author: PRESIDING JUSTICE SEIDENFELD JUSTICE LINDBERG,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRADLEY WITTE, Defendant-Appellant.
    Second District
    No. 82—44
    Opinion filed May 20, 1983.

      LINDBERG, J., dissenting in part.
    Randolph G. Cook, of Rockford, for appellant.
    Daniel D. Doyle, State’s Attorney, of Rockford (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Following a jury trial, Bradley Witte was convicted of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11 — 1) and sentenced to six years’ imprisonment. He appeals, contending that he was not proved guilty beyond a reasonable doubt. Alternatively, he contends that he was denied his right to an impartial jury and that evidentiary rulings deprived him of a fair trial.

The complaining witness, Cornelia Davis, was 26 and had been acquainted with the defendant, who was 27, for a little more than a year at the time of the incident. She testified that they lived in adjoining apartment complexes on the second floor, and had dated for about two weeks at the end of June and beginning of July 1980. They had been “intimate” previously, the last time being in the fall of 1980. The defendant had terminated the relationship which, Davis said, upset her.

On Friday, May 22, 1981, the complainant went unaccompanied to a bar at approximately 10 p.m. and stayed until closing time, at about 12:30 a.m. She drank four “doubles” consisting of vodka and grapefruit juice at the bar and became intoxicated. She asked around if there was a party after closing time and met defendant, who said that he did not know of any party but that she could come over to his apartment for a while. She gave him a “short” hug and a “peck” on the cheek because they were friends. She bought a six-pack of beer and they went to defendant’s apartment.

In defendant’s apartment she and the defendant sat on the couch after defendant turned on some music. He started to kiss her but she pushed him away. There was “minor” struggling which broke off when she went to the bathroom. She then went to leave, and was outside the defendant’s apartment about to close the door behind her when the defendant, who had been outside relieving himself, “pushed” her back inside and told her to sit down. He forced his body onto hers, by which she meant that he was rubbing his genitals against her body. Both were then fully clothed. She struggled and screamed, at which point defendant started to hurt her by tightening his grip on her wrists. She struck defendant on his head with her fist, defendant got “very angry,” flipped her over and got on top with his hands on her throat, strangling her. She pushed but could not breathe. Defendant released her throat, but started hitting her on her chest and. across her face with the back of his hand, but not with his full force. He said he loved her, then said that he couldn’t stand her. She was afraid the defendant would choke her again, and “was actually scared that he was going to kill” her; and “to get out of it” she went into his bedroom with him. The defendant never demanded intercourse; inside the bedroom she disrobed. She testified that they then had intercourse without her consent. Although defendant at first refused to let her go until she “begged,” afterward she went into the bathroom, cried, and after a while, heard the defendant snore. She dressed quickly, leaving behind her shoes in the living room, and went to her apartment, which was one or two minutes away, where she stayed “a while.” Five to ten minutes after she got to her apartment, she phoned Scott Drake, who lived upstairs with Terri Hart, and told Drake that she had been raped. Drake and Hart went downstairs to her apartment where they stayed with her the rest of the night. When they arrived, the complainant was crying, shaking violently, sometimes screaming, near shock and hysterical. She repeated that she had been raped by defendant and that she wanted to hurt him for what he had done to her. She told Hart that defendant was yelling at her “about taking speed,” which she denied having taken for “months back.” Hart said that the complainant could not understand defendant’s accusation since he said he had taken speed earlier that day, which the complainant thought was unusual for him. She stopped the complainant from returning to the defendant’s apartment with a knife. Drake called the police approximately 2V2 hours after arriving.

On cross-examination she denied they fought partly because defendant accused her of taking speed. She admitted that she said on June 12 that she didn’t think that she had grounds for rape, but she thought this was because she had had intercourse with defendant before that night.

An investigating officer testified that on arriving at defendant’s apartment early that morning, defendant’s living room was in disarray, with a planter tipped over and dirt scattered on the carpet, and a coffee table out of position. He had some difficulty waking defendant, who appeared intoxicated.

The examining physician, Dr. Bertrund, testified that there were “significant marks” about the victim’s neck, and bruises on the wrist and one knee. There was additional testimony that stains found on her jeans could have been blood, but the test was inconclusive.

The defendant did not testify.

I

The defendant urges that the testimony of the complainant confirms that the sexual intercourse was with her consent and that the evidence does not prove rape beyond a reasonable doubt.

Where a rape conviction turns on the complainant’s testimony, it must be clear and convincing, or corroborated by other evidence. (People v. Wilcox (1975), 33 Ill. App. 3d 432, 436.) When the victim retains the power to resist, voluntary submission, however reluctant, constitutes consent. (People v. Rossililli (1962), 24 Ill. 2d 341, 347; People v. Jones (1975), 28 Ill. App. 3d 896, 899.) No definite standard fixes the amount of resistance which the complainant must offer (People v. McCann (1979), 76 Ill. App. 3d 184, 186), and resistance is unnecessary where it would be futile or endanger the victim, or where she is overcome by superior strength or paralyzed by fear. (People v. Clarke (1971), 50 Ill. 2d 104, 109; People v. Smith (1965), 32 Ill. 2d 88, 92.) The reviewing court will not set aside a verdict of rape unless the evidence is so palpably contrary to the finding or so unreasonably improbable or unsatisfactory that there is a reasonable doubt as to the guilt of the accused. People v. Reese (1973), 54 Ill. 2d 51, 57-58; People v. Wilcox (1975), 33 Ill. App. 3d 432, 436.

In this case complainant’s testimony clearly shows resistance. While on the couch she pushed defendant away; she tried to leave defendant’s apartment but was pushed back inside by defendant; she struggled and screamed when defendant’s genitals came in contact with her; she struck his head with her fist, but he was on top and choked her, then struck her across the face with the back of his hand. True she did “elect” to go into defendant’s bedroom where she disrobed, but this was only after defendant had choked her and she said she was afraid defendant would actually kill her. In this view, further resistance would have endangered her safety.

Defendant finds “dangerous parallels” between the case at bar and People v. DeFrates (1965), 33 Ill. 2d 190, 195-96, where the supreme court reversed a rape conviction for insufficient corroboration of force by defendant and against the victim’s will. Here by contrast, there was corroborating medical testimony indicating “significant” marks on her neck, and bruises on her wrist and on one knee. She said she was bleeding from two knuckles on her left hand, and stains found on her jeans were consistent with blood. The investigating officer on arrival found the defendant’s living room in disarray. Neighbors testified that she was crying, shaking violently, and near shock when they arrived at the complainant’s apartment. Significantly unlike the defendant in DeFrates, defendant here concedes that there was violence. DeFrates thus is distinguishable on the basis of medical testimony and corroborating circumstances. Also, the defendant in DeFrates directly testified as to the victim’s consent, whereas here defendant chose not to testify; therefore, the complainant’s testimony in this case was not directly controverted.

Where, as here, the victim has resisted but further resistance could endanger her safety, the fact that the complainant went into the bedroom and removed her own clothes without being asked and did not continue to resist does not establish voluntary submission in view of the prior show of force. (People v. Houck (1977), 50 Ill. App. 3d 274, 283; People v. Jones (1975), 28 Ill. App. 3d 896, 900.) The defendant’s assertion that she had the physical power to resist in the bedroom is unsupported. The fact that she asked defendant “why didn’t you tell me before that you liked me?” when he said he loved her, before going to his bedroom without a verbal threat, appears adequately explained by her testimony, which the jury apparently believed, that she was scared that defendant would kill her. (Cf. People v. Jones (1975), 28 Ill. App. 3d 896, 898-900 (victim who said “let’s get on with it,” and first suggested that defendant take off his pants did not consent to intercourse where she explained that she “got really scared” and thought defendant would change his mind if she frightened him).) That there was a prior consensual relationship must be taken into account (People v. Mangiaracina (1981), 98 Ill. App. 3d 606, 610; see also Ill. Rev. Stat. 1981, ch. 38, par. 115 — 7) but did not give defendant the license to force sexual acts which defendant testified on this occasion were against her consent. (People v. Wilcox (1975), 33 Ill. App. 3d 432, 436.) Finally, the fact that the complainant let herself out of defendant’s apartment after intercourse while defendant slept is consistent with rape, contrary to defendant’s assertion, since it- would amount to escape at first opportunity. (People v. Secret (1978), 72 Ill. 2d 371, 378.) Her prompt complaint shortly thereafter was further corroboration of her testimony. People v. Edmond (1979), 76 Ill. App. 3d 540, 546.

Where the act of sexual intercourse is not questioned, as here, the accused inherently is vulnerable to conviction on the basis of facts, known only to the complainant and the accused, which if accorded a slightly different interpretation could establish either guilt or innocence. (People v. Faulisi (1962), 25 Ill. 2d 457, 461; People v. Porter (1973), 13 Ill. App. 3d 893, 898.) For this reason the testimony of the complainant is required to be clear and convincing or independently corroborated. The complainant’s testimony was here independently corroborated by circumstances indicating that a struggle took place in defendant’s apartment, and her testimony, which the defendant could not directly controvert, was neither incredible nor improbable, but clear and convincing. In this view, defendant was proven guilty of rape beyond a reasonable doubt over his contention that the victim consented.

II

In seeking a new trial, the defendant claims that the trial court erred in admitting the testimony of her statements to others that she had been raped and the testimony of these other witnesses as to her claim. The defendant argues that the victim’s complaint of rape occurred only after there had been time for reflection and thus that it should not have been admitted over his objection at trial as an exception to the hearsay rule. He also argues that the repetition of these statements in the testimony of the witnesses Drake and Hart enhanced the prejudicial effect of the error.

Statements of the victim of rape may qualify either as an excited utterance or as a corroborative complaint if promptly made. (See E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 611.15, at 321-22 (3d ed. 1979).) On direct examination the complainant testified that when she first telephoned Scott Drake she said that she needed help, that she had been raped. The fact that she made complaints of the offense, upon returning to her apartment, without any inconsistent or unexplained delay but at first opportunity, was admissible on direct examination to corroborate her testimony where, as here, the name of the accused or details had not been disclosed. People v. Collier (1978), 66 Ill. App. 3d 1007, 1011; People v. Wilcox (1975), 33 Ill. App. 3d 432, 437.

In the testimony of Drake and Hart, the complainant identified defendant as her rapist; these hearsay declarations were admissible, if at all, only as an excited utterance or spontaneous declaration. The requirements for admissibility under this hearsay exception are: (1) the occurrence of an event or conditions sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) a statement relating to the circumstances of the occurrence. (People v. Robinson (1978), 73 Ill. 2d 192, 199.) Some latitude exists regarding the permissible lapse of time between the event and the statement, the question being whether the statement was made while the excitement of the event predominated. Lapse of time is but one factor to be considered by the court in reaching an answer in the particular case. (E. Cleary & M. Graham, Handbook of Illinois Evidence sec. 803.3, at 427 (3d ed. 1979).) The single question “what happened” does not disqualify an utterance that is otherwise voluntary and spontaneous. People v. Damen (1963), 28 Ill. 2d 464, 472.

By defendant’s own reckoning in his brief, 17 minutes elapsed between the act of intercourse and complainant’s telephone conversation with Drake; another five minutes elapsed between then and Drake’s and Hart’s arrival at her apartment. The unimpeached testimony of both Drake and Hart was that the victim during this time was crying, shaking violently, sometimes screaming, near shock and hysterical; and that her complaint of rape identifying the defendant was spontaneous rather than a recital of events elicited from questions propounded to her. In these circumstances it does not appear that the trial court erred as from their testimony the excitement of the event appeared to predominate, the prosecuting witness not having regained her faculties for reflection. People v. Kilgore (1976), 39 Ill. App. 3d 1000, 1005 (victim’s statement to friend 20 minutes after attack properly admitted as spontaneous declaration of rape).

However, even if the victim’s later declaration to Drake and Hart was too remote, the testimony was merely cumulative of the facts in evidence, defense counsel vigorously cross-examined the victim, and her testimony was circumstantially corroborated by the examining physician and the investigating officer who testified as to evidence of a struggle in defendant’s apartment. Therefore, the error, if any, was harmless. People v. Robinson (1978), 73 Ill. 2d 192, 199-200 (declaration made SVe hours later not spontaneous but admission was harmless); People v. Wilcox (1975), 33 Ill. App. 3d 432, 437 (utterance made IOV2 hours later not spontaneous but admission was harmless).

Ill

The further contention of defendant that he was deprived of an impartial jury requires us to consider the following circumstances relating to a juror, Gerald Devine.

During voir dire the trial court addressed questions to the jury as a group which included Devine. Among other questions, the court asked whether any prospective jurors had any friends or relatives on the police force. Several of the jurors related their acquaintance with policemen or deputies. Three of the jurors who had stated some acquaintance with the police were taken on the jury; one juror who stated that her husband had been a classmate and she and her husband were social friends of a policeman in Rockford, but that this would not interfere with her judgment of the case, was excused for cause. Juror Devine, however, did not come forward. He later became foreman of the jury.

Defendant in his motion for a new trial alleged that Devine concealed the fact “that he had acquaintances and friends employed by the Winnebago County Sheriffs Department in an attempt to conceal prejudice in that respect in favor of the prosecution.” The further allegation was made that Devine stated during the jury’s deliberations,

“Let’s get this thing over with. If the defendant is not guilty he can always get the case reversed on appeal.”

In the hearing before the court on the motion for a new trial defendant’s counsel sought permission to elicit testimony from Devine and another juror. In response to the State’s argument that it is improper to inquire as to a juror’s motives, methods or process of deliberation (People v. Holmes (1978), 69 Ill. 2d 507, 511-12; People v. Preston (1979), 76 Ill. 2d 274, 288), defendant’s counsel responded that the testimony as to Devine’s comments during deliberations was being offered only as an extraneous matter for the purpose of showing the tainting of the jury process and not as an inquiry into the reasons of the jury’s decision.

The court refused to permit Devine or another juror whom defense counsel had subpoenaed to be called and ruled that he was relying on the general rule that an inquiry could not be made into the reasons for a jury’s decision and further found that there was no showing of actual prejudice in the failure of Devine to disclose his acquaintance.

The burden of showing that a juror has a disqualifying state of mind rests with the party challenging the jury. (People v. Cole (1973), 54 Ill. 2d 401, 413; People v. Tribett (1981), 98 Ill. App. 3d 663, 678.) Relying on Cole, the State contends that the juror’s failure to disclose cannot be prejudicial where he could not be removed for cause as a matter of law if he had disclosed such alleged contacts with the county sheriff’s department. (See also People v. Levine (1981), 99 Ill. App. 3d 141, 164-65.) In Cole, the juror candidly disclosed his contacts, and the trial judge was in the position to weight his voir dire examination in which he said that his prior contacts would not influence him. Here there was no opportunity furnished to weigh the evidence.

The State also argues that mere conjecture cannot be considered as a proper basis for a claim of prejudice. (People v. Singletary (1979), 73 Ill. App. 3d 239, 247.) The State notes that defendant accepted other jurors who had admitted on voir dire that they had friends or relatives who are members of the Rockford police department. Further, that Devine’s failure to disclose might have been inadvertent if he did not hear the court’s question to the panel of 12, and that Devine was extensively interrogated by both counsel before he was accepted. The record does not indicate whether defendant had exhausted his peremptory challenges, but it appears unreasonable to conclude that no actual prejudice could have existed where defendant had not been allowed to present any testimony or affidavits which, if believed, would establish juror disqualification.

Where a defendant does not learn of facts which might support a finding of partiality by a juror until after a verdict, a post-trial evidentiary hearing may be necessary to permit defendant to prove actual bias. (See Remmer v. United States (1954), 347 U.S. 227, 228, 98 L. Ed. 654, 655, 74 S. Ct. 450, 451; Smith v. Phillips (1982), 455 U.S. 209, 215, 71 L. Ed. 2d 78, 85, 102 S. Ct. 940, 945.) The intention of the juror at the time of voir dire is, for these purposes, of little importance if important circumstances remain undisclosed. (Accord, People v. Graham (1978), 84 Mich. App. 663, 668, 270 N.W.2d 673, 676.) It is, however, incumbent on the movant to introduce or to offer in support of the new trial motion distinct evidence of partiality by affidavit or juror testimony. (See Glasser v. United States (1942), 315 U.S. 60, 87, 86 L. Ed. 680, 708, 62 S. Ct. 457, 472.) In all cases, the allegations must be sufficiently specific, detailed, and nonconjectural so that the fact of prejudice is raised; but any doubt should be resolved in favor of granting the evidentiary hearing. McCoy v. Goldston (6th Cir. 1981), 652 F.2d 654, 657, 659.

Here, the hearing on defendant’s new trial motion could not be considered a meaningful inquiry where the trial judge refused to hear testimony on allegations which, if true, would require a new trial. (See United States ex rel. Tobe v. Bensinger (7th Cir. 1974), 492 F.2d 232, 238.) Moreover, by refusing to hold an evidentiary hearing on factual issues raised in defendant’s motion, the trial court failed to develop an adequate record upon which to base its finding of no “actual prejudice,” rendering meaningful appellate review of its finding of fact impossible. (Cf. Schultz v. Rockwell Manufacturing Co. (1982), 108 Ill. App. 3d 113, 120 (where trial court declined to hold post-verdict evidentiary hearing on defendant-corporation’s motion, based on possible juror bias against defendant in products liability action, appellate review of supporting affidavits would not be denied where trial judge created “inadequate” record).) We recognize that this case does not involve a presumptively prejudicial private conversation by a third party with a juror (see United States ex rel. Tobe v. Bensinger (7th Cir. 1974), 492 F.2d 232, 238; Remmer v. United States (1954), 347 U.S. 227, 228, 98 L. Ed. 654, 655, 74 S. Ct. 450, 450-51) and that there is no similar presumption of prejudice where the juror fails to disclose facts on voir dire. (People v. Hunt (1983), 112 Ill. App. 3d 138, 141.) We also recognize the difficulty of proving a case of juror bias particularly when it arises from possible acquaintance with a police officer. It does not follow that a hearing should therefore be refused. As one Supreme Court justice has noted:

“A hearing permits counsel to probe the juror’s memory, his reasons for acting as he did, and his understanding of the consequences of his actions. A hearing also permits the trial judge to observe the juror’s demeanor under cross-examination and to evaluate his answers in light of the particular circumstances of the case.” (Smith v. Phillips (1982), 455 U.S. 209, 222, 71 L. Ed. 2d 78, 89, 102 S. Ct. 940, 948 (O’Connor, J., concurring).)

A new trial must be granted when either the juror admits bias (see, e.g., People v. Cravens (1941), 375 Ill. 495, 498) or the trial judge, after a hearing, makes the pragmatic judgment that there exists a substantial possibility that the juror has unconsciously favored one side. McCoy v. Goldston (6th Cir. 1981), 652 F.2d 654, 659.

We accordingly vacate the judgment and remand to the trial court for the purpose of conducting a hearing to determine whether the juror had friends in the county sheriff’s department, the extent to which his friendships, if any, may have influenced the juror and the prejudice, if any, to the defendant. We find no merit in defendant’s other claims of reversible error and conclude that the evidence proves defendant’s guilt beyond a reasonable doubt. Therefore, in the event after a hearing the trial court determines that the claim of juror misconduct does not entitle defendant to a new trial, the conviction and sentence will be reinstated; otherwise defendant must, be afforded a new trial. See People v. Holiday (1970), 47 Ill. 2d 300, 311.

Vacated and remanded with directions.

HOPF, J., concurs.

JUSTICE LINDBERG,

dissenting in part:

I dissent from the majority opinion to the extent that I do not believe defendant was proved guilty of rape beyond a reasonable doubt as a matter of law. I would affirm the trial court as to defendant’s other contentions of error. I would reverse defendant’s conviction for rape and reduce the degree of the offense to aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(a)), and remand the cause for sentencing pursuant to our authority under Supreme Court Rule 615(b) (87 Ill. 2d R. 615(b)).

The State’s proof of the commission of the offense of rape was largely through the testimony of the complaining witness. That proof establishes beyond a reasonable doubt that defendant’s choking and striking of the victim was aggravated battery. However, there was no proof whatever that defendant possessed the necessary general mental state of intent to have intercourse forcibly and against the will of the female.

Clearly, from the female’s standpoint, the act was forcible and against her will. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1(a).) However, it is the mental state of the defendant that must be established. Rape requires proof of the defendant’s general intent to commit the offense. This is satisfied by proof of intent, knowledge or recklessness. (Ill. Rev. Stat. 1979, ch. 38, pars. 4 — 3, 4 — 4, 4 — 5, 4 — 6, 11 — 1; People v. Farrokhi (1980), 91 Ill. App. 3d 421.) Rape is not an absolute liability offense. (Ill. Rev. Stat. 1979, ch. 38, par. 11 — 1(a); People v. McMullen (1980), 91 Ill. App. 3d 184.) The criminal intent must be a direct and specific intent to commit the offense charged. (People v. Connors (1912), 253 Ill. 266.) Criminal liability, with the exception of strict liability crimes, is dependent upon the simultaneous occurrence of defendant’s requisite mental state and the criminal act. People v. Taylor (1979), 68 Ill. App. 3d 680.

Even an indecent assault, however aggravated, will not warrant conviction of assault with intent to commit rape without proof of an intention to have intercourse with a woman by force and against her will. (People v. Hiller (1955), 7 Ill. 2d 465; Barr v. People (1885), 113 Ill. 471.) While these cases relate to the offense of assault with intent to commit rape (see Ill. Rev. Stat. 1979, ch. 38, par. 8 — 4(a)), that offense includes every element of the crime of rape except penetration (People v. Stagg (1963), 29 Ill. 2d 415), and the same principle should therefore pertain to the mental state requirement of the defendant for forcible intercourse against the will of the female.

The complaining witness’ testimony in this case reflects that she approached defendant in the tavern, hugged him, gave him a “peck” on the cheek and inquired if he knew of any parties. He knew of none but suggested they go to his apartment only one building removed from her apartment, and a short distance from the tavern. She purchased a six-pack of beer and they went to his apartment, turned on the music, and she had a beer while they sat on the couch. The majority opinion adequately describes the activities that then occurred and it is obvious and uncontradicted that she suffered a significant criminal battery and was restrained in her efforts to leave the apartment.

Nonetheless, crediting her testimony completely, her evidence fails to show a nexus between the fight and defendant’s attack upon her and the act of intercourse so as to establish defendant’s criminal liability for the offense of rape. As the majority acknowledges, defendant never demanded intercourse although she maintained the intercourse was without her consent. She testified that after the fight she got up and went into the bedroom, took her clothes off and got into bed; defendant followed her into the bedroom and similarly disrobed and got into bed and, with no resistance by her, they had intercourse.

She attributed her lack of resistance to being scared that he would choke her again or kill her. She was crying after the intercourse. He didn’t want her to leave, but she pleaded to go the bathroom, which he allowed her to do. He then fell asleep and she hurriedly grabbed her jeans and jacket and went home leaving her shoes behind. As the majority notes she called upon neighbors for help. She said she had been raped and the police were called.

For the purpose of analysis and without denigrating the seriousness of the violent battery committed upon the complaining witness, her testimony suggests a play in three distinct acts. The first act took place on the couch and at the doorway, the second on the floor and the third in the bedroom. Further, the backdrop of all these activities in the apartment is her acknowledgement of their mutual intoxication. Her clear, convincing and unrebutted testimony establishes that while the couple was on the couch, he attempted intercourse with her and with some degree of force and against her will. While no intercourse resulted and they remained fully clothed, his genitals rubbed the front of her body and legs. Her resistance resulted in her flipping him onto the floor where they again came into contact.

It was on the floor that the second act began which involved the battery. Significantly, during re-cross-examination the complaining witness specifically denied that defendant “insinuated by his body movement that he was interested in having intercourse *** during the time [they] were on the floor of the apartment.” Most importantly, she limits his insinuation of interest in intercourse to the first period of the evening in the apartment when they were on the couch, Act One. The complaining witness was asked on re-cross-examination:

“Q. Ma’am, you said that the Defendant insinuated by his body movement that he was interested in having intercourse with you and that this was being done during the time that you were on the floor of the apartment, is that true?”

and she answered:

“A. No, that’s not correct. It was done the time that we were on the couch.”

It is indisputable that the fight that took place, during Act Two, was unrelated to any interest by defendant in sexual intercourse with the complaining witness.

The record reflects the following:

“Q. When he was slapping you, was he doing anything to insinuate to you at that time that he wanted to have intercourse with you; did he say anything to that effect?
A. No, he did not.
* * *
Q. After the fight was over, he did nothing to insinuate to you by his actions or by his words that he wanted to have intercourse with you, is that true?
* * *
THE WITNESS: That’s right.”

This testimony proves that defendant’s intent to have forcible intercourse was limited to Act One, the time during which they were on the couch. The record is void of any evidence of defendant’s intention to have sexual intercourse forcibly and against the will of the complaining witness at the time they had sexual intercourse in the bedroom.

Defendant tried unsuccessfully to establish that the fight was about the victim’s use of speed. She admitted having used speed but denied they fought that evening about her use of speed. We are left without a reason for the fight but, as the record demonstrates, it was not over his interest in having sexual intercourse with her.

The State had earlier asked the complaining witness “[w]hat is the reason you walked in there [the bedroom] with him?” She answered “[b]ecause I was scared he would choke me again. I was actually scared that he was going to kill me.” Her testimony in this regard is what appears to make this case unique and perhaps explains the paucity of authority directly on point. That is, where the evidence establishes the victim had intercourse under threat of a battery not based upon defendant’s intent to have intercourse forcibly or against the victim’s will, does that evidence establish the requisite mental state of the defendant for the offense of rape? I believe not.

In sum, the mental state of the victim was established by clear and convincing evidence that she was having intercourse forcibly and against her will. Her mental state, at least under these facts, cannot be ascribed to the defendant. The evidence does not establish that at the time of the act of intercourse defendant possessed an intention to have intercourse forcibly and against the will of the female.

      The dissent concludes that defendant did not intend intercourse while defendant and the victim struggled on the living room floor, during “Act Two.” This conclusion ignores the victim’s testimony that immediately before they fell to the floor, while still on the sofa, defendant got “very angry” when she struck defendant on the head after he had forced his lower body onto hers. We do not see why, accepting the dissent’s terminology, “Act Two” began on the floor and not on the couch. The general intent necessary for rape can be established from the totality of circumstances. People v. Utinans (1977), 55 Ill. App. 3d 306, 316-17.

      The dissent argues that there is no proof that defendant intended “to have intercourse forcibly and against the will of the female.” However, the only intent necessary to support rape is the general intent to perform the physical act; “whether the defendant intended to commit the offenses without the victim’s consent is not relevant, the critical question being whether the victim did, in fact, consent. This involves her mental state, not the defendant’s.” (People v. Mangiaracina (1981), 98 Ill. App. 3d 606, 609.) The dissent then concludes that rape and assault with intent to rape require the same mental state. This is incorrect:
      “[t]he crime of rape must be understood as not including an element of knowledge of the woman’s lack of consent, from which it follows that not every mistake by the defendant by which he believes the woman is consenting will be a defense. But, the crime of assault with intent to rape clearly sets forth a mental element; the defendant’s purpose in assaulting the woman must be rape. This purpose of intercourse against the woman’s will cannot be present if the defendant believes — even unreasonably — that the woman is consenting.” (W. LaFave & A. Scott, Criminal Law sec. 47, at 358 (1972).)
      Thus, the defendant’s unreasonable belief in the victim’s consent is a possible defense to assault with intent to rape but not to rape. (W. LaFave & A. Scott, Criminal Law sec. 47, at 358 n.12 (1972).) We consider that any belief by defendant in the victim’s consent could not be reasonable in view of defendant’s use of violence immediately preceding intercourse.


source: Caselaw Access Project

author: JUSTICE HEIPLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFRED DALBY, Defendant-Appellant.
    Third District
    No. 82—647
    Opinion filed June 7, 1983.
    Robert Agostinelli and Verlin R. F. Meinz, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Peterlin, State’s Attorney, of Ottawa (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

The defendant, Alfred Dalby, filed a pro se motion to withdraw his guilty plea. His appointed counsel, pursuant to Supreme Court Rule 604(d) (87 Ill. 2d R. 604(d)), discussed the motion with the defendant and, apparently upon the insistance of the defendant, filed a certification indicating that the motion was not in need of amendment. Several months later, at the hearing on the motion, defense counsel asked the court for a continuance to allow defense counsel time to again meet with the defendant to discuss a “new issue" not addressed in the certified motion. The trial court did not grant the requested continuance and ruled against the defendant on the issues presented in the written motion. The defendant appeals and states his issue as follows:

“The trial court erred in granting the State’s motion to strike the defendant’s motion to withdraw guilty plea rather than granting a continuance of the proceedings or leave to amend the motion where defense counsel noted an additional issue which he should have discussed with the defendant in regard to the motion."

The defendant was charged with two counts of murder and one of burglary. The facts indicate that the defendant beat a 76-year-old woman to death after unlawfully entering the woman’s home in March 1981. Initially, the defendant pleaded not guilty to the three charges. Several months later, in October of 1981, the defendant appeared in court, with counsel, and entered a plea of guilty but mentally ill to one count of murder. The State recited to the court the plea agreement: dismissal of the other two counts, the defendant would receive a term of 60 years of imprisonment and the State would recommend that the defendant receive mental treatment. The trial court examined the evidence, which included psychiatric evaluations of the defendant, and statements of the defendant concerning the crime. After informing the defendant of his rights and the ramifications of the plea, the court accepted the defendant’s plea and entered a verdict of guilty, but mentally ill, of murder, sentenced the defendant to 60 years and placed the defendant in the custody of the Department of Corrections. The defendant then filed a pro se motion to withdraw the plea. The motion alleged error in that the court failed to conduct a fitness examination, in that he had been informed he would be sent to the Menard Psychiatric Center and in that he had not been informed of his rights at the time of his plea. The State filed a motion to strike. It should be noted that shortly after the defendant filed his pro se motion, the trial judge called the State and defense counsel before the court. The trial judge suggested to defense counsel that he meet with his client to discuss the motion. Defense counsel met with the defendant in January 1982 and filed a certification that there was no need to amend the motion in May of 1982.

A hearing on the motion was held on August 2, 1982. The defendant was not present but was represented by counsel. The court found that the defendant’s motion was without factual basis. After reviewing the record, the trial court found there was no need for a fitness hearing, the State only agreed to make a recommendation that the defendant be sent to the Menard Center, and the defendant was informed of his rights. Earlier in the hearing, before the court had an opportunity to evaluate the three points of the defendant’s motion, defense counsel asked the court to grant a continuance so that counsel could discuss a “new issue” with the defendant. Counsel explained that, in light of the new verdict of guilty but mentally ill (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 2(c)), counsel, when discussing trial strategy with the defendant before the entry of the guilty plea, thought that the defendant would not be able to win an acquittal under an insanity defense. Consequently, counsel urged the defendant to plead guilty but mentally ill in exchange for concessions from the State. However, shortly before the present hearing, it occurred to counsel that perhaps the State could not utilize the verdict of guilty but mentally ill because the offense occurred before the effective date of the new law. Thus, ex post facto principles would render the law inapplicable to the defendant. If this were true, then the defendant had improperly pleaded guilty but mentally ill because of a misapprehension of law, and the plea should be withdrawn. (People v. Nichols (1981), 96 Ill. App. 3d 354, 355.) For this reason, counsel requested time to ask his client if he wished to amend the motion to include this argument. The trial court confined his rulings to the grounds expressed in the written certified pro se motion. The defendant appeals and alleges that the trial court erred by not granting the continuance.

The ex post facto issue raised by defense counsel presented an important constitutional issue before the trial court. However, this court finds that the trial court did not err by not considering this constitutional issue because the issue was without merit. As will be discussed below, there is not an ex post facto limitation on the application of the verdict of guilty but mentally ill. Consequently, the verdict of guilty but mentally ill was correctly applied to the defendant at the plea hearing and could have been applied to the defendant had he chosen to go to trial. The ex post facto argument of defense counsel could not have been a basis for granting the withdrawal of the plea. There was no reason for the trial court to grant a continuance in order to allow the defendant time to add a meritless argument. Therefore, the trial court did not err in not granting a continuance.

It is explained in People v. Thiem (1980), 82 Ill. App. 3d 956, 959-60, that the retroactive application of criminal statutes is specifically prohibited by the ex post facto provisions of the United States and Illinois constitutions (U.S. Const., art. I, sec. 9; Ill. Const. 1970, art. I, sec. 16) and rules of statutory construction (Ill. Rev. Stat. 1977, ch. 131, par. 4). A statute is characterized as retroactive if it takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions already past.

Before the passage of the 1981 amendment to section 6 — 2 of the Criminal Code of 1961, a mentally ill criminal could be absolved of responsibility for his criminal conduct if he was “insane” at the time of that conduct. The insanity defense provided as follows:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
(b) The terms ‘mental disease or mental defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” (Ill. Rev. Stat. 1979, ch. 38, par. 6 — 2.)

Conversely, under the old law, a mentally ill person was very much responsible for his criminal conduct if he was not insane — if he was able to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

The amendment to section 6 — 2 provides, in relevant part, as follows:

“(c) A person who, at the time of the commission of a criminal offense, was not insane but was suffering from a mental illness, is not relieved of criminal responsibility for his conduct and may be found guilty but mentally ill.
(d) For purposes of this Section, ‘mental illness’ or ‘mentally ill’ means a substantial disorder of thought, mood, or behavior which afflicted a person at the time of the commission of the offense and which impaired that person’s judgment, but not to the extent that he is unable to appreciate the wrongfulness of his behavior or is unable to conform his conduct to the requirements of law.” (Ill. Rev. Stat. 1981, ch. 38, par. 6 — 2, eff. Sept. 17, 1981.)

This amendment simply explains that a person can be “mentally ill” and yet not legally insane. And, a person who is only mentally ill is still responsible for his acts. The amendment does not change any rights, obligations or disabilities. Just as in the era prior to the 1981 amendment, a person who commits murder, and is not legally insane, is responsible for his criminal conduct. The defendant in the instant case was found to be mentally ill but not insane. As under the pre-1981 law, he is responsible for his crime. Pursuant to section 5 — 2—6, “Sentencing and Treatment of Defendant Found Guilty but Mentally HI,” of the Unified Code of Corrections, the “court may impose any sentence upon the defendant which could be imposed pursuant to law upon a defendant who had been convicted of the same offense without a finding of mental illness.” Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6(a).

The only change brought about by the new verdict of guilty but mentally ill is that the mentally ill convicted criminal may be placed with the Department of Mental Health and Developmental Disabilities for hospitalization. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 2—6(b) et seq.) The need for hospitalization is based upon the mental state of the defendant during his prison term. Hospitalization is not ordered because of his past acts but rather because of his present need. Thus, here too, there is no retroactive application of the sentencing statute. See People v. Valdez (1980), 79 Ill. 2d 74, 81. See also People v. Marshall (1983), 114 Ill. App. 3d 217.

We find that there is not an ex post facto limitation on the application of the guilty, but mentally ill, verdict to the defendant. The trial court acted properly by not allowing defense counsel’s request for a continuance in order to develop an ex post facto argument. The decision of the trial judge is affirmed.

Affirmed.

STOUDER, P.J., and SCOTT, J., concur.


author: JUSTICE JONES

text:
    DONALD L. SMITH, Plaintiff-Appellant, v. THE CITY OF GREENVILLE et al., Defendants-Appellees.
    Fifth District
    No. 81—504
    Opinion filed May 10, 1983.

      George H. Huber, of Vandalia, for appellant.
    Meyer & Meyer, of Greenville, for appellee City of Greenville.
    James E. Buchmiller, Ltd., of Greenville, for other appellees.
   JUSTICE JONES

delivered the opinion of the court:

The central question before us is whether the plaintiff, Donald Smith, has riparian rights in Governor Bond Lake.

Construction of the lake, which is owned by one of the defendants, the city of Greenville, was completed in 1969. The plaintiff owns a 40-acre tract lying to the west of the lake. A ditch on the eastern edge of his property carried water from his property into the newly created lake, and at times water backed up onto plaintiff's property from the lake. As a result of the construction of the lake and the subsequent movement of water between plaintiff’s property and the lake, a 25-acre tract to the south became inaccessible from the north. The defendants Elvin and Kathryn Miller owned the 25-acre tract at the time and sold it in 1977 under a contract for deed to the defendants Phillip and Frances Schildknecht. To provide access to the 25-acre tract, in 1972 Elvin Miller built a roadway about seven feet high that ran north and south between plaintiff’s property on the west and the lake on the east. A 48-inch culvert, running east and west, was installed under the roadway to accommodate the water passing between plaintiff’s property and the lake. The west end of the culvert lies six to eight feet east of plaintiffs east property line. The roadway is located in LaGrange Township.

Plaintiff sought injunctive relief to compel removal of the roadway because of its alleged interference with the exercise of his riparian right of access to the water of the lake. Following a hearing the trial court found that “plaintiff’s land had no water on it from the lake at times of normal pool” and expressly ruled that plaintiff “was not and is not a riparian owner.” Plaintiff appeals raising three issues: (1) whether the finding of the trial court that plaintiff was not a riparian owner was “contrary to the weight of the evidence and contrary to law”; (2) whether “the order of the court was contrary to the manifest weight of the evidence in the trial court’s finding that the Governor Bond Lake at Greenville, Illinois, did not lie in part upon the land of the Plaintiff”; and (3) whether “the Constitution of the State of Illinois and of the United States was violated by the taking of the Plaintiff’s property without compensation.”

Inasmuch as two of the three issues plaintiff raises call for a review of the evidence, we turn our attention first to a serious omission in the record. Missing from the transcript of proceedings is the testimony of all but one of the witnesses called by the defendants, a hiatus, according to the briefs, of 94 pages, constituting about one-seventh of the entire transcript of proceedings. In his reply brief plaintiff indicates that the omission occurred because of fault on the part of the court reporter and argues that the plaintiff should not be made to “bear the consequences” of the court reporter’s failure to prepare, file, and mail the transcript. However, plaintiff has failed to prepare a certified report of proceedings from the best available sources or to stipulate as to the facts material to the controversy, as provided by Supreme Court Rule 323 (87 Ill. 2d R. 323), in place of a verbatim transcript.

The burden is on the appellant, here the plaintiff, to present a record sufficiently complete that a reviewing court can question the quantum of evidence pertaining to an issue of fact. (Investors Shelter Corp. v. Chernick (1978), 58 Ill. App. 3d 446, 374 N.E.2d 786.) When portions of the record are lacking it will be presumed that the trial court acted properly in the entry of the challenged order and that the order is supported by the part of the record not before the reviewing court. (Glover v. Glover (1974), 24 Ill. App. 3d 73, 320 N.E.2d 513.) Otherwise stated, the rule is that in the absence of a proper record, it is presumed that sufficient evidence was presented to support the trial court’s judgment and, thus, to require affirmance of that judgment. Investors Shelter Corp.

Without indulging in this presumption, however, we conclude from our examination of that part of the record plaintiff has furnished us, in conjunction with relevant case law, that the judgment of the trial court was not against the manifest weight of the evidence and was properly entered in favor of the defendants. Before we set forth those facts adduced at the hearing pertinent to the question of plaintiff’s riparian ownership, we turn to the case law to which these facts must be applied.

In Bouris v. Largent (1968), 94 Ill. App. 2d 251, 256, 236 N.E.2d 15, 18, the court described the riparian right of access to a body of water as dependent upon whether the property touches the water:

“The riparian right of access to a body of water depends on whether the property touches the water thereby enabling access to the water to be gained without going over property of others. Such right of access does not depend upon ownership of or title to the submerged land. Consequently such right is not affected by description of the property unrelated to the body of water. It is only necessary that the description of the property include or encompass the shore line.”

In Illinois the rule for determining a riparian proprietor’s title to land bounded by a stream or river differs markedly from the rule for determining a riparian proprietor’s title to land bounded by a lake or pond. In Trustees of Schools v. Schroll (1887), 120 Ill. 509, 518-19, 12 N.E. 243, 244-45, the court contrasted the two rules:

“[GJrants of land bounded on streams or rivers above tide water, carry the exclusive right and title of the grantee to the centre of the stream, usque ad filem aquae, subject to the easement of navigation in streams navigable in fact, unless the terms of the grant" clearly denote the intention to stop at the edge or margin or the stream. [Citations.] But an entirely different rule applies when land is conveyed bounded along or upon a natural lake or pond. In such case the grant extends only to the water’s edge. [Citations.]”

One reason for the rule that a riparian proprietor whose property is bounded by a lake takes only to the water’s edge is set forth in Fuller v. Shedd (1896), 161 Ill. 462, 483, 44 N.E. 286, 293:

“The grant of land on a lake would, on the instant of the grant, be a conveyance to the center of the lake, if the same rule existed as with reference to rivers. The determination of boundary lines to the center of the river is not attendant with any serious difficulty, but the irregular borders of a lake would render the determination of lines in the bed of the lake between riparian proprietors of almost impossible solution.”

In a conveyance calling for a lake as a boundary line, the boundary line is that line at which the water usually stands when free from disturbing causes. (Brundage v. Knox (1917), 279 Ill. 450, 117 N.E. 123; City of Chicago v. Ward (1897), 169 Ill. 392, 48 N.E. 927; Sea man v. Smith (1860), 24 Ill. 521.) The court in Brundage v. Knox said of this rule, “This rule as laid down in [Seaman v. Smith] has always been referred to with approval and repeatedly quoted by this court as the rule applying to the boundary line of Lake Michigan or other fresh water lakes in this State.” (279 Ill. 450, 470, 117 N.E. 123, 130.) Still examining Seaman v. Smith, the Brundage court said further that “[i]t is clear from the reasoning and conclusion in that case, in the light of the judgment entered, that it was not the high-water mark that was taken as the true limit of the boundary line, but the line where the water usually stood when unaffected by storms or other disturbing causes.” 279 Ill. 450, 471, 117 N.E. 123, 130.

The boundary line of Governor Bond Lake, then, is the line at which the water usually stands when unaffected by storms or other disturbing causes. To be a riparian owner plaintiff must own property that touches the lake at its boundary line as so defined. Bearing in mind these principles, we examine the evidence adduced at the hearing.

The plaintiff called several witnesses, including defendants Elvin Miller and Phillip Schildknecht, called under section 60 of the Civil Practice Act, in effect at the time of the hearing (Ill. Rev. Stat. 1981, ch. 110, par. 60). The testimony of Phillip Schildknecht was not pertinent to the question of plaintiff’s riparian ownership. Elvin Miller, however, testified that normal pool of the lake is determined by the level of water at the spillway on the lake. At normal pool the water is at the top of the spillway. A benchmark showing normal pool is available for surveying purposes. At normal pool no water runs through the spillway “except the spring that flows all the time.” Once he measured water that had backed up in the ditch on plaintiff’s property. The water, which was confined to the ditch, was 3x/2 feet deep and was backed up on plaintiff’s property for a distance of 17 feet. That same morning, he said, his SVa-inch rain gauge was full from a storm the night before. It took several days for the water to recede. He saw the water that far back on plaintiff’s property only the one time. Lake water had backed up in this manner on plaintiff’s property, he said, only at flood stage, apparently once or twice a year. He testified further that there was “[n]ot too much” erosion from the roadway he had built, which he described as “pretty well sodded.” He said that “a lot more” silt comes from fields, under cultivation in the area, that are drained by the ditch on plaintiff’s property. Silt comes also, he said, from the hillside from which he had removed dirt to build the roadway. He had sold about a hundred acres of his land to be used for Governor Bond Lake. As damages to the 25 acres rendered inaccessible from the north as a result of construction of the lake the city had paid him $125 per acre. He had asked the plaintiff if he could use plaintiff’s land to take his farm machinery to the 25-acre tract. In response plaintiff had, the defendant said, “told me to take a helicopter and fly it over.”

Testifying in his own behalf, the plaintiff could not recall Elvin Miller’s ever having asked him about using plaintiff’s property to get to his 25-acre tract. He indicated that at normal pool the water of the lake comes just to the top of the spillway. The plaintiff testified that siltation has occurred on his property to a depth of between two and three feet at the deepest and that the silt decreases the depth and width of the lake water on his property. He could not recall the occurrence of “this type of silting” on his property before the road was built. Asked how deep the water was on his property when the lake was at normal pool before the roadway was built and before the siltation occurred, plaintiff answered that at normal pool “there would have been back on me in depth before any silting from the construction and all, approximately, three feet plus” for a distance of “a short sixty feet” at a width of about 10 feet. Plaintiff testified that before the road was built he had fished on his property but the silt had “destroyed the water level; reduced it.” The roadway, he said, “aborts *** completely” his access to the lake. In the fall of 1971 he had put a 15-foot boat into the lake water on his property, which by his estimate extended at the time onto his property for a distance of 17 feet.

Plaintiff was recalled to testify following a two-month recess of the court, after which the court was to view the site in issue. In the interim, however, plaintiff had had the area of the ditch dug out by “a caterpillar which was a bulldozer.” Asked whether he had changed the premises in question by having had it dug out, the plaintiff answered, “To a portion, yes.” As a result of this digging the area was, according to plaintiff, restored to its “originality.” As a result of the digging the area is, by plaintiff’s testimony, a foot and a half to three feet deeper than the culvert. As a consequence water stands on his property, he said, whether or not there is water in the culvert, which drains the ditch into the lake from west to east. On cross-examination plaintiff explained his conduct:

“Q. [James Buchmiller] Mr. Smith, why did you go out and dig this property up since we were in court the last time, knowing we would be back in court today?
A. Well, as I stated previously, that is my property, Mr. Buchmiller. And also, I feel there that I would be helping the others on the other side of that with this silt to give it a place to deposit on me there. I would help Mr. Schildknecht, Mr. Rasher, anyone else on the east side of that dam [roadway], with any silt that would be coming down through there and going through the culvert.
* * *
Q. And you have decided since we were in Court the last time and prior to coming back to Court today that you are going to help out the man you’re suing, Mr. Schildknecht, by creating a basin for silt, is that your answer?
A. Yes.
Q. You did this out of the goodness of your heart to help Mr. Schildknecht, the man you’re suing?
A. This was to help out, as I say, anyone that comes downstream from there.
* * *
Q. *** I am trying to get at your motivation or reason for digging up this property while we’re in Court for this property just to help other people downstream. Is that your only reason?
A. Mr. Buchmiller, I think that’s a big reason. If people had been more neighborly to me out there, we wouldn’t be up here arguing around with this situation.
Q. You’re doing this as a neighborly act to Mr. Schildknecht?
A. Anyone down there can benefit by it.
* * *
Q. *** Is that the only reason? Just answer that simple question.
A. To help myself and to help the neighbors or the friends that have —.”

The cost of this excavation, plaintiff said, was $375.

One of plaintiff’s other witnesses, Harold Krummel, a friend of plaintiff, testified that he had visited the area of plaintiff’s property in question on three different occasions and had seen water in the ditch every time. He said that he had seen water extending onto plaintiff’s property for a distance of about 60 feet at a width of 40 or 50 feet at the widest point and that a pole used as a measure indicated water about two feet deep and mud about two feet deep in the center of the ditch, apparently at its lowest point. On cross-examination the witness recalled that there had been “rains” prior to the visit in which he had poled the depth of the water. He did not know how high the water had been at the spillway at the time or how long the water had remained on plaintiff’s property.

The plaintiff’s brother, Byrle Smith, testified in behalf of his brother. He described the ditch after it had been dug out as about 12 feet wide, that is, about “two feet wider than what the banks would have been before.” He said it had been “dredged out” for a distance of about 120 feet. After having been dug out, it was “[a]nywhere from a foot to eighteen inches deeper than where the bottom of the water would be in the water basin.”

Plaintiff called as a witness James Buchmiller, the attorney representing all of the defendants except the Schildknechts. He had represented the city of Greenville at the time the lake was being developed. He testified that at one time he had recommended in writing that plaintiff’s 40-acre tract be condemned in conjunction with the construction of the lake because of plaintiff’s refusal to sell the property. The witness explained that the city had not condemned it for the reason that the engineers “would have liked to take all around the lake, but they realized we couldn’t afford it.” The engineers had wanted to take more property than actually was taken, in part to protect the intake area of the lake from runoff, pollution, and siltation from cultivation. Another reason the witness gave for their wanting to take more property was to provide access to the lake at certain points recommended by the engineers. The witness indicated that the recommendation to condemn plaintiff’s property had nothing to do with its elevation with reference to that of the lake.

Plaintiff called as a witness Edward Kunneman, who appears to be employed by a surveying firm, in an effort to show the inaccuracy of aerial photographs in determining elevation. The testimony of the witness was inconclusive.

Also called as a witness by plaintiff was Paul Clinebell, a consulting engineer. He testified that the spillway of the lake has an elevation of 524.5 feet and that the elevation of the lake at normal pool is expected to be the same as that of the spillway. He stated that, at normal pool, elevation of 524.5 would cause land within the watershed at a lower elevation to be flooded when the lake is full. Interpreting a topographic map, designated as plaintiff’s exhibit No. 118, which had been produced by the use of aerial photographs, he said that the lowest elevation on plaintiff’s property is 526 feet, which is the elevation of the ravine or ditch. The exhibit bears a “PHOTO. DATE” of March, 1964. The witness testified that at normal pool of 524.5 feet no water from the lake would be standing on any portion of plaintiff’s property and that the water would have to rise about a foot and a half above the level of the spillway before it would touch plaintiff’s property. At normal pool, he said, the water of the lake extends to a point about 25 feet east of plaintiff’s east property line. At normal pool it would not be possible to put a boat on plaintiff’s property and convey it by water onto the lake. Nor would plaintiff’s property be a good place to fish in view of the fact that “[t]here would be no water there most of the time.” He testified that plaintiff’s land would be flooded on an average of once every 50 years but that there would be water on it at more frequent intervals, though for very short periods of time, that is, for a matter of days, not months. As the ravine or ditch is shown, apparently on plaintiff’s exhibit No. 118, he would not expect “a great deal” of sediment, which he described as one to two feet of sediment, above the level of 524.5 feet. He testified that, of all the exhibits of plats, plaintiff’s exhibit No. 118 was the most accurate.

The defendants called as a witness Curt Benzel, possibly “Denzel,” whose testimony is all that has been provided to us of the defendants’ evidence. The witness had surveyed some of the property of Elvin Miller, who was at the time the witnéss’ father-in-law. The witness had prepared a street plan, designated as plaintiff’s exhibit No. 116, in which the normal pool elevation of 524.5 feet is shown on plaintiff’s property. The witness testified that this figure was incorrect as an elevation for the ditch because “the water line does not go up onto the property as far as it shows here.” He explained that when he did the drawing he was not concerned with the normal pool elevation, the purpose of the drawing being to show the proposed roadway and the scope of it. The roadway is 60 feet wide as shown on the drawing. He testified that the elevation of the west end of the culvert when it was installed was 524.5 feet, that is, normal pool; the elevation at the bottom of the east end of the culvert was 524.0 feet, six inches below normal pool. Interpreting plaintiff’s exhibit No. 118, the witness testified that the normal elevation of the lake of 524.5 feet would lie about 30 feet east of the plaintiff’s east property line, approximately in the center of the roadway. On cross-examination he testified that the presence of vegetation can cause aerial photographs to be in error as to elevation by as much as one to two feet and that there was vegetation along the east line of plaintiff’s property. He said that he had lived for five years in a subdivision to the north of the area in question and that once or twice he had seen water on plaintiff’s property about 100 feet wide after a heavy rain of two to three inches. He had, he said, “made it a point a couple of times of trying to get down there after the rain to see what the culvert would do.”

We need not reiterate the points on which the evidence is conflicting. The trial court resolved questions of credibility in favor of the defendants after having had the opportunity to observe the manner and demeanor of the witnesses while testifying. In view of this fact and the evidence presented in that part of the record we do have, we cannot say that the judgment of the trial court was against the manifest weight of the evidence. The trial court did not err in finding that plaintiffs land had no water from the lake on it at times of normal pool. Because plaintiffs property does not touch the boundary line of the lake, defined as the line at which the water usually stands when unaffected by storms or other disturbing causes, he is not a riparian owner and has no riparian rights in Governor Bond Lake. In view of our determination that the' plaintiff has not lost any of his property to the lake, we need not consider the third and final issue he raises with respect to the taking of his property without compensation.

Affirmed.

HARRISON, P.J., and EARNS, J., concur.


text:
    MARY E. FRYE, Ex’r of the Estate of Ella Wells, Deceased, Petitioner-Appellee, v. ANNA MASSIE et al., Respondents-Appellants—(Harold Wells et al., Respondents-Appellees).
    Fifth District
    No. 82—464
    Opinion filed May 11, 1983.

      Wesley J. Coulson, of Brazitis, Burke & Coulson, of Olney, for appellants.
    Feiger, Quindry, Molt, Harvey, Fyie & Hawkins, of Fairfield (Morris Lane Harvey, of counsel), for appellee Mary E. Frye.
    Alice M. Jordan, of Fairfield, for appellee Elmo Wells.
    No brief filed for Kimberly Billington.
   JUSTICE JONES

delivered the opinion of the court:

This appeal involves an order entered in a proceeding to perpetuate testimony under Supreme Court Rule 217 (73 Ill. 2d R. 217). Petitioner Ella Wells initiated the proceeding in question to preserve her testimony regarding certain lawsuits she anticipated would be filed after her death, among them a contest of her will and a suit charging one of her daughters, Mary Frye, with maliciously interfering with the expectancy of Mrs. Wells’ other natural heirs of receiving bequests from Mrs. Wells upon her death. During the course of her deposition, petitioner Wells refused to testify concerning the contents of her will, whereupon respondents-appellants, certain of her children and grandchildren, filed a motion to compel testimony on this issue. The trial court entered an order in which it found that information as to the contents of Mrs. Wells’ will was protected from disclosure under the attorney-client privilege and that petitioner Wells had not waived this privilege by filing her petition to perpetuate testimony. Respondents-appellants appeal from that order, contending that the trial court erred in its interpretation of the attorney-client privilege in the context of the instant Rule 217 proceeding. We find, however, that the order appealed from does not constitute a final judgment in this case, and we accordingly dismiss the instant appeal for lack of jurisdiction.

Ella Wells filed her petition to perpetuate testimony on March 20, 1982, after her attorney received a letter from counsel for respondents-appellants. In that letter counsel advised Mrs. Wells’ attorney that his clients were contemplating filing suit against Ella Wells and her daughter, Mary Frye. The proposed complaint, a copy of which was attached to the letter, contained four counts, three of which sought to have a conveyance of a mineral interest from the grandchildren to Mrs. Wells declared null and void and a fourth which sought actual and punitive damages from Mary Frye for allegedly exercising undue influence over her mother for the purpose of obtaining a greater share of the estate of Ella Wells than she would otherwise receive. In his letter counsel for respondents-appellants requested that the contents of Mrs. Wells’ will be made known to his clients so that an arrangement could be reached which would make it unnecessary to file the proposed suit. Counsel further stated that if the matter could not be resolved satisfactorily prior to the death of Ella Wells and if her testamentary disposition unfairly favored Mary Frye, it was the intention of his clients to bring suit against her on that basis.

On May 3, 1982, after Mrs. Wells’ Rule 217 petition had been filed and served upon her children and grandchildren as respondents, counsel for respondents-appellants advised the court that the proposed four-count complaint had been filed against the petitioner and Mary Frye in the circuit court. Counsel requested the court to dismiss Mrs. Wells’ petition to perpetuate testimony since the anticipated underlying suit had already been filed. The trial court denied this motion and granted Mrs. Wells’ petition to perpetuate testimony. •

Ella Wells’ deposition was taken pursuant to her petition on June 9, 1982. She testified on direct examination regarding the circumstances surrounding the execution of her will and a codicil thereto. She stated specifically that she had never discussed the provisions of her will with her daughter Mary Frye and that her daughter had never suggested that she (Mrs. Wells) leave any part of her property to Mary.

Upon cross-examination counsel for respondents-appellants asked Mrs. Wells the following question:

“In your will, do you provide that your children should share your property substantially equally?”

Mrs. Wells’ attorney objected to the question and instructed his client not to answer any questions concerning the contents of her will. Counsel for respondents-appellants then certified the question to the trial court for a ruling on the objection. After hearing arguments of counsel, the trial court denied the respondents-appellants’ motion to compel discovery from petitioner as to her proposed testamentary disposition. The court’s order, entered June 24, 1982, stated in pertinent part:

“The contents of the will of Ella Wells are relevant to the issue of whether the disposition of her assets at her death as set forth in his [sic] will are in accordance with her wishes and independent of any request or influence of Mary Frye. However, the contents of the will of Ella Wells are subject to the attorney-client privilege; Ella Wells’ filing of Petition to Take Deposition to Perpetuate her Testimony is not a waiver of her attorney-client privilege.
* * *
Accordingly, Counsel Harvey’s objection at the Deposition to Perpetuate Testimony is sustained and the Motion to Compel Discovery from Petitioner is denied.”

Ella Wells died on June 28, 1982, and her executor, Mary Frye, was substituted as petitioner in the cause. On July 23, 1982, respondents-appellants filed their notice of appeal from the court’s order of June 24.

In addressing the issue of this court’s jurisdiction to hear the instant appeal, we note that we previously denied a motion to dismiss the appeal for lack of a final judgment. This ruling, however, does not preclude our consideration of the jurisdiction issue which has been further briefed by the parties on appeal. See 21 C.J.S. Courts sec. 195 (1940).

On the issue of the appealability of the court’s order, respondents-appellants contend that the Rule 217 proceeding in question constituted a separate and independent proceeding which was effectively terminated by the court’s order of June 24. As such, they assert, the order was a final judgment subject to appeal under Supreme Court Rule 301 (73 Ill. 2d R. 301). Respondents-appellants cite no authority for their contention but rather seek to distinguish the effect of the court’s order in the instant Rule 217 proceeding from that of a similar order as to discovery matters in a cause being prepared for trial. While the latter order would be subject to review upon appeal from a final judgment in the pending cause, such review would, they say, be foreclosed in a Rule 217 proceeding to perpetuate testimony in a suit which had not yet been filed. Respondents-appellants contend that this is especially so in the instant case where the petitioner sought to testify as to matters relevant in a lawsuit which could only be filed after her death. Since, under the court’s order, respondents-appellants would be forever denied the right to cross-examine the petitioner concerning the contents of her will, they contend that the order must be considered as fully adjudicating the rights of the parties to the controversy before the court.

Whether an order constitutes a “final judgment” for purposes of Rule 301 must be determined upon a consideration of the specific nature of the controversy and the effect of the order upon that controversy. (People ex rel. Pollution Control Board v. Lloyd A. Fry Roofing Co. (1972), 4 Ill. App. 3d 675, 281 N.E.2d 757.) An order is final if it terminates the litigation on the merits and determines the rights of the parties so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. (Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 373 N.E.2d 416.) Generally, orders entered pursuant to discovery rules are interlocutory and not immediately appealable because, as preliminary orders in a pending case, they are reviewable on appeal from the final order in that case. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 429 N.E.2d 483; see Johnston, Discovery in Illinois and Federal Courts, 15 J. Mar. L. Rev. 1, at 70-73 (1982).) Where, however, a discovery order finally concludes a proceeding begun against a witness, the order is final, though entered in the context of another proceeding, due to the separate and independent nature of the proceeding involved. (See, e.g., People ex rel. Scott v. Silverstein: contempt order imposing sanctions for failure to comply with discovery order is final because contempt proceeding is collateral to and independent of case in which contempt arises; Laurent v. Brelji (1979), 74 Ill. App. 3d 214, 392 N.E.2d 929: order compelling discovery in aid of administrative agency’s investigations is final because discovery proceeding in circuit court is separate from administrative proceeding before agency; see also Durkin v. Hey (1941), 376 Ill. 292, 33 N.E.2d 463.) Thus, the appealability of the order in the instant case depends upon whether it is subject to review as part of an underlying case or whether the Rule 217 proceeding in question constituted a separate proceeding which could be said to be concluded by the court’s order.

Rule 217, pursuant to which petitioner Wells’ testimony was taken, provides in pertinent part:

“A person who desires to perpetuate his own testimony or that of another person regarding any matter that is or may be cognizable in any court or proceeding may file a verified petition in the court of the county in which the action or proceeding might be brought or had or in which one or more of the persons to be examined reside. The petition shall be entitled in the name of the petitioner as petitioner and against all other expected parties or interested persons, including unknown owners, as respondents and shall show: (i) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it, (ii) the names or a description of the persons interested or whom he expects will be adverse parties ***, and (iii) the names and addresses of the persons to be examined, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony.” (Emphasis added.)

Although a Rule 217 proceeding is filed before an action has been commenced, its object is to preserve testimony for purposes of an anticipated suit. Rule 217 requires that the subject matter of the testimony “be cognizable in any court or proceeding” and contemplates that the party taking the deposition will be a party to the action. (Cf. section 39 of the Evidence Act (Ill. Rev. Stat. 1981, ch. 51, par. 39) which also deals with the perpetuation of testimony but which “may be used though no litigation is anticipated.” (Ill. Ann. Stat., ch. 110A, par. 217, Historical and Practice Notes, at 214 (Smith-Hurd 1968).) Thus, rather than constituting a separate and independent action, a Rule 217 proceeding is dependent upon the proposed suit and must be viewed as part of that action. Since a Rule 217 petition seeks no relief other than to take a deposition for use in a contemplated action, an order entered in the course of the deposition is interlocutory and is subject to review only upon appeal from final judgment in the underlying cause.

In the instant case respondents-appellants’ contemplated suit for damages for interference with an expectancy had been filed and was pending at the time the Rule 217 deposition was taken. While the proposed will contest action could not be filed until after petitioner Wells’ death, there was nothing in the court’s order to prevent such an action from being filed upon the admission of her will to probate. Thus, the propriety of the court’s ruling would be subject to review upon appeal from final judgment in either case. We therefore find no basis for the respondents-appellants’ attempted distinction between discovery orders entered in a pending case and the court’s order in the instant Rule 217 proceeding.

Unlike discovery orders, which are held to be appealable because they finally conclude a proceeding begun against a witness, the instant order neither terminated the litigation between the parties nor adjudicated the rights of the parties. Rather it was more in the nature of a ruling “in advance of trial” (see Supreme Court Rule 211(cX4) (73 Ill. 2d R. 211(c)(4))) on an evidentiary matter that arose during discovery. The court’s order did not preclude further Rule 217 discovery nor did it prevent respondents-appellants from proceeding with their contemplated actions. While the court’s order effectively denied respond- . ents-appellants the opportunity to cross-examine the petitioner regarding the contents of her will, this was due to the peculiar nature of the instant proceeding in the context of a will contest action and has no bearing on the finality of the order. Moreover, since the relief sought by respondents-appellants in this appeal, which is to have the petitioner’s testimony regarding the execution of her will stricken, will be equally available upon appeal from final judgment in that action, respondents-appellants will not be prejudiced in their right to appeal from the court’s ruling. For these reasons we find no merit in respondents-appellants’ argument that the court’s order was final in that it effectively terminated the litigation between the parties.

Due to the nature of a Rule 217 proceeding, a determination of the rights of the parties must await the court’s action in the litigation anticipated in the Rule 217 petition. It cannot be said, therefore, that the rights of respondents-appellants were prejudiced by the court’s ruling in the instant case, as the outcome of the anticipated litigation is uncertain. In a somewhat similar situation, the court in Illinois Trust & Savings Bank v. Howard (1900), 185 Ill. 332, 57 N.E. 39, held that the denial of a motion by the defendant in an ejectment suit, preparatory to trial, to compel the plaintiff to produce his deed for inspection as to its genuineness was not a final order from which an appeal would lie. In passing upon the defendant’s contention that this decision was “final” against its right to inspect the deed and that it would prejudice the defendant in its defense of the cause, the court stated:

“Whether the refusal of the court has prejudiced the defendant’s rights in this case or injured the defendant in any way has not yet been determined. The defendant may succeed in the trial of the ejectment suit, and for aught that we know the judgment may be in its favor. Whatever the result may be, the order is clearly interlocutory, relating only to a matter of practice in the course of the proceeding.” (185 Ill. 332, 334, 57 N.E. 39, 40.)

Similarly, in the instant case, respondents-appellants’ appeal is premature in that there is no showing that they have been prejudiced in their proposed litigation. See also Moffat Coal Co. v. Industrial Com. (1947), 397 Ill. 196, 73 N.E.2d 423.

Due to the interlocutory nature of the order in question, we are without jurisdiction to hear the instant appeal, and we accordingly dismiss the appeal.

Appeal dismissed.

HARRISON, P.J., and EARNS, J., concur.


author: JUSTICE ALLOY

text:
      In re MARRIAGE OF JUDY WILLIAMS, a/k/a Judy Easley, Petitioner-Appellant, and DENNIS L. WILLIAMS, Respondent-Appellee.
    Third District
    No. 82-730
    Opinion filed June 7, 1983.

      James E. McPeak, of Macomb, for appellant.
    Albert V. Ancelet, of Capps, Ancelet & Stoverink, of Carthage, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The parties were divorced on March 6, 1972. The divorce decree provided that the petitioner, Judy Williams, now known as Judy Easley, would have custody of the two minor children. The respondent, Dennis L. Williams, was to pay the sum of $40 per week as child support until the children became self-supporting, emancipated or of legal age.

On October 14, 1981, the petitioner filed a petition for a rule to show cause why the respondent should not be held in contempt of court for his failure to make child support payments as provided in the March 6, 1972, decree. The petition alleged that as of October 7, 1981, the respondent was in arrears in the amount of $19,600. A request for the court to direct the respondent to bring the payments current was included in the petition.

An order was entered by the circuit court of McDonough County on February 17, 1982. The order stated that the parties had reached an agreement on the matters pending before the court. The parties agreed that the respondent was in contempt of court for his failure to pay child support. As of October 7, 1981, the respondent was indebted to the petitioner for the sum of $19,600 on child support arrearage. The respondent agreed to pay the $40 per week as ordered in the divorce decree and to pay an additional $20 per week on the arrearage. The $60 per week payments were to begin immediately. Also, the respondent agreed to pay the petitioner his portion of any income tax refund received by him for the years 1981 and years thereafter until the arrearage was paid in full.

The February 17, 1982, order further provided that the petitioner could petition the court to impose a sentence upon the respondent if the respondent failed to make the payments as provided in the order. The matter was continued until June 8, 1982, for a status review.

The status review hearing was continued until June 24, 1982. Further proceedings on the matter were terminated on that date.

On July 13, 1982, the petitioner filed a petition for judgment. The petition alleged that the respondent “has refused and still refuses” to pay child support that was due and that as of June 30, 1982, the respondent was $19,460 in arrears. The petition prayed for judgment on that amount plus interest accruing to the date of judgment.

The respondent filed a section 48 motion to dismiss the petition for judgment on July 19, 1982. (Ill. Rev. Stat. 1981, ch. 110, par. 2— 619, effective July 1, 1982; formerly Ill. Rev. Stat. 1981, ch. 110, par. 48.) The respondent’s motion alleged that the petitioner’s petition for judgment was barred by the previous February 17,1982, order.

A hearing was held on the motion to dismiss. The trial court took the matter under advisement and gave the attorneys an opportunity to file memoranda.

On September 16, 1982, the trial court rendered its decision in letter form in favor of the respondent. The letter stated that the main question presented was whether the February 17, 1982, order barred the action on the petition for judgment. The present action and the previous action for rule to show cause are in personam actions. The same issue is present in both, i.e., whether there was an arrearage in child support owed the petitioner. A consent decree was issued in the first action wherein an arrearage was agreed upon by the parties and a remedy provided, also by agreement. An order was entered. The trial court stated that the consent decree was found to be valid and res judicata of the issues determined therein. As no new facts were alleged in the petition for judgment that arose after the February 17, 1982, order, the previous order barred the petition for judgment by res judicata. Since the petitioner selected a remedy for the same demand, she was precluded from resorting to another.

A formal order of dismissal was entered on September 20, 1982. The petitioner filed a timely notice of appeal from that order.

The only issue raised by the petitioner on appeal is whether the trial court erred in dismissing her petition for judgment. She argues that the concepts of res judicata and election of remedies do not apply-

Past due child support payments are vested rights, and the custodian of the children does not lose her right to collect the arrearage in support. (Fox v. Fox (1978), 56 Ill. App. 3d 446, 371 N.E.2d 1254.) However, in an appropriate case, courts will give effect to either an agreement of the parties or to the doctrine of equitable estoppel to reduce the amount of child support arrearages. In re Marriage of McDavid (1981), 97 Ill. App. 3d 1044, 425 N.E.2d 442.

We have reviewed the case law and found few cases that involve the issue presented. A similar factual situation was present in Wadler v. Wadler (1945), 325 Ill. App. 83, 59 N.E.2d 505. The parties in Wadler were divorced in 1930 and the decree provided that the husband pay $25 a week for alimony and the support and maintenance of the two minor children, whose custody was awarded to the wife. The wife filed a petition for rule to show cause in 1936 because the husband had failed to make the payments for several years. The parties then agreed that the $25 weekly payments be reduced to $30 per month. An order was entered on July 15, 1936, on the agreement and further provided:

“ ‘And, It is further ordered, adjudged and decreed that the accrued alimony and support money for the minor children in arrears in the sum of $7,244.00 is expressly reserved and that judgment may be entered by this Court in the amount of $7,244.00 at the request of the plaintiff, Esther Wadler, at any time hereafter.’ ” 325 Ill. App. 83, 85.

On August 3, 1943, the wife filed a petition for an order against the husband directing him to pay the arrearage amount of $7,244 and accrued interest from the July 15, 1936, order thereon and that execution issue. She alleged that the husband had failed or refused to pay any of the money found due her.

A special commissioner found the $7,244 to be a present obligation of the husband to the wife and that the wife had a present vested right in the sum entitling her to a money decree. The 1936 order was continuing in nature so that the husband’s defense that the wife’s petition was barred by the statute of limitations did not apply. The chancellor followed the commissioner’s findings and entered a decree that the wife recover $7,244 plus $2,535.40 interest, and costs from the husband. Execution thereon was ordered.

On appeal, the court found that the $7,244 amount entered in the July 15, 1936, order was merely a computation of the husband’s arrearage and not a judgment. The issue on appeal concerned the statute of limitations, which was found not to bar the wife’s action. However, the court affirmed the judgment order on the amount, plus interest.

As in Wadler, the February 17, 1982, order entered in the instant case was not a judgment on the amount of arrearage. The agreed order stated that the amount of arrearage was $19,600 and ordered the respondent to make weekly payments on the amount to purge himself of the contempt. Although the order provided that the petitioner could petition the court to impose a sentence upon the respondent if he failed to make payments, such a remedy was available anyway. (Ill. Rev. Stat. 1981, ch. 40, par. 505(b).) The petitioner, however, was not limited to that course of action.

While other cases do not deal with the situation here as closely as Wadler v. Wadler (1945), 325 Ill. App. 83, 59 N.E.2d 505, language in these cases offers support for our position. In Fox v. Fox (1978), 56 Ill. App. 3d 446, 371 N.E.2d 1254, the reviewing court found that contempt is not a proper means of enforcing payment of support arrearages where the children had reached their majority. However, the court went on to state that the trial court finding of arrearage was valid and enforceable by ordinary remedies.

In another case the reviewing court reversed part of a trial court’s order which provided for payment of $10 per week on child support arrearage owed by the husband. The record indicated that the husband did not have sufficient income to pay on the arrearage and keep current with child support so the payment on the arrearage was reversed. The arrearage had been secured by reduction to judgment, although the court recognized that it was currently uncollectible as a practical matter. Lewis v. Lewis (1977), 48 Ill. App. 3d 281, 363 N.E.2d 106.

In Gentile v. Gentile (1980), 87 Ill. App. 3d 311, 409 N.E.2d 52, the trial court denied the wife’s petition for rule to show cause for the husband’s failure to pay child support and “such other and further relief” as the court deemed appropriate. The appellate court stated that the order was not final and appealable because it did not dispose of the rights of the parties since the wife was not precluded from filing a petition specifically requesting arrearages, and the rights of the husband were not affected.

Although the petition for rule to show cause was denied in Gentile and in the instant case an agreed order was entered, the petitioner herein was not precluded from seeking a judgment on the arrearage. The February 17, 1982, order stated that upon agreement of the parties, there was an arrearage in the amount of $19,600; that the respondent was in contempt; and that the respondent could purge himself of the contempt by certain actions. This order was not res judicata on the petitioner’s petition for judgment as there was no judgment entered on the arrearage amount.

The petition for judgment alleges that the respondent has refused and still refuses to pay the child support that was due. The alleged arrearage as of June 30, 1982, was $19,460. This lower amount indicates that some money must have been paid by the respondent to reduce the arrearage computation of $19,600 found in the February 17, 1982, order. However, based on the fact that the respondent was to be paying $20 per week on the arrearage since the February order, it appears that the respondent may not have been in complete compliance with the order if the allegations were true. The petitioner, although not stating such directly, has alleged that the respondent has not complied with the agreed order of February 17, 1982. She then had a right to petition for judgment on the arrearage amount because the past due support payments are vested rights. Her petition should not have been dismissed upon the respondent’s motion.

Having determined the issue in favor of the petitioner for the reasons stated, it is not necessary to address the separate points raised in the briefs of the parties.

Therefore, the judgment of the circuit court of McDonough County is reversed and remanded for further proceedings.

Reversed and remanded.

HEIPLE and SCOTT, JJ., concur.