author: JUSTICE UNVERZAGT

text:
    PACEMAKER FOOD STORES, INC., Plaintiff-Appellee, v. SEVENTH MONT CORPORATION et al., Defendants-Appellants—(Brookwood Energy & Properties, Inc., et al., Defendants).
    Second District
    Nos. 82 — 921, 82 — 922, 82 — 960 cons.
    Opinion filed August 22, 1983.
    Rehearing denied September 22,1983.

      Elmer C. Rudy, of Williams & McCarthy, of Rockford, for appellant McDonald’s Corporation.
    Robert A. Fredrickson and Jan H. Ohlander, both of Reno, Zahm, Folgate, Lindberg & Powell, of Rockford, for appellant Mulford Village Development Co.
    Edward M. Maher, of Paddock, McGreevy & Johnson, of Rockford, for other appellants.
    Thomas Street, of Street & Larson, and Harold L. Turner, both of Rockford, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendants Seventh Mont Corporation, Montgomery Ward Development Corporation, Montgomery Ward & Company, McDonald’s Corporation, and Mulford Village Development Company appeal an order granting injunctive relief to the plaintiff, Pacemaker Food Stores, Inc. The injunction, entered following a bench trial, prohibited the use of an easement across a shopping center parking lot connecting a four-lane street to a service road. The following issues are presented for review:

1. Whether, pursuant to its unrecorded lease and the plot plan attached thereto, the plaintiff secured an easement for parking that included the northeast corner of the shopping center’s boundaries.

2. Whether the trial court’s finding that Mulford Village and McDonald’s had notice of the plaintiff’s purported easement was contrary to the manifest weight of the evidence.

3. Whether there was a proper basis for the equitable relief granted by the trial court.

4. Whether the trial court erred in refusing to require testimony from the president of the plaintiff corporation, who had negotiated the lease upon which the equitable relief was based.

5. Whether the trial court erred in denying a motion to dismiss Montgomery Ward & Company as a party defendant.

At issue are two allegedly conflicting easements located in the corner of a shopping center parking lot. The 20-acre shopping center is located in Rockford, Illinois, on the northwest corner of the intersection of East State Street, which runs east-west, and Mulford Road, which runs north-south. Both are four-lane roads. There are two entrances to the shopping center from State Street, one cut into the shopping center and one adjoining the shopping center on the west, over which the shopping center has an easement. There are also two entrances on Mulford Road, both belonging to the shopping center, and one of which is at the extreme northeast corner of the shopping center and is controlled by a traffic signal. The southern Mulford Road entrance has a curb cut; the other three entrances have a curb and median cut. Directly north of the shopping center and adjoining Mulford Road are three platted lots of Mulford Village Annex. The lot nearest the shopping center is undeveloped, the middle lot is the site of McDonald’s restaurant, and the northern lot has a gas station on it. There is an access road to the three lots that runs parallel to Mulford Road. The northern end of the access road opens onto Mulford Road without traffic controls, and the southern end is connected to the shopping center’s northeast entrance. The easement in question in this case is a 74 feet by 74 feet square in the northeast comer of the shopping center’s parking lot that permits this access. The shopping area is in a rectangular building located near the northern boundary of the 20 acres and running east and west. The plaintiff’s store is located in the southwest corner of the building. A diagram showing the layout of the area follows.

This lawsuit was instituted in March 1981, when a retaining wall on the northern boundary of the shopping center within the purported easement area was broken for purposes of building an access road from the north connecting the service road and the northeast entrance to the shopping center. Pacemaker filed an equitable action seeking to enjoin interference with egress and ingress to the shopping center. Following amendments, the plaintiff’s complaint was dismissed with prejudice by the trial court on the ground it failed to state a cause of action. We reversed that judgment in a Rule 23 order (102 Ill. App. 3d 1203) directing the trial court to permit plaintiff to file its second amended complaint. It did so. A bench trial followed at which this evidence was adduced.

On August 11, 1970, Monwar Property Corporation entered into a lease with Pacemaker Food Stores, Inc., for the rental of a section of the shopping center. The lease was extended the following year by Montgomery Ward Development Corporation, which was formerly known as Mon war Property Corporation. In November 1972, Seventh Mont Corporation, as the then fee owner, entered into a lease with Montgomery Ward & Company for the rental of the remaining portion of the shopping center. In August 1976, Brookville Energy Properties, Inc. (now Brookwood Energy & Properties, Inc.), as the then fee owner, extended the lease with Pacemaker Food Stores, Inc., with the concurrence of Montgomery Ward & Company and Montgomery Ward Development Corporation. The plaintiff’s lease with options has over 20 years remaining.

Montgomery Ward & Company opened a retail shopping outlet to the public in November 1970. The plaintiff opened a retail grocery outlet in the shopping center in February 1971, and the store was run under the name of Logli Supermarkets. The plaintiff and Montgomery Ward & Company have remained the only tenants in the shopping center.

The plaintiff’s lease agreement provided for entrances and parking as follows:

“Landlord covenants that Tenant and its customers, invitees and licensees at all times shall have adequate means of ingress and egress between each entrance to the leased premises and all public streets, highways, and alleys adjoining the real estate shown on Exhibit A.

Landlord grants Tenant, its customers, invitees and licensees the right and easement to use the entrances, parking areas, walks and driveways shown and designated on Exhibit A for the purpose of parking cars and ingress to and egress from the leased premises, all in common with the occupants of the other existing or future improvements shown on Exhibit A and their customers, invitees and licensees.”

Exhibit A, attached to the lease agreement, was a plot plan of the 20-acre shopping center, showing the location of a single building and showing perpendicular and diagonal hash marks that appear to represent parking stalls. The defendants challenged whether the perpendicular hash marks, located along the entire edge of the northern boundary, indeed represented parking areas. The trial court found the lease agreement to be ambiguous as to the delineation of the parking spaces and allowed parol evidence to be presented to ascertain the intent of the parties.

The plaintiff’s vice-president, who was present during some lease negotiations, stated that there was a representation that parking would be provided based on a ratio to the square footage of the shopping area, but there was no representation made as to an actual number of parking spaces. He also testified that representations were made that there would be parking along the northern border. His understanding was that, where possible, parking was to be as shown on the architect’s drawing.

There was testimony by an architect and surveyor that the perpendicular hash marks shown on exhibit A along the northern boundary of the shopping center represented parking stalls. It was also shown that the parking lot as actually painted varied from the diagram on exhibit A. The parking lines were painted on the lot either before the stores opened or shortly afterward. No lines were painted on the northern boundary at that time. There was testimony that the parking stripes appear today as they did when the lot was first laid out and that, after the two times the parking lot was resealed, the lot was restriped the same as it had been. Aerial photographs indicated that the northern boundary was not striped for parking in 1972 or in 1978. One witness testified that the original striping of the parking lot included spaces drawn on the northern lot line, but that was west of the 74-foot easement area. One witness testified that, while the northern lot line was never striped as depicted on the “As Built Site Plan,” 23 lines were drawn on part of the northern boundary in 1978 or 1979 for use by employees. There was no testimony whatever that the northeast corner of the shopping center was ever actually painted for parking.

Exhibit A to the plaintiff’s lease called for 1,336 parking spaces. Those actually painted totaled 1,161. No complaints were made by the plaintiff concerning the lack of delineated parking on the northern edge of the lot.

The plaintiff’s complaint alleged that the 74-foot easement encroached on 12 of the alleged parking spaces located in the northeast corner of the lot. There was testimony that the northern edge of the 74-foot easement lay over an area that contained eight of the alleged spaces that were represented on exhibit A but never striped. There was conflicting testimony by different witnesses as to whether the southern perimeter of the 74-foot easement encroached at all on four other parking spaces, which were in fact striped. The "witness who agreed that there was an encroachment opined that there was a 21!z-foot overlap of the four spaces as proposed on exhibit A, but there was no overlap on the southern parking spaces as actually painted. The plaintiff placed a sign in the area of the easement that slightly encroached on the parking spaces. For several years, there had been semi-trailers, a semi-flatbed, and bales of cardboard left on the western edge of the parking lot by the plaintiff.

When the parking lot was initially painted, the pavement at the northern boundary of the shopping center was increased from an eight-inch depth to 14 inches, in order to allow the area to be used by trucks at the roadway, and it was so used. Witnesses differed in their recollections of ever seeing any automobiles parked in the easement area.

In March 1980, Seventh Mont Corporation granted to the public and American National Bank and Trust Company an easement for roadway purposes in the 74-foot-square portion of the extreme northeast corner of the shopping center. This improved access to a roadway serving the lot to the north. Mulford Village Development Company sold lot 2 to McDonald’s, including the roadway easement and the 74-foot-square easement. The sale was finalized in December 1980.

There was testimony that about $875,000 was invested in the McDonald’s restaurant, that gross sales for the year were about $1.3 million, that 50% of the traffic to McDonald’s came from the north and 50% from the south, and that 51% of customer visits were spontaneous. There was no traffic signal at the northern entrance to the frontage road. It was therefore concluded that closing the southern end of the frontage road would cause a loss of about 25% of McDonald’s business and a loss of 16 to 20 jobs.

The plaintiff’s vice-president could not provide particular facts that constituted irreparable harm to the plaintiff but suggested that it lay in traffic congestion and the loss of parking stalls. The plaintiff had plans for expansion to the west, which would affect parking spaces. The plaintiff paid about $200,000 a year in rent.

The plaintiff offered into evidence all pertinent recorded documents in the chain of title to the 20-acre tract, some of which referred to the plaintiff’s lease. A declaration of subordination referred to “the lease dated August 11, 1970, between Monwar Property Corporation, as Landlord and Pacemaker Food Stores, Inc., as Tenant, as amended by the Supplemental Agreement dated August 3, 1971, covering real property located in the County of Winnebago and State of Illinois described as follows: Storeroom No. 1 ***.” Financing statements also stated that they were subject to “Lease dated August 11, 1970, between Monwar Property Corporation and Pacemaker Food Stores, Inc., as supplemented by agreement dated August 3, 1971.” The lease itself was never recorded, nor did the plaintiff ever file an assumed name certificate.

During the negotiations for the sale of lot 2 by Mulford Village Development Company to McDonald’s, the attorneys agreed to use Chicago Title Insurance Company to examine and insure title to lot 2 as well as the 74-foot easement area. Chicago Title issued three title commitments concerning in part the easement area, dated April 15, 1980, June 9, 1980, and August 21, 1980, which the attorneys reviewed. The April 15 commitment set forth as exceptions to title to the 74-foot easement the plaintiff’s lease, as disclosed by the recorded declaration of subordination, and stated that all existing unrecorded leases should be produced. The June 9 and August 21 title commitments omitted the specific reference to the lease but included the exception for all existing unrecorded leases. There was correspondence between McDonald’s and Mulford Village Corporation with respect to these title objections regarding the need for an affidavit stating that there were no preemptive rights in the leases of the shopping center that would shut off McDonald’s access to the easement right. McDonald’s persuaded Chicago Title to release the exception to title for unrecorded leases based on a consent agreement obtained from Montgomery Ward and recorded. All documents recorded within the past two years affecting title were sent by Chicago Title to McDonald’s. No one from McDonald’s, Mulford Village Development Corporation, or Chicago Title obtained a copy of the plaintiff’s lease.

The trial court ruled in favor of the plaintiff and issued a mandatory injunction against the defendants prohibiting the use of the 74-foot easement for roadway purposes and staying its order pending appeal. In its findings, the court noted that the evidence established that the plaintiff had an easement appurtenant for parking along the northern margin of the premises, that the parties to the lease intended that there be parking along the northern margin, and that there was a sufficient delineation on exhibit A of the area for parking to define the easement; that the plaintiff had a legal interest in maintaining that area for parking, notwithstanding the right to use of the area by Wards and the actual use by Wards’ customers or the fact that the plaintiff’s customers may never have used the parking area; that the evidence established irreparable damage in that once the roadway was created over the north margin of the 74-foot area, the plaintiff lost the fruits of its bargain by losing the 12 parking spaces; that defendants, McDonald’s and Mulford Village Development Company, had actual notice of the interest of the plaintiff and their reliance on Chicago Title did not establish their innocence; and that the failure to mark the parking spaces did not establish an abandonment of the parking easement by the plaintiff. From that order, the defendants appealed.

The first issue is whether, pursuant to its unrecorded lease and the plot plan attached thereto, the plaintiff secured an easement for parking that included the northeast corner of the shopping center’s boundaries. The defendants posit that the evidence failed to establish that the plaintiff’s parking easement attached specifically to the area across which the 74-foot easement was granted. They argue that the plot plan was not regarded by the parties as binding, noting that fewer parking spaces than diagrammed were actually painted, that they were not laid out exactly as shown in the plot plan, and that the plaintiff never attempted to enforce this specific layout. They suggest that the failure to stripe the northern boundary indicated that it was not intended to be part of the parking easement. Besides arguing that the parking easement was not intended to include the northern boundary and that it was too indefinite to be enforced, the defendants contend that the plaintiff’s easement for ingress and egress over the roadway was not exclusive and could accomodate the 74-foot easement.

As the plaintiff notes, however, there was ample testimony presented to establish that the parties intended exhibit A to define the area to which the parking easement attached, that the perpendicular hash marks included on exhibit A along the entire northern boundary of the shopping center indeed represented parking stalls, and that the plaintiff’s failure to insist that those parking spaces actually be painted did not indicate that the parties had not intended to include that area in the parking easement or that the plaintiff was relinquishing its parking rights there.

No particular words are necessary to constitute a grant of an easement, and any words clearly showing such intention are sufficient to confer an easement that is grantable by law. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 23.) The instrument creating the easement is considered in accordance with the intention of the parties. (91 Ill. App. 3d 17, 23.) Here, it was not against the manifest weight of the evidence for the trial court to conclude that the parking easement intended by the parties included the area shown by the perpendicular hash marks located on the northern boundary, including the northeast corner. Nor is there any indication that the plaintiff relinquished its easement rights under the lease. Mere nonuse will not constitute an abandonment of an easement created by grant, unless there are circumstances showing an intention of the dominant owner to relinquish his right or there is adverse possession. Kurz v. Blume (1950), 407 Ill. 383, 387; Beloit Foundry Co. v. Ryan (1963), 28 Ill. 2d 379, 390.

The second issue is whether the trial court’s finding that Mulford Village and McDonald’s had notice of the plaintiff’s purported easement was contrary to the manifest weight of the evidence. In support of this argument, these defendants point out that the plaintiff’s lease was never recorded, that they had no way of knowing that “Logli” was the plaintiff’s business name, that there were no parking stripes painted in the northeast corner that would suggest parking rights, that they relied on title commitments issued by Chicago Title Insurance Company as evidence of marketable title, and that recorded references to the lease referred to a storeroom and gave no indication of any parking rights. In essence, the defendants are contending they were innocent purchasers for value.

Purchasers of real estate have a duty to examine the record and are chargeable with notice of whatever appears in the record chain of title. One having notice of facts that would put a prudent person on inquiry is chargeable with knowledge of other facts that might have been discovered by diligent inquiry. (Smith v. Grubb (1949), 402 Ill. 451, 464-65.) Where real estate is in the possession of someone other than the record owner, such possession is generally regarded as notice of the interest represented thereby and is legally equivalent to the recording of such interest; a purchaser is bound to inquire of the person in possession by what tenure he holds and what interest he claims in the premises. Because possession has such substantial significance and consequences, it must be visible, open, exclusive, and unambiguous. (Burnex Oil Co. v. Floyd (1969), 106 Ill. App. 2d 16, 21-22.) Purchasers of land burdened with an easement take the land subject to easements expressly created of which they have notice and such other easements as are apparent from an inspection of the premises. Casey- ville Township Road District v. Union-Electric Co. (1971), 1 Ill. App. 3d 715, 719.

In the present case, there was sufficient evidence to sustain a finding that the defendants had constructive notice of the plaintiff’s interest. Although the lease itself was not recorded, and the record therefore did not reflect the actual parking easement, the lease was referred to in recorded documents. Moreover, the defendants received a title commitment from Chicago Title Insurance Company pointing out an exception for this lease. The fact that the reference was to a lease with Pacemaker, rather than Logli, and that it referred specifically to Storeroom No. 1, which the defendants argue precluded their notice of any interest in the parking lot, did . not excuse the defendants from a duty to diligently inquire about the terms of the lease. The mere fact that the name on the plaintiff’s grocery store was Logli, rather than Pacemaker, is not dispositive, since the defendants did not investigate the interest as it was their duty to do, simply based on the location of the interest as attached to the real estate involved in their transaction.

The third issue is whether there was a proper basis for the equitable relief granted by the trial court. The defendants argue that the plaintiff’s parking easement was nonexclusive, that any interference with it was inconsequential, that the plaintiff was not irrevocably harmed, that the plaintiff’s allegation of interference with the parking easement was a subterfuge to prevent sharing its easement for ingress and egress through the entranceway, and that the effect of the mandatory injunction on various defendants would be catastrophic. In response, the plaintiff cites four cases that it contends support the right of a tenant to have a conflicting use enjoined, where a plot is incorporated into a lease diagramming the extent and nature of a tenant’s easement and the landlord grants to a third party the right to use a specific section of the diagram in a way inconsistent with the easement.

In Mutual of Omaha Life Insurance Co. v. Executive Plaza, Inc. (1981), 99 Ill. App. 3d 190, the plaintiffs leased a portion of an office building, which included the use of a common parking lot by the tenants of the building and their clients. Subsequently, the landlord entered into a lease with a new tenant, giving it exclusive access to 32 of the 148 parking places, with access to the 32 spaces controlled by a gate. The court held that the use of the appurtenant parking area could not be reduced or substantially altered during the term of the lease, reasoning that the promised use probably formed a part of the bargain of the lease. The court noted that a mandatory injunction was proper even if only minor interference was shown and that a showing of irreparable injury did not require that the injury be beyond the possibility of compensation or that it be very great. The fact that no actual damages could be proved and that only nominal damages could be awarded was considered a good reason for equitable relief. 99 Ill. App. 3d 190, 194-95.

In Great Atlantic & Pacific Tea Co. v. La Salle National Bank (1979), 77 Ill. App. 3d 478, the court upheld a complaint to enjoin construction of a drive-in bank facility in the parking lot of a shopping center in which the plaintiff maintained a store. The plaintiffs lease included the free use of striped parking as shown in an attached plot plan. The court noted that that could be the basis of an easement appurtenant. 77 Ill. App. 3d 478, 483.

In Walgreen Co. v. American National Bank & Trust Co. (1972), 4 Ill. App. 3d 549, the court upheld an injunction prohibiting the defendant’s construction of a kiosk for a photography business in a shopping center parking area. The plaintiffs had a lease that included parking areas as shown on an attached plan. The proposed kiosk was to be placed in a part of the shopping enter that was designated in the plan as a parking area. The lease also provided that the parking area would contain at least 150,000 square feet and provided parking for at least 400 automobiles. The plan depicted markings for 463 parking spaces. The court noted that the erection of this kiosk would violate the right to parking as set forth in the parking plan and would eliminate three spaces that had been used for parking for over 10 years. Moreover, it would be separate from the mall and would not draw customers to the mall area. In those circumstances, an injunction was deemed appropriate relief. 4 Ill. App. 3d 549, 556.

In Fair v. Evergreen Park Shopping Plaza of Delaware, Inc. (1955), 4 Ill. App. 2d 454, the court upheld a mandatory injunction ordering the defendants to remove part of an existing storefront that extended five feet beyond the original building line into a shopping center parking lot. The plaintiff was the original tenant of the shopping center. Its lease provided for parking to be used in common with all other tenants, to be located in accordance with a site plan later incorporated into the lease. The court noted that the defendant had actual notice of the plaintiff’s rights when it erected the encroachment and concluded that there were no equities in favor of the defendant and no occasion for balancing the equities. 4 Ill. App. 2d 454, 470.

These cases indicate a willingness to protect the property right itself by injunction. In the present case, it has been established that the plaintiff had a protectible interest in its parking rights. The defendants neglected to make diligent inquiries that could have led to the discovery of the plaintiff’s interests. The defendants are not landlocked, since they do have access to Mulford Road from the north. The parking rights that the plaintiff seeks to protect are an integral part of its lease, for which it pays a substantial annual rent. The findings of the trial court were not against the manifest weight of the evidence and furnish a sound basis for the injunctive relief granted.

The fourth issue is whether the trial court erred in refusing to require testimony from the president of the plaintiff corporation, who had negotiated the lease upon which the equitable relief was based. The defendants urge that, since the lease was determined by the trial court to be ambiguous, they are prejudiced by the trial court’s refusal to require testimony from the plaintiff’s president, citing Supreme Court Rule 237(b) (87 Ill. 2d R. 237(b)). However, as the plaintiff points out, the court relied in its decision upon a medical opinion that the president’s appearance for a deposition could be life-threatening. Moreover, there was testimony presented at the trial by one of the parties who was present during the negotiations for the lease. Compelling the appearance of a party litigant at trial under Rule 237(b) is a matter for the sound discretion of the trial court, rather than a mandatory requirement. (O’Brien v. Walker (1977), 49 Ill. App. 3d 940, 947.) A court’s power to order a party to appear should only be exercised for a good cause and in such a manner that a party may not be subjected to harassment, oppression, or hardship. (Oakview New Lenox School District No. 122 v. Ford Motor Co. (1978), 61 Ill. App. 3d 194, 198-99.) In the circumstances of this present case, there was no abuse of discretion.

The fifth issue is whether the trial court erred in denying a motion to dismiss Montgomery Ward & Company as a party defendant. The defendants argue that Montgomery Ward & Company was simply a co-tenant of the plaintiff and that no cause of action was pleaded or proved against it to make it subject to an adverse judgment, noting that Montgomery Ward was neither the fee holder of the shopping center, the landlord, nor the conveyor of the 74-foot easement. The trial court refused Montgomery Ward & Company’s motion at the close of the plaintiff’s evidence to be directed out as a party defendant, reasoning that a declaration of rights would involve it.

Section 2 — 405 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 405) permits the joinder of defendants who are alleged to have or claim an interest in the controversy or any part of it or whom it is necessary to make a party for the complete determination or settlement of any question involved in the controversy.

The plaintiff sought a declaration of rights as well as an injunction. Since Montgomery Ward & Company had parking rights under the lease also, the ruling of the trial court was correct.

Finally, the defendants make numerous references in their briefs to the trial judge’s comments that this was a case where there was a remedy by way of money damages and that the plaintiff was using the parking issue simply to prevent access to the northeastern entrance and not for the stated purpose of protecting the parking easement. The context of the comments is that they were made immediately following the court’s findings and rulings and were not a part of its disposition of the case. The trial judge made it very clear that his subsequent remarks were “extrajudicial,” had no effect on his ruling, were “not judicial pronouncements,” and were “off the record.” He was simply suggesting that the parties seriously contemplate a settlement before pursuing an appeal. The defendants suggest that the comments were part of the court’s findings, but they clearly were not and we do not so regard them.

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

Judgment affirmed.

HOPF and VAN DEUSEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
      In re MARRIAGE OF JOHN T. MURPHY, Petitioner-Appellant, and SUSAN E. MURPHY, Respondent-Appellee.
    Third District
    No. 82-404
    Opinion filed August 26, 1983.

      Stewart R. Winstein, of Winstein, Kavensky, Wallace & Doughty, of Rock Island, for appellant.
    John W. Robertson and Pamela M. Anderson, both of Bozeman, Neighbour, Patton & Noe, of Moline, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

John T. Murphy appeals from orders of the circuit court of Rock Island County, Illinois, pertaining to the award of maintenance, distribution of property, and award of attorney fees.

After nine years of marriage, John and Susan sought and obtained a dissolution of marriage. By agreement of the parties, custody of their two sons, age three and six, was awarded to Susan. The parties vigorously contested the division of property and allocation of support at the second half of the bifurcated hearing. However, a close examination of the record reveals that most of the facts and circumstances of the parties are not disputed.

John was 35 years of age at the time of the hearing and was employed as a high school principal with a gross salary of $40,000 per year. His take-home pay is $1,051 every other week, plus $7.50 automobile stipend, and he testified that his living expenses amount to about $1,150 per month. He currently lives in an apartment which is furnished in part with furniture from the marital home.

Susan was 31 years old at the time of the hearing and worked as a registry nurse at Lutheran Hospital in Moline two to four days per month, earning $8.23 per hour. She testified that she has not worked full time because she has thought it important to be home with the two children, but that once the marriage dissolution proceedings are over, she intended to seek full time employment and expects to have take-home pay of $700 per month. Susan estimated her living expenses at $780 per month per month and the needs of the children at $682 per month plus $300 per month for child care. She stated that she did not need maintenance for herself but would need $980 per month child support. She testified that she plans to sell the marital home and to use the equity to purchase a smaller home that will be less costly.

The parties own two cars: his has a valuation of $2,925 and hers, $5,850. Susan owes her parents $2,000 which was borrowed to buy her car. The marital residence is valued at $105,000 subject to a $65,000 mortgage. John has contributed to the Illinois Teachers Retirement System for 10 years, and his contributions total about $18,200 which he is entitled to withdraw if he ceases to be employed by Illinois schools. There was no evidence as to the present value of his future retirement rights, which, of course, would take into account the contributions by his employers. During the first year John was employed, and prior to his marriage, his contribution to the Illinois Teachers Retirement System was $1,005. The parties also owned many items of antique furniture which they had appraised prior to the hearing. They were in general agreement as to which items of personal property were marital property and which were not.

The main dollar item of dispute centered around a check for $10,000 which John’s mother had given him in October 1975, and which bore the designation “Loan” on its face. John testified that his mother loaned the money to him, that he deposited it in a joint account, and that he used it partly as a down payment on a home, partly to purchase an adjoining lot, and partly for floorcoverings, landscaping, and other details of the home they were building. On cross-examination, John admitted that he had not expected to repay the $10,000 to his mother, and that he had not listed the “loan” as a debt of the marriage when he filed for dissolution. However, he testified that in December of 1981, several months prior to the judgment of dissolution, his mother told him she expected to be repaid. Susan testified that she had never discussed the $10,000 with John’s mother, that she had not wanted John to accept money from his mother but he did anyway, and that he told her part was repayment of an earlier loan to his mother from his father’s estate and the rest was an advance on his inheritance. Susan introduced a savings account record from November 1975 which showed a $10,000 deposit followed by withdrawals over the next 13 months as follows: January 1976 - $4,060; April - $100; August - $65; October - $120; December - $4,000. She testified that to her knowledge, none of these payments were used toward the construction of the house. John later testified that the $4,060 was part of the down payment, and the $4,000 withdrawal was used to purchase the adjoining lot.

In its opinion and order, the trial court divided the marital property on a ratio of approximately two to one, with Susan receiving property of about twice the value of the property awarded to John. The court stated that the award was determined by the factors set out in sections 503 and 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, pars. 503, 504), with particular attention to the substantial difference in earning capacity and to the tax consequences of the award.

The court awarded Susan the marital home, most of the personal property in the home, and the 1981 Toyota. John was awarded the equity in the Teachers Retirement System, the 1977 Toyota, the personal property located in his apartment, and several other items of furniture, tools, and sport equipment. The court ordered no child support, but ordered John to pay all dental and medical expenses of the children not covered by insurance in excess of $200 per year. Finally, the court ordered John to pay maintenance of $900 per month for 180 months (15 years) and to pay $1,500 toward Susan’s attorney fees. The court found that the $10,000 check from John’s mother was not a debt and that Susan must repay the $2,000 loan from her parents for her car and she must assume the mortgage on the home.

John has appealed from the order of the trial court, asserting three errors as grounds for reversal: (1) distribution of property; (2) award of maintenance; and (3) ordering payment of Susan’s attorney fees.

The first issue is whether the trial court erred in awarding Susan the house. According to the figures submitted by John, Susan has been awarded assets having a total value of $48,702 while he has been awarded only $23,892. However, Susan makes a different computation. She agrees that the property awarded to John has a value of $23,892, but she stated that her property has a value of only $37,702. She reaches this figure by deducting from the value of the house the estimated costs of sale of $7,500 and the accrued real estate taxes of $2,000.

We think it noteworthy that the trial court stated that a two-to-one ratio for division of property would be equitable considering the disparate earning capabilities of John and Susan. Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)) provides that the trial court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including: *** (4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children; *** (7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; (8) the custodial provisions for any children; *** (10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.”

We think it clear that the trial court properly took into account the factors relevant to this case. Susan’s training and occupation are not likely to enable her to earn more than one-half John’s income, and the evidence indicates that full-time employment may be difficult for her to find in any event. John argues that his only asset is inaccessible to him unless he quits his position and and withdraws his contributions from his retirement plan, and thus, that he is denied any chance of planning for the future. We do not agree. John’s pension rights provide him with a very secure future, particularly for his retirement years, and thus reduce considerably the need to accumulate assets for his retirement. True, he is back where is started nine years ago in terms of acquiring real estate and building up equity in a home, but that is the price of meeting the needs of the other members of the family for which he is responsible. In other words, John must now provide housing for himself and for his children in two different locations, and the cost of that will be more than the cost of providing one family home.

We apply the standard so well-stated in In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126,129:

“We start with the premise that a circuit court judge’s resolution of property division is fettered only by the range of reason and that his judgment will not be disturbed in the absence of an abuse of discretion. It is a well-established rule that a reviewing court is not justified in substituting its discretion for that of the trial court. [Citation.] In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court but rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed the bounds of reason and ignore recognized principles of law so that substantial injustice resulted.”

Looking at the evidence before the trial court, we believe the court did not act arbitrarily or abuse its discretion in dividing the marital property so as to award the marital home to Susan. The record makes clear that the trial court conscientiously evaluated the circumstances of the parties. He balanced John’s superior earning capacity and retirement benefits with providing Susan with the marital home, considering that Susan is the custodial parent, that the children are quite small, and that she contributed to the acquisition of the marital assets with her savings and earnings when first married, and later as homemaker.

John relies upon Clearman v. Clearman (1980), 85 Ill. App. 3d 584, 407 N.E.2d 189, where this court reversed a property distribution that awarded the wife assets valued at $65,620 and the husband assumed debts in excess of his assets to the extent of $25,319. We noted in Clearman that the facts of that case did not warrant an equal apportionment but nonetheless “absent here are those extraordinary circumstances that create a substantial imbalance in the equities as to deny one party any proportion at all.” (85 Ill. App. 3d 584, 588, 407 N.E.2d 189, 192.) The circumstances of the case before us are not like those of Clearman. John has received assets having a value of $23,892 by his own testimony. The court concluded that justice required awarding Susan assets having twice the value of those awarded to John in order to balance other factors. Although we might not have exercised our discretion in the exact same manner had we been the trial judge, we believe the distribution here was certainly within the “range of reason” and not an abúse of discretion.

John also challenges the award of $900 per month maintenance to Susan for 15 years, the expiration of which will mark the end of the minority of the youngest child. John argues that Susan did not ask for maintenance, that she estimated her expenses at $780 per month which is less than the award, and that she should be expected to return to work full time.

We have carefully examined the record from which it is clear that Susan testified that she needed $982 per month to meet the expenses of caring for the two young children of the couple. In addition, she estimated her own expenses at $780 per month which she would meet with estimated income of $700 per month when she found full-time employment. Regardless of whether she requested support for her children or maintenance for herself, it is clear that Susan as the custodial parent would need $1,762 each month to support herself and her children, and that she could provide only $700 of that amount from her own earnings. The award of the trial court was actually $162 per month less than her estimated needs.

At the hearing on John’s petition for rehearing, Judge De-Doncker made clear that the maintenance award was entered in order to assure the maximum tax advantage to the parties. By utilizing an “unallocated maintenance” award, rather than simple child support, the trial court enabled John to deduct the full maintenance payment as an itemized deduction for purposes of his Federal income tax. The trial court reasoned that the substantial reduction in tax which will result is then passed on to Susan in the form of a greater maintenance payment than would otherwise be possible.

As a single person with a salary of $40,000, John will be in a higher tax bracket than Susan, who will have two dependents and the interest on mortgage payments to deduct. Accordingly, the tax consequences of the court’s maintenance decision are substantial. Trial courts should take into account the tax consequences of the awards that are ordered. (In re Marriage of Belluomini (1982), 104 Ill. App. 3d 301, 432 N.E.2d 958; In re Marriage of Mass (1981), 102 Ill. App. 3d 984, 431 N.E.2d 1.) In Belluomini, the reviewing court specifically approved an order providing for unallocated maintenance payments as a method of reducing the tax burden on the husband in a situation where the husband was in a much higher tax bracket than the wife. See also Bellow v. Bellow (1981), 94 Ill. App. 3d 361, 419 N.E.2d 924; Schuppe v. Schuppe (1979), 69 Ill. App. 3d 200, 387 N.E.2d 346.

According to the record, John receives take-home pay of $1,058 every other week for a total of $27,508 annual net income. John estimated his living expenses at $1,150 per month. Adding together John’s expenses of $1,150 and his monthly maintenance payment of $900, John will spend $24,600 per year, which is $2,900 less than his net income. Under these circumstances we certainly cannot say that the order of the trial court awarding $900 per month unallocated maintenance was contrary to the manifest weight of the evidence. When the resources are adequate to do so, it is appropriate to award the spouse seeking maintenance the whole difference between her resources and her reasonable needs. (Simmons v. Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321.) Such is the attempt here, and we find no error in the award as ordered.

John’s final contention is that the trial court erred in ordering him to pay one-half of Susan’s attorney fees— $1,500. John does not dispute the amount of the fees but only questions whether the trial court abused its discretion in determining that John was more able to pay that part of Susan’s fees than she. Susan’s ability to meet her own living expenses is dependent upon her success at obtaining full-time employment as a nurse at a time when jobs are not readily available. Even assuming her full-time employment, all of her resources will be required to meet the living expenses of herself and the two children. As we have indicated previously, John has $2,900 additional income each year in excess of his own living expenses and the maintenance payment he must make. Thus, we conclude that the trial court’s order was not an abuse of discretion.

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

STOUDER, EJ., and SCOTT, J., concur.


text:
    BEVERLY BANK, Trustee, et al., Plaintiffs-Appellants, v. THE BOARD OF REVIEW OF WILL COUNTY et al., Defendants-Appellees.
    Third District
    No. 82 — 313
    Opinion filed August 24, 1983.

      Eugene J. Schütz, Kenneth P. Ross, John L. Gubbins, and Robert S. Atkins, all of Freeman, Atkins & Coleman, Ltd., of Chicago, for appellants.
    William W. Kurnik, of Judge, Kurnik & Knight, Ltd., of Park Ridge, for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Plaintiff taxpayers appeal from an order granting defendants’ motion for judgment on the pleadings and dismissing the complaint in this action for damages arising out of an increase in real property assessments of all industrial and commercial property by the Will County Board of Review.

According to the allegations of the third amended complaint filed about April 4, 1979, in this cause, which complaint is the basis for the defendants’ motion for judgment on the pleadings, the Department of Local Government Affairs of the State of Illinois assigned a tentative multiplier of 1.13 to Will County for the tax year 1978. This multiplier was determined by the Department to be the factor necessary to equalize the Will County assessments at the statutorily required level of 33V3% of fair cash value.

The pertinent language of the complaint is as follows:

“(18) Commencing approximately in the spring of 1979, and subsequent to receipt of notice from the LGA of a 1978 tentative multiplier of 1.13, the defendant members of the Board of Review conspired and engaged in a concert of action to unlawfully increase the assessed valuation of industrial and commercial real estate and personal property, for the purpose and with the intent of eliminating the imposition of a state multiplier of 13% on residential, farm and other real estate owned by preferred taxpayers.
(19) As part of and in furtherance of said conspiracy and concert of action, defendants engaged in the following course of conduct:
(a) In August 1979, without any classification of real property ordinance of the County Board of Will County and in violation of Section 20a of the Revenue Act, Ill. Rev. Stat. (1979) Ch. 120, sec. 501a, the Board of Review applied a uniform formula and/or percentage factor, across the board, to all industrial and commercial real property in Will County, for the purpose of increasing the assessment on said real property and thereby attempting to eliminate the effect of the 1.13 multiplier tentatively imposed by the LGA as to all other types of property owners.
(b) In August 1979, the Board of Review increased assessments ten percent (10%), across the board, on all taxable personal property in Will County, for the purpose of alleviating the effect of the 1.13 multiplier tentatively imposed by the LGA as to all other types of property owners.
(c) On or about September 24, 1979, the members of the Board of Review caused to be issued to each owner of commercial and/or industrial real property and each owner of taxable personal property in Will County a ‘Notice of the Revised Assessment for 1978.’ Said notices informed each such taxpayer of the increase in assessments imposed by the Board of Review.
(20) The defendant Board of Review and its members arbitrarily and discriminatorily, and with neither legal classifications, guidelines, nor approval by the County Board of Will County, increased the 1978 assessments only as to commercial and industrial real estate and personal property owned by plaintiffs and members of the plaintiff class, contrary to state law and in violation of the constitutional rights of plaintiffs and the plaintiff class to due process and equal protection under the laws as provided in the Fourteenth Amendment to the United States Constitution:
(a) Without imposing increased assessments on any other taxable real estate in Will County;
(b) With the purpose and intent of imposing an unlawful financial burden on plaintiffs and members of the plaintiff class, so that other taxpayers would experience no tax increase ***;
(c) Without rational basis nor lawful reason for the selection of plaintiffs or plaintiff class members as those who would bear said financial burden;
(d) Without any rational relationship between said increased assessment and the actual assessed value of the property of plaintiffs and the plaintiff class;
(e) Without providing any meaningful hearing before the Board of Review.
(21) On or about December 1979, tax bills were sent to all taxpayers in Will County, including the taxpayers whose taxes were calculated upon the assessments which were unlawfully revised. Payments of said tax bills were to be made by January 31, 1980 and payments have been received by the Treasurer of Will County.
(22) The violation of the constitutional rights of plaintiffs and plaintiff class as aforesaid constitutes an intentional deprivation of the civil rights of plaintiff and plaintiff class by defendants under color of the laws of the State of Illinois and the authority of the Board of Review of Will County, in violation of the Civil Rights Act of 1871, 42 U.S.C. sec. 1983.
(23) The conspiracy of the defendant members of the Board of Review, wilfully acting in concert, to arbitrarily and discriminatorily increase the 1978 assessments of plaintiffs and the plaintiff class as heretofore described is in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States.” (Emphasis added.)

Plaintiffs filed a class action in the United States District Court for the Northern District of Illinois, seeking damages pursuant to the Civil Rights Act (42 U.S.C. sec. 1983), as indicated, which authorizes a cause of action for damages for any “deprivation of rights, privileges or immunities secured by the Constitution and laws ***.”

Section 1983 was originally adopted under the colorful designation, the Ku Klux Act of April 20, 1871, section 1, for the express purpose of enforcing the provisions of the fourteenth amendment, and the congressional debates made clear that the lawless activities of the Ku Klux Klan in the South at that time were intended to be subject to Federal remedy. In discussing the history of section 1983, Justice Douglas in Monroe v. Pape (1961), 365 U.S. 167, 171-72, 5 L. Ed. 2d 492, 497, 81 S. Ct. 473, 476, said:

“There can be no doubt at least since Ex parte Virginia, 100 U.S. 339, 346-347, 25 L. Ed. 676, that Congress has the power to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it. *** The question with which we now deal is the narrower one of whether Congress, in enacting section 1979 [now 1983], meant to give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position. *** We conclude that it did so intend.”

Accordingly, section 1983 provides a remedy where public officials fail to execute the provisions of State law, thereby denying citizens the guarantees of the fourteenth amendment otherwise afforded to them.

While this suit was pending in Federal court, the United States Supreme Court ruled that actions brought under section 1983 alleging unconstitutional administration of State tax systems must be initially brought in a State court. (Fair Assessment in Real Estate Association, Inc. v. McNary (1981), 454 U.S. 100, 70 L. Ed. 2d 271, 102 S. Ct. 177.) As a consequence of that decision, the parties to this action agreed to transfer this cause to the circuit court of Will County. It is not disputed that Illinois courts have concurrent jurisdiction with Federal courts to hear claims founded upon alleged violations of section 1983. (Bohacs v. Reid (1978), 63 Ill. App. 3d 477, 379 N.E.2d 1372; Alberty v. Daniel (1974), 25 Ill. App. 3d 291, 323 N.E.2d 110.) After the transfer, defendants filed a motion for judgment on the pleadings which was granted by the trial court, as aforesaid.

Plaintiffs first argue that the trial court erred in basing its ruling on the doctrine that plaintiffs were required to exhaust their administrative remedies before bringing suit under the Federal statute. Defendants agree that the exhaustion doctrine is not applicable to actions under section 1983 of the Civil Rights Act and assert further that they do not rely upon that doctrine. (See Patsy v. Board of Regents (1982), 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557.) We think that a careful reading of the trial court’s memorandum opinion indicates that the trial court did not apply the exhaustion doctrine but rather considered several exhaustion cases in determining whether Illinois law afforded plaintiffs due process. Accordingly, we will not belabor the doctrine of exhaustion of administrative remedies by further consideration.

Plaintiffs also assert that the trial court erred when it failed to find that defendants denied plaintiffs their Federal constitutional right to due process. This issue is quite simply presented to us. Section 108 of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 589(5)) provides that the assessment of any class of property shall not be increased until the board of review has given the owners of the property affected an opportunity to be heard within 20 days following publication of notice of the proposed increase. Defendants admit that they did not comply with the requirements of the statute, but they argue that every violation of a State statute does not automatically rise to the level of deprivation of a constitutional right.

The statutory basis for plaintiffs’ claim is section 1983 (42 U.S.C. sec. 1983 (1976)), which provides in part as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

The constitutional right asserted by plaintiffs is found in the fourteenth amendment of the Constitution of the United States, which provides that no State shall “deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

Plaintiffs contend that the defendants acting as members of the Will County Board of Review, and thus under color of the statutes of the State of Illinois, deprived them of their property by causing additional taxes to be levied without giving them an opportunity to be heard. Defendants do not dispute that they acted under color of State statutes and, that plaintiffs have been deprived of property by taxation, but defendants insist there had been no denial of plaintiffs’ constitutional right to due process.

Illinois statutes provide several remedies for property owners who seek redress for excessive taxes. When a taxpayer is dissatisfied with a decision by the board of review, he is entitled to appeal the board’s decision to the Property Tax Appeal Board, and to seek judicial review of the decision of the Property Tax Appeal Board pursuant to the Administrative Review Act. (Ill. Rev. Stat. 1981, ch. 120, pars. 592.1, 592.4.) Also, as an alternative remedy, any taxpayer not satisfied with the decision of the board of review may file objections in the circuit court (after paying the tax under protest) to obtain a tax refund. (See Ill. Rev. Stat. 1981, ch. 120, pars. 675, 676, 716.) According to the record on appeal, plaintiffs, or at least some of them, did seek relief from the Property Tax Appeal Board, but upon denial of their claim by the Property Tax Appeal Board, judicial review was not pursued.

We also note that in Parratt v. Taylor (1981), 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908, the Supreme Court considered a complaint by a prisoner seeking to recover damages for personal property lost by prison officials and held that remedies provided by the State were sufficient to satisfy the due process clause even though they were available only after the deprivation of property had occurred. The court stated:

“Our past cases mandate that some kind of hearing is required at some time before a State finally deprives a person of his property interests. The fundamental requirement of due process is the opportunity to be heard and it is an ‘opportunity which must be granted at a meaningful time and in a meaningful manner.’ *** we have rejected the proposition that ‘at a meaningful time and in a meaningful manner’ always requires the State to provide a hearing prior to the initial deprivation of property.” 451 U.S. 527, 540, 68 L. Ed. 2d 420, 432, 101 S. Ct. 1908, 1915.

Plaintiffs also argue thát the remedies available to it are not adequate to provide due process because they require payment of the tax under protest and because interest, costs and fees cannot be recovered. The response of Parratt v. Taylor (1981), 451 U.S. 527, 544, 68 L. Ed. 2d 420, 434; 101 S. Ct. 1908, 1917, is:

“Although the state remedies may not provide the respondent with all the relief which may have been available if he could have proceeded under sec. 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process.” Cf. Rosewell v. La Salle National Bank (1981), 450 U.S. 503, 67 L. Ed. 2d 464, 101 S. Ct. 1221.

As the trial court noted, our courts have held that a party cannot complain that he has been deprived of procedural due process when he has declined to pursue the remedies which the State provides. (E.g., Marlowe v. Village of Wauconda (1980), 91 Ill. App. 3d 874, 415 N.E.2d 660; Rawlings v. Department of Law Enforcement (1979), 73 Ill. App. 3d 267, 391 N.E.2d 758.) In Dusanek v. Hannon (7th Cir. 1982), 677 F.2d 538, the court cited Marlowe, Rawlings, and other cases, and then observed:

“These decisions do not amount to a requirement of exhaustion of administrative remedies as a predicate to a section 1983 claim. Rather, they express the logical proposition that a state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of them.” 677 F.2d 538, 543.

The point of these cases as applied to the case at bar is that plaintiffs were not denied due process by the failure of the board of review to make available the statutorily required hearing before the taxes were due because plaintiffs had post-deprivation opportunities to present the merits of their claim before they were finally deprived of their property. (See Logan v. Zimmerman Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148.) We conclude, therefore, that the action of the board of review, though illegal under the law of Illinois, did not deprive plaintiffs of their property without due process of law because Illinois law provides additional remedies to protect taxpayers from just the sort of arbitrary action by taxing officials as had been alleged here.

Plaintiffs further contend that defendants’ arbitrary and discriminatory conduct towards plaintiffs’ property was a violation of their right to equal protection of the laws. This argument is predicated upon the Illinois constitutional provision that requires all property to be taxed uniformly as provided by the General Assembly (Ill. Const. 1970, art. IX, sec. 4(a)). The Illinois legislature implemented the constitution with section 20a of the Revenue Act (Ill. Rev. Stat. 1979, ch. 120, par. 501a), which provides that any classification of real property must be established by ordinance of the county board or it is void. Since the Will County Board has not enacted an ordinance creating classes, real property used for industrial and commercial purposes in Will County is legally entitled to the same level of assessment as residential, agricultural, and all other classes of property. In addition, and in fact, these plaintiffs accuse the board of review of the sort of intentional and discriminatory action by public officials against classes of person or property which has traditionally run afoul of the equal protection clause.

When State officers engage in unlawful administration of a State statute fair on its face, causing unequal application to those who are entitled to be treated alike, a denial of equal protection exists if the discrimination was intentional or purposeful. (Snowden v. Hughes (1944), 321 U.S. 1, 88 L. Ed. 497, 64 S. Ct. 397; International Society for Krishna Consciousness, Inc. v. City of Evanston (1980), 89 Ill. App. 3d 701, 411 N.E.2d 1030.) In order to establish a discriminatory purpose, those aggrieved must show that “the decisionmaker singled out a particular group for disparate treatment and selected his course of action at least in part for the purpose of causing its adverse effects on an identifiable group.” (Shango v. Jurich (7th Cir. 1982), 681 F.2d 1091, 1104.) Thus more is required than misinterpretation of law or even arbitrary application of statutes and rules.

In Snowden v. Hughes the court used as a “familiar example” of the denial of equal protection “the failure of state taxing officials to assess property for taxation on a uniform standard of valuation as required by the assessment laws.” (321 U.S. 1, 9, 88 L. Ed. 497, 503, 64 S. Ct. 397, 401.) The court noted that one illustration of purposeful discrimination would be “a systematic under-valuation of the property of some taxpayers and a systematic over-valuation of the property of others, so that the practical effect of the official breach of law is the same as though the discrimination were incorporated in and proclaimed by the statute.” (321 U.S. 1, 9, 88 L. Ed. 497, 503, 64 S. Ct. 397, 401.) Although Snowden involved the right of a candidate to be certified as a nominee for political office and the court ultimately held that the departure from State law in that case did not amount to a violation of a Federal right, the principles laid down for defining equal protection violations have withstood the test of time and are, we believe; applicable to the case before us.

The allegations in the complaint here are much the same as the factual situation in the “familiar example” discussed in Snowden. Plaintiffs Charge defendants with purposefully and intentionally discriminating against the classes of property owned by plaintiffs in that defendants unlawfully placed an increased financial burden on commercial and industrial property and not on other classes of property. According to the complaint, defendants have systematically overvalued two classes of property and have systematically undervalued other classes. Under the test of Snowden, plaintiffs have a cause of action against defendants. Similarly, in Weissinger v. Boswell (M.D. Ala. 1971), 330 F. Supp. 615, it was held that property owners were denied their fourteenth amendment right to equal protection where State officials intentionally and systematically refused to perform their duties in accordance with State law and, as a result, certain classes of property were assessed at a substantially higher percentage than others.

Defendants argue that the classification of real property by its industrial and commercial purposes has been recognized as having a rational basis and thus does not violate the constitution. Federal courts have said that while a State can classify property according to its use, the relevant question in an equal protection claim is whether the State has in fact done so. In other words, the fourteenth amendment commands equality of treatment unless the State has in fact established different and reasonable classes of property. (Louisville & Nashville R.R. Co. v. Public Service Com. (M.D. Tenn. 1966), 249 F. Supp. 894, 899.) But here it is not the classification itself that plaintiffs assert to be unconstitutional; it is the intentional, unlawful, purposefully discriminatory treatment of those classes that is alleged to impinge upon plaintiffs’ rights.

We therefore conclude that, on the basis of the facts alleged in the complaint and admitted by the motion for judgment on the pleadings, plaintiffs have a cause of action under section 1983 of the Civil Rights Act for denial of their right to equal protection of the laws. Those portions of the complaint which we have quoted above assert a purposeful, intentional discrimination against two classes of property owners which is actionable conduct under Illinois and Federal law. We hold that the trial court erred in dismissing the complaint.

The judgment of the circuit court of Will County is reversed, and this cause is remanded for further proceedings.

Reversed and remanded.

ALLOY and SCOTT, JJ., concur.


author: JUSTICE SCOTT JUSTICE BARRY,

text:
      In re CUSTODY OF CARRIE ANN HENKINS, a Minor-(Kenneth Henkins, Petitioner-Appellee, v. Dennis Snow et al., Respondents-Appellants).
    Third District
    No. 82-485
    Opinion filed August 23, 1983.
    BARRY, J., dissenting.
    Susan Dawson-Tibbits, of Prairie State Legal Services, Inc., of Peoria, for appellants.
    Robert A. Barnes, Jr., of Barnes & Barnes, of Lacón, for appellee.
   JUSTICE SCOTT

delivered the opinion of the court:

This case involves a custody dispute between the natural mother of a minor child and the maternal grandfather of the child. The circuit court of Marshall County entered an order awarding custody of the child to the maternal grandfather, Kenneth Henkins. The mother, Sherry Snow, appeals from that order.

Sherry at age 20 and unmarried gave birth to a daughter, Carrie Ann Henkins, on October 14, 1975, who is the subject of the custody dispute. After her birth the child, Carrie, was taken to the home of her grandparents, Mr. and Mrs. Kenneth Henkins. The home is near Lacón, Illinois, and with the exception of brief periods of time Carrie has always been with the Henkins. The mother, Sherry, also returned to her parents’ home, but off and on absented herself for long periods of time, leaving her whereabouts unknown. The mother, Sherry, testified that while living with her parents she took care of Carrie by bathing, feeding and playing with her. She did admit that on occasions she left her parents’ home taking Carrie with her and that she did not inform her parents of her whereabouts because it was none of their business.

During one of the absences Mr. Henkins found his daughter, Sherry, and Carrie living at the Lacón Marina in a camping trailer. Mr. Henkins testified that the trailer was unheated and the temperature was in the 40’s. Sherry’s testimony was to the contrary in that she stated that she and Carrie stayed at the Marina in the summertime. Mr. Henkins further testified that on another occasion he found Sherry and Carrie at the Nighsonger residence, which was completely run down and dirty and had no modern facilities. Sherry’s testimony was to the contrary. She stated that she only visited the Nighsonger residence occasionally.

Sherry moved out of her parents’ home in June or July of 1978 and in August of that year she married Dennis Snow. It was Sherry’s testimony that she left Carrie with her parents until she and her husband were better situated financially.

In May of 1979 Sherry and her husband moved into a two-bedroom trailer. The Henkins refused to return Carrie to her mother because they did not believe that she and her husband were financially able to care for her. At this time Dennis Snow was earning from $150 to $165 per week. For a portion of the time the trailer was without heat or electricity.

In November 1979, Carrie, while visiting her mother, suffered a severe burn on her leg when a coffee pot was accidentally overturned. As the result of this injury Carrie underwent two skin graft operations. Sherry testified that no more skin graft operations would be needed, while her grandfather testified that he believed more would be needed, but Carrie’s doctor would not make that decision for another six months. The pertinence of this testimony concerns medical insurance coverage. The grandfather, Henkins, is a longtime employee of Caterpillar Tractor Company, and Carrie is covered by his extensive medical policy with that company.

In July of 1981 Dennis Show was charged with driving while intoxicated. A friend, George Pelphrey, posted bail and offered Dennis a job at his bait and tackle business if Dennis would stop drinking. According to Sherry, Dennis and the Pelphrey’s, Dennis did stop drinking, is employed by Pelphrey and is earning $150 per week take home pay. Shortly before the custody hearing Sherry and Dennis moved into a residence with the Pelphrey’s where with Carrie they were to have the use of two bedrooms and were to share the use of the kitchen and living room. The Pelphrey’s have four children.

The facts when analyzed disclose that when Sherry married Dennis Snow she voluntarily left Carrie with the Henkins for a period in excess of two years. The custody action was prompted when Sherry removed Carrie from school near the end of a school term and without prior notification to the Henkins.

The record further establishes that there has been occasional domestic violence between Sherry and Dennis and that Dennis Snow has failed to support children of his from a prior marriage.

This action was commenced when the grandfather sought to obtain the return of Carrie by petitioning the court for a writ of habeas corpus. The court ordered the writ to issue and later entered a temporary custody order placing Carrie with her grandparents. Dennis and Sherry obtained the services of an attorney from legal aid and filed a counterpetition for child custody and a response to the petition for writ of habeas corpus. As previously set forth, the custody of Carrie was awarded to the maternal grandfather, Kenneth Henkins.

The Snow’s first assign as reversible error that the trial court failed to use the proper standard in determining the right to custody of the minor child.

It is the contention of the Snow’s that the superior-right doctrine should have been applied, the effect of which is to recognize that there is a presumption that a natural parent has a superior right to custody of a child over the claim of a third party. In support of this agreement the Snow’s cite the case of In re Custody of Townsend (1981), 86 Ill. 2d 502, 427 N.E.2d 1231. The facts in Townsend are too bizarre to be in any way equated with the facts in the instant case. In Townsend the natural father prevailed in a custody dispute with the stepdaughter of the child’s mother. The mother had been convicted of murdering the wife of the natural father. The reviewing court in Townsend did give lip service to but not full blessing to the superior right doctrine relied on by the Snow’s in the instant case. In Townsend the court stated:

“In child-custody disputes it is an accepted presumption that the right or interest of a natural parent in the care, custody ánd control of a child is superior to the claim of a third person. The presumption is not absolute and serves only as one of several factors used by courts in resolving the ultimately controlling question of where the best interests of the child lie. (See People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201; [citations].)” 86 Ill. 2d 502, 508, 427 N.E.2d 1231, 1234.

We note that the case of Townsend cites the case of People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417. In Livingston our supreme court in a habeas corpus proceeding instituted by a natural father held that the natural father was not upon the death of natural mother entitled to custody as against maternal grandfather with whom the minor child had been living for 11 years. The supreme court held that to be determined is what is in the best interests of the child. In Livingston the court stated:

“The best interest of the child is the standard and it is not necessary that the natural parent be found unfit or be found to have legally forfeited his rights to custody, if it is in the best interest of the child that he be placed in the custody of someone other than the natural parent. See Giacopelli v. The Florence Crittenton Home, 16 Ill. 2d 556; 67 C.J.S. Parent and Child sec. 11; 27 Am. Jur., Infants sec. 108; and also see Halstead v. Halstead, 259 Iowa 526, 144 N.W.2d 861.
Again, in Giacopelli at page 565 we stated: ‘The parent need not be shown to be totally unfit to rear the child in order to deny to him the custody of the child. Fitness of the parent is only one of the factors to be considered in determining how the best interest of the child may be served. The sufficiency of the parents’ home, its surroundings, and all other matters that have a bearing upon the welfare of the child are to be considered. (People v. Weeks, 288 Ill. App. 262.) The parents’ natural rights must give way to the welfare and best interest of the child.’ ” 42 Ill. 2d 201, 209, 247 N.E.2d 417, 421.

This court has recognized and followed “the best interest rule.” (See Look v. Look (1974), 21 Ill. App. 3d 454, 315 N.E.2d 623, Barclay v. Barclay (1978), 66 Ill. App. 3d 1028, 384 N.E.2d 564.) In the case of Look this court made the following observation:

“In proceedings affecting the custody of a child, the primary consideration is the present and prospective welfare of the child, or, as otherwise stated, the best interests of the child. Naturally, no hard-and-fast rule can be laid down as to what will best serve the welfare and interests of a child. Each case must be determined according to its own circumstances and the question rests largely in the sound discretion of the trial court. When the people having the actual custody of the child at the time a change is sought have properly provided and supervised its needs for a substantial period of time and the child has become attached to the environment and to the grandparents who have made possible the happiness, security and comfort of its early years, a court is not justified in transferring that custody to another, except for the most cogent reasons. When people, through the goodness of their hearts, take a child into their home and lavish on it their affection and care, they are entitled to much consideration in an action involving the custody of such child. Jarrett v. Jarrett, 348 Ill. App. 1, aff’d 415 Ill. 126.” 21 Ill. App. 3d 454, 457-58, 315 N.E.2d 623, 625-26.

We set forth the foregoing language from the case of Look since the same is applicable to the situation presented in the instant case. Carrie, the minor child, was six years of age when the custody hearing was held by the trial court. The Henkins provided the care for Carrie throughout this six-year period. They provided for the needs of the child including extensive medical care. We cannot conclude that Carrie would have an environment of stability and security such as she has enjoyed with her grandparents. The trial court determined that the best interests of Carrie would be served by permitting her to remain with her grandparents, and the record in this case does not provide compelling reasons why the trial court’s determination should not be upheld.

Having reached this determination, it is not necessary that other issues raised in this appeal be considered.

For the reasons set forth the judgment of the circuit court of Marshall County is affirmed.

Affirmed.

ALLOY, J., concurs.

JUSTICE BARRY,

dissenting:

I would reverse the judgment of the trial court and remand this cause for a further hearing as to the present circumstances of the parties who are seeking custody of Carrie Ann Henkins.

According to the statement of the trial court at the hearing on the post-trial motion, the court found that the “weight of the evidence was for the best interest of the child to remain with the grandparent.” This statement does not indicate that the court gave any consideration or recognition to the presumption that a parent has a superior right to custody as against a third party. Although admittedly the presumption is not a conclusive one, the third party seeking to obtain or to retain custody must show that the best interest of the child requires custody to be awarded to the third party. (In re Custody of Townsend (1981), 86 Ill. 2d 502, 510-11, 427 N.E.2d 1231, 1235-36.) In my opinion, the fact that the circumstances in Townsend were “bizarre,” as the majority characterizes them, does not invalidate the principles of law used by the Supreme Court of Illinois to decide that case.

The Townsend court, as the majority notes, relied upon People ex rel. Edwards v. Livingston (1969), 42 Ill. 2d 201, 247 N.E.2d 417, where the question before the court was whether the natural father could be denied custody without a finding that he was unfit. In that case the parents had been divorced, the mother had had custody for nine years, the father had not seen his son for 11 years though he lived within 30 miles, the mother had died, and the father brought habeas corpus against the maternal grandfather. An important statement of law contained in the Livingston decision is:

“In Giacopelli v. The Florence Crittenton Home, 16 Ill. 2d 556, we stated at 565: ‘It is always recognized that a natural parent has a superior right to the custody of his child.’ ” 42 Ill. 2d 201, 209, 247 N.E.2d 421.

This court has followed the same legal principle many times. For example, in In re Ross (1975), 29 Ill. App. 3d 157, 168, 329 N.E.2d 333, 341, Justice Jay Alloy stated:

“In Illinois, a natural parent has superior claim to the custody of his children, but that claim may be overcome in certain circumstances by a showing that the best interests of the child require custody in some other party. [Citations.] This does not mean that children can generally be taken away from their parents by simply making a showing that the children would be better off elsewhere.” (Emphasis added.) Accord, In re Ice (1976), 35 Ill. App. 3d 783, 786, 342 N.E.2d 460, 462.

As I have indicated previously in cases involving attempts to terminate parental rights, “By someone’s standards, it is always possible to find a better home for a child than the one Providence has bestowed. For that reason alone, natural relationships are protected by law unless the unfitness of the parents is demonstrated by clear and convincing proof.” (In re Hrusosky (1976), 39 Ill. App. 3d 954, 960-61, 351 N.E.2d 386, 391 (Barry, J., dissenting). See also In re Adoption of Smith (1976), 38 Ill. App. 3d 217, 227, 347 N.E.2d 292, 300-01.) The same public policy should govern the courts in cases of custody disputes involving natural parents against third parties. Courts should recognize the superior right of the natural parent by giving 'effect to the presumption that the best interest of the child is with the parent as against third parties, thereby requiring the third party to overcome that presumption in order to prevail.

I would construe Townsend as authoritatively clarifying how the superior right of the natural parents affects the burden of proof in cases where third parties contest a natural parent’s right to custody of a child. It seems clear to me that the trial court in the case before us did not consider the grandfather’s burden of overcoming the legal presumption that the best interest of Carrie was with her mother. Such an error of law should require a reversal and a remandment.

A reversal is also required because the evidence was inadequate to demonstrate that the best interest of the child was with the grandfather. I have carefully reviewed the transcript of testimony before the trial court. The only evidence relating to the care the grandparents can provide was that the grandfather has medical insurance and that both grandparents have steady employment. There is no evidence describing conditions in the grandfather’s home — it is not clear who lives in that home, who cares for Carrie when both grandparents are at work, what activities Carrie participates in, how she performs in school — and there is no evidence as to the age or health of the grandparents.

There is undisputed evidence that the first four years of Carrie’s life, both she and the mother lived with the grandparents and that the mother cared for her except for four or five times when the mother left the home for short periods of time. It is only during the past two years that the mother has not had daily care of Carrie, and during that time she has had frequent visitation. I would find the evidence insufficient to establish that the best interest of the child is with the grandparents, even without invoking the presumption in favor of the mother.

The majority opinion relies upon Barclay v. Barclay (1978), 66 Ill. App. 3d 1028, 384 N.E.2d 564, and Look v. Look (1974), 21 Ill. App. 3d 454, 315 N.E.2d 623, two cases where the best interest of the child was found to be to reside with the grandparents as opposed to a natural parent. In both cases, the natural parent had left the child with the grandparents for substantial periods of time (four years and five years, respectively) before requesting a return of custody to the parent. Those cases recognize that in such situations a parent may be chargeable with laches or forfeiture, but such was not the case here where the mother requested custody of Carrie within 10 or 12 months after she left her parents home to marry. Her attempts to regain custody were thwarted by the grandparents, and then she took the action which led to this suit. The fact that the mother agreed to let Carrie stay with the grandparents when the mother first married should not foreclose her later assertion of her parental rights. See In re Custody of Roberts (1982), 107 Ill. App. 3d 913, 918, 438 N.E.2d 658, 662.

In summary, I believe the trial court erred as to the burden of proof in this case, and in any event, the evidence was insufficient to establish that the best interest of the child required custody with the grandparents. I, therefore, dissent.