author: JUSTICE PER.LIN

text:
    JOHN BURNS CONSTRUCTION COMPANY, Plaintiff-Appellee, v. INTERLAKE, INC., Defendant-Appellant.
    First District (2nd Division)
    No. 83—1422
    Opinion filed June 19, 1984.

      Wildman, Harr old, Allen & Dixon, of Chicago (Thomas D. Allen and Robert E. Kehoe, Jr., of counsel), for appellant.
    Pope, Ballard, Shepard, & Fowle, Ltd., of Chicago (Thomas J. Regan and Mark T. Dunn, of counsel), for appellee.
   JUSTICE PER.LIN

delivered the opinion of the court:

In 1974 John Burns Construction Company (Burns) brought an action in the circuit court of Cook County against Interlake, Inc. (In-terlake), seeking additional payment for a sewer project which, pursuant to a written contract, Burns had constructed for Interlake in 1973. Interlake paid to Burns the stated contract price of $68,117, but Burns claimed an additional $149,000 to cover the cost of extra work resulting from unforeseeable problems encountered on the job. The trial court, on the basis of mutual mistake, rescinded the parties’ written contract and, applying quantum meruit, entered judgment for Burns in the sum of $130,406.25. Interlake appealed, and this court affirmed the trial court’s rescission of the contract but vacated the damage award of $130,406.25, finding that the award “did not take into account what amount of Burns’ costs were attributable to Bums’ own construction errors.” This court remanded for a hearing “to ascertain the value of Burns’ work. The value of that work should not include the costs, if any, necessitated by Burns’ own negligent acts or omissions.” John Burns Construction Co. v. Interlake, Inc. (1982), 105 Ill. App. 3d 19, 28, 433 N.E.2d 1126, 1132.

On remand, the trial judge deleted what he concluded were the costs attributable to Burns’ negligence and entered a $117,571.25 judgment in favor of Burns. Interlake again appeals, contending (1) that “the trial court erred in the nature of the hearing upon remand”; (2) that the trial court “wrongfully excluded evidence” as to the value of Burns’ work; and (3) that the trial court’s “starting point” of $130,406.25 for recomputing damages was unsupported by the evidence.

On remand, the judge advised the parties, “I want you to be fully aware that I intend to really restrain or restrict this hearing pursuant to the Appellate Court mandate to a hearing in the area of the damage award of the Court less whatever would be attributable to Burns, either because of their own negligence in the two areas, the Valley Mould and Iron line area and in piercing an existing sewer line with one of its well points. It appears to me that’s what the [Appellate] Court has delineated for our attention ***.”

Interlake’s counsel argued that the hearing would not be “limited just to the consideration of the value caused by those problems due to Bums’ negligence, *'** but that the [Appellate] Court has remanded this case for a determination of the value of Burns’ work.” Interlake contended that the hearing should consider the “total evidentiary value of their [Burns] work.”

The trial court disagreed, stating that it was “not going to allow a general calculation of an overall worth of John Burns’ work ***.” The trial judge noted that he had already considered the initial evidence of Burns’ costs in arriving at his original conclusion with regard to damages.

Richard L. Thompson, executive vice-president and secretary of Burns during the instant sewer project, testified: he computed Burns’ costs in the Interlake sewer project to be $217,667.82. The costs attributable to the Valley Mould and Iron line rupture allegedly caused by Armco, Burns’ subcontractor, amounted to $3,434.62, and the cost to repair the piercing of the existing sewer line caused by More-trench, also Burns’ subcontractor, amounted to $1,063.42. These costs covered labor, equipment and subcontractor bills received by Burns from its subcontractors.

James Bitner, plant engineer for Interlake, testified: he was responsible for overseeing “the contractors’ performance of installing a new sanitary sewer at the furnace plant.” The ruptured sewer line was “plugged” in a day and a half. With regard to the piercing of the existing sewer line, Bitner explained that following this incident the dewatering system was incapable of removing all of the escaping water and required enlarging. He further testified that it cost $900 to rebuild “manhole #2” and $8,500 to install the necessary dewatering system.

George Berry, business; administrator for Moretrench American Corporation, Bums’ dewatering subcontractor, testified: Moretrench prepares service reports that are kept in “the normal course of [the] company’s business.”

When Interlake’s counsel attempted to introduce into evidence the Moretrench service reports to establish the negligence of Burns, the trial court sustained Burns’ objection to the admission of these reports as irrelevant.

At the conclusion of the hearing, the trial judge noted that in his opinion the appellate court did not “quarrel” with his original damage award but rather with his inclusion in such award of an amount attributable to Burns’ own negligence. The court recalculated the amount of damages, accepting Burns’ figure of $3,434.62 as its responsibility, together with $8,500 for constructing the second dewa-tering system and $900 for rebuilding “manhole #2.” Subtracting these items from the original award, the trial court entered judgment in the sum of $117,571.63.

Interlake contends that the prior decision of this court “instructed” the trial court on remand “to conduct a hearing to ascertain the value of Burns’ work” under the principle of quantum me-ruit; that all evidence of value is relevant; and that the trial court’s “starting point” of $130,406.25 in recomputing damages was not supported by the evidence.

Our original opinion stated in relevant part, “We believe that the award of damages must be vacated and the cause remanded for a hearing to ascertain the value of Bums’ work. The value of that work should not include the costs, if any, necessitated by Burns’ own negligent acts or omissions. *** [We] remand the cause for a hearing on damages not inconsistent with the views expressed herein.”

The trial judge maintained that the appellate court mandate required only that he determine the damages attributable to the negligence of Burns and remove such damages from the award.

It is generally held that “where a reviewing court remands a cause with specific directions, they must be followed exactly [citations]; but, if specific directions are not given, the trial court is required to examine the appellate court’s opinion and determine therefrom what further proceedings would be proper and consistent with the opinion.” (Zokoych v. Spalding (1980), 84 Ill. App. 3d 661, 666, 405 N.E.2d 1220, 1225.) Where, as in the instant case, “the direction is to proceed in conformity with the opinion, then, of course, the content of the opinion is significant. [Citations.] In construing the language, matters which are implied may be considered embraced by the mandate.” PSL Realty Co. v. Granite Investment Co. (1981), 86 Ill. 2d. 291, 308, 427 N.E.2d 563, 571.

Our review of this record reflects that the trial court here limited the admission of evidence to the “costs” attributable to Burns’ errors with regard to the Valley Mould and Iron line rupture and the piercing of the existing sewer line. These were the two specific areas of Burns’ negligence to which reference was made in the original appeal of this case. Pursuant to our views expressed in the first appeal, the trial court here ascertained and deducted from the award of $130,406.25 the costs attributable to Bums’ errors.

The amount of an award is “purely a factual issue which it [is] the duty of the *** trial judge to determine. *** This court may not set aside factual results reached by the trial court except when those results are manifestly contrary to the weight of the evidence.” Anderson v. Gewecke (1976), 36 Ill. App. 3d 170, 176-77, 343 N.E.2d 673, 678.

In the case sub judice , the trial court had ample opportunity to determine and to assess the damages suffered by plaintiff. In the initial trial, itemized statements of all Bums’ costs were admitted into evidence. On remand, the trial court determined which costs were attributable to Bums’ own negligence and thereupon removed them from the award.

In our opinion, the hearing on remand was conducted consistent with the views expressed in our prior decision.

For the reasons stated herein, we affirm the trial court’s $117,571.25 judgment.

Affirmed.

STAMOS and DOWNING, JJ., concur.

      Interlake at times refers to this figure as the “baseline.”


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
      In re ESTATE OF VERNON O. COMISKEY, Deceased (Joane Comiskey, Ex’r of the Estate of Vernon O. Comiskey, Respondent-Appellant and Cross-Appellee, v. Debra Comiskey, a Minor, by M. Marie Comiskey, her Mother and Next Friend, Petitioner-Appellee and Cross-Appellant).
    First District (2nd Division)
    No. 83—1760
    Opinion filed June 19, 1984.

      Robert F. Lisco and Sidney Z. Karasik, both of Chicago, for appellant.
    Robert R. Canfield, of The Canfield Law Offices, of Rockford, for appel-lee.
   JUSTICE DOWNING

delivered the opinion of the court:

In this probate action, the trial court, after construing a life insurance policy provision in decedent’s divorce decree, awarded the minor claimant one-half of decedent’s insurance proceeds. Both the executor of the estate and the minor appeal. The executor raises two issues: (1) whether the trial court erred in construing the terms of the property settlement agreement and awarding one-half of the life insurance proceeds to claimant; and (2) whether the trial court erred in holding that laches and equitable estoppel were inapplicable to the claim of the minor. In her cross-appeal, the minor raises the issue of whether she was entitled to the full amount of the insurance proceeds.

The claim in this action was brought against the estate of Vernon O. Comiskey (decedent), who died on December 22, 1981. The executor of his estate, respondent Joane Comiskey (executor), is decedent’s widow and third wife. Petitioner Debra Comiskey (Debra), a minor, is the child of decedent and his second wife, M. Marie Comiskey (Marie). Decedent and Marie were married on November 6, 1954, were divorced, and then remarried on December 31, 1955. Their child, Jenise A. was born on September 22, 1955. Decedent and Marie adopted Debra, born on December 17, 1967, who was a minor at the time of decedent’s death.

Decedent and Marie were divorced on October 26, 1970. The judgment for dissolution awarded decedent custody of Jenise and Marie custody of Debra. Decedent was ordered to pay a specified sum in alimony and child support. Article VI of the property settlement which was incorporated into the divorce judgment required that, in connection with six life insurance policies then owned by decedent, he was to:

“A. Name the two minor children of the parties as irrevocable beneficiaries of said policies during their minority under the same terms and conditions now existing and furnish proof to the wife that same has been done.
B. Pay the premiums when they become due.
C. Direct the duplicate premium notices and receipts be sent to the wife.
D. Make no further loans against said policies other than what has already been made and exist against said policies.
E. Do all other acts and execute all documents needed to keep those policies in full force and effect and to accomplish all matters set forth above.”

Schedule A of the agreement named the six policies which totaled the sum of $55,633. The policies at the time of the divorce named Marie as the primary beneficiary. Contrary to the settlement’s mandate, the minor children Jenise and Debra were never named as irrevocable beneficiaries. Instead, in October of 1972, decedent named executor, whom he married in June of that year, as primary beneficiary on all six policies.

In October of 1976, Marie filed a petition to show cause why decedent should not be held in contempt for failure to pay alimony and child support. In that action, Marie did not raise the issue of decedent’s failure to adhere to the settlement agreement in regards to the life insurance policies. Comiskey v. Comiskey (1977), 48 Ill. App. 3d 17, 366 N.E.2d 87, appeal denied (1977), 66 Ill. 2d 629.

After decedent’s death, the total proceeds of the policies were paid to executor. Marie filed this claim on behalf of Debra against decedent’s estate, seeking the sum of $55,633 based upon decedent’s failure to name Debra as an irrevocable beneficiary on the insurance policies in accordance with the settlement agreement. The estate answered and raised the affirmative defenses of statute of limitations, laches and that the minor was adequately provided for by social security.

At trial, Debra presented evidence from a life insurance company employee who supplied information about the changes in the named beneficiaries and the amounts paid to executor after decedent’s death. Marie testified that she did not receive the notices from decedent regarding the policies called for under the settlement agreement.

On behalf of the estate, decedent’s father, brother and executor testified that Marie had conversations with decedent in which she stated that she didn’t care about the life insurance policies as long as she was provided for by social security. The witnesses further stated that Marie had a bad reputation in the community for truth and veracity.

The estate also presented the expert testimony of an attorney who specializes in the domestic relations practice. He stated that in his opinion, the settlement agreement was ambiguous and that it was not clear whether the life insurance proceeds were meant as security for decedent’s support obligations, whether the minor should receive a windfall at decedent’s death, or whether the estate should pay the minor’s support out of the proceeds. During rebuttal, Marie denied ever making any statements that she was not concerned with life insurance.

The trial court entered an order allowing Debra the sum of $30,354.64, one-half of the amount that Joane had received in total for the six policies. On Debra’s subsequent motion, this award was later modified because decedent had, in contravention of the property settlement, made a loan on the policies subsequent to the divorce. The judgment was therefore increased to include one-half of $2,507.35, the amount of the loans. Both executor and Debra filed notices of appeal from the judgment.

Appeal By The Estate

I

Executor claims that the trial court erroneously construed the life insurance provision in the property settlement agreement by failing to give- effect to the intent of the parties that the insurance provision was intended solely as security for the payment of decedent’s child support obligations. Since Debra was 15 years old at the time of decedent’s death, his obligation for support payments until her majority would have only totaled $9,000 plus the cost of extraordinary medical expenses. Because the amount of the policies greatly exceeded the support requirements and the reasonable construction of the agreement was to protect Debra’s interest in the support payments, the estate concludes that Debra was only entitled to the portion of the policies which covered decedent’s remaining obligations to her.

Executor cites Halas v. Executor of Estate of Halas (1983), 112 Ill. App. 3d 940, 445 N.E.2d 1264, for support of her argument that the proceeds of the policies should have been paid to Debra only in the amount of decedent’s remaining support obligations. Halas, however, is inapposite because there, the parties agreed that the alimony in gross payments, which included child support, would continue after decedent’s death. In the settlement agreement, the husband had covenanted to maintain life insurance in any amount “no less than the unpaid balance of the alimony in gross due and owing the wife at any time, naming the wife or a trust for the benefit of wife as irrevocable beneficiary thereof until the husband’s said obligation to pay alimony in gross to wife has ceased.” 112 Ill. App. 3d 940, 943.

In the case at bar, the life insurance provision was a separate article which followed articles pertaining to the alimony allowance for Marie, education of the children, and medical, dental and related expenses, without any reference to the obligations contained therein. There is no indication from the divorce decree that the life insurance proceeds were intended to be related to or disbursed only to the extent of the support obligations. We cannot agree with the opinion of the estate’s expert that the document was ambiguous, or that the words in paragraph E of article VI that decedent should do all acts to accomplish “all matters set forth above” created confusion and might refer to all of decedent’s previously named support obligations.

Further, we find it significant that at the time that the instant settlement was entered into, the obligation to pay child support terminated upon the obligor’s death. (See In re Estate of Lewis (1974), 18 Ill. App. 3d 748, 750, 311 N.E.2d 694.) The provision was not drafted to satisfy a statutory obligation decedent had, but rather was a voluntary commitment. We think it clearly was the intent of the decedent to treat Jenise and Debra as irrevocable beneficiaries of said policies. We believe that if the intent of the parties was that the proceeds be distributed in the manner the estate now suggests, the parties would have specifically provided for this in the document. For these reasons, we reject the estate’s contention.

II

The estate also claims that the trial court incorrectly held that laches and equitable estoppel were inapplicable to this claim because the rights of a minor were involved. The estate is correct in its assertion that these defenses apply in matters of child support. This action does not, however, involve an attempt to enforce a child support obligation by a spouse; rather, it concerns an attempt by a minor to recover, as a third-party beneficiary, under a contract. (See Prudential Insurance Co. of America v. Rader (D. Minn. 1951), 98 F. Supp. 44, 48; Forman v. Forman (1966), 17 N.Y.2d 274, 283-84, 270 N.Y.S.2d 586, 591-92, 217 N.E.2d 645, 649.) The fact that Marie did not attempt to compel decedent’s compliance with the insurance provision does not affect Debra’s rights under the settlement agreement. (Travelers Insurance Co. v. Daniels (7th Cir. 1981), 667 F.2d 572, 574-75.) Also, it is to be remembered that it was the decedent’s intent to provide a benefit to his minor children and that at the time of the action, Debra was still a minor. (See Keal v. Rhydderck (1925), 317 Ill. 231, 239, 148 N.E. 53, where it was recognized that generally, the doctrine of equitable estoppel has no application to infants.) The trial court’s ruling was therefore correct.

Appeal By Debra

III

Debra claims that the trial court erroneously held that the executor could retain one-half of the insurance proceeds by reason of a change in beneficiaries made in contravention of the divorce judgment. She reasons that the first class of beneficiaries consists of herself and Jenise, the intended irrevocable beneficiaries under the divorce agreement, and the second class is the executor, the subsequently named beneficiary. Debra contends that the rights and status of the beneficiaries were in the minor children from the time of the divorce and because decedent changed the beneficiary designations while the children were still in their minority, this modification was not legal. Debra argues that the two classes clearly conflict and no law supports the conclusion that they should be joined into one class with the result that they share equally in the proceeds.

It is well settled that where an insured, pursuant to a divorce decree, agrees to change beneficiaries on life insurance policies but does not do so, “the law will regard him as having done that which he is obligated to do and will treat the policies as equitably assigned to the persons who should have been named as beneficiaries.” (17 Couch, Insurance sec. 63A:162, at 98 (2d rev. ed. 1983), and cases cited therein.) Illinois courts have held that a property settlement in a divorce proceeding requiring an insured to name his children as beneficiaries gives the minor an equitable right which may be enforced. (Brunnenmeyer v. Massachusetts Mutual Life Insurance Co. (1978), 66 Ill. App. 3d 315, 318, 384 N.E.2d 446.) Children who have such an equitable right are entitled to receive the proceeds even though they were not the named beneficiaries at the time of the insured’s death. Travelers Insurance Co. v. Daniels (7th Cir. 1981), 667 E2d 572, 573.

The sole case relied upon by the trial court, and the only one our research has disclosed, which deals with the particular set of circumstances involved in the instant case, is Riser v. Riser (1972), 7 Wash. App. 647, 501 P.2d 1069. There, the husband was required by a divorce decree to maintain life insurance policies for his two minor children “until such time as said children shall have attained the age of majority or become otherwise emancipated ***.” (7 Wash. App. 647, 648, 501 P.2d 1069, 1070.) The husband thereafter designated his second wife as beneficiary on the policies and died after his son had reached majority but while his daughter was still a minor. The full amount of the proceeds was paid to the second wife by the life insurance company.

The Riser court noted that .'the life insurance provision was in addition to support and maintenance, and the policy and proceeds were payable without regard to any remaining support payments. The court also recognized that the father had no statutory duty to support his children after his death, and thus he could place limitations upon this voluntary commitment. The court then reasoned that upon the son’s emancipation, his interest reverted back to the father as owner of the policies. Since it was apparent that the father intended to treat each child equally under the provision, the minor was only entitled to one-half of the policy proceeds. 7 Wash. App. 647, 651-52, 501 P.2d 1069, 1072.

We find the reasoning of the Riser case persuasive. Because decedent in the case at hand only agreed to give one-half of the policy proceeds to each child in the divorce agreement, and one-half had lapsed because of Jenise’s emancipation, her portion should then revert back to decedent whose named beneficiary was the executor. In view of the circumstances in this case, the decision of the trial court to award Debra one-half of the proceeds previously paid to the executor was, in our opinion, correct.

For the reasons stated above, the judgment of the circuit court of Cook County is hereby affirmed.

Affirmed.

HARTMAN, P.J., and STAMOS, J., concur.

      Also spelled Deborah in the record.

      Also spelled Jeanise in the record.

      Public Act 80 — 923, effective October 1, 1977, changed the law on this topic (Ill. Rev. Stat. 1977, ch. 40, par. 510(c)) and now a lump sum payment, determined at the time of dissolution, is allowed to provide for support obligations after death. Ill. Ann. Stat., ch. 40, par. 510, Historical and Practice Note, at 702-03 (Smith-Hurd 1980).


author: JUSTICE PERLIN

text:
      In re MARRIAGE OF DONALD LASOTA, Petitioner-Appellee, and CAROLYN LASOTA, Respondent-Appellant.
    First District (2nd Division)
    No. 83—1489
    Opinion filed June 19, 1984.

      Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Howard A. London, of counsel), for appellant.
    Lance Haddix, of Chicago, for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

A dissolution of marriage judgment was entered in the circuit court of Cook County on April 16, 1980, in the marriage of respondent Carolyn Lasota (Carolyn) and petitioner Donald Lasota (Donald). In a post-judgment proceeding arising from the dissolution, the trial court denied Carolyn’s petition for an increase in maintenance and granted Donald’s petition for termination of maintenance. Carolyn appeals the trial court’s orders.

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

Carolyn and Donald Lasota were married in Cook County on March 27, 1976. No children were born of this marriage. The order of dissolution provided that Donald pay to Carolyn maintenance of $35 per week, “based on her making $87 every two weeks.”

On June 29, 1981, because Donald had lost his job and was receiving only $268 per month in Veteran’s disability compensation, the trial court reduced the amount of maintenance payments to $11.67 per week.

On December 30, 1982, Carolyn petitioned for an increase in maintenance alleging that her living expenses have increased considerably since April 1980; that Donald is employed and “can well afford to contribute more maintenance” to her; that she “has been unemployed since September 1982, and although seeking employment, remains unemployed at the present time”; and that “the $11.67 per week maintenance obligation of [Donald] is unreasonable in light of the ability of [Donald] to pay more and the present needs of [Carolyn].”

On February 15, 1983, Donald petitioned for modification or termination of his maintenance payments to Carolyn.

Pending the hearing, the court entered a temporary order increasing maintenance payments to $60 per week.

At the maintenance hearing, Donald testified that in June 1981, when the court directed maintenance payments of $11.67 per week, he was unemployed. In August 1981 he became employed as a maintenance man at the building located at 1400 Lake Shore Drive. Donald received two promotions at this job and is currently supervisor of the building. Donald, who now resides with his new wife and her child, earns $842 gross every two weeks from his employment and receives $311 per month in disability compensation from the Veteran’s Administration. Donald testified that his expenses amount to $1,658 per month. He stated further that two weeks prior to the maintenance hearing he had an operation for a retinal detachment in his left eye and was unable to work for two weeks. He will receive pay for the one week he was in the hospital.

Carolyn testified that until October 3, 1982, at which time she lost her job, she worked as a waitress at the Montclare Lanes Bowling Alley, earning about $4 per hour. She collected unemployment compensation in the amount of $45 per week until December 25, 1982. Carolyn submitted to the court a list of approximately 80 restaurants, bars and bowling alleys at which she claimed to have sought employment. She currently supports herself with money she saved when she worked, with money she receives from her ex-husband from a previous marriage, and with $5,000 that her father had given to her in 1981. Carolyn stated, however, that she has spent all the money she received from her father. Carolyn claimed that her monthly expenses amount to $830 and that her rent was scheduled to be increased from $335 per month to $375 per month. From her previous marriage Carolyn has a 19-year-old daughter who attends the Moody Bible Institute and resides at the school. Carolyn “sometimes” contributes to her daughter’s support.

The trial court terminated Carolyn’s maintenance stating that “maintenance should be given with the purpose that it eventually be terminated. And that’s the basis upon which I made the overall ruling.”

Carolyn’s motion for reconsideration was denied.

I

Carolyn contends that the trial court abused its discretion in terminating her maintenance and argues that she is entitled to continued maintenance because she “is unemployed and unable to find a job, and Donald is employed and able to contribute to her support.”

Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) sets forth the relevant considerations for the court in determining the amount and duration of a maintenance award. Among the factors to be considered are:

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage-,
(5) the age and the physical and emotional condition of both parties; and
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 40, par. 504(b).

The concept of rehabilitative maintenance is described in the Historical and Practice Notes to section 504(b)(2):

“This subsection directs the court to consider the time necessary for the party seeking maintenance to acquire sufficient education or training to find employment. This concept of rehabilitative maintenance is new to Illinois law. The amount and duration of such maintenance should be determined by reference to what is necessary to obviate marriage-conditioned needs and to enable a formerly dependent spouse to acquire financial independence for the future. Under prior decisional law, there was no duty to seek employment. [Citation.] This subsection creates an affirmative obligation on the part of the spouse seeking maintenance to seek employment, where plausible, and this reflects one of the most important changes brought about by this Act. [Citations.]” (Emphasis added.) Ill. Ann. Stat., ch. 40, par. 504(b)(2), Historical & Practice Notes, at 529 (Smith-Hurd 1980).

Maintenance awards rest within the sound discretion of the trial court and will not be disturbed on review unless the award amounts to an abuse of discretion or is against the manifest weight of the evidence. (In re Marriage of Bramson (1981), 100 Ill. App. 3d 657, 427 N.E.2d 285.) Further, “the modification of the alimony [maintenance] award will not be set aside on review unless the trial court abused its discretion.” Giamanco v. Giamanco (1982), 111 Ill. App. 3d 1017, 1021, 444 N.E.2d 1090, 1093.

It is generally held that a maintenance award will be modified “only upon a showing of a substantial change in circumstances.” (Ill. Rev. Stat. 1981, ch. 40, par. 510(a).) The burden of demonstrating the alleged substantial change in circumstances is on the party seeking relief. In determining whether and to what degree a maintenance award shall be modified, the circuit court should consider the same factors which, under the statute, are to be assessed in making the initial award. In re Marriage of Chalkley (1981), 99 Ill. App. 3d 478, 426 N.E.2d 237.

In In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 634-35, 450 N.E.2d 1229, 1234, the court held that the “petitioner [party receiving maintenance] is under an affirmative obligation to seek appropriate training and skills to become financially independent in the future,” and that “ftjhe failure of the petitioner to make good-faith efforts to achieve this goal, following a reasonable time frame during which the objective should be accomplished, might form the basis for a petition for modification pursuant to section 510(a) of the Act." (Emphasis added.)

Our review of the record here indicates that the trial court heard sufficient evidence of the parties’ incomes and expenses, and of Carolyn’s employment efforts and potential to enable it realistically to determine whether maintenance payments should continue. Although Carolyn claimed to have sought employment as a barmaid or waitress at 80 establishments, the trial court concluded that she has not taken an “active role in putting an end to the maintenance.”

The trial court appears to have considered the various factors set forth in section 504(b) of the Act: the standard of living established during the marriage, the duration of the marriage (four years), the age and the physical and emotional condition of both parties and Donald’s ability to meet his own needs while meeting those of Carolyn.

In our opinion, the evidence supports the trial court’s conclusion that Carolyn failed to meet her affirmative obligation to seek appropriate training or education in order to become financially independent. The trial court’s termination of maintenance was, therefore, not an abuse of discretion.

II

Despite the conclusion we have above expressed, Carolyn contends further that the trial court’s denial of her petition for an increase in maintenance was an abuse of discretion. She argues that “the evidence clearly established that there was a ‘substantial change of circumstances’ justifying such an increase in maintenance,” in that Donald’s income has substantially increased since the last maintenance order; “Carolyn has absolutely no income,” and her “expenses have greatly increased since the original Judgment for Dissolution in April, 1980.”

Sections 504 and 510 of the Act are likewise dispositive of this issue. As we have heretofore noted, modification of a maintenance award must be based upon the factors outlined in section 504 and upon a showing of a “substantial change in the circumstances of the parties.” Gorman v. Gorman (1979), 72 Ill. App. 3d 658, 662, 391 N.E.2d 70, 73.

A maintenance award “can be modified either when the needs of the spouse receiving alimony change or the ability of the other spouse to pay alimony changes.” Shive v. Shive (1978), 57 Ill. App. 3d 754, 760, 373 N.E.2d 557, 562.

In the instant case, although Donald’s income has increased since the maintenance order of June 1981, Carolyn has not established that she has “absolutely no income” or that her expenses have “greatly increased.” She has failed to produce evidence of the amount of money currently in her bank account, and the only specific increase in expense to which she testified was the $40 per month increase in rent she anticipated for April 1983.

From the paucity of evidence offered by Carolyn and from her trial demeanor, the trial court concluded that Carolyn had failed to demonstrate a substantial change in her circumstances and had failed also to “take some active role in putting an end to the maintenance.”

In our opinion, the trial court did not abuse its discretion in denying Carolyn’s petition for an increase in maintenance.

For the reasons herein stated, the judgment of the trial court is affirmed.

Affirmed.

HARTMAN, P.J., and STAMOS, J., concur.

      The trial judge appears at times to accept the list of 80 establishments where Carolyn allegedly sought employment, and alternately to question its legitimacy.

      The record does not establish the amounts received by Carolyn from her ex-husband.


author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY STRANGE et al., Defendants-Appellants.
    First District (2nd Division)
    No. 82—2692
    Opinion filed June 19, 1984.

      Steven Clark and Scott Graham, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, James S. Veldman, and Mark L. Lefevour, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendants Howard Moody and Timothy Strange, found guilty by a jury of burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1), were sentenced to seven-year terms. Defendants appeal, raising as issues whether the circuit court erred by: (1) permitting impeachment of Strange; (2) permitting instances of prosecutorial misconduct; (3) failing at sentencing to consider the alternative disposition available to drug abusers; and, (4) imposing excessive sentences.

At trial, the State’s evidence revealed that in the early morning of May 24, 1982, St. Marthal Missionary Baptist Church was reported to have been burglarized. A boarded-up basement window was broken and the candy counter in the basement kitchen area ransacked. Nothing was missing.

Chicago police officers arrived at the church at about 2:50 a.m. on May 24, shortly after receiving a report of a burglary in progress. A window on the side of the building was missing. One officer using a flashlight looked into the building, noticed a shadow moving, went to the rear of the building while his partner remained at the window, and placed Moody under arrest when he exited the rear door. Other officers had by then arrived at the scene. At the front of the church, officers saw another person, identified as Strange, who also was arrested. The basement kitchen area was in disarray; utensils were on the floor and drawers and cabinets were open. Defendants had no weapons, burglary tools, or items belonging to the church in their possession.

Strange testified for the defense. He and Moody took public transportation to 47th Street and were walking toward Strange’s home, located one block from the subject church, in the early morning of May 24, 1982. As they approached, he observed three persons entering the church. Viewing these “manifestations of criminal activity,” he and Moody stopped and formulated a plan to catch the intruders, and entered the church through the rear door, which was “wide open and propped.” Moody went to the front of the building and Strange stayed behind, but they lost contact with each other in the darkness. Strange went downstairs and noticed that the drawers and cabinets were open. They were inside about 5 to 10 minutes when the police arrived. Strange told the arresting officers that there may be some “kids” nearby, but the police failed to look for anyone else.

I

Defendants contend that they were denied a fair trial when the State was improperly permitted to impeach Strange with evidence of a prior conviction. The instant trial began on October 13,1982. After Strange testified, the State introduced a certified copy of his April 21, 1970, Michigan conviction for breaking and entering. Although conceding that this copy did not reflect the date of his release from custody, the prosecutor told the court that Strange was released in September 1973. The court examined the document and, noting that the minimum sentence for the offense was three years, stated “so he could not do less than the three, right, which would put him within the ten years.” Strange’s counsel objected, asserting that Strange was released in 1972 because of “good time,” whereupon the court ruled, “I will permit you to use it on its face.” The admission of Strange’s 1970 conviction, based upon the prosecutor’s unsupported and contradicted statement and the presumption that Strange must have served the minimum sentence, was erroneous. (People v. Yost (1980), 78 Ill. 2d 292, 399 N.E.2d 1283.) The State, in seeking to impeach Strange, was obligated to present proper evidence of the previous conviction and release date. Having failed to do so requires reversal and remandment for a new trial.

II

Defendants next argue that they were denied a fair trial by certain prejudicial remarks made by the prosecutor in closing argument and during the cross-examination of Strange. Strange’s motion for a new trial failed to refer to any such remarks; therefore, unless the remarks constitute plain error, the objections to them were waived. (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091.) Moody assigned error in his post-trial motion only to “prejudicial inflammatory and erroneous statements in closing argument designed to arouse the prejudices and passions of the jury,” which is insufficient to preserve specific remarks for review, absent plain error. (People v. Turk (1981), 101 Ill. App. 3d 522, 530, 428 N.E.2d 510; People v. Bell (1975), 27 Ill. App. 3d 171, 176, 326 N.E.2d 507.) Certain comments, claimed to have been objectionable, were within permissible boundaries; however, several of the remarks complained of were of such prejudicial magnitude as to have deprived defendants of a fair trial. (87 Ill. 2d R. 615(a); People v. Lucas (1981), 88 Ill. 2d 245, 251.) We limit our analysis to the latter.

The prosecutor called Strange a “liar” and said he wished the jury had “a built-in shockproof B.S. detector” with which to evaluate Strange’s testimony. A defendant can be called a “liar” in argument, provided evidence of lying exists or reasonable inferences of lying can be drawn from the evidence. (People v. Cukojevic (1981), 103 Ill. App. 3d 711, 721, 431 N.E.2d 1154; People v. Dowd (1981), 101 Ill. App. 3d 830, 848, 428 N.E.2d 894.) Here, Strange’s testimony was not inconsistent with that of any other witnesses. Argument which charges a defendant with lying, which has no basis in the record, may be severely prejudicial (People v. Weathers (1975), 62 Ill. 2d 114, 117-21, 338 N.E.2d 880), and is entirely improper. People v. Emerson (1983), 97 Ill. 2d 487, 497-98, 455 N.E.2d 41; People v. Starks (1983), 116 Ill. App. 3d 384, 390-91, 451 N.E.2d 1298, appeal denied (1984), 96 Ill. 2d 548.

Defendants also argue that prejudice resulted when the State asked Strange on cross-examination whether he had ever used any other name but subsequently failed to present evidence that Strange had in fact used another name. This abortive and bad-faith attempt at impeachment, defendants contend, was only designed to disparage Strange’s character by innuendo. (People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353.) Although, as the State correctly maintains, the fact that Strange may have used an alias was only collateral to the issues in the case, the question was nevertheless improper since it could suggest to the jury that Strange had reason to use an alias and was therefore not worthy of belief. (See People v. Fiorita (1930), 339 Ill. 78, 88, 170 N.E. 690; People v. Scaggs (1982), 111 Ill. App. 3d 633, 636, 444 N.E.2d 674.) Evidence which has no tendency to prove an issue at trial and serves only to persuade a jury that the defendant is a bad or evil person and therefore likely to have committed the crime charged has been repeatedly and consistently condemned. (People v. Lewis (1924), 313 Ill. 312, 319, 145 N.E. 149; People v. Starks (1983), 116 Ill. App. 3d 384, 390-91; People v. Scaggs (1982), 111 Ill. App. 3d 633, 636.) Defendants’ case hinged entirely on Strange’s credibility. The State’s failure to rebut Strange’s negative response to the challenged question amounted to plain error. People v. Morris (1979), 79 Ill. App. 3d 318, 330, 398 N.E.2d 38.

We cannot say that the cumulative effect of the foregoing remarks did not contribute to defendants’ convictions. (People v. Weathers (1975) , 62 Ill. 2d 114.) Clearly, they denied defendants a fair trial. (People v. Scaggs (1982), 111 Ill. App. 3d 633, 637; People v. Patterson (1976) , 44 Ill. App. 3d 894, 900, 358 N.E.2d 1164.) Accordingly, this case must be reversed and remanded for a new trial for these reasons as well.

Ill

Since there must be a new trial in this case, we will consider certain alleged sentencing errors identified by defendants. They maintain that the circuit court erred by failing to advise them at sentencing of possible alternative dispositions under the Dangerous Drug Abuse Act (Act). (Ill. Rev. Stat.1981, ch. 911/2, par. 120.1 et seq.) Section 10 of the Act provides that if the court has “reason to believe” a convicted defendant is an addict or if defendant states he is an addict, “*** the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Commission.” (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.10.) A defendant is not eligible to make such election, however, if barred by the exclusions enumerated in section 8 of the Act. Ill. Rev. Stat. 1981, ch. 911/2, par. 120.8.

Once a court has “reason to believe” an otherwise eligible defendant is an addict, the court must advise him of his option to elect treatment. (People v. Beasley (1982), 109 Ill. App. 3d 446, 453, 440 N.E.2d 961; People v. Chaput (1981), 100 Ill. App. 3d 982, 984, 427 N.E.2d 595.) In general, “little should be required to give a court reason to believe defendant is an addict.” (People v. Beasley (1982), 109 Ill. App. 3d 446, 454.) Facts in a presentence report are enough to suggest a “reason to believe.” (People v. Melson (1976), 36 Ill. App. 3d 71, 73-74, 343 N.E.2d 258; People v. Davis (1981), 95 Ill. App. 3d 1097, 1098, 420 N.E.2d 1035.) A reviewing court may examine the facts to determine the existence of a “reason to believe,” even where the trial court made no such determination, as here. People v. Beasley (1982), 109 Ill. App. 3d 446, 454.

None of the section 8 exclusions applied to Strange; he was otherwise eligible to be advised of his election under the Act. His presen-tence report noted a 20-year history of heroin use, the use of “Ts and Blues” from 1978 until his incarceration, and a recommendation for treatment in a drug abuse program. At sentencing, Strange requested to be “paroled” to the T.A.S.C. (Treatment Alternatives to Street Crime) program. His counsel, moreover, noted the presence in court of a T.A.S.C. representative. These facts reasonably suggest that the circuit court should have found “reason to believe” Strange to be an addict. The court, however, instead of advising him of his election, noted his presentence report and his request for treatment and said a drug program would not be “appropriate.” Strange was then sentenced to seven years’ imprisonment.

The State argues, without citation of authority, that the court properly exercised its discretion in determining that Strange was not an “addict” and not eligible to elect the treatment alternative because section 10 refers to an “individual convicted of a crime,” while section 8 refers to an “addict.” The State concludes from this choice of words that a sentencing court has discretion to determine whether a defendant is an addict before the alternative disposition is considered; and such discretion serves to eliminate meritless claims of addiction. The State’s argument must be rejected.

Section 10, entirely consistent in its use of terms, provides that once a court has “reason to believe” defendant to be an addict, it has no initial discretion to reject the alternative disposition. Under section 10, the court “shall” advise an “individual” whom it has reason to believe is an “addict” that he has an election, and must also order an examination by a licensed program of the “individual” who then elects treatment; only after the licensed program reports to the court does the court determine whether “such an individual is an addict” and whether, in light of defendant’s history and character and the circumstances of the offense, the treatment alternative should be ordered. If the court decides to sentence defendant to imprisonment, it must specify “on the record the particular evidence, information or other reasons that led to such opinion.” (Ill. Rev. Stat. 1981, ch. 911/2, par. 120.10.) The circuit court’s rejection of Strange’s request for treatment, therefore, in the face of sufficient grounds to believe him eligible, was a premature exercise of discretion contrary to the express terms of section 10. By neither advising Strange of his election nor ordering his examination by a licensed agency, the circuit court deprived him of his statutory right to have the court consider the licensed program’s report before rendering its disposition.

As for Moody, the record contains sufficient indication that there was “reason to believe” that he, too, was an addict. Moody’s presentence report indicated that he had admitted to heroin use for the past four to five years, but noted that he had never participated in a drug treatment program. The report also observed that he had been given a five-year sentence for armed robbery in 1978, from which the inference could be drawn that at the time of trial, in 1982, he was still on parole or probation. The State also advised the court of this conviction at sentencing. There was, however, no explicit indication that Moody was, in fact, a parolee or probationer, which would have made him expressly ineligible under section 8(e) of the Act to make the election for alternative sentencing, unless he made an affirmative showing that he had obtained consent to the treatment alternative from the appropriate parole or probation authority. Ill. Rev. Stat. 1981, ch. 911/2, par. 120.8(e); People v. Blair (1981), 102 Ill. App. 3d 1018, 1025, 429 N.E.2d 1375.

In sentencing Moody, the circuit court did not state whether it had considered an alternative disposition under the Act, but only noted that probation was inappropriate in view of Moody’s past criminal history. The use of the ambiguous term “probation” makes it unclear whether the Act had been taken into consideration. (See People v. Teschner (1980), 81 Ill. 2d 187, 193, 407 N.E.2d 49.) Because there was sufficient “reason to believe” Moody an addict, and in the absence of direct proof that he was on parole or probation, the circuit court was obliged at least to inquire into Moody’s eligibility under section 8.

For the aforesaid reasons, this cause must be reversed and remanded for a new trial.

Reversed and remanded.

STAMOS and PERLIN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS BAITY, SR., Defendant-Appellant.
    First District (2nd Division)
    No. 83—66
    Opinion filed June 19, 1984.

      James J. Doherty, Public Defender, of Chicago (Eve Moran and Frank P.
    Madea, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and James J. Bigoness, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Following a bench trail, the defendant, Thomas Baity, Sr., was convicted of attempted murder (Ill. Rev. Stat. 1981, ch. 38, pars. 8— 4, 9 — 1), armed violence based on aggravated battery (Ill. Rev. Stat. 1981, ch. 38, pars. 33A — 2, 12 — 4(a)), and aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4). The court found that the aggravated battery count merged into the armed violence conviction, and the defendant was sentenced to concurrent terms of eight years for attempted murder and armed violence. On appeal, he contends that he was improperly convicted of multiple offenses arising from a single physical act.

The evidence presented at trial established that at 5:30 a.m. on August 30, 1980, the defendant went to his wife’s Chicago apartment and said, “I came to say goodbye.” As his wife turned and walked away, he shot her three times, wounding her in the right shoulder, left hip and left arm.

The defendant’s sole contention on appeal is that the three shots constituted a single physical act which could properly give rise to only one conviction and sentence.

The seminal case involving multiple convictions carved from a single physical act is People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert, denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273. In a much-quoted passage, the court stated:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act, when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” (Emphasis added.) (People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45. See People v. Donaldson (1982), 91 Ill. 2d 164, 435 N.E.2d 477.)

Pursuant to this reasoning, the court upheld the defendant’s convictions for rape and burglary because the offenses were based on separate acts, each requiring proof of a different element.

Since King was decided, several cases have confronted the question of whether a defendant’s conduct in a particular instance constituted separate acts or merely distinct parts of a single physical act. From these cases emerged a series of factors to be considered in making this determination. For example, in People v. Myers (1981), 85 Ill. 2d 281, 426 N.E.2d 535, the court considered a situation in which the defendant stabbed one victim in the throat, removed the knife briefly to cut a second victim, then again stabbed the first victim in the throat. In determining that the defendant committed two physical acts with respect to the first victim, the court accorded significance to the fact that there was a distinct, intervening act separating the successively inflicted stab wounds. Similarly, in People v. Childs (1978), 62 Ill. App. 3d 924, 379 N.E.2d 721, the defendant shot the victim, gagged and robbed him, shot him again, took his coat and shoes, then shot him a third time. The court held that the three shots constituted multiple acts because they were separated by the defendant’s performance of other acts related to his criminal objective. Thus, it appears that one factor to be considered in determining whether multiple acts occurred is the existence of an intervening act or event.

A second factor given prominence in some cases is the time interval occurring between successive parts of the defendant’s conduct. In People v. Davis (1981), 100 Ill. App. 3d 268, 271, 426 N.E.2d 1047, 1050, the court found that the defendant’s conduct in inflicting two wounds upon the victim by “rapidly shooting him twice in succession” constituted parts of the same physical act and could support only a single conviction.

Other factors considered significant are the identity of the victim, the similarity of the acts performed and whether the conduct occurred at the same location. The court in People v. Rapoff (1980), 84 Ill. App. 3d 206, 405 N.E.2d 377, held that the separate blows of a beating constituted a single act where they were inflicted almost simultaneously upon the same victim in a single location. Similarly, in People v. Connor (1980), 82 Ill. App. 3d 652, 402 N.E.2d 862, the defendant was found to have committed only one act where he fired three successive shots into the same victim at the same location. In People v. Brock (1978), 64 Ill. App. 3d 64, 380 N.E.2d 1102, the court held that one physical act occurred where the defendant shot the victim in the chest and again in the neck as he crawled away. Other similarly reasoned cases include People v. Hawk (1980), 80 Ill. App. 3d 827, 400 N.E.2d 499 (the defendant’s conduct in hitting and kicking the victim constituted one physical act), People v. Wilson (1981), 93 Ill. App. 3d 395, 417 N.E.2d 146 (the multiple blows of a continuous beating constituted one act), and People v. Walker (1975), 26 Ill. App. 3d 955, 326 N.E.2d 63 (only one act occurred where the defendant shot the victim twice, wounding him in the head and foot).

Other cases, however, have interpreted the King definition of an “act” far more narrowly, holding essentially that each distinct movement by the defendant is capable of supporting a separate conviction. In People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180, the court rejected the argument that striking the victim several times with a club constituted a continuous beating and therefore a single physical act. Rather, it held that the separate blows, although closely related, constituted separate acts which could properly support multiple convictions with concurrent sentences. Also, in People v. Mays (1980), 81 Ill. App. 3d 1090, 401 N.E.2d 1159, the defendant fired a series of shots, wounding the victim three times. The court affirmed the three convictions for aggravated battery, holding that the defendant’s conduct in pulling the trigger three times constituted three separate acts, each requiring proof of a different element. In the same vein, the court in People v. Post (1982), 109 Ill. App. 3d 482, 440 N.E.2d 631, held that the defendant committed four distinct physical acts where he stabbed the victim four times in rapid succession.

In the case at bar, the defendant shot the victim three times in rapid succession, without the occurrence of any intervening act. Our study of the cases dealing with the subject leads us to conclude that the better-reasoned view is that the defendant’s conduct in pulling the trigger three times in rapid succession constituted parts of a single physical act, giving rise to only one offense. Besides the presence of all of the factors enumerated above, i.e., identity of the victim and location, similarity of the acts and lack of a substantial time interval or intervening act, we believe that one additional factor exists which supports our conclusion. A reading of the multicount information reveals that the State intended to treat the defendant’s conduct in shooting the victim as a single act. The attempted murder count charges that the defendant attempted to kill the victim “by shooting her with a gun.” The aggravated battery count, which formed the predicate for the armed violence charge, is based on the defendant’s action in “shooting [the victim] in the leg, arm and back with a gun.” Thus, the State makes no attempt to differentiate between the conduct supporting the attempted murder charge and that supporting the armed violence charge. Prosecutorial intent, as reflected in the wording of the information, has been recognized as a significant factor in determining whether the defendant’s conduct constituted separate acts, each requiring proof of a different element. People v. Lerch (1972), 52 Ill. 2d 78, 284 N.E.2d 293; People v. Davis (1981), 100 Ill. App. 3d 268, 426 N.E.2d 1047.

In summary, we believe that the three injuries inflicted upon the victim by rapidly shooting her three times in succession "without any intervening act or event constitute parts of the same physical act. Therefore, under the authority of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, the defendant’s conviction and sentence for armed violence are vacated. Because the court imposed concurrent sentences and there is no indication that it was influenced in its sentencing determination by the number of separate offenses carved from the incident, a remand for resentencing on the attempted murder conviction is unnecessary. People v. Miles (1981), 96 Ill. App. 3d 721, 422 N.E.2d 5.

Accordingly, the judgment of the circuit court is affirmed in part and vacated in part.

Affirmed in part; vacated in part.

STAMOS and BERLIN, JJ., concur.

       Although the State contends that the defendant has waived this issue by failing to raise it in the trial court or include it in his motion for a new trial, we have elected to consider the matter under the plain error doctrine (87 Ill. 2d R. 615).


author: JUSTICE STAMOS

text:
      In re MARRIAGE OF CAROL LEVA, Petitioner-Appellant, and HARVEY LEVA., Respondent-Appellee.
    First District (2nd Division)
    No. 82—2567
    Opinion filed July 19, 1983.
    Propp & Schultz, of Chicago, for appellant.
    Feiwell, Galper & Lasky, Ltd., of Chicago (Michael J. Berger, Lawrence S. Starkopf, and Andrew D. Eichner, of counsel), for appellee.
   JUSTICE STAMOS

delivered the opinion of the court:

Petitioner Carol Leva appeals from an order of the circuit court modifying respondent Harvey Leva’s support obligation for the parties’ two minor children from $400 to $700 per month. The issues are (1) whether the increase in child support was inadequate, and (2) whether the trial court abused its discretion by declining to make the modification order retroactive to the date the petition to modify child support was filed.

A judgment for divorce was entered on March 21, 1975. Petitioner was granted custody of the parties’ two sons, then ages six and seven. Respondent was ordered to pay child support in the amount of $400 per month, plus maintenance of $300 per month. At that time, petitioner’s annual gross income was $7,000 and respondent’s gross income was $24,000. In addition, respondent owned a condominium at 200 East Delaware in Chicago (the Chicago apartment) in which his equity was $3,000. The equity in the marital home was divided 60 percent to petitioner and 40 percent to respondent.

On August 6, 1981, petitioner filed a petition for an increase in child support. Due in part to respondent’s failure to comply with discovery for a five-month period, the hearings on the merits of the petition were not held until August 23 and September 2,1982.

At the time of the hearings, the parties’ two minor children were 13 and 14 years old. Petitioner testified that the costs of raising the children included their clothing and necessities in addition to school expenses, religious education, summer camp and other activities. As a result, her expenses went from $1,000 per month in 1975 to $2,600 per month. Her gross income had increased to $21,400 or a net of about $1,400 per month, and her assets included $12,000 in a money market account and $9,000 in a pension fund.

Respondent introduced the following evidence with regard to his ability to bear a portion of the increased costs of supporting the children. His gross salary was $75,000 or a net of about $4,700 per month. The equity in his assets, which totaled about $268,000, included: (a) $100,000 in a cash management account; (b) the Chicago apartment (market value of $110,000; mortgage balance of $40,000); (c) two condominium apartments in Stamford, Connecticut (combined market value of $104,000; mortgage balance of $81,000); (d) a single-family residence in Texas (market value of $185,000; mortgage value of $125,000); and (e) his own residence in Texas (market value of $185,000; mortgage of $150,000). Respondent testified that he suffered from a disease known as progressive spasticity for which his physician prescribed daily dosages of the drugs Leoracil and Valium.

The trial court then took the matter under advisement. On September 28, 1982, the court issued an order finding that petitioner met her burden of establishing a substantial change in circumstances since the entry of the divorce decree and increased respondent’s child support obligation from $400 to $700 per month, effective September 1, 1982. As stated above, petitioner contends on appeal that the child-support increase was inadequate and that the order should have been made effective retroactive to the date the petition for modification was filed.

The financial responsibility for the support of a child is the joint obligation of the parents. (Edelstein v. Edelstein (1980), 82 Ill. App. 3d 574, 576, 403 N.E.2d 323.) In general, determination of the proper amount of support lies within the sound discretion of the trial court and will not be set aside unless contrary to the manifest weight of the evidence. In re Marriage of Kessler (1982), 110 Ill. App. 3d 61, 73, 441 N.E.2d 1221.

The Illinois Marriage and Dissolution of Marriage Act (the Act) states that the child support provision within a judgment of dissolution of marriage:

“*** may be modified only as to installments accruing subsequent to the filing of the motion for modification *** and only upon a showing of a substantial change in circumstances.” (Ill. Rev. Stat. 1981, ch. 40, par. 510(a).)

The relevant factors to be considered by the trial court in assessing the financial obligation to be imposed upon each parent to support his or her children are:

“(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.” Ill. Rev. Stat. 1981, ch. 40, par. 505(a).

Applying the factors to this case, petitioner testified that her expenses as the custodial parent total about $2,600 per month. Her net income is $1,400 per month plus $300 in maintenance, leaving a deficit of $900 per month. Respondent’s net earnings are about $4,700 per month; he has not remarried and has no other dependents. If we were to let stand the trial court’s child support order of $700 per month, petitioner would have $2,400 to support herself and the children, or a deficit of $200 per month. Respondent, on the other hand, would have substantial discretionary income remaining which would have enhanced the children’s standard of living had the marriage not been dissolved. (See In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 477, 442 N.E.2d 557.) We conclude that under these circumstances, respondent should bear a greater portion of the support obligation for the children so as to compensate for the deficit incurred by petitioner.

The next issue is whether the decree should have been modified retroactive to the date on which the petition was filed. We recognize that there is some delay in disposing of post-decree petitions inherent in the judicial process due to securing service on the parties, to completing discovery, and to the court’s calendar. The question whether modification of child support should be retroactive is therefore within the discretion of the trial court. (Ill. Rev. Stat. 1981, ch. 40, par. 510(a); Hamer v. Hamer (1982), 105 Ill. App. 3d 430, 436, 434 N.E.2d 465.) In this case, there was an interim of over one year between the filing of the petition and the entry of the order. At least five months of that delay, however, was attributable to respondent’s wilful failure to comply with petitioner’s discovery requests. We believe that it would be inequitable to allow respondent to benefit by his defiance of the Supreme Court Rules due to his dilatory behavior. Consequently, the support order should be made effective retroactive five additional months, to April 1, 1982.

In summary, the judgment of the circuit court is affirmed insofar as it found that petitioner met her burden of proving a substantial change in circumstances; the cause is remanded to the circuit court for consideration of an appropriate increase in respondent’s child support obligation, which will become effective retroactive to April 1,1982.

Affirmed and remanded with directions.

DOWNING, P.J., and HARTMAN, J., concur.


author: JUSTICE UNVERZAGT

text:
    THE VILLAGE OF OAKWOOD HILLS, Plaintiff-Appellee, v. SAMUEL J. DIAMOND, Defendant-Appellant.
    Second District
    No. 2—83—0607
    Opinion filed June 21, 1984.
    Rehearing denied July 29, 1984.

      David C. LeSueur, of Samuel J. Diamond & Associates, of McHenry, for appellant.
    Regina F. Narusis, of Narusis & Narusis, of Cary, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

On November 12, 1982, at approximately 9:40 p.m., the defendant, Samuel J. Diamond, was charged with the offense of speeding in violation of village of Oakwood Hills, Ordinance No. 166-170-3-21A (1979). He had been traveling west on Rawson Bridge Road near the intersection of Rawson Bridge Road and Woody Way in the village of Oakwood Hills, McHenry County. The area east of the village limits is unincorporated and has a posted speed limit of 45 miles per hour. A speed limit sign reducing the speed to 25 miles per hour is located at the entrance of the village on Rawson Bridge Road in the direction of defendant’s travel. The police officer clocked the defendant’s speed on radar at 46 miles per hour in the 25 miles-per-hour zone, and the defendant was issued a traffic citation for speeding. The defendant was clocked more than 500 feet beyond the first speed limit sign for 25 miles per hour in his direction of travel.

Prior to trial the defendant filed a motion to dismiss alleging that the ordinance establishing a 25 miles-per-hour speed zone was invalid in that it did not comply with Illinois law in three respects. First, the defendant claimed that the municipal ordinance was in violation of section 11 — 604 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 604), which states that “the difference in limit between adjacent altered speed zones shall not be more than 10 miles per hour.” Secondly, the defendant claimed that the village failed to conduct proper engineering or traffic studies as provided for by statute as a basis for altering the speed zone (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 604). Thirdly the defendant claimed that the sign posting the speed zone is improper under Illinois law in that the sign declaring the first 25 miles-per-hour speed limit at the east end of the village limits is posted together with two other signs. The Illinois Department of Transportation’s Policy on Establishing and Posting Speed Limits (1977), states in chapter 6 — 1—a(7), “No sign in the speed limit (Rl) series shall be mounted on the same post as another sign, except that the basic speed limit sign (R2-1) may be mounted below the town name sign ***.” The defendant’s motion was heard by the court and denied as was his motion to reconsider.

At the subsequent trial before a jury, the defendant’s wife testified that as they traveled west on Rawson Bridge Road she saw the village limit sign but the speed limit sign for 25 miles per hour was not visible at night. On cross-examination she stated that there was a street light at the intersection of Hilltop Road and Rawson Bridge Road. The defendant also testified that he saw no speed limit sign before the officer stopped him. The defendant further stated that he went back and drove the road again a number of times and that the speed limit sign did not reflect properly. However, on cross-examination the defendant stated that after he drove back on the same road, he did observe the speed limit sign for 25 miles per hour at the village limits while at a distance of about 40 feet before the sign. He also testified that it was a clear night with good visibility, there was nothing unusual about the speed sign, it was the top sign on the post and there were street lights operating at the village limits. The defendant’s wife testified that she did observe the 25 miles-per-hour sign when they went back and that the sign was visible to her some 25 feet away.

The jury found the defendant guilty and assessed a fine of $100 plus costs.

On appeal, the defendant presents these issues: (1) whether the trial court erred in denying defendant’s motion to dismiss; (2) whether the trial court erred in preventing defendant’s attorney from arguing to the jury that the speed limit sign in question did not properly reflect and that it was not plainly visible at night.

The defendant filed a section 2 — 619(a)(9) motion to dismiss (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619(a)(9)), asserting that an affirmative matter avoided the legal effect of the claim against him. Specifically, the defendant argues that the speed sign was improperly posted in violation of section 11 — 604 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 604). The motion was supported by affidavit. Having heard the arguments, the trial court denied the motion, and in response to the defendant’s motion to set forth specific findings, the court stated in its order “Defendant is hereby precluded from raising any issue relating to the establishment, posting or alteration of the speed limit he is charged with violating.”

The defendant takes issue with the fact that the plaintiff filed no motion or other pleadings responding to his motion to dismiss and presented no affidavits controverting the facts alleged in the defendant’s supporting affidavit. Therefore, he argues that the court had no basis on which it could deny the motion.

Contrary to the defendant’s allegation, the court did have a proper basis for denying the motion in that the defendant was not asserting any disputed factual matter, as he appears to allege, but rather a matter of law upon which the court properly ruled. An examination of the defendant’s affidavit reveals that the statements contained therein are not factual matters in dispute. The defendant is arguing only the legal effect of the undisputed facts. Therefore, the court’s ruling was a matter of law and was proper. Since the defendant’s motion concerned only a matter of law, the court disposed of the motion on its merits pursuant to section 2 — 619(d) of the Civil Practice Law (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619(d)). Under the court’s ruling the defendant was properly precluded from raising any issue relating to the establishment, posting or alteration of the speed limit thereafter.

Although we conclude that the trial court acted properly pursuant to its ruling, it is our opinion that the court was in error in its interpretation of the law as it applied to the facts of this case. It is established that where there is a State law relating to a subject, an exercise of police power by a municipality must be in harmony with such law. (Montgomery v. City of Galva (1969), 41 Ill. 2d 562; Village of Cherry Valley v. Schuelke (1977), 46 Ill. App. 3d 91.) Section 11— 207 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 207) provides in part: “Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this Chapter, ***.” Therefore, although the village of Oak-wood Hills had authority to regulate the speed limits within its jurisdiction and under its delegated authority (Ill. Rev. Stat. 1983, ch. 951/2, pars. 11 — 208 and 11 — 211; Ill. Rev. Stat. 1983, ch. 24, par. 11— 40 — 1), such authority had to be exercised within the confines of statutory limitations. (Kizer v. City of Mattoon (1928), 332 Ill. 545.) According to section 11 — 208(a)(10) of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 208(a)(10)), local authorities may alter speed limits as authorized in section 11 — 604 where it states:

“Whenever any such local authority or park district determines, upon the basis of an engineering or traffic investigation concerning a highway or street on which it is authorized by this Section to establish speed limits, that a maximum speed limit prescribed in Section 11 — 601 of this Chapter is greater or less than is reasonable or safe with respect to the conditions found to exist at any place or along any part or zone of such highway or street, the local authority or park district shall determine and declare by ordinance a reasonable and safe absolute maximum speed limit at such place or along such part or zone ***.
* * *
The local authority or park district may make such limit applicable at all times or only during certain specified times. Not more than 6 such alterations shall be made per mile along a highway or street; and the difference in limit between adjacent altered speed zones shall not be more than 10 miles per hour.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 604.

The plaintiff argues that since the 45 miles-per-hour zone preceding the village limits was not within its jurisdiction, it was not subject to the provisions of the Illinois Vehicle Code. Defendant’s point is well taken that the statute indicates no exceptions for alterations between various jurisdictions, and plaintiff cites no authority for this proposition. The interpretation and construction of statutory provisions is governed by the rule that the intention of the legislature should be ascertained and given effect. Legislative intent should be sought primarily from the language used in the statute. In the present case, the language is certain and unambiguous, and in such a case it is never proper for a court to depart from plain language by reading into a statute exceptions, limitations, and conditions which conflict with the legislative intent. (Harvey Firemen’s Association v. City of Harvey (1979), 75 Ill. 2d 358; Dienes v. Holland (1978), 64 Ill. App. 3d 109.) As defendant states, it would appear that the provision in question was placed in the statute in an effort to allow a motorist to adjust his speed -within a reasonable period of time. Although the court did not state any findings of fact as the basis for its ruling, our reading of the statute indicates that the ordinance in question was invalid since it was contrary to the intent of the legislature and the public policy so expressed. Since the 25 miles-per-hour speed sign therefore had no legal effect, the defendant’s conviction is reversed.

Our determination of this issue obviates the necessity of dealing with the second issue presented.

The judgment of the circuit court of McHenry County is reversed for the reason that the posted 25 miles-per-hour speed sign was invalid as a matter of law.

Judgment reversed.

HOPE and NASH, JJ., concur.


author: JUSTICE WHITE

text:
    JOHN P. O’DONNELL, Plaintiff-Appellant, v. AMERICAN HONDA MOTOR COMPANY, INC., Defendant-Appellee (Dorothy Caiozzo et al., Defendants).
    First District (3rd Division)
    Nos. 83—1519, 83—1521 cons.
    Opinion filed June 13, 1984.

      William D. Maddux & Associates, of Chicago (William D. Maddux and Bruce M. Lane, of counsel), for appellant.
    Cassiday, Schade & Gloor, of Chicago (John J. Pappas and Timothy J. Ashe, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court.

On August 28, 1978, plaintiff, John P. O’Donnell, was severely injured when his motorcycle, a Honda 750 CB, was struck by a truck driven by defendant, Dorothy Caiozzo. Plaintiff’s injuries included a ruptured diaphragm, hematoma of the left chest, fracture of left tibia and fibula, fracture of right wrist and vocal cord paralysis, and he was rendered paraplegic. On November 29, 1978, plaintiff executed a document entitled, “General Release, Husband and Wife” which purported to release Joseph and Dorothy Caiozzo and “all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries *** resulting, and to result” from the accident. Plaintiff received $46,900 of a $50,000 insurance policy held by Dorothy Caiozzo as consideration for the release.

On April 2, 1980, plaintiff filed a complaint for injuries resulting from the motorcycle accident. Dorothy Caiozzo, American Honda Motor Company, Inc., manufacturer of the motorcycle, and Sport Motor, distributor of the motorcycle, were joined as defendants to the action. Count I of the plaintiff’s complaint set forth the facts of the accident and the execution of the release. The complaint alleged that the release was entered into under a mutual mistake of fact in that the parties believed that plaintiff’s motorcycle was sound and that Dorothy Caiozzo was the only party liable for plaintiff’s injuries. The complaint prayed that the release be set aside or in the alternative treated as a covenant not to sue. Count II of the complaint alleged that plaintiff’s Honda 750 CB motorcycle was equipped with defective throttle cables which prevented plaintiff from braking and thus avoiding the accident. Plaintiff sought recovery under a products liability theory.

On November 3, 1981, Honda filed a motion to dismiss plaintiff’s complaint, pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48), on the grounds that the release barred plaintiff’s action. Plaintiff, in turn, filed a motion for partial summary judgment seeking to set aside the release on the grounds of mutual mistake. The trial court denied both motions finding that (1) section 2(c) of the Contribution Act (Ill. Rev. Stat. 1979, ch. 70, par. 302(c)) does not require that a tortfeasor be specifically named in a release to be discharged from liability, and (2) there existed an issue of fact as to whether a mutual mistake of fact was made by the parties at the time the release was executed. At the request of the parties the trial court certified three questions for review:

I
Whether Illinois public policy permits the application of the mutual mistake of fact doctrine to set aside a validly executed release when the plaintiff fails to recognize, at the time of the execution of the release, a potential cause of action against another tortfeasor.
II
Whether a genuine issue of material fact exists in this case as to whether the settling parties made a mutual mistake of fact at the time of the execution of the release with regard to whether there was a defect in the motorcycle driven by the plaintiff at the time of the occurrence.
III
In an Illinois post-Contribution Act action, whether a release is not a discharge of other tortfeasors unless they are specifically named or otherwise clearly identified.

We consider first the question of specificity under the Illinois Contribution Act. Section 302(c) of the Act provides:

“(c) When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide ***,” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 70, par. 302(c).)

Plaintiff advocates an interpretation of section 2(c) whereby a release would not discharge other tortfeasors unless they were specifically named or so clearly identified as to justify the conclusion that the parties intended to release those tortfeasors. In Alsup v. Firestone Tire & Rubber Co. (1984), 101 Ill. 2d 196, our supreme court addressed this issue and held that a release will not discharge other tortfeasors from liability unless they are designated by name or otherwise specifically identified. The court, however, made application of the Alsup holding prospective to releases executed after January 20, 1984. The release in the present case was executed on November 29, 1979. The Alsup holding is therefore inapplicable. We hold that the language of the release purporting to discharge “all other persons, firms and corporations” satisfied the “unless its terms so provide” requirement of the Illinois Contribution Act, and was broad enough to discharge Honda from all claims arising by reason of the bodily injuries suffered by plaintiff. Trexler v. Hubbard (1983), 118 Ill. App. 3d 697, 455 N.E.2d 274; Lake Motor Freight, Inc. v. Randy Trucking, Inc. (1983), 118 Ill. App. 3d 626, 455 N.E.2d 222.

We consider next the validity of the release. A release or a covenant not to sue may be set aside if the agreement was entered into through a mutual mistake of fact. (McComb v. Seestadt (1981), 93 Ill. App. 3d 705, 417 N.E.2d 705; Meyer v. Murray (1979), 70 Ill. App. 3d 106, 111, 387 N.E.2d 878; Ogren v. Graves (1976), 39 Ill. App. 3d 620, 350 N.E.2d 249.) The mistake must be mutual, material to the transaction and affects its substance. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 111.) It is not the burden of the defendant to establish the absence of a mutual mistake of fact. (70 Ill. App. 3d 106, Ill.) "The party contending that a release was secured as a result of fraud, misrepresentation or mistake must prove such by clear and convincing evidence. Ogren v. Graves (1976), 39 Ill. App. 3d 620, 622; Child v. Lincoln Enterprises, Inc. (1964), 51 Ill. App. 2d 76, 82, 200 N.E.2d 751.

In the instant case, here on a motion to dismiss based on a release, valid on its face, the plaintiff has the burden to allege and prove that a material issue of fact existed which would invalidate the agreement. (Meyer v. Murray (1979), 70 Ill. App. 3d 106, 114.) We agree with the trial court that a material issue of fact existed sufficient to invalidate the release. Plaintiff received $46,900 from Dorothy Caiozzo as consideration for the execution of the release. Plaintiff accepted this amount because Dorothy Caiozzo did not have any other assets and the parties believed her to be the only party liable for plaintiff’s injuries. Underlying their belief was the assumption that the motorcycle was nondefective. Plaintiff testified in his deposition that he first became aware that something might have been wrong with his motorcycle more than a year after the release was executed. Dorothy Caiozzo testified at her deposition that she was unaware of possible defects in plaintiff’s motorcycle. Moreover, defendants could not be heard to say that Dorothy Caiozzo knew of any defect in the motorcycle since her actions in obtaining the release would then be fraudulent. (Early v. Martin (1947), 331 Ill. App. 55.) Implicit in the great disparity between the possible recovery under a products liability theory (the court estimated that plaintiff would recover more than $1 million in a products liability action) and the consideration received by plaintiff was the assumption that the motorcycle was sound. (331 Ill. App. 55, 62.) We find that there existed a material question of fact sufficient to invalidate the release. Accordingly, we hold that the trial court properly denied Honda’s motion to dismiss the complaint. Meyer v. Murray (1979), 70 Ill. App. 3d 106, 115.

Since we find that there was a mistake of fact in this case pertaining to the condition of the motorcycle, we do not address Honda’s contention that Illinois public policy prohibits the application of the mutual-mistake-of-fact doctrine to set aside a release when the mistake consists of failure to recognize a potential cause of action against another tortfeasor.

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

Affirmed.

RIZZI, RJ., and McNAMARA, J., concur.