loren Komnick. The court ordered dissolution of the marriage on April 6, 1978. After a hearing on the distribution of property and maintenance, the court ordered that the petitioner, with conditions not relevant here, be given use for life of the marital home, which is held in joint tenancy by the respondent and his mother. She was also given a one-half ownership interest in a life insurance policy in which the respondent was the assured. He was directed to retain her as the beneficiary and was ordered to pay $400 per month in periodic maintenance. In order to satisfy outstanding debts, the parties were also directed to sell a duplex owned by them in joint tenancy and to divide evenly whatever surplus remained.

The circuit court held that a 194-acre tract of farmland, in which the husband possessed an undivided one-half interest in fee simple subject to a life estate in his mother, was nonmarital property and therefore would be his separate property after dissolution of the marriage. This land had been devised to the respondent in 1965. The petitioner did not claim that the tract itself was marital property, but she argued unsuccessfully that its appreciation in value between the date it was acquired by the respondent in 1965 and the date of dissolution in 1978 should be considered marital property and accordingly subject to equitable distribution.

The petitioner appealed to the appellate court from that portion of the court’s order which held that the tract’s appreciated value was nonmarital property. The respondent cross-appealed from the order as to maintenance, use of the marital home, and the assignment to the petitioner of the one-half interest in the insurance policy. The appellate court reversed the judgment of the circuit court, holding that the appreciation in value of the 194 acres was to be considered marital property under section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 503) and therefore distributable in just proportions to each party (78 Ill. App. 3d 599). The court did not address the issues presented in the cross-appeal, saying that these questions might become moot when the trial court, upon remandment, altered its order of distribution of the marital property. We granted the respondent’s petition for leave to appeal. 73 Ill. 2d R. 315.

Between 1956 and 1965, the respondent, his father and uncle worked the 194-acre farm (which the uncle owned), equally dividing the profits. As stated, in 1965 at the death of his uncle, the respondent was devised an undivided one-half fee-simple interest in the farm, subject to a life estate in his mother. He continued to farm the land from 1966 to 1973 under an arrangement by which he received a one-third share and his mother a two-thirds share in the profits. In 1973 the respondent discontinued farming and a tenant operated the farm. The profits, less the tenant’s share, were divided evenly between the respondent and his mother.

It was stipulated that in 1965, when the respondent inherited his interest, the farm was valued at $800 per acre. In May of 1979, at the property hearing following the dissolution order, it was agreed that the value per acre was $3,700, which indicated an increase of $511,373 in value for the total acreage. The parties also stipulated that this appreciation was substantially attributable to external economic factors and not to any capital improvements made upon the land. There is no contention that the petitioner contributed to the appreciation in value. The only question for us is whether this appreciation in value of property, which under our act was nonmarital property though acquired during marriage, is to be considered marital property.

Nonmarital and marital property are to be distributed by the court upon the dissolution of marriage under section 503 of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1977, ch. 40, par. 503.) Under this section all property acquired after marriage is presumed to be marital (Ill. Rev. Stat. 1977, ch. 40, par. 503(b)) and therefore subject to apportionment unless it is one of the six exceptions declared in section 503(a) to be nonmarital property. This section provides:

“(a) For purposes of this Act, marital property means all property acquired by either spouse subsequent to the marriage, except the following, which is known as non-marital property:
(1) property acquired by gift, bequest, devise or descent;
(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent;
(3) property acquired by a spouse after a judgment of legal separation;
(4) property excluded by valid agreement of the parties;
(5) the increase in value of property acquired before the marriage; and
(6) property acquired before the marriage.” Ill. Rev. Stat. 1977, ch. 40, par. 503(a).

The respondent argues that property, for purposes of the Act, when acquired through devise, remains nonmarital property regardless of whether it appreciates or depreciates in value and thus the farm must be considered his separate property. The respondent says that to hold an inflationary appreciation in value of such property to be marital property would be contrary to the intendment of the Act. That design, he contends, is to distribute marital property only upon a “shared enterprise” basis.

The petitioner acknowledges that, since the respondent acquired the farmland by devise, it was properly determined by the circuit court to be nonmarital property. To support her contention that the stipulated appreciation in value is to be considered marital property, the petitioner relies upon the rule of construction, expressio unius est exclusio alterius, or broadly, when one of a class is expressly mentioned, others of the class are to be considered excluded. She notes that the legislature, in section 503(a)(5), specifically excepted as marital property any appreciation in value of property acquired before marriage. Since no exception for the appreciation in value of property acquired after marriage appears in section 503, the petitioner claims that a post-marital appreciation is to be considered marital property. This contention, she submits, is consistent with the legislative design under the new act, in which, she maintains, the emphasis is upon an equitable division of marital assets.

Our present Illinois Marriage and Dissolution of Marriage Act, which became effective in 1977 (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.), in its provisions for the distribution of property upon the dissolution of marriage, regards the marriage relationship as a shared enterprise or a partnership agreement. Thus, under the Uniform Marriage and Divorce Act, from which our section 503 is drawn, the distribution of property is based in part on the contributions of each spouse to the marital relationship as well as to the accumulation of wealth or property. (See Handbook of the National Conference of Commissioners on Uniform State Laws 203 (1970); Krauskopf, A Theory for “Just” Division of Marital Property in Missouri, 41 Mo. L. Rev. 165 (1976).) This court in In re Marriage ofAschwanden (1980), 82 Ill. 2d 31, considering section 503(c) of the Act, ordered that the trial court, in dividing marital property equitably or in “just proportions,” must take into account not only the monetary contributions of each spouse but must recognize substantial contributions made by a spouse as homemaker and parent. The decision in essence recognized the importance of viewing the marital relationship as a shared enterprise upon which the distribution of marital property should be based. This notion of shared enterprise or partnership and the equitable division of property appears in decisions in other jurisdictions. See, e.g., Rothman v. Rothman (1974), 65 N.J. 219, 229, 320 A.2d 496, 501; Parsons v. Parsons (1975), 68 Wis. 2d 744, 754, 229 N.W.2d 629, 634, relying upon Lacey v. Lacey (1970), 45 Wis. 2d 378, 382-83, 173 N.W.2d 142, 144-45.

This shared-enterprise or partnership notion underlies the presumption that all property acquired by either spouse after marriage is presumed to be marital property unless excepted under section 503(a). Similarly, under section 503(a) property which is acquired, for example, by gift or inheritance, is deemed to be nonmarital property because demonstrably it was not obtained through any joint enterprise but through an independent source.

Considering this intendment of the Act, we find nothing in it to support the argument that an appreciation in value of nonmarital property acquired by devise takes on the character of marital property notwithstanding the fact that the property has not been improved or changed and has increased in value without any action of the marital parties. The petitioner’s advancing the rule of construction expressio unius est exclusio alterius does not change our conclusion. Aids to statutory construction are designed to ascertain and not to override the intent of the legislature. (See 2A Sutherland, Statutes and Statutory Construction secs. 57.01 through 57.10 (1973).) The 194-acre farm obtained by devise in 1965 unquestionably was nonmarital property under the Act. That it appreciated in value over a 13-year period is not of consequence where the increase was due solely to inflationary factors. Its character remains the same.

This was the conclusion reached too by the Missouri Court of Appeals in Hull v. Hull (Mo. App. 1979), 591 S.W.2d 376. There the husband, an attorney, was granted two tracts of farmland after his marriage as a gift from a client. The value of the property increased threefold during the marriage. In applying a Missouri statute which is virtually identical to our section 503(a) (see Mo. Rev. Stat. sec. 452.330(2) (Supp. 1979)), the court rejected the wife’s contention that the increase in value of property acquired after the marriage was marital property. The court stated: “The statutory directives for identification of marital and nonmarital property do not, as the wife here suggests, contemplate any sub classification whereby an asset in part partakes of the attributes of nonmarital property and in part is considered marital property.” (591 S.W.2d 376, 381.) Citing three supporting decisions, the court declared that “ [t]hese authorities and the language of the statute require the conclusion that assets which are separate property retain that identity and are not subject to division by the court in a dissolution of marriage action regardless of changes in value by appreciation or depreciation.” (591 S.W.2d 376, 381.) The cases cited are Davis v. Davis (Mo. App. 1976), 544 S.W.2d 259, Stark v. Stark (Mo. App. 1976), 539 S.W.2d 779, and Conrad v. Bowers (Mo. App. 1975), 533 S.W.2d 614.

In concluding that the appreciation of the value of nonmarital property acquired by devise is to be regarded as nonmarital property, we are not saying, however, that there cannot be circumstances which would entitle the other spouse to share in the appreciation. Though the non-marital property and its appreciated value remain the separate asset of the spouse who received it subsequent to the marriage, a court, relying upon evidentiary proof, would have to distribute the marital property of the couple in a manner that would reflect the measure of contributions of the spouses. (See, e.g., Angel v. Angel (Ky. App. 1978), 562 S.W.2d 661. See also Krauskopf, A Theory for “Just” Division of Marital Property in Missouri, 41 Mo. L. Rev. 165 (1976).) Our act requires a court, in dividing marital property in just proportions, to take into account “the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit.” Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(1).

For the reasons given, the judgment of the appellate court is reversed and the cause is remanded to that court for its consideration of the issues presented on the respondent’s cross appeal.

Reversed and remanded, with directions.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.


author: MR. CHIEF JUSTICE GOLDENHERSH

text:
    (No. 53225.
    IRENE BENTLEY, Appellant, v. GEORGE BENTLEY, Appellee.

      Opinion filed January 20, 1981.

    Rehearing denied March 27, 1981.

      SIMON, J., took no part.
    Charlotte Adelman, of Chicago, for appellant.
    Crandell and Hoag, of Evanston (Rosaland M. Crandell, of counsel), for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Irene Bentley, filed an action in the circuit court of Cook County against defendant, George Bentley, seeking a divorce, alimony, attorney’s fees, and “an equitable division of all property jointly owned by the parties.” Defendant answered and filed a countercomplaint for divorce and partition, to which the plaintiff filed an answer and reply. Because this action was pending on its effective date, the Illinois Marriage and Dissolution of Marriage Act (hereinafter the Dissolution Act) applies. (Ill. Rev. Stat. 1979, ch. 40, par. 801(b).) The circuit court entered judgment dissolving the marriage and distributing the marital and nonmarital property. Plaintiff appealed, the appellate court affirmed (82 Ill. App. 3d 25), and we granted plaintiff’s petition for leave to appeal (73 Ill. 2d R. 315(a)). The opinion of the appellate court adequately sets forth the evidence and the portions of the circuit court judgment concerning property distribution, and they will be reviewed here only to the extent necessary to discuss the issues.

As she did in the appellate court, plaintiff makes a number of contentions with respect to the alleged inequities of the property distribution. Because of the circumstances shown by this record and the issues presented, we must first determine whether under the provisions of section 503(a) of the Dissolution Act the increase in value of certain real estate, admittedly “non-marital property,” was “marital property.”

Section 503 of the Dissolution Act provides in part:

“(a) For purposes of this Act, ‘marital property’ means all property acquired by either spouse subsequent to the marriage, except the following, which is known as ‘non-marital property’:
(1) property acquired by gift, bequest, devise or descent;
* * *
(5) the increase in value of property acquired before the marriage;
** *
(b) All property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed to be marital property, ***. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.
(c) In a proceeding for dissolution of marriage *** the court shall assign each spouse’s non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
* * *
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, ***;
* * *
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
* * *
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.” Ill. Rev. Stat. 1979, ch. 40, par. 503.

Although the issue was argued in plaintiff’s brief in the appellate court, that court did not decide the precise question here presented. The appellate court, however, has held previously that the increased value of nonmarital property acquired after marriage and prior to dissolution is marital property. (In re Marriage of Komnick (1979), 78 Ill. App. 3d 599, rev’d and remanded (1981), 84 Ill. 2d 89; In re Marriage of Preston (1980), 81 Ill. App. 3d 672.) The Missouri Court of Appeals (Hull v. Hull (Mo. App. 1979), 591 S.W.2d 376) has held to the contrary. We note, too, that of States which, like Illinois, have enacted modified versions of the Uniform Marriage and Divorce Act, Colorado has provided that an increase in value of nonmarital property is marital property (Colo. Rev. Stat. sec. 14 — 10—113(4) (1974)); and Kentucky excludes from marital property the increase in value of property acquired before marriage “to the extent that such increase did not result from the efforts of the parties during marriage” (Ky. Rev. Stat. sec. 403.190(2)(e)(1979)).

Upon consideration of the provisions of section 503 of the Dissolution Act we conclude that the General Assembly did not intend that the appreciated value of non-marital property become marital property. Section 503(c) provides that upon dissolution the court shall “assign” the nonmarital property and “divide” the marital property. Division of the increased value would frequently necessitate division of the entire parcel or item of nonmarital property, and we are of the opinion that to thus subject the nonmarital property to division between the parties would contravene the legislative intent. The enhanced value of nonmarital property is of course to be considered in dividing the marital property (section 503(c)(4)) and in determining whether maintenance (Ill. Rev. Stat. 1979, ch. 40, par. 504) is appropriate and in what amount.

Although it cannot be ascertained from the record to what extent the circuit court considered the factors enumerated in section 503(c) in dividing the marital property, colloquy between court and counsel suggests that in making the maintenance award the court was of the opinion that it was not permitted to take into consideration the nonmarital property. This property, apparently worth $42,000, should have been taken into consideration in determining the amount of maintenance and the period during which it was to be paid. Insofar as the remainder of the property distribution is concerned, we agree with the appellate court that in entering its judgment the circuit court did not abuse discretion. With the exception of that portion of the judgment concerning the payment of maintenance the judgments of the appellate and circuit courts are affirmed, and as to that portion, the judgments are vacated and the cause remanded to the circuit court of Cook County for proceedings consistent with this opinion.

Appellate court affirmed in part and vacated in part; circuit court affirmed in part and vacated in part.

MR. JUSTICE SIMON took no part in the consideration or decision of this case.