author: JUSTICE LINDBERG

text:
    A. THOMAS MARAS, Adm’r of the Estate of Laura Maras, Deceased, Plaintiff-Appellant, v. CLAUS BERTHOLDT et al., Defendants-Appellees.
    Second District
    No. 2—82—0942
    Opinion filed August 8, 1984.

      William F. Fitzpatrick, of Callahan & Fitzpatrick, of Oak Lawn, for appellant.
    Myron J. Hall, Ltd., and Markham Jeep, of Charles M. May, Ltd., both of Waukegan, for appellees.
   JUSTICE LINDBERG

delivered the opinion of the court:

Plaintiff, A. Thomas Maras, administrator of the estate of Laura Maras, appeals from an order of the circuit court of Lake County partially granting the summary judgment motion of defendants-appellees Gilbert McCormick, Sr., and Gilbert McCormick, Jr., d/b/a McCormick’s Restaurant and Lounge, and from the subsequent order dismissing his dramshop action against defendants for the fatal injuries sustained by decedent. As bases for this appeal, plaintiff contends that the trial court: (1) erred in determining as a matter of law that decedent’s parents were unable to recover for injuries to means of support and loss of services rendered by decedent; (2) improperly considered an affidavit supporting a summary judgment motion which contained hearsay; (3) erred in precluding plaintiff from maintaining an action for decedent’s personal injuries and property damage; and (4) improperly concluded that the dramshop action did not survive the death of the decedent. We affirm the trial court’s entry of summary judgment in favor of defendants, but reverse its order dismissing plaintiff’s dramshop action for pain and suffering and remand for reinstatement of that portion of plaintiff’s complaint.

On September 30, 1979, decedent was killed in an automobile accident involving a vehicle driven by defendant Kevin Autry and a vehicle owned by defendant Claus Bertholdt. Prior to the accident, Bertholdt and decedent Maras had been at McCormick’s Restaurant and Lounge in Lake Forest, Illinois. The parties disputed in the trial court whether Bertholdt or Maras drove the car after leaving the tavern.

As a result of Maras’ death, plaintiff filed a complaint against Au-try, Bertholdt, and the McCormicks. Count V of the complaint sought relief from defendants Gilbert McCormick, Sr., and Gilbert McCormick, Jr., d/b/a McCormick’s Restaurant and Lounge, for the sale of alcoholic beverages to Bertholdt causing his intoxication, which thereafter resulted in decedent’s death. Count V further alleged a right of recovery for decedent’s personal injuries, for property damages incurred (medical and funeral expenses), and for the parents’ loss of the means of support of their daughter. After considering memoranda filed by the parties, the trial court on August 26, 1981, partially granted defendants’ motion for summary judgment, ruling as a matter of law that decedent did not render any actual support to plaintiffs and that funeral and medical expenses were not recoverable because decedent was an adult and therefore, the family expenses act (Ill. Rev. Stat. 1981, ch. 40, par. 1015) was inapplicable.

On the day of trial, defendants filed a motion to dismiss the remaining portion of count V, alleging that no recovery for personal injury of decedent could be obtained because the action did not survive decedent’s death. The trial court granted defendants’ motion.

During the course of the trial, plaintiff entered into a settlement agreement for $60,000 with Autry and the trial court dismissed the survival and wrongful death action against Autry. At the conclusion of trial, but prior to submitting the case to the jury, the trial court granted Bertholdt’s motion for a directed verdict on the survival action. Plaintiff proceeded to verdict against Bertholdt in the wrongful death count and was awarded $100,000, and the trial court entered judgment on that verdict.

On petition of Bertholdt, the trial court ruled plaintiff could not allocate any portion of the $60,000 settlement with Autry to the survival action and thus, Bertholdt was entitled to set off against the $100,000 verdict the entire $60,000 paid by Autry for a covenant not to sue. On November 10, 1982, a satisfaction of judgment was filed indicating Bertholdt’s tender of $40,468.50 in acceptance and release of judgment by plaintiff. On September 27, 1982, plaintiff filed a motion for a new trial which was denied on November 3, 1982. Plaintiff filed a notice of appeal on November 30,1982.

The initial question concerns defendants’ motion filed in February 1983 seeking dismissal of this appeal. Defendants contend plaintiff failed to file his notice of appeal within 30 days of the court’s order granting defendants’ motion to dismiss count V of plaintiff’s complaint. Plaintiff responds that he received no notice of the August 23, 1982, written order and therefore, his notice of appeal filed subsequent to the close of trial properly raises the dismissal of count V before this court.

We are unpersuaded by defendants’ contention that plaintiff’s appeal should be dismissed. The disputed order was entered by the court on August 23, 1982, dismissing the remaining portion of count V of plaintiff’s complaint seeking recovery for decedent’s pain and suffering prior to her death. Defendants presented the motion to dismiss on August 23, 1982, immediately prior to trial, which the court orally granted in the presence of attorneys for both plaintiff and defendants. The oral order did not contain the finding that there existed no just reason to delay enforcement or appeal. The trial court did not specify whether a written order should be drafted incorporating the terms of his oral order. The record, however, contains a written order filed August 23, 1982, granting defendants’ motion to dismiss but also including the Rule 304(a) language (73 Ill. 2d R. 304(a)). Defendant filed a motion for a new trial on September 27, 1982, more than 30 days after entry of the August 23 written order, and the trial court specifically denied on November 3, 1982, plaintiff’s post-trial request for reinstatement of count V because his motion “was not filed within thirty (30) days of a final and appealable order disposing of count V in its entirety.”

Based upon these facts, defendants filed a motion to dismiss plaintiff’s appeal regarding count V which this court initially granted. After plaintiff filed objections to the dismissal order, this court ordered that the motion to dismiss be heard with this case. Attached to plaintiff’s objections is an affidavit of his attorney, William Fitzpatrick, wherein Fitzpatrick stated “[h]e was never served with a copy of the attached order dated August 23, 1982, and was never aware of its existence until he received a copy of it attached to Defendant McCormick’s Motion to Dismiss this Appeal.” Fitzpatrick further stated the only dismissal order of which he was aware was that entered orally on August 23,1982, which did not contain Rule 304(a) language.

Defendants’ attorney, Markham M. Jeep, filed an affidavit attached to the motion to dismiss the appeal in which he states only that the papers attached to the motion to dismiss the appeal are true and correct copies. Since Jeep’s affidavit does not contradict any of the statements in plaintiff’s affidavit, we accept as true that plaintiff did not receive notice of the August 23, 1982, written order which included the critical Rule 304(a) language, and did not become aware of the existence of that order at least until the trial court denied his post-trial motion in November 1982.

While Supreme Court Rule 271 (73 Ill. 2d R. 271) places the responsibility on the successful movant for drafting a written order, here the written order contains the Rule 304(a) language which was not present in the court’s oral order. The addition of the Rule 304(a) language was a substantive change in the trial court’s oral order amounting to the equivalent of a new order. Prior to entry of a new order, a party must give notice that a motion will be presented to the court. (Cf. Vlahakis v. Parker (1971), 3 Ill. App. 3d 126, 278 N.E.2d 523 (abstract of opinion).) Absent such notice, the order is void. Because plaintiff did not receive notice of the written August 23, 1982, order containing the Rule 304(a) language, that order was void and thus was not capable of triggering the 30-day time period. The oral order of August 23, 1982, similarly did not trigger the appeal, because, even though final, the order did not contain the requisite 304(a) language and thus was not appealable. Since neither order initiated the 30-day period, plaintiff’s notice of appeal filed within 30 days of the trial court’s denial of his motion for a new trial effectively conferred jurisdiction on this court.

Defendants also assert that this appeal should be dismissed because plaintiff proceeded to verdict on claims based in the wrongful death action (count III) and because plaintiff executed a release of satisfaction of judgment in favor of codefendant Bertholdt. Therefore, defendants argue, the issues raised by plaintiff’s appeal are moot. However, defendants cite no authority for their contention, and thus, this court can consider it waived. (See Wilson v. Continental Body Corp. (1981), 93 Ill. App. 3d 966, 418 N.E.2d 56; 73 Ill. 2d R. 341(e).) While defendants in their motion to dismiss appeal assert that they joined in and adopted the arguments and authorities proposed by Bertholdt in his December 14, 1982, motion, this statement cannot avoid operation of the waiver rule. For even if such an incorporation by reference is effective, defendant failed to cite this court in his motion to the portion of the record where this document can be found. Absent proper citation to the record, defendant has waived the mootness argument. See 87 Ill. 2d R. 341(e)(7).

Even if the merits of defendants’ mootness contention are addressed, the cases cited by plaintiff are persuasive support for the conclusion that this appeal is not moot. In Slone v. Morton (1963), 39 Ill. App. 2d 495, 188 N.E.2d 493, the court concluded that causes of action predicated on the Wrongful Death Act and the Dramshop Act were separate and distinct and thus, payment by certain defendants under the wrongful death count did not preclude recovery on the dramshop count. Similarly, this court in Kurth v. Amee, Inc. (1972), 3 Ill. App. 3d 506, 278 N.E. 2d 162, held that a plaintiff’s execution of a covenant not to sue the allegedly drunk driver did not preclude her from suing the taverns under the Dramshop Act. As the Kurth court stated: “It is not realistic to conclude that the amount received for a covenant not to sue one of the several tort-feasors can be equated with the actual damages sustained by the covenantor.” (3 Ill. App. 3d 506, 510, 278 N.E.2d 162, 165.) Based upon Slone and Kurth, plaintiff’s appeal is not mooted by the verdict on count III and the subsequent covenant not to sue.

Relying upon the language of the Dramshop Act (Ill. Rev. Stat. 1981, ch. 43, par. 135), plaintiff seeks recovery for medical and funeral expenses incurred as a result of decedent’s injuries and subsequent death. Section 14 of article VI of the Dramshop Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) provides: “Every person who is injured in person or property by any intoxicated person has a right of action ***."(Emphasis added.) Plaintiff asserts the medical and funeral expenses constitute property within the meaning of the Dramshop Act, and since section 27 — 6 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. llCP/a, par. 27 — 6) provides that dramshop actions do not abate upon the death of the decedent, plaintiff here can maintain this action for damages to property on behalf of the estate. The trial court in entering summary judgment in favor of defendants stated that plaintiff’s property damage claim in the nature of medical and funeral expenses was deficient because decedent was an adult child and thus, her parents were not obligated under the family expenses act (Ill. Rev. Stat. 1981, ch. 40, par. 1015), to pay these expenses.

The parties'have not cited, nor can we find, any Illinois decision which addresses precisely the issue in this appeal. The court, however, addressed a similar question in Angeloff v. Raymond (1979), 70 Ill. App. 3d 594, 388 N.E.2d 1128. There, the mother of the decedent brought suit under the Dramshop Act to recover for the medical and funeral expenses of her son, which allegedly amounted to injury to her property. This court relied upon an earlier decision, Ragan v. Protko (1978), 66 Ill. App. 3d 257, 383 N.E.2d 745, which held that a parent could not recover under the Dramshop Act for his child’s medical and funeral expenses because the child was an adult and therefore, the parents had no legal obligation to pay these expenses. (Ragan v. Protko (1978), 66 Ill. App. 3d 257, 261, 383 N.E .2d 745, 748.) Since the mother in Angeloff similarly failed to establish she was under any legal obligation to pay her adult son’s medical and funeral expenses, the Angeloff court concluded, summary judgment was entered properly in favor of the owner and lessee of the tavern. As plaintiff points out, however, Angeloff and Ragan only concern a parent’s action for injury to property. Here, in contrast, plaintiff as administrator of decedent’s estate is suing for injury to the estate’s property. While the estate is under a legal obligation to pay decedent’s medical and funeral expenses, in the instant case defendants contend and plaintiff does not dispute that the expenses were paid by decedent’s parents, not her estate. Therefore, since the estate has suffered no injury to its property, we conclude the trial court’s entry of summary judgment in favor of defendants was proper.

Plaintiff next contends the trial court erred in granting defendants’ motion for summary judgment after concluding that the parents of the decedent were not injured in their means of support as a matter of law. Section 14 of article VI of the Dramshop Act provides that a cause of action will lie for injuries to means of support caused by an intoxicated person. (Ill. Rev. Stat. 1981, ch. 43, par. 135.) Plaintiff argues that support should be broadly defined and points to testimony indicating decedent voluntarily performed domestic duties whenever she came home from college and also assisted her father in his business in her sophomore and junior years in high school and during the summers when she was 15 and 16 years old. In support of his position, plaintiff relies upon Weiner v. Trasatti (1974), 19 Ill. App. 3d 240, 311 N.E.2d 313. In Weiner, the husband as executor of his wife’s estate filed suit against the owners and operators of a dramshop, who served alcoholic beverages to the driver of the automobile, who subsequently drove his car and killed plaintiff’s wife. In reversing the directed verdict for the defendant, the court held the jury should have been allowed to consider whether the husband and children were injured in their means of support. As the Weiner court stated:

“The capacity for providing means of support may be shown by proof of earnings and contribution of services or income. [Citations.] The services of a wife to which a husband is entitled include those rendered by the wife in performance of her household and domestic duties, as well as those rendered by her while assisting the husband in his business.” 19 Ill. App. 3d 240, 246, 311 N.E.2d 313, 319.

While this language could arguably be construed as support for plaintiff’s position, the wife in Weiner provided much more than domestic services: the wife had been employed for four years previous to her death with an outside employer and had worked with her husband in furthering their corporate fishery and delicatessen business, the stock of which was jointly held by both the husband and wife. Also significant is the absence in Weiner of any evidence that the husband was providing for all of his wife’s monetary needs. In contrast, plaintiff here admitted he was providing all of the support for his daughter prior to her death.

Defendants rely upon several cases which suggest decedent’s contributions were not sufficient to amount to “means of support” under the Dramshop Act. In Stevens v. B&L Package Liquors, Inc. (1978), 66 Ill. App. 3d 120, 383 N.E.2d 676, the father filed suit against certain dramshops after his wife and daughter were killed by an intoxicated motorist. In one count of his complaint, the plaintiff claimed injury to his means of support by reason of the death of his 12-year-old daughter. The court described the daughter’s services:

“In 1973, when Karen had attained the age of 10, she began to take an active role in the management of the Stevens household. Not only did Karen assume sole responsibility for the care of her younger brothers, but she prepared the morning and evening meals, washed the bulk of the family’s clothes and performed most of the general household duties such as doing dishes and making beds.” (66 Ill. App. 3d 120, 122, 383 N.E.2d 676, 677.)

Notwithstanding the evidence of the daughter’s domestic contributions, the court affirmed the trial court’s summary judgment order in favor of the dramshops. The Stevens court stated that previous Illinois decisions had held that support was “measured in such tangibles as the loss of wages and inability to continue earning a living, and not routine domestic chores and services.” (66 Ill. App. 3d 120, 123, 383 N.E.2d 676, 678.) In so holding, the court concluded that Weiner was no authority for plaintiff’s support action as its statement that domestic services constituted means of support “was clearly dicta and not controlling.” Stevens v. B&L Package Liquors, Inc. (1978), 66 Ill. App. 3d 120, 124, 383 N.E.2d 676; see also Martin v. American Legion Post #784 (1978), 66 Ill. App. 3d 116, 119, 383 N.E.2d 672, 675 (“The Weiner case does not stand for the proposition that the performance of everyday domestic chores is sufficient to maintain a ‘means of support’ action under the Dramshop Act.”); Annot., 4 A.L.R.3d 1332 (1965).

Plaintiff unpersuasively distinguishes Martin and Stevens on the bases that in those cases the children were minors and the contributed services were limited to domestic chores. We fail to see how the age of the provider of the service is determinative of whether the service constitutes a means of support. Also, plaintiff’s reliance here on decedent’s contribution to the family business in addition to her family chores is unpersuasive, for this court rejected a similar contention in Penoyer v. Hare (1979), 76 Ill. App. 3d 225, 394 N.E.2d 1082. There, the father of the decedent filed a dramshop suit individually and as administrator of the estate of his son alleging loss of means of support. The decedent had rendered certain services to the family business and participated in the family’s farming operations. In affirming the trial court’s summary judgment order in favor of the dramshop, the Penoyer court stated, “it appears that rather than contributing to the support of the family, the decedent was in fact the recipient of support from the family itself in return for his efforts concerning the family business and family farm.” (76 Ill. App. 3d 225, 227, 394 N.E.2d 1082, 1084.) Similarly, while decedent performed occasional services for plaintiff’s business, the uncontradicted testimony of plaintiff demonstrates the parents provided all of decedent’s support amounting to between $7,000 and $8,000 annually. Therefore, the trial court properly entered summary judgment in favor of defendants on plaintiff’s claim for injury to means of support.

Plaintiff also argues the summary judgment order was improper because the trial court erroneously considered an affidavit filed by defendants’ counsel in support of the motion. Markham M. Jeep, as attorney for defendants, stated by affidavit that he was present at a deposition held on April 14, 1981, at which A. Thomas Maras testified in sum and substance: (1) he was the father of the deceased; (2) she was a full-time student at Barat College in Lake Forest and lived alone prior to her death; (3) her last employment was as a part-time retail sales clerk; (4) income from this employment was utilized by decedent for her personal living expenses and never was used to support any member of the Maras family; and (5) decedent was 21 years old at the time of her death and last lived with her parents in 1976. While not challenging the veracity of the facts stated in the affidavit, plaintiff contends the affidavit is defective because Jeep could not testify competently as to the facts in the affidavit.

We need not consider this challenge to the affidavit, however, because attached to defendants’ summary judgment memorandum were plaintiff’s answers to defendants’ interrogatories, which contained the information recited in the affidavit challenged here by plaintiff. In the interrogatories, Mr. Maras stated that decedent was a full-time student at the time of her death, had earned between $1,500 and $2,500 yearly for the five years preceding her death, and decedent was not contributing to the support of any collateral heir and was not living at home at the time she died. The interrogatories further recited that decedent had part-time employment during the summer for three years prior to her death, was not contributing monetary support to any lineal heir, and Maras and his wife did not suffer actual pecuniary loss because of the loss of support and services of their daughter. Based upon these Interrogatory answers, we conclude the record contains sufficient evidence from which the trial court could determine as a matter of law that decedent had not contributed monetary support to her parents and thus, that plaintiff had failed to demonstrate injury to means of support under the Dramshop Act.

The final issue raised by plaintiff is whether the trial court erred in dismissing that portion of count V of plaintiff’s complaint seeking recovery from defendants for decedent’s pain and suffering. Illinois has never recognized a common law remedy against the supplier of liquor. Demchuk v. Duplancich (1982), 92 Ill. 2d 1; Thompson v. Trickle (1983), 114 Ill. App. 3d 930, 449 N.E.2d 910.

The language of the Dramshop Act does not indicate clearly whether an injured person can maintain an action for personal injuries against a tavern. Courts interpret the Dramshop Act strictly because the act is penal in nature. (Miller v. Owens-Illinois Glass Co. (1964), 48 Ill. App. 2d 412, 199 N.E.2d 300.) The statute begins: “Every person who is injured in person or property by an intoxicated person has a right of action ***.” (Ill. Rev. Stat. 1981, ch. 43, par. 135.) While this sentence can be read as authorizing an action based upon personal injury, another interpretation is that the injury to person or property is a prerequisite to maintaining a cause of action, but is not the basis for recovery. However, this court in Angeloff v. Raymond (1979), 70 Ill. App. 3d 594, 388 N.E.2d 1128, entertained a cause of action based upon injury to property under the Dramshop Act. Therefore, the language “injury to person or property” does not appear to be merely a precondition to, but rather is the basis for a cause of action predicated on the Dramshop Act. Additionally supportive of the position that a personal injury action can be maintained is the language appearing at the end of section 14 of article VI of the Dramshop Act: “In no event shall the judgment or recovery under this Act for injury to the person or to the property of any person as aforesaid exceed $15,000, and recovery under this Act for loss of means of support resulting from the death or injury of any person, as aforesaid, shall not exceed $15,000 for each person so injured ***.” (Ill. Rev. Stat. 1981, ch. 43, par. 135.) By making this distinction between injury to person or property on the one hand and injury to means of support on the other, the statute authorizes a distinct cause of action for personal injuries. Therefore, while the language of section 14 of article VI addresses almost exclusively an action for loss of means of support, we read that statute as authorizing an action based upon personal injury.

Furthermore, some case authority implicitly recognizes a cause of action against a dramshop for the injured plaintiff’s personal injuries, including pain and suffering. For example, in Demikis v. One Cent Club, Inc. (1943), 319 Ill. App. 191, 48 N.E.2d 782, the plaintiff-patron sued the dramshop for personal injuries he received when the bar’s bouncer struck the plaintiff, breaking his jaw. On appeal, the dramshop in part argued that the trial court erroneously instructed the jury that in awarding damages it could consider “ ‘the nature and extent of plaintiff’s physical injuries, if any, so far as they are shown by the evidence; his pain and suffering if any, resulting from such injuries, any permanent injury or disfigurement to his face or impairment and the loss of use of his jaws if any.’ ” (Emphasis added.) (319 Ill. App. 191, 198, 48 N.E.2d 782, 785.) The Demikis court held that the language “permanent injury or disfigurement” in the instruction was not too speculative to constitute error and, therefore, affirmed the judgment of the trial court. Similarly, in Shiflett v. Madison (1969), 105 Ill. App. 2d 382, 245 N.E.2d 567, the plaintiff sued the dramshop for injuries resulting when another patron who was intoxicated struck the plaintiff. The trial court instructed the jury to consider the “ '*** pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.’ ” (105 Ill. App. 2d 382, 385, 245 N.E.2d 567, 569.) The court ruled as error the fact that the plaintiff’s husband received $15,000 for his personal injuries while his wife recovered $8,000 for loss of her husband’s support, because this amounted to a double recovery as to the item of lost earnings. Like the court in Demikis, however, the Shiflett court did not rule that the pain and suffering instruction was error. We therefore conclude decedent could have maintained a cause of action for her personal injuries, including pain and suffering against the dramshop had she lived.

The question which remains is whether such an action survives so that her estate can maintain the action after her death. The Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. IIOV2, par. 27-6 ) (Survival Act) states that actions provided for in section 14 of article VI of the act relating to alcoholic liquor (Ill. Rev. Stat. 1981, ch. 43, par. 135) survive the death of the decedent. The Survival Act does not create a new cause of action, but simply allows the personal representative of the decedent to maintain any statutory or common law action available to decedent at the time of his death. (National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160.) “The Survival Act shields from abatement only those claims which are specifically set forth in it; which claims abate and which survive is the result of legislative judgment to which this court is not free ‘to annex new provisions or substitute different ones’ or provide exceptions, limitations or conditions which are different than the plain meaning of the statute.” Froud v. Celotex Corp. (1983), 98 Ill. 2d 324, 334, (citing Belfield v. Coop (1956), 8 Ill. 2d 293, 306-07).

The only case cited by defendants in support of their contention that a pain-and-suffering cause of action does not survive is Howlett v. Doglio (1949), 402 Ill. 311. There, the mother of the decedent filed suit against the dramshop for damage to her property incurred when an intoxicated patron left the dramshop, operated his vehicle and subsequently struck the plaintiff’s daughter, who died from these injuries. The plaintiff argued “the interest which nature and our form of society gives to each person in his lineal next of kin” was “property” within the purview of the Dramshop Act. The supreme court stated the plaintiff had a cause of action under the Wrongful Death Act for “pecuniary injuries” but that such injuries were not synonymous with “injury to property” under the Dramshop Act. Emphasizing the different purposes and objectives of the two statutes, the Howlett court held property under the Dramshop Act meant tangible and real property and did not include “pecuniary injuries” as expressly provided for in the Wrongful Death Act.

Defendants contend that from Howlett has emerged the broad general principle that no survivorship action exists under the Dram-shop Act. Recently, however, our supreme court in Elliott v. Willis (1982), 92 Ill. 2d 530, questioned some of the language in Howlett. In concluding that a jury may consider the loss of decedent’s society by the widow and next of kin as pecuniary injuries under the Wrongful Death Act, the court labeled as “implicitly overruled” the language in Howlett defining pecuniary injuries as a material loss susceptible of pecuniary valuation. (92 Ill. 2d 530, 537.) Thus, the continuing viability of Howlett is debatable. More important, Howlett is not determinative of the issue presented in the case at bar. Howlett construed the “property” language of the Dramshop Act and concluded the mother could not recover damages for loss of her daughter as an injury to the mother’s property. This conclusion, however, does not preclude plaintiff’s recovery theory here, which is based upon personal injury to decedent represented in this action by plaintiff.

Defendant’s argument that plaintiff has not cited a case authorizing such an action does not ipso facto establish that no such action exists. Admittedly, almost all of the dramshop cases concern actions for loss of means of support. Our supreme court in Howlett v. Doglio (1949), 402 Ill. 311 recognized this: “In many, if not all, instances, actions brought under the act have been predicated upon injury to ‘means of support’ resulting from the husband’s loss of earning power or his death.” (402 Ill. 311, 318-19.) In Heldt v. Brei (1983), 118 Ill. App. 3d 798, 455 N.E.2d 842, the special administrator of the decedent’s estate sued the hosts of a party under the Dramshop Act for serving alcohol to a person who subsequently operated his car and ran over decedent. While the Heldt court affirmed the dismissal of the survival action because the hosts were not in the business of selling alcohol for a profit, the court implicitly accepted the availability of the survival action had the defendants been dramshop operators. The language of the Probate Act of 1975 does not provide for survival only of actions based upon loss of means of support, but rather states that actions based on section 14 of article VI of the Dramshop Act (Ill. Rev. Stat. 1981, ch. 43, par. 135) can be maintained by the decedent’s estate. Since plaintiff’s claim for injuries to decedent’s person is based upon section 14 of article VI, we conclude the plain language of the Probate Act of 1975 provides that all actions, including those based on injury to person, survive the death of the decedent.

Based upon our previous conclusions that decedent could have maintained an action against defendants for injury to her person had she lived and that this action survived her death, we next consider whether the trial judge correctly dismissed count V on the morning of trial without hearing evidence on plaintiff’s injury-to-person claim. A motion to dismiss admits facts well pleaded, and all reasonable inferences which can be drawn from those facts, but only for the purpose of determining whether, as a matter of law, those facts state a claim upon which relief may be granted. (Cross v. Chicago Housing Authority (1979), 74 Ill. App. 3d 921, 393 N.E.2d 580, aff’d sub nom. Cross v. Wells Fargo Alarm Services, Inc. (1980), 82 Ill. 2d 313.) A court should not dismiss an action on the pleadings unless it appears that no set of facts can be proved which would entitle the pleader to relief. Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 387 N.E.2d 785.

In granting defendant’s motion to dismiss the remaining portion of count V of plaintiff’s complaint concerning decedent’s personal injuries, the trial court was concerned with allowing recovery for the brief time period during which decedent may have survived the accident.

“Maris [sic] died about 3 hours after the accident and there was no question that she was never conscious when anybody saw her, after the accident, and so on the survivorship action, which has to do with her pain and suffering, I am going to grant the Motion to dismiss, take the dram out because it does not survive. The reason that I am granting it is because No. 1, it doesn’t survive, but I think it’s clear from the evidence that there was very little pain or suffering or very short time span in any event, O.K., so that I don’t know what you would be able to prove on that, but I know you want to make the argument that a person who is driving a car or a passenger in a car who is awake and suffers these injuries, has some period of time of pain, even though it may be momentary, and I don’t think that is good enough to keep it in.”

Accepting the facts in plaintiff’s complaint as true, we disagree with the trial court’s conclusion that no set of facts could be proved which would entitle plaintiff to recover for decedent’s pain and suffering. As the court in In re Air Crash Disaster Near Chicago (N.D. Ill. 1980), 507 F. Supp. 21, 24, stated interpreting Illinois law, “Courts have allowed claims of conscious pain and suffering to be determined by a jury when extremely short time intervals were involved.” The duration of pain and suffering should determine the amount of, but not entitlement to, recovery. In re Air Crash Disaster Near Chicago (N.D. Ill. 1980), 507 F. Supp. 21; Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 1072, 436 N.E.2d 623, 628.

As a result of the dismissal of count V, no evidence was introduced on the question of whether decedent was conscious for any period of time following the accident. Therefore, we remand this cause for reinstatement of count V of plaintiff’s complaint seeking damages for decedent’s pain and suffering, if any, which she experienced for some period of consciousness following the accident.

In so ruling, we do not express any opinion as to whether plaintiff can prove that decedent consciously suffered pain following the accident. (See In re Air Crash Disaster Near Chicago (N.D. Ill. 1980), 507 F. Supp. 21, 24 n.l.) The inquiry on remand will be circumscribed and limited. In oral argument to this court, plaintiff conceded that he was not seeking damages for any time during which decedent was unconscious and admitted that decedent when she was found approximately 20 minutes after the accident was unconscious and remained unconscious until she died in the hospital several hours later. Therefore, the maximum time period for which plaintiff could conceivably establish pain and suffering was from the time the accident occurred until she was located in the field approximately 20 minutes later. The evidence presented concerning this time period must make more than speculative the conclusion that decedent was conscious and suffered pain. See In re Dearborn Marine Service, Inc. (5th Cir. 1974), 499 F.2d 263, 288, cert. dismissed sub nom. Monk v. Chambers & Kennedy (1975), 423 U.S. 886, 46 L. Ed. 2d 118, 96 S. Ct. 163; Davis v. Parkhill-Goodloe Co. (5th Cir. 1962), 302 F.2d 489, 495.

Accordingly, we affirm in part and reverse in part and remand the order of the circuit court of Lake County.

Affirmed in part, reversed in part and remanded.

REINHARD and UNVERZAGT, JJ., concur.

      During oral argument, counsel for defendants McCormicks acknowledged the existence of a standing rule of the trial judge presiding in the instant case that all oral orders be reduced to writing for his signature before noon of the day the order was issued. Therefore, pursuant to Supreme Court Rule 272 (73 Ill. 2d R. 272), the written order signed by the trial judge and not the oral order became the final order for purposes of our consideration.


source: Caselaw Access Project

author: PRESIDING JUSTICE BUCKLEY

license: Public Domain

text:
    JULIE DAHL et al., Petitioners-Appellants, v. JOAN GRENIER, Respondent-Appellee.
    First District (1st Division)
    No. 83—2071
    Opinion filed July 30, 1984.

      Thomas E. Burchfield, Larry Selander, and James Potter, all of Keck, Mahin & Cate, of Chicago, for appellants.
    James C. Kellogg and Dennis J. Kellogg, both of Chicago, for appellee.
   PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

Petitioners, the natural grandchildren of decedent, James J. Elwell, sought to vacate and set aside the judgment of adoption by which decedent adopted his stepdaughter, respondent Joan Grenier. Their petition alleged that decedent was under a legal disability at the time the adoption judgment was entered, and that the entering court therefore lacked subject matter jurisdiction. Following a hearing, the trial court entered an order denying the petition, and it is from this order that petitioners now appeal. We affirm.

The record reveals that on June 26, 1980, decedent James Elwell adopted the respondent, who was the daughter of his deceased wife. The certificate of adoption shows that at the time of the adoption the decedent was 70 years and respondent was 49 years old. Prior to the adoption, petitioners were the sole beneficiaries of a trust established under the. will of Cary P. Elwell, decedent’s mother. Article Six, section 1(a), of the will provides in pertinent part:

“Upon *** the death of James [Elwell], that fraction of the trust estate equal to the fraction of the income thereof to which James would have been entitled if living shall be distributed in equal shares to the then living grandchildren of James ***.”

As a result of the adoption, the number of potential beneficiaries of the trust increased by three: Michelle, Paul and Steven Grenier, the respondent’s children.

On October 5, 1982, the decedent died. Respondent thereafter instituted an action in chancery against The Northern Trust Company, the trust administrator, seeking a finding that her children were decedent’s grandchildren under the terms of the trust. Petitioners brought a motion for leave to intervene in the chancery action, which was granted.

Petitioners simultaneously filed a petition to vacate and set aside the judgment of adoption of respondent pursuant to section 2 — 1401(f) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2— 1401(f).) The petition alleged that decedent was “suffering under the legal disability of mental incompetency” at the time the judgment of adoption was entered. Accordingly, the petition alleged that the court lacked subject matter jurisdiction and the judgment of adoption was void ah initio and should be set aside. Attached in support of the petition was an affidavit by Anne Elwell, decedent’s natural daughter and apparently the petitioners’ mother and/or aunt. She alleged in the affidavit that in 1977 and 1978 the decedent underwent surgery to remove blood clots in his brain and became mentally incompetent following the surgery.

Respondent moved to strike portions of the petition, and petitioners in turn moved to strike respondent’s motion. Following a hearing, the trial court entered an order denying the petition. In this order, the court found that the judge who heard the adoption petition had jurisdiction of the subject matter and of the persons involved, and that the appropriate Illinois statutes were complied with.

We believe that the denial of the petition to vacate the adoption was proper. The petition specifies that relief is being sought pursuant to section 2 — 1401(f) of the Code of Civil Procedure, which provides:

“Nothing contained in this section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.” Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1401(f).

Hence, section 2 — 1401(f) does not in itself provide a statutory vehicle for seeking relief from a void order or judgment. Rather, this section merely states the well-established rule at common law that a void judgment or decree is subject to collateral attack at any time. (Reynolds v. Burns (1960), 20 Ill. 2d 179, 192, 170 N.E.2d 122; see Ill. Ann. Stat., ch. 110, par. 2 — 1401(f), Historical and Practice Notes, at 610 (Smith-Hurd 1983).) This rule is based upon the court’s inherent authority to expunge from its records void acts. In re Petition of Stern (1954), 2 Ill. App. 2d 311, 120 N.E.2d 62.

The law is settled that since this is a collateral attack on an adoption, the sole inquiry to be made is whether the court had jurisdiction to enter the adoption judgment. (Gebhardt v. Warren (1948), 399 Ill. 196, 199, 77 N.E.2d 187; In re Estate of Wolfner (1963), 44 Ill. App. 2d 77, 83, 194 N.E.2d 1.) Where, as here, none of the parties to the adoption proceeding are complaining, the inquiry is further narrowed to the question of jurisdiction of the subject matter. (Orme v. Northern Trust Co. (1962), 25 Ill. 2d 151, 163, 183 N.E.2d 505; Gebhardt v. Warren (1948), 399 Ill. 196, 199, 77 N.E.2d 187.) Jurisdiction of the subject matter refers to the power of a court to hear and decide a particular case or controversy. In re Adoption of Lucas (1980), 87 Ill. App. 3d 1100, 1105, 409 N.E.2d 521; In re Estate of Harris (1949), 339 Ill. App. 162, 164, 89 N.E.2d 197.

In Illinois, jurisdiction to hear and determine adoption proceedings is conferred by statute. (Ill. Rev. Stat. 1983, ch. 40, par. 1501 et seq.) As such, the record must reflect compliance with the provisions of the adoption statute in order for the court to have jurisdiction to exercise the statutory powers conferred. (In re Estate of Harris (1949), 339 Ill. App. 162, 89 N.E.2d 197.) The prevailing rule of construction in this State requires only a substantial compliance with the jurisdictional requirements of the adoption statute. (In re Simaner (1959), 15 Ill. 2d 568, 155 N.E.2d 555; McConnell v. McConnell (1931), 345 Ill. 70, 177 N.E. 692; Rodriguez v. Koschny (1978), 57 Ill. App. 3d 355, 373 N.E.2d 47.) Consequently, where the record in an adoption proceeding shows at least substantial compliance with the statute, a judgment of adoption is secure from collateral attack. In re Estate of Bohn (1923), 308 Ill. 214, 139 N.E. 64; In re Petition of Stern (1954), 2 Ill. App. 2d 311, 120 N.E.2d 62.

In the case before us, petitioners’ collateral attack is based solely on their allegation that the decedent was not in compliance with section 2(A) of the Adoption Act. (Ill. Rev. Stat. 1983, ch. 40, par. 1502(A).) This section requires that persons seeking to adopt be under no legal disability. As a result of this alleged noncompliance, petitioners maintain that the court lacked subject matter jurisdiction to enter the adoption judgment. At oral argument before this court, counsel for petitioners flatly denied that the adoption order contained an express finding that decedent was under no legal disability. Counsel maintained that the trial court “merely made the finding that it had subject matter jurisdiction,” and that this broad finding was insufficient to now insulate the adoption judgment from a jurisdictional attack.

After carefully examining the contents of the record, we must reject petitioners’ argument. The record discloses first that on April 2, 1980, the decedent filed a verified petition seeking to adopt respondent. In this petition decedent specifically averred that he was under no legal disability. We note that such an averment was not even required under section 5 of the Adoption Act, which sets forth the requirements for an adoption petition. (Ill. Rev. Stat. 1983, ch. 40, par. 1507.) The record further discloses that on April 16, 1980, the court ordered an investigation to fully inquire into the allegations set forth in decedent’s petition and to determine whether decedent was a proper person to adopt respondent.

On June 26, 1980, the court entered the judgment of adoption. In the judgment order, the court stated that it had received a written report from the court-appointed investigator. The court further stated in the order, in relevant part, as follows:

“The Court having heard all the evidence and now being fully advised in the premises, FINDS:
1. That it has jurisdiction of the parties to this cause and the subject matter hereof.
2. That the petitioner herein and the person sought to be adopted have personally appeared in open court.
3. That the petitioner herein is of lawful age, under no legal disability and that he resides in the Village of Palos Park, County of Cook and State of Illinois.
* * *
8. That the allegations of the petition are true and proven as therein alleged and it is fit and proper and for the best interest of the person sought to be adopted that the prayer of the petition for adoption be granted.” (Emphasis added.)

Hence, contrary to petitioners’ assertion, the adoption order contains more than a broad finding that the court had subject matter jurisdiction. Rather, the order shows that the court, following a court-ordered investigation and after hearing the evidence and having had the opportunity to examine decedent in open court, made the explicit finding that decedent was under no legal disability.

We note that whether or not decedent was in fact under a legal disability is a factual question which cannot be inquired into in this collateral attack. (See In re Estate of Wolfner (1963), 44 Ill. App. 2d 77, 194 N.E.2d 1.) In Wolfner, the petitioner attempted to set aside the adoption decrees of his deceased wife’s two adopted sons in order to become the principal heir to his wife’s estate. The petitioner collaterally attacked the jurisdiction of the court entering the decrees, alleging that the written consents by each natural mother were invalid for various reasons. In upholding the validity of the decrees, the court limited its inquiry to the record of the proceedings, stating:

“Petitioner’s contentions relative to the consents involve questions of fact which cannot be inquired into in a collateral proceeding. In re Estate of Harris, 339 Ill. App. 162, 166, 89 N.E. 2d 197 (1949), held:
‘There is nothing in the record whatever to indicate that the defendant did not consent to the adoption, and nothing to indicate that the court did not fully inquire into the wishes of the defendant, or that the court was not guided by her wishes in the entry of the adoption decree. Whether the defendant consented to the adoption was a question of fact. As stated in Kennedy v. Borah, 226 Ill. 243, at page 253, “Whether the facts proved justified the decree (of adoption) cannot be inquired into in this collateral proceeding.” ***’ ” (44 Ill. App. 2d 77, 84, 194 N.E.2d 1.)

Similarly, whether in this case the facts proved justified the judgment of adoption cannot be inquired into in this collateral proceeding. Given that there is nothing in the record indicating a failure to comply with the jurisdictional requirements of the adoption statute, the collateral attack in this case must fail.

We briefly note that petitioners acknowledge in their brief that “some cases have asserted for a collateral attack to be maintained, the want of jurisdiction must appear on the face of the record.” Petitioners state that this rule in the context of adoptions is designed to further the public policy of protecting the child adoption process and the participants therein. They then argue that these policy considerations, and thus the above rule, do not apply in this case due to the ages of the parties to the adoption. Petitioners, however, cite no case law or statute to support this proposition. The adoption statute, by its own terms, applies not only to children but to adults as well. We see no reason to disregard the above rule and the policy considerations underlying the adoption statute for the sole purpose of enabling petitioners in this case to increase their inheritance.

We therefore conclude, based on the record before us, that the trial court had subject matter jurisdiction to enter the adoption judgment, and that the grounds urged by petitioners for vacating the judgment cannot, under the authorities and facts of this case, be sustained. Accordingly, the trial court correctly refused to vacate the judgment of adoption.

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

Affirmed.

GOLDBERG and CAMPBELL, JJ., concur.


author: JUSTICE TRAPP

text:
    MURYL J. JONES, a/k/a Muryl J. Meade, Petitioner-Appellee and Cross-Appellant, v. WILLIAM W. MEADE, Respondent-Appellant and Cross-Appellee.
    Fourth District
    No. 4—83—0719
    Opinion filed August 15, 1984.

      John T. Phipps, of John T. Phipps Law Offices, P.C., of Champaign, for appellant.
    Raymond R. Kimpel, of Summers, Watson & Kimpel, of Champaign, for appellee.
   JUSTICE TRAPP

delivered the opinion of the court:

On September 8, 1982, petitioner filed for a rule to show cause, claiming arrearages of child support payments. Following a hearing and the filing of points and authorities by counsel, the trial judge entered his judgment on May 5, 1983, in behalf of petitioner for arrear-ages of $16,850 plus interest on the payments in the amount of $11,663.07. Petitioner filed a post-trial motion seeking attorney fees and stating that the court’s May 5, 1983, order on the rule to show cause made no finding as to whether respondent’s failure to pay child support was without cause or justification. After hearing on August 8, 1983, the court concluded that respondent’s failure to pay child support was not without cause or provocation. The trial judge therefore declined to apply section 508(b) of the Illinois Marriage and Dissolution of Marriage Act and treated attorney fees as discretionary under section 508(a). (Ill. Rev. Stat. 1981, ch. 40, pars. 508(a), (b).) On September 28, 1983, the trial court entered its order on petitioner’s post-trial motion, finding petitioner’s reasonable attorney fees amounted to $1,680 and ordering respondent to pay $1,200 in light of the relative financial circumstances of the parties. Respondent appeals from the judgment of the circuit court of Champaign County. Petitioner cross-appeals. We affirm and remand the cause.

On appeal respondent argues (1) petitioner’s claim is barred by equitable estoppel, or (2) by laches-, (3) his 1969 petition to modify the divorce decree should be reinstated; (4) the trial court erred in awarding interest on the support arrearage, and (5) in ordering him to pay a portion of petitioner’s attorney fees. On cross-appeal, petitioner argues (1) the trial court erred in not awarding her the full amount of her reasonable attorney fees; and (2) that she is entitled to attorney fees for prosecution of this appeal.

The parties’ marriage was dissolved on October 16, 1967. Respondent was ordered to pay $250 each month for the support and maintenance of their three minor children. On April 9, 1969, respondent filed a petition to modify the divorce decree and reduce his support obligation. On May 23, 1969, the parties and counsel appeared and stipulated that (1) for three months respondent would pay petitioner $150 per month with liability accruing but sanctions not being enforced, and (2) respondent’s petition would be heard during that period. Accordingly, the trial judge entered a temporary order pending a hearing upon the merits of respondent’s petition.

Respondent failed to call his petition for a hearing on the merits, but continued paying child support at the rate of $150 per month. He further decreased his monthly support payments by $50 per month as each of the parties’ children attained majority. On November 2, 1976, petitioner filed a petition to increase support payments for the remaining minor. On March 15, 1977, a consent decree was entered under which respondent agreed to increase his payments by $50 per month.

Respondent’s 1969 petition to modify the divorce decree and reduce child support payments was dismissed on the court’s motion for want of prosecution on March 31, 1978. In 1978, the court terminated its March 1977 consent decree, as the youngest child had attained majority.

Testimony of the February 7, 1983, hearing may be summarized as follows. Respondent testified that his 1967 income was $7,581.80. Thereafter his income fell to less than $5,000 in 1968; $4,542 in 1969; $5,178.24 in 1970; and less than $5,000 in 1971. He said these economic reversals led him to file his 1969 petition to modify the divorce decree. After the May 1969 discussion regarding the petition, he understood he was to pay $150 monthly, or $50 per child per month. He said he had not been aware that the court’s docket entry indicated that the child support payments would be reduced for a three-month period only. He said immediately after the May 1969 proceeding, sitting on a bench outside the conference room, petitioner had agreed that he could pay $50 per child per month.

On cross-examination, respondent acknowledged his letter to petitioner dated August 20, 1969, mailed from Milan, New Mexico, wherein he stated, “ ‘I’d like to come back to Illinois sometime but you started in last Sunday about seeing your lawyer, so I had nothing to do but leave. *** If you can ever see your way clear to see your lawyer to get these things settled, I’ll be back and keep paying what I can afford.’ ” Respondent said he had been to court with petitioner so many times that he did not know the dates or why he had been there. He denied that petitioner had tried to collect child support from him, but recalled being in court on one occasion when she had asserted he had not made a payment and he had produced a check.

In 1980, respondent had sold two acres purchased at $20,000 for $58,500. In 1982, he had acquired warehouse rental properties for about $26,000. Respondent owns and operates Meade Sunoco in Ur-bana, Illinois. In 1981 he had done approximately $287,000 worth of business. His 1981 income tax return showed he had claimed depreciation on $84,370 worth of personal property, tools, and equipment, in-eluding five motor vehicles. As this included leased trucks, respondent estimated that he owned about $45,000 worth of the figure depreciated. He owned his home, valued at $30,000, clear of mortgage, and a building on 1-74.

In May 1969, petitioner had agreed with respondent and his counsel to reduced child support payments for a period of three months. She testified that in efforts to collect the child support as it became overdue, she had gone to the State’s Attorney’s offices in Champaign and Montgomery counties, and to the attorney who had represented her in the divorce. She had made no demand on respondent for the money, as there had been no communication between them. Referring to her failure to include a claim for the arrearages in her 1977 action to increase child support for the remaining minor, she said she had had enough trouble getting money from respondent month to month.

The trial court’s order on the rule to show cause, filed May 5, 1983, found as follows:

“By consent decree entered in *** Case No. 77 — -L—168, on March 23, 1977, the defendant was ordered to pay $50 twice monthly for [the minor’s] support, with that decree expressly stating that its entry would ‘not supercede any previous order issued by any other court, but the amounts for a particular period paid pursuant to such previous order shall be credited against amounts accruing or accrued for the same period under both.’ ***
The evidence fails to establish that the Court ever modified the original order providing for $250 per month in child support on an unallocated basis. Moreover, the Court is persuaded that the plaintiff did not agree to reduce the defendant’s support obligation at any time. The record affirmatively supports the conclusion that the most that the plaintiff agreed to do was to suspend enforcement for a limited period and to [permit] an arrearage in support to accumulate during this period. It is now entirely self-serving for the defendant to claim that any other agreement existed. He clearly knew how to petition the Court for a reduction, initiating such a proceeding but failing to pursue it. He cannot now claim that the plaintiff is barred by waiver, estoppel or laches from collecting past due child support. It would more likely be true that the defendant is guilty of laches for sitting on his right to seek a court order reducing his support obligation. The Court is without authority to retroactively modify child support and the defendant may not unilaterally reduce unallocated child support as each child reaches majority. In re Bjorklund, 88 Ill. App. 3d 576 (1980).
* * *
The evidence fails to establish that the defendant is in willful and contumacious contempt of Court for his failure to make support payments.
The affirmative defenses raised by the defendant find insufficient support in the evidence. ***”

Respondent argues on appeal that his filing of a petition to modify the divorce decree and reduce his payments in 1969 makes this a special case. He maintains petitioner’s claim is barred by the doctrines of equitable estoppel and laches because he believed she had agreed to a permanent reduction in child support payments and was lulled into inaction on his petition to modify the divorce decree by her silence. He claims that petitioner had no vested right to any support payments accruing after the filing of his petition to modify the decree. He further contends that the court’s award would result in a large windfall to petitioner since the children have all reached the age of majority. We disagree.

First, the trial judge clearly found that petitioner did not agree to reduce respondent’s support obligation. Second, respondent’s petition to modify the divorce decree, filed some 14 years ago and dismissed 9 years later, is now a nullity and cannot be revived. Respondent’s request to reinstate his petition to modify the divorce decree was presented in his discussion of estoppel as an affirmative defense in response to the amended petition for rule to show cause. Such a request should be made by petition for relief in compliance with section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401).

We agree with the trial judge that respondent cannot interpose the results of his own inaction to bar petitioner’s claim. Past due installments of child support are a vested right, and the court has no authority to modify them either as to amount or time of payment. See Wilson v. Wilson (1970), 122 Ill. App. 2d 142, 257 N.E.2d 810; Hurt v. Hurt (1953), 351 Ill. App. 427, 431, 115 N.E.2d 638, 640, and cases cited therein.

In order for the doctrine of equitable estoppel to apply, the six elements must be present: (1) Words or conduct by the party against whom the estoppel is alleged constituting either a misrepresentation or concealment of material facts; (2) knowledge on the part of the party against whom the estoppel is alleged that representations made were untrue; (3) the party claiming the benefit of an estoppel must have not known the representations to be false either at the time they were made or at the time they were acted upon; (4) the party estopped must either intend or expect that his conduct or representations will be acted upon by the party asserting the estoppel; (5) the party seeking the benefit of the estoppel must have relied or acted upon the representations; and (6) the party claiming the benefit of the estoppel must be in a position of prejudice if the party against whom the estoppel is alleged is permitted to deny the truth of the representations made. (Stewart v. O’Bryan (1977), 50 Ill. App. 3d 108, 110, 365 N.E.2d 1019, 1020-21.) The defense of laches is dependent upon the facts of each case and has been defined as such neglect or omission to assert a right, taken in conjunction with a lapse of time and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity. A defendant must show prejudice or hardship and must be injured by the delay for the defense of laches to apply. Fruhling v. County of Champaign (1981), 95 Ill. App. 3d 409, 416, 420 N.E.2d 1066, 1070; DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 136, 418 N.E.2d 413, 417.

As the trial court found petitioner did not agree to a permanent reduction in child support, the doctrine of equitable estoppel does not apply. Silence on the part of the custodial spouse, in the face of unilateral reduction in child support payments by a spouse, does not itself create an equitable estoppel. (Ellingwood v. Ellingwood (1975), 25 Ill. App. 3d 587, 323 N.E.2d 571 (petitioner alleged arrearages over 22 years).) Rather, respondent’s failure to comply with the provisions of the support decree was because he believed he was no longer liable for the amount specified in the decree and could therefore unilaterally reduce the payment. His erroneous belief does not bar petitioner’s recovery. Finley v Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.

The same rationale may be applied to respondent’s assertion that laches bars petitioner’s recovery. Laches is an equitable doctrine to be invoked or rejected in the trial court’s discretion. The trial court in this case specifically found that the evidence was insufficient to establish laches. We agree. A spouse is not injured because he is forced to pay the accumulated support in one lump sum as opposed to weekly payments as ordered. (Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.) He asserts as prejudice that he is unable to locate his income tax returns for 1968 and 1971 and certain business records from 1971 and 1972. As he elected to forego prosecution of his petition to modify the decree, the absence of such records cannot now be relied upon to prove prejudice.

Respondent cites as persuasive Royster v. Royster (1949), 339 Ill. App. 250, 89 N.E.2d 279 (abstract of opinion). This is an abstract decision, and the full opinion was not appended to respondent’s brief in violation of Uniform Appellate Rule 8. (Ill. Rev. Stat. 1981, ch. 110A, par. 908.) We therefore refuse to consider it.

Respondent maintains he should be allowed to reinstate his petition to modify the divorce decree. He asserts that the trial court abused its discretion and was mistaken as to the applicable law in this regard. We note that respondent’s failure to pursue his petition has removed him from the scope of In re Marriage of McDavid (1981), 97 Ill. App. 3d 1044, 425 N.E.2d 442, wherein it was held that the trial court has discretion to modify a support order retroactive to the date the petition for modification had been filed. It has been held that the trial court has no jurisdiction to vacate an order of dismissal for want of prosecution more than three years after its entry or to reinstate the cause. Watts v. Medusa Portland Cement Co. (1971), 132 Ill. App. 2d 227, 268 N.E.2d 721; Grice v. Grice (1940), 304 Ill. App. 584, 26 N.E.2d 747 (abstract of opinion); Andonoplas v. Jaremko (1972), 9 Ill. App. 3d 298, 292 N.E.2d 225.

Respondent next argues that the trial court abused its discretion in awarding interest on the past-due periodic support payments. The allowance of interest on such support payments lies within the sound discretion of the trial judge, whose determination will not be set aside absent an abuse of that discretion. (Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.) Respondent asserts that the trial judge “appears to have assumed that interest should be awarded in all cases of child support arrearages.” The court’s order simply states, “the accrued child support arrearage totals $16,850 in unpaid payments plus accumulated simple interest at the statutory rate applicable when each payment became due.” No erroneous assumption is apparent to us in this ruling. We presume the trial judge knew the law. We cannot say that the allowance of interest constituted an abuse of discretion. As in Finley, for many years petitioner was deprived of money for child support which was rightfully hers and, for that same length of time, respondent enjoyed the use of this money.

By cross-appeal, petitioner contends that section 508(b) of the Act controls and a full award of attorney fees should be required. By its order of September 28, 1983, upon petitioner’s motion for attorney fees, the trial court rejected the finding required by section 508(b). Accordingly, an award of fees is not mandatory, but discretionary. Sostak v. Sostak (1983), 113 Ill. App. 3d 954, 447 N.E.2d 1345.

Respondent urges that the trial court abused its discretion in requiring that he pay $1,200 towards petitioner’s reasonable attorney fees. The trial court’s finding was that petitioner’s income and assets were virtually nil while those of respondent were substantial. The test of discretion in the awarding of attorney fees is the ability of the petitioning spouse to pay, together with consideration of the circumstances requiring judicial proceedings. Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785.

Although a hearing was conducted and evidence taken on this matter on August 8, 1983, neither party has supplemented the record on appeal with a transcript of that proceeding or a bystander’s report prepared in compliance with Supreme Court Rule 323 (87 Ill. 2d R. 323). We conclude that the trial judge was aware of the factors to be considered and made his determination based on the totality of the circumstances. We therefore decline to disturb the exercise of his discretion.

We remand petitioner’s request for attorney fees in prosecution of this appeal to the trial court so that evidence may be taken and a ruling obtained thereon. In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 443 N.E.2d 1089.

Affirmed, and cause remanded for proceedings consistent with this opinion.

MILLS, P.J., and WEBBER, J., concur.