author: Mr. JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT PATTERSON et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 79-2309, 80-197 cons.
    Opinion filed September 10,1981.
    Rehearing denied October 15, 1981.
    Ralph Ruebner and Alan D. Goldberg, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Iris E. Sholder, and Alfred L. Petrocelli, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LINN

delivered the opinion of the court:

At the conclusion of a bench trial in the circuit court of Cook County, defendants, Robert Patterson and Keith Payne, were found guilty of armed robbery and possession of a stolen vehicle. Fay ella McCarthy, a co-defendant not involved in this appeal, also was found guilty of possession of a stolen vehicle.

On appeal, defendants contend: (1) they were denied a fair hearing on their motion to suppress their lineup identification because the trial court improperly excluded testimony concerning statements made to the complaining witness before the complaining witness viewed the lineup; (2) the trial court erred in denying the motion to suppress the lineup identification. Defendant Patterson additionally contends that his sentence of a 10- to 15-year prison term for armed robbery is excessive.

We affirm.

David Hill, the complaining witness, testified that shortly after midnight on September 30,1977, while he was driving home, he noticed a woman, whom he did not know, standing on the street corner. Hill identified this woman as co-defendant McCarthy. Hill stopped his car and after exchanging a few words, he agreed to give McCarthy $20 for engaging in sexual intercourse with him. They drove straight down the street for a short distance, and then turned into an alley and parked. After having sexual relations, Hill started the car. McCarthy was in the front seat. A man approached the passenger side of the car. Hill told McCarthy not to open the car door but she did so, stating “They got guns.” She left the car. The man with a gun, whom Hill identified as defendant Payne, then entered the car and sat a few inches from Hill and said, “This is a stick-up.” At this time, Hill asserted, there was a lighted street light approximately 10 feet away and a lighted dome light inside the car. The inside light in the car automatically turned on when McCarthy opened the car door and it remained lighted throughout the incident. (Later on cross-examination, Hill acknowledged that he could not remember what the defendants were wearing on the night of the incident.)

Defendant Payne then ordered Hill to open his car door, which Hill did. A second man, also armed with a gun, approached Hill’s side of the car and told Hill to put his head on the steering wheel. At this point in time, the man, whom Hill identified as defendant Patterson, was standing two to three inches from Hill. After Hill complied with the order, defendant Patterson took $180 from Hill’s pocket. Defendant Patterson then told Hill to get out of the car and stand up, and after he did so, Patterson took Hill’s wallet and house keys. At this time, defendant Patterson was standing face to face with Hill. Patterson then told Hill to run down the alley. As Hill ran into a gangway, he heard several car doors closing and car wheels spinning. Hill ran back to the alley and saw three people drive away in his car. Hill asserted that approximately 15 minutes had passed from the time he drove into the alley with McCarthy to the time he left the alley. A “few minutes” passed between the time when the men approached him and when he ran through the alley.

The police arrived approximately 10 minutes later, and Hill told them what had happened and what had been taken. Hill asserted he had probably told police that only two men were involved. When the incident occurred, he was married.

Office Lyle May testified that on September 30,1977, at 12:45 p.m., he investigated a suspicious persons call. When he ¿rrived at the designated address, Mrs. Hill was on the porch. She spoke and then pointed towards a dark blue Chevrolet Chevette being driven down the street. May “flagged down” the car. At trial, May identified the three defendants as the occupants of the car. May also asserted that he recovered Hill’s wallet and house keys from defendant McCarthy’s purse.

Defendants McCarthy and Payne testified in their defense. McCarthy stated that she had been with Hill during the evening of September 29, 1977, and the early morning hours of September 30,1977. After engaging in sexual intercourse and receiving a payment of $25, McCarthy obtained Hill’s permission to use his car. When she returned to the hotel a few hours later, Hill had left. The next morning, she looked in the glove compartment of the car and found Hill’s house keys and wallet. At 11:30 a.m., intending to return the car, McCarthy drove to Hill’s home, accompanied by her roommate defendant Payne and defendant Patterson. There was no one home. As the group left, they were arrested.

McCarthy denied that she had told Officer May that she had found Hill’s car in a vacant lot and was returning it for a reward. She further stated that while she was at the police station, she overheard Mrs. Hill tell Hill, “They are the two guys * 0 * if you don’t send them to the penitentiary I am going to divorce you for every dime you have got.”

Payne asserted that at the time of the alleged armed robbery, he was with friends at a bar. At 2 a.m., he returned to his friend’s home and stayed there until 3:45 a.m. The following morning, he and Patterson accompanied McCarthy while she returned a car to a friend. After they drove to the friend’s home, McCarthy alone went to the house and then returned to the car. She indicated that her friend was not home and that she wanted to call his place of employment. The police arrived and arrested them.

Officer Brian Rybka also testified as a defense witness. During the early hours, on September 30,1977, he spoke with Hill about the incident. Hill described his assailants as two dark-complected male Negroes, 20 to 25 years of age, who were five feet eight inches tall and weighed 160 pounds. Rybka stated that since Hill was very upset, he was unable to describe the clothing or physical characteristics of his assailants. Hill also did not tell Rybka what the lighting conditions were during the incident. He also recalled that Hill had been drinking.

Several witnesses were called in rebuttal. The testimony of two witnesses concerned the periods of time Payne worked for Bell and Howell Company. Officer May testified that when he stopped a vehicle belonging to Hill and questioned the three defendants, McCarthy told him she found the car in a vacant lot near her home. She also found a wallet and coat in the car and thought if she returned the car she would receive a reward. Defendants Payne and Patterson agreed with her account. When cross-examined, Officer May admitted that the police report he had prepared did not include any statement given by McCarthy.

Opinion

I

Defendants first contend that they were denied a fair hearing on their motion to suppress their lineup identification because the trial court erroneously excluded Hill’s testimony concerning the substance of his conversations with his wife and police. Defendants also contend their motion to suppress the lineup identification should have been granted because the lineup procedure, in which of five men only Payne and Patterson were not handcuffed, was unduly suggestive.

We agree that Hill’s testimony concerning conversations with his wife and police was admissible to show whether they influenced Hill’s subsequent identification. (See People v. Canamore (1980), 88 Ill. App. 3d 639, 411 N.E.2d 292.) We also agree the lineup procedure was somewhat suggestive. However, in our view it is unnecessary to remand the cause for a new hearing on the motion to suppress because the record demonstrates that there is a reliable basis for Hill’s in-court identification which is independent of the lineup identification.

As in People v. McTush (1980), 81 Ill. 2d 513,410 N.E.2d 861, the crux of the issue here is whether Hill’s in-court identification of defendants was based on an out-of-court line-up identification which was so impermissibly suggestive as to create a substantial risk of irreparable misidentification. At the trial, here, as in McTush, both the State and the defense asked Hill questions about his identification of defendants on the night of the incident and no questions were asked of Hill concerning his out-of-court identification of defendants. The McTush court noted the supreme court’s rationale set forth in Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967, that despite the hazards of such an identification, those hazards are substantially lessened by the opportunity afforded to defense counsel to cross-examine an eyewitness at trial and thereby expose any potential for misidentification.

Consequently, once it is established that the pretrial confrontation was impermissibly suggestive, the State may “[o]vercome that obstacle, by a clear and convincing showing, based on the totality of the surrounding circumstances, that ‘the witness is identifying the defendant solely on the basis of his memory of events at the time of the crime.’ [Citation.]” (81 Ill. 2d 513, 520, 410 N.E.2d 861, 865.) The concern is whether “[A]n independent origin exists to establish separate reliability for [Hill’s] in-court identification testimony, or, negatively stated, whether the suggestive procedure created a substantial risk of misidentification, without a sufficient, separate basis of reliability. [Citation.]” (81 Ill. 2d 513, 521, 410 N.E.2d 861, 865.) The factors to be considered in evaluating the likelihood of misidentification include the following: (1) the opportunity of the witness to view the alleged offender at the time of the crime; (2) the witness’ degree of attention; (3) the accurancy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the time of the confrontation; (5) the length of time between the crime and the confrontation; and (6) any acquaintance with the suspect at the time of the crime. People v. McTush.

Applying these factors to the case here, we believe that Hill viewed the defendants under circumstances which permitted him, at a later time, to positively identify them. Hill testified that a nearby street light and the light inside his car illuminated the area where he observed defendants. Hill also testified that he observed both defendants face to face for a few minutes.

Further, Hill’s detailed description of events indicates he was closely attentive to the enactment of the crime. The fact that he observed both defendants who were armed while one was in the car with him and the other was standing next to him supports the inference that Hill was fearfully watching them and “[v]iewed [the scene] with the close attention accorded unusual occurrences.” (People v. McTush (1980), 81 Ill. 2d 513, 522, 410 N.E.2d 861, 866.) Hill also positively and consistently identified defendants, first, from a lineup of five men and second, during trial. The length of time between the crime and the lineup confrontation, one day, clearly was not unduly long so as to mar the strength of the identification.

Finally, although Hill was unable to describe the defendants’ clothing on the night of the incident, he was able to estimate their height and weight. We do not believe that Hill’s inability to describe defendants’ attire materially diminishes the reliability of the identification. In our view, an “informed judgment” (People v. Blumenshine (1969), 42 Ill. 2d 508, 513, 250 N.E.2d 152, 155) is inferable from the record that an independent origin for Hill’s in-court identification has been clearly and convincingly established so as to assauge any risk of misidentification. (People v. Mctush.) Accordingly, there is no need to remand to the circuit court for an evidentiary hearing regarding an independent origin of reliability for Hill’s in-court identification.

II

Defendant Patterson next contends that his prison sentence of 10 to 15 years for armed robbery and possession of a stolen vehicle is excessive. Defendant argues that the sentence is excessive when viewed on its own and when compared to co-defendant Payne’s prison sentence of four years to four years and one day for the same offenses. We disagree.

Patterson had a 1970 felony conviction for voluntary manslaughter and two misdemeanor convictions. Payne had a 1973 misdemeanor battery conviction and a September 1977 misdemeanor theft conviction for which he was placed on probation. Payne was on probation at the time of the offense. Defendant Patterson concedes that his criminal record may warrant some disparity between his and Payne’s sentences, but the “huge difference” is unjustifiable since the State claimed both defendants were equal participants.

Defendant correctly notes that in the case of co-defendants, the law requires that defendants similarly situated should not receive grossly disparate sentences. However, equality in sentencing is not required for all participants in the same crime. (People v. Olmos (1979), 77 Ill. App. 3d 287, 395 N.E.2d 968.) Actual differences in the character and history of co-defendants and their degree of culpability are factors for the trial court’s consideration in determining the proper punishment. (People v. Olmos.) Sentencing is a matter for the sound discretion of the trial court, and absent an abuse of discretion, the trial court’s decision will not be reversed on appeal. People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

In People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545, the Illinois Supreme Court affirmed its earlier ruling in People v. Perruquet that under Supreme Court Rule 615(b)(4), which provides that a reviewing court may reduce the punishment imposed by the trial court, “the standard of review of a sentence claimed to be excessive is whether in fact the trial court exercised its discretion and, if so, whether this discretion was abused.” Here, in accordance with section 5 — 4—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1005 — 4—1(c)), the trial court specified the reasons for the sentence it imposed. The trial court noted the factors in mitigation and aggravation and emphasized that defendant had failed to learn from his first prison sentence for voluntary manslaughter. The sentence imposed, in the trial court’s view, was one which “[would] indicate to him the seriousness of this crime. That will take into consideration the fact that in an earlier offense, for taking a man’s life, he didn’t learn * * *. [Sic.]”

In our view, the trial court properly exercised its discretion. Defendant Patterson’s criminal record admittedly is significantly more serious than that of co-defendant Payne. The disparity between the two sentences is not so gross so as to constitute an abuse of discretion. See People v. Meints (1976), 42 Ill. App. 3d 25, 356 N.E.2d 386.

Accordingly, for the reasons noted, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAUD S. PACE, Defendant-Appellant.
    First District (4th Division)
    No. 80-602
    Opinion filed September 10,1981.

      Ralph Ruebner and Richard F. Faust, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Marcia B. Orr, Pamela L. Gray, and Mark E. Thompson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LINN

delivered the opinion of the court:

At the conclusion of a bench trial in the circuit court of Cook County, defendant, Laud S. Pace, was found guilty of seven counts of theft (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1), one count of unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, par. 24 — 1) and three counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A — 2). Defendant was sentenced to concurrent prison terms of ten years for armed violence, four years for theft, and one year for unlawful use of weapons. On appeal, defendant contends that: (1) he was improperly convicted of armed violence because the armed violence statute is unconstitutionally vague and the evidence failed to show the use of a weapon to commit theft; and (2) the sentences of 10 years for armed violence and four years for theft are excessive and should be reduced to the respective statutory mínimums of six and two years.

We affirm.

Defendant, a former employee of the Chicago Art Institute, personally carried out his scheme whereby three paintings by Paul Cezanne, entitled “Apples on a Table Cloth,” “House on a River” and “Madame Cezanne in a Yellow Chair” were stolen. On May 21, 1979, defendant' contacted E. Lawrence Chalmers, president of the Art Institute, and informed him that the “thieves” of the Cezanne paintings had contacted him. They asked him to arrange an exchange of the paintings for $250,000. After contacting law enforcement authorities, Chalmers told defendant that he should speak with William Smith, the Art Institute’s, insurance adjuster, who was staying at the Drake Hotel.

Later, Chalmers, Smith, and law enforcement personnel arranged to obtain the sum demanded and to have the hotel room next door to Smith’s room set up with-recording equipment staffed by police. When defendant, by prearrangement, met Smith in Smith’s room on May 22, 1979, defendant asked to see the money to be exchanged for the. paintings. Smith showed it to him. An exchange of the cash for the paintings was agreed upon for the next morning in Smith’s room.

The next morning, defendant brought with him a large package which contained three paintings. Smith and Chalmers were present in Smith’s room. Defendant told Smith that the “thieves” wished to make the exchange and that there were men in the corridor and in the streets armed with “45’s.” Defendant then opened his suit coat for three to four seconds and displayed a pistol placed under his belt. Smith did not see the gun but Chalmers did. The exchange of the money for the paintings then took place. As defendant departed from the room with the money, he was arrested. The money was retaken. Upon searching defendant, police recovered from him a loaded nine-millimeter automatic pistol and four fully loaded ammunition clips. The retrieved paintings had an aggregate value of $4.3 million.

Opinion

I

Defendant first contends that his conviction for armed violence is legally impermissible and cannot stand because the armed violence statute is unconstitutionally vague and denies due process of law under the constitutions of both Illinois and the United States. Defendant also contends that the armed violence convictions must be reversed because the evidence presented did not prove defendant used the gun to commit the theft.

Article 33A of the Criminal Code of 1961 provides:

“§33A — 1. Definitions, (a) ‘Armed with a dangerous weapon’. A person is considered armed with a dangerous weapon for purposes of this Article, when he carries on or about his person- or is otherwise armed with a category I or category II weapon, (b) A category I weapon is a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24 — 1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like character, (c) A category II weapon is a bludgeon, blackjack, slungshot, sandbag, sandclub, metal knuckles, billy or other dangerous weapon of like character.”
“§33A — 2. Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law.”
“§33A — 3. Sentence, (a) Violation of Section 33A — 2 with a Category I weapon is a Class X felony, (b) Violation of Section 33A — 2 with a Category II weapon is a Class 2 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty. A second or subsequent violation of Section 33A — 2 with a Category II weapon is a Class 1 felony or the felony classification provided for the same act while unarmed, whichever permits the greater penalty.” Ill. Rev. Stat. 1979, ch. 38, pars. 33A — 1 to 33A — 3.

Defendant’s vagueness attack is two-fold: first, the statute fails to make clear whether the weapon must actually be used to facilitate the offense and the statute is inconsistent since it includes nonviolent felonies as acts of armed violence; and second, the penalty.set forth for the offense is not determined with respect to the seriousness of the offense in violation of article 1, section ll of the Illinois Constitution because all violations of section 33A — 2 with a category I weapon are declared class X felonies.

The Illinois Supreme Court recently addressed these issues in People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627, and held that the statute was not unconstitutionally vague. In Harón, the defendant’s charge of armed violence was predicated upon his carrying a derringer during the commission of a nonviolent crime. There was no allegation that the defendant used the weapon to facilitate the offense. The Harón court held that the armed violence statute clearly does not require that the presence of a weapon facilitate the underlying offense, but that “the mere fact that a person, while committing a felony, ‘carries on or about his person or is otherwise armed with’ a dangerous weapon is sufficient to come within the language of the statute.” (85 Ill. 2d 261, 269-70.) The court reasoned that in amending the armed-violence statute to include all felonies, the General Assembly clearly “intended to extend the number of circumstances in which the presence of a weapon is prohibited [citation].” 85 Ill. 2d 261, 268.

In view of the Illinois supreme court’s conclusion that the armed-violence statute neither requires nor forbids the doing of an act, which in terms is so vague ‘<* * * that men of common intelligence must necessarily guess at its meaning and differ as to its application’ ” (85 Ill. 2d 261, 270), we necessarily must reject the first aspect of defendant’s vagueness argument.

We now turn to the second aspect of defendant’s argument, that the required six year minimum term of imprisonment applicable to a violation of article 33A involving a category I weapon violates due process under the Illinois and United States constitutions. Although Harón discussed but declined to decide a similar constitutional challenge, this court recently upheld the statute against this constitutional challenge in People v. Lynom (1981), 97 Ill. App. 3d 1113.

As in Harón and Lynom, defendant here argues that a penalty statute which seeks to remedy the “growing incidence of violent crime” by subjecting a nonviolent perpetrator of theft to a mandatory minimum prison sentence of six years without the possibility of probation, periodic imprisonment, or conditional discharge is not reasonably designed to remedy that evil. Defendant also posits that the armed violence statute offends article 1, section 11 of the 1970 Illinois constitution, which provides that penalties shall be determined with respect to the seriousness of the offense, because the sentencing judge is not allowed to tailor an appropriate punishment for the offense.

As noted by both the Haron and Lynom courts, the standard by which legislative determinations of penalty are to be judged was recently set forth in People v. Bradley (1980), 79 Ill. 2d 410, 417, 403 N.E.2d 1029, 1032:

“It is the general rule that the legislature, under the State’s police power, has wide discretion to prescribe penalties for defined offenses. (People v. Dixon (1948), 400 Ill. 449, 453.) The legislature’s power to fix penalties is, however, subject to the constitutional proscription which prohibits the deprivation of liberty without due process of law. [Citations.]
‘We have consistently stated that the standard of a proper exercise of the police power is whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare.’ (Heimgaertner v. Benjamin Electric Manufacturing Co. (1955), 6 Ill. 2d 152, 159.)
The test, thus, focuses on the purposes and objectives of the enactment in question.”

The Haron court noted that in amending article 33A, the legislature intended to extend the number of circumstances in which the presence of a weapon is prohibited. Although we are without benefit of legislative history in this area, we believe it is apparent that the legislature intended to remedy the likelihood that violence could occur if a person committed a felony — any felony — while armed with a category I weapon. The remedy designed to void that evil — the penalty of a possible prison term of 6 to 30 years — is not so disproportionate to the seriousness of the offense such that it shocks the moral sense or is cruel or degrading. People v. Lynom; People v. Houston (1976), 43 Ill. App. 3d 677, 357 N.E.2d 184.

We also do not believe that the penalty violates article 1, section 11 of the 1970 Illinois constitution. Defendant urges that the penalty scheme prohibits sentencing alternatives regardless of the violent or nonviolent nature of the act and thereby allows punishments that are disproportionate to the offense. As already noted by this court, the statute’s penalty is directed at the commission of any felony — whether or not it is “violent” — while armed with a category I weapon. The penalty is not designed to remedy the evil of the underlying felony alone, but rather the evil of committing the felony while armed with a category I weapon. It is evident that the legislature intended to proscribe the commission of any felony with such a weapon and believed that the seriousness of this offense warranted the penalty so affixed. In our view, the statute is a proper exercise of police power. The armed violence statute is not unconstitutionally vague. Since defendant was armed with a category I weapon while committing the felony of theft, we necessarily must sustain his armed violence convictions.

II

Defendant next contends that his sentences of ten years for armed violence and four years for theft should be reduced to the respective statutory mínimums of six and two years. We disagree.

In People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541, the Illinois supreme court affirmed its earlier ruling in People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882, that under Supreme Court Rule 615(b)(4), which provides that a reviewing court may reduce the punishment imposed by the trial court, “[t]he standard of review of a sentence claimed to be excessive is whether in fact the trial court exercised its discretion and, if so, whether this discretion was abused.” 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545.

At the sentencing hearing in the instant case, the State argued in aggravation that the stolen property was valued at $4.3 million and that defendant, who was armed heavily, posed a serious danger to the persons involved in the exchange of money and to innocent bystanders. In mitigation, the defense argued that defendant had no prior convictions and was enrolled in a training program. Defendant’s mother testified that he suffered from epilepsy and that her health was poor. Defendant’s step-father testified that the family business would close without defendant’s help.

In accordance with section 5 — 4—1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 4—1(c)), the experienced trial court specified the reasons for the sentences imposed. The trial court emphasized that defendant committed the theft by taking advantage of his employee status at the Art Institute, that defendant was armed during the exchange of money for the paintings, and that the property stolen was worth $4.3 million dollars. As noted in People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882:

“[T]he trial judge is normally in a better position to determine the punishment to be imposed than the courts of review. [Citations.] A reasoned judgment as to the proper sentence to be imposed * * * depends upon many factors, including the defendant’s credibility, demeanor, general moral character, mentality, social environment, habits, and age. [Citation.] The trial judge, in the course of the trial and the sentencing hearing, has an opportunity to consider these factors ‘which is superior to that afforded by the cold record in this court.’ [Citation.]”

Here, the trial judge was charged with the difficult task of fashioning a sentence which would strike the appropriate balance between protection of society and rehabilitation of the offender. It is not our function to serve as a sentencing court, and we will not substitute our judgment for that of the trial court merely because we would have balanced the appropriate factors differently if the sentencing task had been ours. (People v. Cox; People v. Perruquet.) We cannot say that the trial judge abused his discretion.

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

Affirmed.

ROMITI, P. J., and JIGANTI, J., concur.

       This section provides in part:
      “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. ° ° Ill. Const. 1970, art. 1, §11.


author: Mr. PRESIDING JUSTICE ROMITI

text:
    PATRICIA SEMROW, Plaintiff and Defendant-Appellant, v. HARMSWOOD STABLES NORTH, INC., Defendant and Plaintiff-Appellee.
    First District (4th Division)
    No. 80-1567
    Opinion filed September 10, 1981.

      William J. Stevens, of Foss, Schuman & Drake, of Chicago, for appellant.
    Edward J. Egan, Ltd., of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ROMITI

delivered the opinion of the court:

Appellant, Patricia Semrow, brought an action in forcible entry and detainer against appellee, Harmswood Stables, North, Incorporated (Harmswood). Pursuant to an installment agreement for warranty deed Harmswood was a contract purchaser from Semrow of real estate improved with a riding stable. Semrow claimed a forfeiture under the contract because Harmswood allegedly failed to keep the buildings and improvements on the land in good repair and because Harmswood had committed waste on the property. Prior to the filing of this suit Harms-wood filed an action against Semrow for breach of the same contract. That suit was dismissed on Semrow’s motion, and Harmswood subsequently filed an amended complaint for declaratory judgment and other relief. In that amended complaint Harmsvgpod alleged, inter alia, that Semrow had refused to sign certain documents necessary for Harmswood to receive a Small Business Administration (SBA) disaster loan. The proceeds were for repair of damage caused by a severe snowstorm. Harmswood sought a finding that Semrow’s refusal constituted a breach of an implied condition of the contract, that she not interfere with Harmswood’s efforts to repair the buidlings. The two suits were consolidated for trial. The trial court denied Semrow’s motion for judgment on the pleadings on Harmswood’s amended complaint, but after all the evidence on both actions was heard before a jury the court directed a verdict for Semrow on Harmswood’s action. The jury then entered a verdict for Harmswood on Semrow’s suit, denying Semrow the right to possession, and judgment was entered on the verdict.

• On appeal Semrow contends: (1) the jury verdict was contrary to the manifest weight of the evidence; (2) the trial court erred in denying Semrow’s motion for judgment on the pleadings; (3) the jury was incorrectly instructed on the defense of impossibility.

We affirm.

The pertinent evidence at trial was as follows. Semrow purchased the property from Don Peebles in October 1975. Shortly thereafter Harms-wood entered the property under an option to purchase. That option was exercised on April 3, 1976, by a contract which provided, inter alia, that:

“3. Purchaser [Harmswood] shall keep the buildings and improvements on the premises in good repair and shall neither suffer nor commit any waste on or to the premises, and if Purchaser fails to make any such repairs or suffers or commits waste Seller [Semrow] may elect to make such repairs or eliminate such waste and the cost thereof shall become an addition to the purchase price immediately due and payable to Seller, with interest at seven (7) Per Cent per annum until paid.
# e «
11. In case of the failure of Purchaser to make any of the payments, or any part thereof, or perform any of Purchaser’s covenants hereunder, this agreement shall, at the option of Seller, be forfeited and determined, and Purchaser shall forfeit all payments made on this agreement, and such payments shall be retained by Seller in full satisfaction and as liquidated damages by Seller sustained, and in such event Seller shall have the right to reenter and take possession of the premises aforesaid.
# # e
15. The remedy of forfeiture herein given to Seller shall not be exclusive of any other remedy, but Seller shall, in case of default or breach, or for any other reason herein contained, have every other remedy given by this agreement or by law or equity, and shall have the right to maintain and prosecute any and every such remedy, contemporaneously or otherwise, with the exercise of the right of forfeiture, or any other right herein given.”

On August 24,1979, Semrow served on Harmswood a notice of intent to declare a forfeiture under the contract. That notice specified the following breaches of the agreement:

° ° Purchaser has failed to keep the buildings and improvements on the said real estate in good repair and has suffered and committed waste thereon, in that:
(a) the roof of the main stable building over the show room arena has collapsed and has remained unrepaired for over six months;
(b) the outer stall area which was located along the southern wall of the western portion of the main stable building has been destroyed and has remained unrepaired and unreplaced for many months;
(c) parts of the ceilings in the main stable building have fallen in and have remained unrepaired for many months;
(d) the operating system servicing the various buildings (including the electrical and plumbing systems) have become broken down and been rendered useless in significant part and have remained unrepaired for many months;
(e) the structural parts and supports of the various buildings have become weakened, decayed and materially damaged and have remained unrepaired for many months;
(f) the small living quarters structure located immediately to the northwest of the main stable building has been abandoned and become thoroughly dilapidated; and
(g) all of the various buildings and improvements have on the whole become run-down and deteriorated, requiring extensive repairs and maintenance which have been wanting for many months.”

Harmswood was given until October 1, 1979, to make the necessary repairs and replacements. On October 2, 1979, Semrow recorded a declaration of forfeiture which was also served on Harmswood.

Appellant Semrow testified that in August 1975 when she purchased the property its general condition was good. The riding area roof was in excellent shape, the outer stall on the main stable building was in good shape, the ceilings were intact, and the electrical and plumbing fixtures were in good working order. None of the living quarters on the premises were unoccupied. However, by mid-August, 1979, the riding arena roof was “gone,” the main stable was unusable, with debris all over, and there were holes in the ceilings and walls. The plumbing was unusable and although the electrical system still worked it was dangerous, with wires hanging loose. The living quarters in the main stable building were also completely unusable. According to Semrow, between August 1979 and October 1979 no repairs had been made.

Other witnesses for the plaintiff generally corroborated this testimony, with the following significant variations or additions. William Tinkel, a real estate broker who had negotiated the sale of the property, testified that at the time of the sale the condition of the property was fair. He conceded that the main stable could have used some shoring up of the structural parts and supports, but added that with proper maintenance it would still have been there. According to Tinkel there were three dwelling areas on the premises: two houses and one section of the main stable. At the time of the sale all were being lived in. By mid-1979, the only living quarters that were serviceable were those in one house occupied by a maintenance man. Frances Bohle, who had been familiar with the property since 1970, testified that since Harmswood took over there had been a steady deterioration in the main stable which had accelerated in the last two or three years. Ceilings were leaking, and the stalls were not kept in repair. Jean Stevens, who had been familiar with the property since 1961, testified that when the riding area roof collapsed in the snows of January 1979, it also took away one whole inside wall.

On cross-examination Semrow testified that Harmswood was not in arrears on its payments and she had accepted all those payments. She had visited the property over a hundred times since 1975. She first notified Harmswood of her displeasure with the state of the property in August 1979. Semrow never attempted to make the repairs herself and bill the defendant as the contract permitted. She conceded that the riding arena roof collapsed with the snow of January 1979, but maintained that the collapse of the roof on the adjoining main stable preceded the snowstorm. On redirect examination Semrow stated that when she accepted the payments from Harmswood she did not intend to give up her right to have Harmswood maintain the property.

Architect Daniel Lyne inspected the property for Harmswood. He testified that the Quonset hut enclosing the riding arena was probably 20 to 40 years old and was not designed to support a heavy load. The building did not appear to have been maintained for over 10 years. Its galvanized steel, if left unpainted, would rust, and this in turn could weaken the structure. He had seeii some rust on the building. It was Lyne’s opinion that the building was never designed to withstand the amount of snow it received in January 1979. Indeed, he believed that no amount of maintenance by Harmswood would have prevented the damage. According to Lyne, even had the building been new it might have collapsed under the snow load of that winter.

Lyne also inspected the main stable adjoining the riding arena. The stable was about 50 years old and was constructed of wood. The wood had never been treated; the critical time for such treatment was the first 10 years. It had suffered from water damage over the years and was in a final state of decay. It was his opinion that the huge snow load of January 1979 had caused the collapse of the stable’s roof.

Everett McMahon, Morton Grove Building Commissioner, testified that he believed the collapse of the two roofs was due to snow. It was his opinion that the two buildings could not be rebuilt to comply with the applicable building code.

Allen Yore, a licensed architect, also testified that neither building could be repaired to comply with the building code. He also did not believe that the riding arena building could be repaired in any event because the material used when it was first built would be difficult to locate. In his opinion, the Quonset structure over the riding arena could not have withstood the weight of the snow even if the building had been new.

Larry Horn had lived on the property for 12 years. During the last six months before Harmswood took over Horn lived in a residence in the back of the property. That building was not then in good shape. There were holes in the walls and the floor had shifted. After he moved out of that residence it was shut down; the water, heat, and electricity were disconnected. Horn testified to numerous repairs he had made on the Harmswood property since 1975. These included putting new electrical wiring in the riding arena, repairing its walls, and replacing broken boards. According to Horn, the residence area of the main stable was occupied until the collapse of the lean-to adjoining it. It was his opinion that the rotting walls of the main stable could not be repaired; the whole building would have to be replaced.

Bryan Tadish, a handyman at Harmswood, also testified to having done repairs on the main stable since 1975. These included carpentry work, fixing stalls, and making some repairs to walls. He described the condition of the residence Horn had moved out of as very poor in 1975 and the same currently.

Daniel Mackevich, an executive with E. F. Hutton, had boarded horses on the property since 1975. He had observed repairs made on a continuous basis. When portions of the stable came into a state of disrepair they would be taken care of immediately. As to the plumbing, he testified that until the collapse of the stable roof the toilet in that structure had been working.

Also testifying for defendant was its president, Robert Levy. He recalled that when he took over the premises the riding arena structure and the main stable were in dire need of repair. The residence in which Horn and his family were living was not fit as a residence. The windows were not thick enough, there were holes in the walls, and there was insufficient heat. Horn moved into a residence at the front of the property, and Levy shut off the utilities for the old house, locking it up so no one could get in.

According to Levy the Quonset roof collapsed on or about January 2, 1979. The main stable roof collapsed about a week later. Over the years he had made many minor repairs on the premises, doing whatever was necessary. After the collapse of the roofs Levy had several conversations with Semrow about obtaining a snow disaster loan. He had been unable to make repairs to the Quonset structure after he had met with Morton Grove officials. Levy applied for an SBA disaster loan in March 1979. The loan was approved, but he was unable to obtain the money because Semrow refused to sign certain loan documents. The village of Morton Grove indicated informally that if Levy submitted the proper plans to them they would be approved. Levy also testified that he was current in his payments to Semrow.

Defendant Harmswood also introduced the testimony of Vernon Weems, Jr., a branch counsel for the Small Business Administration Disaster Program. He had processed Levy’s application for a loan. A $130,000 loan was approved in September 1979. However, the money was not disbursed because the owner of the property did not sign the necessary documents consenting to the loan and waiving her right to obtain her own loan for the same property.

I

Upon review of this evidence, we find no merit to appellant Semrow’s contention that the jury’s verdict was contrary to the manifest weight of the evidence. There was sufficient testimony which, if believed, established that until the heavy snowfall of January 1979 Harmswood did maintain the property, making repairs as needed. The house formerly resided in by Larry Horn, which Semrow claimed had since “become thoroughly dilapidated,” had, according to Harmswood’s witnesses, remained in the same condition since Harmswood took over the property. It was unsuitable as a residence then and was simply boarded up to prevent unauthorized access. There is no dispute that as a result of the snowfall the main stable and the Quonset structure enclosing the riding arena both fell into disrepair. However, Harmswood contended at trial that repair had become impossible and in any event Semrow by her actions waived her right to claim a forfeiture.

We first consider Harmswood’s claim that performance of its duty to keep the property in repair became impossible after the heavy snowfall. A leading Illinois case on the defense of impossibility of performance is Leonard v. Autocar Sales & Service Co. (1945), 392 Ill. 182,64 N.E.2d 477, cert, denied (1946), 327 U.S. 804, 90 L. Ed. 1029, 66 S. Ct. 968. In that case the court stated:

“[T]he general rule is that where parties, by their own contract and positive undertaking, create a duty or charge upon themselves, they must abide by the contract and make the promise good, and subsequent contingencies, not provided against in the contract, which render performance impossible, do not bring the contract to an end.” (392 Ill. 182,187, 64 N.E.2d 477, 479.)

However the court also indicated that one exception to this general rule is where the event causing the impossibility could not have been anticipated or guarded against in the contract. Leonard, 392 Ill. 182, 189, 64 N.E.2d 477, 480; see Felbinger & Co. v. Traiforos (1979), 76 Ill. App. 3d 725, 394 N.E.2d 1283.

In this cause the jury could have found, as Harmswood argued at trial, that the extraordinary snowfall of the winter of 1978-1979 could not have been anticipated by the parties. The jury could also have believed the testimony of Harmswood’s witnesses tending to establish that Harms-wood could not legally have merely repaired the collapsed structures but would have had to replace them with new buildings in order to comply with the building code. Thus there was sufficient evidence from which the jury could have determined that after the snowfall of 1979 it became impossible for Harmswood to comply with its contractual obligation to repair the buildings on the land, and that impossibility and its causes were not foreseeable by the parties.

Because of our determination of this issue we need not evaluate the sufficiency of Harmswood’s alternative theory at trial, that plaintiff had waived her right to claim a forfeiture.

II

The jury received the following instruction on the defense of impossibility:

“You are instructed that the law in Illinois is as follows: That when the law cast [sic] a duty on a party, the performance shall be excused by an act of God, but when a party, by his own conduct, engages to do an act, it is deemed his own fault or folly that he did not expressly provide in that contract against contingencies and exempt himself from responsibility in certain events; and in such case, that is, in the instance of an absolute or a general contract, the performatice is not excused by inevitable acts or other contingencies, even though the accident or other contingencies was [sic] not foreseen by or was [sic] not within the control of the party.”

Appellant now contends that this instruction was incomplete in that it failed to state that it was Harmswood’s duty to have used all efforts to avoid the impossibility and to employ every alternative means of performance. But at trial Semrow never tendered her own alternative instruction on this issue and consequently she has waived it as a basis for reversal on appeal. (Wolter v. Chicago Melrose Park Associates (1979), 68 Ill. App. 3d 1011, 386 N.E.2d 495; Ill. Rev. Stat. 1979, ch. 110A, par. 366(b)(2)(i).) Moreover, we note that the instruction that was given, apparently drawn from the early case of Bunn v. Prather (1859), 21 Ill. 217, 218-19, is fundamentally deficient in a manner prejudicial to Harmswood. As stated it constitutes a complete negation of the defense; no exception is made for impossibility caused by situations not reasonably foreseeable by the parties. Plaintiff can hardly complain of an instruction which in itself could only have operated to her benefit.

Ill

Finally Semrow contends that the trial court erred in denying her motion for judgment on the pleadings with respect to Harmswood’s declaratory judgment action. She asserts that as the result of the continuation to trial of this action Harmswood was permitted to present evidence that would not have been permitted had only her action remained.

We do not reach the isssue of whether Harmswood’s amended complaint stated a cause of action because we find no prejudice resulted in any event, so that any error was not reversible. (Harris Trust & Savings Bank v. Ali (1981), 100 Ill. App. 3d 1, 425 N.E.2d 1359; Millette v. Radosta (1980), 84 Ill. App. 3d 5, 404 N.E.2d 823.) The evidence which Semrow contends was admitted to her prejudice concerned Harms-wood’s attempts to borrow money from the SBA, evidence of the building code restrictions on repair efforts, and evidence of the snow damage. Clearly, all these matters were also relevant to Harmswood’s claim of impossibility of performance. Accordingly, no prejudice resulted from the admission of this evidence, and we find no basis for reversal on this ground.

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.


author: Mr. JUSTICE JOHNSON

text:
      In re MARRIAGE OF ANTOINETTE MIERLAK, a/k/a Antoinette Warner, Petitioner-Appellee, and JOHN MIERLAK, Respondent-Appellant.
    First District (4th Division)
    No. 80-1605
    Opinion filed September 10,1981.
    Gregory A. Friedman and Susan A. Kimmelman, both of Coffield, Ungaretti, Harris & Slavin, and James T. Friedman, both of Chicago, for appellant.
    Joel S. Chernoff, of Hoffman Estates, and William J. O’Connor, of Chicago, for appellee.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Respondent appeals from the denial of a section 72 petition in which respondent sought to vacate that portion of a judgment that awarded the marital home to the wife petitioner. Respondent raises the following issues for review: (1) whether the trial court erred in ordering conveyance of the property interest of a respondent in default; (2) whether the trial court erred in granting relief greater than the relief prayed for in the pleadings; (3) whether the trial court erred in failing to hear evidence and make findings with respect to the disposition of marital property; (4) whether failure to notify respondent that the proceedings would deal with his property was a denial of due process; and (5) whether the trial court had personal jurisdiction.

We affirm.

The petition for dissolution was filed August 11,1978. The petitioner sought dissolution of marriage, custody of the minor child, and such other relief as the court deemed proper. The petition did not ask for disposition of the marital home. Respondent was served a copy of the summons and petition on September 1, 1978, while he was incarcerated at the Federal Correctional Institute in Lexington, Kentucky. Respondent did not file an answer.

At the proceedings held January 26, 1979, Philip Caloger, attorney, filed an appearance on behalf of the respondent. Caloger stated that he had been engaged by the respondent’s brother to appear on respondent’s behalf. At the proceeding, petitioner was granted leave to amend the petition and substitute “conviction of a felony” as grounds for dissolution. Petitioner gave testimony, requested restrictions on visitation rights, and requested that the marital home at 8100 North Merrill, Niles, Illinois, be awarded to her. Petitioner testified that the home had been purchased 7 years before for $38,000 and had a mortgage of $28,000. Petitioner agreed to assume the mortgage and agreed to forgo maintenance. Personalty consisting of a car, tools, and other belongings of the respondent were transferred to the respondent’s brother for safekeeping.

The petitioner asked leave to file an amended petition to conform the pleadings to the proof. The amended petition, however, was never filed. The judgment of dissolution was entered June 14, 1979. The judgment directed respondent to convey by quit claim deed his interest in the marital residence within 30 days of entry of judgment. If respondent failed to convey, an associate judge of the land title division of the Circuit Court of Cook County would execute a deed.

On November 28, 1979, respondent was released from the Federal Correctional Institute. On December 18, 1979, an associate judge executed a deed to the property. Respondent was not given notice of the conveyance. The property was later sold.

On February 8,1980, respondent filed a petition under section 72 (Ill. Rev. Stat. 1979, ch. 110, par. 72) seeking to vacate that part of the judgment that awarded the marital home to petitioner. Respondent alleged he was not aware that property would be awarded at the proceeding. The relief sought in the pleading was dissolution of the marriage and custody of the minor child. Respondent stated that he did not respond to the petition because he believed the relief requested was all that the court would grant. Petitioner responded to the section 72 petition and requested dismissal on grounds that respondent had notice and was represented by an attorney at the dissolution proceedings. On May 2, 1980, the court denied the section 72 petition. Respondent appeals.

A party must receive notice that his interest in the marital home is involved in the divorce proceeding so that he may have an adequate opportunity to defend his interest in the property at the proceedings. See Graff v. Graff (1979), 71 Ill. App. 3d 496, 389 N.E.2d 1206; Klaisner v. Klaisner (1975), 28 Ill. App. 3d 110, 328 N.E.2d 341.

The basic requirements of procedural due process are notice and opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. See Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 416 N.E.2d 1140; Lescher v. Barker (1978), 57 Ill. App. 3d 776, 373 N.E.2d 1007.

The record shows that respondent received notice of the proceeding when he was served with a copy of the summons and petition while he was incarcerated at the Federal Correctional Institute in Lexington, Kentucky. The adequacy of this notice is not disputed. Respondent contends he was deprived of an opportunity to be heard and defend because the appearance by attorney Philip Caloger was unauthorized. Petitioner contends the appearance by attorney Caloger on behalf of respondent gave respondent adequate opportunity to defend his interest in the marital property.

Generally, where an attorney appears of record for a party, the presumption is that the appearance in such a capacity was duly authorized by the person for whom the attorney appears. (Gray v. First National Bank (1944), 388 Ill. 124, 129, 57 N.E.2d 363, 365.) The presumption, however, is not conclusive and may be rebutted by evidence to the contrary. Zych v. Jones (1980), 84 Ill. App. 3d 647, 651, 406 N.E.2d 70, 74.

In bringing his section 72 petition, respondent claimed that Caloger did not represent him. Caloger had stated to the court on filing his appearance that he had been engaged by respondent’s brother. Yet, respondent did not offer affidavits or testimony from Caloger or respondent’s brother that the appearance was not authorized. Respondent’s statement of denial was all that was offered to rebut the presumption.

This case can be distinguished from People v. Mickow (1978), 58 Ill. App. 3d 780, 374 N.E.2d 1081, on which respondent relies. Mickow lived out of the State and was not personally served. Moreover, the attorney who appeared at the hearing informed the court that he was not the attorney of record and did not represent Mickow.

In the hearing on the section 72 petition, respondent raised an issue of fact. The trial court did not believe that Caloger’s appearance was unauthorized. Where there was no evidence to support a contrary conclusion, we should not substitute our judgment for that of the trial judge who heard and viewed the witnesses. Wood v. Wanecke (1980), 89 Ill. App. 3d 445, 449, 411 N.E.2d 1063, 1066.

Further, where the respondent has been given the opportunity to present evidence through his attorney, the minimum due process requirements have been technically met. (See Milenkovic v. Milenkovic (1981), 93 Ill. App. 3d 204, 416 N.E.2d 1140.) The trial court concluded that respondent was represented by an attorney at the hearing. The attorney participated in the proceedings, cross-examined the petitioner, and acquiesced in the amendment of the pleadings to change the grounds for dissolution. Generally, notice to an attorney is notice to the client and knowledge of an attorney is knowledge of, or imputed to, the client notwithstanding whether the attorney has actually communicated such knowledge to the client. People ex rel. Rogers v. Elrod (1975), 35 Ill. App. 3d 26, 28, 340 N.E.2d 598, 600.

These facts distinguish our case from Klaisner v. Klaisner (1975), 28 Ill. App. 3d 110, 328 N.E.2d 341, on which respondent relies. Klaisner was not represented at the hearing. And, the relief granted was greater than that stated in the prayer of the petition.

We conclude that by his presence and participation, respondent’s attorney had notice that the marital home was awarded the petitioner. Thus, we find no error in the trial court’s denial of respondent’s section 72 petition.

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

Judgment affirmed.

ROMITI, P. J, and JIGANTI, J., concur.


text:
    MARY ANNE FAUST, Petitioner-Appellee, v. ROBERT GENE FAUST, Respondent-Appellant.
    First District (4th Division)
    No. 80-1786
    Opinion filed September 10,1981.
    Rehearing denied October 15,1981.
    John August Cook, P. C., of Chicago (John A. Cook and Mary Walsh Crossett, of counsel), for appellant.
    Leoris & Cohen, of Chicago (Sigi M. Offenback and Rocco A. Romano, of counsel), for appellee.
   Mr. JUSTICE LINN

delivered the opinion of the court;

Robert G. Faust, respondent, appeals from an order entered in the Domestic Relations Division of the circuit court of Cook County directing him to contribute $1500 towards the technical school education expenses of his adult son, Mark Faust.

Respondent contends: (1) the award was improperly granted, having been ordered contrary to the requirements of section 513 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1979, ch. 40, par. 513); (2) the award was improperly granted, having been ordered contrary to the manifest weight of the evidence.

We disagree with respondent’s contentions, and we affirm the trial court.

Factual Background:

After 12 years of marriage, the parties were divorced in 1971. Mary Faust, petitioner, was awarded the custody of the parties’ four minor children. Respondent was obligated to pay the undivided sum of $400 per month towards the children’s support.

Pursuant to court order entered in 1973, respondent was obligated to continue to pay the undivided support allowance of $400 per month for three of the children, one having reached majority. As of February 1979, respondent, without leave of court and without the expressed consent of petitioner, reduced the undivided support allowance to $268 per month for the two remaining minor children, the child Mark Faust having come of majority age.

On August 16, 1979, petitioner, by petition directed to respondent, sought claimed arrearages of support, an increase in the support for the two remaining minors and an order obligating respondent to pay a share of Mark Faust’s education expenses in the automotive technician training course at Wyoming Technical Institute in Laramie, Wyoming.

At a hearing on November 6, 1979, the evidence relating to the requested education allowance disclosed that Mark Faust became 18 years old on January 23,1979. He had graduated from high school earlier that month. On January 24 he began work as a full-time mechanic trainee at a shop where he had previously worked part-time over the last 3% years. He had a gross income of between $203 to $217 per week, owned a motorcycle for which he paid $926 in 1978 and a 1971 Oldsmobile for which he paid $700 in 1979. While working as a mechanic trainee, he saved $1731.

The evidence further disclosed that Mark Faust applied to the Wyoming Technical Institute to attend a six-month automotive technician training course beginning December 1979. He estimated that the course cost would total $3200 plus approximately $300 per month for room and board making a grand total expense of about $5000. Travel, clothing, and incidental expenses were not included in the total cost figure.

Respondent testified that he is employed as an industrial engineer and earns $1925 gross and $1240.75 net, per month. He remarried in 1973 and has one child with his present spouse. It was respondent’s contention that his monthly expenses, including his home mortgage payment of $268 per month, exceeded his net income. He acknowledged receiving $12,000 from the sale proceeds of the home he had owned with petitioner and that he owned securities worth about $500. He also indicated, without specilying the dollar amount, that he had an interest in a profit sharing and pension plan.

Petitioner, who remarried in 1975, has income of about $40 per week from her part-time work as a clerk. No testimony was elicited from her of any other sources of income or property holdings from which she could contribute to the education expenses of Mark Faust.

At the conclusion of the November 6 hearing, the trial court ordered respondent to pay $150 per month per child for the support of the two remaining minor children, a total of $300 per month, rather than the $268 per month that was being paid by respondent. The order also directed respondent to pay $1500 towards the technical school education expenses on behalf of Mark Faust. The claim by petitioner for arrearages growing out of the respondent’s unilateral reduction of the undivided support payments was not ruled upon and the claim appears to have been abandoned by petitioner. (See Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12; Claflin v. Claflin (1980), 82 Ill. App. 3d 246, 402 N.E.2d 673, cert, denied (1980),_U.S__,__The respondent’s motion to vacate the order of November 6, 1979, was denied, and this appeal followed. Respondent’s appeal relates only to the portion of the November 6 order granting the $1500 educational allowance. (On oral argument it was disclosed that Mark Faust attended and successfully completed the six month course at the Wyoming Technical Institute.)

Opinion

I

It is respondent’s position, with which petitioner agrees, that the provision for an award of educational expenses on behalf of an adult child is controlled by section 513 of IMDMA (Ill. Rev. Stat. 1979, ch. 40, par. 513). Section 513 provides as follows:

“The court may award sums of money out of the property and income of either or both parties for the support of the child or children of the parties who have attained majority and are not otherwise emancipated only when such child is mentally or physically disabled; and the application therefor may be made before or after such child has attained majority age. The Court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority' age. In making such, awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including:
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.” (Emphasis added.)

It is respondent’s further position that an educational award is restricted to being paid “out of property” belonging to either or both of the child’s parents as equity may require, and the award cannot be directed to be paid “out of property and income” as in the case of support allowances for an adult mentally or physically disabled child. Respondent argues that the provisions of section 513 must be narrowly and strictly construed, and since the educational expense award on behalf of Mark Faust was not made “out of [respondent’s] property” but was made “out of [respondent’s] property and income” (emphasis added), that the award was improper having been made contrary to the statutory standard.

We disagree with respondent and believe his novel interpretation of the statutory provision is too circumscribed and attenuated. To follow the rationale proposed by respondent is to disregard the additional provisions of section 513 that compels the court to “consider all relevant factors which shall appear reasonable and necessary, including: (a) the financial resources of both parents e Additionally, to accept respondent’s contention is literally to frustrate the intention of IMDMA to foster and provide for the proper educational needs of even adult children. (Ill. Rev. Stat. 1979, ch. 40, par. 102(4).) We believe the words “out of property” as used in section 513 are sufficiently broad and encompassing so as to include income from wages, profit from investments, property holdings and the ownership of other assets and resources of value. (See In re Marriage of Taylor (1980), 89 Ill. App. 3d 278, 411 N.E.2d 950.) We find no merit to respondent’s position.

II

Respondent also urges that even if section 513 of IMDMA authorizes payment of educational expenses on behalf of an adult child, that the award of $1500 towards those expenses was against the manifest weight of the evidence.

Under our statute and relevant case law, no absolute duty exists for a parent to pay the educational expenses of an adult child. Such a duty is created only by a trial court’s order, after hearing on a proper petition, either to enforce an agreement to make such payment or creating the duty to make such payment in accordance with the standards of section 513 of IMDMA. See Greiman v. Friedman (1980), 90 Ill. App. 3d 941, 414 N.E.2d 77.

The trial court here had the discretionary power, based upon the law and the evidence presented, to decide the issue of the respondent’s responsibility to contribute to the technical school expenses of Mark Faust. Our analysis of the evidence indicates quite clearly that the trial court exercised its discretion properly and that its determination is not at all contrary to the manifest weight of the evidence — rather, its ruling is thoroughly supported.

It is apparent that Mark Faust is a young man seriously and responsibly involved in attaining the education necessary to be an expert mechanic. His background of part-time work while attending high school, his saving of a portion of his earnings to pay for the major part of his technical school expenses, and his obvious dedication to become totally independent through his mastery of a technical skill buttresses his worthiness for the modest financial support he requires.

It is also clearly shown in the record that the able and concerned trial court closely evaluated the totality of respondent’s and petitioner’s financial situations and the present family circumstances of each of the parties. (E.g., Gregory v. Gregory (1964), 52 Ill. App. 2d 262, 202 N.E.2d 139; Berkheimer v. Berkheimer (1978), 63 Ill. App. 3d 19, 380 N.E.2d 474 (expenses relating to a second family are relevant, but of “secondary” consideration); Singer v. Singer (1979), 70 Ill. App. 3d 472, 388 N.E.2d 1051.) The trial court related the evidence presented (to which we have alluded already), to the applicable provisions and requirements of section 513 of IMDMA. We cannot, as respondent would have us do, find that the respondent was financially incapable of contributing $1500 towards the educational expenses and find that the trial court’s ruling was contrary to the manifest weight of the evidence. See also Kujawinski v. Kujatoinski (1978), 71 Ill. 2d 563, 376 N.E.2d 1382; In re Marriage of Gardner (1980), 85 Ill. App. 3d 1004, 407 N.E.2d 802; In re Marriage of Coram (1980), 86 Ill. App. 3d 845, 408 N.E.2d 418.

Accordingly, for the reasons set forth, we affirm the decision of the trial court.

Affirmed.

ROMITI, P. J., and JIGANTI, J., concur.


text:
    THE PEOPLE ex rel. DEPARTMENT OF PUBLIC AID, Plaintiff-Appellant, v. LEIDA SANTOS et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-2209
    Opinion filed September 10,1981.
    Tyrone C. Fahner, Attorney General, of Chicago (Ellen P. Brewin, Special Assistant Attorney General, of counsel), for appellant.
    Diane Redleaf, Thomas E. Johnson, and James Potter, all of Legal Assistance Foundation, of Chicago, for appellees.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

The Illinois Department of Public Aid, plaintiff in this cause, appeals from the trial court’s dismissal of its complaint under section 48(1) (c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(l)(c)). The trial court based its dismissal on the presumption that section 48(1) (c) mandated an automatic dismissal of the later filed action when two actions are pending on the same facts.

From this dismissal plaintiff appeals, presenting the following issues for review: (1) whether the State of Illinois and individual State officers and employees are the “same parties” under section 48(1) (c) of the Civil Practice Act; (2) whether the trial court properly granted defendants’ motions to dismiss on the grounds that it lacked discretion to do otherwise; (3) whether section 48(1) (c) of the Civil Practice Act grants a defendant an automatic right of dismissal under its provisions, and whether a time priority rule is incorporated therein; and (4) whether due to Illinois’ substantial and legitimate interest in the litigation, its inability to bring this action as a counterclaim in the Federal action and valid consideration of the State’s sovereign immunity, the trial court should have exercised its discretion and allowed the action to proceed. We affirm.

The litigation between these parties began on September 11, 1979, when Mentalio Taylor, Edna Dodge, and Leida Santos (Federal plaintiffs), all recipients of public assistance, filed a class action lawsuit in the United States District Court for the Northern District of Illinois. Their suit challenges the procedures employed to secure promissory notes from public aid recipients by the collection division of the Illinois Department of Public Aid (IDPA). The promissory notes obligate the recipients to repay alleged overpayments of assistance. The Federal plaintiffs allege that the IDPA has violated and continues to violate various provisions of the Social Security Act, implementing Federal regulations and the United States Constitution, by requiring recipients to execute promissory notes without any notice as to the basis for the IDPA’s overpayment claim, without any opportunity to contest the claim, and without regard for the substantive limits Federal law places on the recovery of overpayments from current assistance grants where the recipient is not at fault. In that suit, the Federal plaintiffs are seeking injunctive relief.

On October 4, 1979, the IDPA was served with the Federal complaint. On October 24,1979, the IDPA sued each of the Federal plaintiffs in the circuit court of Cook County for breach of the promissory notes which are the subject of the Federal proceedings. In each of the complaints the IDPA contended that the respective defendant was a recipient of public assistance and had received excess public assistance. Further, each defendant had agreed to repay the excess assistance and had signed a promissory note to that effect. In return, the IDPA agreed to refrain from filing an action at law to recover the excess assistance. Finally, each defendant had refused to tender payment according to the terms of the agreement.

On December 3, 1979, the IDPA filed a motion for summary judgment in each of the cases. Each defendant objected to the motion and filed a motion to dismiss pursuant to section 48(1) (c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1) (c)) on the basis that each of the defendants had filed a Federal lawsuit on September 11,1979, involving the promissory notes at issue herein. Also, defendants claimed that the State court actions on the promissory notes were compulsory counterclaims to the Federal action. On March 14,1980, the trial court entered an order consolidating all three cases. On June 25, 1980, the trial court granted defendants’ motion to dismiss. Plaintiff appeals from that order of dismissal.

The instant controversy involves the construction to be given to section 48(1) (c) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1) (c)). It provides, in part, as follows:

“(1) Defendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:
# # e
(c) That there is another action pending between the same parties for the same cause.”

Plaintiff contends that the Federal defendants Jeffrey Miller and Alice Cooperman in Taylor v. Miller, 79 C 3767, are not the same parties as the Department of Public Aid in this forum. Consequently, the requirement of section 48(1) (c) that the “same parties” be involved is not met.

“In statutory construction, it is a rule “ * 0 that where the same, or substantially the same, words or phrases appear in different sections of a statute, they will be given a generally accepted and consistent meaning where legislative intent is not clearly expressed to the contrary. [Citations.] Therefore, a word that appears more than once in a statute is presumed to have been used by the legislature with the same meaning each time, absent an indication that a different meaning was intended. [Citations.] This being so, the word ‘same’ as it modifies ‘parties’ in the first part of section 48(1) (c) must be given the same meaning it has when it modifies ‘cause.’ We conclude that in the section in question, ‘same parties’ means that in consecutive suits, the litigants are substantially the same, not identical.” Baker v. Salomon (1975), 31 Ill. App. 3d 278, 281-82, 334 N.E.2d 313, 316.

In Roeskie v. First National Bank of Lake Forest (1980), 90 Ill. App. 3d 669, 673, 413 N.E.2d 476, 479, citing Skolnick v. Martin (1964), 32 Ill. 2d 55, 59-60, 203 N.E.2d 428, 429, and Baker, at 282, the court said:

“Section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48(1) (c)) provides as a ground for dismissal ‘that there is another action pending between the same parties for the same cause.’ The words ‘same cause’ and ‘same parties’ have been construed to mean substantially the same, but not identical. Actions are for the ‘same cause’ when in both cases the relief requested is on substantially the same set of facts.”

With the above meaning in mind, we find that the same parties and the same cause of action are involved in the Federal suit as well as the instant case.

Plaintiff contends the trial court erroneously based its decision to grant the section 48(1) (c) motion on the belief that Illinois law as enunciated in Gerber v. First National Bank (1975), 30 Ill. App. 3d 776, 332 N.E.2d 615, mandated an automatic dismissal of the later filed lawsuit. Plaintiff maintains that A. E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 419 N.E.2d 23, has overruled Gerber by holding that both actions having the same parties and the same cause can proceed. We disagree. Staley is factually distinguishable from Gerber. Staley involved breach of contract actions by the same parties regarding a construction contract entered into in Illinois and performed in Iowa. Swift and Company sued Staley Manufacturing Company in an Iowa State court. On the same day, Staley sued Swift in an Illinois State court. Thereafter, Swift filed in the Illinois action a motion to dismiss for forum non conveniens. The circuit court denied the motion, finding that both parties’ principal offices are in Illinois and that, under the terms of the contract, Illinois law would govern interpretation of the agreement. The appellate court affirmed. Subsequently, Swift filed a second motion to dismiss' relying on section 48(1) (c) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 48(1) (c)) by claiming that the prior filing of the Iowa action required dismissal of the later Illinois action. The circuit court granted the motion to dismiss. On appeal, the appellate court reversed and held that the respective filing time of the actions should be disregarded and that the section 48(1) (c) motion called for the exercise of the court’s discretion.

The Illinois Supreme Court granted leave to appeal. The court emphasized that Staley had shown a legitimate and substantial relationship of the litigation to Illinois and that the other action is pending in the courts of a sister State, over which the Staley court had no say. Further, the court indicated that the purpose of section 48(1) (c) is to avoid duplicative litigation, and the trial court’s analysis should be geared toward effectuating that purpose. Most importantly, the supreme court held that the circuit court possesses some degree of discretion in ruling upon the section 48(1) (c) motion and that multiple actions in different jurisdictions, but arising out of the same operativé facts, may be maintained where the circuit court, in a sound exercise of its discretion, determines that both actions should proceed. Therefore, due to Illinois’ legitimate and substantial relation to the litigation, the section 48(1) (c) motion was denied. However, unlike Staley, the instant case does not involve multiple jurisdictions.

From the above analysis of Staley, we find that the trial court did not err by granting the section 48(1) (c) motion regardless of its particular reasons. We may affirm the judgment of a trial court if it is justified in the law for any reason or ground appearing in the record regardless of whether the particular reasons given by the trial judge, or his specific findings, are correct or sound. Continental Grain Co. v. FMC Corp. (1975), 27 Ill. App. 3d 819, 823, 327 N.E.2d 371, 375.

Finally, plaintiff contends that according to Staley, dismissal under section 48(1) (c) is not an automatic right and that a time priority rule is not incorporated within the statute. Moreover, due to Illinois’ substantial and legitimate interest in the litigation, the trial court should have exercised its discretion by denying the section 48(1) (c) motion.

Plaintiff is correct in his assertion concerning Staley. But, the essence of the Staley analysis concerns an Iowa action for recovery and indemnity against a third-party guarantor versus an Illinois action for breach of contract; to that extent, Staley is limited. The Staley court based its denial of the section 48(1) (c) motion on the fact that the litigation had more of a legitimate and substantial relation to Illinois than to Iowa, and that dismissal of Staley’s action would force Staley to seek relief by way of a counterclaim in Swift’s Iowa action. On that basis, both actions could proceed.

Further, the Staley court indicated that the time of filing of an action does not determine whether it will be dismissed under section 48(1)(c). The determinative factor under section 48(1) (c) is whether the “same parties” and the “same cause” are involved. If multiple jurisdictions are involved, then the trial court may apply the Staley analysis to ascertain whether Illinois has a legitimate and substantial relation to the litigation.

We hold that the trial court did not err by granting the section 48(1) (c) motion in the instant case.

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

Judgment affirmed.

ROMITI, P. J., and JIGANTI, J, concur.


author: Mr. JUSTICE JIGANTI

text:
    TOM B. STUART, Plaintiff-Appellant, v. LESTER B. NIEMANN et al., Defendants-Appellees.
    First District (4th Division)
    No. 80-2574
    Opinion filed September 10,1981.
    Dan Walker, Jr., of Chicago, for appellant.
    Anthony J. Ventrella, of Chicago, for appellees.
   Mr. JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Tom B. Stuart, brought this action against the defendants, Lester B. Niemann and the Cook County Employees’ and Officers’ Annuity and Benefit Fund (the Fund), to enjoin the Fund from paying benefits to Lester Niemann, the widower of Bess Niemann, a former Cook County employee and Fund contributor. After a bench trial judgment was entered in favor of the defendants. Stuart appeals contending that although Lester Niemann was legally married to Bess Niemann at the time of her death, he was not her widower for purposes of article IX of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. 108*2, pars. 9 — 101 to 9 — 238) (The Code). Bess Niemann was Stuart’s mother.

Bess Niemann designated Stuart as beneficiary of any refund of amounts accumulated in her annuity account at the time of her death. The parties agree that under section 9 — 166 of the Code the designated beneficiary is not entitled to a refund if there is a surviving widow (Ill. Rev. Stat. 1979, ch. IO8J2, par. 9 — 166) or widower (Ill. Rev. Stat. 1979, ch. IO8.2, pars. 9 — 108.2, 9 — 149.1).

Lester Niemann and Bess Niemann were married in 1958. They separated in 1966 and did not live together from that time until Bess Niemann’s death in 1978. During the period of their separation Bess Niemann supported herself entirely. When Lester and Bess Niemann did things together, such as going out to dinner or taking a vacation, the expenses were split equally.

In August 1978, the Niemanns transferred their marital residence from Bess Niemann and Lester Niemann to Bess Niemann and Tom Stuart. Lester Niemann was paid $25,000 as consideration. When title was transferred Lester Niemann stated “well, I guess that’s that. All is divided and done.” Bess Niemann’s will provides in part:

“I make no provision for my husband, Lester W. Niemann, because we have, prior to the execution of this, My Last Will and Testament, made a division of our property between us, and by reason thereof, he is not now in need of my bounty.”

Stuart contends that although Lester and Bess Niemann were married at the time of Bess Niemann’s death, Lester Niemann is not Bess Niemann’s widower for purposes of the Code. He claims that the Code was intended to benefit the family of the deceased and that since Lester Niemann was no longer a part of Bess Niemann’s family in the sense that he no longer lived with her, was not reliant upon her for support, and was not looking to her for support in his later years, he was not entitled to receive support under the statute. He also claims that to allow Lester Niemann to collect as widower would be to thwart Bess Niemann’s intent as manifested by the language in her will, Lester Niemann’s statements when he transferred his interest in the marital home to Stuart, and the fact that Bess Niemann named Stuart as “designated beneficiary.”

Under the Code, an employee’s widow or widower is entitled to an annuity from the employee’s annuity account. (Ill. Rev. Stat. 1979, ch. 10812, par. 9 — 137 et seq.) While several exceptions are provided (such as where the widow did not marry the employee until after the employee’s 65th birthdáy or where the widow remarries (Ill. Rev. Stat. 1979, ch. 10812, pars. 9 — 148, 9 — 149)), there is nothing in the Code which remotely suggests that the widower loses his right to an annuity on the basis of the intent of the employee or the fact that the employee and the widower were, in the plaintiff’s words, “married in name only.”

Where statutory language is certain and unambiguous it is our duty to enforce it as enacted. (Board of Education v. Cronin (1979), 69 Ill. App. 3d 472, 388 N.E.2d 72.) Since the language of the Code is unambiguous there is no need for construction to ascertain its meaning. It provides that an employee’s widow or widower is entitled to an annuity. Here it is admitted that Lester and Bess Niemann were married at the time of her death. We therefore can only cotaclude that Lester Niemann is Bess Niemann’s widower. The legislature set forth the applicable law and we cannot depart from its clear statement. (Young v. Board of Trustees (1978), 57 Ill. App. 3d 689, 373 N.E.2d 708.) Lester Niemann was Bess Niemann’s widower and the statute leaves no room for us to carve out an exception to his entitlement to an annuity on the grounds asserted.

Stuart also argues that under section 1 of “An Act in relation to married men and women” (Ill. Rev. Stat. 1975, ch. 68, par. 22 (repealed)), Lester Niemann would not have been entitled to receive support from Bess Niemann if she were living because he had abandoned or deserted her and that therefore Niemann does not qualify as a widower entitled to benefits. Even if it were the law that a widower is not entitled to benefits under the Code unless he establishes that he would have been entitled to support during the contributor’s lifetime, Stuart’s argument would fail. Chapter 68 has been repealed, and when its provisions were reenacted under the Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.), the provision upon which Stuart relies, that persons who live separate from their spouses “without their fault” are entitled to support, was deleted.

Accordingly the judgment of the circuit court is affirmed.

Affirmed.

JOHNSON and LINN, JJ., concur.