author: JUSTICE HOPF

text:
      In re MARRIAGE OF SALVATORE MACALUSO, Petitioner-Appellee, and PAOLA MACALUSO, Respondent-Appellant.
    Second District
    No. 82—148
    Opinion filed December 2, 1982.

      Peter M. Donat, of Donat & Donat, of Batavia, for appellant.
    Stephen M. Cooper, of Geneva, and Melvin E. Dunn, Ltd., of Elburn, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Respondent, Paola Macaluso (Paola), appeals from an order of the trial court granting custody of Lisa Macaluso (Lisa), the minor child, to petitioner, Salvatore Macaluso (Sal), and from an order requiring Paola to pay $1,000 temporary attorney fees to Lisa’s attorney for the prosecution of this appeal. Petitioner cross-appeals from an order of the trial court requiring him to pay $2,500 towards respondent’s attorney fees.

In November of 1979, Paola took Lisa, aged five, to Italy to live with Paola’s parents. The following month, Sal filed a petition for dissolution of marriage, and temporary custody was granted to him in December 1979. Sal went to Italy in December and returned with Lisa to the United States. Paola returned to the United States in April of 1980 and made an unsuccessful attempt to gain custody of Lisa.

In September of 1980, apparently fearing that his wife would attempt to return to Italy with Lisa, Sal quit his employment as a police officer for the Carpentersville police department and left the jurisdiction. He took Lisa to Arizona along with a woman named Darlene Kitsinger and her two children. While in Arizona the group lived together as a family in a three-bedroom house and all of the children attended school. In the meantime, temporary custody of Lisa was awarded to Paola. In January of 1981 Sal returned to Illinois and Lisa was placed in the custody of the Department of Children and Family Services. An attorney was appointed to represent the child, and he supervised visitation by the parents until May of 1981.

On September 27, 1981, the court interviewed Lisa Macaluso in chambers with the attorneys for all parties present. Lisa stated that she was going to school in Wisconsin where she had playmates and that she liked it there. She said she had been “going around the world” with her father and that it was making her “seasick.” Lisa said she wanted to stay in this country and in one place. She said that they treated her “like a pig” in Italy and that Paola made her “sit in a chair all day.” She said she “kind of” loved her grandmother and grandfather in Italy but that she did not think that they loved her. Lisa said she did not like living in Arizona but that she missed Darlene’s two sons. She did not miss Darlene because Darlene was “too big for her.” Prior to the interview, Lisa met her mother in the hallway and told her to “get away” because she believed Paola wanted to grab her and take her to Italy. She said her mother was “not really the best Mommy that I have.” She said that she got along with her father “easy,” and that he never did anything to scare her. She said that her father drinks whiskey sometimes, but when he drinks he acts “like himself.”

At the subsequent custody hearing, Paola Macaluso testified that she lived in a townhouse in Park Forest, Illinois, that she had been employed since December 15, 1980, and that she earned $750 a month net. She stated she worked six days a week, but if granted custody of Lisa she would work only five days a week if she remained in the United States. She testified, however, that she believed it would be best to return to Italy with Lisa to live with her family. Paola testified that there would be no problem with transportation for Lisa to visit her father since her family was wealthy and would provide funds. If, on the other hand, the court ordered her to keep Lisa in the United States, Paola testified that she would do so. She and Lisa would live in the rented townhouse in Park Forest which had two bedrooms and which was near schools. Paola testified that friends she had made through Al-Anon, an alcohol counseling service, would stay with Lisa while she worked. She did not know the last names of any of these friends, nor the names of any of her neighbors in Park Forest.

Paola testified that she believed her husband was an alcoholic. She recounted instances of his drinking which had allegedly culminated in violence, including one instance in which she went to the Elgin Crisis Center with Lisa but returned home with her husband the next day. On cross-examination she testified that Sal was a wonderful father but a terrible husband, and that Lisa and her father had a good relationship.

It was stipulated that Sal was employed part-time at a 7-11 store, but that he was scheduled to begin work for Illinois Pools Unlimited as soon as custody proceedings were completed. His gross salary would be $350 per week in the summer and $12,000 annually, plus commission, when the construction period ended. He had also applied to police departments for reemployment.

Sal testified that he had recently married Darlene Kitsinger and was living with her and her two young sons, ages six and eight, in a home that Darlene owned in Buffalo Grove. He testified that he drank socially and did not believe he had a drinking problem. He stated that he had slapped his wife twice in the course of their marriage. Once following a heated argument he had slapped her and she took Lisa to the Elgin Crisis Center overnight. He testified that he had slapped Paola to stop her constant arguments and that he had taken Lisa to Arizona because of his wife’s threats to return to Italy with Lisa regardless of court orders. He and Darlene and their three children had remained in Arizona for approximately 40 days and they told Lisa and the other children that he and Darlene had been married shortly after they arrived. He stated that basically they lived in Arizona as a family and that the children all attended school.

Darlene Macaluso testified that if Sal received custody of Lisa she would live with them in Buffalo Grove and attend school with Darlene’s two boys. Lisa would have her own bedroom. There were two playgrounds, a pool and a recreation center near the home. Darlene stated that her sons and Lisa got along very well and referred to each other as brothers and sister. She stated that although both she and Sal were drinking more than they normally did while in Arizona, she never saw him intoxicated. While in Arizona they went to church every Sunday and the children attended religious instruction classes. This would continue once they were all settled in the Buffalo Grove home. She stated that Sal and Lisa had the “best father and child relationship” she had ever seen and that Sal did school work every night with all three children in Arizona. She stated she was employed as a dental assistant and receptionist five days a week, but that as soon as Sal could support the family she planned to resign to stay home with the children. She testified that she had never seen Sal threaten or strike anyone and that her children loved him very much. She testified that she had contacted her boys’ school regarding Lisa’s enrollment and had observed the classroom and knew the teachers that Lisa would have. She had also discussed Lisa’s enrollment with the school counselor and assistant principal.

Five other witnesses testified for Mr. Macaluso. Two former neighbors of the Macaluso’s testified that although Paola had a good relationship with Lisa, Sal’s relationship with Lisa was exceptional. They believed Sal should have custody of Lisa. These witnesses, as well as three members of the Carpentersville police department, testified that Sal did not have a drinking problem.

The testimony of Jerry Lee Cox, Lisa’s foster mother since Jan-nary of 1981, was entered by stipulation. She stated that although Lisa was originally fearful of her mother and of being removed to Italy, the relationship had healed and Lisa had now expressed love for both parents. Ms. Cox testified that, although her normal preference for custody of a child of Lisa’s age and sex would be the mother, due to Lisa’s unique relationship with her father, Ms. Cox believed custody should be given to Sal.

Counsel for Lisa Macaluso stated in closing argument that based on his supervision of over 50 hours of visitation between Lisa and both of her parents, he believed custody should be awarded to the father.

On May 4, 1981, an order was entered awarding custody to Sal and reserving other issues. On July 1, 1981, an order was entered directing Lisa’s attorney to continue to represent Lisa on appeal and ordering Paola to pay Lisa’s attorney $1,000 temporary fees on appeal with further fees or reimbursement to be subject to order of the appellate court. Paola originally appealed the custody order on June 3, 1981, which appeal was dismissed on September I, 1981. A judgment for dissolution of marriage was entered on January 12, 1982, granting Mr. Macaluso’s petition for dissolution based on mental cruelty, awarding custody of Lisa to Mr. Macaluso, and requiring him to pay $2,500 attorney fees to the attorney for Paola.

Respondent first contends that the trial court erred in granting custody of Lisa to her father. She argues that the custody award is against the manifest weight of the evidence.

Section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 602) codifies the established guiding principle for determining custody, the child’s “best interest.” This section provides:

“(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved; and
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.
(b) The.court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.”

The court must evaluate the circumstances and determine the witnesses’ credibility. It is not necessary to find one parent unfit in order to justify an award to another. (In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 434 N.E.2d 811.) Illinois courts no longer presume that the mother is necessarily the better custodian for young children. (105 Ill. App. 3d 596, 607, 434 N.E.2d 811, 820; see In re Marriage of Sieck (1979), 78 Ill. App. 3d 204, 396 N.E.2d 1214; Jines v. Jines (1978), 63 Ill. App. 3d 564, 380 N.E.2d 440.) The trial court has broad discretion in awarding custody and there is a “ ‘strong and compelling’ ” presumption in its favor. (In re Marriage of Mitchell (1981), 103 Ill. App. 3d 242, 244, 430 N.E.2d 716, 718, quoting Gren v. Gren (1978), 59 Ill. App. 3d 624, 626, 375 N.E.2d 999.) Consequently, a court of review will not overturn the trial court’s determination unless the judgment is against the manifest weight of the evidence or is manifestly unjust. In re Marriage of Milovich; In re Marriage of Mitchell.

In the case at bar, it cannot be. said that the decision granting custody to the husband is against the manifest weight of the evidence. Mr. Macaluso offered Lisa her own room in a three-bedroom home owned by his new wife. Lisa would also have two stepbrothers living in the home with whom she has a good relationship, and her stepmother would remain at home to care for all of the children. Further, Mr. Macaluso and his wife have many relatives in the immediate vicinity who might add to a stable home environment for Lisa. Sal was scheduled to begin work for Illinois Pools Unlimited as soon as custody proceedings were completed. His gross salary in the summer months will be $1,400 per month, and when the construction period ends he will earn $12,000 annually, plus commissions. He has also applied to police departments for reemployment. In contrast, Paola desired to return with Lisa to Italy to live with her parents despite Lisa’s desires to remain in this country. However, Paola testified that if ordered to remain in the United States, she would do so and she and Lisa would live in the rented, sparsely furnished townhome in Park Forest, Illinois. Paola has no relatives in the United States. Although she stated that friends whom she met through Al-Anon would provide day-care for Lisa, she knew these friends only by their first names. It is evident from the testimony that Mr. Macaluso offered a more stable home environment which Lisa seems to require. Further, all of the witnesses who testified regarding Lisa’s relationship with her parents expressed the opinion that her relationship with her father was unique and exceptional. Even Paola conceded that Mr. Macaluso and Lisa “have a very close father-daughter relationship.” All of these witnesses, with the exception of Paola, agreed that it was in Lisa’s best interest to be placed in the custody of her father.

Respondent argues that the father instilled fear of her mother in Lisa resulting in a strained relationship that improved only after a course of visitation while Lisa was in the care of her foster mother. However, it is equally likely that Lisa was understandably frightened of her mother because of her mother’s prior flight with Lisa to Italy where she was treated, in the child’s words, “like a pig.” Respondent also claims that the trial court did not give sufficient consideration to the “adulterous relationship” of Darlene and Sal, to which Lisa was subjected for about 40 days. The court here was aware of this “adulterous relationship.” Despite this, the court apparently was convinced that the father, while he may have acted imprudently, had not engaged in conduct which had an adverse effect on the child. Further, we consider that Sal’s subsequent marriage to Darlene sufficiently eliminated any question vis-a-vis Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421. (In re Custody of Saloga (1981), 96 Ill. App. 3d 661, 421 N.E.2d 991; In re Custody ofEhr (1979), 77 Ill. App. 3d 540, 396 N.E.2d 87.) We, therefore, are of the opinion that the order of the trial court granting custody to Sal was not against the manifest weight of the evidence.

Respondent next contends that the court erred in ordering Paola to pay $1,000 in temporary attorney fees to Lisa’s attorney for the prosecution of this appeal. She asserts that section 506 of the Illinois Marriage and Dissolution of Marriage Act does not authorize prospective attorney fees. We agree.

It is generally held that a trial court cannot award attorney fees pending appeal in the absence of specific statutory authority. (Bank of Naperville v. Catalano (1980), 86 Ill. App. 3d 1005, 408 N.E.2d 441; Fox v. Fox (1978), 56 Ill. App. 3d 446, 371 N.E.2d 1254; Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 360 N.E.2d 386; Arndt v. Arndt (1948), 399 Ill. 490, 78 N.E.2d 272.) The Illinois Marriage and Dissolution of Marriage Act, section 506 (Ill. Rev. Stat. 1979, ch. 40, par. 506), states:

“The court may appoint an attorney to represent the interests of a minor or dependent child with respect to his support, custody and visitation. The court shall enter an order for costs, fees and disbursements in favor of the child’s attorney. The order shall be made against either or both parents, or against the child’s separate estate.”

Although section 506 does allow for an award of attorney fees in favor of the child’s attorney, it does not specifically authorize the award of such fees during the pendency of an appeal. (Cf. In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 419 N.E.2d 598.) We, therefore, hold that the trial court erred in directing respondent to pay prospective attorney fees under this section.

On cross-appeal, petitioner challenges the trial court’s order requiring him to pay a portion of Paola’s attorney fees pursuant to section 508(a) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 508(a)). It should be noted that respondent has not filed a reply brief and, therefore, has not addressed this issue.

An award of attorney fees requires consideration of the financial resources of the parties, and is left to the sound discretion of the trial court, reversible only for an abuse of discretion. (Robinson v. Robinson (1981), 100 Ill. App. 3d 437, 450, 429 N.E.2d 183, 192.) Such an award under section 508 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 508) is justified when the party seeking relief demonstrates financial inability to pay coupled with the ability of the former spouse to do so. (In re Support of Burks (1981), 100 Ill. App. 3d 700, 705, 427 N.E.2d 353, 357.) An allowance of fees is never automatic and is not mandated simply by a showing that one spouse has a slightly greater ability to pay the fees. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 135, 416 N.E.2d 785,793.) However, “financial inability” for purposes of awarding attorney fees in a divorce proceeding exists where payment of fees would strip the individual of his or her means of support and undermine his or her economic stability. (In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 425 N.E.2d 1301; In re Marriage of Cleveland (1981), 99 Ill. App. 3d 293, 425 N.E.2d 475.) Financial inability does not necessarily mean that the party would be destitute as a result of paying his or her own fees. In re Marriage of Scott (1980), 85 Ill. App. 3d 773, 407 N.E.2d 1045.

Although the trial court conducted a hearing on the issue of attorney fees on May 22, 1981, a transcript of those proceedings is not a part of the record on appeal. Thus, the only information on this subject is what we have been able to glean from the testimony of the parties throughout the trial, as well as the order of the court contained in the common law record. The order states that arguments of counsel were heard and that the court was “fully advised in the premises.” It is well-settled that it is the duty of the appellant (or cross-appellant as the case may be) to present a complete record on appeal so that the reviewing court will be fully informed regarding the issues in the case. (Brokerage Resources, Inc. v. Jordan (1980), 80 Ill. App. 3d 605, 400 N.E.2d 77.) Any doubt arising from the incompleteness of the record must be resolved against the appellant. (In re Estate of McGaughey (1978), 60 Ill. App. 3d 150, 376 N.E.2d 259.) In the absence of a report of proceedings, particularly when the judgment order states that the court is fully advised in the premises, a reviewing court “will indulge in every reasonable presumption favorable to judgment, order or ruling from which an appeal is taken” (In re Pyles (1978), 56 Ill. App. 3d 955, 957, 372 N.E.2d 1139, 1141) and must presume that the evidence heard by the trial court was sufficient to support the judgment absent any contrary indication in the record. Brokerage Resources, Inc. v. Jordan.

There is nothing in the record to indicate that the evidence was not sufficient to support the judgment. Respondent’s projected annual salary was estimated at $9,000. She further received $15,000 representing 50% of the marital property. There is no indication in the record of the total amount expended in attorney fees; there is only an indication that 74 hours of legal time had accumulated. Moreover, there is no indication of Paola’s liabilities or of the expenditures necessary to adequately support herself. The record does reflect, however, that she was renting a townhouse which was sparsely furnished because of a lack of funds. We can only presume that the court considered these factors in its award of attorney fees.

On the other hand, petitioner’s projected annual income was $16,200. This amount does not include the salary which he was earning from his job at a 7-11 store, nor the commissions he will earn at Pools Unlimited. In addition, Mr. Macaluso apparently received another estimated $11,000 from the division of the marital property. It is further evident from the record that petitioner’s new wife, Darlene, provided an additional source of income from her job as a dental assistant. Darlene also owns the home in which Sal lives, eliminating monthly rental payments, and there is no indication in the record that monthly mortgage payments will be necessary. Therefore, on the basis of the record before us, we must presume that the evidence was sufficient to establish Paola’s financial inability to pay the full amount expended in attorney fees, as well as Sal’s ability to do so. Brokerage Resources, Inc. v. Jordan (1980), 80 Ill. App. 3d 605, 400 N.E.2d 77; Reace v. Reace (1976), 39 Ill. App. 3d 496, 350 N.E.2d 143.

For the foregoing reasons, the order of the trial court awarding custody of the minor child to the father is affirmed, as is the order directing petitioner to contribute to the attorney fees charged by respondent’s attorney. The order directing respondent to pay prospective attorney fees to the attorney of the minor child for the prosecution of this appeal is reversed.

Affirmed in part; reversed in part.

SEIDENFELD, P.J., and NASH, J., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    JOHN T. JURSICH, Indiv. and as Assignee of M-J Builders, Inc., Plaintiff-Appellants, v. ARLINGTON HEIGHTS FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendants-Appellees.
    Second District
    No. 82—199
    Opinion filed October 26, 1982.

      Thomas P. Stepanich, of Waukegan, for appellants.
    Marc P. Seidler and Howard C. Emmerman, both of Rudnick & Wolfe, of Northbrook, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, John T. Jursich, has appealed the dismissal of his amended complaint against defendant, Arlington Heights Federal Savings and Loan Association, under section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45) (recodified as section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2— 615)), for its failure to state a cause of action.

In his first amended complaint, plaintiff alleged that he was the assignee of the rights of M-J Builders, Inc., under a mortgage contract and note executed by M-J Builders, Inc., and the defendant. The mortgage had secured a sizable commercial loan on a shopping center constructed by plaintiff and M-J Builders, Inc. The note provided that a late payment charge could be assessed against plaintiff and M-J Builders, Inc., for any installment payments made on the note which were more than 15 days late. Plaintiff alleges that between 1972 and 1976, defendant demanded, and M-J Builders, Inc., and plaintiff paid defendant $24,785.99 in such late charges.

According to plaintiff, defendant orally represented to plaintiff that installment payments on the note were due on the first of each month; and that a late charge would be assessed if the installment was unpaid by the 22d day of each month. According to plaintiff, however, the note did not specify that payment was due on the first day of each month. (It is inferred that plaintiff would construe the note to allow timely payment at any time within a given month.) As a result, plaintiff contends that $24,785.99 was assessed by defendant for late payment charges, when the underlying installment payments had, in fact, been timely.

Plaintiff sought to certify his claim as part of a class action under section 57.2 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57.2) (recodified as section 2 — 801 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 801)). However, the circuit court found that plaintiff’s amended complaint failed to state a claim for plaintiff individually; and thus, could not form the basis for a class action. The circuit court granted defendant’s motion to strike plaintiff’s amended complaint, without expressly denying plaintiff the right to plead over. The circuit court certified the cause for review under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)).

Three issues are presented for review: (1) Whether defendant’s renewed motion to dismiss this appeal for want of jurisdiction should be denied; (2) Whether plaintiff’s amended complaint stated a cause of action for monies erroneously paid another pursuant to a claim of right, and (3) Whether any issue concerning the circuit court’s denial of class status to plaintiff’s complaint is before this court on review.

In its brief, defendant has renewed its motion to dismiss this appeal, which motion was previously denied by this court on May 3, 1982. In its motion, defendant asserts that the circuit court’s order of November 19, 1981, as modified on December 14, 1981, was an appealable order. As a consequence, defendant asserts that plaintiff’s notice of appeal, filed March 4, 1982, was filed beyond the 30-day period specified in Supreme Court Rule 303 (73 Ill. 2d R. 303).

However, a final, appealable judgment is “defined as a determination by the court on the issues presented by the pleadings which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit.” (See, e.g., Flores v. Dugan (1982), 91 Ill. 2d 108, 112; Village of Niles v. Szczesny (1958), 13 Ill. 2d 45, 48.) Courts look to the substance, rather than to the form of the order, to determine its finality. (See, e.g., Peach v. Peach (1966), 73 Ill. App. 2d 72, 78.) Under these principles, defendant’s renewed motion to dismiss is denied.

The dismissal order left plaintiff free to plead over. Plaintiff presumably could have done so, perhaps stating a cause of action under one or more of the exceptions to the general rule upon which the dismissal was based. Thus, it is concluded that this court has jurisdiction to decide this appeal.

The second issue, whether plaintiff’s amended complaint stated a cause of action for monies erroneously paid another, pursuant to a claim of right, or stated another way, whether equitable principles have emasculated the doctrine that monies erroneously paid to another under a mistake of law, pursuant to a claim of right, cannot be recovered.

As a general rule, money or property which is paid to another under a claim of right to the payment, with full knowledge of the underlying facts, and absent fraud or coercion, cannot be recovered. (Groves v. Farmers State Bank of Woodlawn (1937), 368 Ill. 35, 47.) Plaintiff has acknowledged the existence of this general rule and does not argue that his amended complaint stated a cause of action under an exception to that rule. Rather, plaintiff asserts that the general rule has been “emasculated” by the equitable rule announced in Board of Trustees v. Village of Glen Ellyn (1949), 337 Ill. App. 183, 194-95, that “where one person has received money or its equivalent, which belongs to another, under such circumstances that in equity and good conscience he ought not to retain it, recovery will be allowed.” Plaintiff’s legal conclusion is mistaken. The two doctrines are quite distinguishable.

The cases which involve the Glen Ellyn rule each involve a situation where a party has unilaterally, and mistakenly, transferred property to another. However, in none of the cases located, was such payment made pursuant to a claim of right. (See Selmaville Community Consolidated School District v. Salem Elementary School District (1981), 96 Ill. App. 3d 1062, 1065-66 (plaintiff school district sought to recover property taxes which, due to a scrivener’s error, had been mistakenly paid to the defendant, adjoining school district); Bank of Naperville v. Catalano (1980), 86 Ill. App. 3d 1005, 1008-10 (bank sought to recover money it unilaterally, and erroneously, paid defendant when it closed defendant’s bank account); Board of Education v. Holt (1976), 41 Ill. App. 3d 625, 627 (school board sought to recover money erroneously paid to a former employee after the employee had retired); Board of Trustees v. Village of Glen Ellyn (1949), 337 Ill. App. 183, 194-95 (trustees sought to recover monies which had been unilaterally diverted to other uses by village officials).) In none of the above cases did the court disturb a bargain, or an agreement between the parties, respecting the monies paid.

In contrast, it can be seen that the element of payment pursuant to “a claim of right” is present in each case which has applied the general rule to defeat a claimant’s right to recover payments made under a mistake of law. (See Commercial National Bank v. Bruno (1979), 75 Ill. 2d 343, 350-51 (estate assets paid to heirs upon their claim of heirship could not be recovered by executor); Groves v. Farmers State Bank (1937), 368 Ill. 35, 47 (monies paid to successful litigants pursuant to a contract claim reduced to judgment cannot be recovered); The Hartford v. Doubler (1982), 105 Ill. App. 3d 999, 1001 (insurance proceeds paid to beneficiary cannot be recovered); Western and Southern Life Insurance Co. v. Brueggeman (1944), 323 Ill. App. 173, 178-79 (death benefit paid to beneficiary upon his application cannot be recovered); Bryan v. Pilgrim National Life Insurance Co. (1938), 294 Ill. App. 356, 360-61 (money paid to assignee of a contract cannot be recovered based on a claim that the assignment of the contract was invalid).) Based on the above, it is apparent that the lines of authorities represented by Groves and Glen Ellyn may be distinguished, respectively, by the presence or absence of a “claim of right” to the money or property, asserted by the transferee of the property. Under Groves, the court declines intervention where a dispute between the parties has been resolved through voluntary payment by one party having full knowledge of the facts, in the context of arms-length bargaining (e.g., absent coercion or possession of a superior bargaining position by the transferee). Groves v. Farmers State Bank (1937), 368 Ill. 35.

On the other hand, where there has been no preexisting claim between the parties, and monies have been unilaterally, and erroneously, paid to another, equity will apply the Glen Ellyn rule to do justice between the parties. The two doctrines are thus compatible, and plaintiffs suggestion that the Glen Ellyn rule has “emasculated” the Groves rule is meritless. Board of Trustees v. Village of Glen Ellyn (1949), 337 Ill. App. 183, 194-95; Groves v. Farmers State Bank (1937), 368 Ill. 35, 47.

It follows, therefore, that plaintiff’s reliance on Glen Ellyn is misplaced. Plaintiff’s amended complaint recites that defendant claimed its right to the late charges pursuant to its mortgage and note with plaintiff and M-J Builders, Inc. Such pleading acknowledges the existence of a “claim of right,” which would render inapplicable the Glen Ellyn line of authority. Board of Trustees v. Villaqe of Glen Ellyn (1949), 337 Ill. App. 183.

Plaintiff also asserts that his complaint stated a cause of action under an exception to the “mistake of law” rule noted above.

Plaintiff does not expressly contend that his amended complaint stated a cause of action under the fraud exception to the Groves rule. However, the court might infer such an argument, from the plaintiff’s citation and discussion of Willens v. City of Northlake (1958), 19 Ill. App. 2d 316.

In Willens, a village official exacted an $11,000 fee from the plaintiff, representing that an ordinance required such fee to be paid. In fact, there was no such ordinance (19 Ill. App. 2d 316, 317). The appellate court noted that plaintiff had been “led to believe there was an ordinance,” and that the “existence or non-existence of an ordinance, as distinguished from the legality or effect of an existing ordinance, is a fact ***.” (19 Ill. App. 2d 316, 318.) Upon remand, the court hinted that defendant could raise an issue respecting plaintiff’s reasonable reliance on the official’s representation in its answer. Although the Willens court did not firmly base its holding upon the fraud exception to the Groves rule, it is clear that such an exception exists. (See, e.g., Estergard, Eberhardt & Ackerman, Inc. v. Carragher (1982), 105 Ill. App. 3d 816, 820.) Examination of the plaintiff’s amended complaint, however, reveals that plaintiff failed to plead facts which would trigger the operation of the fraud exception.

The crux of plaintiff’s complaint is that defendant misrepresented to plaintiff the due date upon which late payment fees could be assessed under the mortgage and note. However, a party having full knowledge of the facts, and access to a written instrument, may not reasonably rely on representations of other contracting parties respecting the effect of the written instrument. (See Allensworth v. Ben Franklin Savings & Loan Association (1979), 71 Ill. App. 3d 1041, 1044; Leon v. Max E. Miller & Son, Inc. (1974), 23 Ill. App. 3d 694, 699-700.) Plaintiff was a party to the note and thus was not at liberty to accept defendant’s allegedly false construction of the terms of the mortgage and note. He did so at his peril, inasmuch as the erroneous interpretation of a contract constitutes a mistake of law (Jogger Manufacturing Corp. v. Addressograph-Multigraph Corp. (1952), 346 Ill. App. 1, 7-8), for which the law affords no remedy. (Groves v. Farmers State Bank of Woodlawn (1937), 368 Ill. 35, 47.) “[A] motion to dismiss for failure to state a cause of action should be affirmed on appeal only where no set of facts can be proven under the pleadings which will entitle the plaintiff to relief.” (Griffis v. Board of Education (1979), 72 Ill. App. 3d 784, 787.) Because the amended complaint failed to plead actionable fraud on the part of defendant or the existence of a mistake of fact which would allow plaintiff to recoup his payment, we conclude that the circuit court properly dismissed plaintiff’s amended complaint.

Although the statement of issues in plaintiff’s brief purports to raise a question regarding the circuit court’s denial of class certification to this claim, plaintiff failed to pursue such issue in the body of his brief. The contention is therefore waived. 91 Ill. 2d R. 341(e)(7).

If the point were not waived under Rule 341, it remains that the circuit court did not have occasion to reach the class certification issue, inasmuch as it found that plaintiff failed to plead a claim as an individual let alone one on behalf of a class. The question is, therefore, not before this court on appeal. People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 313.

The judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

SEIDENFELD, P.J., and LINDBERG, J., concur.


author: JUSTICE VAN DEUSEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAWRENCE SHERMAN, Defendant-Appellant.
    Second District
    No. 81—622
    Opinion filed October 29, 1982.

      Alan D. Blumenthal, of Chicago, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Judith M. Pietrucha, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

The defendant, Lawrence Sherman, appeals from a verdict entered after a bench trial finding him guilty of theft in violation of section 16 — 1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 16 — 1(a)(1)). The defendant was sentenced to 20 months’ probation and was ordered to pay a fine of $300 and restitution in the amount of $700. On appeal, the defendant contends that the conviction must be reversed in that (1) the information was insufficient and, therefore, violated his due process rights, (2) he was not proven guilty beyond a reasonable doubt, and (3) the State failed to preserve potentially favorable evidence.

On January 15, 1980, at 11:23 p.m., Officer James Christman of the Downers Grove Police Department, while on routine patrol, observed an orange Corvette automobile without license plates parked within the Precision Corvette repair shop located on Main Street in Downers Grove, Illinois. The officer asked an employee of the garage, Michael Hanson, about the auto and also inspected the vehicle. In so doing, he determined that the YIN number on the Corvette reflected a stolen vehicle. After conferring with his commander and the mechanic, Michael Hanson, the officer left the vehicle in the repair garage with exterior surveillance to begin the next day. Surveillance was maintained across the street from the premises on January 16 and again on January 17. At 3:55 p.m. a brown Buick with two males inside arrived at the scene. The Buick parked near the overhead garage door and both men exited the Buick and entered the garage. Within minutes the orange Corvette exited the garage. The Buick followed the Corvette. At that time, Officer Gron of the Downers Grove Police Department received a radio dispatch from the stake-out team requesting that he stop the Buick and Corvette which were traveling in his direction. The officer did so and arrested the driver of the Corvette. The driver of the Corvette was the defendant, Lawrence Sherman. Further investigation revealed that the orange 1976 Corvette was owned by James Budzisz and had been stolen from him on some date on January 1980. Budzisz testified that he subsequently recovered his vehicle from the Downers Grove police pound lot on January 18, 1980, about eight or nine days after it had been stolen. Budzisz did not know the defendant nor had he ever given the defendant permission to exert control over his vehicle.

The information filed against the defendant charged, in substance, that on January 17, 1980, the defendant exerted unauthorized control over the property of James Budzisz, that property being one 1976 Chevrolet Corvette having a total value in excess of $150, and that the defendant had the intent to permanently deprive James Budzisz of the use and benefit of the vehicle in violation of section 16 — 1(a)(1) of the Criminal Code of 1961. Ill. Rev. Stat. 1977, ch. 38, par. 16— 1(a)(1).

Section 16 — 1(a)(1) of the Criminal Code of 1961 states:

“A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over property of the owner ***
***, and
(1) Intends to deprive the owner permanently of the use or benefit of the property ***.”
Ill. Rev. Stat. 1977, ch. 38, par. 16-l(a)(1).

Initially, the defendant asserts that the information is defective in that while it facially charged the defendant with theft in violation of 16 — 1(a)(1), it substantially charged the defendant with receiving stolen goods in violation of 16 — 1(d)(1). In support of this contention the defendant notes that the vehicle was stolen in early January and the defendant was not found in possession of the vehicle until the middle of the month. He concludes that the correct charge should have been receipt of stolen goods under subsection (d) and relies upon People v. Marino (1970), 44 Ill. 2d 562 for support. This reliance is misplaced.

While the same assertion was made in People v. Marino, the supreme court’s answer was contrary to that which the defendant in this case suggests. In the Marino case, the defendant asserted that because the original asportation of the stolen goods occurred some six months prior to the date of their alleged exertion of control over the stolen goods, they should have been charged with receiving stolen goods under section 16 — 1(d) and not theft under section 16 — 1(a). The supreme court disagreed, noting that “section 16 — 1(a) is not limited to the theft of property in which only the actor who initiates the wrongful asportation is guilty of the offense.” 44 ll. 2d 562, 576; People v. Nunn (1965), 63 Ill. App. 2d 465, 470.

As was noted in Nunn, subsections (a) through (d) set forth the proscribed acts any one of which would constitute the offense of theft. (People v. Nunn (1965), 63 Ill. App. 2d 465, 474.) The act proscribed in subsection (a) is simply the obtaining or exerting of unauthorized control over the property of an owner, whereas subsection (d) has the additional requirement of alleging and proving that the offender received the stolen property from another. (See People v. Beauchemin (1979), 71 Ill. App. 3d 102, 106.) In Beauchemin the court further stated that subsection (a) can, under certain circumstances, be viewed as a lesser included offense of subsection (d). In light of the supreme court’s statements in Marino, the holdings in Nunn and Beauchemin, and the circumstances in this case, the State did not err in charging the defendant with a violation of section 16— 1(a) instead of a violation of section 16 — 1(d).

The defendant next contends that the information failed to set forth all of the elements of the crime of theft, and therefore his due process rights were violated. (See People v. Heard (1970), 47 Ill. 2d 501, 505.) In determining whether a charging instrument is sufficient and therefore valid, the reviewing court must keep in mind the purpose of a charging instrument, which is to inform the accused of the nature of the charges against him so as to enable him to prepare a defense and to allow any subsequent judgment flowing therefrom to be used as a bar to further prosecution for the same conduct. (People v. Phelan (1981), 99 Ill. App. 3d 925, 929.) To bring a proper charge of criminal offense, the State must allege the nature and elements of the crime in the charging instrument. (ILl. Rev. Stat. 1979, ch. 38, par. 111 — 3(3).) This requirement is mandatory and not directory. (People v. Medreno (1981), 99 Ill. App. 3d 449, 454; People v. Deal (1979), 69 Ill. App. 3d 74, 76.) If the charging instrument fails to set forth the elements of the offense, then a motion in arrest of judgment, if made, must be granted by the trial court. People v. Lutz (1978), 73 Ill. 2d 204, 212; People v. Medreno (1981), 99 Ill. App. 3d 449, 454.

The defendant contends that one of the essential elements of theft is that the defendant “knowingly” exerted unauthorized control over the property of the owner. The defendant concludes that because the word “knowingly” was omitted from the information, the charging instrument fails to allege an essential element and is, therefore, insufficient.

The State, on the other hand, contends that the information sufficiently alleges the requisite mental state. The State asserts that this case is controlled by the holding in People v. Wilson (1973), 10 Ill. App. 3d 48. In Wilson, the defendant was also charged with theft in violation of section 16 — 1(a)(1). As in this case, the word “knowingly” was not contained in the complaint. Citing People v. Shelton (1969), 42 Ill. 2d 490, 494-95, the appellate court held in Wilson that “knowledge” could be charged “either in the language of the statute or in other appropriate words.” (10 Ill. App. 3d 48, 49.) The court then noted that the complaint did allege that the defendant had the specific intent to permanently deprive the owner of the use and benefit of his property. The court stated that a defendant cannot intend to permanently deprive someone of the use and benefit of his property without acting knowingly. Thus the language which alleged that the defendant had specific intent to permanently deprive the owner of his property was sufficient to allege “knowledge.”

Here, the allegations in the information are similar to the allegations in Wilson. While the information does not contain the words “knowledge” or “knowingly,” it does allege that the defendant had the specific intent to permanently deprive the owner of the use and benefit of his property. Under Wilson the allegation of the specific intent is sufficient to allege the knowledge element, and we agree. The information filed against the defendant was sufficient, and his rights of due process were not violated.

The defendant next contends that the State has failed to prove him guilty beyond a reasonable doubt. Citing People v. Cortez (1975), 26 Ill. App. 3d 829, 833, the defendant argues that because all of the State’s evidence was circumstantial, proof beyond a reasonable doubt requires the exclusion of every reasonable hypothesis which can be based on the evidence and which is consistent with innocence.

The initial inquiry, therefore, is whether all of the State’s evidence is circumstantial. Circumstantial evidence is the proof of certain facts and circumstances in a given case from which the jury may infer other connected facts which usually and reasonably follow according to the common experience of mankind. (People v. Rhodes (1981), 85 Ill. 2d 241, 248-49.) Direct evidence is proof of a fact without the necessity of inference or presumption, or evidence of fact perceived by means of a witness’ senses. People v. Stokes (1981), 95 Ill. App. 3d 62, 68.

In the case at bar, the State must prove that the defendant knowingly exerted unauthorized control over the property of another with the intent to permanently deprive the owner of its use and benefit (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)(1)). Here, Officer Gron testified that he observed and stopped the defendant while the defendant was driving an orange Corvette. The evidence established that James Budzisz owned the Corvette and that the defendant did not have permission to drive the vehicle. No inference or presumption is required to prove that the defendant exerted unauthorized control over James Budzisz’ vehicle. That fact was perceived by means of the officer’s senses. Officer Gron’s testimony is direct evidence that the defendant may be guilty of theft. Because the defendant’s conviction was not based solely on circumstantial evidence, the exclusion of every reasonable hypothesis of innocence is not necessary in order to affirm the conviction.

Generally, the intent to permanently deprive the owner of the use of the property is proved by circumstantial evidence. (People v. Cortez (1975), 26 Ill. App. 3d 829, 833.) This element may be inferred from all the facts and circumstances of the case — including a defendant’s recent, exclusive and unexplained possession of stolen property. (People v. Lanzotti (1978), 61 Ill. App. 3d 451, 454.) Here, the defendant was found in exclusive possession of a recently stolen vehicle. Additionally, joint possession with another is sufficient to constitute exclusive possession within the meaning of the term used in the presumption. (People v. Harris (1972), 53 Ill. 2d 83, 87.) The law in Illinois is that the recent, exclusive possession of stolen property, without a reasonable explanation, in and of itself gives rise to an inference of guilt which may be sufficient to sustain a conviction in the absence of other facts and circumstances which leave in the mind of the trier of fact a reasonable doubt as to the guilt of the accused. People v. Hawkins (1963), 27 Ill. 2d 339, 341; see also People v. Housby (1981), 84 Ill. 2d 415, 422.

In Hawkins, the defendant was involved in a traffic mishap. Shortly thereafter, it was determined that the defendant had been driving a stolen vehicle. The defendant was charged with theft in violation of section 16 — 1(a)(1). Although the defendant did not testify at trial, through cross-examination of a police officer, it was established that earlier the defendant had told the officer that he did not steal the automobile. He had explained to the officer that the vehicle belonged to someone named Black Sam, who had given it to the defendant so that the defendant could purchase some wine. In affirming the defendant’s conviction, the supreme court applied the earlier cited presumption of guilt, notwithstanding the defendant’s uncontradicted explanation. Noting that the defendant did not know Black Sam’s last name, or where he worked, lived or could be found, the supreme court determined that the trial court was justified in not accepting the defendant’s story and affirmed the defendant’s conviction.

In People v. Stock (1974), 56 Ill. 2d 461, 475, the supreme court, in explaining the presumption found in Hawkins, stated that the defendant may not defeat the inference of guilt by the mere fact of raising any explanation. The defendant’s explanation must be a satisfactory explanation which the trier of fact finds to be reasonable.

Here, the trial judge also found the defendant’s explanation to be unreasonable. Whether the defendant’s explanation is deemed reasonable is primarily a question of fact for the trier of fact. (People v. Hainline (1979), 77 Ill. App. 3d 30, 34.) If the trier of fact does not believe the story, the possession is considered not explained and the presumption is still valid. People v. Burris (1969), 116 Ill. App. 2d 79, 83.

In both Hainline and Burris, however, the defendant’s explanation was contradicted by other evidence presented by the State. Here, the defendant’s explanation is uncontradicted. We note, however, that the explanation in People v. Hawkins (1963), 27 Ill. 2d 339 was also uncontradicted yet the supreme court affirmed the conviction.

The defendant, nonetheless, argues that because his explanation was uncontradicted it must be accepted by the trier of fact. (People v. Weiss (1976), 34 Ill. App. 3d 840.) At first view, Weiss would seem to support the defendant’s contention. In Weiss the defendant was convicted of the receipt of stolen goods. The evidence established that the defendant had a telephone in his apartment. By using circumstantial evidence, the State established that the phone was stolen. The defendant explained that the unconnected phone was in the apartment when he moved in, that he did not know it was stolen, and that he had not used it. In reversing the trial court, the appellate court stated that even though the State had introduced sufficient evidence to make a prima facie case, it was insufficient to take the case to the jury once the defendant offered his uncontradicted explanation of his possession.

Weiss is distinguishable from the instant case in that all of the evidence in Weiss was circumstantial. Moreover, in Weiss, the defendant was not charged with theft under subsection (a) as in this case, but was charged with theft by the knowing receipt of stolen goods under subsection (d). The inference of guilt to be drawn from recent possession of stolen goods, as discussed in Hawkins, is inapplicable when the defendant is charged under subsection (d). (People v. Malone (1971), 1 Ill. App. 3d 860, 863.) The presumption, however, is applicable when the defendant is charged with a violation of subsection (a). (See People v. McIntosh (1977), 48 Ill. App. 3d 694.) Here, defendant is charged under subsection (a), theft by knowingly exerting unauthorized control through mere possession of the property, intending to permanently deprive the owner of its use. People v. Helm (1973), 10 Ill. App. 3d 643, 646.

In People v. McIntosh (1977), 48 Ill. App. 3d 694, the court explained the application of the rule that the possession of a recently stolen automobile is sufficient to warrant a conviction for theft of that automobile and the application of the rule when the defendant chooses to offer an explanation:

“The usual application of the above rule requires the State to introduce evidence that the auto had in fact been recently stolen before defendant was found to be in exclusive possession. Such evidence creates an inference of guilt which can be rebutted by defendant’s explanation. The procedure was fully explained by the court in People v. Hanson, 97 Ill. App. 2d 338, 240 N.E.2d 226:
‘When the courts speak of an explanation they do not mean that any explanation overcomes the inference of guilt. It must be a satisfactory explanation — one that the trier of fact finds reasonable and acceptable. This does not mean that a defendant must assume the burden of giving a satisfactory explanation for the possession of stolen property or be found guilty if he does not, for the burden is always upon the State to prove him guilty beyond a reasonable doubt. It does mean, however, that the inference arising from the recent and exclusive possession of stolen property casts the burden of going forward with the evidence upon the defendant. If no explanation is made the inference maintains and the weight to be given it is for the trier of fact to decide. If an explanation is made, the acceptance or rejection of the explanation is also for the trier of fact.’ (97 Ill. App. 2d 338, 342.)
Moreover, a defendant who chooses to explain his possession of stolen property must offer a reasonable story or be judged by its improbabilities. [Citations.]” 48 Ill. App. 3d 694, 700.

In McIntosh, the defendant was found in possession of a stolen 1970 Volkswagen. At trial he stated that he had purchased the vehicle from a Bill Krocheck, in Collinsville, Illinois, for $800. The defendant was able to produce a receipt. The court noted that the VIN plate on the vehicle was loose and that the license plates were not registered to the defendant. The court stated that the defendant’s explanation left unanswered questions and was not worthy of belief. The court concluded that the defendant’s explanation was insufficient to raise a reasonable doubt of his guilt.

The narrow issue before us here is whether the defendant’s explanation was sufficient to raise a reasonable doubt of his guilt. At trial the defendant testified to the following. He is the president and national salesman of Kelly Cartage Company, an interstate trucking company located in Chicago, Illinois. In his job, the defendant oversees the day-to-day operation of a trucking company, which utilizes 20 to 30 trucks and has a 35-door dock.

As a hobby, Mr. Sherman collects, buys, and sells Corvette automobiles. He also buys and sells parts for Corvettes. In order to purchase the Corvettes and parts, he attends weekly auctions which are open only to dealers, such as himself. On occasion, the defendant will purchase a salvage automobile for spare parts. He stated that a salvage automobile could be a theft recovery, a burnt or stolen vehicle, a damaged car, or a bank repossession.

The defendant gave the following explanation of his possession of the stolen vehicle. At noon on January 16, 1980, the defendant received a phone call from someone named Michael Hanson, an employee of Precision Corvette Company in Downers Grove. Hanson told the defendant that one of his clients had a vehicle which was a theft recovery and that the client wanted to dispose of the vehicle. Although Hanson was not a friend of the defendant, the defendant agreed to take the vehicle to the automobile auction. The defendant informed Hanson that he would try to pick up the vehicle that evening. The defendant testified that he did not pick up the vehicle until approximately 4 p.m. the next day, January 17, 1980. Earlier that day he had received another call from Hanson. Hanson asked him to “please get the car out of his building, that he wanted to take it to the auction.” The defendant told Hanson that he was interested in either buying the Corvette or taking it to the auction and that he would be there as soon as possible. The defendant asked one of the men on the dock, Gregory Gill, to go with him to pick up the car. When the defendant arrived at Precision Corvette, he spotted the orange Corvette and tried to start it. Because the car would not start, Michael Hanson charged the battery. The defendant started the Corvette and drove away. He was at Precision no more than five minutes. Gregory Gill was following the defendant in defendant’s mother’s Buick. Shortly thereafter, the defendant was pulled over and arrested.

On cross-examination, the defendant admitted that the ignition was not quite right; it was loose in the column and the keys did not fit well. According to the defendant, the vehicle looked like any other theft recovery, in that parts are usually missing from theft recoveries. He stated that he often received theft recoveries from reputable people. This was the first time he had received one from Hanson. The defendant admitted that he did not see, nor did he request to see a title to the Corvette. The defendant stated that it is a common procedure at auctions to sell a vehicle without a title. Any sales made are contingent upon production of titles. When asked whether he knew which police department had recovered the vehicle, the defendant stated that he did not know and that he generally doesn’t ask those questions. The defendant testified that at the time he drove the vehicle away he had not yet made a decision as to whether he would buy the Corvette or take it to the auction.

While this explanation cannot be categorized as preposterous or ridiculous, it is uncorroborated. The defendant did not call Michael Hanson, Hanson’s client, or Gregory Gill to corroborate his story.

Although the explanation is not patently false, the trial judge found the explanation to be improbable, and this finding does have support in the defendant’s own testimony. Even though the defendant stated that he was interested in purchasing the Corvette, it took him less than a few minutes to pick up the vehicle. It can be argued that generally prospective purchasers spend more than a few minutes discussing the terms and conditions of the sale with the seller. In fact, there is no evidence that any price was ever discussed. Moreover, from the defendant’s testimony, it seems that the defendant had obtained something in the nature of an option over the vehicle; he could choose to either buy it or sell it at the auction. Yet' the arrangement between him and Hanson was quite informal, so informal as to be improbable. It also seems improbable that someone interested in purchasing a vehicle, especially a theft recovery, would not ask more questions concerning the state of title and registration, the identity of the owner, and the conditions under which the car was recovered.

It can be argued that under the circumstances in this case, only a naive person would take possession of the vehicle without further inquiry. The defendant, however, was not a naive consumer; he was a dealer who bought, sold, and collected Corvettes.

In a bench trial, the trial judge is charged with the responsibility of determining the credibility of the witnesses and we must give due deference to that determination. (People v. Deming (1980), 87 Ill. App. 3d 953, 960.) The record makes evident that the trial court did not believe the defendant or accept his explanation. From the total circumstances shown by the evidence, we cannot say that the defendant’s explanation was sufficient to overcome the trial court’s determination that defendant was guilty beyond a reasonable doubt.

We have also considered the other issues raised by the defendant, namely, that the State failed to prove that the vehicle was owned by someone other than the defendant; that the defendant did not have authority to drive the vehicle; and that the State’s failure to preserve the allegedly altered VIN plate violated the defendant’s due process rights. We find them to be without merit.

The judgment, conviction, and sentence of the trial court are affirmed.

Affirmed.

SEIDENFELD, P.J., and LINDBERG, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
      In re MARRIAGE OF RUTH ANN BLOCK, Petitioner-Appellee, and WILLIAM M. BLOCK, Respondent-Appellant.
    Second District
    Nos. 81—831, 81—968, 82—13 cons.
    Opinion filed October 29, 1982.

      William G. Rosing and Stephen G. Applehans, both of Rosing, Carlson & Magee, Ltd., of Waukegan, and Roger A. White & Associates, of Lake Bluff, for appellant.
    Jerome Marvin Kaplan and Grant & Grant, both of Chicago, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

William M. Block appeals from the portion of the judgment dissolving his marriage to Ruth Ann Block which divided property and awarded the wife unallocated maintenance and child support. The husband also appeals from an order disposing of reserved matters not incorporated in the decree of dissolution.

In the decree entered September 25, 1981, dissolving the 1957 marriage of the parties, the trial court determined that the gross marital assets of the parties were between $1,750,000 and $1,810,000 and that there were marital debts of $1,621,000. The court arrived at a net worth of $437,501 as follows:

I. Excess Marital Assets Pledged
State Bank of Antioch Marine Bank
Zion State Bank
II. Equity in Weldon Square Apartments
III. Current Value of Profit Sharing Plan
IV. Current Value of Pension Plan
Net Marital Assets
$ 73,000
$ 25,000
$ 24,000
$ 35,000
$226,183
$ 54,018
$437,501

The court refused to consider as marital debts a second mortgage on the marital residence ($122,000) and a purchase money mortgage on a racing boat ($70,000). The court found that the husband incurred these debts in contemplation of divorce and in dissipation of the marital estate. Also, the court found that the husband was in debt to his daughter Stephanie for dividends on shares of family stock which he had used during the marriage. The court then ordered, inter alia, that the wife be awarded $328,125 representing 75% of net marital assets, payable in a lump sum or in monthly installments; that the husband pay the medical, dental and college expenses of Stephanie, the minor daughter of the parties, until she reached the age of emancipation or graduated from college; that the husband place in trust for Stephanie’s benefit her stock shares and that he repay all dividends earned on shares which he had used; that each spouse be awarded 700 shares of nonmarital stock registered to each; and that the marital home be sold with the net proceeds to be applied toward the wife’s property award. The court reserved for later hearing questions regarding payment of attorney fees and certain marital home debts and other matters then pending under various petitions.

Various questions are raised by the husband.

I

The Outstanding Bank Loans

Principally in issue is whether the trial court properly found that certain pledges of stock against loans were excess marital assets which increased the net marital estate.

A. The State Bank of Antioch loan — the parties stipulated that the balance due on the loan incurred in 1966 or 1967 to purchase Quaker Industries stock, and renewed in 1980 by a co-signed note of the parties, was $334,500. The note was secured by 4073 shares of Quaker Industries, a Block family-operated closely held corporation. The husband is the son of Hattie Block, the principal shareholder of Quaker Industries and is a salesman and executive vice-president of the company. The husband pledged 1000 shares of Quaker Industries stock registered to the “Hattie Block Trust,” 930 shares registered to William M. Block individually, and 2143 shares registered jointly to the parties against the loan.

The court placed a fair market value of $100 per share and calculated the marital equity in the Quaker Industry stock at $407,300 (4073 shares at $100), deducted the $334,500 debt, leaving $73,300 which the court found to be “excess marital assets” to be divided. We find no basis in the record for this disposition.

The Hattie Block trust stock certificates bear a May 1, 1980, date, approximately 10 months after the parties separated as found by the court. In 1967 the board of directors of Quaker Industries passed a resolution providing that if Quaker Industry shares were pledged against loans, the corporation would repurchase the shares for the amount of loan in default.

The wife argues that the trust shares were available to the husband to use at his will, and for his tax advantage. No trial testimony, however, related to the circumstances surrounding the pledge of the shares of the Hattie Block trust. While, in effect, the wife urges that the Hattie Block trust stock was essentially a gift to the husband presumably commingled with marital collateral disguised to afford the husband tax advantages as well as to avoid payment of a gift tax, there is no support for this argument in the record. Nor is there support in the record for the husband’s insistence that the trust shares were for accommodation only. There was no testimony produced by either party which would aid us in analyzing the effect of a repurchase of the stock. Nevertheless, the wife argues here that in the event of a default Quaker Industries could buy back its shares at less than the determined $100 fair market value (i.e., 4073 shares for the $334,500 indebtedness). There was also no testimony to support the wife’s argument here that the husband will receive tax benefits not available to the wife. In the absence of a proper foundation for these arguments we have no basis to consider them as they amount to a mere speculation. See In re Marriage of Emken (1981), 86 Ill. 2d 164, 167; In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 509.

The wife’s argument that the court did not find the Hattie Block trust shares to be marital property but applied their value to reduce indebtedness and leave a “surplus” does not aid in solving the problem. The law requires that debts as well as assets must be equitably proportioned. (In re Marriage of Simmons (1981), 101 Ill. App. 3d 645, 647.) If the value of the Hattie Block trust stock is not applied to the $334,500 indebtedness, the husband’s 930 shares ($93,000) and the jointly held 2143 shares ($214,300) would be subject to repurchase by Quaker Industries. This would leave a short-fall of $27,200 ($334,500 minus $307,300) which presumably could be a marital debt. On the record before us it was error to apply the Hattie Block trust shares against the debt to reach a net equity in the marital assets pledged.

B. The Zion State Bank loan — there was a balance due of $46,398.95 on a similar loan at the Zion State Bank. This loan was secured by 1286 shares of Quaker Industries stock valued at $128,600 belonging to the now emancipated daughter of the parties, Kimberly Block (the husband is the custodian under a uniform gift to minors trust), and 240 shares jointly owned by the parties ($24,000). We find no basis for the court’s determination that Kimberly’s shares could be used to reduce the marital indebtedness, so as to result in an “excess.”

C. The Marine National Bank loan — there was also an indebtedness owing to the Marine National Bank in the amount of approximately $218,000. The debt was incurred for living expenses, for payment of interest due on other loans, and for business debts arising at least partly out of the parties’ high fashion clothing store, Giovanni’s, which was then in the process of losing between $400,000 and $500,000. Two thousand four hundred and thirty shares of Quaker Industries registered to William Block individually ($243,000) and 1100 shares registered to Hattie Block were pledged. The trial court arrived at $25,000 in net marital equity as follows: $243,000, the husband’s shares, (2430 shares x $100/share) minus $218,000, or $25,000.

The husband contends that the trial court overlooked the fact that interest continues to accrue on the loan at a rate of $43,722.95 per annum and that he is without funds to pay even the interest accruing. We conclude that the court did not abuse its discretion in believing that the husband had the capacity to earn money such that the debt would not consume the net equity.

In determining the certainty of present income, a court may properly consider past earnings. (See In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 837; In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 1014.) In the final three years of marriage, the husband’s gross annual income varied between $260,000 and $280,000; his dividend income on his shares and jointly held shares summed to $43,450 alone in 1980.

On the state of the record the proof does not support the conclusion of the trial court that there were excess marital assets pledged against the State Bank of Antioch and the Zion State Bank loans. Additionally, we find no basis for applying the daughter’s shares of stock so as to result in a net marital asset to be divided by her parents. In this regard a remand is necessary to determine whether the Hattie Block Trust shares represent an accommodation or a gift. On remand, the daughter’s shares may not be considered in reduction of marital indebtedness.

II

The Weldon Square Apartments

The husband argues that the trial court erred in ascribing a marital equity of $35,000 to an asset described as the “Weldon Square Apartments.” The husband testified that this was an investment in Cleveland which he and his brother went into almost 10 years before the hearing “strictly for tax write-off purposes,” that the tax schedule was set up for 10 years, the property to be then sold; but that it operated at a loss and had no asset value. The husband, however, had placed a value of $35,000 on his interest as shown in financial statements dated September 1, 1978, and August 23, 1979. The husband explained that the statements were stale and that subsequent losses exceeded any asset values. The valuation of assets is a question of fact. (In re Marriage of Boone (1980), 86 Ill. App. 3d 250, 252.) The trial judge could, as he apparently did, find the financial statements more credible than the husband’s testimony at trial. The husband’s financial statement is competent evidence of value to enable the court to make its determination in the absence of expert testimony as to valuation or other evidence more persuasive than the unsupported personal opinion of one of the parties.

Ill

Debts Found to Have Dissipated Marital Assets

A. Mid-West National Bank of Lake Forest, Second Mortgage on the Marital Residence. The husband contends that the second mortgage on the marital residence in the amount of $122,056.57 (principal and interest), dated April 30, 1981, was not an intentional dissipation of marital assets incurred in contemplation of divorce, as the trial court found, but is a legitimate debt to pay living expenses and other debts accumulated by the high living style of the parties. The husband argues that it was therefore error to exclude the mortgage balance from the marital debts.

Where a spouse uses marital property for his own benefit and for a purpose unrelated to the marriage at a time in which the marriage is undergoing an irreconcilable breakdown, the court may consider that conduct and compensate the disadvantaged spouse when apportioning the marital property. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 462.) The husband testified generally he borrowed the money in the spring of 1979 and that the purpose of the loan was to finance the parties’ affluent life style but did not show specific disposition of the funds. While the mortgage was dated and recorded April 30, 1981, there is evidence that an original promissory note as evidence of the same indebtedness was dated October 29, 1979, and states that it is secured by a junior mortgage on the marital residence. Because of the meager evidence bearing on the use and purposes of the mortgage we are unable to agree with the finding of the trial court that it amounted to a dissipation of assets at a time when the marriage was undergoing an irrevocable breakdown. On remand the trier of fact should address this issue on the basis of more particular evidence than we find in this record.

B. The “Scarab” Racing Boat — The husband also contends that the trial court’s treatment of his purchase of the Scarab, a racing boat, as a debt in dissipation of the marital estate is in error in several respects. The husband purchased the boat in February or March of 1979, shortly before the parties physically separated, for approximately $70,000. The record also shows that at the time he already owned a large yacht that he had leased out because he could not afford to maintain it. There was also evidence that the balance of the indebtedness at the time of trial was approximately $69,000, that there were $7,000 owed in repairs and that the Scarab was found by the court to be marital property worth between $40,000 and $70,000. We agree with the trial court that the transaction could properly be considered a dissipation of assets, and the court could properly consider the dissipation in dividing marital property “in just proportions.” Ill. Rev. Stat. 1981, ch. 40, par. 503(d)(1).

The trial court made no finding of the present fair market value of the Scarab except in the range of $40,000 to $70,000. If the approximately $70,000 loan is taken into consideration on remand, the trier of fact would also be required to determine the fair market value of the Scarab at the time of the original trial as an offset against the indebtedness. Of course, if it should appear that the value of the boat is approximately the same as the amount of indebtedness there would be no net effect on the marital estate.

IV

The Trust Imposed on the Quaker Industries Stock Given for the Benefit of Stephanie Block

The husband urges that the trial court was without authority to impose a trust on 1736 shares of Quaker Industries stock which the husband’s parents gave to the parties’ minor daughter, Stephanie, under the Uniform Gifts to Minors Act (Ill. Rev. Stat. 1981, ch. llOVz, par. 201 et seq.). The court further ordered that the trust be subject to an accounting, as the wife deems necessary upon proper notice to the husband, required the husband to remove all liens against these shares within two years from the date of judgment and to repay dividends on the shares which he had used. The husband is the custodian of the shares.

The wife claims that the trial court properly exercised its equitable powers pursuant to section 503(d) of the Illinois Marriage and Dissolution of Marriage Act. This provides, however, that “[t]he court may protect and promote the best interests of the children by setting aside a portion of the jointly or separately held, estates of the parties in a separate fund or trust ***.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 40, par. 503(d).) Effective January 1, 1982, this subsection as amended is redesignated subdivision (f) of section 503.

The authority of Illinois courts to set aside separate funds or create trusts for dependents is strictly limited to the purposes set forth in this subsection. There must be a showing that the establishment of a trust is necessary to serve the best interests of the child; and the trust is not to be established for the general benefit of the child, but must instead be established proportionate with the support and educational needs of the child and limited to the period in which a duty to support exists. (In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 310; In re Marriage ofRaski (1978), 64 Ill. App. 3d 629, 632-33; Ill. Ann. Stat., ch. 40, par. 503, Historical and Practice Notes, at 476 (Smith-Hurd 1980).) The emphasized language of subsection (d) quoted above and the decisions limit the court’s trust powers to the marital and nonmarital property of the parties before the court. (See also In re Marriage of Amato (1980), 80 Ill. App. 3d 395, 400; In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 637-38; Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 216-17; Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 178-79.) Thus the trial court does not have the equitable powers claimed under this section to set aside the minor’s separate property. The cases cited by the wife in support of such authority are factually distinguishable on this ground.

In this connection it may be noted that, contrary to the wife’s assertion, the trial court is not “impotent” to remedy abuses committed by a custodian. Under the Uniform Gifts to Minors Act (Ill. Rev. Stat. 1981, ch. IIOV2, par. 208(a)) Stephanie or her mother may petition for an accounting of the shares.

V

The Provision Requiring the Husband to Pay Stephanie’s College Expenses

The trial court ordered the husband to pay future college expense for Stephanie, the minor daughter of the parties, subject to his right to petition the court at a later time to use Stephanie’s own assets. The husband contends that this was error, both because the wife is able to contribute to these expenses from her award of marital property and because Stephanie’s substantial assets would allow her to meet the obligations.

Section 513 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 513) provides in substance that the court may make provision for the education and maintenance of children “whether of minor or majority age, out of the property and income of either or both of its parents as equity may require” considering the financial resources of both parents, and the financial resources of the child.

The statute clearly gave the trial court authority to make an equitable contingency provision for the education of Stephanie during and beyond her minority. (Imes v. Imes (1977), 52 Ill. App. 3d 792, 796.) The court could compare the “financial resources of both parents” as the statute enjoins and properly find that presently the husband’s financial resources are superior. In the last three years of the marriage the husband’s gross annual income was from $260,000-$280,000 with apparently no Federal income tax paid. The wife’s economic opportunities are limited, she was principally a homemaker, 41 years old, unemployed, had no particular job skills, only a high school education and suffered from nervous tremors. While the husband suggests that his debts are “staggering,” on analysis this appears to be an exaggeration. Approximately $55,000 in three mortgages on the parties’ investment properties in Kenosha are held by the husband’s mother. Two of the obligations are interest-free second mortgages which are without notes providing for repayment. The husband has made no payment to his mother on a third mortgage. Moreover, the court order directing the sale of the marital residence will liquidate approximately $250,000 of the husband’s debt.

The court is required by the statute to also consider the “financial resources of the child.” Stephanie, age 15V2 at the time of the decree, has 1726 shares of Quaker Industries stock which were valued in the proceeding at $100 per share or a total of $172,600. The court, in effect, reserved jurisdiction until a future date to determine whether a part of these shares should be available for Stephanie’s college expenses. When these expenses become an actuality the parties may then petition the court to exercise its discretion under the statute, and the court at that time will be in a better position to make its determination. However, we conclude that it was not an abuse of discretion to enter the order in the form stated.

We conclude, however, that the court did abuse its discretion in ordering the husband to pay Stephanie’s medical and dental expenses until she reaches the age of emancipation or graduates from college, whichever occurs last. For reasons previously stated, the trial court could find that the husband was the parent in the superior financial position to bear Stephanie’s medical and dental expenses while she was a minor. (In re Marriage of Thompson (1979), 79 Ill. App. 3d 310, 316.) In the form stated, however, the court order is not limited to the period in which a duty of support exists under section 513, for the order would require the husband to pay all medical and dental expenses of his adult daughter even if she is not disabled or then attending school, but self-supporting out of her income-producing assets. We conclude that the trial judge should have reserved the same option of apportioning these maintenance-related expenses out of Stephanie’s own funds when the court had already done so for Stephanie’s college education. Otherwise, it is an abuse of discretion for the court to disregard that the adult child’s financial resources substantially exceed expected education and maintenance expenses. Westerberg v. Stephens (1979), 76 Ill. App. 3d 119, 123.

VI

The Nieman-Marcus Charge

The husband also claims that the trial court abused its discretion in ordering him to pay the $20,104.74 balance due in a NiemanMarcus charge account, which he claims was used entirely by the wife for her clothing purchases. He does not contend, however, that the clothing charge dissipated the marital estate, or that the wife incurred these charges after she left the marital home. The court’s decision does not amount to an abuse of discretion, given the statutory factors referred to in section 503(c) of the Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1981, ch. 40, par. 503(c).) By ordering the husband to pay the $20,000 debt the trial court in effect simply awarded the wife this sum as additional property in accordance with its division of the marital property into just proportions. See In re Marriage ofWiedner (1979), 75 Ill. App. 3d 1014, 1018-19.

VII

The Effect of the October 13 Order

In an agreed order of October 13, 1981, with reference to matters which the trial court had reserved at the time of entering the dissolution decree, the trial court directed each party to pay his or her own attorney fees; ordered the wife to sell to the husband her 700 non-marital shares in Quaker Industries for $45,000; required the husband to furnish a wage assignment for unallocated maintenance and child support; granted the wife leave to move to California with Stephanie; credited the husband with $2,209 on the wife’s property award with a corresponding $250 reduction in monthly installments; and provided that the wife’s attorney serve as escrowee of the wage assignment furnished as security for the property award.

On November 10, 1981, the wife moved to vacate this order based on her understanding that the husband had violated the agreement by appealing on October 23 from the September 25 judgment of dissolution. In its order of November 10, 1981, the trial court denied the motion, finding that the husband’s notice of appeal ousted it of jurisdiction to vacate the October 13 order and the November 10 order which have been consolidated here.

The parties have somewhat changed their position in oral argument. The husband now requests that the October 13 order stand regardless of modification of the net marital estate. Contrarily, the wife has asked that the October 13 order be vacated unless the trial court’s valuation of the net marital estate is affirmed.

The law favors amicable settlement of property rights in cases involving dissolution of marriage and are reluctant to disturb an agreed order in the absence of fraud, coercion, or settlement terms which are against public policy or morals. (Horwich v. Horwich (1979), 68 Ill. App. 3d 518, 520-21.) Here the wife has not argued that she agreed to the sale of stock or to paying her own attorney fees under coercion. The sales price of $45,000 for the closely held shares does not seem unconscionable. The agreed order on its face contains no condition barring appeal, nor is it otherwise conditioned. The fact that the agreement may be less advantageous to the wife if there is a reduction in the net marital estate on remand does not make it unconscionable. The settlement applied to separate matters and we cannot agree that it was “inextricably interwoven” with the appeal from the dissolution judgment.

We conclude that the cause must be remanded. In doing so we are impelled to comment that the trial judge made a thorough and conscientious effort to deal with complex financial affairs involving varied assets and complicated debts and was even more burdened than necessary because of the failure of the parties to present testimony which might have aided in better assessing the import of the various transactions. Moreover, based on the record, we agree generally with the allocation of net marital assets, except to the extent we have indicated in particular details.

The dissolution judgment of September 25, 1981 (No. 81-831), is reversed and the cause remanded for further proceedings consistent with this opinion. The orders of October 13, 1981 (No. 81-968), of November 10,1981, and of December 7,1981 (No. 82-13), are affirmed.

Reversed in part and remanded; affirmed in part.

UNVERZAGT and REINHARD, JJ., concur.