author: JUSTICE BARRY JUSTICE HEIPLE,

text:
    TOMM TWAIT, Plaintiff-Appellee, v. BRUCE OLSON, Defendant.— (FORREST E. FARLEY, Defendant-Appellant.)
    Third District
    No. 81-54
    Opinion filed February 26, 1982.
    Rehearing denied April 6, 1982.

      George C. Hupp, Sr., of Hupp, Irion & Reagan, of Ottawa, for appellant.
    John F. Vickers, of Peter F. Ferracuti & Associates, of Ottawa, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff Tomm Twait received a severe permanent brain injury when a car driven by Bruce Olson in which Twait was passenger was struck from the rear by a car driven by defendant Forrest Farley while both were traveling north on a preferential highway known as the Leland Spur Road. Plaintiff brought this personal injury action against both Olson and Farley, and the jury returned a verdict in favor of plaintiff against defendant Farley for $550,000 and in favor of defendant Olson against plaintiff. Farley appeals from the judgment entered upon the verdict against him, asserting (1) that Farley should have been granted a directed verdict; (2) that the verdict was contrary to the manifest weight of the evidence; and (3) that eight evidentiary errors occurred during trial which either alone, or cumulatively, deprived Farley of a fair trial.

In order to consider the questions relating to the correctness of the verdict, it is necessary to set forth the factual circumstances of the accident. At about 12:15 a.m. on July 3,1977, defendant Olson was driving his 1969 Camaro in an easterly direction along Stein Road approaching the intersection with Leland Spur Road. Both roads consist of only two lanes. Tomm Twait was a passenger in the front seat of the Olson vehicle. According to Olson, when he reached the intersection, he stopped at the stop sign, and saw a car approaching about one-quarter mile away to his right. He shifted into first gear, and as he started to pull out and make a left turn onto Leland Spur Road, he estimated the on-coming car to be about one-eighth mile to the south. Olson’s vehicle was struck from the rear by the Farley automobile extensively damaging both vehicles. Farley said that when he saw Olson’s car in front of him, he slammed on his brakes. Resulting skid marks measured 129 feet to the apparent point of impact at the north edge of the intersection and an additional 144 feet north of that point where both vehicles came to rest. The total of the Farley skid marks was therefore 273 feet long. Farley testified at trial that he was traveling no more than 55 miles per hour, that he saw the Olson vehicle make a left turn from the west into his lane of travel, that at that time the Olson vehicle was about 100 feet in front of him, and that he applied his brakes.

The debris from the collision was in the northbound lane 33 feet north of the center of the intersection. The Olson car was still in first gear when it came to rest. James Walz, an eyewitness in a car traveling from the north on the Leland Spur Road, saw the Farley car approaching as Olson pulled onto the highway. He said the Farley car was “real close” when Olson pulled out and that Olson had not completed a 90-degree turn when he was struck in the right rear corner of his car.

Farley was driving an 8-cylinder 1973 Camaro and was accompanied by Cindy Catron, who was asleep. Twait’s severe brain injuries resulted in lowered intelligence, impaired space perception, altered personality, impaired speech and coordination, and an inability to be employed or to care for himself. Twait was 17 years old at the time of the accident and had been a popular and successful high school athlete, and a good student.

There is no question of contributory negligence on the part of the plaintiff. Also, this trial took place during June of 1980 prior to the Illinois Supreme Court decision in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, which promulgated the doctrine of comparative negligence in all negligence cases in which trial commences on or after June 8,1981.

Plaintiff’s theory of liability was that both defendants were negligent in that defendant Farley was traveling at an outrageously excessive speed and that defendant Olson misjudged Farley’s speed when he pulled out onto the Leland Blacktop in front of Farley’s oncoming car. Olson’s defense was that it was Farley’s negligence that caused the accident and that Olson acted reasonably at the time he turned onto the Leland Blacktop. Farley, on the other hand, defended on the theory that he was traveling at a reasonable rate of speed along a preferential roadway, that Olson suddenly pulled out in front of his vehicle when he was only about 100 feet south of the intersection, and that the collision occurred when Olson’s vehicle had not yet completed its turn. The jury accepted Olson’s version of the accident, thereby rejecting the testimony of Farley and his witnesses.

Upon appeal Farley contends, first, that the trial court should have granted his motion for directed verdict because he (Farley) could not have been guilty of negligence under the circumstances where he was the driver of an automobile on a preferential highway with the right to expect any automobile approaching on the secondary road controlled by a stop sign to obey the stop sign and yield the right-of-way, as required by law. Farley relies upon Hale v. Craven (1970), 129 Ill. App. 2d 466, 263 N.E.2d 593, in support of his position. However, as Hale made plain, the driver on a preferential highway does not have an absolute right-of-way regardless of distances, speed, or other circumstances. (Accord, Conner v. McGrew (1961), 32 Ill. App. 2d 214, 177 N.E.2d 417.) In Pennington v. McLean (1959), 16 Ill. 2d 577, 583, 158 N.E.2d 624, 627, our supreme court said:

“[A] person approaching a preferred highway is not required to stop * * * long enough to permit any car that he observes on the highway to pass, regardless of its distance from the intersection. [Citation.] The statute requires only that the motorist confronted by a stop sign may, exercising reasonable care, proceed across the intersection after he has stopped and yielded the right of way to such vehicles on the through highway as constitute an ‘immediate hazard.’ [Citations.]
The Illinois decisions, however, do not provide a precise formula for determining whether a particular vehicle has conformed to set standards; that question must be determined by the jury [citations], and involves considerations as to relative speeds and distances of the vehicles from the intersection.”

As this court noted in Fincham v. Cooney (1976), 42 Ill. App. 3d 719, 356 N.E.2d 445, Pennington v. McLean and Conner v. McGrew and other cases before 1967 were decided at a time when the test for directing a verdict was whether there was “any evidence” of negligence. That test was rejected in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, where the standard was held to be whether all the evidence viewed in the light most favorable to the nonmoving party so overwhelmingly favors the moving party that no contrary verdict could ever stand. In Fincham v. Cooney we went on to hold that the Pedrick decision did not change the standard of care required of a driver on a preferential highway and that the rule set forth in Pennington v. McLean and Conner v. McGrew is still valid.

The record in this case demonstrates substantial evidence of excessive speed on the part of Farley, indicating that he may have failed to exercise reasonable care in approaching and proceeding through the intersection. Farley was familiar with the terrain, having traveled the Leland Blacktop many times and having farmed a field at that intersection. There was a dip some 262 feet south of the intersection big and deep enough to conceal an automobile and adjoining the dip along the west shoulder of the road was a ten foot high embankment. Farley’s 8-cylinder vehicle was a 4-barrel carburetor, 327-cubic inch, high-performance automobile. Two residents who lived near the intersection testified that they were awakened that night by the loud roar of an engine which continued for about 10 seconds and which was followed by the squealing of tires, a crash, and then the tinkling of hubcaps on the roadway. Farley admitted that he never saw the headlights of Olson’s car but rather sighted only his taillights just before the collision. The length of the skidmarks, particularly after the impact, and the amount of debris and damage to the vehicles are additional factors indicating the tremendous speed of Farley’s vehicle.

There was contradictory evidence, too, including Farley’s testimony that he was traveling 55 miles per hour, and after reviewing all of the evidence, we find that there is evidence consistent with both plaintiff’s theory and with Farley’s theory, and, therefore, the case was an appropriate one for the jury to decide. (Fincham, v. Cooney (1976), 42 Ill. App. 3d 719, 721-22, 356 N.E.2d 319, 321.) Farley was not entitled to a directed verdict.

Farley also argues that the verdict was contrary to the manifest weight of the evidence. From our previous discussion of the evidence, we think it clear that there was substantial and, in fact, abundant evidence to support the verdict, and no reversal is required on that basis.

Next we must examine the trial rulings which defendant Farley contends were erroneous. First, defendant insists that two occasions where plaintiff’s counsel mentioned the word “insurance” were prejudicial to plaintiff’s cause and should have been grounds for declaration of a mistrial. The initial use of the word “insurance” came during voir dire when one prospective juror said he thought he remembered plaintiff’s counsel, Mr. Ferracuti, from another case, and counsel responded, “Are you sure it was not Mr. Raccuglia, he sometimes represents insurance companies?” Farley argues that Mr. Ferracuti implied to the jury that he does not represent insurance companies and thus that plaintiff was not insured. The other occasion came during closing argument when plaintiff’s counsel was arguing that plaintiff would not only be deprived of future lost wages because of his inability to work but also of fringe benefits such as health insurance, dental insurance, pensions. Then counsel said, “He’ll never buy insurance. Who is going to sell him liability insurance? He doesn’t drive a car anyway. Who is going to sell him insuranee?” Plaintiff argues that the jury might conclude from this that defendant must have been insured since he was driving and since plaintiff said no one can drive without insurance. Actually plaintiff’s counsel, in effect, said that no one buys insurance who does not drive. In both cases, different inferences could be drawn from the reference to insurance than the inferences plaintiff would draw, and thus in both situations, the matter was one for the exercise of the sound discretion of the trial court.

Not every mention of the word “insurance” during a personal injury trial requires the court to declare a mistrial. In Kitsch v. Goode (1977), 48 Ill. App. 3d 260, 266, 362 N.E.2d 446, 451, the court reviewed the traditional rule against disclosure of insurance coverage and then observed:

“With the passing of years, however, and the almost universal prevalence of automobile liability insurance, has come an increasing judicial tolerance toward references to insurance. Where a finding of liability has a complete basis in the evidence and the damage award is reasonable, the courts will conclude that the jury was not prejudiced by the remark.”

Furthermore, we think it significant that neither mention of insurance here referred to defendant Farley’s possible insurance coverage. It is an indication that defendant is insured that is particularly prejudicial. (Cf. Pinkerton v. Oak Park National Bank (1958), 16 Ill. App. 2d 91, 97-98, 147 N.E.2d 390, 394.) We cannot say that the trial court abused its discretion declining to declare a mistrial because of these two oblique references to insurance.

Farley next contends that the trial court erred in permitting evidence to be introduced which indicated that Farley’s family farmed the field at one of the corners of the intersection. One of the photographs which was introduced into evidence for the purported purpose of showing Farley’s familiarity with the terrain included the field at the northwest corner which Farley stated he had personally farmed. He insists that this must have impressed the jury with the fact that he had the “deep pocket” in this case. There was no objection to the evidence, and no mention that Farley lived on the farm in question or that Farley or his family owned the farm. The number of acres involved was not mentioned. We can only conclude that the evidence here questioned was not admitted erroneously, and even if it were, any error was waived by Farley’s failure to object.

Farley’s next assertion of error is the admission into evidence of a photograph of the Farley car after it had been considerably altered by the removal of its engine. Since two other exhibits adequately demonstrated the condition of the car after the accident, the introduction of a third photograph could only serve to inflame the jury, Farley argues, since the factual situation was distorted. The admission of photographic exhibits is a matter within the discretion of the trial court, and even where substantial changes in the appearance of a scene have occurred, a photograph is admissible if the changes were explained to the jury so that the photographs are correctly understood and not misleading. (Kyowski v. Burns (1979), 70 Ill. App. 3d 1009, 388 N.E.2d 770.) Here the jury was clearly advised as to the removal of the engine in the photograph in question, and so we cannot say that the trial court abused its discretion in receiving this exhibit in evidence. Furthermore, even if the exhibit’s admission was erroneous, any error would not be prejudicial since the exhibit was merely cumulative of the matters portrayed in other exhibits.

Additionally Farley contends that he was prejudiced when plaintiff attempted to cross-examine him as to a supposed duty to decrease his speed as he approached the intersection. The question was objected to, and Farley’s objection was sustained. Since the court instructed the jury as to the applicable law, we fail to see how Farley can claim to have been prejudiced by plaintiff’s question.

Next, Farley argues that it was error to permit testimony concerning the fact that Farley’s car was a “high performance” vehicle capable of high speeds. He contends that such testimony had no probative value as to the actual speed of the car at the time of the collision. We think, to the contrary, that the type of engine was probative of the capability of Farley’s vehicle to reach the speed necessary to cause the amount of damage that was done and further was corroborative of the testimony concerning the loud noise of the engine which awakened two neighbors just prior to the crash. The court did not err in overruling Farley’s objection to this evidence.

Farley also assigns as error a portion of plaintiff’s closing argument which allegedly singled out one or two jurors by age category. Of course, it is improper to address individual jurors in an attempt to play upon their personal circumstances and fears. Here the comment came after counsel had told the jury that they would have to rely upon their experience to determine what wages a young man such as plaintiff might be expected to receive on the average. Counsel then said, “We have a 20-year-old or two, I think on this jury. We have at least one.” Counsel then discussed possible starting wages for factory work. We would agree that a direct reference to particular members of the jury would be improper, but we cannot say the comments here were a direct reference, or in any event, amounted to reversible error. In the context of the entire trial, these remarks could hardly be said to have prejudiced Farley so plainly as to justify a new trial.

Farley’s next assertion of error is plaintiff’s final argument reference to inflation. Counsel asked the jury to consider what wages were 10 or 15 years ago, to consider that they have doubled since that time, and to think of what they would be 10 years from now. Generally, if there is other proper evidence sufficient to support the verdict, a reviewing court will not consider as error evidence or arguments of future inflationary trends which may be speculative. (Kapelski v. Salton & Southern R.R. (1976), 36 Ill. App. 3d 37, 46-47, 343 N.E.2d 207, 214.) Since Farley also claims that the award of $550,000 damages was excessive and contrary to the manifest weight of the evidence, we must examine the excessive damages issue before considering whether the indirect reference to inflationary factors was reversible error.

Interestingly, Farley does not dispute any of the evidence concerning medical expenses or injuries, but rather contends that the trial errors previously discussed were calculated to cause the jury to determine damages under the influence of passion and prejudice. The record discloses that plaintiff asked for damages in excess of $1,000,000; that medical expenses to date exceed $49,000; that plaintiff’s life expectancy is 50.5 years; that plaintiff is permanently and severely incapacitated from performing gainful employment and from caring for himself; that his intellect, emotions, memory, and spatial perception are seriously and permanently impaired. The photographs of plaintiff before and after the accident and the testimony of medical and family witnesses make clear that plaintiff’s injuries were so devastating as to totally destroy any hope for a useful life. Applicable to this case are the words of the Supreme Court of Illinois affirming an award of $750,000 to a 28-year-old plaintiff who lost both legs: “One cannot certainly assess in financial terms these human tragedies, but one can conclude that the award here was not excessive.” (Raines v. New York Central R.R. Co. (1972), 51 Ill. 2d 428, 444, 283 N.E.2d 230, 239.) In Raines, as here, the court was called upon to consider the propriety of a reference to inflation, and the court ruled that the verdict was amply supported by other evidence. We believe the same to be true in the case before us.

Finally, defendant Farley asserts that the cumulative effect of the errors alleged deprived him of a fair trial. As our previous discussion of Farley’s contentions indicates, we believe that he did receive a fair trial and that any errors were either waived or were so inconsequential as to have not been prejudicial — whether considered singly or together.

For the reasons stated, we affirm the judgment of the Circuit Court of La Salle County.

Affirmed.

SCOTT, P. J., concurs.

JUSTICE HEIPLE,

dissenting:

Shortly after midnight on July 3,1977, the plaintiff Tomm Twait was a passenger in a car driven by defendant Olson. Olson’s auto had been traveling on a gravel road known as Stein Road. A stop sign is located on Stein Road where that gravel road intersects a blacktop, preferential highway called Leland Spur Road. After completing his stop at the sign, Olson started his turn into the northbound lane of Leland Spur Road. At that precise moment, defendant Forrest Farley was motoring north on Leland Spur Road and approaching the Leland-Stein intersection from the south. There are no stop signs on Leland Spur Road. As defendant Olson was completing his turn into the northbound lane of Leland Spur Road, a collision occurred with the Farley auto that was proceeding north in that lane.

Although both vehicles sustained serious damage, none of the occupants of either vehicle suffered a broken bone. The defendant Farley, the defendant Olson and Farley’s passenger, Cindy Catron each sustained minor lacerations. They were released from the hospital the following day. Tomm Twait, however, sustained brain injury which resulted in extensive and apparently permanent disability. Twait brought suit against Farley and Olson for his injuries. Twait claimed that Farley was negligent in traveling at an excessive speed on Leland Spur Road. Olson, Twait claimed, was negligent in pulling out onto Leland Spur Road in front of Farley’s oncoming car.

The jury returned a verdict for Twait against defendant Farley in the sum of $550,000. The jury also found in favor of defendant Olson and against the plaintiff Twait. Judgment was entered upon the verdict against Farley. On appeal Farley’s complaints are several: (1) the court erred in failing to grant his motion for a directed verdict at the close of all the evidence; (2) that the jury verdict was contrary to the manifest weight of the evidence; (3) that the Conduct of the plaintiff’s attorney during the trial deprived him of a fair trial. Defendant Farley specifies several occasions of courtroom conduct as error. All were properly objected to by defendant Farley during trial. On several occasions, defendant Farley moved for a mistrial because of the prejudicial effect of the errors. All such motions were denied by the court. Defendant Farley moved for a mistrial at the close of trial and in his post trial motion. Again, his motions were denied.

Recognizing that the trial court has great discretion in such matters, the majority affirms the trial court’s various evidentiary rulings and denial of defendant Farley’s motions for mistrial.

I do not agree with the majority; the complained-of conduct by the plaintiff’s attorney and the erroneous evidentiary rulings combined to deprive the defendant Farley of a fair trial. Farley’s motion for a mistrial should have been granted.

A review of the entire record suggests that plaintiff’s counsel orchestrated a trial full of error. The trial was calculated to prejudice the defendant Farley by the introduction of impermissible or marginally permissible trial tactics. Most of the errors standing alone would not warrant a new trial. Plaintiff’s counsel knew this as he was a seasoned trial attorney. He timed the errors so as not to enflame the trial judge, yet he presented to the jury impermissible matters with great subtlety and suggestion. He was sly; his strategy succeeded. Every motion for a mistrial was denied. The plaintiff won most evidentiary rulings, although in several instances the trial judge acknowledged that the complained-of evidence was only marginally admissible.

While a trial judge may have difficulty realizing the cumulative effect of numerous trial errors, a court of review does not labor under the same handicap. As a court of review, we sit in an ideal position to view the totality of trial errors. At some point the cumulative effect of the trial errors and imperfections become reversible error. The instant case provides a perfect example of that principle.

The trial repertoire of plaintiff’s counsel included subtle as well as obvious error. At one point he asked a highly prejudicial and improper question to defendant Farley that as a seasoned attorney he knew was wrong. He knew the objection would be sustained. It was. But plaintiff’s counsel succeeded in asking the question of whether Farley knew he had a duty to slow down as he approached the Leland-Stein intersection. This question suggested to the jurors that such a duty existed. Such duty does not exist. Farley was traveling on a preferential highway. His travel through the intersection was not impeded by stop or yield signs. If a motorist on such a throughway as Leland Spur Road had to decrease his speed so he could stop in time to avoid collisions with vehicles which ignore stop signs on intersecting roads, the purpose for such preferential highways would be thwarted. Farley had no duty to decrease his speed as he approached the intersection. Plaintiff’s counsel knew that. The effect of such a question was clearly prejudicial.

Another trial error, manifestly prejudicial was the admission into evidence of a photograph of the Farley vehicle after it had been considerably altered. The majority finds no error in the admission because the changes were brought to the attention of the jury. The purpose of the photo was to demonstrate the condition of the Farley vehicle after the accident. First of all, two other photographic exhibits demonstrated the car’s condition after the accident. In the complained-of photo, not only was the engine removed as the majority notes, but the hood was removed from the car, the windshield was completely shattered out, the front tires were removed, and the interior of the car was removed. It presents a false and gross distortion of the accident. What appears in the photo is the car after it was salvaged of anything of value. It does not depict the car after the accident. The damage represented by the offending photo suggests an accident of far greater magnitude than actually occurred. This lends support, albeit false, to plaintiff’s theory that Farley was speeding. For this reason, its effect, subtle and insidious, was highly prejudicial to defendant Farley. Its admission into evidence was unnecessary; two other photos clearly depicted the car after the accident. Moreover, this false photo was nine times larger than the two accurate photos.

The majority also claims that any error in its admission would not be prejudicial since the photo “was merely cumulative of the matters portrayed in other exhibits.” This just isn’t so. The photo was not cumulative of anything portrayed in other exhibits. The size of the photo and the distortion represented therein were prejudicial to the defendant Farley. To admit it into evidence was error.

During the voir dire, one of the jurors mentioned that his wife had a workmen’s compensation case and he thought the plaintiff’s counsel had represented the respondent. Whereupon plaintiff’s attorney added, “Are you sure it was not Mr. Raccuglia, he sometimes represents insurance companies?” A motion for mistrial was then made by both defendants on the basis that the remark carried with it the innuendo that plaintiff’s counsel never represents insurance companies and that only lawyers who represent defendants represent insurance companies, and that the remark could serve only to enflame the jury. This was a deliberate and needless injection of the matter of insurance into the trial. The motion for a mistrial should have been granted.

During closing argument, plaintiff’s counsel raised the matter of insurance, again needlessly. Plaintiff’s counsel in discussing damages stated: “* 0 ° and the boy is never going to have fringe benefits. He’ll never buy insurance. Who’s going to sell him liability insurance? He doesn’t drive a car anyway. Who’s going to sell him insurance?”

Also during his final argument, plaintiff’s counsel stated, “We have a twenty year old or two, I think, on this jury. We have at least one. In a lifetime, I’m talking about factory work, Caterpillar, Libbey-OwensFord, there are better jobs and there are poorer jobs, perhaps but nowadays a young man can start for $10,000 and in a short time he can make 15 and $20,000 nowadays and I’ll tell you another thing; what were wages ten years ago and fifteen years ago? And they’re twice that now or close to it. So who’s to say what a young man will be earning who’s twenty years old today, ten years from now?”

Immediately following the plaintiff’s argument, the defendant Farley moved for a mistrial, first on the basis that plaintiff’s attorney in his argument singled out a juror, secondly that he discussed inflation, and thirdly that he raised the insurance question by telling the jurors that if one cannot get liability insurance he cannot drive a car. The motion was made on the basis of the prejudicial effect of these errors, whether considered individually or cumulatively. The trial court denied the motion but said, “I think all three points fringed on being improper arguments. The real question is whether or not the prejudice flowed from them to such an extent to determine a mistrial.”

The rule in Illinois is that the existence of insurance coverage is not to be presented to the jury in a personal injury case. (Horst v. Morand Bros. Beverage Co. (1968), 96 Ill. App. 2d 68.) However, where the subject of insurance is introduced through inadvertence by someone other than plaintiff’s counsel, the declaration of mistrial is not appropriate. Thus, where plaintiff’s counsel deliberately introduces the subject of insurance, not once but twice, reversible error has been committed and a mistrial should have been declared.

The courts have clearly disapproved of counsel addressing jurors individually during argument holding such conduct to be improper. By this tactic the plaintiff’s attorney asked the jurors to place themselves in the place of the plaintiff Tomm Twait. This tactic is wrong because of the improper influence it has upon the jury.

Plaintiff’s attorney in his final argument asked the jury to consider what wages were 10 to 15 years ago and that since that time they have doubled. He further asked the jury to speculate as to what wages would be 10 years from now. No other reading of the language employed could lead one to believe that he was not asking the jury to consider inflation. The appellate court has held that the introduction of evidence of inflation at the trial is improper as being speculative in nature. Certainly if the introduction of such evidence is improper, the mentioning of it during final argument is likewise improper for the same reason.

While the intentional injection of insurance into this case would be grounds alone to declare a mistrial, the cumulative effect of the other errors clearly deprived defendant Farley of a fair trial. If these matters are not discouraged by the trial judge or by this court on appeal, then we have lost control of the trial. If such conduct is condoned, as the majority sees fit to do, then personal injury litigation becomes a free-for-all where anything goes. The error of injecting the matter of insurance needlessly into this case, not once but twice, is particularly grievous. This and the other errors taken cumulatively mandate that a new trial should be ordered.


source: Caselaw Access Project

author: JUSTICE McGILLICUDDY JUSTICE McNAMARA,

license: Public Domain

text:
      In re WALTER POLOVCHAK, a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. ANNA POLOVCHAK et al., Respondents-Appellants.)
    First District (3rd Division)
    No. 80-2857
    Opinion filed December 30, 1981.
    Rehearing denied March 23, 1982.
    Mandel, Lipton and Stevenson, Ltd., of Chicago (Richard L. Mandel, Steven Lubet, and Harvey Grossman, of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Iris E. Sholder, Richard Michael, and Maurice M. Dore, Assistant State’s Attorneys, of counsel), for the People.

      Julian E. Kulas, of Chicago, and Henry Mark Holzer, of New York, for Walter Polovchak.
   JUSTICE McGILLICUDDY

delivered the opinion of the court:

On August 4, 1980, pursuant to the procedures set forth in the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 1 et seq.), Walter Polovchak (Walter) was declared a minor in need of supervision and was adjudged a ward of the court. A dispositional hearing was scheduled for November 5, 1980. However, on November 5, 1980, in accordance with Supreme Court Rule 662 (Ill. Rev. Stat. 1979, ch. 110A, par. 662), Walter’s parents, Michael and Anna Polovchak (the Polovchaks), appealed from the order of August 4,1980.

On appeal, the Polovchaks raise the following issues: (1) whether the adjudication of wardship was an unconstitutional interference by the State into the sanctity and privacy of the family; (2) whether the Illinois minor in need of supervision (MINS) statute (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 3) was unconstitutionally vague; (3) whether the adjudication of wardship proceedings violated their constitutional and statutory rights to a trial; and (4) whether the evidence adduced at the hearing was sufficient to adjudicate Walter a ward of the court.

Michael and Anna Polovchak and their three children arrived in the United States from the Soviet Ukraine in January of 1980. On July 14, 1980, Walter, then age 12, left his parents’ home with his sister, Natalie, age 17. On July 18, 1980, Michael Polovchak enlisted the help of the Chicago police to find his son. Youth officers found Walter and Natalie at the apartment of their cousin, Walter Polovczak (the cousin). Petitions for adjudication of wardship in which Walter and Natalie were alleged to be beyond the control of their parents and thus minors in need of supervision were filed; and an adjudicatory hearing was held to determine whether the allegations in the petitions were supported by the evidence.

The adjudicatory hearing began with the entry of admissions by Walter and Natalie that they were minors in need of supervision. After the trial judge determined that the admissions were freely and voluntarily given, additional evidence was presented by the State and the Polovchaks.

Anna Polovchak testified that on July 14, 1980, at about 4 p.m., she returned home from work and saw Natalie and Walter removing their belongings from the family apartment. They were being helped by their cousin Walter and by two other men. Her son refused to tell her where he was going.

Walter Polovczak, the cousin, testified that he resided with the Polovchaks until July 12,1980 when he moved into his own apartment. On Sunday, July 13, he drove Natalie and Walter to church and they spent the night at his apartment. The following day he returned to the Polovchak residence with his cousins and two friends to remove his belongings. At that time, Natalie and Walter proceeded to remove their belongings also. When Anna Polovchak arrived, he told her that her son was not being forced to do anything and that Walter was going with Natalie. Walter and Natalie stayed with their cousin until Friday, July 18, the day the police arrived. The cousin admitted that he never informed his aunt and uncle where Natalie and Walter were living. He did not have the parents’ permission to take their children to his apartment. He denied that he influenced Walter, and stated that Walter wanted to stay with Natalie.

Natalie Polovchak testified that on Saturday, July 12, her father argued with her cousin and accused him of taking Walter away. The next day Natalie and Walter went to church with their cousin, and she asked to be taken home so that she could get her belongings. Walter did not go with her. When she left her parents’ apartment, her father followed her to the bus stop and said “ugly words.” Natalie returned to her cousin’s apartment and questioned her brother about his intentions. Walter told her that he did not want to return to his parents and that he wanted to stay with her.

Natalie further testified on cross-examination that her parents told her of their intention to return to the Ukraine. She did not want to accompany them so they did not apply for readmission for her. On several occasions her parents told her not to take Walter with her.

Walter Polovchak, the minor, testified that on July 13, 1980, he had gone to church with his cousin and Natalie. After church his cousin drove Natalie home to get some clothes. He stayed with his sister and cousin, at the cousin’s apartment, on Sunday night and went with them to his parents’ apartment on Monday. Walter testified that after he packed his belongings, his mother arrived. When she questioned him, he told her that she should not be concerned.

On cross-examination Walter stated that his cousin offered to help him if he did not want to return to the Ukraine. He testified that he left his parents because he did not want to return to the Ukraine and because his parents did not talk to him. Walter stated that if he had not gone to live with his cousin he would have gone elsewhere. Walter testified that he would not return home if the petition for adjudication of wardship was dismissed.

Michael Polovchak stated that Walter had not presented any problems until he told Walter of his intention to return to the Ukraine. Michael testified that he wanted Walter to return to the Ukraine so that the family could be together, “for the love of a child,” and because he was responsible for Walter.

Chicago Police Sergeant Leo Rojek, acting commander of Area 5 Youth, testified that on July 18, 1980, Michael Polovchak came to the police station with an interpreter and informed the police that his son was gone. Walter was found at his cousin’s apartment and was brought to the police station. Walter said he had run away because he did not want to return to the Ukraine with his family. The police then telephoned the United States Immigration and Naturalization Service and Department of State and were instructed not to return Walter to his parents. Thereafter, Walter was processed as a minor in need of supervision.

The Polovchaks recalled Walter to the stand and questioned him regarding his life in the Ukraine. Walter testified that while he lived in the Ukraine his parents provided him with food and clothing and made sure he went to school. He did not like the Ukraine because “there aren’t many things to be bought there.” Walter reiterated that he left his parents to avoid returning to the Ukraine.

Doctor Ner Littner, a child psychiatrist, testified for the Polovchaks. After having been qualified as an expert witness, Dr. Littner was asked the following hypothetical question:

“Dr. Littner, based upon your experience as a child psychiatrist, and based upon your experience involving parent-child relationships, and based upon the following facts: that Walter’s decision to leave home was based upon the fact that his parents had decided to go back to the Ukraine; that his cousin Walter was willing to allow him to live with him; that his cousin Walter and his sister Natalie assisted Walter in leaving his parents’ home; since leaving Walter has resided with his 24 year old cousin and his 17 year old sister; that Walter’s parents love him; that Walter’s parents have never physically or emotionally harmed him; that Walter’s parents’ decision to return to the Ukraine is based on their desire to do what is best for the Polovchak family; that cousin Walter who lived with the Polovchaks told Walter that if Walter did not return, Walter could live with him.
Now, based upon those facts, do you have an opinion based upon a reasonable degree of medical certainty as to whether Walter’s parents can control him despite Walter’s desire to remain in the United States?”

Doctor Littner responded to this question by stating that, in his opinion, Walter’s parents could control him since Walter’s actions were indicative of defiance and rebellion rather than independent judgment. He stated that, if Walter’s cousin and sister were not present, Walter may have locked himself in a room to manifest his rebellion against his parents. Doctor Littner testified that, based on the hypothetical, Walter was not a runaway because he made certain that his parents knew where he was. He stated that no 12-year-old has the intellectual or emotional capacity to decide whether he should live with his parents and concluded that Walter’s continued separation from his parents would be harmful.

On cross-examination Doctor Littner discussed the importance of mothering and fathering and said that a child should not be removed from his parents absent physical or sexual abuse. He stated that a 12-year-old could compare living standards but does not have the maturity to determine where he should live. Doctor Littner testified that he had not talked to Walter or the Polovchaks and did not know the background of their family relationships.

In rebuttal the State called Doctor Robert Bussell, Director of Clinical Services for the Juvenile Court. In response to a hypothetical question similar to the one posed to Doctor Littner, Doctor Bussell concluded that Walter would not be irreparably or emotionally harmed if he remained away from his parents. He testified that 12-year-olds can make fairly good decisions concerning their welfare, what they want to eat and how they want to dress, and usually have some ideas about the direction of their lives. Doctor Bussell said that a 12-year-old who has lived in the Ukraine and in the United States would be able to determine differences in quality of life and would be able to form a preference for one place over the other.

Doctor Bussell further testified that Walter’s parents could control him despite Walter’s desire to remain in the United States because of their physical differences but expressed some concern about their ability to rear Walter in the Ukraine. He had no opinion on the long-term effects on Walter if he was removed from his parents because he did not know Walter.

Following arguments, the trial judge entered a finding that Walter and Natalie were minors in need of supervision and adjudged them to be wards of the court.

Section 2 — 3(a) of the Juvenile Court Act (the Act) defines a minor otherwise in need of supervision as, inter alia, “any minor under 18 years of age who is beyond the control of his parents, guardian or other custodian.” (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 3(a).) Allegations that a minor is otherwise in need of supervision must be proven at an adjudicatory hearing by a preponderance of the evidence. (Ill. Rev. Stat. 1979, ch. 37, pars. 701 — 4,704—6.) If the court finds that the minor is a person in need of supervision and that it is in the best interest of the minor and the public that he be made a ward of the court, the court shall adjudge the minor a ward and proceed to a dispositional hearing. Ill. Rev. Stat. 1979, ch. 37, par. 704 — 8(2).

At proceedings under the Act, the minor and his parents have the right to be present, to be heard, to present evidence material to the proceedings, to cross-examine witnesses, to examine pertinent court files and records, and to be represented by counsel. (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 20.) The Polovchaks argue that they were denied their right to a trial to contest the issue of whether Walter was beyond their control. They contend that the trial judge, in reliance on Walter’s admission that he was beyond his parents’ control, conducted a summary proceeding limited to the issue of whether there was a factual basis for the admission. The Polovchaks argue that the trial court did not weigh the evidence under the preponderance of evidence standard required by sections 1 — 4 and 4 — 6 of the Act (Ill. Rev. Stat. 1979, ch. 37, pars. 701 — 4, 704 — 6) and that, had the trial court applied the appropriate standard, it would not have concluded that Walter was beyond their control.

A review of the record shows that the trial judge did state that he was going to conduct a hearing to determine whether a factual basis for the plea existed. The record further shows, however, that the judge preceded this remark with a statement that the hearing was an adjudicatory hearing. Under the Act, the term “adjudicatory hearing” implies “a hearing to determine (a) whether the allegations of a petition 000 that a minor is otherwise in need of supervision, * * * are supported by a preponderance of the evidence * 6 (Ill. Rev. Stat. 1979, ch. 37, par. 701 — 4.) After Walter’s admission was entered, the State did in fact proceed with the presentation of evidence and recognized that its burden of proof was to be measured by the preponderance of the evidence standard.

We believe that the judicial comments highlighted by the Polovchaks should not be taken out of context. The record, viewed in its entirety, shows that a full and complete evidentiary hearing was conducted. All of the parties testified and were allowed to present witnesses and conduct thorough cross-examinations. The record does not reflect, nor do the Polovchaks contend, that they were prevented from presenting any evidence.

Clearly, no material facts were in dispute. The minor absented himself from the family residence, without his parents’ consent and without informing them of his whereabouts. The basis for this absence was the minor’s disagreement with his parents’ decision to return to the Ukraine. At the conclusion of the hearing, the trial judge found that Walter was a minor in need of supervision because he was beyond the control of his parents. He adjudged Walter to be a ward of the court “based upon all of the evidence that I have heard.” We believe that the trial judge weighed all of the evidence presented according to the required legal standards and conclude that the Polovchaks received a full, fair and proper hearing.

The Polovchaks also contend that the adjudication of wardship was improper under any standard of proof. They argue that Walter’s single and isolated absence from the home was harmless misbehavior, insufficient to support a finding that he was beyond their control and insufficient to warrant State intervention into their family affairs.

It is well settled in this country that parents have the primary role of providing for the care and nurture of their children. (H. L. v. Matheson (1981), 450 U.S. 398, 67 L. Ed. 2d 388, 101 S. Ct. 1164; Wisconsin v. Yoder (1972), 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526; In re Martin (1975), 31 Ill. App. 3d 288, 333 N.E.2d 711.) However, the State as parens patriae may restrict the parents’ control and freedom in this regard where the welfare of the child is at issue. (Prince v. Massachusetts (1944), 321 U.S. 158, 88 L. Ed. 645, 64 S. Ct. 438.) Acting within this legitimate interest, to provide for the care and guidance of minors subject to the Act, the State of Illinois enacted its Juvenile Court Act. (Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208.) A primary goal of the Act is to preserve and strengthen the minor’s family ties whenever possible. Ill. Rev. Stat. 1979, ch. 37, par. 701 — 2.

In the case at bar the State contends that Walter was a minor subject to the Act because he was beyond his parents’ control and because his welfare was in serious jeopardy. The State argues that Walter was a runaway and needed to be protected by the State from the considerable dangers existent to all runaways.

The term “beyond the control” is not defined in the Illinois Juvenile Court Act and has not been construed by the courts of this State. In California, a single act can establish that a minor is beyond the control of his parents or guardian (In re S. (1970), 12 Cal. App. 3d 1124, 91 Cal. Rptr. 261) provided the minor’s conduct is seriously harmful and not merely an exaggerated manifestation of intrafamily parent-child conflict. (In re G. (1972), 28 Cal. App. 3d 276, 104 Cal. Rptr. 585.) The applicable statute in California provides for the adjudication of wardship of a minor “who persistently or habitually refuses to obey the reasonable and proper orders or directions of his parents, * * * or who is beyond the control of such person * ° (Emphasis added.) (Cal. Welf. & Inst. Code §601 (West 1972).) Finding that the language of the statute was in the disjunctive, the court in In re S. held that repeated acts of disobedience were required under the first clause of the statute, while a single act could be sufficient under the second clause.

The Illinois MINS statute requirement that the minor be beyond the control of his parents is similarly worded to the California statute. Therefore, a single isolated act by a minor in Illinois can be sufficient to establish that the minor is beyond the control of his parents provided the minor’s conduct is seriously harmful and points to grave danger. However, in the instant case Walter’s action was not sufficiently serious to warrant a finding that he was beyond his parents’ control.

It is undisputed that Walter committed a single act of misbehavior by absenting himself from the family residence for five days because he did not want to return to the Ukraine. Walter remained with his older sister and cousin at the cousin’s apartment. Both expert witnesses agreed that, based on a hypothetical reflecting the facts in the case at bar, Walter was not beyond his parents’ control. Doctor Littner testified that Walter’s actions were acts of immature rebellion. In his opinion, Walter would not have manifested this rebelliousness by running away from home but for the fact that his cousin and sister provided him with alternative shelter. Doctor Bussell, while expressing some doubt as to the ability of the Polovchaks to rear Walter in a country that he did not wish to return to, concluded, however, that the Polovchaks could physically control Walter.

We believe that Walter’s health, safety and welfare were not jeopardized when he absented himself from the family residence. Walter was in no physical or mental danger as his needs were being met by his sister and cousin. Viewed in its simplest terms, the situation presented in the instant case is one of family discord caused by a child’s disagreement with his parents’ decision to return to their homeland. We have serious doubt as to whether the State would have intervened in this realm of family life and privacy had the parents’ decision to relocate involved a move to another city or State. The fact that the parents had decided to move to a country which is ruled under principles of government which are alien to those of the United States of America should not compel a different result.

Whether the minor may be entitled to political asylum in this country is an issue that should be decided by another forum. The Illinois MINS statute should not be utilized as a subterfuge to achieve such a result.

We hold that, under the facts presented, the trial court’s determination that Walter was beyond the control of his parents was against the manifest weight of the evidence. Walter’s single act of leaving the family residence after learning of his parents’ decision to return to their homeland was an exaggerated manifestation of parent-child conflict (In re G.) and was not sufficient to bring him within the jurisdiction of the court. We further find that Walter, having gone to live with his sister and cousin, was not placed in a situation of grave danger such that he required care and guidance from the State.

As a result of these conclusions, we find it unnecessary to address the second evidentiary issue of whether the adjudication of wardship was in the best interest of Walter or the public.

Since we hold that Walter was not subject to the jurisdiction of the court, we need not consider the constitutional issues raised by the appellant. Illinois courts will consider constitutional issues only where necessary to a disposition of the case. Anundson v. City of Chicago (1970), 44 Ill. 2d 491, 256 N.E.2d 1; City of Chicago v. Abdullah (1979), 76 Ill. App. 3d 325, 395 N.E.2d 50.

For the foregoing reasons, we conclude that Walter Polovchak was not a minor in need of supervision pursuant to section 2 — 3(a) of the Juvenile Court Act. Therefore, the judgment of the circuit court of Cook County is reversed.

Reversed.

WHITE, J., concurs.

JUSTICE McNAMARA,

dissenting:

I respectfully dissent from the conclusion reached by the majority. In my view, the evidence adduced at the adjudicatory hearing was sufficient to establish that Walter was beyond the control of his parents, that he was in need of supervision and that he was properly made a ward of the court. A brief recitation of undisputed facts is sufficient to demonstrate the correctness of the juvenile court’s decision.

After two attorneys, one appointed and one retained, entered admissions to the MINS petition, the juvenile court heard testimony that Walter, along with his sister who was also a juvenile, left home without his parents’ permission. With his mother watching, Walter packed his belongings, including his bed, and moved out. He refused to disclose his destination and did not contact his parents after his departure. His parents knew that Walter was living in a cousin’s apartment, but they did not know where the cousin lived. Four days after his departure, without having any contact with the boy in the interim, the parents asked the police to locate Walter. When the police found the boy, he refused to return home. At the hearing, Walter testified that he left home because no one talked to him and because he did not wish to return to the Ukraine. Walter also told the judge that he would continue to run away if he were returned home. After making its decision that Walter was in need of supervision, the trial court expressed its concern that some harm would befall Walter if he continued to run away.

The foregoing evidence does not reflect an isolated act of normal, adolescent rebellion. Rather it demonstrates a boy clearly beyond the control of his parents. While his mother stood by, apparently unable to control the situation, Walter packed and left home. Several days later, still unable to control the situation, the parents were compelled to seek out the authorities in order to locate the boy. When the police found Walter, he still refused to return home. And in court, Walter stated that he would leave again if forced to return home. Under the circumstances, the juvenile court’s concern for Walter’s welfare was justified and its finding that he was in need of supervision was amply supported by the evidence.

The majority opinion erroneously relies upon the California case of In re G. to support its holding that there was insufficient evidence that Walter is beyond his parents’ control. The reviewing court in In re G. did not make the general finding that the child was not beyond his parents’ control but, rather, held that the trial court’s erroneous restriction of questioning regarding to whom the lack of control could be attributed raised a question as to the applicability of one of two provisions in California’s juvenile code. California law draws a dichotomy between children beyond parents’ control due to the fault of the child, and children beyond the parents’ control due to the fault of the parents. The In re G. case solely involved the issue whether the minor fell within the purview of the former section. Evidence had been presented that the minor struck his mother and then returned home past curfew. The trial court stated that questions were raised pertaining to the allocation of fault for the lack of control, but held that the child fell within the meaning of the former statutory provision. Unlike the law of California, our Illinois Juvenile Code creates one classification for children who are beyond their parents’ control, and despite the allocation of fault, such children are deemed minors “otherwise in need of supervision.” Applying the single standard of the Illinois statute, the evidence clearly shows that Walter was beyond his parents’ control within the meaning of section 2 — 3 of the Act.

The suggestion that the juvenile court proceedings were a subterfuge to prevent Walter’s return to the Ukraine is unwarranted. It ignores the compelling evidence that he was beyond his parents’ control. It also ignores the assertions of the conscientious trial judge that he wished to effect a reconciliation of the family. The majority opinion also hypothecates that no court intervention would have occurred if the family merely wished to relocate in another area of this country. The opposite is true. I am convinced that in a matter where a boy fled home under circumstances such as these but because his family was moving to another State, a juvenile court’s decision that supervision over the child was required never would be disturbed by a reviewing court. I believe that the trial court’s holding in the present case was wise, proper, and supported by the evidence.

Since I believe that the MINS statute is constitutional, I would affirm the adjudication of the juvenile division of the circuit court of Cook County and remand the cause for a considered determination of a proper disposition.

       The State argues that the Polovchaks should be estopped from bringing this interlocutory appeal pursuant to Supreme Court Rule 662 (111. Rev. Stat. 1979, ch. 110A, par. 662) because the Polovchaks agreed to the delay in the dispositional hearing. The rule provides in part:
      “(a) Adjudication of Wardship. An appeal may be taken to the Appellate Court from an adjudication of wardship in the event that an order of disposition has not been entered within 90 days of the adjudication of wardship.”
      The State raised this same issue in its motion to dismiss this appeal. As the motion was denied by this court, we will not address that issue in this opinion.

       This appeal is not concerned with the finding adjudicating Natalie a ward of the court. She is no longer a minor under the Juvenile Court Act.

        Cf. N.Y. Fam. Ct. Act §712(b) (McKinney 1975) (a person in need of supervision is, inter alia, a minor who is “habitually disobedient and beyond the lawful control of parent ° ° (emphasis added)). As the New York statutory language is conjunctive, habitual misconduct is required in that State to sustain a petition alleging a person to be in need of supervision. See In re R. (1973), 73 Misc. 2d 390, 341 N.Y.S.2d 998.

       In Illinois, as in California, “beyond the control” is not preceded by phrases such as “persistently” or “habitually.”


author: JUSTICE LINN

text:
    MYRNA FAYE SKILLING, Plaintiff-Appellee and Cross-Appellant, v. RAYMOND I. SKILLING, Defendant-Appellant and Cross-Appellee.
    First District (4th Division)
    Nos. 79-538, 79-1961 cons.
    Opinion filed January 21, 1982.
    Rehearing denied March 18, 1982.

      Arvey, Hodes, Costello & Burman, of Chicago (Gary David Friedman and Donald F. Spak, of counsel), for appellant.
    Dejong, Poltrock & Giampietro, of Chicago (Wayne B. Giampietro and Gregory N. Freerksen, of counsel), for appellee.
   JUSTICE LINN

delivered the opinion of the court:

Respondent, Raymond Skilling, appeals from an order entered in the circuit court of Cook County awarding petitioner, Myrna Skilling, an unallocated sum of maintenance and child support of $16,500 per year payable in equal monthly installments. We vacate this order and remand with directions.

Myrna Skilling cross-appeals from an order entered in the same court which denied her petition for attorney’s fees. We reverse this order.

Background

Myrna Skilling’s Petition

On December 6, 1977, Myrna Skilling filed her petition in this case seeking an “original” order for custody and child support of the parties’ only child, Keith, age six. In the petition, Myrna alleged that Raymond and she had been divorced in London, England, by a consent decree entered on March 21, 1975. Myrna contended that she presently had custody of Keith and that Keith and she had been living in Chicago since the entry of the London decree. She also alleged that Raymond Skilling had been a resident of Chicago since the entry of the London decree. Myrna contended that she did not have sufficient funds to adequately support Keith and that Raymond had failed and refused to contribute to Keith’s support. She asked the trial court to enter an order awarding custody of Keith to her and requiring Raymond to pay child support. She also asked that attorney’s fees be awarded to her at the conclusion of the case.

Following a pretrial motion filed by Raymond, Myrna’s request for child custody was stricken, apparently pursuant to agreement of the parties, and the case proceeded only on the issue of child support.

Issues

The primary issues raised by the parties at trial level and on appeal are the following:

(1) Did the trial court have subject matter jurisdiction to entertain Myrna’s petition for child support?
(2) Did the London decree bar Myrna’s petition for child support?
(3) Should the trial court have exercised “equitable jurisdiction” in this case and entered an “original” order for child support?
(4) Was the trial court prohibited from awarding Myrna attorney’s fees?

Facts

Myrna is a citizen of Illinois and the United States. Raymond and Keith are citizens of the United Kingdom. From 1963 until 1975, Myrna and Raymond lived as husband and wife in London. Keith was born in London in 1971. The parties were divorced in London pursuant to a consent decree entered on March 21,1975. Shortly before the decree was entered, all the parties moved to Chicago and have resided in Chicago since then. Raymond is an attorney and an officer of an international corporation and is presently earning more than $120,000 per year. At the time of the divorce, Raymond was earning approximately $90,000 per year. Myrna was unemployed before the divorce but was working full time at the time these proceedings were brought and was earning approximately $13,000 per year.

Under the London decree, the parties were awarded “joint custody” of Keith with Myrna having the responsibility of “care and control” over Keith. Apparently, under English law, this meant that Myrna was to be primarily responsible for Keith’s daily care and control, but Raymond was to be allowed to have Keith with him on a reasonable and frequent basis and Raymond was to share in all major decisions concerning Keith’s upbringing. The record shows that Raymond usually had Keith with him two to three days a week on the average. Raymond frequently traveled on business and thus in some weeks he would not see Keith but in others he would have Keith for more than two or three days.

The London decree required Raymond to pay all of Keith’s educational expenses and to keep in force a life insurance policy in which Keith was the beneficiary. Raymond was also required to pay Myrna “as periodic payments for herself during their joint lives until such date as she shall remarry or further order” the sum of 5,000 pounds per year in equal monthly installments on or before the 21st of each month beginning March 21,1975. Myrna admitted at trial, and the trial court found, that this was actually an order for unallocated maintenance and child support. Myrna alleged that the parties had agreed that 500 pounds per year would represent child support. Raymond denied this but made no attempt to show what amount was intended as child support.

Under English law the 5,000 pounds were taxable to Myrna. However, Myrna would not personally pay the taxes. Raymond was required to withhold the amount of taxes, approximately 33 percent, from the payments he made and then pay the taxes on Myrna’s behalf. Hence, under the decree, Raymond was required to turn over to Myrna approximately 3,350 pounds per year. The exchange rate in effect at the time of the parties’ divorce was approximately $2.30 per pound. Thus, when the decree was entered the entire award was worth $11,500 per year, of which Myrna was to receive approximately $7,700, or $650 per month. Of course, Myrna also had to declare the full $11,500 a year as “alimony” taxable to her under United States tax laws. (See 26 U.S.C. §71 (1976).) However, she was allowed a credit for foreign taxes up to the amount of Federal taxes due on the payments, and the net effect was that Myrna’s tax on the 5,000 pounds was only the 33 percent withheld by Raymond.

It appears that before Myrna brought her petition, Raymond had actually paid the full amount required by the London decree. However, his monthly payments varied to extremes. For example, in January 1977 he made two payments totaling $800, then in February he made one payment for $120. In June through September 1977, he made equal monthly payments of $812.50, then in October and November, he made no payments. This failure to make payments in those months caused Myrna to file her petition.

Though Raymond was making payments, the overall amount Myrna was receiving between the time of the decree and the time of the trial court proceedings decreased. Raymond was paying 5,000 pounds per year in varying monthly payments, but the value of the pound in relation to the dollar decreased to approximately $2 per pound. Thus, at the time of the trial court proceedings, Myrna was entitled to receive approximately $6,700 per year rather than the $7,700 she was originally entitled to based on the exchange rate in effect at the time of the parties’ divorce. Thus, in dollar amounts, Myrna’s payments actually decreased over the years. Moreover, the purchasing power of Myrna’s dollars decreased over the years because of inflation.

Several months before Myrna filed her petition in this case, Raymond and she came to a tentative agreement that the total amount of the payments should be increased to $15,000 per year less the amount of the English taxes. The London decree was to be modified by consent to reflect this change. This tentative agreement was never made final and the London decree was not modified.

On May 9, 1978, while the proceedings in this case were in progress, Raymond executed an irrevocable letter of credit with a local bank. The letter guaranteed payments of $12,000 per year less English taxes to Myrna for a period of two years. At trial and on appeal, Raymond attempted to use this letter as proof that Myrna had an adequate remedy at law in this State to enforce payments to her.

At trial, Myrna showed that her average spendable income per year was approximately $18,000, which included the payments from Raymond. In relation to Keith, she was spending approximately $6,500 per year. After providing for Keith and herself, she was not able to save any money, and in fact, had been periodically using savings she had at the time of the divorce to aid in covering expenses for Keith and her.

Raymond was paying for most of Keith’s educational expenses as required by the London decree. Raymond was also buying many of Keith’s clothes and was paying for some of Keith’s medical expenses. Myrna alleged that she had to rely on these “gratuitous” payments to meet Keith’s needs. Raymond’s spendable income, after taxes and payments to Myrna, was never precisely shown, but even by his own calculations it was more than $50,000 per year. When Raymond had Keith with him, he would pay for Keith’s food and entertainment expenses.

According to the testimony of an English solicitor, the London decree was enforceable in England by summary procedures such as contempt. However, since Raymond resided in Chicago, the English court would not resort to contempt unless Raymond could be found in England. The London decree was also enforceable by attachment of any assets Raymond had in England. However, it was shown that all of Raymond’s assets in England were pledged to third parties to cover certain of Raymond’s obligations and thus attachment was a doubtful remedy.

The London decree was also modifiable in London. It could be modified by affidavits filed on behalf of the parties if the parties consented to modification. Without consent, Myrna would probably have to travel to England to testify if she wanted a modification. In either case, Myrna would have to bear the expenses of corresponding with English solicitors and the attorney’s fees for both Chicago and English lawyers.

Following the trial, the court entered its final order on May 15, 1979. The court found that it had no power to enforce or modify the London decree. The court found that the London decree was valid and that the 5,000 pounds per year provision in the decree was an unallocated award for maintenance and child support. The court found that Keith was being adequately provided for by the combined amounts being spent by Myrna and Raymond.

The trial court declared that Myrna’s petition for an original order of child support was not a proceeding covered by the Illinois Marriage and Dissolution of Marriage Act. (See Ill. Rev. Stat. 1979, ch. 40, par. 505.) Nevertheless, the court declared that it had subject matter jurisdiction to entertain the petition under general principles of equity. The court found that there was a need for an enforceable child-support order in this State. The court then ordered Raymond to pay Myrna, effective January 4, 1978, the sum of $16,500 per year in equal monthly installments as unallocated maintenance and child support. The court also ordered Raymond to pay Keith’s educational expenses. The court stated that the amounts ordered were the total amounts to be paid, and any amounts paid pursuant to the London decree, including taxes withheld, would be a set-off from the court’s order. In other words, as long as Raymond paid $16,500 less the English taxes, Raymond would not be in violation of the Illinois order or the London order.

The trial court also found that it could not entertain Myrna’s petition for attorney’s fees because the action did not fall under the Illinois Marriage and Dissolution of Marriage Act. See Ill. Rev. Stat. 1979, ch. 40, pars. 505, 508.

Both parties appealed, Raymond from the support order and Myrna from the attorney’s fees order. While this appeal was in progress, the United States and the United Kingdom entered into a treaty concerning income taxes. Under one of the provisions of this treaty, Myrna is now only liable for United States taxes on the London decree payments and she may seek a refund of all taxes withheld in England since the entry of the London decree. However, she must also amend her United States tax returns and pay the Federal taxes for which she previously received a credit.

Opinion

I

Subject Matter Jurisdiction

Circuit courts “have original jurisdiction of all justiciable matters a a = ” (jij Const. 1970, art. VI, §9.) This provision of the Constitution gives the circuit court the general power to determine all matters of controversy arising under common law or equity, or by reason of statute or the Constitution, unless the Constitution requires that a matter be resolved by another body of the government or a higher court.

Problems concerning a court’s subject matter jurisdiction often arise when a statute has created a right which has no counterpart in common law or equity. By enacting such a statute, the legislature has created a “justiciable matter.” Often, the legislature prescribes that a court’s jurisdiction to hear and determine controversies involving a statutory right is limited in that certain facts must exist before a court can act in any particular case. For example, the right to dissolution of marriage is a statutory right having no counterpart in common law or equity. Once the right was created, by reason of the Constitution, our circuit courts automatically acquired the general power to hear controversies concerning the right to dissolution of marriage. However, in creating the right, the legislature prescribed that certain facts concerning domicile had to be truthfully pleaded before a court could acquire jurisdiction to hear any particular case involving dissolution. (Ill. Rev. Stat. 1979, ch. 40, pars. 401(1), 403(3).) In essence, the legislature determined that the right to dissolution of marriage was not a “justiciable matter” falling under the Constitution unless the domicile requirement was met in each case. Though generally the legislature has no power to limit or preclude a court’s constitutional jurisdiction to hear a matter (Ruth v. Aurora Sanitary District (1959), 17 Ill. 2d 11, 158 N.E.2d 601), an exception to this rule arises when the legislature creates a right having no counterpart in common law or equity and has thus created a justiciable matter. In reality, the legislature is not limiting or precluding a court’s jurisdiction over such matters, but is merely defining the justiciable matter it has created.

Raymond argues that the right to child support is a creation of the legislature having no counterpart in common law or equity. Raymond contends that the circuit court’s jurisdiction to hear and grant a petition for child support was controlled by section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA), which reads in part that a court may enter an original order for child support “[i]n a proceeding for dissolution of marriage or legal separation or declaration of invalidity of marriage, or a proceeding for child support following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse.” (Ill. Rev. Stat. 1979, ch. 40, par. 505(a).) Raymond concludes that since the present proceeding did not fall under any of the proceedings described in section 505(a), the court lacked subject matter jurisdiction to entertain Myrna’s petition.

To begin with, there is no indication in section 505(a) that the proceedings mentioned are jurisdictional in nature. Even assuming that the right to child support is a creation of the legislature having no counterpart in common law or equity, the IMDMA is silent concerning any jurisdictional matters that must exist before causes concerning child support become justiciable matters.

Next, matters concerning the welfare of a child in this State, including the duty of the father to support the child, have always been matters within the court’s power to determine. Long ago it was recognized that courts of equity could entertain petitions for the support of a child despite the existence or nonexistence of a statute. (Cowles v. Cowles (1846), 8 Ill. (3 Gilm.) 435.) Thus, the right to child support is not a creation of the legislature having no counterpart in common law or equity. As a result, we cannot conclude that the proceedings prescribed in section 505(a) of the IMDMA are jurisdictional matters because the legislature would have no power to prescribe the jurisdictional elements of child support matters.

Today, there is no distinction between courts of law and courts of equity, and it is the circuit courts that have jurisdiction to hear and determine matters concerning the welfare of a child, including the enforcement of the duty of the father to provide reasonable support for the child. (See Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 360 N.E.2d 386.) Thus, the court in the present case had the subject matter jurisdiction to entertain Myrna’s petition for child support. The existence of a statute or a foreign decree is irrelevant to the question of jurisdiction.

In reality, Raymond’s argument is not one concerning the jurisdiction of the circuit court but one concerning whether the petition could state a cause of action. When the legislature enacted section 505(a) of the IMDMA did it intend to preclude a party from being able to state a cause of action for child support in any proceeding except one brought pursuant to the statute? In other words, did the legislature intend to abolish all actions that could exist in equity and provide for an exclusive statutory means for seeking an original order of child support?

Occasionally, the legislature enacts statutes that are intended to replace actions that existed at common law or equity and to provide the exclusive means for the future enforcement of existing rights. A prime example is section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72), which provides for the manner in which post-judgment relief may be obtained. Section 72 abolished all actions that existed in common law or equity for post-judgment relief and in their stead established an exclusive means for acquiring such relief. If a party today attempted to bring an action for one of the common law writs or bills of equity that were abolished by section 72, his action would be subject to dismissal not because the court would lack jurisdiction to entertain it but simply because a good cause of action would not be stated.

When the legislature enacts a statute establishing a means for the enforcement of existing rights, there is no presumption that the statutory means is intended to be exclusive and to abolish all other actions at common law or equity, and the legislature must usually express that intent to give the statute such effect. (See Cedar Park Cemetery Association, Inc. v. Cooper (1951), 408 Ill. 79, 96 N.E.2d 482; Frank v. Salomon (1941), 376 Ill. 439, 34 N.E.2d 424; Lites v. Jackson (1979), 70 Ill. App. 3d 374, 387 N.E.2d 1118.) Section 505(a) of the IMDMA (Ill. Rev. Stat. 1979, ch. 40, par. 505(a)) prescribes that a court may enter orders for child support in certain proceedings, but it does not expressly preclude a court from entering child support orders in other proceedings not covered by the statute. The legislature itself recognizes that the proceedings described under section 505(a) of the IMDMA are not exclusive since child support orders may be obtained under the Paternity Act (Ill. Rev. Stat. 1975, ch. 106 3/4, pars. 52, 59). Nothing in section 505(a) or the entire IMDMA indicates that the legislature intended to abolish all actions in equity that existed for child support before the statute was enacted. Thus, Myrna’s petition for an original order of child support was a recognizable action in equity.

II

Res judicata

Raymond contends that the existence of the London decree, and the order of unallocated maintenance and child support under that decree, prevented Myrna from seeking an “original” order for child support. Raymond asserts that any right to child support was merged in the London decree and the decree now controls Raymond’s duty to support Keith and Myrna’s only action can be one for the enforcement or modification of the decree.

Undoubtedly, under the doctrine of comity, we can recognize the validity of the London decree. (See Clubb v. Clubb (1949), 402 Ill. 390, 81 N.E.2d 366; Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 360 N.E.2d 386.) But to recognize its validity does not mean that we must recognize it for all purposes. We would, of course, recognize the divorce as valid. We would also extend to this decree a presumption that the amounts ordered to be paid by the decree were fair and reasonable at the time the decree was entered.

As the trial court found, there is no remedial provision in our law under which our courts may enforce or modify the decrees of foreign nations as to provisions concerning maintenance or child support. (Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 360 N.E.2d 386.) The IMDMA creates a remedy in our courts for enforcing or modifying the maintenance and child support provisions of the decrees of any other State (Ill. Rev. Stat. 1979, ch. 40, par. 511), but is silent on the question of decrees of foreign nations.

Without a method of enforcing or modifying the London decree in this State, we cannot grant recognition to the decree to the extent that it precludes all possible action in this State. In essence, Raymond’s argument is that even though all the parties are residents of Illinois, no rights of these parties can ever be adjudicated here. Under Raymond’s theory, if Raymond decided to cease payments, the parties would have to go to London to solve the matter. When the welfare of a child is at stake, we believe the doctrine of comity does not require us to leave a child within this State to the protection of a foreign nation.

Thus, we hold that the London decree did not prevent Myrna from bringing an original action for child support in this case. Further, we cannot allow the decree to act as res judicata to matters concerning the present welfare of Keith.

Ill

Equitable Jurisdiction

Raymond contends that the trial court did not have “equitable jurisdiction” to decide this case. Much of Raymond’s argument on this point confuses subject-matter jurisdiction with equitable jurisdiction. Equitable jurisdiction bears no relation to subject-matter jurisdiction. Subject-matter jurisdiction concerns a court’s power to hear and decide a case. Equitable jurisdiction concerns whether a court which has subject-matter jurisdiction should exercise its discretion and grant equitable relief. Miller v. Rowan (1911), 251 Ill. 344, 96 N.E. 285.

In the present case, equity jurisdiction depended on whether Myrna proved a need for an original order for child support. (See Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 360 N.E.2d 386.) As with any equitable action, the need for equitable relief in this case depended first on whether there was an adequate remedy at law. Myrna’s only remedy at law was to pursue modification procedures in England. The IMDMA provides a statutory remedy for the entry of original orders of child support, but that remedy is limited in that such orders can only be entered in conjunction with a dissolution proceeding, a legal separation proceeding, a proceeding for the declaration of invalidity of a marriage, or a proceeding following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse. (Ill. Rev. Stat. 1979, ch. 40, par. 505(a).) No such proceeding was possible in Myrna’s case. The IMDMA also provides for modification procedures of the decrees of other States (Ill. Rev. Stat. 1979, ch. 40, par. 511), but is silent on possible modification of the decrees of foreign nations.

Here, Myrna had no remedy at law in this State, and we believe that to require her to pursue her remedies in England cannot be considered “adequate.” All of the parties are residents of Illinois. In the absence of consent to modify, Myrna would have to travel to England to obtain relief. Even with consent, Myrna would have to procure the services of English solicitors in addition to any legal services she acquires in this State. Unless Raymond were to return to England, the English court would not be able to use any summary procedures to enforce the English order or any modification of that order.

Raymond argues that Myrna had an adequate remedy at law in this State because of the existence of the irrevocable letter of credit. The letter of credit was not executed until after these proceedings had begun. Myrna refused to accept the terms of the letter. At best the letter could be considered as part of an offer to compromise, but it could not have been considered as the creation of an adequate remedy at law. The letter was binding for two years and has now expired by its own terms. The letter was not enforceable by summary procedures nor modifiable by a court of this State.

Though Myrna had no remedy at law in this State, the mere absence of such a remedy was not enough to show the need for an original order of child support. However, the circumstances of this case indicated that the trial court could have properly determined that such a need existed.

Though it is perhaps true that Raymond had paid Myrna 5,000 pounds per year as required by the English decree, his monthly payments varied to extremes and ceased before Myrna brought the present action. Myrna could not possibly establish a regular budget based on the manner in which the payments were made. She did not know how much her next payment would be, when it would come, or, at the time she brought her action, if it would come. Moreover, her payments in American dollars actually decreased over the years because of the declining value of the pound in relation to the dollar. The payments, along with Myrna’s salary, were shown not to be sufficient for Myrna to care for Keith in the standard of living to which Keith had been accustomed at the time immediately after the divorce. Since the time of the divorce, the cost of living had increased. Though Keith was being adequately cared for at the time of these proceedings, Myrna had to rely on voluntary contributions from Raymond to maintain such care. Such contributions could cease at any time.

Besides a financial need for an original order of child support, other factors of need were also present. Since all of the parties were residents of Illinois, there was a need for an enforceable and modifiable order in this State. The parties should not have to return to England every time a problem develops. There was a need for the court to acquire continuing personal jurisdiction over Raymond so that any future action could be maintained in this State in case Raymond moved out of Illinois.

Thus, under all the circumstances in this case, the trial court could have properly found that a need for an original order of child support existed. However, the order in its present form is improper. Rather than entering a child support order, the court entered a combined maintenance and child support order. No one ever requested a maintenance order, and the court could not enter one. Maintenance following a divorce is a creation of statute and can only be awarded pursuant to an action brought in accordance with a statute. Under section 504 of the IMDMA, a court can award maintenance “[i]n a proceeding for dissolution of marriage or legal separation or declaration of invalidity of the marriage, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse.” (Ill. Rev. Stat. 1979, ch. 40, par. 504(a).) No right to an original order of maintenance after a dissolution can arise in any situation not covered by statute. Since no such situation existed in this case, the court could not properly have entered an order for maintenance.

The order as it now stands must be vacated. Accordingly, we vacate the order and remand with directions that the trial court, after a hearing, shall enter an order for child support retroactive to January 4, 1978, the effective date of its original order in this case. Additionally, the order for child support shall provide for Raymond’s continuing responsibility to pay for the reasonable educational expenses and the medical and dental expenses on behalf of Keith. The order shall also include a provision continuing Raymond’s responsibility to maintain a reasonable amount of life insurance with Keith as beneficiary to secure the support, education, and related allowances provided for on behalf of Keith.

As for allowing a set-off for payments made under the London decree, a set-off should be allowed only to the extent the payments made under the London decree represent child support. The court shall hold a hearing to determine what portion of those payments was intended by the parties to be child support. The court shall consider in determining the amount of the award the effect its order will have on the parties’ respective tax situations under Federal law, and shall also consider the effect the new tax treaty has on the parties’ situation. Until the trial court enters a new order, Raymond shall pay Myrna, effective as of January 1, 1982, the sum of $800 a month as child support with no set-off for payments made under the London decree. Appropriate adjustments may be made when the trial court enters its final order.

IV

Attorney’s Fees

The trial court refused to entertain Myrna’s petition for attorney’s fees because it found no statutory authority for allowing such fees. As a general rule, attorney’s fees are not recoverable from an unsuccessful litigant in the absence of statutory authority. (Kerns v. Engelke (1979), 76 Ill. 2d 154, 390 N.E.2d 859.) However, in Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 360 N.E.2d 386, this district court held, in a situation similar to the present one, that attorney’s fees should be recoverable in actions concerning child support which did not arise under statute but arose under general principles of equity. The decision held that a court of equity could award attorney’s fees under the same powers by which it could award child support because otherwise “the right of a child to support would indeed become a hollow one.” 45 Ill. App. 3d 849, 859, 360 N.E.2d 386, 393.

We see no just reason for not following Zalduendo. It is true that no statute allows attorney’s fees in this case. However, the situation does fall within the spirit of legislative enactments. This case could not be brought under the IMDMA simply because the legislature, when it adopted the IMDMA, did not foresee every possible factual situation that would arise.

The legislature has shown a conscious desire to allow attorney’s fees in cases involving child support. Attorney’s fees are recoverable under the IMDMA when child support is sought (Ill. Rev. Stat. 1979, ch. 40, par. 508) and under the Paternity Act when child support is sought (Ill. Rev. Stat. 1975, ch. 106 3/4, par. 59). Thus, in this case, we are faced not with the absence of statutes showing a legislative intent to allow attorney’s fees in cases such as the present one, but merely the absence of a statute pertaining to the particular facts of this case, which facts were overlooked by the legislature when it adopted the IMDMA.

Thus, under the authority of Zalduendo, we believe the trial court could have awarded Myrna attorney’s fees in this case. On remand the trial court will entertain the request using the guidelines of section 508 of the IMDMA (Ill. Rev. Stat. 1979, ch. 40, par. 508) and cases decided thereunder.

We are aware that the trial court, in determining the amount of fees, will consider all the facts before it. We note that this case has lasted four years. The record is voluminous. Our review of that record indicates that most of the proceedings in this case were unnecessary and could have been avoided if both parties had been able to put aside their contempt for each other. Throughout, the parties have adamantly refused to compromise on the most minor of points. The record abounds with needless motions, objections, and accusations on both the trial and appeal level. We find it incredible that attorneys could spend endless hours of valuable court time arguing over useless points such as whether a brief contains a statement of facts, whether an economist could read a market quotation from a Wall Street Journal, and whether a copy of a statute found in an unofficial reporting service could be submitted to the court.

We question the parties’ true motive for pursuing these proceedings. Were the parties primarily concerned with the welfare of Keith or were they merely using the courts as means for further personal attacks upon each other? The record indicates the latter. Who but the trial court was truly concerned with Keith’s welfare in this case? Did the parties ever consider the impact these drawn out proceedings could have on Keith? Concerned parents, guided by skillful counsel, could have quickly and equitably resolved the matters in controversy without imposing an outlandish burden on the patient trial court. Before these proceedings began the parties had a tentative agreement for Raymond to pay a total of $15,000 per year to Myrna for maintenance and child support. Now, four years later, Raymond is pursuing an appeal from an order which required him to pay $16,500 per year. Here is a party making more than $120,000 per year pursuing a costly and drawn out appeal over whether his son should have $100 more per month for his welfare than the party was originally willing to pay. We are also aware of the fact that Myrna refused the compromise offer presented by Raymond and that the parties remained stalemated. We know that the trial court will consider the record before it carefully when it determines what reasonable attorney’s fees, if any, should be awarded in this case.

For the reasons noted, we vacate the order awarding unallocated maintenance and child support, reverse the order denying petitioner’s request for attorney’s fees, and remand the cause for further proceedings with directions.

Vacated in part, reversed in part, and remanded.

JOHNSON, P. J., and ROMITI, J., concur.