text:
    MARY M. DAVIS, Plaintiff-Appellee, v. JAMES E. DAVIS, Defendant-Appellant.
    Fourth District
    No. 4—82—0754
    Opinion filed May 11, 1983.
    Frederic M. Grosser, of Grosser & Hays, of Champaign, for appellant.
    William R. Scott, of Allen & Korkowski & Associates, of Rantoul, for appellee.
   PRESIDING JUSTICE WEBBER

delivered the opinion of the court:

Defendant appeals an order of the circuit court of Champaign County, the effect of which was to declare a forfeiture of certain real estate owned by the plaintiff and defendant and disposed of under a property settlement agreement incorporated into the order dissolving their marriage.

The order of dissolution was entered on September 20, 1977. The real estate in question had been the marital home of the parties and the settlement agreement, as incorporated into the dissolution order, provided: (1) that the equitable interest in the home was to be divided between the parties; (2) an appraisal was to be obtained from which the balances due on two mortgages were to be deducted, the net figure representing the equitable interest of the parties; (3) the defendant was then to execute a judgment note in favor of the plaintiff in the amount of her share of the equity, and the plaintiff was to place in escrow a quitclaim deed conveying to defendant all of her interest in the premises; on satisfactory proof that defendant had paid in full on the note, the escrow agent was to deliver the deed to him. The critical language of the agreement which is here in controversy deals with default on the part of the defendant. It provides in pertinent part as follows:

“Said judgment note shall provide that conditions of default on said note are as follows: (a) failure to make the monthly installment payment to MARY M. DAVIS by the due date, or (b) to be in default to either MERCANTILE MORTGAGE COMPANY, holder of the first mortgage, or AVCO, holder of the second mortgage on the premises, or (c) to allow the balances of any and all liens and mortgages on said premises to exceed Twenty Thousand ($20,000.00) Dollars. That in the event of default, JAMES E. DAVIS forfeits any and all interest of whatsoever kind and nature that he may have in said premises including his equitable interest and any moneys paid on any of the notes.”

The dissolution order further provided that the trial court retained jurisdiction for enforcing the provisions of the order. In September 1982 plaintiff brought a petition seeking a declaration of forfeiture, alleging that defendant had failed to make seven payments to her, had allowed the mortgage balances to exceed the specified limit, and had failed to make prompt payments to the mortgagees. At the hearing on the petition it was unequivocally established that defendant had failed to make the required monthly payments to the plaintiff for at least seven months. The trial court declared a forfeiture and ordered the defendant to execute a quitclaim deed to plaintiff of all of his interest in the premises. This appeal followed.

The positions of the parties are straightforward and are not complex: defendant claims that what is involved is a contract for deed and that proceedings for forfeiture of such an instrument are governed by the Forcible Entry and Detainer Act (FEDA) (Ill. Rev. Stat. 1981, ch. 110, par. 9 — 101 et seq.); he especially notes that he should be entitled to the protections of the FEDA, the 30-day notice under section 9— 104 and the stay of judgment under section 9 — 110; plaintiff, contra, maintains that the proceeding is the enforcement of the terms of an agreement incorporated into a dissolution order and is governed by section 502(e) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1981, ch. 40, par. 502(e)) and that the provisions of the FEDA have no application.

While it appears somewhat atypical to incorporate an installment contract in a dissolution order, we know of no reason to for-fend such a provision. By such incorporation it becomes part of the court’s order, its subservient nature as a contract giving way to the dominant character of an adjudication. The enforcement of such provisions is governed by section 502(e) of the IMDMA, which provides:

“Terms of the agreement set forth in the judgment are enforceable by all remedies available for enforcement of a judgment, including contempt, and are enforceable as contract terms.” Ill. Rev. Stat. 1981, ch. 40, par. 502(e).

On the other hand, an installment contract, not standing under the aegis of an adjudication but rather in its own proper nature, would ordinarily be enforced under the provisions of the FEDA. We note in passing, however, that in 1963 the FEDA was amended to provide:

“Nothing herein contained shall be construed as affecting the right of a seller of such premises to any lawful remedy or relief other than that provided by Part 1 of Article IX of this Act.” (Ill. Rev. Stat. 1981, ch.110, par. 9 — 110.)

Precisely what such other lawful remedy or relief might be is not at issue here, and we offer no opinion as to it.

The statute does enervate defendant’s argument that the FEDA is the only possible relief available to a contract seller. Defendant cites French v. Willer (1888), 126 Ill. 611, 18 N.E. 811, for this proposition. That case is inapposite. The sole question before the court in French was whether the plaintiff had obtained personal jurisdiction over the defendant by virtue of a narratio et cognovit clause. The supreme court held he could not and that a special statutory proceeding could not be altered by engrafting upon it provisions not specified by the legislature.

What the trial court did in the case at bar was simply to enforce the agreement of the parties. The wisdom of that agreement was not before the trial court, nor is it before us. Analogous circumstances have frequently appeared in prior cases. In Hubbard v. Hubbard (1980), 84 Ill. App. 3d 761, 405 N.E.2d 1362, the trial court implemented the parties’ agreement by ordering the husband to pay to the wife $19,000 for her equity, although the agreement did not provide for any specific sum, but was to be determined by the sale price of the property. The premises remained unsold, so the trial court fixed upon the sum, ordered it paid, and ordered the wife to quitclaim her interest. On appeal she argued that the trial court had no jurisdiction since it was modifying the agreement of the parties. The appellate court disagreed, saying, “We also note that the court orders leading to the sale of defendant’s property interest to plaintiff could be interpreted as an implementation of the provisions of the dissolution judgment rather than as a revision or modification of the terms of the judgment.” 84 Ill. App. 3d 761, 769, 405 N.E.2d 1362, 1368.

Analogous circumstances also appeared in Brevet v. Brevet (1942), 316 Ill. App. 406, 45 N.E.2d 199. In that case the trial court ordered a conveyance by the wife to the husband, having held that she had no interest in the property. On appeal the wife argued lack of subject matter jurisdiction, to which the court responded:

“Petitioner in this case did not ask for any modification of the terms of the divorce decree but merely asked that the terms of that decree be enforced. See Totten v. Totten, 299 Ill. 43, where it was held that a court of equity possesses power to control the manner of the execution of its decrees. See also Bobowski v. Bobowski, 242 Ill. 524, 530; Cohen v. Cohen, 291 Ill. App. 39, 49; Oglesby v. Pearce, 68 Ill. 220. In Tegtmeyer v. Tegtmeyer, 292 Ill. App. 434, 443, this court said that if a court of chancery had no power to enforce its decrees ‘obviously the court would be rendered impotent and we would have neither law nor order but everyone could do as he or she pleased. Of course, such a situation cannot be countenanced by the courts for a moment.’ Many other cases are to the same effect.” 316 Ill. App. 406, 409, 45 N.E.2d 199, 200.

These authorities, together with many similar ones, as well as the statute, section 502(e) of the IMDMA, fully support the action of the trial court in enforcing the agreement. Policy arguments can be made that the protections of the FEDA should extend to all contract purchasers. Section 9 — 110 was obviously intended to protect the contract purchaser by giving him an opportunity to cure a default before a forfeiture could be effected. However, if such protections are to be executed to all contract purchasers, regardless of the origin of their contracts, that is a matter of legislative action and beyond the prerogatives of this court.

The order of the circuit court of Champaign County is affirmed.

Affirmed.

MILLS and MILLER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN BOLLA, Defendant-Appellant.
    Second District
    No. 81—397
    Opinion filed April 28, 1983.

      Karla Wright, of Bass & Wright, and Thomas J. Royce, both of Chicago, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko and Cynthia N. Schneider, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

In a jury trial, John Bolla was convicted of aggravated kidnaping for ransom (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 2(a)(1)) and conspiracy to commit theft by threat (Ill. Rev. Stat. 1981, ch. 38, par. 8— 2(a)). He was sentenced to concurrent prison terms of eight years for the aggravated kidnaping and two years for the conspiracy. He appeals, contending that although his involvement could evidence his participation in the conspiracy to commit theft by threat he could not be charged with responsibility for the kidnaping; and, alternatively, he was deprived of a fair trial.

On Thursday, May 29, 1980, Edward Kvavli, a wealthy restauranteur and tavern owner, was abducted from the parking lot of a tavern he owned in Keeneyville, Illinois, and held for $600,000 ransom. The next day, Kvavli’s captors freed him on the understanding that Kvavli would pay them $600,000 or that they would kill him, his sister, and his nephew.

After his release, Kvavli agreed to cooperate with the Illinois Department of Law Enforcement (DLE). Over the weekend Kvavli received numerous phone calls demanding money and threatening his life and those of family members if he did not comply with the demands for money. Eventually, a payoff was arranged for 9:30 p.m. on June 3, 1980, at a designated point on Prince Crossing Road. On that evening John Bolla, along with Trenton Nelson, Don Fotre, and Charles Amhold, was arrested at or near the place where Kvavli had agreed to make the payoff. A fifth defendant, Leo Bonvini, was later indicted.

The DLE agents at the “drop” point saw the defendant standing at the tracks on the shoulder on the east side of the road, saw a black over blue Mercury drive past several times, at one point stopping between 20 to 30 feet from Bolla and Nelson, and heard one of the occupants of the car shout “It’s almost time, the heat’s on, stay cool.” The car was established to have been in the possession of defendant Arnhold and was found later that evening in the driveway of the Nelson home. When the suitcase was dropped approximately 30 feet from Nelson and Bolla, Nelson picked it up, and after the agents ordered the men to halt defendant Bolla fled on his motorcycle.

Defendant first contends that his presence at the designated “drop” for the ransom was after Kvavli had been released and the kidnaping had therefore ended; and that no evidence connected him with the substantive offense of aggravated kidnaping beyond a reasonable doubt.

The crime of “kidnaping” occurs when one is secretly confined against his will or by force, threat of imminent force or deceit carried from one place to another with intent secretly to confine him against his will. (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 1.) The offense of “aggravated kidnaping” includes the definition of kidnaping from section 10 — 1 of the Criminal Code of 1961 and adds, as here material, that the kidnaping is for the purpose of obtaining ransom from the person kidnaped or from any other person. (Ill. Rev. Stat. 1981, ch. 38, par. 10 — 2(a)(1).) In a prosecution for kidnaping carried out by several defendants pursuant to a common design, a defendant need not be actually present at the kidnaping if he is otherwise a party to the crime. (People v. Touhy (1935), 361 Ill. 332, 354-55.) An accused is guilty of the crime if he participates in any of the elements which comprise the offense; thus collecting ransom may be sufficient evidence upon which to sustain a conviction of kidnaping for ransom. (People v. Petitti (1929), 337 Ill. 625, 633.) The fact that a victim may have been released and is free of detention before money is paid is immaterial where the offense has already been committed and is complete. Tyler v. State (Tex. Crim. App. 1956), 288 S.W.2d 517, 520.

Arguing that the kidnaping ended when Kvavli was released, defendant relies on People v. Mulcahey (1978), 72 Ill. 2d 282, 286, and People v. Behm (1973), 45 Mich. App. 614, 622, 207 N.W.2d 200, 205, rev’d on other grounds (1974), 52 Mich. App. 119, 216 N.W.2d 631. In Muleahey, the supreme court concluded that the kidnaper’s attempt to forcibly secure money from the victim’s husband amounted to attempted armed robbery when the kidnaper knew that the victim had been released and the husband had no incentive to pay the ransom. In Behm, the court concluded that a kidnaping continued until the victim was released from confinement so as to convict the defendant of the charge although he was not present at the forcible abduction of the victim. Neither case is helpful to defendant in the circumstances of this case.

The State has urged that regardless of when the kidnaping ended, there was in fact one agreement or conspiracy to commit two crimes and that Bolla as a member of the conspiracy is guilty of kidnaping if he was a knowing participant in any part of the scheme. The defendant responds that he cannot be convicted of kidnaping based on a conspiracy to commit kidnaping which was not set forth in the indictment.

There is no proof beyond a reasonable doubt that Bolla was present at the abduction of Kvavli or during his confinement. Kvavli, who was blindfolded during his captivity, was unable to identify Bolla or his voice at the trial. This is not to say, however, that defendant was not proven beyond a reasonable doubt to be an accomplice as distinguished from a conspirator.

We reject the State’s argument that proof of conspiracy between Bolla and his codefendants is itself the legal basis of Bolla’s accountability for their criminal conduct as a matter of law. (Ill. Ann. Stat., ch. 38, par. 5 — 2, Committee Comments, at 288 (Smith-Hurd 1972); W. LaFave & A. Scott, Criminal Law sec. 65, at 513 (1972); Note, Developments in the Law — Criminal Conspiracy, 72 Harv. L. Rev. 920, 998-99 (1959).) This is not to say that the acts of conspiracy may not satisfy the requirements of subsection (c). (Ill. Ann. Stat. ch. 38, par. 5 — 2, Committee Comments, at 288 (Smith-Hurd 1972); Model Penal Code sec. 2.04(3), Comment, at 22-23 (Tent. Draft No. 1, 1953); see, e.g., Nye & Nissen v. United States (1949), 336 U.S. 613, 618-20, 93 L. Ed. 919, 925-26, 69 S. Ct. 766, 769-70.) Under subsection 5-2(c), Bolla could be proved guilty of aggravated kidnaping as an accomplice by proof that his conduct subsequent to the kidnaping and to the release raised a fair inference that he aided, agreed or attempted to aid others in the planning or commission of the offense. Ill. Rev. Stat. 1981, ch. 38, par. 5 — 2(c).

That count I in the indictment did not set forth legal accountability as the basis for charging Bolla with aggravated kidnaping as principal did not render the indictment defective (People v. Heuton (1971), 2 Ill. App. 3d 427, 428); to the contrary, the State could show that the crime resulted from a conspiracy and the steps by which the conspirators effected the crime, including every act of each conspirator in furtherance of the common purpose, without charging them with conspiracy. (People v. Hedge (1918), 284 Ill. 513, 516-17.) Bolla’s challenge to the indictment, therefore, is without merit.

There is evidence that on the day following his release, Kvavli, while driving, detected that he was being followed by a man wearing metal frame sunglasses and driving a black car with stripes on the front fender. A pair of metal frame glasses was recovered near railroad tracks which Bolla passed as he fled from the “drop” point before he was apprehended. A black Pontiac Trans-Am with a gold hood emblem is registered in the name of the defendant’s wife. A West Chicago police officer saw Bolla driving a black Pontiac Trans-Am with red markings and a gold hood emblem, and saw it parked in front of his in-laws’ house. At the “drop” point DLE agents overheard the two occupants of a black-over-blue 1968 Mercury sedan, inferentially Arnhold and Fotre, inform Bolla and Nelson that the money was on the way. Agents recovered a pair of white-and-maroon leather-like gloves similar to codefendant Nelson’s gloves near the roadside where Bolla was apprehended. Agents discovered a third pair of gloves in the 1968 Mercury sedan which was in codefendant Arnhold’s possession prior to June 3, the payoff date. DLE agents searching in the vicinity of the spot where Bolla was apprehended recovered a Winchester model 94 30ho rifle; Bolla was seen with a rifle as he tried to flee from the “drop” point.

While Bolla presented evidence which sought to contradict the circumstantial evidence connecting him with codefendants Arnhold and Fotre whose participation in the kidnaping was more firmly established, it was in no way conclusive nor required to be believed by the jury. His explanation that he received the white-and-maroon gloves from someone he knew only as “Tom,” who made a practice of giving away the gloves in the tavern which both frequented, is one example. His presentation of evidence controverting the red markings on his Pontiac Trans-Am is another. His explanation that on June 3 after leaving work for the day at 11:30 he stopped at two bars and drank between 15 to 20 beers, before going to the “drop” point after a stranger offered $200 if he would pick up a briefcase which Bolla suspected contained “pot or something,” his arrival on a motorcycle which an alleged stranger furnished, his fleeing when unidentified persons began shooting at him (contrary to the testimony of DLE agents who said that Bolla fled when they approached and identified themselves), and his denials that he had a rifle that night, all were subject to the jury’s findings as to credibility.

The jury may draw inferences from the conduct of the defendant which show participation in a common purpose to do an unlawful act. (People v. Tate (1976), 63 Ill. 2d 105, 109.) The determination of the jury is not to be set aside unless it is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. (People v. Tate (1976), 63 Ill. 2d 105, 108.) Where, as here, the evidence discloses the defendant’s close affiliation with the actual perpetrators of the kidnaping, other circumstances pointing to a common criminal design of the group, Bolla’s flight from the “drop” point, and his failure to advance a reasonable hypothesis of innocence, the jury is permitted to draw the inference that Bolla aided, agreed or attempted to aid in the planning or commission of the kidnaping. Thus, the defendant is properly convicted of the crime without proof that he actually assisted in every element of its commission. People v. Crutcher (1979), 72 Ill. App. 3d 239, 243; People v. Fuller (1980), 91 Ill. App. 3d 922, 929; People v. Grice (1980), 87 Ill. App. 3d 718, 725.

Defendant has urged that he cannot be convicted of both kidnaping for ransom and conspiracy to commit theft by threat, that the conspiracy “merged” into the completed offense of kidnaping. The State rejoins that there was “a single agreement in which the commission of at least two crimes was contemplated,” that the conspiracy conviction must stand as to the crime of theft by threat.

The crime of conspiracy is separate and distinct from crimes committed pursuant to it. (People v. Robertson (1918), 284 Ill. 620, 623.) The Criminal Code of 1961 did not change this long-standing rule but only modified it to the extent that “[n]o person shall be convicted of both the inchoate and the principal offense.” (Ill. Rev. Stat. 1981, ch. 38, par. 8 — 5; see also People v. Brouilette (1968), 92 Ill. App. 2d 168, 173.) Defendant correctly argues that he could not be convicted of and sentenced on both conspiracy to commit kidnaping and kidnaping. (People v. Walker (1981), 84 Ill. 2d 512, 526.) The difficulty with defendant’s argument and his supporting cases is that the conspiracy was not based solely on the kidnaping, which was complete; but the conspiracy came to embrace the additional objective of theft by threat after Kvavli’s release.

A single conspiracy exists even though it embraces multiple crimes if the crimes are the object of the same agreement or continuous conspiratorial relationship. (Model Penal Code sec. 5.03(3) (Tent. Draft No. 10, 1960); W. LaFave & A. Scott, Criminal Law sec. 62, at 470-71 (1972).) Beginning with a six-page note containing kidnaping plans and written in Bonvini’s hand, there was evidence of a conspiracy to commit kidnaping for ransom. That conspiracy did not end but continued when Kvavli was released on the extorted promise that he would pay the kidnapers $600,000. (People v. Touhy (1935), 361 Ill. 332, 348.) Over the weekend, Kvavli was subjected to numerous phone calls threatening not only his life, as alleged, but also threatening the lives of his sister and nephew. The overt act charged in support of this conspiracy was not part of the kidnaping but involved the pickup of money four days after Kvavli’s release to end new threats of harm.

It was incumbent on defendant to establish that the conspiracy was in preparation for the same substantive offense as that for which he was convicted separately in count I. (Accord, State v. Epstein (1980), 175 N.J. Super. 93, 98, 417 A.2d 1055, 1058.) Otherwise, separate convictions for conspiracy and a crime committed pursuant to that conspiracy may stand if the proof shows that the object of the conspiracy was the commission of additional offenses. (Model Penal Code sec. 1.08(1)(b), Comment, at 32 (Tent. Draft No. 5, 1956).) The fact that Bolla was an accomplice to the kidnaping for ransom based on conspiracy does not mean that he conspired to commit kidnaping only. A conspiracy conviction in addition to conviction for a substantive crime is proper where, as here, the conspiracy has as its objective engaging in a continuing course of criminal conduct; this involves a distinct danger in addition to that which follows from the actual commission of the substantive offense. Model Penal Code sec. 1.08(1)(b), Comment, at 32 (Tent. Draft No. 5, 1956); W. LaFave & A. Scott, Criminal Law sec. 62, at 494-95 (1972).

We conclude that the evidence in this view sustains the State’s theory that there existed a single conspiracy to engage in a continuing course of criminal conduct to extort money, first by kidnaping Kvavli for $600,000 ransom, then by telephoned threats against not only Kvavli, but against other family members. Moreover, consistent with People v. King (1977), 66 Ill. 2d 551, 566, under the conspiracy count the act which supported an offense in addition to kidnaping was the agreement to commit theft by threat with the requisite intent; whereas, as to Bolla, the act which supported his liability for kidnaping was his agreeing to aid in the commission of the kidnaping. Thus two offenses were carved from different physical acts. Nor was the conspiracy a lesser included offense of the kidnaping (People v. Robertson (1918), 284 Ill. 620, 623), but each was a distinct crime with different proof. Cf. People v. Mulcahey (1978), 72 Ill. 2d 282, 286 (defendant properly convicted of both aggravated kidnaping (ransom) and attempted armed robbery where first he kidnaped wife, then aimed gun at husband after learning at drop site that wife had escaped).

In this view the conspiracy to commit theft by threat was not in preparation for the consummated kidnaping and has not been eliminated or “merged” by the Criminal Code of 1961; the judgment of conviction on count II is therefore affirmed.

We further conclude that the defendant received a fair trial and is not entitled to a new trial. Defendant claims that the court erred in permitting the substitution of a juror after the jury had been sworn and impaneled, in sequestering the jury and having installed a walk-through metal detector in the courtroom for security. The defendant has argued that the combination of these rulings created an extraordinary atmosphere of terror that denied him a fair trial. We are not so persuaded.

After the jury was impaneled, a juror, Mrs. McGhee, told the court in camera that it worried her that Bolla knew where she worked, that she thought her son may have had problems with Bolla’s father, and admitted that she told other jurors that she believed one of the defendants recognized her. The judge denied a motion to excuse her for cause, which the State did not oppose, based on the judge’s conclusion that she had disclosed only a “search of conscience.” Three days later the State informed the court that a car belonging to Mrs. McGhee’s son had been “shot up” the previous day. Following a second in camera interview, the court excused Mrs. McGhee and replaced her with an alternate juror after she told the court that she could no longer serve. Bolla argues that because two jurors saw Mrs. McGhee arrive that morning, the jury could only conclude that she was excused not for illness but for fear of her own safety. He further argues that the court’s sudden sequestration of the jury sua sponte further fortified the jury’s conclusion that Bolla was connected with McGhee’s disappearance.

The burden of showing that a juror has a disqualifying state of mind is on the party challenging the juror. (People v. Cole (1973), 54 Ill. 2d 401, 413.) The qualification of the juror is a factual determination which the trial court must make on the evidence, and the mere suspicion of bias or partiality is not evidence which is sufficient for a finding of disqualification. (People v. Hyche (1979), 77 Ill. 2d 229, 240.) The jury could not know that Mrs. McGhee’s son had his car vandalized and any casual nexus between the voir dire by Bolla’s counsel and the fact that two jurors saw Mrs. McGhee arrive on the morning that she was excused but not take her place in the jury box appears speculative. The trial judge was in a better position to assess the likelihood of any such jury prejudice than are we. People v. Bolton (1976), 35 Ill. App. 3d 965, 975.

The trial court’s decision to thereupon sequester the jury also appears to be a proper exercise of discretion (Ill. Rev. Stat. 1981, ch. 38, par. 115 — 4(m)) based on possible threats which third persons might communicate to the jury following the vandalism involving Mrs. McGhee’s son. (See People v. Saltz (1979), 75 Ill. App. 3d 477, 479.) If not sequestered, the jury could well have learned of the vandalism and be tainted thereby since the incident was later reported in a local newspaper. His decision to sequester the jury over the more drastic remedy of declaring a mistrial was proper.

Defendant also asserts that prejudicial error occurred when Kvavli testified with some emotion that he had not been home in 10 months, but lived out of a suitcase, running for his life; also on cross-examination when defense counsel elicited from Kvavli’s sister, Elaine Williams, that on a prior occasion after the kidnaping she had threatened to arrange retaliation against members of the Bonvini family in the event that any harm befell her or her brother; and when a DLE agent testified over objection that Arnhold, under custodial interrogation, said that he would not talk but would rather be alive in jail then dead outside.

A genuine emotional outburst by a witness giving vent to natural feeling does not compel a mistrial (People v. Hudson (1970), 46 Ill. 2d 177, 197), but the decision to grant is within the trial court’s discretion (People v. Bradley (1976), 43 Ill. App. 3d 463, 468). Moreover, the objection to the volunteered comments by Kvavli was properly sustained and, therefore, removed from the jury’s consideration. (People v. Burnett (1979), 74 Ill. App. 3d 990, 1001; People v. Reed (1982), 108 Ill. App. 3d 984, 993.) Nor did the testimony of Elaine Williams require a mistrial where her threats to Bonvini were drawn out in cross-examination, and no motion was made to strike the testimony now claimed to be inflammatory. Prejudicial statements which a defendant invites by cross-examination do not result in reversible error. People v. Thigpen (1966), 33 Ill. 2d 595, 598; People v. Brown (1969), 116 Ill. App. 2d 228, 231.

Defendant correctly asserts that codefendant Arnhold’s statement, that he would rather be alive in prison than dead outside, as related by a DLE agent, was not within the scope of the coconspirator’s admission exception to the hearsay rule when it was made to the police following arrest rather than in furtherance of the conspiracy. (People v. Cart (1981), 102 Ill. App. 3d 173, 182.) The statement, however, was too vague to be prejudicial as it did not directly refer to other coconspirators or implicate anyone in any crime.

Defendant’s further objections that installation of the walk-through metal detector and the fact that plain-clothes agents accompanied Kvavli and his sister when they entered the courtroom, though timely, are similarly without merit. Reasonable safety measures may be taken by a trial judge to insure orderly proceedings but are justified upon a showing, here made, of danger to order or safety. (People v. Collins (1980), 85 Ill. App. 3d 1056, 1059.) Kvavli had been repeatedly threatened by his kidnapers during and after his captivity; his sister had threatened codefendant Bonvini; counsel for Arnhold reported at one point that he had privileged information concerning potential danger to Kvavli; and a car belonging to a juror’s son was “shot up.” The need for security thus had a basis in fact, and installation of the safety device was not in derogation of defendant’s presumption of innocence where all persons entering the courtroom were routinely subjected to search. See People v. Steel (1972), 52 Ill. 2d 442, 454.

Defendant also contends that the State’s statements in closing argument to fight terror with law were inflammatory. Defendant offered no objection to this twice-made exhortation. The prosecutor may properly comment unfavorably on defendant and the violence of the crime, when supported as here by the evidence, and speak of the evil results of crime and the benefits of fearless administration of the law. (People v. Jackson (1981), 84 Ill. 2d 350, 360; People v. Benedik (1974), 56 Ill. 2d 306, 311.) Under this view, no error occurred.

Finally, Bolla contends that he was entitled to a severance and mistrial when the State failed to timely produce tape recorded evidence which he asserts was highly exculpatory as to him. Charles Rogers, a tenant of Bonvini, told the State in an interview conducted Thursday evening, February 26, 1981, that after the kidnaping he tape-recorded one of two conversations in which Bonvini implicated himself but said he did not know that Bolla or Nelson were involved. Rogers played the tape for prosecutors who requested the tape, though this was denied by Rogers’ attorney, who said he burned the tape later that evening.

Four days later the State filed an addendum to discovery disclosing the contends of the Rogers’ tape. Rogers did not appear as the court requested on March 3 and a subpoena issued. The court ordered that when Rogers was served, all counsel would have the opportunity to interview him together.

Rogers was eventually served and appeared the following Monday, March 9. He was made available to all defense counsel, but not before the State had interviewed him out of the presence of defense counsel during a lunch recess on Friday, March 6. When he appeared on March 9, he could not recall any conversation with Bonvini. The trial court, -without conducting a formal evidentiary hearing, ruled that the State disclosed evidence of the tape within a reasonable time. Rogers never testified.

After the trial concluded, Rogers came forward with a second copy of the tape which he turned over to DLE agents. The court thereafter impounded the addendum, the tape, and a transcript of the tape, none of which is included in the record on appeal.

Defendant contends that this tape was highly exculpatory and that the State failed to timely notify defendant of the existence of the tape, and also denied defendant access to Rogers who was vital to defendant’s trial defense.

Under Supreme Court Rule 415(b) (87 Ill. 2d R. 415(b)), the State has a continuing duty to disclose material or information subject to disclosure which it discovers, and must “promptly notify” the other party and the court, if the material or information is discovered during trial. The State has the burden of showing that it promptly disclosed the information and that it used due diligence. (People v. Williams (1981), 96 Ill. App. 3d 250, 252-53; cf. People v. Stamps (1977), 52 Ill. App. 3d 320, 325 (State must show good faith when it loses information in its custody which defense was entitled to obtain).) The defendant has not shown how a more prompt disclosure of the existence of the tape would have assisted Bolla in preparing his defense (see People v. Foster (1979), 76 Ill. 2d 365, 384), when Rogers' was equally unavailable to both the State and the defense.

Regardless of when the State disclosed existence of the tape, the State in this case did not withhold or suppress evidence when neither it nor its agents were in possession of the tape recording. People v. Spurlark (1979), 74 Ill. App. 3d 43, 57; People v. Molsby (1978), 66 Ill. App. 3d 647, 656; People v. Berry (1977), 54 Ill. App. 3d 647, 652.

Defendant further charges by implication that Rogers’ lapse of memory resulted from a prosecutorial plot hatched over the Friday lunch recess. This bare statement, without more, was not sufficient to show the State’s noncompliance with Rule 415. (See People v. Peter (1973), 55 Ill. 2d 443, 450-51.) On the contrary, the court instructed Rogers that he was free to answer in private questions from counsel for the defendants.

Bolla’s final assertion is that he was entitled to severance and mistrial in view of the exculpatory tape recording. It is unclear how exculpatory the tape is. The fact that Bonvini said that he did not know of Bolla’s involvement is subject to conflicting inferences in view of the rule that it is possible for various persons to be parties to a single conspiracy even though they do not know the identity of each other. (See W. LaFave & A. Scott, Criminal Law sec. 61, at 461 (1972).) It is also doubtful whether the tape recording was any more exculpatory when the jury heard other testimony that Bonvini did not know other defendants personally. It does not appear that the missing evidence was such as to create a new reasonable doubt of guilt that did not otherwise exist. See United States v. Agurs (1976), 427 U.S. 97, 114, 49 L. Ed. 2d 342, 355, 96 S. Ct. 2392, 2402; People v. Hardy (1979), 70 Ill. App. 3d 351, 355-56.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

LINDBERG and NASH, JJ., concur.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTINA PALMER, Defendant-Appellant.
    Second District
    No. 82—127
    Opinion filed April 28, 1983.

      Rafael A. Del Campo, of Chicago, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, Christina Palmer, was found guilty after a jury trial of driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 — 501(a)), improper overtaking on the left (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 — 703(a)), and driving too fast for conditions (Ill. Rev. Stat. 1979, ch. 95%:, par. 11 — 601(a)). Defendant appeals only her conviction for the first of the above offenses, asserting that the circuit court of Du Page County improperly admitted evidence concerning the results of the chemical analysis performed on a sample of her blood.

At approximately 4 p.m. on March 11, 1980, defendant was driving northbound on Route 83 in Elmhurst. She lost control of her car as she attempted to pass another vehicle and swerved across the median, where she collided with a southbound vehicle driven by another. Defendant was injured in the accident; the other driver suffered injuries from which he eventually died.

Shortly after the accident, an ambulance removed defendant to Memorial Hospital in Elmhurst, where she received treatment in the emergency room. Betty Theroux, a clerk assigned to the emergency room, testified she prepared the paperwork relating to defendant’s treatment there. Theroux testified she used a form, admitted into evidence over objection both as People’s exhibit 1 and 12, to record certain information obtained from defendant. At the bottom of the form was a section headed, “Authorization for Medical and or Surgical Treatment and Assignment of Insurance Benefits.” There followed a statement authorizing emergency-room personnel “to administer such emergency medical and/or surgical treatment as he deems advisable, including blood transfusions, anesthesia, and x-rays.” The blank for the patient’s signature below this section had been filled in by The-roux with the notation, “Pts Verbal Permission.” She testified that the patient normally is asked to sign, “[a]nd if they can’t sign it, then we ask for their verbal permission.” Theroux recalled asking defendant to sign, but was unable to recall defendant’s response.

At various points during the hearing on the motion to suppress, the court noted that no testimony had been introduced concerning a blood test or defendant’s withholding of consent for a test. Counsel responded by referring the court to defendant’s unverified motion to suppress, which stated that defendant’s verbal permission for treatment had been given while she was in semi-shock and not totally cognizant of her surroundings. The motion’s averments continued that laboratory reports of urinalysis and hematology, which were administered within 2V2 hours of the accident, failed to bear defendant’s written or verbal consent to such tests. At the conclusion of the hearing, defendant’s motion to suppress was denied.

Defendant subsequently made a motion in limine to exclude this evidence on essentially the same grounds, which motion also was denied.

Trial proceeded, and one of the officers who had investigated the accident testified that he did not arrest defendant when he saw her in the hospital. Theroux was recalled to testify, out of the hearing of the jury, and in essence repeated the testimony she had given at the prior hearing. On the basis of her testimony, the trial court found defendant had given verbal permission for treatment which was sufficient to permit the admission into evidence of the blood test.

The jury was recalled, and Bonnie Evans testified that she was employed as a phlebotomist at Memorial Hospital. She had received on-the-job training and had been so employed for 21k years. Evans had drawn a sample of blood from defendant in the emergency room. She identified a requisition slip showing that the sample was desired to test for defendant’s alcohol level and testified the blood sample was given to a technician for analysis. Lynn Ellen Werner identified herself as the medical technologist who tested the sample of defendant’s blood. She had done a 12-month’s internship, was registered with the American Society for Clinical Pathologists and had been employed as a medical technologist for 3V2 years. Her test disclosed the alcohol content of defendant’s blood was 230 milligrams.

Lorraine Arne testified she was the afternoon supervisor of the laboratory for Memorial Hospital and had worked as a medical technologist for 18 years, including eight years as a laboratory supervisor at the hospital. She had been Evans’ and Werner’s supervisor on March 11. She was neither a pathologist nor a toxicologist and did not specialize in analytical chemistry. When asked if any of her personnel concerned with the case were licensed by the “State Department of Health,” she responded, “No, sir. We just have a registry.”

Considering the above evidence, the court found that since the laboratory personnel were not certified by the Department of Public Health, People’s exhibit 14, the requisition for blood-alcohol level bearing the results of the test, did not qualify for admission into evidence. Defendant’s objection to this exhibit was therefore sustained. The court denied ensuing motions by the State for a mistrial and by defendant for a directed verdict. It also denied defendant’s motion to strike the testimony of Evans, Werner, and Arne. The court further ruled that since no objection was made to Werner’s oral testimony concerning the results of the blood test, that evidence would stand.

Defendant then was found guilty, and this appeal followed.

Although defendant’s brief is somewhat confusing, it appears defendant takes issue with the trial court’s partial denial of her motion to suppress during trial and admission of oral testimony as to the results of her blood test. Defendant’s pretrial motion to suppress was based on the claim that a blood test must be taken either incident to arrest, or with the consent of the person tested, and that neither occurred here. Defendant’s objection at trial was based on the alleged failure of hospital personnel to meet the standards required by statute for those performing blood tests.

Because we agree with defendant that hospital personnel failed to meet the statutory requirements, we reverse and remand on that issue. This makes unnecessary any discussion of the remaining arrest or consent issues.

The controlling statute in this case is section 11 — 501 of the lilinois Vehicle Code, which in pertinent part provides:

“(d) Chemical analysis of the person’s blood or breath to be considered valid under this Section must be performed according to uniform standards adopted by the State Department of Public Health, in cooperation with the Superintendent of State Police, and by an individual possessing a valid permit issued by that Department for this purpose. The State Department of Public Health is authorized to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct such analysis and to issue permits which shall be subject to termination or revocation at the discretion of the State Department of Public Health.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. 95x/2, par. 11 — 501(d).

The standards in question have not been made part of the record on appeal. The trial court had a copy of the standards before it, but they are before this court only as an appendix to the State’s brief. This court may take judicial notice of such standards. (Pearce v. Illinois Central Gulf R.R. Co. (1980), 89 Ill. App. 3d 22, 411 N.E.2d 102.) The standards most relevant to the case are found in section 12, “Approval of Laboratories and Laboratory Technicians.” See Illinois Department of Public Health, Standards and Procedures for Testing of Breath, Blood and Urine for Alcohol and/or Other Drugs sec. 12, at 23 (1982).

In the present case, it was clear that those responsible for the processing of defendant’s blood met neither the statutory requirements nor the requirements of the departmental standards. Although the statutory permit requirement (Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501(d)) has been held to apply to the person who analyzes the blood, rather than the person who takes the sample (People v. Casper (1981), 97 Ill. App. 3d 787, 423 N.E.2d 510), Werner, who performed the analysis in this case, did not have such a permit. Moreover, Arne, the only laboratory supervisor whose credentials were made a matter of record, did not satisfy the requirements for supervisors contained in Rule 12.01 that she be a toxicologist, pathologist or other person qualified in analytical chemistry. See Illinois Department of Public Health, Standards and Procedures for Testing of Breath, Blood and Urine for Alcohol and/or Other Drugs sec. 12, at 23 (1982).

In reply to defendant’s argument that these defects required exclusion of the test results, the State notes first that defendant made no objection to Werner’s testimony concerning the results. Further, it is asserted that the test in this case did not involve State action so that the department’s standards were inapplicable. The State also submits that the results were admissible despite the enumerated defects in the absence of a showing by defendant that the test was incorrect or inherently suspect. Finally, any error in admitting the results is urged as being harmless beyond a reasonable doubt.

Although defendant did not object to Werner’s testimony, she did move to strike that testimony after the deficiencies became apparent. Defendant also renewed her contention of error in her post-trial motion. Inasmuch as the error complained of was brought to the court’s attention during trial and was renewed in the post-trial motion, we do not deem this error waived for lack of a contemporaneous objection. Coleman v. Dent (1967), 86 Ill. App. 2d 335, 229 N.E.2d 911.

The State’s further argument, that compliance with the standards and permit requirement is not required in the absence of State action, has been rejected in the context of the statutory consent requirement. (People v. Williams (1981), 103 Ill. App. 3d 876, 431 N.E.2d 1280; People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497.) In view of the statutory language that “[cjhemical analysis of the person’s blood *** to be considered valid under this Section must be performed according to uniform standards adopted by the State Department of Public Health *** and by an individual possessing a valid permit by that Department for this purpose,” we conclude that the same result must be reached here.

Unlike the situation in People v. Casper (1981), 97 Ill. App. 3d 787, 423 N.E.2d 510, on which the State relies, it is apparent from the record that the statute’s permit requirement was not complied with in this case. The plain language of the statute, therefore, requires the conclusion that the analysis of defendant’s blood may not be considered valid. Section 11 — 501(d) must be considered as a part of a substantive enactment prohibiting driving while under the influence. There is nothing in section 11 — 501 as a whole or in section 11— 501(d) which limits the testing and permit requirements; they apply “[ujpon the trial of any action or proceeding under the statute” (emphasis added) (Ill. Rev. Stat. 1979, ch. 95V2, par. 11 — 501(c)). The legislature has clearly decided that a blood alcohol test performed by an individual without a permit and not according to certain standards is unacceptable as evidence in a prosecution for driving while under the influence.

This analysis of the statute is similarly dispositive of the State’s contention that there was no showing that the test was incorrect or inherently suspect, as we believe no such showing was necessary. To the extent to which this conclusion is contrary to the holding in Peo ple v. Casper (1981), 97 Ill. App. 3d 787, 423 N.E.2d 510, we decline to follow People v. Casper.

This conclusion renders unnecessary consideration of the State’s further argument that Rule 12.01 of the departmental standards applies only in circumstances where the defendant has been placed under arrest and chemical analysis has been requested by the arresting officer. See Illinois Department of Public Health, Standards and Procedures for Testing of Breath, Blood and Urine for Alcohol and/or Other Drugs sec. 11, at 16 (1982).

In reaching this determination we are aware of another decision of this court which reached an opposite conclusion. (People v. Pezzette (1983), 112 Ill. App. 3d 124, 444 N.E.2d 1386.) The court there concluded that it seems apparent that the protective provisions of section 11 — 501 of the Illinois Vehicle Code were formulated to prevent an accused from being subjected to nonconsensual or inaccurate testing procedures by law enforcement authorities. (People v. Pezzette (1983), 112 Ill. App. 3d 124, 128, 444 N.E.2d 1386, 1389.) In Pezzette the defendant requested a blood analysis for her own use after declining a police request for a blood analysis. This court concluded that the legislative purpose of the Department of Public Health permit and regulations was obviated, or at least not implicated, where a blood test is administered at defendant’s own request and not in response to either a police request or to a prior test taken at the direction of police. People v. Pezzette (1983), 112 Ill. App. 3d 124, 128, 444 N.E.2d 1386, 1389.

Pezzette may accurately describe the consent requirement of section 11 — 501(c), but it fails to recognize the additional and independent strictures of section 11 — 501(d). To hold that 11 — 501(d) need not be followed when there is no danger that an accused will be subjected to an unconsented test would make 11 — 501(d) surplusage, because the consent is always required for a blood alcohol analysis under section 11 — 501. Ill. Rev. Stat. 1979, ch. 951/2, par. 11 — 501(c); People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497.

Pezzette relies on the statement in People v. Todd (1975), 59 Ill. 2d 534, 542, that “[t]he obligation to obtain consent appears to be the dominant intent of the legislature,” and our observation in People v. Weissinger (1980), 90 Ill. App. 3d 700, 702, 413 N.E.2d 497, 499, that “[the] statutory intendment is to safeguard the rights *** to be free of the need to give evidence against himself,” for its assertion that the protection provided by section 11 — 501(d) was intended only to prevent law enforcement officers from “subjecting” unwilling defendants to unconsented blood alcohol tests. But the cited language refers only to the proper construction and underlying purpose of the separate consent requirement of section 11 — 501(c). The scope of section 11 — 501(d) was not even at issue in Todd or Weissinger, and nothing in these cases holds that the plain language of section 11 — 501(d) may be disregarded merely because the purpose behind the separate consent requirement of section 11 — 501(c) has been met. Pezzette also appears to state that even the consent requirements of section 11— 501(c) are subjected to a State action limitation, which is directly at odds with our previous holding in People v. Weissinger (1980), 90 Ill. App. 3d 700, 413 N.E.2d 497. There is also nothing in the statute to support the holding in Pezzette that the protections of section 11— 501(d) are limited to the “three testing situations” arbitrarily set up in Pezzette without explanation or citation of authority.

Finally, the State contends that any error in the admission of the blood test was harmless beyond a reasonable doubt in view of the evidence that the smell of alcohol was noticeable on defendant’s breath after the accident and the fact that defendant told personnel in the emergency room that she was under the influence of alcohol. Although that evidence tends to establish that defendant had been drinking, and that by her own estimation she was intoxicated, a substantial part of the State’s proof on this issue came through the testimony of Dr. John J. Spikes. Spikes, a toxicologist, testified in response to a hypothetical question that a person with a blood-alcohol concentration of .23 would be grossly impaired as to her coordination, judgment of distances and speed, and reaction times. Moreover, the prosecution exploited the evidence of the blood test during closing argument, and had submitted to the jury an instruction on the presumption of intoxication arising from a blood test of greater than .10. Under these circumstances, we do not believe that the error in admitting the test results may be deemed harmless beyond a reasonable doubt.

Accordingly, we reverse the judgment of the circuit court of Du Page County and remand the cause for a new trial.

Reversed and remanded.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


author: JUSTICE VAN DEUSEN

text:
    MARY JEAN LOWER, Plaintiff-Appellant, v. LANARK MUTUAL FIRE INSURANCE COMPANY et al., Defendants-Appellees.
    Second District
    No. 82—489
    Opinion filed April 20, 1983.
    Rehearing denied May 31, 1983.
    Richard A. Palmer, of Ward, Ward, Murray, Pace & Johnson, of Sterling, for appellant.

      Bernard P. Reese, Jr., of Reese, Reese & Bagley, of Rockford, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

This is a shareholders’ derivative suit for recovery of certain service fees, which were allegedly misappropriated and converted by defendant secretary-treasurer (also a director) of the nominal defendant insurance company, plus interest and attorney fees, from the secretary-treasurer/director and from the other defendant directors. The trial court granted summary judgments in favor of all defendants. Plaintiff appeals.

The facts giving rise to this appeal may be summarized as follows. From January 1, 1973, and for some years prior thereto, Lanark Mutual Fire Insurance Company (hereinafter Lanark Mutual) had reinsurance agreements with two other insurance companies, whereby Lanark Mutual was to receive certain service fees based upon the amount of insurance reinsured. From 1973 through 1977 Lanark Mutual was to receive a total of $25,022.60 in amounts which were periodically paid by check payable to Lanark Mutual. Alma Dollinger, secretary-treasurer and a director of Lanark Mutual, endorsed the checks and deposited the funds in her own separate account for her own use.

The disposition of these service fees was apparently called into question in the fall of 1978 and was the subject of an investigation by a special committee appointed by the president of Lanark Mutual, Rex B. Lower, who was a director since 1963, president for seven years up to 1978, and the husband of Mary Jean Lower, the plaintiff. The investigation culminated in a special board meeting held December 16, 1978, in which Dollinger did not participate. At that meeting, the directors unanimously voted to have the 1978 service fees deposited in the Lanark Mutual bank account, and they voted to have Dollinger keep all service fees received prior to January 1, 1978, if she would return the service fees received after January 1, 1978. President Lower cast the only dissenting vote. Then Dollinger was invited to join the meeting and asked if she would agree to the settlement agreement proposed by the board in the motion, and she agreed to the settlement.

At the annual meeting in January 1979, which was the first meeting of the policyholders following the December 16 board meeting, the issue of service fees was discussed and, on the motion of the plaintiff in this case, a shareholder directive or mandate was passed which required the board of directors to ascertain the amount of service fees which Dollinger had received from 1973 to the date of the motion and, after ascertaining the amount, to recover it from Dollinger. At that time, the policyholders were not advised of any settlement or compromise. This lawsuit was filed on December 27,1979.

The complaint alleged that plaintiff was a policyholder of Lanark Mutual, that defendant Lanark Mutual was an insurance company organized and operating pursuant to statute, and that the individual defendants were all directors of Lanark Mutual. The complaint further alleged that individual defendant Alma Dollinger was the secretary of Lanark Mutual with sole charge, control and management of all of the company’s business at its principal office. As such, she had the duty to receive, safely keep, and accurately account for Lanark Mutual’s money and property coming under her control and to furnish, whenever required, true and correct statements pertaining thereto, “and to accurately account for and pay over to Lanark Mutual all money received by her in the course of her employment or in the management or direction of Lanark Mutual’s business.”

The complaint went on to allege that Dollinger’s endorsement of the service fee checks and deposit in her own account for her own use was “fully without the authority or knowledge of Lanark Mutual, its officers or directors.” Further, the complaint alleged that Dollinger wilfully and fraudulently caused Lanark Mutual’s books and accounts to be “kept in a careless and fraudulent manner, for the purpose of covering up her irregular transactions.” Thereby, according to plaintiff, considerable sums of money had been lost to Lanark Mutual and had not been accounted for nor paid to the company.

The only allegation made against the directors was that they responded to plaintiff’s demand upon them to seek full accounting for said service fees by seeking and receiving restitution for those fees for the year 1978, “but in total disregard of their fiduciary duties to members of Lanark Mutual, wilfully neglected and refused to seek an accounting and recovery of the service fees” for the years 1973 through 1977. As relief, plaintiff sought a complete accounting of the service fees by Dollinger; a money judgment against Dollinger for Lanark Mutual’s benefit in the amount of the fees plus interest; a money judgment against the defendant directors, jointly and severally, for the same amount; an order directing defendant directors to discharge the secretary; and plaintiff’s reasonable attorney fees and costs.

At the annual meeting on January 22, 1980, the matter was once again discussed, and a resolution was introduced that approved and ratified the settlement of the reinsurance service fees question according to the terms agreed upon at the December 16, 1978, board meeting. The resolution and a mutual release were approved by the policyholders attending with the only negative votes being cast by plaintiff and her husband. Thereafter, the resolution was passed at a board meeting on July 10, 1980, including a provision that the officers of the company were empowered to enter into a mutual release of all liability arising from the transactions in question.

Defendant directors had responded to plaintiff’s complaint in two ways. First, it was and is their position that any funds retained by Dollinger as a result of the reinsurance agreements between Lanark Mutual and the two reinsurers were retained by Dollinger for services rendered to Lanark Mutual pursuant to a resolution of Lanark Mutual’s board of directors as part of her reasonable compensation for services rendered. Second, the directors maintained that the entire controversy had been effectively settled and compromised by virtue of the December 16 agreement and that they had exercised their business judgment in good faith in settling and compromising the claim so that plaintiff’s action was therefore barred under the business judgment rule.

On September 4, 1980, plaintiff filed a motion to disqualify defense counsel from representing both Lanark Mutual, the nominal defendant, and certain individual directors. She alleged that a potential and actual conflict existed between their respective interests. The motion was denied on September 22,1980.

On February 23, 1981, all defendants except Dollinger, Lower and Haas moved for summary judgment on multiple grounds including the December 16 settlement agreement. Subsequently, the other defendants filed separate motions for summary judgment, also on multiple grounds including the December 16 settlement agreement. Plaintiff’s memorandum in opposition to the motions for summary judgment stated inter alia that there were genuine issues of material fact as to whether any purported settlement or compromise was in good faith and that the defendant directors were seriously negligent in the manner in which they purportedly arrived at the December 16, 1978, compromise.

On March 23, 1982, the trial judge filed a memorandum opinion granting the motion for summary judgment filed by all defendants except Haas. Haas’ motion for summary judgment was granted on May 25, 1982, for the same reasons set forth in the March 23 memorandum opinion. The principal question of law in this case, according to the trial judge, was the “ ‘Business Judgment Rule’ and the effects of the actions of the Board of Directors and Shareholders upon the viability of the Plaintiff’s cause of action.” He recited the undisputed facts regarding the service fees, the December 16 compromise, the January 1979 shareholders’ directive to the board to pursue the matter and establish and collect the amount of fees received by Dollinger, and the shareholders’ approval and subsequent board resolution in 1980 of the December 16 compromise. He observed that plaintiff did not allege that the directors personally gained from the compromise nor that they committed any illegal or fraudulent act, nor that they failed to do anything prior to plaintiff’s demand but rather that, in the exercise of their business judgment, they disregarded their fiduciary duty.

The trial judge stated that plaintiff’s complaint alleged no negligence or wrongdoing prior to the settlement agreement and accused the directors of disregarding their fiduciary duty by wilfully neglecting and refusing to seek an accounting from Dollinger for the years prior to 1978. Focusing on the December 16, 1978, meeting, the trial judge found that the directors recognized the problem, discussed the issues, calculated the effects upon the corporation, considered the nature and practice of this small farm mutual company and then offered a settlement. Finally, the trial court concluded, it was not alleged that the approving directors committed any wrong prior to their vote on December 16, 1978, or that they received some personal benefit from an illegal or fraudulent act.

Therefore, the trial court refused to challenge the decision made by the corporate officers and approved by the majority of the shareholders. The corporation, in whose name the plaintiff sought to recover, had already compromised and settled the cause of action, and the trial court granted all of the motions for summary judgment.

Summary judgment is appropriate if the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 57(3), now Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c).) In determining if there is a genuine issue as to a material fact, inferences may be drawn from the facts which are not in dispute, and if fair-minded persons could draw different inferences from these facts, then a triable issue exists. (Farmers Automobile Insurance Association v. Hamilton (1975), 31 Ill. App. 3d 730, 732, aff’d (1976), 64 Ill. 2d 138.) The right to summary judgment must be clear beyond question, and when making this determination, the court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. (Baier v. State Farm Insurance Co. (1975), 28 Ill. App. 3d 917, 920, aff’d (1977), 66 Ill. 2d 119.) Where doubt exists as to the right of the moving party to the entry of summary judgment, the wiser judicial policy is to permit resolution of the dispute by trial rather than by summary judgment. Wegener v. Anna (1973), 11 Ill. App. 3d 316, 320.

Here, the trial court granted the various motions for summary judgment because it found that the business judgment rule was applicable and that plaintiff’s cause of action was thereby precluded. According to the business judgment rule, corporate directors, acting without corrupt motive and in good faith, will not be held liable for honest errors or mistakes of judgment (3A W. Fletcher, Cyclopedia of the Law of Private Corporations sec. 1039 (rev. perm. ed. 1975)), and a complaining shareholder’s judgment shall not be substituted for that of the directors (Swanson v. Traer (7th Cir. 1957), 249 F.2d 854; see Shlensky v. Wrigley (1968), 95 Ill. App. 2d 173, 178). To come within the ambit of the rule, directors must be diligent and careful in performing the duties they have undertaken (3A W. Fletcher, Cyclopedia of the Law of Private Corporations sec. 1040 (rev. perm. ed. 1975)), and they must not act fraudulently, illegally or oppressively or in bad faith (see, e.g., Ash v. International Business Machines, Inc. (3d Cir. 1965), 353 F.2d 491, cert. denied (1966), 384 U.S. 927, 16 L. Ed. 2d 531, 86 S. Ct. 1446).

In order to grant summary judgment in this case, the trial court had to find that no genuine issues of material fact existed concerning the applicability of the business judgment rule. Plaintiff argues that the depositions, affidavits, and other pleadings on file raise substantial factual questions concerning the directors’ actions, their good faith, and their compliance with their fiduciary duties of care and loyalty in their handling of the service fee controversy and that the trial court erred in applying the business judgment rule as a matter of law without determining these factual issues. The defendants argue, on the other hand, that the trial court properly determined that no genuine issue of material fact existed. Moreover, they claim the instant case to be a classic illustration of the importance of the summary judgment procedure in a vexatious and expensive unfounded shareholders’ derivative suit (3A W. Fletcher, Cyclopedia of the Law of Private Corporations sec. 1041 (Cum. Supp. 1981)) that places the court in the untenable position of second-guessing basic directorial business decisions (Stegemoeller, Derivative Actions and the Business Judgment Rule: Directorial Power to Compel Dismissal, 69 Ill. Bar J. 338 (1981)).

In entering summary judgment in favor of the defendants and against the plaintiff, the trial court carefully restricted its consideration of the directors’ actions to the December 16, 1978, adoption of the compromise settlement of the service fee controversy. The trial judge looked to the plaintiff’s complaint and found that the only allegation of wrongdoing involved the actions at that meeting. He pointed out that a different disposition might result if it had been alleged that those approving directors had committed some wrong prior to their vote on December 16, 1978, or that they had received some personal benefit from an illegal or fraudulent act.

Even assuming arguendo that the directors did vote for the settlement on December 16, 1978, because they felt it was in the best interest of the company, the record presents a serious question of fact as to whether the board had before it sufficient facts upon which to base an appropriate exercise of business judgment and therefore whether they acted in a diligent and careful manner in performing the duty they had undertaken on December 16, 1978. Plaintiff maintains that the defendant directors had been negligent and failed to exercise reasonable care in breach of their fiduciary duty as directors for some period prior to the December 16, 1978, meeting and thereafter wrongfully withheld material information from the shareholders, thereby gaining their approval of the settlement. According to plaintiff, their actions at and subsequent to the December 16, 1978, meeting, served, in effect, to cover up their prior wrongdoing and insulate them from the attendant liability at the expense of the company. The record is replete with depositions of the various directors wherein they admit to varying degrees of knowledge or ignorance about the service fee/ compensation matter. An inference could be drawn from these facts that they had acted in good faith and had not breached their fiduciary responsibility so that their actions in exercising their judgment on December 16, 1978, were within the business judgment rule, or the contrary inference could be drawn.

The issue here is not whether the trier of fact would reach the conclusion urged by the plaintiff regarding the directors’ good faith and compliance with fiduciary duties, but whether there is credible evidence in the record that would create a genuine issue of fact. The trial judge erred in restricting his consideration of the directors’ actions solely to the December 16, 1978, board meeting because the directors’ prior and subsequent actions, insofar as they would assist in determining and assessing the directors’ actions at that meeting, are relevant and material. This broader review of the directors’ actions indicates, at the least, that more than one inference could be drawn from the facts so that a genuine issue of fact was present. Therefore, summary judgments in favor of the defendants were granted in error and must be reversed and the cause remanded for trial.

In a motion ordered taken with the case, defendants allege that the portions of plaintiff’s brief dealing with the trial court’s September 22, 1980, order denying her motion to disqualify counsel should be stricken because that order is not specifically mentioned in the notice of appeal and the issue therefore is not before this court. However, the order denying plaintiff’s motion was not a final and appealable order. It was an interlocutory order which was not appealable under Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) for two reasons. First, the order lacked the required express finding. Moreover, even with the special finding, the order would still not be appealable because it was not a final order; it did not, in fact, adjudicate and dispose of any of the parties’ rights and liabilities concerning the entire controversy or some separate and definite part thereof. (Bloom v. Landy (1979), 72 Ill. App. 3d 383, 395-96.) This nonfinal order was made prior to the entry of the summary judgments, and the trial judge’s action in denying plaintiff’s motion is part of the record which is brought before us by the notice of appeal. See Echo Lake Concerned Citizens Homeowners Association, Inc. v. Village of Lake Zurich (1979), 68 Ill. App. 3d 219, 226 (special concurrence), citing Hillmer v. Chicago Bank of Commerce (1940), 375 Ill. 266, 272-73.

Plaintiff maintains that the same counsel should not represent both the corporation and the individual defendant directors because of a conflict between their respective interests so that counsel should be disqualified from representing the corporate defendant. We find that the adverse interests are apparent on the face of the complaint; the corporation will benefit from the suit if plaintiff prevails, but, because the suit alleges liability of the individual defendant directors, it is in their interest to defeat the claim. Even if no conflicts currently exist, the potential conflict cannot be ignored, and we must consider the serious hardship to the court and the parties that would ensue if new counsel is made necessary later because a conflict does arise in the course of trial. On balance, the corporation must obtain independent counsel. (Cannon v. U.S. Acoustics Corp. (N.D. Ill. 1975), 398 F. Supp. 209, 220, rev’d and rem. on other grounds (7th Cir. 1976), 532 F.2d 1118.) Defendant’s attempt to distinguish Cannon on the grounds that the directors in this case did not achieve personal gain from their alleged wrongdoing is unpersuasive, since that fact does not in any way affect the adverse nature of their interest vis-a-vis that of the corporation.

Plaintiff’s motion requested that the court appoint counsel to represent the defendant corporation. We disagree. The defendant corporation may select its own counsel even though some or all of the defendant directors may make the selection. Certainly new counsel will recognize the duty to represent solely the interests of the corporate entity. Should difficulties arise, the parties or counsel may apply to the court for additional relief. Cannon v. U.S. Acoustics Corp. (N.D. Ill. 1975), 398 F. Supp. 209, 220, rev’d and rem. on other grounds (7th Cir. 1976), 532 F.2d 1118.

For the reasons set forth above, the summary judgments in favor of the defendants are reversed, and the cause is remanded for trial. We further direct the trial court to order counsel for the defendants to withdraw as counsel for the corporate defendant, and the corporate defendant shall be granted reasonable time to retain new and independent counsel.

Reversed and remanded with directions.

HOPF and REINHARD, JJ., concur.


author: JUSTICE REINHARD

text:
      In re MARRIAGE OF MARIE DONAHOE, a/k/a MARIE KEANE, Petitioner-Appellant, and RICHARD H. DONAHOE, Respondent-Appellee.
    Second District
    No. 82—322
    Opinion filed May 3, 1983.

      Louis F. Aiello and Janice Metro Johnston, both of Woodstock, for appellant.
    David H. Pauker and Ira E. Rubin, both of Jurón, Pauker & Rubin, of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Marie Donahoe, now known as Marie Keane (Marie), appeals from that portion of an order terminating the child-support obligation of her former husband, Richard H. Donahoe (Richard), for the support of Margaret Donahoe (Margaret), one of the parties’ children, and from a subsequent order denying her petition for attorney fees incurred in the child-support matters.

On appeal, Marie raises three issues: (1) whether the trial court erred in terminating child-support payments for Margaret Donahoe on the basis that she was emancipated; (2) whether the date on which Margaret was found by the trial court to be emancipated was incorrect; and (3) whether the trial court erred in denying her petition for attorney fees.

The marriage of the parties was dissolved by a judgment entered on October 7, 1977. A marital settlement agreement, incorporated by-reference into the judgment of dissolution, provided that Marie would have custody of the parties’ minor children and that Richard would pay child support of $125 per week per child “until each child shall have reached the age of eighteen years, die [sic] or become emancipated, whichever first shall occur.” On October 16, 1981, Richard filed a petition to terminate support, alleging that Margaret Donahoe, the parties' only remaining minor child, refused to attend high school and was not working, and requested that she be declared emancipated according to the terms of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.) and that his child-support obligation be terminated or, alternatively, that his obligation of child support be abated until she returned to school on a full-time basis. Marie moved to dismiss the petition and filed a petition for a rule to show cause alleging $1,125 in child-support arrearages and requesting attorney fees.

At the hearing on these matters on January 21, 1982, Richard testified that, under the original judgment of dissolution of marriage, Margaret was supposed to attend Marian Central Catholic High School, but that he had received reports from the school that she was not attending school. At the end of the 1980-81 school year, he had a conversation with Margaret and Marie. At that time he agreed to let Margaret transfer to Woodstock High School because he thought she would complete her high school education there. Margaret only attended two days of school at Woodstock. At that time he filed his petition, Margaret was not going to school and was not working.

Richard further testified that he felt an obligation to support Margaret if she were a full-time student. He had stopped making support payments to “force her to go back to school or have her emancipated.” He said that he thought she was emancipated because she was now working and not going to school. He admitted that there was nothing in the original judgment which required her to go to school in order to be entitled to support. He also said that he did not know how much she made at her job. He believed that Margaret was still living with her mother.

He testified that he was a self-employed commodities broker; that at the time of trial he was in the middle of an anticipated two-month layoff because of an operation; that his only current income was $475 per month from a partnership; that when working his income varied depending upon the condition of the economy; and that he had recently reduced an outstanding $25,000 debt to $5,500. It was stipulated that Richard was in arrears in child-support payments since September 1981.

Margaret testified that she was 17 years old and would be 18 on October 1, 1982. She stated that she missed 59^2 days of school at Marian Central Catholic High School during the 1981-82 academic year; that “quite a bit” of it was because of injuries she received in two automobile accidents; that she attended Woodstock High School for one or two days during the 1980-81 school year, but quit when she contracted mononucleosis; that she was ill during September and October of 1981; and that near the beginning of November her doctor said that she could return to school, but that she decided she missed too much school to complete the semester. She said that she had initially planned to return to school in the second semester, but then decided to pursue a General Educational Development certificate (commonly known as a GED or high school equivalency certificate) when she became 18. She said she did not intend to return to high school and this decision was made by her on her own.

She testified that three to four weeks before the hearing she had begun working at a Jewel Food store; that she worked 15-20 hours a week and was paid $4.12 an hour; that her largest weekly paycheck was $41; and that she gave her mother $10 to $15 a week for food. She stated that she had applied for one other job, but was turned down for health reasons. She said that she planned to continue working at Jewel and living with her mother. She said she would be unable to support herself on the money she earned.

On January 27, 1982, the trial court, in a memorandum opinion, found that Margaret was dependent on both her parents; that she had voluntarily dropped out of high school and taken a part-time job; that she used her earnings for her own needs and contributed some of them to her mother; that Margaret’s actions were not caused by a failure of her father to make support payments; that through her voluntary action Margaret caused the termination of her education; and that Margaret’s actions had “accomplished a course of conduct designed to attain economic self-sufficiency” and had worked a severance of the filial relation. The court, therefore, found that Margaret was emancipated and that her father no longer had to pay support after November 4, 1981, the date on which her doctor said she could return to school. The court found that although it did not condone Richard’s unilateral cessation of support payments after August 1981, it could not find that his failure to pay was “wilful and wanton” under the circumstances of the ongoing dispute concerning Margaret’s education.

On March 30, 1982, the trial court entered a written order dismissing Marie’s petition for a rule to show cause, terminating Richard’s child-support obligation as of November 4, 1981, and awarding Marie $1,153.94 for child-support arrearages from September 1, 1981, through November 4,1981.

Also, on March 30, 1982, Marie filed a petition for attorney fees of $747.50 which she alleged she had incurred prosecuting her petition for a rule to show cause and defending against Richard’s petition to terminate child support. Her attached affidavit showed that she received $604 a month in income, expended $1,029 a month for expenses, and had $80,000 equity in her home. No further testimony was offered in addition to Richard’s testimony of his financial condition at the prior hearing.

On April 12, 1982, the trial court denied Marie’s request for attorney fees, finding that there was no specific evidence that she was unable to pay her attorney fees or that Richard was in a better financial situation to pay them.

Section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(c)) provides, inter alia, that “[u]nless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child ***.” The legislative purpose behind section 510(c) is to permit the parties to agree to remain liable for the support of the child beyond emancipation. (Finley v. Finley (1980), 81 Ill. 2d 317, 326, 410 N.E.2d 12.) We also note that the court may award support for a child who has attained majority and is not otherwise emancipated when such child is mentally or physically disabled, and may make provision for the education and maintenance of a child whether of minor or majority age. (Ill. Rev. Stat. 1981, ch. 40, par. 513; see also In re Marriage of Taylor (1980), 89 Ill. App. 3d 278, 282, 411 N.E.2d 950.) However, although the intent of section 510(c) is clearly to allow the parties to agree that support continue after emancipation, section 510(c) by its terms could allow support to be cut off by the trial court prior to the child’s emancipation by attaining age 18. In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 1132-33, 427 N.E.2d 1262.

In Illinois, a child who attains the age of 18 years is of legal age. (Ill. Rev. Stat. 1981, ch. llO1^, par. 11 — 1.) Although not relevant to our inquiry here, the Emancipation of Mature Minors Act (Ill. Rev. Stat. 1981, ch. 40, par. 2201 et seq.) provides a means for a minor to obtain the legal status of an emancipated person.

In In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 427 N.E.2d 1262, the question of whether the court under section 510(c) of the Illinois Marriage and Dissolution of Marriage Act can order termination of support for a child before the legal duty of support ends, was addressed for the first time in Illinois. We determined that section 510(c) by its terms allowed the court to cut off support prior to the child’s emancipation by reaching the age of majority, but we held that given the parents’ legal duty to support their children, sound public policy would require extraordinary circumstances before allowing support to terminate before emancipation by reaching the age of majority. (100 Ill. App. 3d 1126, 1132-33, 427 N.E.2d 1262.) We rejected the lower court’s determination that minor children are emancipated upon graduation from high school without reference to the child’s then need of support. We also stated that “there may be circumstances where an early end of support would be within the court’s discretion where the child had other monies available or at his disposal at such time.” 100 Ill. App. 3d 1126, 1133, 427 N.E.2d 1262.

Illinois decisions in child-support cases prior to adoption of the Illinois Marriage and Dissolution of Marriage Act have looked to the factors of self-emancipation and ability to be self-supporting in determining whether a child is emancipated before the age of majority. (See, e.g., Waldron v. Waldron (1973), 13 Ill. App. 3d 964, 968, 301 N.E.2d 167; Shuff v. Fulte (1951), 344 Ill. App. 157, 164-65, 100 N.E.2d 502.) In Shuff v. Fulte (1951), 344 Ill. App. 157, 100 N.E.2d 502, a case where the father sought to avoid child-support payments due to the purported emancipation of his two minor children because they became employed and collected their own earnings, the court adopted the test of self-emancipation from Iroquois Iron Co. v. Industrial Com. (1920), 294 Ill. 106, 109, 128 N.E. 289, as follows:

“When a child who is physically and mentally able to take care of himself, voluntarily abandons the parental roof and leaves its protection and influence, and goes out into the world to fight the battle of life on his own account, the parent is no longer under legal obligation to support him. Iroquois Iron Co. v. Industrial Commission, 294 Ill. 106.” (344 Ill. App. 157, 164, 100 N.E.2d 502.)

In addition, generally, a child becomes emancipated when attaining the age of majority (Finley v. Finley (1980), 81 Ill. 2d 317, 326, 410 N.E.2d 12), when he marries (People ex rel. Mitts v. Ham (1917), 206 Ill. App. 543, 550), or when he enters the armed forces. (Iroquois Iron Co. v. Industrial Com. (1920), 294 Ill. 106, 109, 128 N.E. 289.) In other jurisdictions, while the termination of such support obligations prior to the child attaining the age of majority will be determined by the particular facts of each case, the most important considerations are whether the child’s own acts have brought about an emancipation and whether he is earning his own support. See Annot., 32 A.L.R.3d 1055 (1970).

Richard’s main contention on appeal is that “under the law he had the right to emancipate his daughter whenever he chose to do so; and, that when he did so, his support obligation for her under the judgment order [s-ic] terminated in accordance with its terms.” The thrust of this argument is that under the authority of Romine v. City of Watseka (1950), 341 Ill. App. 370, 91 N.E.2d 76, a parent’s intention to emancipate a child is controlling, and once Richard determined to emancipate Margaret, his duty to support her terminated in accordance with the provisions in the judgment of dissolution of marriage.

This contention is without merit. In Romine v. City of Watseka (1950), 341 Ill. App. 370, 91 N.E.2d 76, the court was concerned with the parents’ written relinquishment of their right to their minor son’s wages and earnings which were included as damages requested in his personal injury suit brought against the city of Watseka. In the context of the parents’ declaration that they were assigning all right to recover such monies to the minor’s guardian, the court held the parents had emancipated their child and relinquished their right to his wages and earnings during his minority. (341 Ill. App. 370, 380-81, 91 N.E.2d 76.) The decision in Romine has no application to a parent’s obligation to support a minor child under the Illinois Marriage and Dissolution of Marriage Act or to the section 510(c) provision for termination of the child-support obligation by emancipation.

Under the facts present here, Margaret’s earnings of approximately $41 per week from her part-time job are clearly insufficient to establish that she was self-supporting, nor did she herself seek to be financially independent. She had not abandoned her mother’s home, a factor sometimes deemed relevant. (Waldron v. Waldron (1973), 13 Ill. App. 3d 964, 968, 301 N.E.2d 167; In re Marriage of Weisbart (1977), 39 Colo. App. 115, 564 P.2d 961.) Her act of quitting school against her father’s wishes is an insufficient reason for refusal to comply with the support provisions of a court decree. (Allison v. Binkley (1953), 222 Ark. 383, 259 S.W.2d 511.) From the evidence found in this record, we conclude Margaret was not emancipated prior to her reaching age 18, and that portion of the order which terminated Richard’s obligation to pay child support is vacated. Having reached this decision, we need not address Marie’s second contention that the date on which Margaret was found to be emancipated by the trial court was incorrect.

Marie’s final contention is that the trial court erred in denying her petition for attorney fees incurred in presenting her rule to show cause and defending the petition to terminate child support. Under section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 508(a)) the trial court may order either spouse to pay a reasonable amount for attorney fees necessarily incurred by the other spouse in any proceeding under the Act. The general rule in this regard is that to justify allowance of attorney fees the party seeking the relief must show financial inability to pay and the ability of the other spouse to do so. (Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 581, 373 N.E.2d 576.) Financial inability exists where payment would strip the person of the means of her support and undermine her economic stability. (In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 975, 441 N.E.2d 336.) The allowance of attorney fees is within the sound discretion of the trial court, and its determination will not be overturned unless the trial court has clearly abused its discretion. Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 229, 446 N.E.2d 499.

We need not discuss the question of Marie’s financial inability to pay her attorney fees since she has completely failed in her burden to show Richard’s ability to pay these fees. (See In re Marriage of De Frates (1980), 91 Ill. App. 3d 607, 614-15, 414 N.E.2d 1188.) There is no evidence of Richard’s assets, his past income, or his current income other than his testimony that while recovering from an operation he was only receiving income of $475 per month from a partnership. We find no abuse of discretion by the trial court in denying attorney fees on this basis.

Nevertheless, Marie also maintains that she is entitled to those attorney fees incurred by her which relate to her petition for a rule to show cause based on Richard’s arrearage in child support for Margaret. It was stipulated that Richard was in arrears since September 1981, and the evidence shows he stopped Margaret’s support payments when she continued to refuse to attend school. In its order dismissing the rule to show cause, the trial court found Richard unilaterally ceased support payments, but found the failure to pay was not “wilful and wanton” because of the controversy concerning Margaret’s education.

When it becomes necessary for a party to go into court in order to enforce rights under a judgment of dissolution, the party who is thus forced to resort to judicial process to secure compliance with the terms of the judgment is entitled to her reasonable attorney fees even absent a showing of inability to pay those fees. (Tippet v. Tippet (1978), 65 Ill. App. 3d 1018, 1020, 383 N.E.2d 13; Gaines v. Gaines (1969), 106 Ill. App. 2d 9, 15, 245 N.E.2d 574.) While the trial court found Richard’s unilateral cessation of child-support payments not to be “wilful and wanton” because of the ongoing controversy over Margaret’s education, and dismissed the rule to show cause, we conclude that Richard was still not justified under the circumstances in this record in unilaterally terminating child-support payments previously ordered under the judgment of dissolution. (See Ill. Rev. Stat. 1981, ch. 40, par. 508(b), as amended by Pub. Act 82 — 515,' effective January 1, 1982.) We, therefore, find the trial court abused its discretion in denying Marie her reasonable attorney fees incurred in pursuing the rule to show cause.

Marie’s attorney’s affidavit in the record indicates two hours time for preparation of the rule to show cause and a conference with Marie, V2-hour time for a court appearance on the rule to show cause, and two hours time drafting Marie’s affidavit and petition for fees. The trial court specifically found the work, time, and effort spent by Marie’s attorney to be reasonable and the nature of the petition for attorney fees usual and customary. The hourly rate was listed in the affidavit as $65. Thus, we award Marie her reasonable attorney fees in relation to the rule to show cause in the amount of $292.50.

In sum, that portion of the March 30, 1982, order which terminated Richard’s child-support obligation for Margaret is vacated and reversed, and the order of April 12, 1982, denying Marie’s petition for attorney fees is reversed and judgment is entered in favor of Marie in the amount of $292.50 for attorney fees.

Vacated and reversed in part; and reversed and judgment entered in part.

HOPF and VAN DEUSEN, JJ., concur.