author: JUSTICE VAN DEUSEN

text:
      In re SHERRIE MEYER.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. SHERRIE MEYER, Respondent-Appellant.)—In re DONALD WALL.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. DONALD WALL, Respondent-Appellant.)
    Second District
    Nos. 81-766, 81-767 cons.
    Opinion filed July 14, 1982.
    Gerard Brost and Linda S. Ganski, both of Guardianship & Advocacy Commission, of Springfield, and Fred Firestone, of Guardianship & Advocacy Commission, of Alton, for appellants.
    Tyrone C. Fahner, Attorney General, of Chicago, and Eugene Stockton, State’s Attorney, of Dixon (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

In these consolidated cases, each respondent appeals from an order finding her or him in need of involuntary commitment. The respondents also contend that the trial court erred in entering an order which required the Illinois Guardianship and Advocacy Commission to pay for the respondents’ transcripts.

Both respondents, Donald Wall and Sherrie Meyer, have been long-term residents of the Dixon Developmental Center. Mr. Wall has been a voluntary patient of the center for more that 40 years. Ms. Meyer has been a voluntary patient for more than 15 years.

Mr. Wall is mildly retarded and suffers from numerous physical and psychological disorders. Sometime prior to 1981, he started exhibiting aggressive behavior against the staff and other clients at the center. Because of this behavioral problem, a determination was made to obtain a status of involuntary admission for Mr. Wall.

Sherrie Meyer is also mildly retarded and suffers from other physical and developmental disabilities. In recent years she has become aggressive and self-injurious. Ms. Meyer presently has no appointed guardian. In light of her aggressive and self-destructive behavior, a petition seeking her involuntary admission to the Department of Mental Health was filed.

On August 5, 1981, hearings were held on the petitions, and both parties were found to be subject to involuntary admission. At both of the hearings, there was sufficient evidence to establish that the respondents were mentally retarded and that they were likely to injure themselves and others. It was also established that the change in status from a voluntary admittee to an involuntary committee would not change or alter the treatment given to the respondents. It would merely curtail the respondents’ right to seek discharge under section 4 — 306(a) of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 91½, par. 4 — 306(a)).

Petitions for rehearing were filed and were denied. Timely notices of appeal were filed. At that time, the respondents requested appointment of an attorney on appeal. On October 8, 1981, the trial court entered an order appointing the Illinois Guardianship and Advocacy Commission to represent the respondents. The court also entered an order requiring the Illinois Guardianship and Advocacy Commission to be responsible for the cost of the transcripts on appeal.

Neither respondent challenges the evidence presented at the trials. There is no contention that the respondents are not mentally retarded, nor is there a contention that the respondents are not dangerous to themselves or others. Rather, it is urged that absent a patient’s request to leave the hospital, the change of status from voluntary to involuntary patient through involuntary commitment proceedings is not authorized by statute and violates the patient’s right to due process of law.

Section 4 — 306(a) of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 91½, par. 4 — 306(a)), dealing with procedures for the commitment of a voluntary patient, provides as follows:

“A client 18 years of age or over, who is not under guardianship, shall be allowed to be discharged from the facility at the earliest appropriate time, not to exceed 5 days, excluding Saturdays, Sundays and holidays, after he submits a written objection to the facility director, * * * unless within the 5 day period a petition and certificate conforming to the requirements of Section 4 — 501 are filed with the court. Upon receipt of the petition, the court shall order a hearing to be held within 5 days, excluding Saturdays, Sundays and holidays, and to be conducted pursuant to Article VI of this Chapter. Admission of a client may continue pending further order of the court.”

The respondents argue that prior to the filing of the written objection, this language guarantees their right to seek a discharge and insulates them from a petition seeking involuntary commitment. The respondents cite two cases in support of their position: In re Clement (1975), 34 Ill. App. 3d 574, and People v. Hill (1979), 72 Ill. App. 3d 638.

In both cases, the court held that a patient who voluntarily commits himself is afforded certain rights by statute. One of those is the “unqualified right to request to leave a Department facility at any time.” (People v. Hill (1979), 72 Ill. App. 3d 638, 640-41; In re Clement (1975), 34 Ill. App. 3d 574, 577.) In both cases, the court held that section 5 — 3 of the Mental Health Code (Ill. Rev. Stat. 1975, ch. 91½, par. 5 — 3) mandated that the respondents cannot be subject to involuntary commitment proceedings until the respondent gave statutory notice of his or her desire to leave the facility. People v. Hill (1979), 72 Ill. App. 3d 638, 641.

The facts in Clement are similar to the facts in the instant cases. In Clement the respondent was voluntarily admitted on January 21, 1975. Thereafter, his condition deteriorated. He had to be placed in restraints almost daily, and he physically assaulted other patients and staff. In April of 1975, a clinical review committee met to consider Clement’s case. The committee noted that respondent was a voluntary patient, and although it was unlikely he would request to sign a five-day notice, it was possible. Therefore, there was a decision to file a petition for involuntary commitment. Prior to a hearing on the petition, respondent’s counsel filed a motion to dismiss the petition on the basis that respondent was a voluntary patient. The court denied the motion, finding that there was no reason to dismiss an involuntary commitment petition merely because a person was presently in a hospital on a voluntary basis. After the hearing the trial court found the respondent to be in need of mental treatment and ordered that he be hospitalized by the Department of Mental Health in the Chester Mental Health Center.

In reversing this order of the trial court, the appellate court recognized that even though the evidence overwhelmingly indicated that respondent’s condition deteriorated severely after he entered the hospital as a voluntary patient, his status as a voluntary patient could not be changed without compliance with the statute. The court determined that section 5 — 3 of the Mental Health Code was the only provision of the Code which specifies the procedure for the commitment of a voluntary patient. The court stated that the language of that section is “clear, unambiguous, and mandatory, and only becomes operative when a voluntary patient requests that he leave the hospital.” In re Clement (1975), 34 Ill. App. 3d 574, 576.

While Clement can be distinguished from the case at bar in that Clement was decided under section 5 — 3 of the former Mental Health Code (Ill. Rev. Stat. 1975, ch. 91½, par. 5 — 3), and the instant cases were decided under section 4 — 306(a) of the new Mental Health and Developmental Disabilities Code, the provisions of the two sections are virtually the same. The legislature is presumed to have been aware of judicial construction of section 5 — 3 when enacting the new section 4 — 306(a). (Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 513.) The virtual re-enactment of a statute which has been judicially construed is an adoption of the construction, unless a contrary intent is evident. (Union Electric Co. v. Illinois Commerce Com. (1979), 77 Ill. 2d 364, 380; Stryker v. State Farm Mutual Automobile Insurance Co. (1978), 74 Ill. 2d 507, 513.) Because no contrary intent is discernible it is assumed that the legislature intended for the new section 4 — 306(a) to have the same effect and construction as section 5 — 3.

In addition we note that in Clement, the appellate court found support for its position in the provisions of section 5 — 2 of the Mental Health Code (Ill. Rev. Stat. 1975, ch. 91½, par. 5 — 2). These provisions were substantially readopted in section 4 — 303 of the Mental Health and Developmental Disability Code (Ill. Rev. Stat. 1981, ch. 91½, par. 4 — 303). Both section 4 — 303 of the present mental health code and section 5 — 2 of its predecessor require that at the time of an application for voluntary admission, the applicant be advised in simple language of his right to be discharged at any time unless within 5 days of the request to leave, a petition for involuntary commitment is filed. We agree with Clement, such language suggests that the voluntary patient’s right to leave is “the focal point of his voluntary status.” In re Clement (1975), 34 Ill. App. 3d 574, 577.

Moreover, the State seems to concede that the similarity of these two provisions seems to preclude such a distinction. The State’s main contention is that Hill and Clement did not properly interpret the code.

The State asserts that section 4 — 501 of the code (Ill. Rev. Stat. 1981, ch. 91½, par. 4 — 501), contains no limitations on the persons subject to commitment, but rather gives broad authority in seeking judicial admissions. It is argued that because there is no logical reason why a patient should not be subject to having their voluntary commitment status changed to involuntary, section 4 — 306(a) should not be interpreted to limit that authority. We note, however, that there are several logical reasons to allow section 4 — 306(a) to limit the authority of section 4 — 501. One reason would be to encourage voluntary commitment cases. It appears that under the provisions of the code, in exchange for seeking voluntary commitment, a person is granted protection from the stigma of involuntary commitment proceedings until that person gives a written notice of intent to leave. People v. Hill (1979), 72 Ill. App. 3d 638, 642.

It is also contended that the State’s interest in protecting society from the potentially dangerous voluntary admittee outweighs the interest of encouraging voluntary admission. Initially, it should be noted that from the evidence at trial it appears.that there is no difference in the treatment and confinement of an involuntary committee and the treatment and confinement of a voluntary admittee. Thus, during the period of hospitalization, society is just as protected from a voluntary admittee as it is from an involuntary committee. The sole distinction between voluntary admission and involuntary commitment is that a voluntary admittee can seek discharge pursuant to section 4 — 306(a). From the language of that section, it appears that any problems suggested by the State concerning the easy availability of a discharge could easily be obviated by commencing an involuntary commitment proceeding during the five-day period within which the State can file an involuntary commitment petition. There appears to be no reason why a person who has voluntarily admitted himself into a hospital should unnecessarily be given the stigma of involuntary commitment.

We conclude that the logic and language of Clement are still controlling. Absent a notice of intent to leave, the State has no authority to bring an involuntary commitment petition against the person who is already voluntarily hospitalized.

The orders of the circuit court of Lee County granting the petition for involuntary admission of Donald Wall and Sherrie Meyer are reversed.

It is also contended on appeal that the trial court erred in ordering the Guardianship and Advocacy Commission, the respondents’ court-appointed attorneys, to pay for respondents’ transcripts.

Initially it should be noted that both the respondents and the State agree that pursuant to section 4 — 613(b) of the Mental Health and Developmental Disabilities Code (Ill. Rev. Stat. 1981, ch. 91½, par. 4 — 613(b)) respondents are entitled to free transcripts. Section 4 — 615(b) of the Code further provides as follows:

“The court may assess costs of the proceedings against the parties. If the respondent is not a resident of the county in which the hearing is held and the party against whom the court could otherwise assess costs has insufficient funds to pay the cost, the court may enter an order upon the State to pay the costs of the proceedings, from funds appropriated by the General Assembly for that purpose.” Ill. Rev. Stat. 1981, ch. 91½, par. 4 — 615(b).

It appears that pursuant to this section, the trial court assessed the costs of the transcripts against the Guardianship and Advocacy Commission.

The primary issue raised by respondents is not whether section 615(b) is applicable, but whether the court had authority under this section to charge the Guardianship and Advocacy Commission merely because it was a State agency appointed to represent the respondents. On this issue, it seems that both the parties agree that the Guardianship and Advocacy Commission should not be the party responsible for the costs of the transcripts. Because there was no showing that any State funds had been appropriated and allocated to the agency for this purpose, we agree. We, therefore, reverse the order of the trial court ordering the Guardianship and Advocacy Commission to be responsible for paying the court reporter for respondents’ transcripts.

We remand the matter for a new hearing to determine the proper person or authority to be ordered to pay the costs of the transcripts. Since there may be a conflict between the interests of the County of Lee and the State, the State’s Attorney is not in a position to represent both the State and the county. We, therefore, direct the petitioner to give notice to the Attorney General, as the attorney for the State, of the purpose, place and time of the hearing.

Reversed in part; reversed and remanded in part.

LINDBERG and REINHARD, JJ„ concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE KARNS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARTIN C. FITZPATRICK, Defendant-Appellant.
    Fifth District
    No. 81-229
    Opinion filed July 14, 1982.

      Randy E. Blue and Daniel M. Kirwan, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Martin N. Ashley, of State’s Attorneys Appellate Service Commission, and Robert C. Cook, research assistant, of counsel), for the People.
   PRESIDING JUSTICE KARNS

delivered the opinion of the court:

Following a bench trial in the circuit court of St. Clair County, defendant, Martin C. Fitzpatrick, was convicted of the offense of burglary. He was sentenced to a term of three years’ imprisonment. Defendant’s sole contention on appeal is that the trial court erred in denying his motion to suppress his statement because it was obtained as a result of an illegal arrest.

At trial, defendant entered into a stipulation with the State as to what the State’s evidence would be. On November 17, 1980, about $1,033 in business receipts were taken from Charles Beyersdorfer’s truck which was parked behind his bakery located in the City of Fairview Heights, Illinois. Over objection of defendant, his written statement taken at the police station on December 15, 1980, in which defendant stated that he committed the offense, was admitted into evidence. Included in the stipulation was the transcript of the hearing on defendant’s motion to suppress the statement.

The evidence at the suppression hearing shows that on December 15, 1980, at about 10 a.m., defendant, while walking along a street in Fairview Heights was stopped by Officer Patrick Prindable of the Fairview Heights Police Department. After learning defendant’s name, Prindable asked defendant to accompany him to the police station because the detectives wanted to question him. Prindable did not explain why defendant was being investigated.

Defendant testified that he did not respond when Prindable asked him to come to the station. He further testified that while Prindable was questioning him, four additional officers arrived in two squad cars. Defendant stated that Prindable grabbed his arm and forced him into the back seat of the squad car. Defendant also stated that he felt he could not refuse to go to the station.

According to Prindable, defendant agreed to come to the police station. Prindable denied that he forced defendant into the squad car. Although Prindable noticed several police cars in the vicinity, he did not recall if any of them stopped at the scene. Prindable testified that he did not intend to arrest defendant at that time. He further stated that he would not have forced defendant to accompany him if defendant had refused his request. It was undisputed that defendant was not told he was under arrest or not under arrest. Also, defendant was not told that he need not accompany the officer to the police station.

After being transported to the police station, defendant was placed in an interview room. He was not handcuffed, fingerprinted or photographed. Shortly thereafter, defendant was taken to Detective Dale Fredeking’s office where he was given and waived his Miranda rights. Fredeking then told defendant that he thought defendant had committed the burglary of Beyersdorfer’s truck. During the interrogation, which lasted about one hour, defendant orally admitted that he took the money from the truck. Fredeking then transcribed defendant’s statement and advised him that he was under arrest.

The State conceded that the police officers had no probable cause to arrest defendant prior to his making the incriminating statement. Based on information received through an anonymous tip, Fredeking had instructed the officers of the department that the investigation division wanted to question defendant.

In denying the motion to suppress, the trial court found that defendant was free to leave the police station prior to giving his statement and that defendant was asked, not ordered, to accompany the officer to the police station. The trial court concluded, therefore, that defendant was not involuntarily detained or arrested until after he had made the statement.

On appeal, defendant argues that the trial court’s findings are against the manifest weight of the evidence. The State replies that the trial court properly weighed the testimony and credibility of the witnesses. For the purpose of reviewing the issue presented on this appeal, we will accept as true the trial court’s factual findings. Nonetheless, we hold that the conclusion reached by the trial court was erroneous.

The issue raised here was addressed recently by the supreme court in People v. Townes (1982), 91 Ill. 2d 32, 435 N.E.2d 103. In Townes, the police compiled a list of possible rape suspects on the basis of their knowledge of local residents with criminal records and the complainant’s vague description of her assailant. The defendant’s name was included on the list. Two police officers visited defendant at his home and told him that they wanted to question him at the police station concerning an assault on a woman. The defendant was given the choice of accompanying the officers in their squad car or driving his car to the station; he chose to ride with the officers. After arriving at the station, an officer read to defendant the Miranda warnings and then the police conducted a series of interviews with defendant for a period of more than 12 hours. The Miranda warnings were read to defendant prior to each interview. During the final interview, the defendant made the incriminating statements that were introduced at trial; thereafter, he was formally charged.

In affirming the appellate court’s reversal of defendant’s conviction, the supreme court held that the defendant’s fourth amendment rights were violated when, without probable cause, the police subjected him to a lengthy interrogation at the police station. The supreme court in Townes, citing Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248, reasoned that the defendant’s detention resembled a traditional arrest, and a reasonable person would not have believed that he was free to leave. The court noted that, as in Dunaway, the defendant was never told that he was not under arrest or that he was free to refuse to accompany the officers. The court further stated that, as in Dunaway, the circumstances in Townes indicated that the police were interrogating the defendant in an attempt to obtain information sufficient to establish the probable cause necessary for an arrest.

We are of the opinion that Townes is dispositive of the instant appeal. As in Townes, defendant was not told that he was not under arrest or that he was free to leave. Although the trial court found that defendant was free to leave, the significant factor is the absence of any communications by the police officer to the defendant. Officer Prindable disclaimed any intention of arresting defendant and stated that he would not have arrested defendant if he had refused to accompany him. The officer’s intentions, however, were never communicated to the defendant.

Further, as in Townes, the circumstances here indicated that the police interrogated defendant in the hope of obtaining sufficient information to establish probable cause for an arrest. It was conceded that the police lacked probable cause to arrest defendant. The investigation was focused on defendant as a result of information received through an anonymous tip. During the interview, Detective Fredeking told defendant that he thought defendant had committed the offense. Therefore, the seizure of defendant appears to have been improperly an “ ‘expedition for evidence.’ ” Dunaway v. New York (1979), 442 U.S. 200, 218, 60 L. Ed. 2d 824, 839, 99 S. Ct. 2248, 2259.

We note that the trial court found as significant to its denial of the motion to suppress the fact that defendant was asked, not ordered, to accompany the officer to the police station. This factor, however, does not distinguish the instant case from Townes. In Townes, the defendant was told that the police wanted to question him at the station and he was given the choice of driving with the officers or driving his own car. The court in Townes did not attach significance to whether the officers initially requested or ordered defendant to accompany them. It was the totality of the circumstances that indicated that the detention of the defendant in Townes resembled a traditional arrest. Similarly, the circumstances here indicate that the detention of defendant resembled a traditional arrest and that a reasonable person would not have felt free to refuse the officer’s request.

We hold that defendant’s fourth amendment rights were violated when, without probable cause, the police subjected him to questioning at the station. Because the defendant’s statements were a product of the unlawful detention, his motion to suppress should have been granted.

For the foregoing reasons, the judgment of the Circuit Court of St. Clair County is reversed.

Reversed.

KASSERMAN and HARRISON, JJ., concur.


author: JUSTICE JONES

text:
      In re MARRIAGE OF MARY SUSAN RUNDLE, Petitioner-Appellant, and RONNIE RAY RUNDLE, Respondent-Appellee.
    Fifth District
    No. 81-306
    Opinion filed July 14, 1982.

      George E. Ginos, of Hillsboro, for appellant.
    Michael B. White, of Hillsboro, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Petitioner, Mary Susan Rundle, appeals the judgment of the trial court, which dissolves the marriage of the parties, awards custody of the minor child to petitioner, requires respondent, Ronnie Ray Rundle, to pay $50 per week child support, disposes of the property of the parties, denies maintenance to either party and requires each party to pay his or her own attorney fees. Petitioner raises several issues, among them the correctness of the trial court’s reliance upon a chart or schedule in making the award of child support and his failure to hear evidence as to her living expenses. Petitioner also questions the denial of her requests for maintenance and attorney fees as well as the trial court’s finding that a mobile home together with approximately 3M acres upon which it is located is nonmarital property owned by respondent.

Petitioner maintains that the use of a chart or schedule to fix an award of child support, without the aid of evidence of her living expenses, violated section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 505(a)) (hereinafter the Act), which provides that the court may order payment of child support “after considering all relevant factors, including:

(1) the financial resources of the child;

(2) the financial resources and needs of the custodial parent;

(3) the standard of living the child would have enjoyed had the marriage not been dissolved;

(4) the physical and emotional condition of the child, and his educational needs; and

(5) the financial resources and needs of the noncustodial parent or parents.”

At the hearing on the property disposition the following exchange took place between petitioner’s attorney and the trial court:

“MR. GINOS [attorney for petitioner]: Your Honor, if I may ask you. You indicated earlier that the Court felt that $50.00 a week was, I don’t know if it was a rule of thumb or a decision in this case?

THE COURT: It’s like basically a rule of thumb, however at that time I thought they said $250.00 [as respondent’s earnings] a week.

MR. GINOS: Yes, sir, and I have not put any evidence on as to the monthly expenses of my client.

THE COURT: That is a hard rule of thumb. I have got a schedule I use and try to be consistent in all cases and it is just purely based on that income, it works out, came out to the same, within that range of $50.00 per week.”

Later the following colloquy was hád between Mr. Ginos and the court:

“MR. GINOS: Your Honor, I would, I believe I would like to have Mrs. Rundle testify to her expenses unless the Court feels that based on what your chart, however, and based on his income that her expenses really don’t make any difference?

THE COURT: I don’t want to preclude you from putting on, generally it would fall within a range based upon his income as far as child support is concerned. If there are any extraordinary expenses I would certainly want you to put that on.

MR. GINOS: Nothing other than ordinary living expenses and babysitter costs and that sort of thing, Your Honor.”

No evidence of petitioner’s living expenses was introduced. She contends that any attempt by her to put on such evidence in the face of the trial court’s expression of reliance upon a schedule would have been fruitless. In evidence was the amount of petitioner’s weekly income, $80, gleaned from mowing lawns and cleaning houses. Also in evidence was the amount of respondent’s net weekly income, about $265 or $270. However, no evidence of his expenses was introduced.

Respondent has included in his brief as “Exhibit X” a copy of a detailed, two-page chart or schedule labeled “Family Support Chart.” The chart includes the net income of the noncustodial parent and the number of children to be supported. Above one of the seven columns of the chart are the words, “Net Income for Week.” In that column the first figures listed are “$80-90” and the last are “591-600.” Fifty such salary ranges are listed between the first and last figures. Above the other six columns are the words “One” through “Six” respectively, referring to the number of children involved. At the top of the chart is what appears to be the means of defining net income for purposes of the chart; however, the copy is not a good one, and only some words such as “Income Tax,” “F.I.C.A.,” “Life Insurance” and “Union Dues” are adequately legible. In each of these columns on each line corresponding to salary appears a dollar figure.

Although our research has not disclosed any cases dealing with the use of a chart or schedule to determine an award of child support, we find the reasoning helpful in the cases of In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308, and In re Marriage of Cooper (1981), 102 Ill. App. 3d 872,430 N.E.2d 379, where in each case the award of child support was based upon a certain percentage of the noncustodial parent’s income. In Brophy the trial court had considered only the noncustodial parent’s spendable income, ordering a certain percentage of that amount to be paid as child support. To consider only the father’s income and to ignore the statutory language setting forth the factors to be considered in awarding child support was found on review to be an abuse of discretion, and the order for child support was not permitted to stand. In Cooper, although the record showed that there was before the trial court some évidence of both parties’ income and expenses, the reviewing court found the amount of the award not supported by the evidence, and because of the trial court’s reliance on the percentage formula, the judgment was reversed and the cause remanded for a new hearing.

As was said in Brophy, the amount of child support is to be determined by accommodating the needs of the child with the available means of the parents. Although the determination of the amount of child support lies within the sound discretion of the trial court, the amount of the award is to be determined by the facts and circumstances of each case. (Brophy.) While specific findings are not required, there must be some indication in the record that the trial court considered the factors listed in section 505(a). Brophy.

In Brophy there was “no indication that the court considered either the actual needs of the children or petitioner’s needs in making its determination.” (96 Ill. App. 3d 1108, 1115, 421 N.E.2d 1308, 1313.) So, too, in the case at bar there is no indication in the record that the trial court considered the needs of either the child or the custodial parent in making its determination. Indeed, there is evidence in the record that the trial court did not consider these needs. In the chart or schedule used here, the court considered the resources but not the needs of the noncustodial parent in contravention of the statutory requirement that the court consider “the financial resources and needs” of that parent. Use of this chart assures violation of the further requirement that the court must consider any financial resources of the child. Furthermore, to state the obvious, no chart can provide information as to the remaining factors a court is required to consider, namely, the standard of living the child would have enjoyed had the marriage not been dissolved and the physical and emotional condition of the child together with his educational needs. Although respondent lauds the trial court’s use of such schedules, encouraging their use “in the interest of judicial economy and consistency,” we are not so sanguine about them. Reliance upon a chart or schedule necessarily results in a court’s failure to consider all of the factors section 505(a) requires it to consider in making an award of child support. In short, following a chart precludes following the statute.

Because the amount of an award of child support must be determined by the facts of each case with respect to the needs of the child and the circumstances of the parents, it was error for the trial court to substitute a predetermined schedule for evidence of these needs and circumstances. A court relying upon this particular chart would, by virtue of the fact that it includes only the income of the noncustodial parent, award the same amount of child support whether the custodial parent’s weekly income was $80, as here, or $800. The ramifications of such an approach are obvious. A court cannot avoid the responsibility of fixing the amount of an award of child support by resorting to a chart in lieu of hearing evidence. The trial court’s indication that the schedule in question would be controlling, absent evidence of extraordinary living expenses on the part of petitioner, was necessarily intimidating to her insofar as putting on evidence of her living expenses was concerned, and the use of the schedule in lieu of such evidence contaminated the decision of the court as to the award of child support. Reliance upon the chart in making the • award of child support was an abuse of discretion by the trial court, and the judgment must be reversed and the cause remanded for a hearing on this issue.

We think that the decision as to maintenance and attorney fees was likewise contaminated by the failure of the trial court to hear evidence of petitioner’s living expenses. Section 504(a) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 504(a)) provides that a court may grant an order of maintenance for either spouse only if it finds that the spouse seeking maintenance lacks sufficient property “to provide for his reasonable needs * * *." To determine whether a spouse has sufficient property to meet his or her reasonable needs, the court must have knowledge of those needs. Thus, it was error for the trial court to fail to obtain knowledge of petitioner’s needs by means of hearing evidence of her living expenses prior to denying her request for maintenance. Similarly, section 508 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 508) provides that a court may order either spouse to pay a reasonable amount for his own costs and attorney fees and for the costs and attorney fees necessarily incurred by the other spouse “after considering the financial resources of the parties.” Surely no one would argue that in the making of such a determination financial resources may be considered meaningfully without reference to the expenses those resources must cover. The awarding of attorney fees lies within the sound discretion of the trial court and will not be reversed on review unless the trial court has plainly abused its discretion. (In re Marriage of Gardner (1980), 85 Ill. App. 3d 1004, 407 N.E.2d 802.) We think that the trial court’s denial of petitioner’s request for attorney fees without hearing evidence of her needs as well as her income constituted an abuse of discretion. Consequently, the cause must be remanded for a new hearing on the issues of petitioner’s requests for both maintenance and attorney fees.

With respect to the finding that the mobile home and the lots comprising the 3/2 acres were nonmarital property, at the hearing respondent testified that he had acquired the lots in question by gift in 1974. The land had belonged to respondent’s grandfather. Upon his death respondent’s mother acquired it and subsequently gave it to respondent. Also in 1974, apparently with his first wife, respondent purchased the mobile home located on the property. In July of 1977 petitioner and respondent were married. During the course of the marriage they resided in the mobile home. In November of 1977 respondent executed a quitclaim deed to the property, conveying it to petitioner and himself in joint tenancy. Respondent testified as to the circumstances under which he conveyed the property to petitioner and himself as follows:

“A. Well, she kept saying that I should have her name on the land, that she should have her name on everything and repeated times she said that. And after a while it got to be an issue, every time it come [sic] up we got in a big argument. So, finally after all these times of wanting her name and things I finally gave in and said I will put your name on the land.

Q. [Attorney for respondent]: She didn’t pay you anything for it?

A. No.

Q. You didn’t intend to give her anything, did you?

A. No.

Q. You deeded the land to her to quiet her down, these complaints that she had?

A. Yes.”

As to the circumstances of the conveyance petitioner testified that at the time she was pregnant and that she and respondent, having decided the trailer was too small for their growing family, were thinking of building a house. She testified that she had asked respondent “on numerous occasions” to place the property in both their names “[b]ecause his first wifes [sic] name was on everything” and his first wife had “signed a quitclaim deed to the land when they got divorced, but her name was on everything else,” including the title to the trailer. The wheels of the trailer have been removed, and the trailer, which has cement steps, is on blocks and a “cement pad.” At the time of the hearing the mobile home was not yet paid for. The trial court found the property nonmarital property owned by respondent but “that during the marriage of the parties, payments were made on the mortgage on the property and the equity accrued thereby is marital property.”

Petitioner relies in her brief upon In re Marriage of Rogers (1981), 85 Ill. 2d 217, 222-23,422 N.E.2d 635, 638, where the supreme court stated in determining whether the husband should have been assigned an interest in the jointly held marital residence equal to the amount of nonmarital funds he had provided for its purchase:

“The new act incorporates a partnership theory of marriage. [Citations.] The Act does not purport, however, to change the law regarding interspousal transfers of property owned individually. It does not indicate, by implication or otherwise, any dissatisfaction with prior cases in which the intention of a spouse conveying property was ascertained. It may be anachronistic now to refer to an intent to convey a gift to the other spouse, but it is not improper to refer to an intent to convey a gift to the marriage. Therefore, a marital residence owned by both spouses, even if one spouse has furnished all of the consideration for it out of nonmarital funds, will be presumed ‘in fact’ as marital property, absent convincing rebutting evidence. [Citations.]”

Petitioner urges that “no convincing evidence was presented in this case to rebut the presumption.” Respondent argues that “the evidence presented regarding a lack of donative intent and the failure of Mrs. Rundle to realize any intention of a gift is sufficient to rebut the presumption.” We notice that Rogers was filed after the trial court had ruled that the mobile home together with the lots on which it was located was nonmarital property and after the trial court had denied petitioner’s motion to reconsider. Although the trial court did not indicate in the record that he was following In re Marriage of Dietz (1979), 76 Ill. App. 3d 1029, 395 N.E.2d 762, and In re Marriage of Preston (1980), 81 Ill. App. 3d 672, 402 N.E.2d 332, his ruling is consistent with the decisions in these two cases, made by us prior to the decision by the supreme court in Rogers holding to the contrary. Since we are remanding the cause on other grounds, we think that in the interest of uniformity and consistency Rogers should be followed. We agree with petitioner that respondent failed to rebut with convincing evidence the presumption that the land as improved with the mobile home is marital property. Therefore the mobile home and lots must be deemed to be marital property, and upon remand disposition should be made accordingly. In order to assure distribution in “just proportions,” as mandated by section 503(c) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)), the trial court should upon remand review all inter-related property and support awards. See In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 425 N.E.2d 1146.

For the foregoing reasons we affirm the judgment of the trial court, insofar as it declares the marriage dissolved and awards custody of the minor child to petitioner, but we reverse those parts of the judgment concerning (1) the disposition of the parties’ property, (2) the amount of the award of child support, (3) the denial of petitioner’s request for maintenance and (4) the denial of her request for attorney fees, and we remand for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

HARRISON and KASSERMAN, JJ., concur.


author: JUSTICE HARRISON

text:
    JOHN S. GOIN et al., Plaintiffs-Appellees, v. EDITH EATER et al., Defendants-Appellants.—(OLD BEN COAL COMPANY, Defendant-Appellee.)
    Fifth District
    No. 81-561
    Opinion filed July 14, 1982.

      Elmer Jenkins, of Benton, for appellants.
    Vance I. Kepley, of Reno, O’Byrne & Kepley, of Champaign, for appellees John S. Goin and Shirley V. Goin.
    Van Winkle & Van Winkle, of McLeansboro, for appellees Marshall Hamilton and Virginia L. Hamilton.
   JUSTICE HARRISON

delivered the opinion of the court:

The defendants, Edith Eater, Pauline Ellis, Irene Lynn and Thomas Morían, appeal from a final judgment of the circuit court of Hamilton County, which, pursuant to a complaint for declaratory relief, determined that the plaintiffs, John S. Goin, Shirley Goin, Marshall Hamilton and Virginia Hamilton, were the owners of the mineral interests in certain parcels of land. This appeal presents two issues for review. First, the defendants contend that the trial court erred in construing a deed containing the words “formerly reserved” to limit the exception of coal, oil, gas and other minerals to the life estate which was outstanding at the time of the conveyances in question. Second, the defendants contend that the trial court erred in refusing to apply the doctrine of laches to this controversy. We affirm.

Plaintiffs Goin instituted this declaratory judgment action against the defendants. Plaintiffs Hamilton were subsequently allowed to intervene in the action. The evidence introduced at trial consisted largely of certified copies of the conveyances at issue in this action. These revealed that on August 13, 1941, Nancy E. Hart conveyed the entire property in question to the defendants’ parents, Thomas P. Morían and Eunice B. Morían, as joint tenants. On January 24,1942, the Morlans reconveyed to Hart an undivided one-half interest in all the oil, gas, and other minerals in the tract. The conveyance provided that, at Hart’s death, her interest would revert to the Morlans or their assigns. Thomas Morían died on August 15, 1957. On March 24, 1958, Eunice Morían conveyed the property to Herman R. Brechtefeld and Helen I. Brechtefeld as joint tenants by a warranty deed describing the real estate as

“[t]he Northwest Quarter (NW 1/4) of the Northeast Quarter (NE 1/4) of Section Sixteen (16), Township Four (4) South Range Five (5) East of the Third Principal Meridian, except One Hundred Fifty (150) feet for Roadbed now occupied by the Louisville and Nashville Railroad, and except, the Right-of-way of State Highway Route #142, as recorded in Deed Record 113 at page 378 in the Office of the Recorder of Hamilton County, Illinois; and except, all the coal, oil, gas and other minerals formerly reserved # °

Herman Brechtefeld died on July 24, 1964. Nancy E. Hart remarried and then died on January 15, 1965.

On March 11, 1969, Helen Brechtefeld conveyed to John S. Goin and Shirley V. Goin as joint tenants “that part of the Northwest Quarter (NW 1/4) of the Northeast Quarter (NE 1/4) of Section 16 in Township 4 South, Range 5, East of the Third Principal Meridian, lying North and East of the Louisville and Nashville Railroad, except 150 feet for Roadbed now occupied by Louisville and Nashville Railroad, and except Right of S.B.I. Route 142, now U.S. Route 460, containing 19.2 acres. Subject to any prior reservations and conveyances of coal, oil, gas and other minerals.”

On July 1,1971, Helen Brechtefeld conveyed the rest of the property in question to LaVerne Lucky and Pearl Ann Lucky by a warranty deed containing essentially the same language as the Morían to Brechtefeld conveyance. On August 11, 1972, LaVerne Lucky and Pearl Ann Lucky conveyed to George R. Koenig and Laura E. Koenig the property “lying South of U.S. highway route 460, and except all coal, oil, gas and other minerals formerly reserved * * ®.” On December 16, 1977, George R. Koenig and Laura E. Koenig conveyed that property to Marshall W. Hamilton and Virginia L. Hamilton by a warranty deed containing an identical description.

In summary, the claims of each set of plaintiffs arose under a chain of title common to both until March 11,1969. At that time Brechtefeld conveyed one part of the property to the Goins while retaining another portion of the property. In 1971 she conveyed the retained tract to the Hamiltons’ predecessors in interest. The defendants’ claim is predictated on the exception of “all the coal, oil, gas and other minerals formerly reserved,” contained in the 1958 deed from Eunice B. Morían to the Brechtefelds, the defendants asserting that this interest passed to them upon Morían’s death.

On April 4,1978, the defendants Eater, Ellis, Lynn and Morían filed a notice of their claimed interest in the oil and gas underlying the real estate in question. On July 28,1980, the Goins filed their complaint in the circuit court and on January 20, 1981, the Hamiltons’ petition to intervene was granted. Defendant Old Ben Coal Company filed an answer but participated no further in this case. After a trial, judgment was entered in favor of both sets of plaintiffs and against the individual defendants. The defendants thereafter perfected this appeal from that judgment.

The defendants assert first that the trial court erred in construing the words “formerly reserved” to limit only the exception of coal, oil, gas and other minerals outstanding at the time of the conveyance from Morían to the Brechtefelds. The defendants argue that, because a grantee under a deed is estopped from controverting recitals contained in the deed (see Wiley v. Lamprecht (1948), 400 Ill. 587, 592, 81 N.E.2d 459), the plaintiffs may not deny that the grantor, Morían, excepted the coal, gas, oil and other minerals. By asserting that Morían reserved to herself the mineral interests in question this argument assumes the point in issue and we therefore find this theory, and the cases cited in its support, to be inapposite. The real issue before us is what interest, if any, was retained by Eunice Morían in 1958 when she conveyed the property to the Brechtefelds. Because all of the plaintiffs derived their asserted interests from this transaction, the following discussion will apply equally to each plaintiff.

“In Illinois, a landowner is entitled to the surface and all that is below it, and when he makes a deed that contains no reservation and does not limit the estate conveyed, he conveys everything under the surface as well as on the surface. However, an owner of land also has the right to sever his land into estates, and he may dispose of the mineral estates and retain the surface, or he may dispose of the surface and retain the mineral estate. Oil and gas are minerals, and when a conveyance of lands is made, an owner of land has the right to reserve to himself all oil and gas rights if a provision of the deed so states.” (Jones v. Johnson (1974), 16 Ill. App. 3d 996, 998-99, 307 N.E.2d 222.) The primary purpose of judicial construction of deeds is “to ascertain the intention of the parties, which is to be determined and gathered from the instrument as a whole, giving effect to every word and rejecting none as meaningless or repugnant, if it can be done without violating any positive rule of law.” 16 Ill. App. 3d 996, 998.

The deed in question conveys specifically described real estate with three exceptions. The first exception is for a railroad bed, the second for the right-of-way of a State highway, and the last is for all coal, oil, gas and other minerals formerly reserved. “An exception in a deed withholds from that deed’s operation some part of the thing conveyed which, but for the exception, would pass by the general description to the grantee.” (Pfeffer v. Lebanon Land Development Corp. (1977), 46 Ill. App. 3d 186, 190, 360 N.E.2d 1115.) The first two provisions clearly except from the conveyance those portions of the property falling within the general legal description but which were not owned by the grantor, Eunice Morlan. “In the construction of deeds, if technical words are used in one portion of the instrument they will also be technically interpreted when used in another portion of the instrument. Spicer v. Moss, 409 Ill. 343, 100 N.E.2d 761.” (46 Ill. App. 3d 186, 191.) Thus, the third use of the word “except” also indicates that Morlan was not conveying Hart’s mineral interest to the grantee, Breehtefeld. From this, however, we do not conclude that Morlan reserved to herself the minerals (see the distinction between “reservation” and “exception” drawn in Pfeffer v. Lebanon Land Devel opment Corp. (1977), 46 Ill. App. 3d 186, 190), because to do so would be to ignore the phrase “formerly reserved.” Morían was conveying everything which she owned, but because Hart’s life estate in the one-half undivided interest in the minerals was extant at the time of the conveyance, we read the deed to mean only, that to avoid appearing to convey that which she did not own, Morlan was excepting from the general description the mineral interest previously conveyed to Hart, in much the same manner as the other two exceptions excluded portions of the land in which the railroad and the State, respectively, had outstanding interests. When Hart died in 1965 her life estate was thereby extinguished and title to the one-half undivided mineral interest inured, by the terms of the deed creating the life estate, to the Brechtefelds by virtue of the interest which they had acquired as Morlan’s grantees. We hold that the trial court correctly concluded that the Goins own the fee simple title, including all the coal, oil, gas and other minerals underlying the real estate described in the 1969 deed from Brechtefeld and that the Hamiltons own the fee simple title including all the coal, oil, gas and other minerals underlying the real estate described in the 1972 deed from the Koenigs.

The last issue for our review is whether the trial court erred in failing to apply the doctrine of laches to this case. “Laches will operate to bar equitable relief where the failure to assert a right, along with a lapse of time and other circumstances, causes prejudice to the adverse party.” (Finley v. Finley (1980), 81 Ill. 2d 317, 329, 410 N.E.2d 12.) But without knowledge of the relevant facts, unless occasioned by a lack of diligence, delay will not bar relief. (Amgro, Inc. v. Johnson (1979), 71 Ill. App. 3d 485,488, 389 N.E.2d 688.) The defendants have not shown how the plaintiffs might have discovered the defendants’ claimed interest any sooner than they did. We find on this record that the plaintiffs were duly diligent in protecting their rights. Accordingly the trial court did not abuse its discretion in failing to apply the doctrine of laches. See Finley v. Finley (1980), 81 Ill. 2d 317, 330.

Affirmed.

KARNS, P. J., and KASSERMAN, J., concur.


author: JUSTICE WELCH

text:
      In re MARRIAGE OF MAXINE ANN RITTMEYER, Petitioner-Appellant, and STANLEY E. RITTMEYER, Respondent-Appellee.
    Fifth District
    No. 81-331
    Opinion filed July 15, 1982.
    Cook, Shevlin & Keefe, Ltd., of Belleville (Dennis W. Shevlin, of counsel), for appellant.
    Sterling and Altman, P. C., of Fairview Heights (Harry J. Sterling, of counsel), for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

The petitioner, Maxine Ann Rittmeyer, appeals from the denial of her petition for dissolution of marriage.

On March 10,1982, this court dismissed the appeal on the basis that petitioner failed to file a timely post-trial motion. Petitioner made a motion to reconsider that order and a motion to supplement the record with a timely filed post-trial motion which the clerk of the circuit court has attested was inadvertently omitted from the record. No objection to the motions have been filed. Therefore, it is ordered that the motion to supplement the record be, and hereby is, granted.

The parties have been married for 7 years and have two children, ages 4 and 1. At the time of the hearing on the petition the parties had separated. Efforts at reconciliation with the aid of a counselor have failed.

Petitioner testified that respondent’s family has not approved of her, which has caused problems between the parties. Total lack of communication and jealousy were the reasons for the separation. Respondent wanted petitioner to devote full time to being a wife and mother; however, he disapproved of many of the things she did as a mother. Although respondent accepted her employment outside of the home, he did not approve of that employment. Respondent is jealous of anything, including bowling, which would draw petitioner’s attention away from being a wife and mother. On occasion, petitioner would come home drunk from her activities. Petitioner does not feel that when she has a good time and drinks to excess it should be held against her. On one occasion, he disapproved of her yelling at the children. Three years prior to the hearing respondent went looking for petitioner and found her dancing with a man at the Sugar Mill after the bowling night. The parties argued in public, but he did not strike her nor has he ever struck her. When petitioner has too much alcohol to drink, respondent tells her that he disapproves; however, the problem is never thoroughly discussed. Respondent would ask “ninety questions,” and petitioner would see no reason for the questioning. The questioning would also occur if she went shopping for a longer period of time than respondent thought that she should be shopping. There was always a sense of foreboding when she came home. When she drinks to excess, it is not due to respondent’s criticism but because she enjoys a good time.

Petitioner admitted that respondent has been a good husband and father. Petitioner further admitted that respondent is not a habitual drunkard, has not committed adultery, and has not raised his voice to her. Petitioner admitted that lack of communication was as much her fault as his, because she would get upset and emotional.

Petitioner denied having an affair or having any ongoing relationship with a man other than respondent; however, she felt that the marriage was irretrievably broken.

Respondent testified that he was not concerned about her bowling but her coming home very late. He was worried that she might have a wreck if she drank too much. He told petitioner that he did not approve of her staying out late. He always wanted to know where she had been, because he was her husband. She first accused him of forcing religion on her when they discussed a possible divorce. If petitioner wanted to do something of which he totally disapproved, she would not do it, but he would give her a reason why he disapproved. Petitioner usually went out two nights a month by herself.

Respondent further testified that he loved his wife and that if she would try counselling on a continuing basis their problems may be solved. In the past, she would say she needed things and after he bought them, she would change her mind. Respondent was hoping she would change her mind about a dissolution of marriage.

Section 401 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 401) provides in part:

“Sec. 401. Dissolution of marriage

The court shall enter a judgment of dissolution of marriage (formerly known as divorce) if:

* * *

(2) the court finds that, without cause or provocation by the petitioner: either party at the time of such marriage was, and continues to be naturally impotent; or either party had a wife or husband living at the time of such marriage; or either party has committed adultery subsequent to the marriage, or has wilfully deserted or absented himself or herself from the husband or wife for the space of one year, or has been guilty of habitual drunkenness for the space of 2 years, or has been guilty of gross and confirmed habits caused by the excessive use of addictive drugs for the space of 2 years, or has attempted the life of the other by poison or other means showing malice, or has been guilty of extreme and repeated physical or mental cruelty, or has been convicted of a felony or other infamous crime or has infected the other with a communicable venereal disease. ‘Excessive use of addictive drugs’, as used in this Section, refers to use of an addictive drug by a person when using the drug becomes a controlling or a dominant purpose of his life.”

The dissolution of marriage statute is to be strictly construed, and a dissolution of marriage is to be granted for one of the causes enumerated therein. Graham v. Graham (1976), 44 Ill. App. 3d 519, 358 N.E.2d 308.

Petitioner alleged in her complaint that “without cause or provocation by the petitioner, the respondent has been guilty of extreme and repeated cruelty toward the petitioner.” The charge of cruelty is a serious one which must be clearly proved. (Balfour v. Balfour (1959), 20 Ill. App. 2d 590, 156 N.E.2d 629.) Mental cruelty is a course of conduct toward one’s spouse which causes embarrassment, humiliation and anguish to render the spouse’s life miserable and unendurable, and which affects the spouse’s physical or mental health. (Christian v. Christian (1979), 69 Ill. App. 3d 450, 387 N.E.2d 1254; Collins v. Collins (1977), 47 Ill. App. 3d 258, 361 N.E.2d 787; In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580, 402 N.E.2d 284.) The facts of the particular case must be considered in light of the parties’ pattern of conduct, their respective emotional makeup and the circumstances under which the conduct occurred. (Christian v. Christian; Collins v. Collins; In re Marriage of Nilsson.) The ultimate test is the effect of the conduct on the complaining spouse and the marriage itself. (Christian v. Christian; In re Marriage of Nilsson.) A plaintiff is not excused from proving the statutory grounds for dissolution of marriage by competent evidence even though she might consider the marriage dead. (McGowan v. McGowan (1973), 15 Ill. App. 3d 913, 305 N.E.2d 261; Graham v. Graham.) A married person has no right to force a dissolution of marriage upon her spouse. Schneider v. Schneider (1976), 43 Ill. App. 3d 1014, 358 N.E.2d 11.

In the case at bar, we cannot find that the respondent engaged in a course of abusive treatment of his wife. The conduct of which she complains appears to be a result of his concern for the welfare of his wife rather than a course of mental cruelty. There is no evidence to indicate that the questioning was done in the presence of others in an effort to embarrass her, nor is there any evidence that petitioner suffered from adverse physical or mental consequences due to respondent’s conduct. The sense of foreboding of which she felt upon arriving late at home is insufficient to constitute treatment making her life miserable or endangering her health. The episode at the Sugar Mill is both too remote and not severe enough to support the complaint. Assuming, arguendo, that lack of communication were grounds for dissolution of marriage, the record establishes that petitioner was as much responsible for the lack of communication, if not more so, than respondent. The finding of the trial court that petitioner has failed to establish grounds for dissolution of marriage is not against the manifest weight of the evidence. Christian v. Christian; Farnbach v. Farnbach (1971), 1 Ill. App. 3d 74, 273 N.E.2d 12.

Petitioner relies on Christian v. Christian (1979), 69 Ill. App. 3d 450, 387 N.E.2d 1254, which is factually inappropriate to the case at bar. In Christian, defendant called plaintiff obscene names and accused her daily of infidelity. The foregoing conduct occurred frequently in front of the parties’ children. Defendant would call her at odd hours of the night to harass her, call her names, or accuse her of infidelity. As a result of the aforementioned conduct, plaintiff lost 14 pounds, saw a doctor who prescribed tranquilizers for nervousness, and was forced to take time off from work. In the case at bar, petitioner did not testify that she suffered any physical illness or mental illness as a result of respondent’s conduct. There is no evidence that respondent called her names or accused her of infidelity; in fact, petitioner testified that respondent did not yell at her. The nature of the “ninety questions” was not established in the record other than where she had been. It appears that the questioning occurred mainly when petitioner would come home drunk in the wee hours of the night; therefore, we cannot say that the conduct was unprovoked nor can we say that respondent’s conduct is so offensive as to constitute mental cruelty considering the circumstances under which they occurred.

Petitioner also relies on McGowan v. McGowan (1973), 15 Ill. App. 3d 913, 305 N.E.2d 261, which is factually inapposite to the case at bar. The record in McGowan indicated more than mere “bickering” between the parties. Plaintiff-husband testified to a lack of communication, frigidity in their intimate relationships, disparaging comments regarding his desire and ability to have children, and defendant’s jealousy of another woman. Due to the foregoing, plaintiff developed weight loss and a skin rash. The trial court found that plaintiff had proved grounds for divorce which was affirmed in appellate court. In the case at bar, many of the factors in McGowan are not present before us. Further, the court in the case at bar found that the petitioner had not carried her burden.

We affirm the judgment of the Circuit Court of St. Clair County.

Affirmed.

JONES and KASSERMAN, JJ„ concur.


author: JUSTICE JONES JUSTICE HARRISON,

text:
    EILEEN STILES, Plaintiff-Appellant, v. PANORAMA LANES, INC., Defendant-Appellee.
    Fifth District
    No. 81-222
    Opinion filed July 16, 1982.

      HARRISON, J., dissenting.
    C. E. Heiligenstein and Brad L. Badgley, both of Belleville, for appellant.
    John L. McMullin and Phillip M. Frazier, both of Brown, James, Rabbitt, Whaley, McMullin & Pitzer, of St. Louis, Missouri, for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Presented here is the question of whether icy ridges and ruts resulting solely from ordinary vehicular traffic constitute an unnatural accumulation of snow and ice upon a parking lot used for business purposes.

Plaintiff, Eileen Stiles, sought damages in the amount of $25,000 for personal injuries suffered in a fall in the parking lot of defendant, Panorama Lanes, Inc. In her complaint she alleged negligence on the part of defendant for permitting the parking lot “to become rough and uneven with an unnatural accumulation of ice and snow,” for permitting “ruts to exist in ice in the parking lot area” and for failing “to remove, salt or otherwise treat an icy or snow covered condition upon its parking lot.” The trial court granted defendant’s motion for summary judgment, finding no genuine issue as to any material fact with respect to the duties of defendant. Plaintiff appeals contending that summary judgment was improper because the pleadings and depositions raised a genuine issue of material fact, that the condition of the parking lot was “the product of an unnatural accumulation of ice and snow created by defendant’s customers and its snow removal effort” and that whether defendant was negligent in the snow removal effort it undertook was a question of fact.

In her deposition plaintiff stated that at about 7:30 p.m. on January 26, 1979, she walked upon defendant’s parking lot in order to attend a dance in defendant’s building. She said at that time she could see in the parking lot “ice ruts” caused by the tires of automobiles and that as a consequence she “trod over those very carefully when [she] walked in.” During the course of the evening it snowed “very badly.” When plaintiff emerged from the building a few hours later at about 12:40 a.m. her toe “caught” in a snow-covered icy rut about 20 feet from the building and she fell fracturing her wrist. She said that the parking lot was well lit but that she was unable to see the rut beneath the snow.

According to the deposition of Roger Behrmann, defendant had an oral agreement with him to remove snow from the parking lot. Roger Behrmann stated that he had been instructed by Frank Booker, defendant’s president and general manager, to remove “what [snow] I can, you know.” To remove the snow he used a backhoe “[n]inety per cent of the time.” He explained that he removed only the snow because “[y]ou can’t get ice,” stating that “[i]f it’s packed on there, you can just get the top layer.” He explained further why he could remove the snow but not the ice:

“Well, if you got snow, and it’s packed on there with the cars that’s run over it, and they pack it on there, and then turntto [sic] ice later on, and say, then you get another layer of snow. Okay. Then you come in and you try to remove that layer of snow. You don’t have no traction with the ice under that snow to get under it to peel it off, you know.”

The witness said that Frank Booker was “going to get some cinders at one time, but I don’t know if it was before [the date of plaintiff’s fall] or after that.”

In his deposition Frank Booker stated that if the parking lot is icy and rutted because of tire marks, he does not attempt to remove that ice or to have it removed. He said, “If it is frozen there, I can’t remove it.” According to the witness, the parking lot was not spread with cinders, salt, ashes or any other material of that kind.

It is well settled that a property owner is not liable for injury sustained by a business invitee in a fall on any icy sidewalk or parking lot maintained by the property owner for the use of his customers where the accumulation is a natural one and not one caused or aggravated by the property owner. (Timmons v. Turski (1981), 103 Ill. App. 3d 36, 430 N.E.2d 1135; Zide v. Jewel Tea Co. (1963), 39 Ill. App. 2d 217, 188 N.E.2d 383.) On the other hand, a property owner may be liable for injury sustained by a business invitee who falls and is injured as a result of snow and ice that did not accumulate as a result of natural causes but as the result of the property owner’s conduct in creating an unnatural or artificial accumulation of snow and ice. (Smalling v. La Salle National Bank (1982), 104 Ill. App. 3d 894, 433 N.E.2d 713; Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306, 173 N.E.2d 534.) Although there is no duty to remove natural accumulations of snow and ice from one’s premises, a voluntary undertaking to remove such snow and ice may be the basis of liability if the removal is performed negligently. (DeMario v. Sears, Roebuck & Co. (1972), 6 Ill. App. 3d 46, 284 N.E.2d 330.) However, mere removal of snow, which may leave a natural ice formation remaining on the premises, does not of itself constitute negligence. Timmons; McCann v. Bethesda Hospital (1979), 80 Ill. App. 3d 544, 400 N.E.2d 16; Bakeman v. Sears, Roebuck & Co. (1974), 16 Ill. App. 3d 1065, 307 N.E.2d 449; Anderson v. Davis Development Corp. (1968), 99 Ill. App. 2d 55, 241 N.E.2d 222.

In the case at bar there is nothing to suggest that anything but ordinary vehicular traffic caused the ruts of which plaintiff complains. There is, for example, no suggestion that the ice upon which plaintiff fell resulted from the drainage of melted snow that was later frozen, as happened in Fitzsimons, upon which plaintiff relies. There the defendant had plowed snow on his parking lot into two large piles, where it remained for about three weeks during a period of alternately thawing and freezing weather. There was evidence that water from the melting snow had run across the defendant’s parking lot and had been later frozen into a sheet of ice that was “rutted” with “ridges” made by wheels of automobiles where the plaintiff fell. We find plaintiff’s reliance upon Fitzsimons misplaced. As was said in Zide, where the plaintiff likewise relied upon Fitzsimons and where there was, however, no evidence that the plaintiff, who fell upon the defendant’s parking lot, had fallen on ice formed from snow that had melted and so drained:

“In the Fitz Simons case, the ice upon which the plaintiff fell was described as ‘rough and dark,’ ‘rutted’ ice, with ‘ridges’ made by wheels of automobiles. In the case at bar, the plaintiff, likewise, described the ice at the place she fell as ‘heavy, thick, ridged ice.’ Beyond the use of these descriptive terms there exists no similarity in the two cases.” (39 Ill. App. 2d 217, 224, 188 N.E.2d 383, 386.)

So, too, in the case at bar, the similarity between it and Fitzsimons ends with the use of these descriptive terms. In the instant case all that the defendant may be said to have done to cause an unnatural accumulation of snow and ice is to suffer its customers to use its parking lot while snow was upon the ground. In view of the fact that only ordinary vehicular traffic caused the ruts of which plaintiff complains in a place intended for use by such vehicles, we do not think that the ruts resulting from such use may be said to have been an unnatural accumulation of snow and ice created by defendant.

As we have already said, the removal of snow, which may leave a natural ice formation remaining on the premises does not, without more, constitute negligence. Nothing in this record suggests that defendant did more than remove snow and leave what we have deemed to be a natural, rather than an unnatural, ice formation at some time prior to the snowfall on the evening of January 26, 1979. Thus, defendant’s conduct in leaving this ice formation did not constitute negligence, and, contrary to plaintiff’s assertion here, there was no question of fact on this record as to whether defendant was negligent in the snow removal effort it undertook.

A motion for summary judgment should be granted only where pleadings, depositions, affidavits and other documents demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 407 N.E.2d 1031.) Because defendant created no unnatural accumulation of snow and ice by permitting its business invitees to operate motor vehicles in the parking lot provided for their use and because defendant in its snow removal effort may, therefore, be said to have left only a natural ice formation, there remains no genuine issue of material fact, and the trial court properly granted defendant’s motion for summary judgment.

Affirmed.

KASSERMAN, J., concurs.

JUSTICE HARRISON,

dissenting:

I must respectfully dissent.

As the majority opinion stated, a landowner is under no obligation to remove natural accumulations of snow and ice from his property. (Hankla v. Burger Chef Systems, Inc. (1981), 93 Ill. App. 3d 909, 910.) Likewise, the mere removal of snow and the exposing of a natural ice surface beneath does not itself constitute negligence. (Timmons v. Turski (1981), 103 Ill. App. 3d 36.) Nevertheless, property owners are charged with negligence when the ice upon which plaintiff falls accumulates either as a result of the owner’s aggravating a natural condition or because of his engaging in conduct which gives rise .to a new, unnatural or artificial condition. For example, in cases where fallen snow was plowed into formations which melted, drained, and then refroze, the new frozen accumulation was termed unnatural. See Fitzsimons v. National Tea Co. (1961), 29 Ill. App. 2d 306.

However, it is not always clear which accumulations are natural and which are unnatural. As the Fourth District observed in Hankla when it refused to impose liability on the landowner for injuries sustained in a fall from a snow-covered curb: “The parties have not cited, nor have we found, an Illinois court which has detailed the differences between natural and unnatural accumulations.” (Hankla v. Burger Chef Systems, Inc. (1981), 93 Ill. App. 3d 909, 911.) Likewise in Timmons, a parking lot case factually similar to the present case, we specifically declined to “determine whether such compaction by motor vehicles constitutes a natural or an unnatural accumulation * * *." This court, instead, set aside plaintiff’s $20,000 verdict because he failed to introduce evidence showing that defendant caused an unnatural accumulation of snow and ice at the place where plaintiff fell. (Timmons v. Turski (1981), 103 Ill. App. 3d 36, 38, 430 N.E.2d 1135, 1137.) Therefore, the issue presented for our determination, previously unaddressed, is whether this type of formation on a business owner’s parking lot could constitute an unnatural accumulation. The icy ridges and ruts on the parking lot surface were allegedly formed by automobiles driving on the lot after a snowfall. The automobile traffic occurred because of defendant’s implied invitation to enter onto the premises for business purposes. Thus, the character of the initial natural accumulation changed as a result of defendant’s use of the area concerned. Under such circumstances, the icy ridges and ruts in the parking lot would constitute unnatural accumulations of ice and snow, in effect created by defendant.

Summary judgment should be granted only where pleadings, depositions, affidavits, and other documents demonstrate that there is no genuine issue of material fact and that movant is entitled to judgment as a matter of law. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App. 3d 142, 144.) Because I feel that frozen ruts and ridges caused by automobile traffic would constitute an unnatural accumulation, I believe there remain genuine issues of material fact as to whether this condition existed on the parking lot surface on the evening of January 26, how the condition developed, and whether, in fact, it was the proximate cause of plaintiff’s alleged injuries. Consequently, the judge’s decision to grant defendant’s motion for summary judgment was in error. I would reverse the court’s order and remand this cause for further proceedings.


text:
      In re D.M.C., a Minor.—(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. A. M. CONEKIN et al., Respondents-Appellants.)
    Fifth District
    No. 81-429
    Opinion filed July 23, 1982.
    Raymond Lawler, P. C., of Marion, for appellants.
    Robert Shuff, State’s Attorney, of Mt. Vernon (Martin N. Ashley, of State’s Attorneys Appellate Service Commission, and Robert C. Cook, research assistant, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

The minor child, D.M.C., was adjudicated neglected based upon his environment being injurious to his welfare with a further finding that he had been the victim of physical abuse by both parents. He was made a ward of the Juvenile Court and placed in the guardianship and custody of the Illinois Department of Children and Family Services (D.C.F.S.) and the child and parents were ordered to participate in counseling as a family unit. The parents appeal from the adjudication of neglect and abuse and from the disposition placing the child with D.C.F.S. We affirm the decision of the trial court.

D.M.C., a nine-year-old boy, was adjudicated neglected by reason of abuse following a three-day adjudicatory hearing on a juvenile court petition on April 23, 1981. Testimony indicated that D.M.C.’s parents had disciplined him by means of a leather belt, at least 50 strokes each and perhaps as many as 100 strokes each, administered to the boy’s unclothed buttocks and rear and side thighs. Photographs introduced in evidence showed the entire area to be solidly bruised.

Testimony was introduced which indicated the child was hyperactive and perhaps had a learning disability “in the social behavior realm.” The parents are both professional psychologists and have educational training and professional experience in dealing with hyperactive and learning-disabled children. Testimony indicated that they believed he had a high threshhold of pain. The mother testified that she, the father, and the child all bruise easily and that she used the belt instead of her hand because she had bruised her hand spanking the child in the past.

The incident that triggered the punishment involved the boy’s having taken his father’s cowboy hat to school for “Show and Tell” without permission and then having lied to cover up. Testimony was conflicting regarding the communications between the teachers and authorities at school and the parents regarding the boy’s misbehavior at school over the previous months.

The parents testified that they had “spanked” the boy before, usually a maximum of 10 or 12 strokes at a time but on other occasions they had delivered “quite a number of strikes with a belt.”

On the day in question, the father testified that 10 or 12 strokes were not enough because “I wasn’t getting any reaction. I wasn’t getting any tears; I wasn’t getting any yelling. When I stopped, he looked at me. It had no impact; nothing was happening.”

The boy testified that on the day of the “spanking” he told his parents it was hurting but they didn’t stop. He said he cried afterwards but not while they were hitting him with the belt. He said he really didn’t know why, “it’s just that it wouldn’t come out.”

The psychologist expert witness called by the State, who examined D.M.C. and administered a series of psychological tests to him, testified that in his professional opinion corporal punishment should never be used on hyperactive children, “because I feel it makes them more aggressive.” He said that in his counseling of families he did recommend corporal punishment sometimes for flagrant violations of family rules. Even in those instances, however, he did not feel that 200 strokes with a belt was beneficial or appropriate punishment.

The psychologist expert witness called by the parents testified that she could understand the stresses and frustrations of living with a hyperactive learning-disabled child since she had such a child herself. When she was shown the photographs of D.M.C. she said, “I, as a professional, would not like to see a child who was whipped in this manner. I would immediately try to investigate some support and help for those parents and for the child, in terms of family therapy, working through the situation. I would also look and see if this has ever happened before.”

There is no indication in the record that the court admonished the parents regarding their rights pursuant to section 1 — 20(3) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 20(3)), at their first appearance in court or subsequently. The parents were, however, vigorously represented by privately retained counsel at all stages of the proceedings.

At the shelter care hearing, held on April 1, 1981, the child testified that he was afraid to go home. The court, after hearing other testimony but not seeing the photographs which were not yet available, placed the child in the temporary custody of the Department of Children and Family Services pending the adjudicatory hearing.

At the close of the adjudicatory hearing the judge adjudicated the minor neglected by reason of physical abuse by both parents and made him a ward of the court. It ordered him continued in the temporary custody of the Department of Children and Family Services pending the dispositional hearing. It declined to hear testimony from the parents regarding their current attitudes toward corporal punishment and the state of the home environment prior to making the child a ward of the court.

Following a dispositional hearing and a hearing on a petition to establish fitness filed by the parents, the court placed the custody and guardianship of the child with the Department of Children and Family Services and ordered the family to attend counseling as a group. The court denied the parents’ petition to establish fitness and ruled they were still “unfit” to have the child home. This was not, however, a finding of unfitness in an effort to terminate parental rights and place the child for adoption. That was not contemplated by the original petition or ever argued by the State. The court set the matter for review on December 18, 1981, with the stated aim of being able to return the child at that time if the counseling sessions indicated readiness on the part of the parents and the child.

The burden of proof which appellants have undertaken is to show that the trial court’s decision was against the manifest weight of the evidence. (In re Stilley (1977), 66 Ill. 2d 515, 363 N.E.2d 820). In this regard, it should be recalled that neglect “ ‘is not a term of fixed and measured meaning. It takes its content always from specific circumstances, and its meaning varies as the context of surrounding circumstances changes.’ ” In re Stilley (1977), 66 Ill. 2d 515, 520, 363 N.E.2d 820, 822.

The petition alleged that D.M.C. was neglected, pursuant to section 2 — 4(1) (b) of the Juvenile Court Act (Ill. Rev. Stat. 1979, ch. 37, par. 702 — 4(1)(b)), because his environment was injurious to his welfare, with specific allegations regarding the use of the belt by his parents and the bruises he received. The Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 1 et seq.) does not define “environment injurious to welfare.” As it read during the trial proceedings in this case, the Act did not define “physical abuse,” although section 4 — 8(2) requires the court, following an adjudication of neglect, to find whether the neglect was the result of physical abuse by the parents. (Ill. Rev. Stat. 1981, ch. 37, par. 704 — 8(2)). Recently, section 2 — 4 of the Act has been amended, and it now includes in the category of abused minors those children upon whom is inflicted “excessive corporal punishment.” See Ill. Rev. Stat. 1981, ch. 37, par. 702-4(2) (a) (v).

Appellants urged that In re Aaronson (1978), 65 Ill. App. 3d 729, 731-32, 382 N.E.2d 853, 855, should control this case and argue that “paddling one’s own children cannot be the basis of a charge of child abuse and neglect in the absence of clear evidence the paddling was vicious or for other than disciplinary reasons.” Aaronson referred to the United States Supreme Court decision upholding “paddling” of students in public schools as a means of maintaining school discipline and finding that it did not constitute cruel and unusual punishment in violation of the eighth amendment. The Supreme Court pointed out, however, that

“[t]o the extent that the force is excessive or unreasonable, the educator in virtually all States is subject to possible civil and criminal liability.” Ingraham v. Wright (1977), 430 U.S. 651, 661, 51 L. Ed. 2d 711, 724, 97 S. Ct. 1401, 1407; People v. Ball (1974), 58 Ill. 2d 36, 317 N.E.2d 54.

The “paddling” or “spanking” in this case, as testimony by both expert witnesses indicated, rose to the level of “excessive corporal punishment.” The judge did not abuse his discretion or decide against the manifest weight of the evidence in finding neglect based upon physical abuse by both parents.

Appellants further allege that the court committed reversible error by sustaining an objection to efforts by counsel for the parents to elicit testimony regarding the parents’ current attitudes toward corporal punishment at the adjudicatory hearing prior to the court’s making the child a ward of the court under section 4 — 8(2) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 704 — 8(2)). They cite the case of In re Driver (1977), 46 Ill. App. 3d 574, 360 N.E.2d 1202. Driver was a delinquency case involving an altercation at a junior high school. Although the evidence was enough to establish that Driver was a delinquent minor under section 2 — 2, it was not sufficient for the court to make a determination of whether it was in the best interest of the minor and society that he be made a ward of the court under section 4 — 8(2), and therefore subject to placement outside his home as well as to supervision available under section 4 — 7. (Ill. Rev. Stat. 1975, ch. 37, pars. 702 — 2, 704 — 8(2), and 704 — 7.) For that reason Driver held that it was reversible error for the judge to refuse to hear proffered evidence bearing on the question of wardship. In the case before us, the evidence concerning adjudication of D.M.C. as neglected by reason of abuse includes sufficient grounds for making the child a ward of the court and therefore subject to the entire range of dispositions available to the court. (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 18). In fact, such a finding precludes returning the minor to the parents responsible for the abuse until a fitness hearing has been held. (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 2(1)(c)). If the trial court erred in sustaining the objection, we find the error to be harmless since the finding of wardship has support in the record. In re Driver (1977), 46 Ill. App. 3d 574, 578, 360 N.E.2d 1202, 1206.

Appellants also allege that the court committed reversible error in failing to advise the parents of the minor, at their first appearance or at a later appearance, of the nature of the proceedings and to inform the parties of their rights. Section 1 — 20(3) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 — 20(3)) does direct the trial court to explain the nature of the proceedings to the parties at their first appearance before the court and to inform them of their rights under section 1 — 20(1) and (2). The record does not indicate that this was done in the instant case. Appellants point to In re Moore (1980), 87 Ill. App. 3d 1117, 409 N.E.2d 435, for the proposition that such failure constituted reversible error, even though the parties were represented by counsel. The rights which the court must inform the parties of include 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. In Moore, although the mother was represented by counsel she admitted the allegations of the petition regarding neglect and contested nothing. The reviewing court was concerned that the record did not indicate whether she knew she had a right to be heard and to present evidence material to the proceedings. For that reason it reversed and remanded the cause. In so doing it stated:

“While under the statute it is clearly error if the court fails to admonish the parents of their rights, it does not follow that such error would require reversal in every case.” (In re Moore, 87 Ill. App. 3d 1117, 1120, 409 N.E.2d 435, 437.)

In the case at bar the parents were represented vigorously from the first shelter care hearing by counsel. They testified, presented evidence material to the proceedings, cross-examined State witnesses, presented their own expert witness, had access to the predispositional evaluation, and took an appeal. They exercised to the full the rights they have. We cannot see that they were in any sense prejudiced by the court’s failure to admonish them regarding their rights. Although error, we hold the court’s failure to be harmless.

Appellants assert that the court’s disposition, placing the child in the guardianship and custody of the Department of Children and Family Services, was against the manifest weight of the evidence and, citing In re Butt (1979), 76 Ill. App. 3d 587, 395 N.E.2d 1, should be reversed. The court in the present case heard testimony from a psychiatrist and psychologist who indicated D.M.C.’s problems were externally caused, not internal. They did not feel he was hyperactive and felt he did not need the drug Ritalin. All parties involved felt counseling, preferably including the whole family, was imperative to help get to the causes of the strapping incident. The parents testified that they had begun counseling and that their counselor would also see the child with them. The psychiatrist testified that he felt the parents would need counseling before the child should be returned home, and when he was returned the situation should be monitored very closely to detect any other blowups. The social worker for D.C.F.S. indicated that she thought close monitoring would be very difficult since the parents had not been cooperative in letting D.C.F.S. caseworkers into their house, and she suspected the child would not report any future incident of abuse because he was upset by all of the court action. The court heard testimony about the child’s guilt feelings over the cost of foster care to his parents and his feeling that hearing of the juvenile court proceedings killed his grandfather, who was very ill at the time. The child testified that he would not report it even if he were spanked many times again. The court’s disposition, keeping the child in the custody of D.C.F.S., giving the Department guardianship, ordering family counseling, and setting the matter for review with an eye to returning the child home within five months was not against the manifest weight of the evidence. Therefore we affirm the judgment of the circuit court of Jefferson County.

Affirmed.

KARNS, P. J., and JONES, J., concur.