author: PRESIDING JUSTICE SULLIVAN

text:
    THE DEPARTMENT OF MENTAL HEALTH AND DEVELOPMENTAL DISABILITIES, Petitioner-Appellee, v. THE FIRST NATIONAL BANK OF CHICAGO, Trustee, et al., Respondents-Appellants.
    First District (5th Division)
    No. 81-169
    Opinion filed February 11, 1982.

      Joseph L. Mack, of Chicago, guardian ad litem for appellant Janet Nice Fredericks.
    Gann, McIntosh, Flaherty & Parker, of Chicago, for other appellants.
    Tyrone C. Fahner, Attorney General, of Chicago (Joseph D. Keenan, III, Special Assistant Attorney General, of counsel), for appellee.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

The sole issue presented in this appeal is whether the trial court erred in finding that petitioner was entitled to recover the costs of providing institutionalized care to adult incompetents from the income and principal of strict spendthrift trusts.

Petitioner sought an order requiring respondents to reimburse it for the costs of past, present, and future maintenance and care of Janet Nice Fredericks (Janet) and Constance Nice (Constance), the adult income beneficiaries of spendthrift trusts created under the wills of their deceased parents. It is alleged in the second amended petition that Janet has been cared for by petitioner intermittently from October 1959 to date; that Constance was cared for intermittently from 1959 to June 1977; that the costs incurred by petitioner in caring for both have been only partially reimbursed; and that demands made upon respondents for full reimbursement have been refused.

In their answer, respondents alleged that at his death on January 18, 1974, the father of Janet and Constance left a will which created, in effect, strict spendthrift trusts — the income of each to be paid for life to or for the benefit of Janet and Constance, with discretion given the trustees to accumulate income and add it to principal and, as further provided by the will, to use such principal for any “unusual expenses caused by illness, accident or other unexpected misfortune” of the beneficiaries; that the trusts were initially funded by distributions from the probate estate on November 10,1975; that the mother of Janet and Constance died June 26, 1974, leaving a will which created strict spendthrift trusts for Janet and Constance identical in all material respects to those created by her husband’s will; and that those trusts were funded by distributions from her probate estate on June 28, 1976.

It was stipulated that the respondents, as trustees of the trusts, were not liable to petitioner for reimbursement of charges incurred by either Janet or Constance while hospitalized for treatment in a State facility prior to January 18, 1974; that the unreimbursed costs incurred by Constance from April 9,1974, to September 5,1974, and from December 16, 1976, to March 21, 1977, was $5,826.80; and that the unreimbursed costs incurred by Janet from January 19,1974, to September 30,1979, was $43,405.03 and has been accruing since October 1,1979, at the rate of $948 per month.

The trial court appointed a guardian ad litem for Janet and a trustee for the remainder interests not in being. In the judgment order from which this appeal is taken, the court found petitioner entitled to recover from the trusts all unreimbursed treatment charges incurred by Janet and Constance from the date of funding of the trusts and to receive payment for all continuing treatment charges — such amounts to be taken first from trust income and, if insufficient, from a reasonable amount of principal as agreed to by the parties.

Opinion

This appeal brings us the question as to whether petitioner, having provided institutional care for the adult beneficiaries of the spendthrift trusts, may recover the cost of that care from the trusts.

Relevant to this question are paragraphs 1 and 2 of article V of both wills, which are as follows:

“1. If at any time any person to whom the Trustees are directed in this instrument to pay any income is under legal disability or in the opinion of the Trustees is incapable of properly managing her affairs, the Trustees may use so much of such income for her support, maintenance and comfort as the Trustees determine to be required for those purposes.
2. The Trustees either may expend directly any income or principal which they are authorized in this instrument to use for the benefit of any person or may pay it over to her for her use or to her parent or guardian or to any person with whom she is residing without responsibility for its expenditure. The Trustees shall withhold any such income not so used and at their discretion add it to principal #

In general, the rules for construction of written instruments, including contracts, deeds and wills, apply to the interpretation of trusts — the question of paramount importance being the settlor’s intention, which if unambiguous is gathered from the whole instrument creating the trust (Storkan v. Ziska (1950), 406 Ill. 259, 94 N.E.2d 185), and such intention will be given effect if not in conflict with any rule of law or the public policy of the State (United States Trust Co. v. Jones (1953), 414 Ill. 265, Ill N.E.2d 144).

It is undisputed that the beneficiaries were incapable of properly managing their affairs, and because the trustees determined under article V that no trust funds were required for their support, it is the position of respondents that the trusts were not subject to the claims of petitioner.

To the contrary, petitioner maintains that it was entitled to reimbursement by virtue of section 5 — 105 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1979, ch. 91/2, par. 5 — 105), which provides in relevant part:

“Each recipient of services of the Department [of Mental Health and Developmental Disabilities] and the estate of such recipient, is liable for the payment of sums representing charges for services to such recipient at a rate to be determined by the Department in accordance with this Act. If such recipient is unable to pay or if the estate of such recipient is insufficient, the responsible relatives are severally liable for the payment of such sums, or for the balance due in case less than the amount prescribed under this Act has been paid.”

It is essentially the contention of petitioner that the interests of the beneficiaries in the trusts are estates, as that term is used in section 5 — 105.

The term “estate” has a very broad meaning, encompassing “property of all kind, real as well as personal” (Wingard v. Harrison (1929), 337 Ill. 387, 390, 169 N.E. 232, 233), and we note that in Grames v. Norris (1954), 3 Ill. 2d 112, 120 N.E.2d 7, where a trust was created for the benefit of an incompetent son, the court, relying in part on an older version of what is now section 5 — 105 (see Ill. Rev. Stat. 1951, ch. 91)1, par. 9 — 19), held that the trust income was an estate of the incompetent and, consequently, that payment therefrom was required for the State’s costs of providing maintenance. It also has been held that the costs of a patient’s maintenance and care may be satisfied from both the income and principal of the patient’s estate. (State of Illinois, Department of Public Welfare v. Foster (1958), 13 Ill. 2d 55, 147 N.E.2d 319.) While none of the cases cited involved spendthrift trusts, it appears that a number of courts in other jurisdictions have endorsed the view that a spendthrift trust created for the benefit of an incompetent is vulnerable to the claims of public authorities for the care of such individual where the authorities are permitted by statute to recover from the trust funds in satisfaction of their claims. Estate of Lackmann v. Department of Mental Hygiene (1958), 156 Cal. App. 2d 674, 320 P.2d 186; Walter's Case (1924), 278 Pa. 421, 123 A. 408; In re Hohenshieldt's Estate (1932), 105 Pa. Super. Ct. 18, 159 A. 71; also see Bureau of Support v. Kreitzer (1968), 16 Ohio St. 2d 147, 243 N.E.2d 83.

A contention similar to that of respondents here was made in Estate of Lackmann v. Department of Mental Hygiene, where the court held that a spendthrift trust granting “complete and absolute discretion” to the trustee as to the expenditures for the support of an incompetent beneficiary was liable for the care and treatment costs incurred by the State and that the trustee’s refusal to reimburse the State was contrary to the public policy of the California Welfare and Institutions Code of providing cost-free care only to the needy. Its ruling was based in part on a provision of that statute which required certain relatives of a mentally ill person or such person’s estate to assume the costs of care in a State facility, and it noted that the absence of specific reference to trustees in the statute did not signify a legislative intent to immunize trusts. Significantly, the court also found that under the language of the statute, the estate of a mentally ill person included the interest of such beneficiary in the trust and that, despite the “complete and absolute” discretion of the trustee, the State could reach the interest and the principal of the trust in question. In so holding, the court stated that “such discretion is not an arbitrary one and one which would permit the trustee to provide no support whatever for [the beneficiary] and to throw him on the charity of others or of the state.” 156 Cal. App. 2d 674, 678, 320 P.2d 186, 188-89.

In adopting that reasoning, we hold that the interests of the beneficiaries in the spendthrift trusts here should be considered as estates within the meaning of that term in section 5 — 105 of the Code and, in this regard, we also view the omission of a specific reference to trustees in that section as not implying a legislative intent to provide free treatment in State facilities for the beneficiaries of spendthrift or other trusts.

Additionally, it is our opinion that the Code reflects a public policy akin to that expressed in Lackmann. Section 5 — 115 of the Code (Ill. Rev. Stat. 1979, ch. 91%, par. 5 — 115) provides in relevant part:

“In case any recipient, the estate of any recipient, or the responsible relatives of such recipient are unable to pay the services charges for the recipient provided by this Act, then the cost of services of such recipient shall be borne by the State, « « e ”

This provision, coupled with section 5 — 105, reflects the intent of the legislature to provide mental health care to all regardless of economic status and of making such care cost-free to the needy. Although the wills in question were executed in 1967, the Code at that time contained provisions substantially similar to those cited herein. (See Ill. Rev. Stat. 1963, ch. 91%, par. 12 — 21 et seq.; cf. Estate of Escher (1978), 94 Misc. 2d 952, 407 N.Y.S.2d 106 (no applicable statute existed at the time trust was created for incompetent beneficiary which would have given State enforceable claim against principal of trust for treatment costs in State hospital).) Here, respondents do not assert that the trusts are unable to pay for their care; consequently, we think that it would be inconsistent with the policy of the Code if petitioner were to bear all the costs of such services. In this regard, it is a long-standing policy in this State to seek payment for its costs from those recipients of services who can afford to pay and thereby to lessen the burden on taxpayers. As the supreme court stated in Kough v. Hoehler (1952), 413 Ill. 409, 418-19, 109 N.E.2d 177, 181-82, in upholding the right of the State to require reimbursement for services rendered to mental patients:

“The charges provided for by this act [Ill. Rev. Stat. 1951, ch. 91*2, pars. 1 — 1 et seq., 9 — 1 et seq.] are not for the support of government, nor are they measured in amount by the public needs for public purposes. It is a charge for services rendered in the care, treatment, and maintenance of each such unfortunate patient in these State hospitals 9 9 9. [Citations.] Since these charges partake of a public charity, (rather than a governmental purpose,) the original cost of which is borne by the public, it is entirely proper and fitting that the patients, their estates and relatives, in so far as they are able, should reimburse the State for so much of the expense of their care as possible, and thereby lessen the burden upon the public.”

In light of the above, we conclude that the interests of the beneficiaries in the trusts are “estates” within the meaning of that term in section 5 — 105 of the Code and that the refusal of the trustees to reimburse petitioner was against the policy of the Code to provide cost-free care only to those in need. For either reason, the trial court properly ordered that petitioner be reimbursed.

We think it significant, however, that the trial court ordered the amount of principal necessary for reimbursement to petitioner was to be paid “as agreed to by the parties using the guidelines set forth by this Court.” This aspect of the court’s order is not challenged on appeal and, in this regard, it appears that consideration could be given to the fact that one of the beneficiaries was being considered for community placement.

For the reasons stated, the judgment of the trial court is affirmed; but, since the amount of the charges for which petitioner is entitled to be reimbursed is not ascertainable from the record, this matter is remanded for the determination thereof consistent with the content of this opinion.

Affirmed and remanded.

LORENZ and WILSON, JJ., concur.

       The. complaint was filed in June 1979.


source: Caselaw Access Project

author: JUSTICE DOWNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE RUFUS, Defendant-Appellant.
    First District (2nd Division)
    No. 79-1927
    Opinion filed February 16, 1982.

      James J. Doherty, Public Defender, of Chicago (Timothy P. O’Neill, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Ruth Stern Geis, and James B. Koch, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DOWNING

delivered the opinion of the court:

Eddie Rufus and four others were charged with the murder of Michael Simkins. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1.) Defendant Rufus was tried alone before a jury and found guilty. He was sentenced to a term of 40 years.

Michael Simkins was shot to death on the sidewalk of North Mohawk Street in the city of Chicago, near the Cabrini-Green housing project. The shooting occurred on April 29, 1979, at approximately 5:15 p.m. Two eyewitnesses testified for the State. Owen Terry was sitting in a parked car when he heard a gunshot. He testified that he turned and saw two men standing over a man lying on the ground. One man had a gun which he pointed at the victim’s head, from a distance of about Bi feet, and fired another shot. The two men then fled.

Grover Evans, 18 years old, was acquainted with the victim. Two nights before the shooting, he, Simkins, and Makia Davis met with defendant Rufus and four of his companions. Defendant asked Evans for the money obtained from a cab driver holdup, and then stated that he had a contract out on the lives of Evans, Simkins, and Davis.

The day of the incident, Evans, Davis, and Simkins went to Farmer Brown, a chicken and ribs restaurant. There, they encountered defendant and two companions. Defendant told Michael Simkins that “he was going to be fried like hot links.” Subsequently, Evans and Simkins were standing on Mohawk Street eating their chicken when three men with handguns, identified as defendant, “Bear,” and Rick Stone, appeared and fired at Evans and Simkins, hitting Simkiris. He fell, and defendant approached, stood directly over Simkins, and fired a shot into his head from a distance of l/á feet.

Two days after the shooting, defendant surrendered to the police. A lineup was conducted for Owen Terry and he identified defendant. At a hearing on defendant’s motion to suppress the out-of-court identification,

Owen Terry and Investigator Lawrence Flood testified, after which the trial court denied the motion to suppress.

The other major trial witnesses for the State were Officer Masalski, who arrived on the scene soon after the incident, Bahaadar Mujaahid, a friend of defendant, and Investigator Flood, who testified to statements he had taken. The testimony of Mujaahid will be recounted in detail in the discussion of the issues.

I

We first consider defendant’s claim that the trial court erroneously denied his motion to suppress the out-of-court identification made by Owen Terry. We disagree. Terry, an eyewitness to the shooting, identified defendant in a lineup. Defendant’s motion to suppress the out-of-court identification was denied after a hearing, and Terry subsequently testified to that identification. Terry was unable to make an in-court identification of defendant.

Two days after the incident, defendant surrendered to the police. A lineup was then conducted for Terry. Terry previously described the suspect to the police as a black male wearing a grey cap, green jacket, and light blue pants. Defendant was wearing similar clothes when he surrendered and was placed in the lineup. Defendant’s cap was placed, in turn, on all six men in the lineup.

Terry stated that he never saw a front view of the suspect’s face during the shooting, and during the lineup could not identify defendant by his face. The identification of defendant in the lineup was based primarily on defendant’s clothes, according to Terry.

Defendant claims that the lineup identification should have been suppressed as the fruit of a suggestive lineup. Defendant cites Israel v. Odom (7th Cir. 1975), 521 F.2d 1370, which we read to support the proposition that the instant lineup was not unconstitutionally suggestive. There, the description of the defendant included eyeglasses. At the lineup, defendant was the only one of five men wearing glasses. Further, Odom was S'SM" tall, while three of the other four men in the lineup were over 6' tall. The court of appeals held there were sufficient indicia of reliability present to permit the admission of the lineup identification.

A lineup identification will be admitted at trial even if the lineup procedure was suggestive, so long as there are sufficient indicia of reliability surrounding the identification. Several important factors to be considered are set out in Neil v. Biggers (1972), 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 411-12, 93 S. Ct. 375, 382-83. Upon our consideration of these factors and the totality of the circumstances, we find sufficient indicia of reliability in the instant identification to permit its admission.

Alternatively, defendant contends that any lineup identification based primarily on the clothing of the suspect is per se invalid and must be suppressed. Terry was vigorously cross-examined concerning the lineup, and the jury was fully aware of the circumstances surrounding it. That the identification was based primarily on clothing goes only to the weight to be given the identification by the jury, not its admissibility. The cases cited by defendant support this conclusion. (See People v. Versher (1977), 52 Ill. App. 3d 148, 150, 367 N.E.2d 311; People v. Reed (1968), 103 Ill. App. 2d 342, 346-49, 243 N.E.2d 628.) We find this contention without merit. The trial court properly denied the motion to suppress.

II

Defendant contends that the trial court’s order clearing the courtroom of certain spectators during the testimony of Owen Terry deprived him of his right to a public trial. Prior to Owen Terry’s testimony on the motion to suppress, the trial court held an in camera hearing, on the State’s request, to close the courtroom during Terry’s testimony. The defense objected. The trial court ordered the courtroom closed. Subsequently, during Terry’s testimony in the trial, the courtroom was also closed based on the evidence adduced at the earlier in camera hearing.

At the in camera hearing, Owen Terry testified that he was afraid to testify, and that certain incidents occurred which he perceived as threats. He had sent two of his children out of town. He received a phone call in which a male voice said, “Did you get the message?” Shots were fired at his front porch and his automobile was vandalized. The trial court believed that Terry was afraid and thus issued the closure order. The order limited access to the courtroom during Terry’s testimony to the parties, their attorneys, other defendants on the trial court’s call and their attorneys, the press, and court personnel. Subsequently, a group of high school students on a field trip was allowed to remain in the courtroom during Terry’s testimony.

Defendant claims that his right to a public trial under the sixth and fourteenth amendments was violated, citing the recent cases of Richmond Newspapers, Inc. v. Virginia (1980), 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814, and Gannett Co. v. DePasquale (1979), 443 U.S. 368, 61 L. Ed. 2d 608, 99 S. Ct. 2898. Those cases, however, deal with the right of the press and the public to attend a trial when all parties and the trial court agree to closure.

We consider the relevant case law to be that which deals with situations where the courtroom was closed over defendant’s objection, as in the instant case. People v. Latimore (1975), 33 Ill. App. 3d 812, 342 N.E.2d 209, appeal denied (1976), 62 Ill. 2d 591, and United States ex rel. Latimore v. Sielaff (7th Cir. 1977), 561 F.2d 691, cert, denied (1978), 434 U.S. 1076, 55 L. Ed. 2d 782, 98 S. Ct. 1266, deal with the same trial. In Latimore, the courtroom was closed during the testimony of the victim in a rape trial, but remained open during the testimony of the other eight witnesses. The press was allowed to remain, although it is unclear whether any reporters were present. Both the appellate court and the court of appeals approved of this procedure.

The court of appeals stated that the right of the defendant to have ordinary spectators present at trial was not absolute, but must be balanced against other interests which justify excluding them. We agree. In Latimore, the other interest was the concern for the rape victim. The court noted that society has an interest in lessening the ordeal of the victim, thereby encouraging her to report the crime. The court also noted that the closure order was drawn as narrowly as possible.

We find the instant case very analogous to Latimore. Here, the interest balanced against defendant’s right to a fully open courtroom is the safety of the witness. Society has an interest in encouraging those who witness murder to testify. The closure order in the instant case only applied during the testimony of Owen Terry, and the press and various other persons were still permitted in the courtroom. We fail to see how the defendant was prejudiced. We hold that the closure order of the trial court was proper.

Ill

A.

Defendant argues that the trial court placed an improper limitation on defense counsel’s cross-examination of Grover Evans, who testified as a prosecution eyewitness to the shooting of Michael Simkins. He positively identified defendant as one of the people who shot at Simkins initially, and as the person who fired the second shot directly at Simkins. Evans also supplied a motive for the shooting. In sum, Evans was a critical witness for the State.

In turn, Evans was subject to a great number of impeachment questions on cross-examination which took two principal forms. First, Evans was examined about a prior tape-recorded inconsistent statement that was given to defense counsel. Evans had earlier stated that he didn’t see who fired the shots, as he was too drunk at the time. There was extensive cross-examination concerning this prior statement.

Second, Grover Evans was impeached by reference to various aspects of his criminal background. Reference was made to a prior conviction for criminal trespass to a vehicle and to his currently being on probation. Evans was, at the time of his testimony, charged by information with armed robbery, aggravated battery, and home invasion, and resided in Cook County jail. Defense counsel was permitted to bring before the jury that Evans had felony charges pending and that he had been recently moved to the witness quarters of the county jail. Counsel also asked a number of questions concerning whether any leniency had been promised in return for Evans’ testimony.

The trial court, however, refused to allow disclosure to the jury of the specific nature of the pending charges (i.e., armed robbery). Defendant claims that this constitutes reversible error. He claims that he was entitled to show the bias of the witness by showing that the witness was currently charged with a crime by the same authority that was prosecuting the instant case. Defendant argues that, to fully assess the witness’ bias, the jury should be presented with the exact nature of the charges.

B.

A full discussion of this issue involves two separate principles of law. First, the confrontation clause of the sixth amendment to the United States Constitution grants the accused the right “to be confronted with the witnesses against him.” (U.S. Const., amend. VI.) This provision is applied to the States through the fourteenth amendment. (Pointer v. Texas (1965), 380 U.S. 400, 406, 13 L. Ed. 2d 923, 927, 85 S. Ct. 1065, 1069.) Impeachment through showing bias comes within the ambit of the confrontation clause. Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.

In Davis, the court held that petitioner’s rights under the confrontation clause were violated by the trial court’s limitation of his cross-examination of a prosecution witness. The witness, the only eyewitness to any part of the crime, was currently on juvenile probation. Defense counsel wanted to present that fact to the jury in order to establish the bias of the witness, but was not permitted to do so. The Supreme Court reversed the conviction, stating:

“While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. 0 * *. [Djefense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” (Emphasis in original.) Davis v. Alaska (1974), 415 U.S. 308. 318. 39 L. Ed. 2d 347. 355. 94 S. Ct. 1105, 1111.

We find no violation of defendant’s right of confrontation in the instant case. Defense counsel was allowed substantial leeway in cross-examining Grover Evans, including cross-examination about the pending charges. Counsel was allowed to demonstrate that Evans had a pending felony information and that he currently was incarcerated in the county jail. Further, Evans admitted that after he agreed to testify against defendant, he was transferred from the general area of the jail to the witness quarters. The only area defense counsel was prohibited from developing was the specific nature of the charges pending against the witness. Under these circumstances, the constitutional mandate of confrontation was met. Compare People v. Wilkerson (1981), 87 Ill. 2d 151, 156 (right of confrontation violated).

C.

Secondly, it has long been held that cross-examination is permitted to show bias of a witness. “[T]he pendency of any indictment against the witness indicates indirectly a ° * ° possibility of his currying favor by testifying for the state.” (Emphasis in original.) 3A Wigmore, Evidence §967 (Chadbourn rev. 1970); see E. Cleary and M. Graham, Handbook of Illinois Evidence §607.7 (3d ed. 1979).

A leading case in this State is People v. Mason (1963), 28 Ill. 2d 396, 192 N.E.2d 835. In Mason, the court held that the widest latitude should generally be allowed a defendant in cross-examination for the purpose of establishing bias. A criminal defendant should be allowed to show that a witness has been charged with a crime “where it would reasonably tend to show that his testimony might be influenced by interest, bias or a motive to testify falsely.” 28 Ill. 2d 396, 401; see generally E. Cleary and M. Graham, Handbook of Illinois Evidence §607.7 (3d ed. 1979).

Defendant’s rights secured by the confrontation clause and the common law right to cross-examine regarding bias must be considered independently. The discretionary authority of the trial court to restrict the scope of cross-examination comes into play only after there has been permitted, as a matter of right, sufficient cross-examination to satisfy the confrontation clause. (United States v. Vasilios (5th Cir. 1979), 598 F.2d 387, 389, cert, denied (1979), 444 U.S. 967, 62 L. Ed. 2d 380, 100 S. Ct. 456.) To determine whether a limitation of cross-examination violates defendant’s right of confrontation, we look:

“* ” * not to what defendant has been prohibited from doing but to what he has been allowed to do. * * * [I]f it appears from the entire record that the jury has been made aware of adequate factors concerning relevant areas of impeachment of a witness, no constitutional question arises merely because, defendant has been prohibited on cross-examination from pursuing other areas of inquiry.” (People v. Hines (1981), 94 Ill. App. 3d 1041, 1048, 419 N.E.2d 420.)

See also People v. Baugh (1981), 96 Ill. App. 3d 946, 951, 422 N.E.2d 166.

Although we find no constitutional violation, we do find that the trial court’s limitation of defense counsel’s cross-examination of Grover Evans was improper under the law of evidence. The trial court’s refusal to allow the specific nature of the pending charges constituted an abuse of discretion in the instant case. We perceive no good reason to keep this information from the jury, and a good reason to bring it to their attention. The jury is entitled to know the nature of the pending charge in order that it will have before it complete information so as to be better able to resolve the bias question. The seriousness of the charge is a factor the jury is entitled to weigh when assessing the bias of the witness.

We next consider whether, under the record of this case, the record is so prejudicial so as to require reversal. A reviewing court will not find reversible error where cross-examination was unduly restricted unless “there was a clear abuse of * * * discretion, resulting in manifest prejudice.” People v. Hubbard (1973), 55 Ill. 2d 142, 151, 302 N.E.2d 609; see also People v. Eddington (1979), 77 Ill. 2d 41, 47, 394 N.E.2d 609; People v. Mason (1963), 28 Ill. 2d 396, 403; People v. Patterson (1980), 88 Ill. App. 3d 168, 175, 410 N.E.2d 396.

While the trial court abused its discretion in limiting cross-examination, we cannot say that defendant was manifestly prejudiced by this error. In view of the substantial cross-examination of Grover Evans and argument to the jury by defense counsel, the credibility of the witness was clearly brought to the attention of the jury. We do not believe that the additional cross-examination would have affected the jury’s determination of the witness’ credibility. Accordingly, we find no prejudicial error notwithstanding the limitation of cross-examination.

IV

We next consider whether the examination of witness Bahaadar Mujaahid by the State was improper. The State called Mujaahid during its case in chief for one reason: to testify about a statement made by defendant in which he admitted the shooting. A police report quoted Mujaahid as making the following statement to police, relating a conversation he had with defendant:

“He [defendant] and Bear were walking down a side street and noted the subjects continue to follow them. At this point, Rufus said that he, quote, iced, unquote one of the subjects, and Bahaador [sic] asked why he had shot the subject. Rufus stated that his weapon had been cocked and everything happened very quickly.”

Defendant’s statement to Mujaahid purportedly occurred on April 29, after the shooting.

Mujaahid, however, was not a cooperative witness at trial. Initially, Mujaahid could only remember that defendant had said to him on April 29 that defendant was afraid for his life and wanted to “talk to the police and surrender hisself [sic].” The prosecution’s request that Mujaahid be declared a court’s witness was denied.

Several more questions were asked of Mujaahid which implied that he was not testifying to everything he knew. A representative colloquy follows:

“MISS PROPES [prosecutor]: Mr. Mujaahid, did you ever tell Investigator Flood about a conversation you had with Eddie Rufus on the night of April 29, 1979?
MR. MUJAAHID: I think I told you the man told me some people were trying to kill him. What I told—
Q. Did you ever tell Investigator Flood that Eddie Rufus told you anything else besides that someone was trying to kill him?
A. Your Honor, may I address the Court, sir?
THE COURT: Do you understand the question?
MR. MUJAAHID: No, sir.”

The court thereupon denied another request by the prosecution to declare Mujaahid a court’s witness.

Subsequently, the court appointed attorney George Howard to represent the witness and to advise him of his obligation to testify truthfully and of the penalties for failure to do so. Upon resuming his direct testimony, Mujaahid’s memory improved somewhat. He now recalled that defendant told him the following: Defendant was at Farmer Brown when three members of the El Rukn street gang appeared and threatened him. He left, went down Mohawk Street and was followed by the three. Then, “the guy got shot.” According to Mujaahid, defendant never told him who shot the victim, or who defendant was with at Farmer Brown.

The jury was excused and at the request of the State, a voir dire was conducted of the witness. He denied making the statements attributed to him in the police report. When the jury returned, the prosecution asked the witness if defendant told him who shot the victim, and how many times the victim was shot. These questions were repeated several times due to objections raised by defense counsel. Mujaahid eventually answered both questions, “no.” Finally, the following colloquy ensued:

“MISS PROPES: Mr. Mujaahid, when you spoke with Mr. Rufus on the 29th of April and in the ensuing days before he turned himself in to the police, did you perceive yourself as being a confidante of his?
MR. REYNOLDS [defense counsel]: I object to that.
THE COURT: The objection will be sustained.
MISS PROPES: Did you perceive—
THE COURT: The question as phrased.
MISS PROPES: Did you act as a confidante to Eddie Rufus in those days?
MR. REYNOLDS: I object to that.
THE COURT: The objection will be sustained to the question.
MISS PROPES: In those days — well, strike that. Did you advise Eddie Rufus to turn himself in to the police?
A. Yes, ma’am.
Q. Did you perceive Eddie Rufus as a friend of yours?
MR. REYNOLDS: Objection, Judge.
THE COURT: The objection will be sustained.
MISS PROPES: Now, Mr. Mujaahid, in the times since April 29, 1979, you and I have had several conversations, have we not?
A. Yes, ma’am.
Q. Have you expressed to me a reluctance to come to this court and testify?
MR. REYNOLDS: I object now.
THE COURT: Objection sustained.
MISS PROPES: Nothing further.”

Defendant’s motion for a mistrial was denied.

Defendant contends that the State’s examination of Mujaahid consisted of impeachment of the witness on a collateral matter. The impeachment purportedly consisted of Mujaahid’s prior statement to the police, which as hearsay was substantively inadmissible. Defendant claims that there was no basis for impeachment since the witness never said anything that was damaging to the State’s case, but merely refused to testify to matters beneficial to the State. In support of this contention, defendant cites People v. Grigsby (1934), 357 Ill. 141, 191 N.E. 264; People v. Bryant (1981), 100 Ill. App. 3d 17, 425 N.E.2d 1325; People v. Pastorino (1980), 90 Ill. App. 3d 921, 414 N.E.2d 54; and People v. Triplett (1980), 87 Ill. App. 3d 763, 409 N.E.2d 401.

Each of the foregoing cases, although involving pertinent principles applicable to the instant issue, is distinguishable from the instant case. For example, the prior inconsistent statements were read to the jury in all four cases. In Bryant, we recently covered the applicable law. (See People v. Bryant (1981), 100 Ill. App. 3d 17, 22-26.) There is no need to repeat the same review of the law.

In the instant case, the prior statement was never presented to the jury. Defendant recognizes that no verbatim reading of the prior statement occurred, but argues that the State achieved its goal of convincing the jury that the prior statement existed without actually reading the statement. Our reading of the record convinces us that the questioning of Mujaahid by the prosecution straddled, but did not cross the boundary between the permissible and the objectionable. The out-of-court statement was not before the jury. Further, the questioning by the prosecution did not explicitly suggest the existence of a prior statement. The prosecutor’s conduct was not beyond reproach, but it did not rise to the level of error. Compare People v. Giangrande (1981), 101 Ill. App. 3d 397, 403-04, 428 N.E.2d 503.

V

Defendant objects to three remarks by the prosecutor in closing argument which he claims deprived him of a fair trial. We have reviewed each of the remarks and based on the entire record, we find no error.

VI

Defendant argues that an erroneous jury instruction was given. The trial court instructed the jury with a modified version of Illinois Pattern Jury Instructions, Criminal, No. 3.06 (1968), which stated:

“You have before you evidence that the defendant made a [statement] relating to the crime charged in the indictment.
It is for you to determine whether the defendant made the [statement], and if so, what weight should be given to the [statement]. In determining the weight to be given to a [statement], you should consider all of the circumstances under which it was made.” (People’s Instruction No. 9.)

IPI Criminal No. 3.06 is identical to this modified version except that “admission” replaces “statement” in the original version.

The statement referred to in the instruction is that given by defendant to Bahaadar Mujaahid. Defendant contends that the instruction is flawed in two respects: first, the statement given by defendant does not indicate when the incident occurred; and second, there is no proof that the statement was “relating to the crime charged in the indictment.”

There must be sufficient evidence in the record to support the giving of a jury instruction. When an improper instruction is given, a reviewing court will not reverse unless the instruction affected the outcome of the verdict. People v. Kurzydlo (1974), 23 Ill. App. 3d 791, 796, 320 N.E.2d 80, appeal denied (1975), 58 Ill. 2d 594.

Without prolonged discussion, we find sufficient evidence in the record to support the giving of People’s Instruction No. 9. Compare People v. Dixon (1978), 58 Ill. App. 3d 557, 561-62, 374 N.E.2d 900, appeal denied (1978), 71 Ill. 2d 610, cert, denied (1979), 440 U.S. 973, 59 L. Ed. 2d 790, 99 S. Ct. 1538.

VII

Lastly, defendant contends he was not proved guilty beyond a reasonable doubt. We have thoroughly reviewed the record and find overwhelming evidence of defendant’s guilt. We hold that defendant was proved guilty beyond a reasonable doubt.

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

Affirmed.

STAMOS, P. J., and PERLIN, J., concur.

       The prosecutor did not ask questions such as, “Did defendant tell you that he shot someone?” but asked only, “Did defendant tell you who shot Simkins?”


author: PRESIDING JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK MANLEY, Defendant-Appellant.
    First District (1st Division)
    No. 80-2037
    Opinion filed February 16, 1982.
    Ralph Ruebner and Gordon Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael Shabat, Michele A. Grimaldi, and Thomas J. Murphy, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendant Frank Manley was convicted by a jury of murder and was sentenced to a term of 20 years. Defendant contends on appeal that: (1) his right to a fair trial was violated where the State impeached him with prior inconsistent statements made to an assistant State’s Attorney and suggested to the jury that he had made another impeaching statement and he was not permitted to show that this other statement was consistent with his trial testimony; (2) the trial court committed reversible error when it instructed the jury on self-defense, but refused to instruct the jury on voluntary manslaughter; (3) the State improperly implied that a defense witness made inconsistent statements and failed to prove the statements; and (4) the trial court made an improper remark to the venire of prospective jurors.

The record discloses that on September 29, 1978, at approximately 9:30 p.m., Derrick Castleberry was shot and killed. Defendant Frank Manley and Kenneth Jones were arrested and each was charged with one count each of murder, voluntary manslaughter and armed violence. Prior to the selection of the jury, a motion for severance of Jones was granted.

Cosetta Castleberry, the mother of the victim, testified that she lived with her son and that on the day of the shooting, she had seen the victim with Alvin McGee. Alvin McGee then testified that on the evening of September 19, 1978, he was at the Castleberry home. He stated that he and the victim left the house at approximately 9 p.m. and went to the area of 53d and Indiana Streets in Chicago. McGee stated that a dice game was in progress and that he recognized one of the players as Frank Manley. He identified defendant and stated that he knew defendant from “around the neighborhood” and because of a prior argument which he had with defendant. According to McGee, he and Castleberry observed the dice game and then went to the home of Thomas Hood. Hood was not at home and Hood’s sister stated that Hood had gone to a party. McGee stated that he and the victim had intended to return to the Castleberry home.

M'cGee testified that upon leaving the building in which Hood lived, they saw Manley and Jones standing on the sidewalk. McGee stated that Kenneth Jones held a shotgun and defendant Manley held a pistol at chest level. McGee stated that the victim began to run and that Jones began to fire his weapon. Subsequently, defendant also began to shoot. McGee stated that after hearing three to four shots, Derrick Castleberry fell about six houses away from the Hood residence. According to McGee, he stopped a patrol car which was in the area. McGee initially stated that the victim was in possession of a weapon. However, upon further questioning by the State, McGee stated that he had misunderstood the question to be whether a weapon was pointed at either the victim or him. McGee then stated that neither he nor Castleberry possessed a weapon.

On cross-examination, McGee stated that he had told Officer Fisher of the Chicago Police Department that he and the victim had been involved in a prior fight with the persons involved with the shooting. McGee testified that he did not see Jones at the dice game. He stated that he did not hear anyone yell “he’s got a gun” while he and the victim were observing the dice game. According to McGee, Jones was 15 feet from Castleberry when Jones began to discharge the shotgun.

Gloria Jean Steele, a Chicago police officer, testified that on the evening of September 29, 1978, she received a call over her radio concerning shots fired at 53d and Michigan in Chicago. She stated that as she proceeded to the location of the reported shooting, she saw Alvin McGee calling that his friend had been shot. She stated that she exited the patrol car and went to the location where Castleberry was lying. She testified that she asked Castleberry who had shot him and he stated that he did not know. She then patted down the victim to ascertain his identity and did not find anything. Steele stated that McGee provided her the descriptions of the assailants which she reported over the police radio. On cross-examination, she testified that she remained at the scene after the victim had left in an ambulance in order to protect the crime scene. She also indicated that she had learned that there had been a fight with the offenders several months prior to the shooting.

Officer Michael Drawhorn of the Chicago Police Department testified next for the State. He stated that he received an assignment concerning a shooting in the 5300 block of South Michigan Avenue. Upon arriving at the scene, Drawhorn and his partner spoke with Alvin McGee and the three of them then went to the Hood residence where they spoke to members of the Hood family. Drawhorn stated that he went to the 5200 block of South Indiana to look for a man named Frank. Upon arriving at the location, he stated that he saw a group of people sitting on a porch. As a second patrol unit arrived, Drawhorn saw Manley put an object under the cushion on which he was sitting. Another officer went to the chair, lifted the seat cushion and removed a gun. Defendant was then placed under arrest. Drawhorn subsequently arrested Jones at another address. At a third address, Drawhorn recovered a sawed-off shotgun. Officer Robert Stephenson corroborated Drawhorn’s testimony concerning the recovery of a .22-caliber revolver from Manley and the arrest of defendant.

Officer Thomas Gimmelly testified that he recovered shotgun wadding on the parkway in front of 5317 South Michigan Avenue. Dr. Shaku Teas, a pathologist with the Cook County medical examiner, testified that she performed an autopsy on the body of Derrick Castleberry. She stated that the cause of death was shotgun wounds to the chest, arm, trunk and abdomen. She stated that she also recovered a bullet from the chest. Officer Robert Smith testified as an expert in firearms and firearms identification. He stated that he conducted ballistics tests and that the bullet which he received from the morgue was fired from the same gun which was previously identified as the weapon recovered from defendant.

The first defense witness was Johnell Brock who stated that on the evening of the shooting he had seen the deceased with a gun at approximately 7 or 8 p.m. He testified that a girl shouted “He has a gun” and that the people who were involved in a dice game ran. Defendant Frank Manley testified that on the evening of the shooting, he saw Alvin McGee with the victim. He stated that he had a prior argument with McGee. Manley stated that Kenneth Jones told him that someone had displayed a gun. Jones then asked Manley where Manley had his gun and Manley responded that the gun was in his pocket. Manley stated that Jones was carrying a sawed-off shotgun. Manley testified that he and Jones left the dice game and walked to 5315 South Michigan Avenue. According to defendant, the victim had his right hand in his coat pocket and began to approach him and Jones. He stated that Castleberry began to remove a black pistol from his pocket. He testified that Jones then fired the shotgun. Manley stated that he had difficulty in extricating his gun and when he finally did remove the gun, he fired two shots into the air.

On cross-examination, Manley stated that Jones had told him that Jones had been threatened with a gun by an individual, but that he only learned after the shooting that it was Castleberry who had threatened Jones. Defendant testified that he only fired his weapon after Jones first had discharged the shotgun and only after he thought the victim was going to pull a gun. After the shooting, Manley stated that he went to a friend’s home and was sitting on the porch. After a sidebar concerning the questioning of defendant concerning statements which he had made to assistant State’s Attorney Ronin, the court ruled that the prosecution could impeach defendant with a prior inconsistent statement. Upon resumption of cross-examination, defendant admitted that he first told Ronin that he was watching television at 5 p.m. on the evening of the shooting, that at 6 p.m. he went to a friend’s house, and at 7 p.m. he and his friend went to a liquor store and afterwards went to the home of another friend which is where he was arrested. In addition, Manley had told Ronin that at approximately 9 p.m. he had heard a gunshot and that he fired his gun two or three times in the air. Manley conceded that the first story that he told the assistant State’s Attorney was different from the second story, but denied that he had told Ronin a third story.

Upon redirect examination, counsel sought to question Manley concerning the third statement. The State objected and reminded the court that this statement had been excluded through a motion in limine which was made at the beginning of the trial. Defense counsel argued that this story was contained in the same dialogue as the inconsistent statements. The court ruled that Manley was not being impeached on the issue of whether Castleberry removed a gun from his belt and, therefore, the third statement was not admissible.

On rebuttal, the State called three witnesses. The sister of Thomas Hood testified that she had an opportunity to observe inside Castleberry’s jacket when she spoke with him prior to the shooting and that she did not see a weapon. A second witness stated that she saw the victim turn to his left and run at the time he was shot. The witness also stated that she did not see the deceased search his pocket or remove a weapon.

During the conference on jury instructions and verdict forms, counsel for the defense tendered Illinois Pattern Jury Instructions, Criminal, Nos. 7.05 and 7.06 (1968) (hereinafter IPI), which deal with voluntary manslaughter in the case. The court agreed to give IPI Criminal No. 24.06 which instructs the jury on the justifiable use of force.

Following the conference, the State presented assistant State’s Attorney Ronin as its final rebuttal witness. Ronin testified as to the two statements which defendant made concerning the evening of the shooting. He also alluded to a third statement during cross-examination, although the court refused to permit counsel to inquire as to the contents of this third version. Counsel for defendant made an offer of proof concerning this third story on the grounds that it was part of a continuous conversation between Manley and Ronin. The court denied the offer because the statement was self-serving, hearsay and irrelevant.

Subsequently, the jury found defendant guilty of murder. (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(1).) Counsel’s motion for a new trial based upon the failure of the court to give a voluntary manslaughter instruction was denied. Thereafter, the court sentenced defendant to a term of 20 years.

Defendant first argues that the trial court erred when it refused to permit counsel for defendant to question defendant about a third statement concerning the shooting which was made to assistant State’s Attorney Ronin. Prior to trial, the court granted the State’s motion in limine to bar defendant’s attorney from referring to a prior statement which was consistent with defendant’s claim of self-defense. In barring the statement, it is unclear whether the court precluded the parties from referring to the entire statement which consisted of three versions of the shooting or whether the court barred counsel for defendant from referring to the third portion of that statement which was consistent with defendant’s theory of self-defense. Following direct examination of defendant concerning his actions in self-defense, the State sought to impeach defendant by questioning Manley about two versions of the shooting which he had made to Ronin. Manley conceded that he had given two versions to Ronin. On redirect examination, defendant’s attorney sought to rehabilitate defendant through questioning about a third version of the events which was consistent with the self-defense theory. The State’s objection to this line of questioning was sustained. Defendant argues that by barring questioning about this third statement, the jury was led to believe that there was a third version of the shooting and that it is incumbent upon the State to correct false or misleading testimony. (Napue v. Illinois (1959), 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173.) Defendant also urges that the court should have permitted his rehabilitation following impeachment with a prior inconsistent statement by permitting the introduction of the remaining consistent portions of his statement. (See E. Cleary and M. Graham, Handbook of Illinois Evidence §106.1 (3d ed. 1979).) Defendant also claims that the State raised the inference of “recent fabrication” and that, under these circumstances, a prior consistent statement would be admissible for rehabilitation. People v. Rivera (1975), 32 Ill. App. 3d 500, 336 N.E.2d 255.

In Illinois, the general rule is that a witness who has been impeached by a prior out-of-court statement which is inconsistent with his in-court testimony cannot introduce evidence of other prior statements which are consistent with his in-court testimony (see People v. Clark (1972), 52 Ill. 2d 374, 288 N.E.2d 363; People v. DePoy (1968), 40 Ill. 2d 433, 240 N.E.2d 616.) However, such evidence is admissible to rebut an inference that the witness is motivated to testify falsely or to rebut an inference that the testimony is of recent fabrication. The testimony is admissible to show that the witness told the same story before the motive came into existence or before the recent fabrication. (See People v. Clark.) The third version of the events surrounding the shooting does not fall within either of these two exceptions. At trial, there was no inference raised that Manley was motivated to testify falsely, nor was there any inference raised that Manley’s statement was of recent fabrication. The self-defense version of defendant’s statement to Ronin was given subsequent to his other versions which were inconsistent with his testimony at trial. Accordingly, the trial court did not err in its refusal to permit the introduction of this third version or to permit the questioning of defendant concerning his self-defense statement.

Defendant next argues that the trial court erred when it gave the jury an instruction on the justifiable use of force, but refused to instruct the jury on voluntary manslaughter as required by People v. Lockett (1980), 82 Ill. 2d 546, 413 N.E.2d 378. The State has confessed error and conceded that the trial court did commit error when it refused to instruct the jury on voluntary manslaughter. Accordingly, this matter must be reversed and remanded for a new trial. See People v. Lockett; People v. Glass (1981), 94 Ill. App. 3d 69, 418 N.E.2d 454; People v. Smith (1981), 94 Ill. App. 3d 969, 419 N.E.2d 404.

In light of our decision that this matter must be remanded for a new trial, we need not address the remaining two issues raised by defendant since they have become moot.

Accordingly, the judgment of the circuit court of Cook County is affirmed in part and reversed and remanded in part.

Judgment affirmed in part; reversed and remanded in part.

McGLOON and O’CONNOR, JJ., concur.


author: JUSTICE O’CONNOR

text:
    ANTHONY ZANNIS, Plaintiff-Appellant, v. LAKE SHORE RADIOLOGISTS, LTD., et al., Defendants-Appellees.
    First District (1st Division)
    No. 80-2644
    Opinion filed February 16, 1982.

      John D. Kightlinger, of Arlington Heights, and Anna P. Kioutas, of Chicago, for appellant.
    Coffield, Ungaretti, Harris & Slavin, of Chicago (Michael W. Coffield, Gregory A. Friedman, and Mary L. Sebek, of counsel), for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Plaintiff, Dr. Anthony Zannis, brought this action in three counts seeking reinstatement of his position as a radiologist with defendant corporation and for damages based on breach of contract and tortious interference with his contract. The first count, seeking reinstatement of his staff position, was dismissed for failure to state a claim upon which equitable relief could be granted. This order was subsequently affirmed by this court. Zannis v. Lake Shore Radiologists, Ltd. (1979), 73 Ill. App. 3d 901, 392 N.E.2d 126.

The remaining two counts were transferred to the law division of the circuit court. Pursuant to defendants’ motion, summary judgment was entered in their favor. The sole issue on review is whether the trial court erred in granting summary judgment in favor of defendants.

Plaintiff is a doctor who was employed as a radiologist with defendant corporation, Lake Shore Radiologists, Ltd. The individual defendants, Borgerson, Lee, Kim and Garcia were also radiologists employed by defendant corporation. Plaintiff and defendants Borgerson, Lee and Kim were the officers, directors and sole shareholders of the corporation.

Plaintiff’s employment with defendant corporation was terminated on December 8,1975, after a series of shareholder and board of directors meetings. In his third amended complaint, plaintiff alleged in count II that defendants breached his employment contract with defendant corporation. This was based on the assertion that the termination was improper because there was no showing that it was in the best interests of the corporation as required by the corporate bylaws. Count III alleged that malicious conduct on the part of the individual defendants caused the tortious interference of the contractual relationship between plaintiff and the corporation.

Defendants’ motion for summary judgment alleged that there were no material issues of fact surrounding the circumstances of plaintiff’s termination and that the termination was properly effected pursuant to the employment contract, corporate bylaws and the Business Corporation Act (Ill. Rev. Stat. 1979, ch. 32, par. 157.1 etseq.). Plaintiff’s response did not dispute the facts and simply relied on conclusions derived from the allegations made in his complaint. As stated previously, the trial court granted the motion.

Section 57(3) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 57(3)) provides that summary judgment is appropriate when “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In determining the absence or existence of a genuine issue of material fact, the court should consider only evidentiary facts and not conclusions of law. (Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 313 N.E.2d 457; Ohio Oil Co. v. Yacktman (1976), 36 Ill. App. 3d 255, 343 N.E.2d 544.) In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. (In re Estate of Tomaso (1980), 82 Ill. App. 3d 286, 402 N.E.2d 702; Murphy v. Ambassador East (1977), 54 Ill. App. 3d 980, 370 N.E.2d 124.) An examination of the record, especially the depositions of plaintiff and three of the individual defendants, discloses what the essential material facts are and that they are not in dispute.

Plaintiff’s deposition reveals that in November 1975 he signed a resignation letter which was tendered to Dr. Borgerson, the corporation president. Plaintiff stated that he did this under compulsion from the individual defendants. He admitted there had been dissatisfaction with his output by several of the defendant doctors in the corporation. Soon after signing the letter, plaintiff changed his mind about the resignation. Plaintiff also stated that he had received an offer of a position on the radiology staff at another hospital.

On November 25, 1975, plaintiff was present with his attorney at a meeting of the board of directors. At this meeting the directors voted 3-1 to terminate plaintiff’s employment with the corporation. Plaintiff’s vote was the only one against the action. He also noted his objection to the purpose of the meeting.

On December 8, 1975, a shareholders’ meeting was convened to ratify the decision of the board to terminate plaintiff’s contract. Again, with an identical vote, a motion to terminate plaintiff’s employment as of that date was passed. A meeting of the same parties, acting as the board of directors, officially removed plaintiff as an officer of the corporation.

Plaintiff, both in the trial court and on appeal, contended in conclusory language that there were numerous issues of material fact raised by the allegations in the complaint. In large part, this included plaintiff’s argument that an issue of fact existed as to whether his termination was justifiable.

A complaint and answer may purport to raise issues of material fact; however, if such issues are not further supported by evidentiary facts through affidavits or other evidence, summary judgment is then appropriate. (Kimbrough v. Jewel Companies, Inc. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328; Carruthers v. B. C. Christopher & Co.) If the party moving for summary judgment supplies facts which, if not contradicted, would entitle such party to a judgment as a matter of law, the opposing party cannot rely upon his complaint or answer alone to raise genuine issues of material fact. Carruthers v. B. C. Christopher & Co. (1974), 57 Ill. 2d 376, 380.

The depositions, exhibits and other documents in the record show plaintiff was terminated according to the employment contract. The relevant provision in that contract requires approval of three-fourths of the shareholders, so long as 90 days’ notice before termination is provided. That notice was given. A showing of cause is not required. The defendant corporation’s bylaws allow the board of directors to remove any officer when it is in the best interests of the corporation. (See also Ill. Rev. Stat. 1979, ch. 32, par. 157.44.) The motives for the acts of a board of directors, when lawful, are not properly the subject of judicial inquiry. Stobo v. Davis Provision Co. (1894), 54 Ill. App. 440; 2 W. Fletcher, Cyclopedia of the Law of Private Corporations §360 (rev. perm. ed. 1969).

All the material facts were before the trial court in this case and they were not in dispute. The facts established that plaintiff’s employment with defendant corporation was terminated pursuant to the actions of the shareholders and directors, which were in accordance with the provisions of plaintiff’s employment contract and defendant corporation’s bylaws. The trial court correctly entered summary judgment for the defendants.

Accordingly, the order of the circuit court of Cook County granting summary judgment to defendants is affirmed.

Affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.


text:
      In re ESTATE OF EDWARD J. O’NEILL, Deceased.—(ESTHER O’NEILL, Claimant-Appellant, v. JAMES O’NEILL et al., Ex’rs of the Estate of Edward J. O’Neill, Respondents-Appellees.)
    First District (1st Division)
    No. 81-515
    Opinion filed February 16, 1982.
    Ira D. Schultz, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Lee Ann Watson and Ted E. Bandstra, both of Katten, Muchin, Zavis, Pearl & Caller, of Chicago, for appellees.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Claimant appeals a $5,000 judgment entered by the trial court as her spouse’s award under the Probate Act. (Ill. Rev. Stat. 1979, ch. 110/2, par. 15 — 1.) She contends that the trial court improperly awarded only the minimum statutory amount as the spouse’s award.

Decedent and claimant were married on August 18, 1978. Decedent moved into claimant’s house, which she had purchased several years before the marriage. Between March and May 1979, decedent moved out of claimant’s house, after which time he contributed no financial support to her. Decedent’s income for 1979 was $24,189. Claimant last saw decedent in the fall of 1979. He died on July 5, 1980.

Decedent left a will bequeathing his personal effects to his two adult sons from a prior marriage and the residuary to a revocable trust, the beneficiaries of which were also his sons. The estimated value of the estate was $62,000. Federal and State income taxes of approximately $3,450 were owed, as well as medical expenses of approximately $7,000. The assets of the revocable trust were approximately $63,079 in cash and a 100% beneficial interest in a land trust consisting of real property leased at $1,250 a month. The lease expires on June 30, 1983, at which time the lessee has the option of purchasing the rights for $50,000.

Claimant was not named in decedent’s will, nor was she a beneficiary to his trust. She had been employed continuously before and after her marriage. Her gross income for 1980 was $15,800.

Claimant contends that in entering the spouse’s award of the minimum amount, $5,000, the trial court failed (1) to follow the criteria set forth in the Probate Act, (2) to apply the relevant criteria, and (3) to liberally construe the statute. Claimant cites several cases to support her contention, all of which are distinguishable from the case at bar. However, we have failed to find any cases specifically holding that a spouse, who was separated from her husband and received no financial support from him at the time of his death, is entitled to more than the minimum spouse’s award as a matter of law.

Claimant relies on In re Estate of Handmacher (1965), 60 Ill. App. 2d 376, 208 N.E.2d 604, as her major authority. However, we find the case more supportive of respondents’ position. In Handmacher, decedent and his widow had lived together since their marriage, and he was her only means of support. The statute under consideration (Ill. Rev. Stat. 1963, ch. 3, par. 178) contained the same language as the current statute (Ill. Rev. Stat. 1979, ch. 110JI, par. 15 — 1) and provided for a spouse’s award “reasonable for the proper support of the surviving spouse for the period of 9 months after the death of the decedent in a manner suited to the condition in life of the surviving spouse and to the condition of the estate * ° The Handmacher court held that the statute “does not restrict the widow to the bare necessities of life, but rather provides for a sum of money which will allow her to live in the manner that she has been accustomed to for a period of nine months after the death of her spouse.” (60 Ill. App. 2d 376, 379.) Furthermore, the court stated that the statute should be liberally construed in order to comply with its legislative purpose; thus, a widow with independent means will not be barred from an award. 60 Ill. App. 2d 376, 380.

We believe that the trial court’s determination in the case at bar fell within these bounds. Claimant and decedent lived together for less than one year after they were married. Decedent never financially supported claimant after he left her house. In fact, nothing in the record indicates that decedent ever financially supported claimant during their marriage or that their marital life style was different from her life style before their marriage and after their separation. Moreover, claimant provided the marital home.

Under these circumstances, we find that a spouse’s award of $5,000 was within the discretion of the trial court. The purpose of the statute was “to help alleviate the widow’s problems by removing as many of her financial worries as possible during this difficult period.” (In re Estate of Handmacher (1965), 60 Ill. App. 2d 376, 380.) The court in the instant case met this objective. Claimant was living in the same manner as she had been while decedent was alive. The Handmacher court did not specify that a financially independent surviving spouse was required to receive more than the minimum amount. Furthermore, the other cases that claimant cites supporting a liberal construction of the statute involved widows who had either been living with their husbands prior to the latters’ deaths or had been forced to live apart from them. (Allen v. Allen (1921), 222 Ill. App. 438; Pratz v. Pratz (1905), 122 Ill. App. 101; Blankenship v. Hall (1908), 233 Ill. 116, 84 N.E. 192.) No evidence was presented in the case at bar that claimant objected to the separation from decedent.

We conclude, therefore, that claimant, who was separated from decedent as well as financially independent of him, was properly granted a spouse’s award of $5,000.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.


text:
      In re MARRIAGE OF WILLIAM C. JONES, Petitioner and Counterrespondent-Appellee, and CORINNE JONES, Respondent and Counterpetitioner-Appellant.
    First District (1st Division)
    No. 81-824
    Opinion filed February 16, 1982.

      Feiwell, Galper & Lasky, of Chicago, for appellant.
    Griffith and Jacobson, of Chicago, for appellee.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Following trial on the matter, the circuit court of Cook County entered a judgment for dissolution of marriage of the wife, Corinne Jones, and the husband, William C. Jones. On appeal, the wife contends that the trial court erred: (1) in its classification and division of property between the parties; (2) in its allocation of property between the parties; (3) in its failure to award maintenance to the wife; (4) in its order requiring the immediate sale of the marital residence; and (5) in its order that attorney fees of both parties be paid from the proceeds of sale of the marital residence.

The record discloses that the parties were married in May 1955, and that the parties had four children, one of whom is a minor and one of whom is deceased. In 1957, the husband commenced working for his father, Horry Jones, at Jones Metabolism Co. Jones Metabolism Co. was the exclusive sales agent for Medical Instruments Co., which manufactured basal metabolism equipment. Both of these companies were owned by the father and business was conducted on Honoré Street in Chicago, Illinois. In 1960, the husband developed a device which measured pulmonary functions and was sold under the trade name “pulmonor.” An account was established under the name “Jones Medical Instrument Co.” for the income and expenses generated by the “pulmonor.” Expenses for the construction of the pulmonor which were initially billed to one of the father’s companies were repaid to the father’s companies through funds from the parties’ joint account. From 1960 until the death of Horry Jones in 1969, the parties listed the income and expenses generated by the “pulmonor” on Schedule C of their personal income tax returns.

In 1969, following the death of Horry Jones, the two companies of the father were merged into one entity, Jones Medical Instrument Co., Inc. Subsequent to the merger, the parties no longer listed income and expenses from the “pulmonor” on their personal income tax returns. From the record, it appears that after the merger of the two companies of Horry Jones, the operations of the business involving the “pulmonor” which was started in 1960 were absorbed or consolidated with the two merged companies. The record also discloses that the use of basal metabolism equipment which was sold by the father had become obsolete at the time of the merger and that following the father’s death, there was little business generated through sales of this equipment.

On December 31,1968, the father negotiated an agreement whereby Jones Metabolism Co. and Medical Instruments Co. would purchase 50% of the stock in each of the two companies which were owned by the husband’s sister for a total purchase price of $86,500. It appears that at the time this agreement was executed, the sister did not own stock of either company and that the purchase agreement would have prospective application upon the death of Horry Jones. On the first corporate income tax return for Jones Medical Instrument Co., Inc., which was filed after the death of the father, the book value of the merged entities was listed at $193,571. Testimony established that the only assets of the father’s companies at the time of his death were the Honoré Street property which was later sold for $35,000 and inventory which was valued at between $5,000 and $25,000.

From the record, it appears that in 1968, a parcel of property on which to conduct the business was purchased in Oak Brook, Illinois. According to the uncontradicted testimony of the wife, funds for the purchase and construction of the Oak Brook facilities were derived from the sale of the Honoré Street property ($35,000), loans from the children’s bank accounts ($37,000) and from the parties’ joint savings account ($81,000). At the time the operations were moved to Oak Brook, much of the inventory which remained from the father’s businesses was abandoned.

During the course of the trial, testimony concerning the value of Jones Medical Instrument Co., Inc., disclosed that the corporate books for the period ending June 30, 1980, showed that the book value of the company was $384,041. The Oak Brook property was valued by the corporation at $476,656. Also reflected on the corporate balance sheet were loans to the husband in the amount of $72,249. The corporation also was indebted to the parties’ three children in the sum of $37,000 and was indebted to the husband’s sister in the amount of $56,605. The amount owed to the husband’s sister was the outstanding balance due from the purchase of the stock which she inherited from the father. Three appraisers testified that in 1980 the value of the Oak Brook property which included land and improvements was $625,000, $590,000 and $500,000. The appraiser who valued the property at $500,000 in 1980 testified that in 1978, he had valued the property at $470,000 and that, since 1978, property values in Oak Brook have increased at the rate of 10 to 20 percent. According to testimony from accountants, if the corporate assets, such as the real estate, were valued at less than fair market value on the corporate books, then the book value of the corporation would have to be increased to arrive at a sum which would reflect the increased actual value of the corporation.

The husband maintained two Visa and one American Express charge accounts which were used by the parties. Numerous items, such as camera equipment, meals, clothing and other personal items were purchased on the Visa accounts and travel expenses, both business and pleasure, were charged to the American Express account. The bills incurred on these charge accounts were paid by Jones Medical Instrument Co., Inc. During 1979, the parties charged approximately $18,000 on the two Visa accounts and, in 1980, approximately $22,000 in purchases were charged to the two accounts. According, to the wife, the company also paid for automobile and housing expenses from September 1977 through 1978. The husband testified that the foregoing expenses were charged to his “262 Account” at the company and that the funds received by the husband from the “262 Account” were advanced to the husband. During the course of the marriage, the parties have travelled throughout the United States. They also have travelled to the Soviet Union, Europe, Mexico and Canada. The husband travelled to Latin America in search of lost treasure. From the record, it appears as if the corporation paid for the expenses incurred on these trips.

Prior to the parties’ marriage in 1955, Horry Jones established a stock trust for the husband. In 1971, the trust was valued at $141,474 and as of July 31,1980, the portfolio was worth $201,463. It appears from the record that all but a small portion of the income generated by this trust was added to the trust corpus and reinvested in other income-producing securities. During the course of the marriage, the parties reported the income earned by the stock trust on their joint tax returns.

The parties owned a home in Oak Brook, Du Page County, Illinois, which is where they both have resided during the pendency of this action. The home was purchased for $310,000 in 1975 from the husband’s attorney. The parties paid for the home with $100,000 in cash with the balance being financed through a $156,000 loan from the seller and a $60,000 mortgage. At the time of these proceedings, the note given to the seller has been in default since 1978 and a notice of default was served upon the husband in July 1980, although no action to foreclose has been taken. Two appraisals of the marital home established the value of the home at $344,000 and $375,000. At the time of the proceedings, the outstanding balance on the encumbrances was approximately $114,000.

On January 19, 1981, the court entered judgment for dissolution of marriage of the parties, made its findings and provided for the division of the property of the parties. The court found that the husband inherited all of the stock of Jones Medical Instrument Co., Inc., from his father and that at the time of his father’s death, the corporation was worth $193,571 which was the separate property of the husband. The court determined that the adjusted book value of the corporation as of June 30, 1981, was $415,055 and that the increase in the value of the corporation subsequent to the death of Horry Jones was marital property. The court found that the husband’s pension and profit sharing plan was worth approximately $103,000 and that the husband’s interest in this plan was marital property. The court deemed the stock trust established by Horry Jones for the husband to be nonmarital property. The court found the marital home of the parties to be marital property and that the home was worth not less than $344,000. The court found the home to be a financial burden on the parties and economically unfeasible for either party to retain the home, and therefore, ordered that the parties immediately sell the home. The court also ordered that the attorney fees incurred by the parties during the dissolution proceedings be paid from the sale proceeds. Following payment of the attorney fees and other costs incurred in the sale of the home and satisfaction of the encumbrances, the parties were to divide the net proceeds received from the sale of the home. The court ordered the husband to pay to the wife, in lieu of maintenance, the sum of $200,000, payable at the rate of $20,000 per year in equal monthly installments of $1,666. The court found that the wife did not have any present skills for employment, but that she would be able to support herself in the future. The following is a breakdown of the court’s allocation of marital and nonmarital property from the major assets of the parties:

MARITAL NON-MARITAL

Jones Medical Instrument $221,484 $193,571

Co., Inc.

Pension and Profit Sharing Plan 103,000

Stock Trust 201,463

Marital Home (Market Value 230,000

less encumbrances)

TOTAL $554,484 $405,034

This court raises sua sponte the failure of the parties hereto to comply with the venue provisions of section 104 of the Illinois Marriage and Dissolution of Marriage Act, which states, in pertinent part:

“The proceedings shall be had in the county where the petitioner or respondent resides, * * Objection to venue is barred if not made within such time as the respondent’s response is due. In no event shall venue be deemed jurisdictional.” (Ill. Rev. Stat. 1979, ch. 40, par. 104.)

We find misplaced the parties’ reliance on their failure to object to improper venue as authority for this action to be brought in the circuit court of Cook County, rather than in the circuit court of Du Page County, which county is where both parties presently reside. We are not aware of any experience in the family law area or authority that demonstrates that the legislature intended the unlimited filing of such actions in any court in the State without any nexus whatsoever and without the necessity of any application to fix a substitute venue. We are not convinced that the statute mandates such a narrow construction or restricted view allowing the parties to ignore the venue requirements and proceed to disregard the clear direction of the statute. This posture permits the parties to forum shop and possibly may add to the burden of crowded court calendars and enforcement problems of support orders.

We reject the contention that section 104 is meaningless and that the legislative direction as to venue may be ignored upon the parties’ election or that the trial court is without authority to transfer 'an action to an appropriate county. In construing a statute the language should be given its plain and ordinary meaning and the intent of the legislature should be determined and given effect. (City of East Peoria v. Group Five Development Co. (1981), 87 Ill. 2d 42, 429 N.E.2d 492.) A statute should be construed, if possible, so that no word, clause or sentence is rendered meaningless or superfluous and “the legislature will not be presumed to have done a useless act.” (Arnold v. Board of Trustees (1981), 84 Ill. 2d 57, 61, 417 N.E.2d 1026, 1028.) By its terms, section 104 governs venue and it is reasonable to assume that the legislature did not intend to confer upon the parties to a dissolution proceeding the unfettered right to select any forum, and possibly an appellate district, except as provided in that section. We find that the meaning of the legislature is free from doubt and unambiguous and the only legitimate function of this court is to give it effect as written. (Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 432 N.E.2d 227.) Under circumstances such as those which exist in this cause, it is incumbent upon the parties to timely advise the court that the forum selected is not one of proper venue, and having apprised the court of this, to attempt to secure an appropriate order from the court allowing a waiver of improper venue. Despite the failure of the parties to comply with section 104, we hesitate to dispose of the appeal on this issue, and we elect to entertain the appeal.

The wife first contends that the trial court erred in finding that any portion of Jones Medical Instrument Co. was nonmarital property. She argues that the company which emerged after the death of the husband’s father was the company which was formed by the parties in 1960. She argues that the equipment sold by the father’s company had become obsolete and that the company was, at best, worth between $40,000 and $60,000. In the alternative, she claims that even if the trial court was correct in its determination that the company was inherited from the father and was, therefore, nonmarital property, the commingling of the assets and operations of their business with the father’s company results in the nonmarital property being transmuted into marital property. (See In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635.) The wife urges that the trial court erred in its failure to classify the stock trust which was established by the husband’s father prior to marriage as marital property. The wife contends that the corpus of the trust increased in value during the course of the marriage and that this increase should be deemed marital property because marital funds were used to preserve and enhance the trust. The wife also argues that the court erred in its valuation of Jones Medical Instrument Co. She asserts that the court determined the book value of the corporation to be $384,041 as of June 30, 1981. At that time, the Oak Brook property and improvements were valued by the corporation at $476,656. She claims that the fair market value of the Oak Brook property and improvements were substantially higher. She points to two appraisals which value the property at $590,000 and $625,000. She also indicates that a third appraiser valued the land and building at $500,000, but that this third appraisal was not credible and was contradictory because that appraiser was not a member of an organization composed of recognized experts and also because the appraiser valued the property at $480,000 in November 1978, and stated that real estate values in the area have increased 10 to 20% since the November 1978 appraisal. She states that after the court considered the market value of the property and improvements, it only increased the book value of the corporation $31,014 to $415,055 and, in light of the appraisals which showed a difference in fair market value and book value of closer to $100,000, this constitutes gross error.

The husband argues that the trial court was correct in its finding that he inherited all of the stock in Jones Medical Instrument Co. from his father and that this inherited property is nonmarital property pursuant to section 503(a) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1979, ch. 40, par. 503(a).) He urges that the trial court did not err in its finding that the value of the inherited corporation was $193,571 since it based its finding upon the income tax return for the corporation for the year ending July 31, 1969, which date is shortly after the father’s death. He argues that the wife’s reliance on In re Marriage of Rogers is misplaced because Rogers and In re Marriage of Smith (1981), 86 Ill. 2d 518, make it clear that the commingling of marital and nonmarital property, standing alone, is not sufficient to transform non-marital property into marital property. The husband also urges that the trial court was correct in its classification of the stock trust as nonmarital property. The husband argues that the stock trust was properly classified as nonmarital property and that the trial court properly found that the appreciation in the trust was also nonmarital property. (See In re Marriage of Komnick (1981), 84 Ill. 2d 89, 417 N.E.2d 1305.) The husband asserts that the payment of taxes does not constitute the preservation or enhancement of the stock trust. In support of his claim that the court properly valued Jones Medical Instrument Co., the husband postulates that the trial court may have considered the three appraisals and added $105,000 to the book value of the Oak Brook property. The husband suggests that the trial court then deducted $74,000 from the book value of the corporation to reflect the loans from the corporation. He argues that under this formula, there would be a net increase in the book value of approximately $31,000.

Pursuant to section 503 of the Illinois Marriage and Dissolution of Marriage Act, the court is to classify property as either marital or non-marital for the property division upon dissolution of marriage. (Ill. Rev. Stat. 1979, ch. 40, par. 503.) There is a presumption that property acquired during the marriage is marital property, although this presumption is negated where property is acquired by descent. (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(1).) Although property may be deemed to be nonmarital property, its character may be transformed into marital property where the nonmarital property is commingled with marital property. (See In re Marriage of Smith (1981), 86 Ill. 2d 518.) In Smith, the supreme court held that where a spouse who holds nonmarital property causes it to be commingled with marital property, the commingled property becomes marital property. The supreme court also has rejected the notion that property may have dual characteristics, that is, a nonmarital and a marital component. (See In re Marriage of Komnick (1981), 84 Ill. 2d 89, 417 N.E.2d 1305.) In other words, property is either marital or nonmarital and not a combination of the two.

Our review of the record discloses that the company which was begun in 1960 was operated separate and apart from the father’s companies and that the only connection with the husband’s business and the father’s companies was that the husband would purchase materials from the father’s business and then reimburse the father’s business for the expenses. Additionally, the basal metabolism equipment which the father’s companies manufactured and sold had become obsolete and, at the time of the father’s death, there was virtually no market for equipment of this nature. On the other hand, the business begun by the husband in 1960 had become a moderately successful entity at the time of Horry Jones’ death. Furthermore, the parties included in their gross income the earnings from the business begun iri 1960 until the time of the father’s death. Upon the father’s death, the husband operated the company with a strong emphasis on the products which he had developed and, more or less, phased out sales of the basal metabolism equipment. Following the father’s death, it appears that the operations of the father’s company and the business begun in 1960 were combined and there was no attempt to segregate the operations of either. At the time that proceedings were held in this action, there was no way to ascertain what, if anything, remained of the father’s business. Implicit in our determination that the two businesses were commingled is the recognition that the parties used monies from their accounts to pay for various expenses, including the Oak Brook property, associated with the operations of the business begun in 1960. Accordingly, we hold that the business begun in 1960 by the parties and now known as Jones Medical Instrument Co., Inc., is marital property because the parties’ business was commingled and intertwined with the father’s business following his death. (See In re Marriage of Smith (1981), 86 Ill. 2d 518.) Accordingly, the trial court erred in its finding that $193,571 which was the book value of the stock inherited by the husband and held in the husband’s name alone was nonmarital property.

An issue which is related to our determination that Jones Medical Instrument Co., Inc., is marital property is the valuation of the company. Although we have no way to ascertain the rationale of the trial court in its finding that the adjusted book value of the company was approximately $31,000 greater than the corporation’s worth as stated on the company’s books, the court, upon remand, should clarify its findings. If this $31,000 increase is due solely to the difference between the fair market value of the Oak Brook real estate and the value for the property carried on the corporate books, then such a finding would be contrary to the manifest weight of the evidence since the three appraisals, when averaged, show an increase of nearly $105,000 over the property’s valuation in the company’s records and, therefore, would be error. (See In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.) On remand, the trial court should make a new determination as to the value of Jones Medical Instrument Co., Inc., including new appraisals, if necessary, and this amount will be considered marital property.

We do not believe that the trial court erred in finding that the stock trust established by the husband’s father prior to the parties’ marriage was nonmarital property. The court’s finding that the stock trust was segregated from the marital assets of the parties is amply supported by the evidence. Throughout the marriage, the husband reinvested most of the income generated by the trust. Since the stock trust is nonmarital property and since the husband did not commingle with marital property either the trust assets or the income generated by the trust, it follows that the stock trust was properly classified as nonmarital property. (See In re Marriage of Smith (1981), 86 Ill. 2d 518.) The appreciation in value of the stock trust was not due to an addition of marital funds, but was due to economic factors and is, therefore, also nonmarital property. In re Marriage of Komnick (1981), 84 Ill. 2d 89, 417 N.E.2d 1305.

On remand, it will be necessary for the court to reallocate the property of the parties and, therefore, it is unnecessary to address the second issue raised by the wife in this appeal.

The wife next contends that the trial court erred in failing to award her permanent maintenance. Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act provides that the trial court may award maintenance “only if it finds that the spouse seeking maintenance: (1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and (2) is unable to support himself through appropriate employment * 6 °, or (3) is otherwise without sufficient income.” (Ill. Rev. Stat. 1979, ch. 40, par. 504(a).) In discussing the award of maintenance, the supreme court stated:

“At all times, the court is to keep in mind that the ultimate objective is to achieve a division of property which is in ‘just proportions.’ Where the property available to the defendant spouse is sufficient to satisfy that spouse’s needs and entitlements, the use of maintenance should be limited. [Citation.] Thus, if sufficient marital property is found, an award of maintenance may be unnecessary. If there is not sufficient marital property, however, maintenance should be considered.” (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 38, 411 N.E.2d 238, 242.)

Since we have determined that the trial court erred in its classification of marital property and that this matter must be remanded for reclassification and reallocation of the property of the parties, it will be necessary to reconsider the issue of maintenance for the wife in light of the foregoing principles.

The final two issues raised by the wife concern the trial court’s order that the marital home of the parties be sold and that attorney fees of both parties be paid from the sale proceeds. Although the court found that the marital home was economically unfeasible to retain and that the home was a financial burden to the parties, we do not believe that there are adequate findings to support the court’s order for immediate sale. In addition, it has not been called to our attention in the record where either party requested the sale of the home. On remand, the court should be guided by the principles set forth in In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868, and Blazina v. Blazina (1976), 42 Ill. App. 3d 159, 356 N.E.2d 164, which outline the circumstances under which a court may order the sale of a marital home. Since we hold that it was error for the court to order the sale of the marital residence because of inadequate findings to support such a sale under Pieper and Blazina we also must reverse the court’s judgment as it pertains to the payment of attorney fees from the proceeds of sale.

Therefore, we affirm that portion of the trial court’s judgment which found that the stock trust was nonmarital property, that the home of the parties was marital property and that the pension and profit sharing plan was marital property. We reverse that portion of the trial court’s judgment which found that Jones Medical Instrument Co., Inc., was nonmarital property and that the appreciation of the company from the father’s death until the dissolution proceedings was marital property since we hold that the company is entirely marital property. We also reverse the court’s judgment as it pertains to the barring of an award of maintenance for the wife, the immediate sale of the marital home and the payment of attorney fees from the proceeds of sale because we believe that the ends of justice would be best served by allowing considerable latitude to the court in making the determination necessary in the division of assets as provided by law.

Accordingly, the judgment of the circuit court of Cook County is affirmed in part, reversed in part and remanded to the circuit court for a new trial consistent with this opinion.

Judgment affirmed in part; reversed in part; and remanded.

GOLDBERG and O’CONNOR, JJ., concur.

       We note that a similar venue problem exists in In re Marriage of Sales (Docket No. 80-3045) which currently is pending in this court. In that case, the parties were residents of Lake County, Illinois, at the time dissolution proceedings were commmenced in the circuit court of Cook County.