text:
    (No. 53999.
    HUNTER CORPORATION, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Adolph Amelkin, Appellee).

      Opinion filed October 21, 1981.

      Cohn, Lambert & Ryan, Ltd., of Chicago (Pamela Karoff Kesler, of counsel), for appellant.
    Tuite, Morrissey, Gesmer & Finnegan, of Rockford (Gerald F. Tuite and Gregory E. Tuite, of counsel), for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

On December 1, 1977, Adolph Amelkin, who was employed as a pipefitter by the Hunter Corporation in the construction of a nuclear plant in Byron, Illinois, injured his back when walking to a company warehouse to pick up building materials. He received medical treatment and remained off work until February 22,1978. On March 14 he reinjured his back while lifting a railroad tie at work. Amelkin was 58 years of age and earned $458 per week or $23,816 per year. He filed two separate claims under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.), which were consolidated at the arbitration hearing. The arbitrator’s decision was that the claimant had suffered an accidental injury on December 1, 1977, which arose out of and was in the course of his employment. He was awarded $304.21 per week for 52 4/7 weeks for temporary total incapacity as a result of a disabling injury whose permanency the arbitrator found could not yet be determined. The arbitrator’s order provided that the award did not bar the recovery of future compensation for temporary total or permanent disability and stated further that Hunter Corporation must provide “all necessary medical expenses, treatment, instruction, and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto” citing section 8(a) of the Workmen’s Compensation Act. (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).) The Industrial Commission modified and affirmed the arbitrator’s decision. It extended the total period of temporary total disability to 824/7 weeks and also orderd that Hunter pay the “necessary tuition costs and expenses to attend Pace University” in New York City, where the claimant was a permanent resident, so that he may “return to approximately the same economic position as he was in prior to the accident 00°.” Hunter was also directed to pay $304.21 for each week the claimant was “pursuing vocational rehabilitation The circuit court of Ogle County confirmed the decision of the Commission and Hunter appealed directly to this court under Rule 302(a) (2) (73 Ill. 2d R. 302(a)(2)).

The claimant testified that his occupation demands substantial physical labor. As a pipefitter, he is called upon to carry, bury, install and hang pipes and other materials weighing up to 100 pounds. On December 1, 1977, the claimant’s foreman requested that he pick up some materials from the company warehouse. While walking to the warehouse with another employee he slipped on ice and fell on his back. He continued to work that day but felt a sharp pain in his lower back which gradually increased and spread to his right leg. This incident took place on Thursday. On Friday evening he went to the emergency room at the Swedish American Hospital in Rockford, where he was given pain medication. When he reported for work the following Monday he told the circumstances of his injury to his foreman, who sent him to the company nurse. She in turn referred him to Dr. Gerald Bowman, a physician of the Lundholm Clinic in Rockford. Dr. Bowman prescribed pain medication and diathermy treatment for his lower back and recommended that he not return to work until his condition improved. During his period of rest, the claimant was placed under the care of Dr. Donald Lyddon, Jr., an orthopedic surgeon, who was associated with the Lundholm Clinic and who also prescribed diathermy treatment and pain medication. The claimant testified that after several weeks Dr. Lyddon advised him that he could go back to work but “to take it easy.” Though he still felt some pain in his lower back and right leg he returned to work as a pipefitter on February 22, 1978.

He worked for about three weeks, but on March 14, 1978, while lifting a 200-pound railroad tie with another employee, he said he experienced “excruciating pain” in his lower back. He lowered the tie and reported the injury to his supervisor.

As on the previous occasion, he was referred to Dr. Lyddon, to whom he complained of back pain and also that his left leg had become painful, especially when he was trying to sleep. Between March and May of 1978, the claimant saw Dr. Lyddon regularly and received daily diathermy treatments. During this period the claimant told Dr. Lyddon of his wish to return to his home in New York City. He testified that the doctor told him to get a “nonphysical” job which would not require him to lift more than 35 pounds or require excessive bending or climbing. The claimant further stated that Dr. Lyddon would not sign a work release so that he could return to work at Hunter as a pipefitter.

He said that when it became apparent that Hunter was not going to place him in another position with the company, he returned in May 1978 to New York City, where he and his wife had an apartment. There he came under the care of Dr. William Jaffe, an orthopedic surgeon who prescribed pain medication and muscle relaxants as well as a program of exercise and weight reduction. Though the claimant lost 20 pounds, he testified that the pain in his lower back and both legs persisted. He remained under Dr. Jaffe’s care until October of 1978. On October 18, the last time the claimant visited Dr. Jaffe, he was advised that, given his existing physical condition as well as the doctor’s prohibition against lifting, climbing or excessive walking or standing, he should leave the occupation of pipefitter. Dr. Jaffe, however, did give the claimant a work release for light work.

The claimant testified that upon his return to New York he sent out 100 resumes in applying for a supervisory position in maintenance and other related areas. He had 12 interviews but no offers of employment. The claimant next applied to the New York Board of Education for a teacher’s license. He successfully completed the oral and practical sections of the examination but failed the written academic portion.

Shortly thereafter, he applied for admission to Pace University, a private institution in Manhattan, for the purpose of completing studies for a college degree so that, he said, he could teach pipefitting and plumbing in vocational training courses. The record shows that the claimant earlier had attended Brooklyn College on the G.I. Bill, attained a B average and earned 98 credit hours, 70 of which Pace University was willing to accept toward a degree in education. A total of 130 credit hours would be required for his degree at Pace. The tuition is $93 per credit hour.

The record shows that the claimant, at one time, under a temporary teaching license, taught pipefitting in New York under the Federal Manpower Development Program. He is being supported, he testified, by his wife, who is employed at Pace University, which is located across the street from their apartment.

The claimant’s testimony was that he does some limited buying and selling of small collectibles, including antiques. He said, however, that he considers this activity more as a hobby than a profession even though at times it has contributed to his income. Because of his physical limitations he testified that he was not able to deal in antique furniture and other heavier objects. He has no store and has set up an exhibit only once at an antique show. The claimant’s estimated value of his collectibles is four to five thousand dollars. During the six months preceding the arbitration hearing he has spent only $200 on antiques, he said. He carves minature statuettes, but stated that he does not sell them but instead gives them away to friends.

At the time of the arbitration hearing he complained of constant pain in his lower back and in both legs, which he said made it difficult to sleep. He testified that he suffers from numbness and pain in his right thigh, which is aggravated by long walks. He still takes medication to relieve pain, he testified.

Medical reports of June 1, 1978, of Dr. Lyddon introduced into evidence were to the effect that the claimant has a “10 percent whole body physical impairment due to degenerative arthritis on the lumbar spine.” A report prepared in March of 1979, however, by Dr. Gerald McDonald, which was introduced at the hearing, stated that the claimant has “acute injuries of the lower back and posterior pelvis, with spondylolisthesis involving the L5-S1 segment and with damage to the intervertebral disc at the L5-S1 segment, with bilateral sciatic nerve root involvement.” The claimant still pays his union dues, but because of his condition he said that the union has not been able to place him in any job.

Section 8(a) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a)) authorizes awards for vocational rehabilitation for employees who sustain a compensable industrial injury.

The section, as well as requiring an employer to “pay for all * * * necessary medical, surgical and hospital services thereafter incurred” by an employee after a work-related injury, provides that the “employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto. If as a result of the injury the employee is unable to be self-sufficient the employer shall further pay for such maintenance or institutional care as shall be required.” Ill. Rev. Stat. 1977, ch. 48, par. 138.8(a).

Hunter does not deny that the claimant sustained a compensable injury or that he is no longer capable of continuing work as a journeyman pipefitter. The company maintains, however, that the claimant is not eligible for vocational rehabilitation and, further, that the Commission erred in holding, as a matter of law, that an employer is required to rehabilitate an injured employee to preinjury economic status.

Unlike many States where workmen’s compensation statutes provide a detailed scheme on the question of vocational rehabilitation, our statute under section 8(a), as set forth above, states only that an employer “shall also pay” for rehabilitative efforts when “necessary.” Hunter contends that vocational rehabilitation is not necessary, though it acknowledges that the claimant cannot work as a pipefitter.

Here, as a result of the claimant’s injury, his occupation as a journeyman pipefitter, in which he served for 30 years, is now closed to him. He was not offered another position with Hunter. His injury has imposed physical limitations which well may have affected his ability to secure other employment. The record supports the claimant’s contention that he has made a good-faith effort to obtain regular and continuous employment for which he is qualified. He sent out 100 resumes seeking employment in the less physically demanding field of supervisory work. He interviewed with 12 prospective employers, but received no offers of employment.

Hunter claims that the claimant acquired knowledge and abilities in antique dealing and wood carving which could be marketed, making vocational rehabilitation unnecessary. Considering the evidence here the claim is extravagant. That one is able to generate some income through an activity does not of itself permit a conclusion that one can support oneself by that activity. The record shows that the claimant’s interest in collectibles may be characterized as a hobby rather than as an activity through which the claimant is supporting himself.

Hunter’s contention that the claimant’s leaving Illinois should make the claimant ineligible for rehabilitation benefits does not persuade. That the claimant was advised by his physician that he could no longer work as a pipefitter because of his back condition and that he then decided to return to his wife and home in New York has no bearing on whether he requires and qualifies for vocational rehabilitation. At no time did Hunter offer the claimant less physically demanding employment. Considering the circumstances here, the Commission correctly found that the claimant qualified for rehabilitation benefits.

In view of the disposition we make of this case, we need not consider as an abstract question whether the Commission erred in finding, if indeed its finding is to be so interpreted, that the vocational rehabilitation program should return the claimant to his pre-injury economic position. We would observe, however, that as a general proposition an automatic and inflexible application of that standard would be unacceptable. Temporary earnings might be unrepresentatively high. Too, an injured employee earning subsistence level wages should not be chained to that standard.

We next consider whether the award here for the claimant’s vocational rehabilitation was contrary to the manifest weight of the evidence. (Vestal v. Industrial Com. (1981), 84 Ill. 2d 469.) We deem that it was.

When an employee sustains a compensable injury which may require vocational rehabilitation, many jurisdictions have established procedures under which the employee is examined and evaluated by a State or a local rehabilitation agency or by trained medical personnel of the State’s compensation board. A recommendation is then made as to whether rehabilitation assistance is necessary and, if so, what it should be. (See, e.g., Minnesota: Minn. Stat. Ann. § 176.102, subd. 6 (West 1980 Pocket Part); Nebraska: Neb. Rev. Stat. §48 — 162.01(1978); Maryland: Md. Ann. Code, art. 101, §36(9)(a) (1979); New Hampshire: N.H. Rev. Stat. Ann. §281:21 — b (1978); Maine: Me. Rev. Stat. Ann., tit. 39, §52 (1979).) The value of such a procedure is obvious. A court, rather than being compelled to gauge the necessity and value of a proposed rehabilitation program itself, is able to receive recommendations from trained rehabilitation personnel, which it can review.

In Illinois we do not have the benefit of such a procedure. Unless an employee has gotten rehabilitation counseling through some public or private agency, the nature and form of rehabilitation requested appears to be based on the wish of the claimant. We would point out, though, that there is no prohibition against the Commission’s calling witnesses whose testimony would be helpful or calling on the claimant to produce evidence to support his requested program. Here the employee sought rehabilitation to cover the cost of obtaining a college degree in order that he might teach pipefitting or plumbing. There was no evidence that a degree was a qualification for this. (Earlier the claimant had taught pipefitting in a Federal program.) He had successfully completed oral and practical parts of an examination for a teacher’s license to teach these subjects but had failed the academic portion of the examination. There is no evidence what his grade had been, whether he could have retaken the test, or whether he might have taken a specialized review or “cram” course. There is no evidence whether there are teaching positions available in the field, given the claimant’s age, physical limitations, experience and background. The record does not show whether the claimant might be qualified for some other remedial or vocational training. The claimant seems only to have made a request that Hunter pay the expense of his completing work for a degree at Pace University. As stated above, there is evidence that the claimant had earned 98 credit hours at Brooklyn College. Pace University would accept only 70 of these hours for credit. Thus, the award for training at Pace required the sacrifice of 28 credit hours, almost a year of academic work. This would mean the additional expense of 28 hours of tuition plus maintenance expenses and costs for the claimant for a year. Considering all of the factors involved, we deem that the terms of the award for rehabilitation were contrary to the manifest weight of the evidence.

The contention of Hunter that the Commission’s award for temporary total disability payments for a period of 824/7 weeks is contrary to the manifest weight of the evidence is not well founded. Hunter argues, first, that it should be granted an abatement of 24 weeks, as the claimant received unemployment compensation for that period of time, and, second, that at the time of the Commission’s review the claimant’s condition had reached permanency and, therefore, there should not have been any extension of temporary total disability benefits.

The claimant, to support the Commission’s decision as to temporary disability compensation, cites Crow’s Hybrid Corn Co. v. Industrial Com. (1978), 72 Ill. 2d 168. A question raised there was whether an employer was required to pay temporary total compensation during a period in which the claimant was also receiving unemployment compensation. At issue was the interpretation to be given section 606 of the Unemployment Compensation Act, which provided:

“An individual shall be ineligible for benefits for any week with respect to which he is receiving or has received remuneration in the form of compensation for temporary disability under the Workmen’s Compensation Act of this State, or under a workmen’s compensation law of any other State or of the United States. If such remuneration is less than the benefits which would otherwise be due under this Act, he shall be entitled to receive for such week, if otherwise eligible, benefits reduced by the amount of such remuneration.” Ill. Rev. Stat. 1971, ch. 48, par. 436.

This court held that “[t]he import of the statute is that the unemployment compensation, to the extent that claimant is eligible for it, will be reduced by the amount of the disability benefits — not that the disability benefits will be reduced or not paid at all.” (Emphasis in original.) 72 Ill. 2d 168, 178.

The respondent attempts to distinguish the case here arguing that the claimant’s benefits were awarded as maintenance costs and not as temporary total disability payments. The Commission’s order does not support the contention. It clearly shows that the claimant was awarded 82 4/7 weeks of temporary total disability. The arbitrator had awarded 52 4/7 weeks, and the Commission extended this by the interval between the arbitrator’s decision and the review by the Commission.

Hunter’s second argument that the extension of temporary total compensation to 82 4/7 weeks was contrary to the manifest weight of the evidence because the claimant’s condition had reached permanency also does not convince. Until the claimant has completed a prescribed rehabilitation program, the issue of the extent of permanent disability cannot be determined.

We consider that the circuit court acted correctly in confirming the Commission’s decision that the claimant had sustained an injury compensable under the Act, that vocational rehabilitation training was necessary, and that he was entitled to 82 4/7 weeks of temporary total disability benefits. We, however, reverse that portion of the judgment which confirmed the award for vocational rehabilitation. That portion of the Commission’s finding and award is set aside. The cause is remanded to the Commission for rehearing on the question of a vocational rehabilitation award.

Affirmed in part and reversed in part and remanded, with directions.


source: Caselaw Access Project

author: MR. JUSTICE WARD MR. JUSTICE SIMON,

license: Public Domain

text:
    (Nos. 54282, 54365 cons.

      In re CUSTODY OF CHRISTY ELIZABETH TOWNSEND (Brenda Poling et al., Appellants; Gary Townsend, Appellee).

      Opinion filed October 21, 1981.

      Tim Eaton, of Baird, Latendresse, McCarthy & Row-den, of Decatur, for appellant Christy Townsend.
    Burger, Fombelle, Wheeler & Dvorak, P.C., of Decatur, for appellant Brenda Poling.
    Laurence W. Grabb, of Ryan, Grabb, Cini & Bennett, of Mattoon, for appellee.
   MR. JUSTICE WARD

delivered the opinion of the court:

This appeal involves a decision by the circuit court of Macon County awarding custody of Christy Elizabeth Townsend, a minor, to her half-sister, Brenda Poling, over the claim of Christy’s natural father, Gary Townsend. The appellate court reversed and remanded with directions that custody be granted to Gary Townsend. (90 Ill. App. 3d 292.) We granted and consolidated for review separate petitions for leave to appeal filed by Brenda Poling and by special counsel appointed by the circuit court to represent the interests of Christy Townsend. 73 HI. 2d R. 315(a).

That art does imitate nature may be illustrated by the remarkable circumstances of this appeal. During a period of approximately two years, Gary Townsend and Dorothy Poling were involved in an extramarital relationship, and out of it a baby girl, who was named Christy Elizabeth Townsend, was born on October 14,1976. In the latter part of this relationship, but prior to Christy’s birth, it appears from the record that Dorothy had separated from her husband, George Poling, and was living by herself. Gary Townsend,'during the relationship, was married and living in a single-family home in Shelbyville with his wife Judy and their son Alan, who was six years old in 1976. When Townsend was informed by Mrs. Poling that she was expecting his child, he asked his wife to agree not to contest a divorce proceeding. When she refused, Townsend left her and Alan and moved in with Dorothy. Soon after Dorothy’s husband discovered that she was pregnant with Townsend’s child, he filed for and obtained a divorce. After the divorce decree, Dorothy resumed the use of her maiden name, Dorothy Salmons, under which name she appears throughout the record of proceedings before us.

Townsend’s and Salmons’ living arrangement lasted for only three months, and with his wife assenting, he moved back into their family home in Shelbyville. Despite this separation from Dorothy, Gary continued to see her on a regular basis. As she was approaching the end of her pregnancy, Townsend received a phone call from her stating that she was in labor. He drove her to the hospital, where he acknowledged paternity and the child was named Christy Elizabeth Townsend. Upon leaving the hospital, Dorothy took custody of Christy and for a period of two years lived at what had been the Poling home with her 19-year-old daughter, Brenda Poling, who two months before Christy was born gave birth to an illegitimate baby girl, Courtney.

The record shows that Townsend, with his wife’s knowledge, visited Dorothy and Christy two to three times a week during this period and that on many occasions he and Dorothy had relations. As Christy was nearing two years of age, the relationship of Townsend and Dorothy began to pale and his visits became infrequent. This appeared to have disturbed Dorothy, who up to this time had continued to press Townsend to obtain a divorce. On December 10, 1978, two months after Christy’s second birthday, Dorothy and the child arrived unannounced at the Townsend residence. It was the first time that Gary’s son, Alan, had seen Christy, though he had been previously told by his father about her and the circumstances surrounding her birth. After acrimonious words were exchanged between Townsend and Dorothy, he asked her and the child to leave. The next day he drove to Dorothy’s house and accused her of trying to upset his wife and son, particularly his son. Later that day Dorothy went to the Townsend residence and shot and killed Judy Townsend. Upon Dorothy’s arrest, Christy was cared for by Dorothy’s other daughter, Brenda Poling, who, shortly after the shooting, had moved into her father’s two-bedroom trailer home. Several months later, Dorothy Salmons was tried and convicted of the murder of Judy and on May 2, 1979, was sentenced to a term of 30 years.

Immediately after Dorothy’s conviction, Townsend attempted to learn where Christy was living. Though it appears he knew that Brenda had custody of the child, he seemingly did not know that Brenda, along with Christy and Courtney, had moved in with her father, George Poling. When he asked the State’s Attorney’s office for assistance in locating his daughter, Townsend testified that he was told only that she was being well cared for. On May 30, 1979, he filed a petition in the circuit court of Macon County alleging that, given the circumstances of Dorothy Salmons’ conviction, it was in Christy’s best interests that he be granted care, custody and control of his child. Brenda Poling, upon receiving the petition, filed a petition for leave to intervene, which on June 28 was granted. In her petition she alleged that Townsend was unfit to care for Christy; that he failed to provide for her support; that he had abandoned interest in Christy’s welfare; that he had not visited her for over six months; and that he never had custody, actual or legal, of Christy. She also filed a counter-petition for custody, claiming that since December 11,1978, she had had sole custody of Christy; that they have formed a close relationship; and further that it was her mother’s desire that she, Brenda, be granted custody of Christy. Various witnesses at the circuit court hearing testified to what they considered as desirable qualities and circumstances favoring each petitioner. Brenda’s witnesses testified to a strong mother-daughter relationship between Brenda and Christy; that Christy was loved and treated well; and that when Brenda was at work as an assistant manager at a fast-food restaurant, Christy was taken care of by George Poling and other relatives. There was testimony that Christy and Brenda’s daughter, Courtney, had formed a healthy sisterly relationship. The substance of this testimony was that Christy had become an integral member of a family unit in which she was loved, well cared for, and to which she had become strongly attached. Brenda also had maintained a relationship between Christy and her natural mother, Dorothy, by bringing her for weekly visits to the Dwight Correctional Center, where Dorothy was imprisoned.

Townsend’s witnesses described him as a loving father who held a steady and well-paying job as a press operator with a substantial employer. He had been regularly attending church services in Shelbyville and participated in many church activities. Particular emphasis was placed upon the relationship between Townsend and his son Alan, which was described as excellent. Witnesses describe Alan as a normal, well-behaved and intelligent boy who loved and respected his father. It was testified that Alan had handled the death of his mother surprisingly well. Townsend stated that despite the fact that Christy’s natural mother had killed his mother, Alan was looking forward to Christy’s living with his father and him. There was testimony that the child was not being cared for properly by Brenda.

Considering this and other testimony, the trial judge, though finding that both Townsend and Brenda were fit to care for Christy, held that it was in her best interests that custody be awarded to Brenda.

The above is an outline of the testimony presented at the hearing. It has not been necessary to point out all of the testimony presented or to detail it because of our conclusion that the trial court did not apply and give appropriate consideration to the relevant standards in awarding custody of Christy to her half-sister over the claim of her natural father.

In child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody and control of a child is superior to the claim of a third person. The presumption is not absolute and serves only as one of several factors used by courts in resolving the ultimately controlling question of where the best interests of the child lie. (See People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201; Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556; Cormack v. Marshall (1904), 211 Ill. 519; Halstead v. Halstead (1966), 259 Iowa 526, 144 N.W.2d 861; Annot., 45 A.L.R.3d 216 (1972); Annot., 31 A.L.R.3d 1187 (1970).) A court need not find that the natural parent is unfit or has forfeited his custodial rights before awarding custody to another person if the best interests of the child will be served. (People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 209; Soldner v. Soldner (1979), 69 Ill. App. 3d 97.) This standard or “guiding star” (Nye v. Nye (1952), 411 Ill. 408, 415) is a simple one designed to accommodate the often complex and unique circumstances of a particular case. The superior-right doctrine or presumption in favor of the natural parent, however, need not always be applied automatically in conjunction with the best-interestsof-the-child standard. For example, in a dissolution-of-marriage proceeding, the superior-right doctrine will not be applied where both the natural parents are seeking custody of their children. Instead each starts out on equal footing, with the court ultimately determining custody “in accordance with the best interest of the child” (Ill. Rev. Stat. 1979, ch. 40, par. 602(a)). Under the Adoption Act (Ill. Rev. Stat. 1979, ch. 40, par. 1501 et seq.), on the other hand, both the superior-right doctrine (see, e.g., In re Woods (1977), 54 Ill. App. 3d 729) and the best-interests standard are applied (In re Abdullah (1981), 85 Ill. 2d 300), though in this setting, a court, before permitting adoption by a third party, may not terminate all parental rights, including custody, unless the parent or parents consent or are found to be “unfit.”

Here, of course, the proceeding does not involve a custody dispute incident to a divorce or an adoption proceeding, nor is the Juvenile Court Act applicable, which would require that the minor child be found to be delinquent, in need of supervision, or neglected or dependent before the child could be taken from the custody of its parents and made a ward of the State. See Ill. Rev. Stat. 1979, ch. 37, par. 702 — 1.

The right and correlative responsibility of a parent to care for his or her child is fundamental and as ancient as mankind. This basic human right and the superior-right doctrine find legislative expression in the Probate Act of 1975 (Ill. Rev. Stat. 1979, ch. 110/2, par. 1 — 1 etseq.). Under article XI, entitled “Minors and Incompetents,” section 11 — 7 provides:

“If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education. If one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled. The parents have equal powers, rights and duties concerning the minor. If the parents live apart, the court for good reason may award the custody and education of the minor to either parent or to some other person.” Ill. Rev. Stat. 1979, ch. 110/2, par. 11 — 7.

This court has acknowledged the operation of the superior-right doctrine within the context of the best-interests standard under this statutory provision. People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201.

In a decision interpreting this section of the probate act, it was held that, in a custody dispute between a natural parent and a third person, the latter must demonstrate a “compelling reason” why the natural parent should not be granted custody of a child. (Cebrzynski v. Cebrzysnki (1978), 63 Ill. App. 3d 66, 72.) In another decision the court held that the third party must establish the parent’s “unfitness” or otherwise show “good reason” to support a decision to deprive the parent of custody. (Eaton v. Eaton (1977), 50 Ill. App. 3d 306.) In other cases involving disputes between a natural parent and a child’s grandparents where the court did not rely on section 11 — 7 as authority, it was held that the third party must show “convincing grounds” (Soldner v. Soldner (1979), 69 Ill. App. 3d 97, 102) or “cogent reasons” (Look v. Look (1974), 21 Ill. App. 3d 455, 457) to support a judge’s award of custody to the third person over superior rights of the natural parent. The appellate court here reversed the circuit court’s decision on the ground that no “compelling reason” had been demonstrated by Brenda to support an award of custody to her over the interest of Gary Townsend, the father of Christy.

This court’s decision in People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, supports the view that a third party seeking to obtain or retain custody of a child over the superior right of the natural parent must demonstrate good cause or reason to overcome the presumption that a parent has a superior right to custody and further must show that it is in the child’s best interests that the third party be awarded the care, custody and control of the minor.

In Livingston the conduct of the father was radically distinguishable from the conduct of Townsend. The father there showed a complete indifference to his child’s well-being. In that case there was a dispute between the natural father and the maternal grandfather of a 12-yearold boy, Roy, who was born in 1955. When he was 17 months old the father, Robert Edwards, left him with his mother. Up to that time the family had been living in the home of the mother’s father, Alvin Livingston. There was no communication between Edwards and his wife until 1958, when he was granted a divorce on the grounds of desertion and adultery. The court ordered that Edwards pay $10 a week in child support, which he never paid. For the next nine years both the boy and his mother continued to live in her father’s house. Edwards, during this time, never visited his son and sent him only one letter. It was not until 1967, when he attended the funeral of his former wife, who had died in July of that year, that he was re-introduced to his son. In September, Edwards filed a petition for writ of habeas corpus seeking custody of Roy from the child’s grandfather. Edwards argued, relying upon the above-quoted provision of the probate act, that his right to the custody of Roy as his natural parent could not be overcome by Livingston unless he were found unfit or to have forfeited his right to custody. The court disagreed and held that “it is not necessary that the natural parent be found unfit or be found to have legally forfeited his rights to custody, if it is in the best interest of the child that he be placed in the custody of someone other than the natural parent. See Giacopelli v. Florence Crittenton Home, 16 Ill. 2d 556; 67 C.J.S. Parent and Child sec. 11; 27 Am. Jur. Infants sec. 108; and also see Halstead v. Halstead, 259 Iowa 526, 144 N.W.2d 861.” (42 Ill. 2d 201, 209.) The court said that a finding that the parent was fit was only one factor a court was to consider and that the right of the parent to the custody of his or her child under the probate act “must yield to the best interest of the child even though the parent is a fit person.” (42 Ill. 2d 201, 210.) Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, was cited by the court. In that case it was said that it is always recognized that a natural parent has a superior right to custody of his child. The court in Livingston went on, however, to show that there was good cause or reason to award custody to Livingston, the grandfather. This court described the complete abandonment by the petitioner Edwards of his interest in his child, saying:

“The appellee made no effort to visit his child after leaving the appellant’s home until his wife died in July 1967, even though he never lived a greater distance than 30 miles from the boy. During the period from 1956 to 1967, the appellee never contributed to the support, education and welfare of the child. The record indicates that the appellee showed no interest in the welfare of the child for over 11 years and never assumed any of the responsibilities of a parent. The boy and he were strangers to each other. The child was apparently happy, well adjusted and had been properly developing in the environment of appellant’s home. He had established, within limitations, a father-son relationship with the appellant. The evidence showed that the appellant’s home afforded affection, understanding, guidance, security and a generally wholesome atmosphere. Dr. Cripe, the child psychiatrist, expressed the opinion that to remove the child from his environment would have a detrimental effect on his emotional and psychological well being.” 42 Ill. 2d 201, 210-11.

The Supreme Court has recognized the primacy of a natural parent’s right to the custody of the child. In Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208, the father of three illegitimate children who lived with him and had been raised by him appealed from a judgment of this court that had upheld an Illinois statute which presumed that unwed fathers were unfit to care for their children. After dependency hearings were initiated by the State, Stanley’s children were taken from his custody, made wards of the State, and placed with court-appointed guardians. In holding under the due process clause of the fourteenth amendment (U.S. Const., amend. XIV) that Stanley was entitled to a hearing on the question of his parental rights and his fitness, the court observed:

“The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection. It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ Kovacs v. Cooper [(1949), 336 U.S. 77, 95, 93 L. Ed. 513, 527, 69 S. Ct. 448, 458] (Frankfurter, J., concurring).
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska [(1923), 262 U.S. 390, 399, 67 L. Ed. 1042, 1045, 43 S. Ct. 625, 626], ‘basic civil rights of man,’ Skinner v. Oklahoma [(1942), 316 U.S. 535, 541, 86 L. Ed. 1655, 1660, 62 S. Ct. 1110, 1115], and ’[r]ights far more precious . . . than property rights,’ May v. Andersen [(1953), 345 U.S. 528, 533, 97 L. Ed. 1221, 1226, 73 S. Ct. 840, 843]. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Massachusetts [(1944), 321 U.S. 158, 166, 88 L. Ed. 645, 652, 64 S. Ct. 438, 442].” 405 U.S. 645, 651, 31 L. Ed. 2d 551, 558-59, 92 S. Ct. 1208, 1212-13.

Stanley, and decisions in which the Supreme Court affirmed that the parent’s right to custody is antecedent and superior, involved statutory proceedings attempting to block an unwed father’s efforts to prevent the adoption of his children (Caban v. Mohammed (1979), 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760; Quilloin v. Walcott (1978), 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549) and are distinguishable from the circumstances here. These holdings, however, make it clear that the interest of a parent in the care, custody and control of his or her child is fundamental and not to be ignored or facilely swept away in the face of a competing petition for custody filed by a third party. Here, Brenda bore the burden of demonstrating good cause or reason to supersede the superior right of Gary Townsend to the custody of his daughter and, further, that it was in Christy’s best interest that Brenda retain custody of Townsend’s child.

The trial judge erred at the very outset of the hearing in stating what would be the burden of Gary Townsend, Christy’s father. Townsend’s lawyer had argued to the court that a natural parent has, under our law, a superior right to custody and that a third person claiming custody would be required to show reason or cause why the child’s best interests would be served by awarding custody to the third person. The trial judge’s response was that that would be so only if the child was not in the custody of Brenda. It was clear that Christy was in the custody of Brenda, and the trial court held erroneously that the burden was on Townsend, the father. During argument at the conclusion of the hearing, the attorney who had been appointed by the court to represent the interest of Christy stated that where there had been no prior determination of the right to custody, neither the parent nor the other party had the burden of proof. The trial judge thereupon said: “I believe there is an equal burden” with respect to Brenda and Gary Townsend. This, too, was erroneous, as failing also to give appropriate weight and consideration to Townsend’s superior right as the natural parent.

It is obvious that in a custody dispute a court should give weight to the claim of a third person who has had actual or legal custody of the child for a substantial period of time, especially if the evidence shows that the child has become an integral member of a true family unit. (See generally Halstead v. Halstead (1966), 259 Iowa 526, 144 N.W.2d 861; Look v. Look (1974), 21 Ill. App. 3d 454.) But however important this factor may be in a given case, it does not rise to the level of a presumption so as to “neutralize” the superior-right doctrine or transpose the superior right from the natural parent to the third person. It remains simply a factor to consider in ascertaining what will best serve the interests of the child. Of course, in a given case it may be the determining factor in the custody decision. Though it is true that Towensend has never had actual and sole custody of his daughter, he did immediately seek custody upon the conviction of Christy’s natural mother, Dorothy Salmons, when she was 2li years old. At the time he filed his petition, Brenda had had sole custody for a period of only six months. That a considerable period of time has passed since Dorothy Salmons’ conviction and since Brenda secured custody is attributable to the sometime pace of our judicial process, and not to any hesitation or delay on the part of Christy’s natural father.

Unlike what would be true in the case of a custody dispute incident to a dissolution-of-marriage proceeding, the parties here did not start out on equal footing. The burden was on Brenda to establish good cause or reason to overcome the presumption that Townsend, as the natural father, had the first and superior right to the custody of his daughter. The trial court erred in failing to give this appropriate consideration.

For the reasons given, the judgments of the appellate and circuit courts are reversed and this cause is remanded to the circuit court of Macon County for a hearing consistent with what has been expressed in this opinion. In the course of oral argument before us certain changes in the circumstances involved here came to light. These include the remarriage in prison of Dorothy Salmons and George Poling, the marriage of Brenda and the marriage of Gary Townsend to a woman with two minor children by a previous marriage. Whether Mrs. Townsend would welcome Christy into the new family group is an important question which must be determined. The court shall, where necessary, take further evidence and give appropriate consideration to it.

Reversed and remanded.

MR. JUSTICE SIMON,

concurring in part and dissenting in part:

I find no good reason to further delay resolving Christy’s custody by remanding this case for further hearings in the circuit court. Nor do I think it is in Christy’s best interest to subject her to the “sometime pace of our judicial process” (as the majority puts it) (86 Ill. 2d at 515), which frequently takes an agonizingly long time. In custody cases especially, the courts should emphasize speedy resolution. Christy has just turned five. I do not think we should risk dragging out this case until she is six or seven before her permanent custody is settled; if, as I feel he should be, the father is awarded custody, it is in Christy’s best interest to commence living with him as quickly as possible. My judgment is that we can better serve the interests of the child by reaching a decision on the record before us than by trying to dot every “i” and cross every “t” with further information which (as I demonstrate below) is really not needed. The father, Gary, has chosen to work “within the system,” but he has been at it for 2}£ years since he filed this case. That is sufficient time to decide under whose care Christy should live and show that “the system” can work expeditiously.

Both Christy’s father and half-sister are fit to have custody, according to the trial judge. The majority says Gary has the advantage of the superior-right doctrine which the law attaches to a natural parent. I agree. The half-sister has shown no compelling reason why the natural parent should not have custody, as the majority says she must and with which I also agree. This should end the matter in the father’s favor.

The majority suggests the importance of determining whether Gary’s wife would welcome Christy into the new family group. I think this is answered by the fact that Gary has continued to seek Christy’s custody after his remarriage by appealing this case to the appellate court and resisting Brenda’s appeal to this court. It is unlikely that he would be persisting in this litigation if Mrs. Townsend objected to Christy becoming a part of her family.

The changes in Gary’s life brought on by his remarriage appear to have improved his fitness to raise Christy. Brenda emphasized in this court as well as in the circuit and appellate courts that if Gary was given custody there would be a strained relation between his son Alan and Christy when they lived only with Gary, for Alan would resent the fact that Christy’s mother had murdered his mother. Whether such resentment would develop is a matter of speculation; it is, in my judgment, less likely now that Christy and Alan would be living with a new mother figure (the new Mrs. Townsend) and her two minor children. I feel this setting is better for Christy than either living only with Gary and Alan or being taken care of by her mother’s present and former husband, George Poling, and other relatives while the half-sister, Brenda, is at work.

This case has been in the courts since Christy was 2ii years old. In her best interest I think now is the time to end it by an order awarding custody to her natural father.

I might add that this case has arisen because of a deficiency in the statutes. The superior right of a natural parent to the child is protected in proceedings under the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 1) and the Adoption Act (Ill. Rev. Stat. 1979, ch. 40, par. 1501 etseq.) and is not at issue in custody proceedings under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 602(a)). But the problem here arose because Christy Townsend was born an illegitimate. None of those acts applied, and the lower courts were forced to create a procedure and a standard for Gary’s petition. All this court can find to guide it is a terse section from the Probate Act (Ill. Rev. Stat. 1979, ch. 110M, par. 11 — 7), despite the fact that neither parent is dead. The Paternity Act (Ill. Rev. Stat. 1979, ch. 40, par. 1351 et seq.) has provisions to protect the mother and child in cases like this, but there is no procedure by which a father can petition for custody of his child when the mother is alive but unavailable. There should be procedures in custody disputes like this to guide the court and protect the natural father’s rights just as there are under the Juvenile Court Act and the Adoption Act. I commend the problem to the legislature and suggest that it consider adding custody directives to the Paternity Act.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 54284.

      In re MARRIAGE of IONA SMITH, Appellee, and GAINES N. SMITH, Appellant.

      Opinion filed October 21, 1981.

      Sam S. Pessin, of Pessin, Baird & Wells, of Belleville, for appellant.
    John R. Sprague, of Sprague, Sprague & Ysursa, of Belleville, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Plaintiff, Iona Smith, and defendant, Gaines N. Smith, ended their 22-year marriage with a 1978 decree of dissolution entered in the St. Clair County circuit court, followed by a property division order several months later. A post-trial motion by plaintiff resulted in a further hearing and an amended order which plaintiff appealed, urging error in the assignment and division of property and denial of her request for maintenance and attorney fees. The appellate court affirmed in part, reversed in part, and remanded for further fact finding on several questions. (90 Ill. App. 3d 168.) We allowed defendant’s petition for leave to appeal.

As of the date of dissolution the parties owned, individually or jointly, four parcels of real property, various stocks and bank accounts, two retirement plans, a corporation, and a pickup truck, all in issue here. The appellate court opinion gives a detailed description of the properties. For our purpose a brief description of each will suffice.

The marital home was purchased in joint tenancy in 1959, after the marriage. Its current value was placed at about $48,000 by the defendant and about $70,000 by the plaintiff. The trial court found a value of $41,420 to be marital property, and, dividing it equally, ordered defendant to pay plaintiff $20,710 for her equity. Although the computations are not in the record, the trial court might have reached this $41,420 figure by deducting the percentage of nonmarital property that defendant traced into the purchase price of the home from its value at the date of dissolution. The appellate court affirmed the order to plaintiff to convey her interest to defendant but remanded to the trial court to reconsider and establish the value of the home according to the evidence introduced at trial.

A 200-acre tract of farmland in Washington County was acquired by the parties in 1965 and is held in joint tenancy. Defendant traced funds which were originally nonmarital into the down payment and a portion of the mortgage payments. The trial court ordered the property sold and gave to defendant a portion of the sales price proportionate to his contribution of nonmarital assets, the remainder to be divided equally as marital property. The appellate court reversed the order insofar as it gave defendant more than a straight refund of his nonmarital contribution and affirmed the remainder as marital property.

Defendant owns in his name a property which housed his office and two apartments which he rented out. The property was acquired in settlement of his mother’s estate in 1966, and was valued at $45,000 at the time of dissolution; no figures were in evidence as to the value in 1966. Improvements totaling $3,800 were made to the property with marital funds. The trial court found the property itself to be nonmarital and assigned it to defendant, and found the improvements to be marital, equally dividing the value. The appellate court affirmed.

Another residential property is owned in the name of a son (by a previous marriage) of the plaintiff in Indianapolis, Indiana, in which she resided after separation. The down payment of $4,000, plus another $4,000 in improvements, was made with her nonmarital funds, as were rental payments to her son which approximated the monthly mortgage payment. The home was purchased in 1978 for $18,500 and was worth about $35,000 at the date of dissolution. The trial court awarded plaintiff $6,000 as her nonmarital share and divided the net equity (value less remaining mortgage) equally as marital property. The appellate court reversed because the record owner was not a party to the proceedings and because the property was purchased with nonmarital funds.

The parties also own various stocks. Among them are 2,220 shares of Ralston Purina — 2,100 in the name of defendant and 120 held jointly. Defendant testified that all 2,220 are a result of stock splits or stock dividends accruing to an original 38 shares which he owned since before marriage. Business records of Ralston Purina introduced by plaintiff at trial do not clearly show whether shares accumulated after marriage were the result of stock splits or stock dividends. Plaintiff claimed she bought the 120 shares with nonmarital funds. The trial court assigned to defendant 2,000 shares as nonmarital property and divided 120 shares equally as marital property. (One hundred shares were apparently a gift to the son and were not included in the trial court order.) The appellate court reversed and remanded for further inquiry into the acquisition of the stocks, holding that stock dividends would be considered marital property even though the principal stock was non-marital.

Plaintiff also owns, in her name individually, 25 shares of Bank of Belleville stock. Another 12 shares are owned by defendant individually. Defendant claims all stock was purchased as exchange for nonmarital property (some Ralston Purina stock), while plaintiff claims she bought her 25 shares with nonmarital funds. The trial court awarded defendant his 12 shares as nonmarital property and found the other 25 shares to be marital property and divided them equally. The appellate court reversed and remanded, finding that 10 of the 25 shares were a gift to the plaintiff and that 10 of the 12 were defendant’s nonmarital property, but that further inquiry was necessary to determine whether the additional shares were due to stock splits or stock dividends.

The plaintiff alleges error in the failure of the trial court to divide proceeds from the sale of stocks which defendant testified he sold after separation. The appellate court disagreed because there was nothing in the record to indicate that the proceeds were used for other than marital purposes.

The disposition of various savings accounts from which defendant withdrew large sums after the separation is also disputed by the plaintiff. The trial court divided equally the balance as of the date of dissolution. The appellate court affirmed because there was adequate evidence that the funds were used to pay legitimate debts incurred during the marriage.

The trial court also divided equally the amounts, found to be marital property, in defendant’s Keogh plan and plaintiff’s IRA account. Plaintiff claims her account was not put into evidence; however, the appellate court affirmed, finding that the record did mention this account.

Plaintiff contests the trial court’s decision that a pickup truck, bought with marital funds, had been given as a gift to plaintiff’s and defendant’s son. The appellate court affirmed.

Defendant is the sole shareholder of Gaines Financial Corporation, which owned, as its sole asset, a $6,000 savings account. The evidence indicates that this $6,000 was made up of a $4,500 loan against an insurance policy of defendant, a $1,000 gift from his sister, and $500 of marital funds. The trial court found that $500 of the $6,000 was marital property, dividing it equally. The appellate court reversed and remanded for a redetermination of value.

Finally, plaintiff argues that she should be awarded maintenance and attorney fees which the trial court denied. The appellate court remanded for reconsideration based on its alteration of the property division.

Most of the contentions here center on the construction and application of section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503). That section in its pertinent parts provides:

“Disposition of property
(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.
(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, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community 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 or declaration of invalidity of marriage, or in a proceeding for disposition of property following dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, 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;
* # #

Under section 503(c) of the Act the trial court must classify all property owned by the parties, whether title is held individually or in some form of co-ownership, as either marital or nonmarital. Section 503(a) contains an exclusive list of nonmarital property. Once classified, the nonmarital property of each spouse is assigned to that spouse and the marital property is equitably divided between them. To aid the court in making this equitable division section 503(c) lists 10 relevant factors for consideration.

Two questions involving assignment and division of property are before us. The first is whether nonmarital property, title to which is originally held in the name of one spouse, becomes marital property if that spouse tranfers title to joint ownership. The second is whether property held in the name of only one spouse and consisting of commingled nonmarital and marital property is marital property.

The first question has been answered by us since appeal was taken in this case. In In re Marriage of Rogers (1981), 85 Ill. 2d 217, 223, we held that a marital home owned in joint tenancy is presumed “in fact” as marital property “even if one spouse has furnished all of the consideration for it out of nonmarital funds.” In In re Marriage of Emken (1981), 86 Ill. 2d 164, decided this term, we extended Rogers to a joint bank account. We extend it here to stock certificates held in the name of both spouses.

We answer the second question similarly: where a spouse who holds nonmarital property causes it to be commingled with marital property, or with nonmarital property of the other, we hold that the commingled property is presumed to be marital property. We reach this result on the basis of principles announced in Rogers and In re Marriage of Komnick (1981), 84 Ill. 2d 89, and the legislative preference, expressed in section 503, for the classification of property as marital.

In Komnick we rejected the argument that property may have dual characteristics — that is, partly marital and partly nonmarital. (See also In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 99.) In both Rogers and Emken we affirmed this principle in rejecting arguments that nonmarital contributions to property held in joint tenancy should be assigned as nonmarital property. In both cases, despite the contribution, the entire property was held to be marital. We also note that the use of the definite article “the” in the last sentence of section 503(b) (“^00 that the property ***”) implies a unitary concept of property.

The theory of marriage advanced by the General Assembly, as expressed in section 503, is one of equal partnership. (See In re Marriage of Rogers (1981), 85 Ill. 2d 217; In re Marriage of Komnick (1981), 84 Ill. 2d 89; Auerbach, An Introduction to the New Illinois Marriage and Dissolution of Marriage Act, 66 Ill. B.J. 132, 136-37 (1977).) In part, section 503 was intended to recognize and compensate the homemaker as an equal partner to the marriage — a partner whose domestic contributions have assisted in giving economic value to the tangible assets of the marriage. (See Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(1); Ill. Ann. Stat., ch. 40, par. 503, Historical and Practice Notes, at 470 (Smith-Hurd 1980).) The legislative preference for the classification of property as marital is clear from the interplay of sections 503(a) and (b) as well as the provisions of section 503(c)(1).

Although we believe that the intent of section 503 as a whole was designed to eliminate disparity between the marriage partners, the section 503(a) exceptions (1) through (6) manifest the legislative purpose to preserve the character of nonmarital property in those situations where the actions of the parties have not created ambiguity. An early draft of the uniform act created a “hotchpot of assets” to be apportioned by a court upon dissolution without regard to the method or time of acquisition. (Uniform Marriage and Divorce Act section 307 (alternative A), 9A Unif. Laws Ann. 142-43 (1979).) Illinois, preferring to distinguish between separate property and marital property, enacted an amended version of the uniform act, excepting from marital property the specific list in section 503(a). This section permits a spouse who has acquired property before the marriage or even after the marriage, if acquired by what has been characterized as “lucrative” rather than “onerous” means (see generally Krauskopf, Marital Property at Marriage Dissolution, 43 Mo. L. Rev. 157, 178-79 (1978); Heyman, The Illinois Marriage and Dissolution of Marriage Act: New Solutions to Old Problems 12 J. Mar. J. Prac. & Proc. 1, 10 (1978)), to hold this property, separate from the marriage partnership, as non-marital.

Spouse may also, under section 503(a)(2), exchange this property, even after marriage, for other property which, too, will be considered nonmarital. Clearly, if after the exchange the property is segregated from the marital assets and held in the acquiring spouse’s name alone, section 503(a)(2) demands that the property be classified as non-marital. Where, however, the spouse has failed to segregate the property during the marriage, we conclude that the commingled property has not been acquired by a method described in section 503(a).

In order to overcome the presumption of section 503(b), one must prove that “the property was acquired by a method listed in subsection (a).” (Emphasis added.) The legislature’s use of the definite article “the” when referring to such property indicates the “unitary” concept of property mentioned earlier. Thus in order to preserve its nonmarital status one must prove that the entire property was acquired exclusively by one of the methods listed in section 503(a), and that its character was not subsequently altered by action of the owner. This interpretation of the effect of section 503(b) upon section 503(a) is consistent with the Act’s expressed preference for the classification of property as marital and the shifting of the burden of proof discussed above.

Furthermore, section 503(c) (1) also indicates that preference be given to classifying property as marital. Under this section any contribution made to either marital or nonmarital property may be considered in the division of marital property. Therefore, even where the contribution of one partner is insignificant, the possibility of the ultimate property division being inequitable is far less where commingled property is presumed marital rather than nonmarital, since the pool of marital property available for division is greater. Nonmarital property, of course, may still retain its character, despite a contribution of marital funds. We have simply interpreted section 503 as establishing a rebuttable presumption that the contribution is intended to change the character of the property to marital. That result, however, requires affirmative action by the parties — it cannot, as we recently recognized in In re Marriage of Komnick (1981), 84 Ill. 2d 89, and Bentley v. Bentley (1981), 84 Ill. 2d 97, occur as the result of economic appreciation alone.

We accordingly hold that the preference indicated by the legislature for the classification of property as marital can best be served by presuming that the contributors of marital property to nonmarital property intended that the commingled property be treated as marital. In other words, the failure of a nonmarital property holder to segregate that property will give rise to the rebuttable presumption that the nonmarital property has been transmuted, regardless of the status of title. Just as the affirmative act of transferring title will support a presumption of gift, so, too, will the affirmative act of augmenting nonmarital property by commingling it with marital property. See In re Marriage of Amato (1980), 80 Ill. App. 3d 395; Kalcheim, Intention Controls: The Theory of Transmutation—The Effect of Placing Property Which Was Initially Non-Marital Into Joint Tenancy; The Theory of Commingling—The Effect of Intermingling Marital and Non-Marital Funds, 68 Ill. B.J. 320 (1980); accord Daniels v. Daniels (Mo. App. 1977), 557 S.W.2d 702, and Jaeger v. Jaeger (Mo. App. 1977), 542 S.W.2d 207; see also Brunson v. Brunson (Ky. App. 1978), 569 S.W.2d 173, and In re Marriage of Altman (1974), 35 Colo. App. 183, 530 P.2d 1012 (which suggest similar results in these jurisdictions).

We now turn to the assignment and division of the particular properties.

Marital home: We affirm the holdings of the appellate and trial courts that the marital home was marital property, noting that although defendant could trace some nonmarital funds to the purchase of the home, the home was purchased after the marriage, title was held in joint tenancy, and marital funds were used to pay mortgage payments. No evidence was offered to rebut the presumption of gift to the marriage. We also affirm the appellate court’s remand for reconsideration of the proof on the issue of valuation.

Washington County farmland: Although title to the farmland was in joint tenancy, both the appellate court and the trial court classified it as both marital and nonmarital. We reverse and remand for proper classification, and division or assignment. We note that if the farm is found to be marital property, the contribution of Gaines Smith’s nonmarital property to the purchase price can be considered in the later division of marital assets under section 503(c). The trial court may, on remand, also entertain a motion by plaintiff to amend the complaint to provide for relief by partition. Since plaintiff will have this opportunity we need not decide here whether the trial court under the Act has inherent power to partition. See In re Marriage of Pieper (1979), 79 Ill. App. 3d 835.

Office/Rental property: Where nonmarital property is improved by the addition of marital property, such improved property is presumed to be marital property. The presumption arises here because of the contribution of marital funds to renovate the property. Accordingly, the trial court, on remand, will consider the evidence in light of this opinion.

Ralston Purina stock: We reverse the appellate court holding that post-marriage stock dividends are marital property irrespective of the character of the principal stock. For purposes of classification of property under this act we hold that both stock splits and stock dividends shall be treated as is economic appreciation under Komnick. Neither a stock split nor a stock dividend increases the shareholder’s ownership rights in a corporation. (Dekoven v. Alsop (1903), 205 Ill. 309 (for purposes of allocating income between life tenant and remaindermen); see generally McDonald v. Maxwell (1927), 274 U.S. 91, 71 L. Ed. 942, 47 S. Ct. 497; Eisner v. Macomber (1920), 252 U.S. 189, 64 L. Ed. 521, 40 S. Ct. 189; 19 Am. Jur. 2d Corporations §812 (1965).) We remand on this issue for the trial court’s reconsideration of the entire Ralston Purina stock question in light of this opinion.

Gaines Financial Corporation and Bank of Belleville stock: These questions, too, are remanded for further consideration.

Indianapolis property: This issue is also remanded for further consideration, including whether the record titleholder is a necessary party to this action.

We affirm the appellate court rulings as to the sale of the Marion Lab, and I.D.S. stocks prior to dissolution, the savings accounts, the retirement accounts, and the pickup truck. On the issue of maintenance and attorney fees, we affirm the appellate court and remand for further consideration.

Judgments affirmed in part and reversed in part; cause remanded, with directions.


author: MR. JUSTICE MORAN MR. JUSTICE SIMON,

text:
    (No. 54079.
    COMMONWEALTH EDISON COMPANY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Patricia Aulich et al., Appellees).

      Opinion filed October 21, 1981.

    Rehearing denied November 25, 1981.

      Rooks, Pitts, Fullagar & Poust, of Chicago (Douglas F. Stevenson, Robert K. Bush, and Marybeth S. Kinney, of counsel), for appellant.
    Maurice W. Kepner, of Kepner & Giganti, of Springfield, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

The claimants, Patricia Aulich, widow, and her three minor children, applied for workmen’s compensation benefits on behalf of the decedent, Jerry Aulich, who was killed on his way home from working at the plant of his employer, Commonwealth Edison. At a hearing upon stipulated facts, the arbitrator awarded death benefits of $240.53 per week for 1,043 weeks, plus an additional week at $137.44. Additional evidence was presented before the Industrial Commission, which affirmed the decision of the arbitrator. The circuit court of Sangamon County confirmed the decision of the Commission. The employer has appealed.

The parties stipulated to the following facts. The decedent was employed by Commonwealth Edison as a maintenance electrician at the Kincaid plant and regularly worked from 7:30 a.m. to 4 p.m., Monday through Friday. He lived in Chatham, 20 miles from the plant — a 30-minute drive. On Sunday, October 2,1977, he received a telephone call from the plant at about 7 a.m. requesting that he report to work immediately at the Kincaid plant to repair an elevator which was out of service.

The employee’s compensation was controlled by a labor agreement which provided:

“An employee called back (with or without previous notice) for work at any time outside of his regular work schedule, shall be paid a minimum of two hours straight time and a travel time allowance of two hours straight time pay. If pay for the time worked at the applicable overtime rate exceeds two hours straight time pay, the employee is to be paid at the applicable overtime rate for the hours worked and in addition will be paid the travel time allowance of two hours at straight time, unless the time worked amounts to eight hours or more, in which case no travel time allowance shall be paid.”

The decedent started work at 8 a.m. and finished at 10:30 a.m. He left work in his own car and stopped to purchase gas. He was killed instantly at 11:12 a.m. when his car collided with a train at a railroad crossing 3/2 miles from his residence. It is believed that decedent was on his way to the Christian Church to meet his family for church services and a noon “potluck” lunch. The accident occurred YA miles from the church.

The employer challenges the Commission’s finding: “That 2 hours travel time was intended to compensate the decedent for one hour’s travel to work and one hour’s travel from work. Therefore, compensation would begin on October 2,1977 at 7:00 a.m. and end at 11:30 a.m., thus placing the accident within the period of compensation.”

The employer argues that two hours’ pay as a travel allowance under a labor agreement does not extend the employee’s actual working time, so as to render compensable any accident occurring within such period. The employer posits that under the above-quoted findings of the Commission absurd results could be reached. For example, an employee living 10 minutes from the plant, after safely driving home, could be compensated for a fall in the shower. We agree that the Commission’s findings are too broad in that an injury occurring after the employee had arrived home would not be compensable. However, the example given by the employer is not analogous to the facts in the present case.

In order for an injury to be compensable, it must be shown that the injury arose out of and in the course of the employment. Since, in the present case, the relevant facts are stipulated to by the parties, the basic question of whether the decedent’s death arose out of and in the course of his employment is one of law.

The general rule is that an injury incurred by an employee in going to or returning from the place of employment does not arise out of or in the course of the employment and, hence, is not compensable. (Hindle v. Dillbeck (1977), 68 Ill. 2d 309, 318; Sjostrom v. Sproule (1965), 33 Ill. 2d 40, 43.) An exception to this rule occurs when the employer agrees to compensate the employee for time spent traveling to and from work.

“When the employee is paid an identifiable amount as compensation for time spent in a going or coming trip, the trip is within the course of employment. This is a clear application of the underlying principle that a journey is compensable if the making of that journey is part of the service for which the employee is compensated. 000 o o a
[A] demonstration that travel time was specifically paid for is one of the most reliable ways of making a case for the compensability of a going or coming trip, and is ordinarily sufficient in itself to support such a finding 0 #0.” (1 A. Larson, Workmen’s Compensation §16.20 (1978).)

The above rationale supports that part of the Commission’s decision holding that the employer’s payment for two hours’ travel time renders an injury occurring during either the trip to or from work compensable.

The employer contends that the decision of the Commission is contrary to this court’s decision in Public Service Co. v. Industrial Com. (1938), 370 Ill. 334. In that case, the employee, Beckman, had lived and worked in Blue Island but was transferred to the employer’s new plant in Niles Center. Because of the transfer, the employee “was allowed sixty-seven cents per day to cover the cost of transportation.” (370 Ill. 334, 335.) The same arrangement was made with another employee. The two were driving from work together when an automobile collision occurred in which Beckman was killed. The court found that, since the employee was not directed to perform duties outside his usual place of business, the death did not arise out of or in the course of the employment. The court noted that the payment of 67 cents per day was “immaterial.” 370 Ill. 334, 335.

We find, as did the Commission, that Public Service Co. is distinguishable from the case before us. Although proof of payment for time spent in travel is supportive of a conclusion that the travel itself is within the course of the employment, the same is not true for reimbursement for the expense of travel. Crucial to the determination is the question of whether the travel is sufficiently important in itself to be regarded as part of the service performed. In many cases, the payment of the expenses incurred in travel amounts to reimbursement for the expense of travel and is merely a form of added compensation; it does not bring the travel itself within the course of employment. (1 A. Larson, Workmen’s Compensation § 16.30 (1978).) In Public Service Co., the employee’s travel to and from work was not sufficiently important to be regarded as part of the service performed. The 67-cents-per-day payment for the expense of travel was merely “to cover the cost of transportation” and, as such, amounted to reimbursement for the expense of travel. Therefore, death of the employee was not within the scope of employment as he traveled from work, and the injuries sustained in such travel were correctly found not to be compensable. Consequently, we find Public Service Co. not to be controlling.

Our research has revealed a number of jurisdictions which have examined factual situations similar to the case before us. We have found no case wherein compensation was denied. In each, the court held that an employer’s payment for time an employee spends in travel to and from the job renders an injury sustained during such travel compensable. For example, in Kobe v. Industrial Accident Com. (1950), 35 Cal. 2d 33, 215 P.2d 736, three employees sought compensation for injuries sustained in an automobile accident which occurred while returning home from work. Under a union contract the employer paid “travel time to employees who traveled back and forth each day to jobs over fifteen miles distance from the employer’s place of business.” (35 Cal. 2d 33, 34, 215 P.2d 736, 736.) It was a common practice to pay the employee one hour’s extra pay instead of computing the exact number of minutes actually incurred in such travel. In holding that the “travel time” payment rendered the injuries compensable, the court reasoned:

“[T]he employer may agree, either expressly or impliedly, that the relationship shall continue during the period of ‘going and coming,’ in which case the employee is entitled to the protection of the act during that period. *00 It seems equally clear that such an agreement may also be inferred from the fact that the employer compensates the employee for the time consumed in traveling to and from work.” Kobe v. Industrial Accident Com. (1950), 35 Cal. 2d 33, 35, 215 P.2d 736, 737.

See also the following cases in which the payment of travel time rendered the injuries incurred in such travel compensable: Continental Casualty Co. v. Thompson (1973), 130 Ga. App. 270, 202 S.E.2d 835 (under a union contract the employer was required to pay one hour’s wages for travel when it did not furnish transportation to and from jobsites outside of the county); Livingston v. State Industrial Accident Com. (1954), 200 Or. 468, 266 P.2d 684 (the employee was paid for 15 minutes travel time from the job site to camp); Serrano v. Industrial Com. (1953), 75 Ariz. 326, 256 P.2d 709 (under an agreement with the union, the employer paid an “allowance for travel and subsistence expense” in the amount of one hour’s pay at the employee’s straight-time rate).

In the present case, compensation for travel time was paid under the union contract only when the duty involved work outside the normal workweek and, then, only when the overtime work constituted less than a total of eight hours. Obviously, this provision was designed to attract a worker to come to the worksite for a short period of time on the employee’s day off. The compensation paid to the decedent under the labor agreement, which amounted to a two-hour straight-time minimum, cannot be classified as merely reimbursement for the expense of travel, but must be categorized as compensation equal to two hours’ pay for time spent in travel. It was a beneficial tool of the employer and constituted an implied agreement to make such travel part of the employment. We therefore find the death of Aulich to be one arising out of and in the course of his employment in that it occurred on his trip from the plant to his home.

The Commission also found Aulich’s going to church rather than going directly home was not a substantial deviation rendering his trip without the course of his employment. His plan to stop at church on a Sunday morning was not only foreseeable but could be reasonably anticipated by the employer. On this issue, we find the decision of the Commission not to be against the manifest weight of the evidence.

We therefore affirm the judgment of the circuit court of Sangamon County.

Judgment affirmed.

MR. JUSTICE SIMON,

dissenting:

The characterizations found in the collective bargaining agreement make the majority opinion a persuasive one, but it overlooks some of the agreement’s significant provisions. Although described in the agreement as a “travel time allowance,” the extra pay which the employees in the position of the claimant’s husband received and on which the majority decision is based had nothing to do with travel. The employees were not paid for either the time or the expense of commuting. Thus, the authorities which the court cites to uphold the Commission are not helpful in dealing with this case; they involve different factual situations.

The collective bargaining agreement provided that employees who, like the decedent here, reported directly to their work area traveled “to such work location on their own time and at their own expense.” The provision the majority relied on did not render this section of the agreement inconsequential for the purposes of this case, because that provision was about compensation, not travel. Both provisions could be, and should have been, read in pari materia — the first to determine if the decedent’s travel was in the course of his employment, the second to determine how much pay the decedent had earned.

The compensation provision set a compensation floor— a “safety net“ — for employees who were called in to work outside their normal hours. The amount of the minimum varied according to a sliding scale:

If the employee worked:

—Less than two straight time hours as measured by overtime pay,

—More than two straight time hours but less than eight, as measured by overtime pay,

—More than eight hours,

The employee received:

—Two hours straight time pay plus a travel allowance of two hours straight time pay.

—The overtime rate for actual hours worked plus a travel allowance of two hours straight time pay.

—The overtime rate for actual hours worked without a travel allowance.

It bears emphasis that the employee who ended up working more than eight hours received no “travel time allowance.”

The record gives no clue as to why the agreement characterized the extra pay as a “travel time allowance” when in fact the pay was unrelated to travel; under the circumstances it is misleading to reach a decision on the basis of that characterization. Some employees got the extra pay while others who traveled the identical distance in identical time did not. The balance hung not on the travel distance or travel time, but on the length of time spent at the plant. No employee called in to work outside of normal schedules could count on being reimbursed for travel, since only when the work was completed and the number of hours the employee had worked was known could the employee determine if the allowance would be paid. The decedent, for example, did not know on the morning of the accident how long he was going to work. What he was entitled to receive was not, therefore, a “travel time allowance.”

The workers did not receive pay for the time or expense of traveling; instead they were paid bonuses for the disruption of their personal schedules. As the court notes, the company assured them of a minimum amount of pay if they came into work on their day off, no matter how little work had to be done. Once that minimum was earned, the bonus was eliminated, just as the premium paid under the agreement to employees for work performed on Sundays was eliminated if the employee was receiving overtime.

In Tavel v. Bechtel Corp. (1966), 242 Md. 299, 219 A.2d 43, the employer paid the claimant $1.20 per day and called it, as did Commonwealth Edison here, compensation for “travel time.” In fact, the payment was a fringe benefit used to induce out-of-State workers to come to work for the employer, with no relation to the actual cost of or time spent in traveling. Compensation was denied for an employee injured in an automobile accident on his way to work; the court held that the journey was not part of the services for which the employee was hired. Like the court in Tavel, this court should not feel bound by the way the parties characterized the compensation. To the extent that the Industrial Commission found as a matter of fact that the pay was compensation for the time spent in traveling, its conclusion was contrary to the manifest weight of the evidence, for all the evidence supports only the opposite conclusion.

With the evidence viewed realistically instead of through the distortion created by the language employed in the agreement, I see no basis for holding the employer liable. Illinois cases have held that, unless the employee is on a special errand for the employer, the liability of the employer ceases when the employee has left the premises. (Public Service Co. v. Industrial Com. (1938), 370 Ill. 334, 335; Warren v. Industrial Com. (1975), 61 Ill. 2d 373.) Under the terms of the agreement, the deceased here was not killed on company time. He was on no special errand because travel was not a substantial part of the service the Industrial Commission determined he performed. He had left work and was about his own business. Cases like Sjostrom v. Sproule (1965), 33 Ill. 2d 40, have found an accident arising out of the course of employment only because the accident occurred during travel which was due to the exigencies of the job and was under the control of the employer. No such exigencies or control appear in this case.

A recovery against the employer of $252,760.23 for what was an ordinary, though tragic, automobile accident was not justified. I therefore respectfully dissent.


author: MR. JUSTICE SIMON

text:
    (No. 53489.
    THOMAS J. DOYLE, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Transport Underwriters Association, Appellee).

      Opinion filed October 21, 1981.
    Rehearing denied November 25, 1981.

      Louis B. Garippo, Ltd., of Chicago, for appellant.
    Gerlad O. Sweeney, Sweeney & Riman, Ltd., of Chicago, for appellee.
   MR. JUSTICE SIMON

delivered the opinion of the court:

Vivid coronary pain struck the claimant on August 13, 1976, while he was at lunch with a business associate. He went to a hospital and was admitted, only to suffer a heart attack resulting in permanent disability two days later. He brought a claim for workers’ compensation with which the arbitrator agreed but which the Industrial Commission did not allow. The circuit court of Du Page County confirmed the Commission. The record shows that the claimant suffered from progressive heart disease and that his heart attack was the natural result of that disease; the Commission’s decision that there was no accidental injury arising out of or in the course of the claimant’s employment was not against the manifest weight of the evidence.

Thomas J. Doyle, the claimant, was 52 at the time of the attack. He stood 6 feet 2¡í inches tall and weighed about 250 pounds. Doyle had suffered chest pains as far back as 1965 and 1970; they became regular after 1973. In 1974 a stress test revealed that he suffered from ischemic heart disease, a shortage of blood to the heart caused by a buildup of atherosclerotic plaque within the coronary arteries. Both parties offered medical opinions that the recurring chest pains Doyle felt were symptoms of the disease. As the three coronary arteries became increasingly blocked, the blood supply to his heart was further reduced so that the chest pains recurred more often and more severely. When the heart needed a larger supply of blood, as in periods of physical activity or emotional stress, the arteries were not able to supply it and pain resulted. In this way, stress could be said to cause the symptoms, though not the disease.

The doctors stated their beliefs that if heart disease such as Doyle’s progressed far enough, an acute myocardial infarction would occur when the arteries were finally blocked completely. Although such a heart attack could come during a time of stress, many occurred in periods of rest. The explanation was that the patient would be carried through a stressful period by a surge of adrenalin, but when conditions calmed and the flow of adrenalin ceased the heart would be unable to continue without a sufficient blood supply. As the blockage of the arteries progressed, it took less and less stress to bring on incidents of chest pain.

Doyle’s attack came on the Friday of his first week back at work after a week’s vacation. Doyle sold insurance and was preparing to make a presentation to a potential client Friday afternoon. That morning, he met informally with fellow workers and speculated about additional duties they might be forced to take on with the closing of one of the firm’s regional offices. Doyle felt pains during this discussion. When he sat down to lunch, he felt something much stronger than the usual bouts of pain, so he went to the hospital for an examination. There, his doctor concluded that Doyle was in an intermediate coronary syndrome. He was admitted and suffered an sicute myocardial infarction the following Sunday evening. Later tests showed that his three coronary arteries were 80,90 and 100 percent blocked, respectively.

The Industrial Commission ruled that Doyle’s disability was the “natural evolution” of his heart disease. Disabilities resulting from heart attacks differ from traumatic disabilities (like a leg broken by a falling weight) because the claimant is equally ill before and after the heart attack. The attack is simply a symptom, although a potentially disastrous one, of the underlying disease. The causes of heart disease are not completely known, but several risk factors have been identified. Cigarette smoking, both doctors here agreed, is a major risk factor; Doyle smoked three to four packs a day when his disease was diagnosed and had cut down to one or two packs a day at the time of his attack. Obesity and diabetes are also linked to heart disease; at the time of diagnosis Doyle was advised to lose weight and was put on medication to keep his diabetes under control.

The employer’s medical expert thought that nothing at work contributed to Doyle’s disease. Doyle’s doctor thought that work-related stress might have contributed to the attack; in fact, he had told Doyle to take it easy at work when the heart disease was diagnosed. The medical opinions were not necessarily conflicting — the underlying cause of the disability was the heart disease regardless of the factors that brought on the myocardial infarction. But the law does not turn on the long-range or deep-seated causes of a disability. Instead, the factors which precipitated the claimant’s current disability were critical, for the law considers that to hasten the disability is to cause it.

Thus, the rule has evolved that even if an employee suffers from heart disease, if the heart attack which brings on the disability is work related, the employee may recover workers’ compensation. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17.) This is true whether the attack occurs at work or after the employee has left. (McLean Trucking Co. v. Industrial Com. (1978), 72 Ill. 2d 350, 357; but see, e.g., Krause v. Industrial Com. (1975), 62 Ill. 2d 72.) The reason for the latter rule is clear — a myocardial infarction may become manifest only hours after the physical or emotional stress that triggered it.

The general rule has been stated that employers take their employees as they find them. (Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171, 177.) If there is work-related stress, physical or emotional, that so aggravates the disease as to cause the heart attack, then there is accidental injury arising out of and in the course of employment. Compensable disabilities have been found where an attack was triggered by physical stress like being hit in the chest by a board (Interlake, Inc. v. Industrial Com. (1981), 86 Ill. 2d 168), moving pipes (Illinois Valley Irrigation, Inc. v. Industrial Com. (1977), 66 Ill. 2d 234; Johns-Manville Products Corp. v. Industrial Com. (1979), 78 Ill. 2d 171; Sohio Pipe Line Co. v. Industrial Com. (1976), 63 Ill. 2d 147), falling off a ladder (Health & Hospitals Governing Com. v. Industrial Com. (1979), 75 Ill. 2d 194), driving a semitrailer truck cross-country (McLean Trucking Co. v. Industrial Com. (1978), 72 Ill. 2d 350), doing manual labor under conditions of extreme heat or cold (Lepper v. Industrial Com. (1978), 71 Ill. 2d 216), running four blocks to render emergency aid (Cossident v. Industrial Com. (1974), 57 Ill. 2d 33), or covering a load of hot asphalt with a tarpaulin (Rock Road Construction Co. v. Industrial Com. (1967), 37 Ill. 2d 123).

Compensable disabilities have also been found where the attack was triggered by emotional stress like preparing to participate in an alcoholism treatment program (Sears, Roebuck & Co. v. Industrial Com. (1980), 79 Ill. 2d 59), working in a tax-collection office during the final week for paying taxes (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10), directing a unit of fire fighters at a blaze (Town of Cicero v. Industrial Com. (1949), 404 Ill. 487), or handling a company’s affairs during bankruptcy (Wirth v. Industrial Com. (1974), 57 Ill. 2d 475). When workers’ physical structures, diseased or not, give way under the stress of even their usual tasks, the law views this as an accident arising out of and in the course of employment. County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 17.

The one exception to this rule is when the heart disease is so far gone that any stress, even the most ordinary exertion, will bring on the massive symptom of heart attack. In that case the employer is not liable, because it is only coincidence that the attack occurred at work rather than somewhere else — the disability can truly be said to be not work related. (County of Cook v. Industrial Com. (1977), 69 Ill. 2d 10, 18.) Thus, compensation is denied where the employee’s disability is brought on under exertion no greater than would be expected by the general public, as where the worker sat at a desk, taking orders, then walked towards a first-aid station (Schoonover v. Industrial Com. (1981), 86 Ill. 2d 321), where the employee’s attack followed a walk around a freight yard, checking vehicles (Smith’s Transfer Corp. v. Industrial Com. (1979), 76 Ill. 2d 338), where the employee reached up to close an overhead elevator door (Sershon v. Industrial Com. (1976), 63 Ill. 2d 395), or spent the morning building pieces of wooden chairs at a slightly faster than usual rate (Pontiac Chair Co. v. Industrial Com. (1974), 59 Ill. 2d 261), where the claimant walked to and from an office four blocks away (Illinois Bell Telephone Co. v. Industrial Com. (1966), 35 Ill. 2d 474), or up and down stairs to assist a store window trimmer (D. Lelewer & Son v. Industrial Com. (1965), 33 Ill. 2d 118), or where the worker had an argument at work over scheduling and pay (Stewart Warner, Datafax Corp. v. Industrial Com. (1979), 76 Ill. 2d 464).

It is the Industrial Commission’s responsibility to decide if there is stress, if it is work related, and if the disease has progressed so far as to trigger an attack under even the most ordinary exertion. Okaw Homes, Inc. v. Industrial Com. (1968), 40 Ill. 2d 81, 84.

Doyle argues that here there is a history of work-related emotional stress which aggravated his condition and triggered his attack. Although Doyle had risen to the position of regional sales manager for his company, budgetary cutbacks recently ordered had left him by 1976 without any field salesmen or brokerage clerks. He and his secretary were asked to pick up the slack; at the same time Doyle’s superiors asked for an increase in business in his region by a third. Doyle said that it was a trying time for insurers anyway, because a rise in workers’ compensation rates had left customers irritable. In the eight months before his heart attack, Doyle spent about 10 hours a day in the office, along with some weekends. He also traveled several thousand miles on business, remaining away from home for 19 successive days in February 1976. Doyle handled 17 sales accounts, 12 by himself, a load his superior characterized as normal for a regional sales office. Of 19 presentations made in 1976 to potential clients by Doyle, 11 were successful.

Doyle said that his vacation the week before his heart attack was his first in five years. His superior remembered vacations in 1973 and 1975 as well. The August 1976 vacation was interrupted when Doyle had to be called by his superior to locate a file on a potential client which Doyle had taken out of the office. He chastised Doyle for failing to leave with his secretary a number where Doyle could be reached. The week after vacation was spent catching up on matters and dealing with a “very precise” client who was dissatisfied with the service he had been getting.

The Industrial Commission referred to the testimony of Doyle’s doctor in finding that the disability was the natural evolution of the heart disease. Doyle’s doctor testified that' the myocardial infarction could have occurred absent any exertion. The Commission implicitly found, therefore, that Doyle’s attack was not caused by work-related stress, but that the heart disease had progressed to the point where any stress was too much. This factual determination does not appear to be contrary to the manifest weight of the evidence, and so the Commission’s decision was correctly confirmed.

Judgment affirmed.