author: JUSTICE REINHARD

text:
    DANIEL CARRIGAN, Plaintiff-Appellee, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF GLENDALE HEIGHTS et al., Defendants-Appellants.
    Second District
    No. 83—90
    Opinion filed January 27, 1984.

      Michael K. Durkin, of Lasusa & Storino, Ltd., of Des Plaines, for appellants.
    John W. Darrah, of Ryan & Darrah, of Addison, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, the Board of Fire and Police Commissioners of the village of Glendale Heights, Illinois (Board), appeals from an order of the circuit court of Du Page County entered on administrative review reversing the Board’s decision to discharge plaintiff, Daniel Carrigan, from the village of Glendale Heights police department for violations of departmental rules and regulations. The basis, of the court’s decision was that the Board’s finding that plaintiff was guilty of the charge of reckless conduct, one of several charges filed by the chief of police, was contrary to the manifest weight of the evidence. The trial court did find, however, that the findings of the Board that plaintiff violated the rules and regulations of the department on the remaining charges were not against the manifest weight of the evidence, but that these remaining findings did not constitute conduct that was sufficiently substantial or significantly related to the performance of the plaintiff’s police duties to establish cause for discharge. The trial court further ordered that the cause be remanded to the Board for determination of the proper penalty to be imposed consistent with the findings of the trial court.

The Board appeals from this order and contends that the trial court erred in determining that (1) the Board’s finding that plaintiff was guilty of reckless conduct was against the manifest weight of the evidence; and (2) the Board’s findings on the remaining charges did not constitute lawful grounds for discharge. Plaintiff cross-appeals from a part of the trial court’s order which found that the Board had jurisdiction over the plaintiff to conduct a hearing and render a finding because plaintiff had waived the statutory requirement that a hearing be conducted within 30 days of the filing of the charges.

Plaintiff, a sergeant, shift commander, and 12-year veteran of the police department of the village of Glendale Heights, testified that he informed his chief, who was called to his home, that he had been out with his wife on the evening of September 10, 1981, while off duty, and had consumed seven or eight alcoholic drinks at the Cloverleaf Restaurant located in the village of Bloomingdale, Illinois. Plaintiff and his wife then drove back to their home in Glendale Heights at approximately 2 a.m., September 11. Thereafter plaintiff and his wife were seated downstairs in the lower level family room of their residence when they began to argue. Plaintiff’s wife left the room, went upstairs to the kitchen and began to roll what appeared to be a marijuana cigarette. Upon discovering this, plaintiff grabbed the bag of marijuana and went downstairs whereupon his wife followed him. She then grabbed the bag out of his hand and ran upstairs toward the bathroom. Plaintiff stated that he became enraged and, though not knowing why, grabbed a snub-nose .38-caliber revolver which he kept under his stereo and ran upstairs after his wife. Plaintiff encountered his wife in their bathroom where she was in the process of flushing the marijuana down the toilet. Plaintiff then fired one shot into the toilet. Plaintiff stated that he was one foot from the toilet at the time of the shot and his wife “was close, but I don’t recall seeing her, but I know she was close.” Plaintiff defined “close” as perhaps three or four feet away from him. He could not recall where she was in relation to the toilet, but probably she was in back of him, maybe in the hallway. He could not recall whether she was in the bathroom, but she may have been just in back of him. Plaintiff’s wife then left the home and plaintiff stated that he assumed he threw the gun back on the stereo and went out to look for his wife. Upon his arrival back home about 15 or 20 minutes later, plaintiff found Chief McCollum of the Glendale Heights police department and two police officers outside of his residence and his wife in the back seat of one of the squad cars. Shortly thereafter Chief McCollum questioned plaintiff as to the location of the. 38-caliber weapon. Plaintiff was unable to find it at that time but stated that he subsequently located it two days later under the stereo.

Later that morning plaintiff gave a statement to Chief McCollum which he said was substantially the same as related earlier that morning to Chief McCollum. Upon questioning by his own attorney, plaintiff related that he and his wife lived alone in the home and his wife was still residing with him there. He stated that the toilet was to the right front as one stood in the bathroom doorway and about three feet away. He was a foot awaj from the toilet when he discharged the weapon. The bathroom is small and there is a foyer immediately adjacent to the bathroom. He had never seen his wife use marijuana before or seen it in his home.

Chief McCollum testified that when he arrived at the home he found a shattered toilet, green plant material strewn about the floor, particles from the toilet on the floor, and some black residual materials that looked similar to powder burns. When he spoke with plaintiff, he was told by him that “he caught his wife with some marijuana. He lost control and he shot the toilet upstairs.” Plaintiff said he did not know where he placed the gun, and a search of the home did not reveal it although two other guns were found. He described plaintiff at that time .as coherent, cooperative, and passive. Plaintiff told him at least three times that “he lost his head, he lost control.” He talked with plaintiff again that morning in his office. Plaintiff also related then that he had consumed seven alcoholic drinks that evening and morning, that his wife was approximately four feet from the firearm when it was discharged, and that he did it because he lost control, and when she tried to flush marijuana down the toilet he just shot the toilet. Plaintiff told him that he did not recognize the possibility of a ricochet at the time.

Two other officers testified that plaintiff was not intoxicated, that he said he lost his head, that plaintiff’s wife was intoxicated, and that the toilet was completely shattered.

The written charges filed by Chief McCollum against plaintiff arising out of this incident specified violations of certain rules and regulations of the Glendale Heights police department relevant to firearms use/display, law enforcement code of ethics, neglect of duty, conduct unbecoming an officer, and violations of law. The violations of law were later particularized as a violation of the Criminal Code of the offense of reckless conduct and a violation of a village ordinance of discharge of a firearm within the village. The written findings and decision of the Board found the plaintiff’s conduct in violation of the department’s rules and regulations as charged and constituted a substantial shortcoming that continued employment would be detrimental to the police department. Plaintiff was discharged by the Board and filed for administrative review in the circuit court.

In its order finding the Board’s decision that plaintiff was guilty of reckless conduct was contrary to the manifest weight of the evidence, the trial court stated that the record established that plaintiff discharged the firearm in his own home and his wife was standing behind him and at least three feet from the point of impact of the bullet. The court further found that the record did not establish that plaintiff’s wife was in the line of fire nor was there a probability that she would be placed in any harm. All other findings of the Board that plaintiff violated department rules and regulations were found by the trial court to be not against the manifest weight of the evidence. However, the court determined that these findings did not constitute conduct sufficiently substantial or significantly related to performance of plaintiff’s duties to establish cause for discharge.

We address initially plaintiff’s contention in his cross-appeal that he was not given a hearing on the charges filed against him within the time required by law. In this regard, plaintiff points out that section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10 — 2.1—17) provides that a hearing on the charges must be commenced “within 30 days of the filing thereof.” He further contends that the charges were filed with the Board on September 12, 1981, a hearing was not held until October 29, 1981, and consequently, not commenced within the statutory 30-day period.

The record reveals that written charges against plaintiff were filed with the Board on September 12, 1981. On September 14 plaintiff was served with a copy of the charges and notice that the Board ordered a hearing on October 2. On the date scheduled for the hearing plaintiff appeared pro se and requested a continuance so he could confer with counsel whom he had previously contacted and told of the scheduled hearing, and who had not appeared. Before the Board allowed the matter to be continued, counsel for the chief of police stated that charge No. 2 had listed plaintiff’s actions violated a certain police department rule and regulation set forth as “1.5.2.38 violation of law,” and he wanted to specify what law that was. Counsel thereafter stated the first law was reckless conduct, a statute, and read to plaintiff that offense, and the second was a village ordinance entitled discharge of weapons, and he also read that ordinance to plaintiff. He was instructed by the Board chairman to send a letter to plaintiff’s attorney containing these specified charges. The hearing date was then continued to October 16. On October 16 plaintiff appeared with his attorney, who requested another continuance because he had just been retained. The continuance was granted and the matter set for a hearing on October 29, which was thereafter held as scheduled.

The statutory 30-day time limit to commence a hearing as provided in section 10 — 2.1—17 of the Illinois Municipal Code is mandatory, and a failure of the Board to commence a hearing within that time period causes the Board to lose jurisdiction of the case. (Bridges v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 190, 403 N.E.2d 1062.) However, where the delay in commencing the hearing until after the 30-day period is not attributable to the Board, but rather occasioned by the plaintiff, the statute is not violated. (Riggins v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 126, 129-30, 437 N.E.2d 327; Finin v. Board of Fire & Police commissioners (1981), 98 Ill. App. 3d 879, 882-83, 424 N.E.2d 976.) Here, the hearing was originally scheduled for October 2 within the 30-day period, but was continued on that date at the specific request of the plaintiff to allow him to confer with his attorney who had failed to appear for the hearing.

Plaintiff maintains, however, that the continuance “was as much for the convenience of the Board and the Chief as it was the plaintiff,” and the delay should not be attributable to him. While it does appear that certain charges against plaintiff were clarified on October 2 by referring to specific statute and village ordinance violations, and the hearing was continued to October 16 when the Board could next meet as an entire body, the fact remains that plaintiff first requested the continuance and elected not to commence the hearing on the October 2 scheduled date. We conclude that the delay in the commencement of the hearing beyond the statutory 30-day period was attributable to plaintiff and the Board did not lose jurisdiction under these circumstances.

Focusing next on the Board’s appeal, we must first address the contention by the Board that the trial court erred in finding that the Board’s decision that plaintiff was guilty of the charge of reckless conduct was contrary to the manifest weight of the evidence. The basis of the trial court’s ruling was its opinion that the record established plaintiff discharged the firearm in his own home and his wife was standing behind him and at least three feet from the point of impact of the bullet. Therefore, the court found she was not in the line of fire nor was there a probability she would be placed in any harm. All other charges against plaintiff which the Board found he violated were found by the trial court to be not against the manifest weight of the evidence.

A trial court’s scope of review of an administrative agency’s decision regarding discharge is a two-step process. First, the court must determine if the agency’s findings of fact are contrary to the manifest weight of the evidence. Then the court must determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist. (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 550-51, 426 N.E.2d 885.) Findings and conclusions of the administrative agency on questions of fact shall be held to be prima facie true and correct. (Ill. Rev. Stat. 1981, ch. 110, par. 3 — 110; Sutton v. Civil Ser vice Com. (1982), 91 Ill. 2d 404, 409, 438 N.E.2d 147.) Where a criminal offense is the basis of a charge before an administrative body, proof of that offense by a preponderance of the evidence is required. Board of Education v. Adelman (1981), 97 Ill. App. 3d 530, 423 N.E.2d 254.

A person commits reckless conduct when he “causes bodily harm to or endangers the bodily safety of an individual by any means *** if he performs recklessly the acts which cause the harm or endangers safety, whether they otherwise are lawful or unlawful.” (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 5(a); People v. Smith (1979), 76 Ill. App. 3d 191, 195, 392 N.E.2d 682.) A person performs acts recklessly “when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 6.) While the committee comments to section 12 — 5 state that it is aimed primarily at the reckless homicide type of conduct where no homicide results (Ill. Ann. Stat., ch. 38, par. 12 — 5, Committee Comments, at 573 (Smith-Hurd 1979)), the language of the statute does not limit applicability of that statute to conduct which places a person in danger of extreme bodily harm or death (People v. Burton (1981), 100 Ill. App. 3d 1021, 1025, 427 N.E.2d 625; People v. Swanson (1980), 84 Ill. App. 3d 245, 246, 405 N.E.2d 483), and reckless conduct is a broad and all-inclusive offense. (People v. Smith (1980), 90 Ill. App. 3d 83, 86, 412 N.E.2d 1102.) A gun is a deadly weapon capable of killing another, and handling a gun improperly may be reckless conduct. (People v. Perry (1974), 19 Ill. App. 3d 254, 258, 311 N.E.2d 341.) It has been held that the firing of a loaded weapon in the general direction of another may support a verdict of reckless conduct. (People v. Smith (1979), 76 Ill. App. 3d 191, 195-96, 392 N.E.2d 682.) The firing of a gunshot into the ground which ricocheted and caused injury can constitute reckless conduct. (People v. Johnson (1974), 20 Ill. App. 3d 1085, 1087-88, 314 N.E.2d 197.) In an administrative hearing where a charge is based on the offense of reckless conduct, the findings of the agency that the evidence supports the act of reckless conduct will not be reversed unless the decision is against the manifest weight of the evidence. See H.B. Investment & Development, Inc. v. License Appeal Com. (1977), 47 Ill. App. 3d 750, 753-54, 365 N.E.2d 457.

In the case at bar, the record indicates that plaintiff discharged a .38-caliber revolver by firing one shot into a toilet, while approximately one foot away, causing the toilet to shatter. Admittedly, plaintiff “lost control” and told Chief McCollum that he did not recognize the possibility of a ricochet from the shot at the time. The bathroom was small and plaintiff’s wife at the time the shot was fired, according to plaintiff, was close to him, perhaps three or four feet away in back of him. She could have been in the hallway just outside the bathroom, plaintiff could not definitely recall, but she was in back of him.

Under these particular circumstances, the Board could conclude from the facts presented that plaintiff endangered the bodily safety of his wife and consciously disregarded a substantial and unjustifiable risk, and that such disregard was a gross deviation from the standard of care which a reasonable person would exercise in the situation. It is uncontradicted that plaintiff “lost control,” discharged one shot from a .38-caliber pistol into a toilet, shattering it, in a small bathroom while his wife was behind him within three or four feet, and failed to recognize the possibility of a ricochet. While the precise location of plaintiff’s wife in relation to plaintiff cannot be determined from the record, there are sufficient facts for the Board to find plaintiff’s wife was endangered by a ricochet from the shot fired. There is no indication that plaintiff made certain his wife was out of the way of any potential harm when he fired his weapon nor that he considered her safety. While a court will grant relief where the record does not disclose evidentiary support for the agency’s determination, the permissible scope of judicial inquiry concerning factual determinations by administrative agencies has been limited to ascertaining if the agency decision was contrary to the manifest weight of the evidence. {Basket-field v. Police Board (1974), 56 Ill. 2d 351, 358-59, 307 N.E.2d 371.) Accordingly, we cannot conclude that the finding of the Board that plaintiff’s conduct constituted the offense of reckless conduct was against the manifest weight of the evidence. The trial court’s reversal of that finding was erroneous.

Next, we must determine whether the Board’s findings of fact provide a sufficient basis for its conclusion that cause for discharge exists. An administrative tribunal’s finding of cause for discharge commands respect, and it is to be overturned only if it is arbitrary and unreasonable or unrelated to the requirements of the service. (Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 105-06, 449 N.E.2d 115.) Under this rule, it will stand even if the court considers another sanction more appropriate. (Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 258, 449 N.E.2d 845.) Cause is defined as some substantial shortcoming which renders the employee’s continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as good cause for his no longer occupying the place. Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101,105, 449 N.E.2d 115.

The Board found plaintiff’s conduct violated a department rule and regulation which prohibits violation of any Federal, State, county, or municipal law. Specifically, the Board found plaintiff committed reckless conduct in violation of State law, and committed the unlawful discharge of a firearm within the village of Glendale Heights in violation of a village ordinance. In addition, the Board determined that plaintiff’s conduct violated three other department rules and regulations as charged. These latter violations involve infractions of rules and regulations which prohibit the drawing or displaying of a firearm except for necessary inspection or use, require self-restraint and regard for the welfare of another, and prohibit neglect of duty by failing to comply with the department rules and regulations. The Board found that plaintiff’s conduct constituted conduct unbecoming to a police officer and was such' a substantial shortcoming that continued employment would be detrimental to the operation, efficiency, discipline, and morale of the police department.

Neither plaintiff nor the Board offered additional evidence relevant to the issue of discharge or other appropriate sanctions after the initial hearing to adjudicate the charges. Thus, the record consists of evidence of the proven charges of plaintiff’s misconduct and the testimony that he is a sergeant and shift commander with the police department and has been an officer for 12 years.

Recent decisions of our supreme court have held that misuse of his gun by a police officer is a serious offense directly related to the public’s confidence in the ability and good judgment of a police officer, and the decision by the agency to discharge the officer was warranted and related to the needs of the police department or the municipality. (See Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 449 N.E.2d 845; Walsh v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 101, 449 N.E.2d 115.) Respect for weapons is paramount to an efficient and disciplined police department. (Jenkins v. Universities Civil Service System Merit Board (1982), 106 Ill. App. 3d 215, 223, 435 N.E.2d 804.) Although the officer may be off duty at the time of the improper use of his weapon, the decisions do not draw any distinction in that regard in the seriousness of the conduct. (See Kloss; Jenkins; see also Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App. 3d 864, 278 N.E.2d 212.) The fact that the discharge arose, in effect, from a single incident does not preclude a discharge for cause assuming that the conduct is of a nature that sound public policy would recognize as good cause for no longer occupying the position of police officer. Humbles v. Board of Fire & Police Commission ers (1977), 53 Ill. App. 3d 731, 734, 368 N.E.2d 1049.

Plaintiff maintains that this is but a single incident in his 12-year career as a police officer, and that he has attained the rank of sergeant and was assigned the duties as a shift commander. He further argues that there is no evidence that his actions constitute a substantial shortcoming which would be detrimental to the police department, and notes that members of the community were not present at the hearing. The latter argument is unpersuasive since the misuse of the weapon itself is a serious offense, was known to other officers of the department who investigated the incident and, accordingly, relates directly to the discipline and efficiency of the department in which the public are interested.

Plaintiff’s rank and years of experience were before the Board for it to consider in selecting the type of sanction necessary to the needs of the department. The question is not whether this court would decide upon a more lenient sanction than discharge were it to determine initially what discipline would be appropriate. (Kloss v. Board of Fire & Police Commissioners (1983), 96 Ill. 2d 252, 258, 449 N.E.2d 845.) The question is whether in view of the circumstances presented, this court can say that the Board, in opting for discharge, acted unreasonably or arbitrarily or selected a type of discipline unrelated to the needs of the service. (Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, 411, 438 N.E.2d 147.) We conclude that the Board’s decision to discharge plaintiff based upon the findings of violations of the charges brought against him was not arbitrary, unreasonable, nor unrelated to the requirements of service.

For the foregoing reasons, the order of the circuit court of Du Page County vacating the Board’s finding on the charge of reckless conduct and vacating and remanding the Board’s sanction of discharge is reversed. On the cross-appeal, the finding of the trial court that the Board has jurisdiction of the matter is affirmed. The order of the Board is reinstated.

Affirmed in part, reversed in part, and the order of the Board is affirmed.

HOPF and NASH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MILLER

license: Public Domain

text:
      In re ESTATE OF MARIE F. PALMER, Deceased (Neil F. Hartigan, Illinois Attorney General, Plaintiff-Appellant, v. Jane G. Palmer, Ex’r of the Estate of Marie F. Palmer, Defendant-Appellee).
    Fourth District
    No. 4—83—0053
    Opinion filed January 23, 1984.
    Rehearing denied March 2, 1984.
    Neil F. Hartigan, Attorney General, of Springfield, pro se (Frederic D. Tannenbaum, Assistant Attorney General, of counsel), for appellant.
    William L. Hatch and Jeffrey L. Fehrenbacher, both of Hatch, Blockman & McPheters, P.C., of Champaign, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

Marie E Palmer died December 5, 1980. In administering Mrs. Palmer’s substantial estate, which comprised mainly farm land, her executor filed notice of her election to defer and pay in installments the eligible parts of both the Federal estate tax and the Illinois inheritance tax. Section 6166 of the Internal Revenue Code permitted estates consisting largely of closely held businesses, including farms, to defer for five years and then pay in 10 equal installments that part of the estate tax attributable to the family business. (26 U.S.C. sec. 6166 (Supp. V 1981).) In purporting to make that election for payment of the Illinois inheritance tax, the executor relied on section 3a of the Inheritance and Transfer Tax Law (Ill. Rev. Stat. 1981, ch. 120, par. 377a), which provided that an estate allowed to make the Federal election could do the same for payment of the inheritance tax.

The circuit court assessed an inheritance tax of $120,564.33; when the estate failed to pay the full amount, the court issued a summons for payment of the balance remaining. Later, the court agreed with the executor and found that section 3a could be applied here, therefore allowing the estate to make the election.

Section 3a was added to the Inheritance and Transfer Tax Law by Public Act 81 — 1368; the second section of Public Act 81 — 1368 provided:

“ ‘This amendatory Act of 1980 takes effect immediately upon becoming a law and is effective for estates of decedents dying after December 31, 1980.’ ” (Ill. Ann. Stat., ch. 120, par. 377a note (Smith-Hurd Supp. 1983).)

The legislature passed Public Act 81 — 1368 June 27, 1980, as Senate Bill 1497, and the Governor signed it into law August 7, 1980. The executor argues that the Act went into effect and became applicable on the day that the Governor signed it, notwithstanding the language of section 2 that the Act was to be “effective for estates of decedents dying after December 31, 1980.” The Attorney General argues that that language operated to delay the application of the law to estates of decedents dying after the stated date. We conclude that section 3a may be applied only to estates of decedents dying after December 31, 1980.

The effective date of the Act was for the legislature to determine, either by its selection of a specific date for this particular act, or through its provision of a general uniform date governing bills that do not contain their own. (Ill. Const. 1970, art. IV, sec. 10.) The legislature did the former and provided that the Act would become effective immediately upon its becoming law but applied the Act only to the estates of decedents dying after December 31, 1980. All in all, the worst that can be said is that the expression of an effective date turned out to be unnecessary.

Public Act 81 — 1368 was passed by the legislature June 27, 1980, and was signed into law by the Governor August 7, 1980. This routine sequence — passage before July 1, followed by gubernatorial approval— is governed by section 1 of “An Act in relation to the effective date of laws” (Ill. Rev. Stat. 1981, ch. 1, par. 1201), which says:

“(a) A bill passed prior to July 1 of a calendar year that does not provide for an effective date in the terms of the bill shall become effective on January 1 of the following year, or upon its becoming a law, whichever is later.
(b) A bill passed prior to July 1 of a calendar year that does provide for an effective date in the terms of the bill shall become effective on that date if that date is the same as or subsequent to the date the bill becomes a law; provided that if the effective date provided in the terms of the bill is prior to the date the bill becomes a law then the date the bill becomes a law shall be the effective date.”

Under section 1(a), Public Act 81 — 1368 would have gone into effect January 1, 1981, had it not contained the language making it effective immediately. In that event, the result urged here by the Attorney General would have been achieved simply: the Act would have taken effect January 1, 1981, by operation of law, and by its own terms it would have been available only to estates of decedents dying after December 31, 1980. Under section 1(b), however, the language making the Act effective when it became a law caused its effective date to coincide with the date the' Governor signed it.

Although the date that a bill becomes law is not necessarily the date that it becomes effective (City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 384 N.E.2d 310), in this case by the terms of the Act the two dates coincide. Public Act 81 — 1368 became a law and went into effect August 7, 1980. But the explicit limitation on its availability — to estates of decedents dying after December 31, 1980 — unequivocally expresses the legislature’s intent to delay or limit its application. Thus, the Act went into effect in August 1980 but by its own terms could not be used for estates of decedents dying before January 1, 1981. This interpretation preserves the legislature’s clear choice of a limit on the Act’s availability.

The executor points out that the provision pertaining to the effective date of the Act was changed several times before the bill was finally passed. Originally, Senate Bill 1497 provided that the Act was to take effect January 1, 1981, and limited its effect to estates of decedents dying after December 31, 1980. In amending the bill, the House of Representatives first provided simply that the Act was effective for estates of decedents dying after December 31, 1980, but later added the language in section 2 that was eventually passed by both Houses and is at issue here. The executor concludes from this eventual choice of an earlier effective date that the legislature intended to accelerate the effect and application of the Act.

Yet all those versions of the bill contained in one place or another the limitation to estates of decedents dying after December 31, 1980. Furthermore, the legislative debates on the bill show that the members believed that the Act would apply only to estates of decedents dying after December 31, 1980, and that they retained this belief throughout the various amendments to the language pertaining to the effective date of the bill.

We conclude that although Public Act 81 — 1368 took effect when the Governor signed it into law, it may be applied only to estates of decedents dying after December 31, 1980. Because Mrs. Palmer died before that date, her executor could not make the election provided by the Act for payment of the inheritance tax.

Reversed and remanded.

MILLS, P.J., and WEBBER, J., concur.


author: JUSTICE LORENZ

text:
    JOHN R. HIGGINS et al., Plaintiffs-Appellants, v. ANGELO C. KLERONOMOS, Defendant-Appellee.
    First District (5th Division)
    No. 82—2699
    Opinion filed January 20, 1984.
    Rehearing denied February 28, 1984.

      Patrick L. Moore, of O’Keefe, Ashenden, Lyons & Ward, of Chicago, for appellants.
    Patrick J. Phillips, of Jenner & Block, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs appeal from an order granting defendant’s motion to dismiss their complaint under section 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619(a)(9)) in which they sought to enforce a written indemnification agreement for brokerage commission and fees.

In their appeal plaintiffs argue that the trial court erred in granting defendant’s motion because (1) the claims upon which indemnification was sought were specifically provided for by the indemnity clause of the contract, and (2) the court erred in considering defendant’s affirmative defense, which had been stricken in the primary lawsuit brought against plaintiffs by third-party real estate brokers claiming fraud and breach of contract, and in which plaintiffs had expended $17,028 in attorney fees and defense costs.

The facts material to our decision are as follows: On February 6, 1980, defendant entered into a contract to purchase certain real estate known as River Forest Garden Apartments in River Forest, Illinois, from a seller for whom plaintiffs were brokers. Paragraph 4C of this contract contained the following indemnity provision:

“Purchaser agrees to indemnify and hold Seller, Preston A. Higgins & Co., Inc. and John R. Higgins, free and harmless from and against:
(1) all claims for brokerage commissions or fees and/or finder’s fees made by any person or entity (including but not limited to Salk, Ward & Salk, Henry Gendell, Irving Spector, Herman Kole and Irving Rosenfeld) claiming (a) to have been retained by Purchaser or his agent or affiliates in connection with this transaction or the Property, or (b) to be the procuring cause of this transaction, provided that such person or entity was not retained by Seller;
(2) any damage, loss, cost or expense (including, but not limited to, attorney’s fees and costs) incurred in connection with or arising out of any claim for brokerage commissions or fees and/or finder’s fees, as set forth in subparagraph 4(c)(1) hereof or any inaccuracy in or breach of any representation of Purchaser set forth in this Contract.
Purchaser’s obligations under this paragraph 4C shall survive the Closing.”

On October 20, 1980, following consummation of the real estate transaction, two third-party real estate brokers, Henry Gendell and Irving Spector filed an action against plaintiffs and four other named defendants, including the defendant in the case at bar. Count VI of their complaint alleged that the third-party brokers’ “extensive and valuable brokerage services were procured from them on the part of [plaintiffs], in that [plaintiffs] continued to represent that there were no other brokers involved in pending offers * * * [and that plaintiff] *** failed to disclose his interest as a broker in the sale and failed to disclose his ownership interest in the subject property.” An amended complaint added a breach of contract claim based on an alleged oral brokerage commission contract between Gendell, Spector and plaintiffs. A second amended complaint again charged the plaintiffs with fraud. Subsequently, the trial court granted plaintiffs’ motions to dismiss the complaint for failure to state a cause of action, and plaintiffs unsuccessfully sought indemnification from defendant for the $17,028 attorney fees and costs incurred in their defense in the primary suit.

On July 9, 1982, plaintiffs brought suit to enforce the indemnification agreement. Defendant moved to dismiss the complaint under section 2 — 619(a)(9) of the Illinois Code of Civil Procedure, arguing that the indemnity provision did not include coverage against a claim of fraud or a claim based on any contract between plaintiffs and the third-party brokers, and further argued that even assuming, arguendo, that the provision was applicable, it was unenforceable as against public policy.

In granting defendant’s motion, the trial court stated as the reasons for its ruling:

“I would hold that the language, all claims for brokerage commissions or fees and/or finder’s fees, et cetera, does not intend to indemnify against fraudulent acts. There is no specific inclusion of that intent in the agreement; and even if there was, it would be contrary to public policy and unenforceable. Therefore, I’m going to grant the motion to dismiss.”

Plaintiffs appeal from the order of dismissal.

Opinion

Initially, we consider whether the trial court erred by granting defendant’s motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619). This section provides for dismissal of a complaint by a trial court upon a defendant’s motion supported by affidavit showing “[t]hat the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.” Ill. Rev. Stat. 1981, ch. 110, par. 2-619(a)(9).

This reference to “affirmative matter” which avoids or defeats the opponent’s claim supports the interpretation that this subparagraph was intended to provide only for the raising of affirmative defenses (Brewer v. Stovall (1977), 54 Ill. App. 3d 261, 264, 369 N.E.2d 365); however, the phrase “affirmative matter” does not include every statement of evidentiary fact which tends to negate the allegations of the complaint. (Brewer v. Stovall (1977), 54 Ill. App. 3d 261, 266, 369 N.E.2d 365.) Moreover, a section 2 — 619 motion admits, for the purpose of the motion, the facts well-pleaded in the complaint. Loughman Cabinet Co. v. C. Iber & Sons, Inc. (1977), 46 Ill. App. 3d 873, 361 N.E.2d 379.

With the foregoing legal principles in mind, we now turn to consider plaintiffs’ primary argument that the claims for which indemnity was sought were legitimate contingencies validly covered by the indemnity provision. Defendant urges that we adopt the opposite conclusion and contends that the indemnity clause does not apply to the fraud and breach of contract claims brought against them by the third-party brokers in the primary suit.

An indemnity contract or contract provision is construed like any other contract (National Bank v. West Construction Co. (1976), 41 Ill. App. 3d 686, 355 N.E.2d 43). In construing an indemnification agreement the court is bound to give effect to the intention of the parties determined solely from the language used when no ambiguity exists. (Schek v. Chicago Transit Authority (1969), 42 Ill. 2d 362, 247 N.E.2d 886.) In a leading case on the construction of indemnification agreements, Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604, superseded by statute as stated in Long v. Bucyrus-Erie Co. (1983), 112 Ill. App. 3d 578, 445 N.E.2d 934, our supreme court stated that “courts will not, because a more equitable result might be reached thereby construe into the contract provisions that are not therein. [Citation.] In construing a contract which purports on its face to be a complete expression of the entire agreement, courts will not add thereto another term, about which the agreement is silent.” (Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp. (1946), 395 Ill. 429, 432-33.) The Westinghouse court went on to hold that “an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language of the contract [citations] or such intention is expressed in unequivocal terms.”395 Ill. 429, 433.

These general rules established in Westinghouse have been consistently reaffirmed by the supreme court. (Tatar v. Maxon Construction Co. (1973), 54 Ill. 2d 64, 294 N.E.2d 272; Zadak v. Cannon (1974), 59 Ill. 2d 118, 319 N.E.2d 469; Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93.) In Tatar, the supreme court further noted that it would serve no useful purpose to attempt to analyze, distinguish or reconcile the numerous cases interpreting indemnity clauses because the provisions involved are so varied, and each case will therefore depend upon the particular language used, and the factual setting of the case. The Tatar court noted: “The only guidance afforded is found in the accepted rule of interpretation which requires that the agreement be given a fair and reasonable interpretation based upon a consideration of all of its language and provisions.” Tatar v. Maxon Construction Co. (1975), 54 Ill. 2d 64, 67, 294 N.E.2d 272, 273-74.) Accord, Zadak v. Cannon (1974), 59 Ill. 2d 118, 319 N.E.2d 469; Simone Corp. v. Builders Architectural Products (1975), 28 Ill. App. 3d 595, 598, 328 N.E.2d 723.

In Nogacz v. Procter & Gamble Manufacturing Co. (1975), 37 Ill. App. 3d 636, 347 N.E.2d 112, the court again considered whether an indemnity clause was sufficient to support recovery in a situation where damages were occasioned by the indemnitor’s own negligence. After discussing Westinghouse, Tatar and Zadak, the court stated: “In Zadak the court recognized the futility of attempting to reconcile the numerous cases interpreting indemnity clauses, and said that each case depends on its particular facts and the language used in the agreement. In each of the cited cases [Westinghouse, Tatar and Zadak] the indemnitee sought indemnification for injury caused by his own employee’s negligence. In the matter before us, however, the facts indicate that the indemnitor *** was responsible for the scaffold on which its own employee was injured and the language used in the indemnity agreement, on a fair reading, indicates that it was the intention of these parties to include a claim based on these facts.” (Emphasis added.) 37 Ill. App. 3d 636, 648; see also Quilico v. Union Oil Co. (1978), 58 Ill. App. 3d 87, 374 N.E.2d 219.

Hence, it is clear that the primary object in construing an indemnity agreement is to give effect to the intention of the parties (Schek v. Chicago Transit Authority (1969), 42 Ill. 2d 362, 364, 247 N.E.2d 886) and since this intent must be determined solely from the language used when no ambiguity in its terms exists, a strict construction of that language which reaches a different result from that intended by the parties should not be adopted. Schiro v. W. E. Gould & Co (1960), 18 Ill. 2d 538, 165 N.E.2d 286.

With the foregoing principles in mind, we find no ambiguity to exist in the terms of the indemnity provision in the present case. The contract provided for indemnification from and against “all claims” (emphasis added) for brokerage commissions or fees and expressly included the names of the third party brokers, Gendell and Spector, who subsequently brought suit. In light of the fact that the language of the indemnity provision unambiguously and clearly requires defendant to indemnify plaintiffs against all claims for brokerage commissions, we must conclude that it was the intention of the parties that defendant indemnify plaintiffs under the facts of the case.

We next consider defendant’s contention that plaintiffs are precluded from enforcing the indemnity agreement because it is not applicable to the fraud claim brought against them for public policy reasons.

A prima facie case of fraud is established by allegations that the wrongdoer knowingly misrepresented a material fact for the purpose of inducing the claimant to act, that the claimant reasonably believed the misrepresentation to be true, and that he detrimentally relied upon it. (Northwest Federal Savings & Loan Association v. Weisberg (1981), 97 Ill. App. 3d 470, 422 N.E.2d 1101.) Fraud must be pleaded with specificity, particularity and certainty. (Goetz v. Avildsen Tool & Machines, Inc. (1980), 82 Ill. App. 3d 1054, 403 N.E.2d 555.) Thus, in order to constitute fraud, it is not enough that the party made a false promise not intending to keep it; the total facts must show a scheme or device to defraud. (Baker, Bourgeois & Associates, Inc. v. Taylor (1980), 84 Ill. App. 3d 909, 410 N.E.2d 55.) Consequently, a party has not properly alleged fraud unless he has set forth with specificity what the representations were, when they were made, by whom they were made, and to whom they were made. Waterford Condominium Association v. Dunbar Corp. (1982), 104 Ill. App. 3d 371, 432 N.E.2d 1009.

In the present case, neither party disputes that the claim of fraud against plaintiffs by the third-party brokers in the primary suit was striken for failure to state a cause of action, and defendant’s motion to dismiss merely incorporates the striken complaint. Similarly, defendant sets forth as “affirmative matter avoiding the legal effect of or defeating the claim” the stricken breach of contract claim in the primary suit.

We cannot condone such a Quixotic exercise in jousting with windmills. Mere allusion to stricken charges of fraud or breach of contract in a prior suit without further specific, particular and certain allegations in defendant’s motion to dismiss, is not sufficient to avoid the legal effect of the claim.

Since we consider plaintiffs’ complaint to state a cause of action and the “allegations” of the motion to dismiss not to be proper for consideration in a section 2 — 619 motion, we reverse the judgment dismissing the case and remand to the trial court for further proceedings consistent with the views expressed herein.

Reversed and remanded.

MEJDA, P.J., and SULLIVAN, J., concur.

      We note here that this rule still applies to indemnity provisions not covered by section 1 of “An Act in relation to indemnity in certain contracts’ ’ (Ill. Rev. Stat. 1979, ch. 29, par. 61), which prohibits construction contract indemnity agreements. Longv. Bucyrus-Erie Co. (1983), 112 Ill. App. 3d 578, 445 N.E.2d 934.


author: JUSTICE SULLIVAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAYMOND WARNER, Defendant-Appellant.
    First District (5th Division)
    No. 82—2717
    Opinion filed January 20, 1984.

      James J. Doherty, Public Defender, of Chicago (Donna Hickstein-Foley, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Sara Dillery Hynes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Following a jury trial, defendant was convicted of attempted murder, armed robbery, armed violence, and two counts of aggravated battery. He was sentenced to concurrent terms of 12 years for attempted murder and armed robbery, but the court vacated the armed violence conviction and imposed no sentence on the aggravated battery convictions, finding that they merged into the attempted murder offense. On appeal, not contending that the evidence was insufficient to establish his guilt beyond a reasonable doubt, defendant argues that he was denied a fair trial by admission of evidence that he refused to give a voice exemplar at a police lineup and because the prosecutor commented that this refusal constituted a tacit admission of guilt.

The complaining witness, Gerald Alexander (Alexander), testified that he was parking his car near his home shortly after midnight when he was passed by a car containing two men he had seen in the neighborhood on previous occasions. He saw the passenger, whom he identified as defendant, rise up in the seat and look at him. The car pulled over and stopped a short distance up the street, and while walking toward his house he heard someone from behind say, “Hey you.” When he turned, defendant grabbed him, wrestled him to the ground, and ripped his wallet from his pocket. He kicked defendant in the face, hollered for help, and while he was on the ground he was shot by the driver of the car who was standing 25 to 30 feet away. When his stepson, Gregory Nolan (Nolan), came out of the house the men ran to their car, which was driven away. A few days later, at the hospital, he identified a person as the driver of the car and as the man who shot him, but he did not tell the police then that he had recognized defendant from the neighborhood. Almost two years later, he viewed a police lineup and identified defendant as the man who attacked him. Dining his direct examination, he was asked whether all five men in the lineup were asked to say, “Hey you,” and he answered that defendant refused to say anything. At that point, defense counsel said, “Objection, Judge. May I have a sidebar?” In the discussion that followed, he moved for a mistrial, arguing that the State was improperly attempting to use defendant’s constitutionally protected silence as a tacit admission of guilt, and that he (counsel) was unfairly surprised by introduction of this evidence because he had received no notice of it during discovery. The trial court denied the motion since there was no objection prior to the answer and because a police report provided forewarning that the persons in the lineup had been asked to say those words.

Nolan, Alexander’s stepson, then testified that on the night in question he heard his nephew shout that someone was “jumping on Alex,” and when he ran outside, he saw two men standing over his stepfather. He chased them as they ran toward their car which was double-parked up the street with its engine running, doors open, and lights on. He was within seven feet of them when they turned, looked at him, jumped into their car, and drove away. He had seen defendant in the neighborhood at least 10 times before but did not know his name. When the police arrived, he gave them a description of the shorter of the two men, but he did not recall giving them any other description or telling them that he recognized defendant from the area. Later that afternoon, he and his brothers saw defendant at a neighborhood tavern, but when they returned with the police, he (defendant) was gone. They then went to a house where defendant allegedly lived, and he (Nolan) identified a man named Michael as one of the two men he had chased the previous night. Two days later, he identified defendant from a set of police photographs as the other person he chásed, and almost two years later he identified defendant in a police lineup as one of the two men involved in the attack on Alexander.

Hurrell Ellis (Ellis), the victim’s grandson, testified that on the night of the incident he heard a gunshot, looked out the window, and saw a man whom he identified as defendant wrestling with his grandfather. Two days later, he picked out defendant’s picture from a group of police photographs and identified him as his grandfather’s assailant.

Officer Rothgeb testified that Nolan identified defendant from the police photographs but stated that he did not show those pictures to Alexander. During the two years between the commission of the offense and defendant’s arrest, he and his partner made numerous unsuccessful attempts to locate defendant.

Detective Kondall testified that on the day after defendant’s arrest, he conducted two police lineups in which Alexander and Nolan separately identified defendant as the offender. The men in the lineups were asked to say the words “Hey you,” and although his report indicated that defendant refused to say the words in front of Nolan, it did not indicate, and he did not recall, whether defendant had also refused to say them in front of Alexander.

In rebuttal argument, the prosecutor said:

“It’s in the police reports that he refused to say ‘Hey you.’ It’s in the police reports that he refused to say it to Gregory Nolan. Now a refusal for one person or refusal for two is the same as far as the meaning goes. When is the meaning? Well, this man didn’t want to say ‘Hey you.’ If inference can be drawn from this, he didn’t say ‘Hey you’ because he thought his voice would be recognized.”

Following this argument, defense counsel unsuccessfully renewed his motion for a mistrial.

Opinion

Defendant first contends that he was denied a fair trial by admission of evidence that he refused to say “Hey you” for purposes of voice identification during the lineup, and by prosecutorial comments that this refusal raised an inference of his consciousness of guilt.

Initially, we note that defendant does not claim, as he did at trial, that his refusal to speak was a valid exercise of his constitutional right to remain silent. It is well settled, and defendant does not now dispute, that voice exemplars are not testimonial statements within the scope of fifth amendment protection; rather, they are categorized as noncommunicative “real or physical” evidence of which defendant is merely the source. (Schmerber v. State of California (1966), 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826.) Thus, compelling an accused to provide a sample of his voice as an identifying physical characteristic does not violate his constitutional privilege against self-incrimination. United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.

Defendant maintains, however, that his silence in these circumstances, while not constitutionally protected, was inadmissible as evidence of his consciousness of guilt and its allowance for that purpose was reversible error. In support thereof, he relies principally on People v. Kennedy (1975), 33 Ill. App. 3d 857, 338 N.E.2d 414, wherein the State introduced evidence that defendant, who was accused of making bomb threats by telephone, refused to allow the police to make a recording of his voice, and the prosecutor remarked upon that refusal in closing argument. On appeal, the court noted that at the time of his refusal, defendant was in custody and had been advised of his right to remain silent and was told that anything he said could be used against him, but had not been told that his silence could be similarly used. The court then stated “[i]t is unreasonable to expect that a defendant would be aware of the legal distinction between words testimonial in character, and those not constitutionally protected” unless he was informed of the difference, and that under these circumstances, his refusal to provide a voice sample “cannot be said to have sufficient probative value (if indeed, it has any) to warrant its submission to the jury as evidence from which it could be permitted to infer that defendant’s silence *** would tend to establish his guilt.” People v. Kennedy (1975), 33 Ill. App. 3d 857, 862, 338 N.E.2d 414, 418.

In so ruling, the Kennedy court adopted the reasoning of People v. Ellis (1966), 65 Cal. 2d 529, 421 P.2d 393, 55 Cal. Rptr. 385, which involved a factual situation nearly identical to the one before us. The California Supreme Court held:

“[Defendant’s refusal to speak might well have been the direct result of the police warning [of his right to remain silent] and cannot be used against him. *** After having given such a warning, if the police direct a defendant to speak for voice identification and he refuses, they must, as a prerequisite to the use of the defendant’s refusal to speak as evidence of consciousness of guilt, advise him that the right to remain silent does not include the right to refuse to participate in such a test.” 65 Cal. 2d 529, 539, 421 P.2d 393, 398-99, 55 Cal. Rptr. 385, 390-91.

In the light of Kennedy and Ellis, it appears, and both parties agree, that the singular question to be resolved here is whether defendant was given his Miranda warnings prior to being asked to say “Hey you” during the lineup. The State argues that there is no evidence before us which would establish that he was so advised, but defendant directs our attention to a sidebar conference wherein defense counsel argued his objection to the State’s examination of the arresting officer concerning whether defendant had been questioned about his involvement in the offense. The following colloquy occurred:

“MR. DECKER [defense counsel]: Your Honor, at this time, I’d made a strenuous objection on that. I was given the police reports and had seen them before ***. There is no reference that there was any questioning of the defendant ***. All that police report indicates is the fact that the defendant was placed under arrest, advised of his rights, I’m reading the end of the report *** advised of his rights and transported *** for processing. ***
MR. RILEY [Assistant State’s Attorney]: There are no statements of any kind by the defendant, Raymond Warner, to anybody that I’m aware of and my point in going over the area *** with regard to the questioning was the fact that the officer read him his Miranda Warnings and I may have asked the question inartfully. I should have lead him and said did you read the — read him the Miranda Warnings.”

Although the court sustained the objection and would not allow further questioning concerning the Miranda warnings, the record does disclose, without denial by the State, that there was a police report stating that defendant had been advised of his rights and that the prosecutor, during the sidebar, made the statement that “the officer read him [defendant] his Miranda Warnings.” In view thereof, we conclude that this record sufficiently establishes that defendant was advised of his right to remain silent. Since there is nothing in the record to indicate that the police informed defendant that this right did not include the right to refuse to participate in a voice identification test, we find, under the reasoning of Kennedy and Ellis, that the testimony of his refusal to say the words should not have been admitted, was improperly commented upon as a tacit admission of guilt, and was so inherently prejudicial as to require us to reverse and remand for a new trial.

Reversed and remanded for a new trial.

LORENZ and WILSON, JJ., concur.


text:
      In re MARRIAGE OF OLIVE SHEBER, Petitioner-Appellee, and JAMES SHEBER, Respondent-Appellant.
    First District (5th Division)
    No. 83—162
    Opinion filed January 20, 1984.
    Rehearing denied February 28, 1984.

      Howard Augustus, of Chicago, for appellant.
    Mary C. Schlott, of Arlington Heights, for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Respondent appeals from the denial of his motion to vacate the final judgment entered in an action for dissolution of marriage. He contends that the trial court abused its discretion in (1) refusing to set aside the default judgment entered against him; (2) failing to (a) bifurcate the proceedings as required by section 403(e) of the Rlinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 403(e)), or (b) provide additional notice to him pursuant to section 405 of that Act (Ill. Rev. Stat. 1981, ch. 40, par. 405); (3) failing to fairly apportion the marital property; and (4) requiring him to pay maintenance.

The parties were married on June 19, 1965, and had three children: Carolyn, born May 11, 1966; Andy, born July 27, 1968; and Laura, born May 12, 1975. Petitioner, 41 years old, is employed as a housekeeper and earns approximately $140 per week. Respondent, 45 years old, is a mechanical design engineer and earned $22,000 per year until he was discharged from his employment on August 12, 1982. He was unemployed at the time of trial.

Petitioner filed her petition for dissolution of the marriage on July 21, 1980, alleging extreme and repeated physical and mental cruelty on respondent’s part, and seeking custody of the children, maintenance and child support, sole ownership of the marital home, and an equitable distribution of the remainder of the marital property. Respondent denied the allegations, and it appears from the record that he filed a counterpetition, but no copy thereof has been provided on appeal. Trial of this action did not take place until September 8, 1982, and a summary of some of the proceedings which caused the delay is pertinent to the issues before us:

July 29, 1980: Petitioner is granted exclusive possession of the marital home pending a final hearing, and respondent is directed to pay 40% of his net income as temporary unallocated maintenance and child support for 120 days.

February 18, 1981: On petitioner’s motion, respondent’s visitation with the children is restricted, and a guardian ad litem (the guardian) is appointed; the matter of visitation rights is continued several times by agreement, to afford the guardian an opportunity to interview all parties.

May 5, 1981: The order for temporary unallocated family support is reinstated on motion of petitioner, and she is granted a judgment for $381 in arrearages.

July 21, 1981: By agreement, the matter is set for trial on October 26, 1981.

July 22, 1981: Respondent’s attorney withdraws. Substituted counsel is not secured until December 15, 1981.

October 26, 1981: Trial is reset for January 12, 1982, and respondent is directed to cooperate in preparation of the pretrial memorandum.

December 15, 1981: Substituted counsel files his appearance for respondent, and an extension of time is granted to enable him to become familiar with the case.

December 17, 1981: Petitioner moves for sanctions because respondent failed to comply with the October 26 order to cooperate. Respondent does not appear.

December 28, 1981: Respondent’s response and counterpetition are stricken as sanctions. Respondent fails to appear.

January 5, 1982: The December 28 order is vacated, and respondent is ordered to pay a sum to petitioner’s attorney as a sanction. Trial is rescheduled for February 22, 1982, at respondent’s request.

January 19,1982: After in camera interviews with the children, at which all parties are represented by counsel, the court restricts respondent’s visitation rights and orders that the entire family undergo psychotherapy.

February 22,1982: Trial is reset for April 1, 1982.

February 23, 1982: Respondent’s visitation rights are suspended for failure to comply with the court’s order to arrange for psychological counseling.

March 23, 1982: Respondent’s motion for resumption of visitation is denied, and he is again ordered to arrange for family counseling.

April 1,1982: Respondent’s attorney moves to withdraw, citing respondent’s failure to cooperate. Trial is delayed, and the motion is granted on April 19, 1982. Substituted counsel is not obtained until October 8,1982.

May 19,1982: Trial is delayed until June 28, 1982.

June 28,1982: Respondent requests a continuance because he has not yet retained new counsel. Trial is rescheduled for August 19 for hearing on the grounds and August 23 and 24 for hearing on the remaining issues when respondent refuses to waive bifurcation. Respondent is admonished that no further continuances will be granted.

The case is reassigned, and a new trial date of August 18, is set at petitioner’s request. August 6, 1982:

Trial is reset for September 8,1982. August 18, 1982:

On September 8, respondent failed to appear despite having received notice that the final hearing was set for that date. The trial court was informed that respondent knew of the hearing and stated that he would not appear because he was opposed to the divorce and would not cooperate. At the request of petitioner and the guardian, the trial court proceeded to a hearing on both the grounds and the property and custody issues. Petitioner testified in pertinent part that on April 25, 1980, without cause or provocation, respondent threw her against a wall; on May 20, 1980, he struck her with his fist when she interfered with the threatened physical punishment of their oldest child; and on May 22, 1982, he pushed her several times because she had taken money from the house to pay for a cab when he took her car keys, preventing her from going to work. In addition, respondent’s conduct toward the children was extremely objectionable, but whenever she sought to interfere he would strike her. Petitioner further testified, with regard to the contested property issues, that the marital home, purchased in May of 1971, had an appraised value of $65,000 and was subject to a $15,500 mortgage. It was in need of substantial repairs for some time before respondent moved out in August of 1980, but he refused to provide the necessary funds. They had furniture in the home, part of which respondent took with him to furnish his apartment. Petitioner also stated that they had three cars — a 1963 Rambler, which she purchased prior to the marriage, and a 1969 Ford station wagon and a 1973 Javlin, purchased during the marriage. Respondent was employed as a mechanical designer, earning $22,000 per year, until he was fired on August 12, 1982. He had applied for unemployment compensation, but petitioner stated that she did not know how much he would receive. She was employed as a housekeeper and earned approximately $140 per week. Finally, petitioner testified that respondent had not paid the $381 judgment for arrearages entered May 5, 1981, nor had he complied with the temporary order directing him to pay her 40% of his net income since August 12, 1982. The total arrearages were $2,187 — including the $381 judgment.

With regard to custody and visitation, the guardian made the following recommendations based on his interviews with respondent and the children, the in camera examination of the children by the court, and respondent’s refusal to undergo psychological counseling: that petitioner be given custody of the children and be awarded the marital home to insure an adequate dwelling for them; that the parties’ son or an adult be present during any visitation between respondent and the youngest child; that respondent not be allowed to visit in the marital home; that visitation be allowed no more than once a week for a period not to exceed five hours; that no overnight or extended summer visitation be allowed; that respondent be restrained from removing the children from the court’s jurisdiction; and that the oldest child be allowed to decide for herself whether she wished any visitation with respondent.

The trial court found that petitioner had established grounds for dissolution of the marriage, and granted custody of the children to her on the guardian’s recommendation. The court further noted that it had read portions of the transcript of the in camera hearing and found that there were “very serious reasons why there should be very limited visitation on the part of the respondent”; therefore, it adopted the visitation recommendations of the guardian. The court also ordered that respondent continue to pay 40% of his net income “as child support,” the minimum payment to be $76 per week, based on unemployment compensation of $190 per week. Petitioner was awarded the 1963 Rambler as her nonmarital property, the marital home, and the furnishings therein. Respondent was awarded the other two cars, the furnishings in his apartment, and the personal items which he had not yet removed from the marital home. The court further found that respondent was $2,187 in arrears in payment of ternporary support and maintenance.

On October 8, 1982, new counsel entered an appearance for respondent and moved that the default judgment be vacated. No copy of the motion appears in the record, and the transcript of the hearing on that motion does not indicate what grounds were set forth in support thereof. The trial court found that the motion was without merit and entered the final judgment for dissolution which incorporated the prior findings and orders of the court. The written decree provides that respondent shall pay 40% of his net income “as unallocated child support and maintenance,” and that petitioner would be “barred from receiving maintenance *** subsequent to the youngest child of the parties reaching the age of 18 and having completed high school.” By agreement, petitioner was ordered to assume sole responsibility for payment of her attorney fees, and her attorney was granted a $4,000 lien against the marital residence.

Within 30 days, respondent filed a verified petition to vacate the final judgment, alleging that he had called petitioner on September 8, told her he was ill and unable to appear in court, and asked her to obtain a continuance. Respondent further contended therein that certain testimony of petitioner during the hearing was false, maintaining in pertinent part that petitioner earned $160 — not $140 — per week, and that, contrary to her representations, he was not currently receiving unemployment benefits. He requested that the court vacate the judgment or, in the alternative, modify the property distribution. In her verified response, petitioner alleged that respondent did not contact her personally prior to the September 8 hearing; that he told their oldest child that he knew of the hearing and did not intend to appear because he was opposed to the divorce and would not cooperate further; and that respondent never informed anyone that he was ill or that he wanted a continuance of the hearing. Petitioner further stated that due to the nature of her employment, her income varies; that she has made as much as $160 per week on only a few occasions; and that she had no proof that respondent was then unemployed or not receiving unemployment compensation.

At a hearing on the motion, the trial court noted that no issues were presented which had not been ruled upon in its denial of the October 8 motion to vacate, and that respondent had failed to present a meritorious excuse for his failure to appear at or properly seek a continuance of the September 8 hearing. It further stated that the award of the marital home to petitioner was justified under the circumstances, and any necessary adjustments in the order for child support would be more properly addressed by a post-decree motion to modify than by a motion to vacate the judgment. Respondent’s motion was denied, and this appeal followed.

Opinion

We first address respondent’s contention that the trial court abused its discretion in refusing to vacate the default judgment against him and schedule a trial of all issues. He argues that this ruling was improper because it deprived him of an opportunity to present evidence concerning the contested custody and property issues.

Pursuant to section 2 — 1203(a) of the Elinois Code of Civil Procedure, the trial court may, in its discretion, set aside any default, either before final judgment is entered or within 30 days thereafter (El. Rev. Stat. 1981, ch. 110, par. 2 — 1203(a)); however, the standard in reviewing that decision is not merely whether that discretion has been abused, but “whether substantial justice is being done between the litigants and whether, under the circumstances of the case, it is reasonable to compel the other party to go to trial on the merits” (In re Marriage of Kopec (1982), 106 Ill. App. 3d 1060, 1062, 436 N.E.2d 684, 686). Thus, it is no longer required that the movant show a meri- . torious defense or present a good excuse for failure to appear in court in order to obtain a vacature, although the court may still consider those factors (Peoples Gas Light & Coke Co. v. Flisk (1981), 97 Ill. App. 3d 1123, 424 N.E.2d 39) as well as any delays in the proceedings or failure to comply with court orders (Francone v. Weigel Broadcasting Co. (1979), 79 Ill. App. 3d 991, 398 N.E.2d 1114) in determining whether a motion to vacate should be granted.

In the instant case, we have examined the record before us and respondent’s arguments and believe that substantial justice has been done. With regard to maintenance and child support, respondent argues that, had he been permitted to present testimony, he would have shown that petitioner told him she made $160 — not $140 — per week, and that he was not receiving unemployment compensation at the time of trial, making the amount of arrearages stated in the judgment inaccurate. However, petitioner explained that her income varies, and that the $140 stated was her average weekly wage. Petitioner also offered to modify the judgment for arrearages if respondent presented evidence that the amount thereof stated in the judgment was erroneous; i.e., if he presented proof that he was not receiving unemployment compensation. Respondent failed to present any such proof when given the opportunity to do so. Moreover, these are matters which can be addressed by a post-decree motion for modification of the support order pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510), if necessary; they do not require vacation of the final decree.

With regard to custody and visitation, we note that the trial court considered the recommendations of the guardian, a neutral party appointed to protect the interests of the children in this matter. The record here also includes the transcript of the court’s in camera examination of the children, at which respondent was represented by counsel, which discloses very serious reasons for granting custody to petitioner and restricting respondent’s visitation rights. It appears, therefore, that the trial court had ample evidence, independent of anything adduced by petitioner at the September 8 hearing, from which it could determine that it was in the children’s best interests to remain with petitioner and have only limited visitation with respondent.

Finally, with regard to property distribution, respondent does not here assert that petitioner’s testimony on that issue was false, nor that she omitted any assets. Instead, he maintains that the property which she identified at the hearing was not distributed in just proportions. Since respondent does not seek to present further evidence in this regard, we see no reason to compel petitioner to go to trial. The arguments raised do not involve factual questions, but the trial court’s exercise of its discretion.

We have also considered the numerous delays in trial of this matter and respondent’s conduct throughout this litigation, and find therein additional support for the trial court’s denial of the motion to vacate. In particular, we note that continuances were granted at respondent’s request on a number of occasions; that it was necessary to impose sanctions when respondent failed to cooperate in preparing the pretrial memorandum, in direct violation of the court’s order; and that respondent repeatedly violated orders regarding temporary support, visitation, and arranging for psychological counseling. Because of respondent’s failure to cooperate, trial of this matter was delayed for over two years, and although respondent contends otherwise, there is strong indication that his failure to appear at the September 8 hearing was a deliberate attempt to further delay this matter. It would be unreasonable to subject petitioner to further delays and expense in reaching an end to this litigation, or to reward respondent for his wilful refusal to appear in court after numerous continuances were granted for his sole benefit. Having chosen to forego his opportunity to present evidence, it is our view that respondent should not now be heard to complain that he was “denied” substantial justice.

Respondent next contends that the trial court abused its discretion in failing to bifurcate the proceedings and require additional notice to him of a hearing on the remaining issues. He initially argues that bifurcation is required by section 403(e) of the Illinois Marriage and Dissolution of Marriage Act, which provides:

“Contested trials shall be on a bifurcated basis with the grounds being tried first. Upon the court determining that the grounds exist, the court shall allow 48 hours for the parties to settle amicably the remaining issues before resuming the trial. *** In cases where the grounds are uncontested and proved as in cases of default, the trial on all other remaining issues shall proceed immediately, if so ordered by the court or if the parties so stipulate, issue on the pleadings notwithstanding.” (Ill. Rev. Stat. 1981, ch. 40, par. 403(e).)

Respondent asserts that the trial court should have waited at least 48 hours before proceeding, maintaining that he “could reasonably have assumed,” since he once refused to waive bifurcation, that the entire proceeding would not be concluded during the September 8 hearing. He further posits that petitioner would not have been seriously prejudiced by delaying trial of the remaining issues.

It is apparently respondent’s position that because he had previously manifested his desire to contest all issues, the trial court should have protected his right to do so by bifurcating the proceedings. However, respondent misapprehends the purpose of section 403(e), which expressly provides that bifurcation is unnecessary in the case of default. Section 403(e) was not designed to promote litigation, but to encourage amicable settlement of the remaining issues by eliminating marital misconduct and mutual grievances from consideration. (In re Marriage of Wiedner (1979), 75 Ill. App. 3d 1014, 394 N.E.2d 620.) Thus, a waiting period generally would serve no useful purpose where the grounds are not contested, since the discord and animosity which often accompany a contested trial of the grounds would not be present, and judicial economy would better be served under those circumstances by proceeding immediately with the remaining issues. In the instant case, given respondent’s conduct throughout the litigation and his refusal to cooperate by appearing at the September 8 hearing, the trial court had no reason to believe that an amicable settlement of the remaining issues would be reached by waiting 48 hours. Respondent’s argument before this court shows that no such settlement was likely, for he contends here that the waiting period should have been granted in order to afford him an opportunity to appear and contest the remaining issues. Under the circumstances, we believe that the trial court did not abuse its discretion in failing to bifurcate the issues, since the purpose of section 403(e) would not have been served thereby.

Respondent also argues that additional notice to him was required by section 405 of the Illinois Marriage and Dissolution of Marriage Act, which provides:

“If the respondent is in default, the court shall proceed to hear the cause upon testimony of petitioner taken in open court, and in no case of default shall the court grant a dissolution of marriage *** unless the judge is satisfied that all proper means have been taken to notify the respondent of the pendency of the suit. Whenever the judge is satisfied that the interests of the respondent require it, the court may order such additional notice as may be required.” Ill. Rev. Stat. 1981, ch. 40, par. 405.

Section 405 apparently contemplates additional notice only if the trial court is not satisfied that the respondent has received notice of the action. This is clearly not the case here, since respondent not only had notice of the pendency of this action, but by his own admission had notice that the hearing thereon would take place on September 8. Thus, section 405 is inapplicable to the facts before us, and the trial court did not abuse its discretion in proceeding without additional notice. (See In re Marriage of Kopec (1982), 106 Ill. App. 3d 1060, 436 N.E.2d 684.) The trial court has a duty pursuant to section 405 to assure itself that the defaulting party had notice; that section does not impose a duty to coax respondent into court.

Respondent further contends that even if the default judgment was properly entered, the trial court’s disposition of marital property therein was unjust under the facts before it. In particular, he maintains that its award of the marital home to petitioner constituted a clear abuse of discretion.

The Illinois Marriage and Dissolution of Marriage Act requires that the trial court divide the marital property “in just proportions” (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)), and it is established that the division need not be mathematically equal (see, e.g., In re Marriage of Ligas (1982), 110 Ill. App. 3d 1, 441 N.E.2d 1277; In re Marriage of Walsh (1982), 109 Ill. App. 3d 171, 440 N.E.2d 310); rather, the trial court may in its discretion make whatever distribution it deems equitable under the circumstances (In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 445 N.E.2d 811). On review, we will not substitute our discretion for that of the trial court (In re Marriage of Keller (1982), 108 Ill. App. 3d 556, 439 N.E.2d 44) but are limited to determining whether the trial court fairly considered the evidence and the relevant factors set forth in section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(c); In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 434 N.E.2d 811), and the trial court’s determination on this issue will not be disturbed unless it has acted arbitrarily (In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 440 N.E.2d 1028); that is, unless “no reasonable person would take the view adopted by the trial court” (In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 207, 445 N.E.2d 811, 814).

In the instant case, each party was awarded a portion of the household furnishings acquired during the marriage, and respondent received two cars purchased with marital funds, but the only marital asset of substantial value — the parties’ home — was awarded to petitioner. Relying on In re Marriage of Miller (1980), 84 Ill. App. 3d 931, 405 N.E.2d 1099, respondent argues that because the parties occupied similar financial positions at the time of trial, and it does not appear that petitioner made a greater contribution toward acquisition of the home, the award thereof to her was inequitable. It is true that, in Miller, we reversed an order granting the sole asset of value — the marital home — to one of the parties based on the above factors, but in that case both parties were retired and receiving substantially equal social security and pension benefits and had no minor or otherwise dependent children. Thus, the only applicable factors were their contributions to the marriage and their current economic circumstance. Here, however, there are a number of other relevant factors to be considered, including “the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children”; “the *** vocational skills, employability *** and needs of each of the parties”; and “the reasonable opportunity of each spouse for future acquisition of capital assets and income.” Ill. Rev. Stat. 1981, ch. 40, par. 503(c).

The trial court based its decision here to award the marital home to petitioner on the fact that she has custody of the three minor children. We have found this factor of great importance in a number of cases (see, e.g., In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 443 N.E.2d 1089; In re Marriage of Kush (1982), 106 Ill. App. 3d 233, 435 N.E.2d 921), reasoning that “[t]he adverse effect which dissolution of a marriage has on children is self-evident. Therefore, where possible, children should be afforded continuity in their environment in order to reduce the emotional disruption caused by the separation of their parents. One of the ways this can be accomplished is by affording the children continued residence in the family home.” (In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, 102, 419 N.E.2d 400, 402.) There can be little doubt in the instant case that dissolution of the marriage has been difficult for these children, given the trial court’s finding that the entire family was in need of psychological counseling. For this reason, we find the above cases persuasive, but further note that other factors mandate award of the marital home to petitioner, at least while the minor children are residing with her. It appears from an affidavit filed by petitioner that her monthly expenses in 1980 were $1,018.30 — $235.30 of which constituted mortgage payments. At the time of judgment, she could expect a monthly income of approximately $1,000, including the unallocated support and maintenance payments of $76 per week from respondent. If the marital home were sold in order to divide the equity therein, it would still be necessary for petitioner to provide suitable housing for the children, and it is highly unlikely that she could do so for as little as $235.30 per month. Therefore, her monthly expenses would have been even higher, necessitating increased support payments from respondent at a time when he could ill afford to make them and still provide for his own reasonable needs. For this reason, too, it is in the best interests of all concerned that petitioner be allowed to remain in the marital home.

Nevertheless, we believe that these interests may still be served while at the same time providing for an equitable distribution of the marital property. Section 503(c) suggests that the court may award the marital home to the custodial parent or make provision for the right to live therein for a reasonable time. It is our view that some provision for eventual distribution should be made where, as here, the marital home is the sole asset of any value and the noncustodial parent is to pay support and maintenance. (See In re Marriage of Cabaj (1983), 118 Ill. App. 3d 789, 455 N.E.2d 822.) However, in the instant case, we believe that a continued joint tenancy between these parties would be a potential source of friction and should be avoided. Therefore, we order that the judgment be modified to provide that should the home be sold before the youngest child is emancipated, respondent shall have a lien on the proceeds of the sale and shall receive 25% of the net proceeds, after taking into account the lien in favor of petitioner’s attorney, mortgage payments, taxes paid, repairs made by petitioner, and any arrearages in child support and maintenance. If the real estate is not sold during that period, the trial court shall retain jurisdiction to reconsider an equitable division thereof upon emancipation of the youngest child. See In re Marriage of Cabaj.

Finally, respondent contends that the trial court abused its discretion in requiring him to pay maintenance. He argues that although petitioner is entitled to child support as custodial parent, any provision for maintenance was an abuse of discretion because he was unemployed at the time of judgment and receiving only $190 per week in unemployment compensation.

Under section 504(a) of the Illinois Marriage and Dissolution of Marriage Act, the trial court may grant maintenance only if it finds that the spouse seeking it lacks sufficient property to provide for his or her reasonable needs, and either cannot support himself or herself through suitable employment or otherwise lacks sufficient income. (Ill. Rev. Stat. 1981, ch. 40, par. 504(a).) The award thereof is a matter within the trial court’s sound discretion (In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 439 N.E.2d 1005), and its decision will not be overturned on appeal unless it amounts to an abuse of discretion or is against the manifest weight of the evidence (In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 436 N.E.2d 228).

Initially, we note that the family support awarded in the instant case is unallocated. We have no way of determining what portion thereof was intended as maintenance, an important consideration since respondent does not dispute the propriety of requiring him to pay child support. Moreover, it is possible, as petitioner argues, that the support payments were so structured in order to provide a tax advantage to respondent: Of course, the trial court may consider the tax consequences in reaching its determination (In re Marriage of Belluomini (1982), 104 Ill. App. 3d 301, 432 N.E.2d 958), and there is some indication that it did so here, since it referred to the amount in question as “child support” throughout oral proceedings but provided in the final, written decree that it should be paid “as unallocated child support and maintenance.”

However, even assuming that some portion thereof is intended as maintenance, we do not believe that the trial court abused its discretion in this regard. At the time of judgment, petitioner was earning an average income of $140 per week; respondent was receiving $190 per week in unemployment compensation, but in the past had earned $22,000 per year through employment. Petitioner’s affidavit, as noted above, listed household expenses of slightly over $1,000, and we note that the expenses claimed, which included those for the children, appear to be reasonable. Thus, her family expenses exceeded her income by approximately $400. Even where a spouse is employed, the trial court may award maintenance if the income earned therefrom is insufficient to provide for reasonable needs. (See, e.g., In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, 419 N.E.2d 400.) Here, the record indicates that the approximately $400 petitioner would receive from respondent would just cover the difference between her income and the family’s reasonable needs; thus, whether it was termed “child support” or “unallocated support and maintenance,” the award is neither an abuse of discretion nor contrary to the manifest weight of the evidence.

For the foregoing reasons, the judgment of the trial court is affirmed as modified.

Affirmed as modified.

LORENZ and WILSON, JJ., concur.