author: JUSTICE WHITE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY L. FOX, Defendant-Appellant.
    First District (3rd Division)
    No. 81—815
    Opinion filed May 11, 1983.
    Sidney I. Schenkier and Eugene R. Wedoff, both of Chicago (Jenner & Block, of counsel), for appellant.

      Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Richard B. Levy, and Daniel Jordan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE WHITE

delivered the opinion of the court:

After a jury trial, defendant, Anthony L. Fox, was found guilty of the murder and voluntary manslaughter of Charmette Parker, the attempted murder of Nathan Davis and home invasion. The trial judge entered judgment on all of these verdicts, and sentenced defendant to prison terms of 35 years for murder, 30 years for attempted murder, and 30 years for the home invasion conviction. Defendant appeals from these convictions and sentences.

On October 4, 1979, defendant shot and killed Charmette Parker; he also shot and wounded Nathan Davis. The events that gave rise to these shootings are as follows:

The evidence at trial showed that defendant first met Parker in April 1978. Defendant and Parker began dating regularly, exchanged keys to one another’s residences and, by January 1979, had made plans to marry. In August 1979, defendant learned that Parker was dating Nathan Davis. Shortly thereafter Fox resolved to break off the relationship with Parker and attempted to return the key to her townhouse. However, they both “broke into tears” at the thought of ending their relationship; Fox kept the key to Parker’s townhouse and they continued to see one another.

At approximately 11 p.m. on the night in question, Parker was at her home with Davis. While Davis and Parker were in the bedroom, Davis heard someone at the downstairs door. Davis got out of bed and stood in the hallway. Both Davis and Parker were undressed at that time. Defendant entered Parker’s home and when inside, took an automatic pistol from his shoulder holster and proceeded to run up the stairs toward the bedroom. Davis stepped back into the bedroom and closed the door. Defendant followed and, demanding entry into the room, fired a shot in the hallway. Davis then opened the door and defendant entered, at which time he saw Davis and Parker naked. Defendant shot Davis twice, once in the stomach and once in the knee. He then shot Parker twice in the head. Parker died as a result of defendant’s actions, Davis did not.

Defendant first argues that because the jury found him guilty of voluntary manslaughter, the trial court erred by entering judgment and sentencing defendant on the verdict of guilty of murder. Defendant asserts that the jury’s finding of guilty of voluntary manslaughter negates the mental state required for a murder conviction and, thus, defendant’s murder conviction must be vacated. We agree.

The crime of voluntary manslaughter is defined as follows:

“A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) The individual killed * * *.
* * *
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 2.)

Thus the offense of voluntary manslaughter is an acknowledgement by the law of the mitigating effect of human weakness and intense passion in an otherwise unjustified homicide. (People v. Leonard (1981), 83 Ill. 2d 411, 420, 415 N.E.2d 358.) The essential difference between murder and voluntary manslaughter is the mental state of the accused at the time of the killing. (People v. Slaughter (1980), 84 Ill. App. 3d 1103, 1111, 405 N.E.2d 1295.) Voluntary manslaughter has been described as “ ‘[a]n intentional homicide committed in a sudden rage of passion engendered by adequate provocation, and not the result of malice conceived before the provocation ***.’” (Emphasis added.) People v. Leonard (1981), 83 Ill. 2d 411, 420, quoting Perkins, The Law of Homicide, 36 J. Crim. L. & Criminology 391, 412 (1946).

The jury in this case returned a verdict of guilty of voluntary manslaughter. Therefore, it found that defendant was seriously provoked and acted under a sudden and intense passion. Such a finding is supported by the evidence that defendant found his fiance, Parker, and Nathan Davis, together, naked, in her bedroom. Moreover, this finding conclusively negated the requisite level of intent for the offense of murder and, thus, constituted an implied acquittal of the murder charge. See People v. Smith (1973), 16 Ill. App. 3d 553, 306 N.E.2d 606; People v. Echoles (1976), 36 Ill. App. 3d 845, 344 N.E.2d 620.

Nevertheless the jury also returned a verdict of guilty of murder. That verdict, however, does not negate the jury’s finding of voluntary manslaughter. (People v. Stuller (1979), 71 Ill. App. 3d 118, 389 N.E.2d 593.) In Stuller the jury returned verdicts of guilty of murder and guilty of voluntary manslaughter. The trial judge vacated the voluntary manslaughter verdict and entered judgment on the murder verdict. The appellate court reversed the murder conviction, and remanded the cause to the circuit court with instructions to enter a finding of guilty of voluntary manslaughter and to impose an appropriate sentence. The appellate court reasoned that a finding of voluntary manslaughter negated the requisite intent for the offense of murder and that the multiple verdicts were the result of a crucial element of a murder instruction being omitted.

We find Stuller dispositive of the instant case. Here, defendant’s conviction of voluntary manslaughter had the effect of an acquittal of the graver charge of murder. (See People v. Keith (1978), 66 Ill. App. 3d 93, 102, 383 N.E.2d 655.) The doctrine of former jeopardy bars any further prosecution on the greater offense, for if defendant were tried again for murder, a charge of which he has already been impliedly acquitted, he would be twice put in jeopardy for the same offense in violation of the provisions of our constitution. (Ill. Const. 1970, art. I, sec. 10; People v. Keith (1978), 66 Ill. App. 3d 93, 102.) Accordingly, we vacate defendant’s conviction of murder, affirm his conviction of voluntary manslaughter and remand for imposition of sentence on the voluntary manslaughter conviction.

Defendant next contends that the trial court erred in refusing to instruct the jury on aggravated battery as well as attempted murder for defendant’s shooting of Nathan Davis. The trial judge refused the tendered aggravated battery instruction on the ground that defendant shot Davis twice. The State maintains that the trial judge properly rejected defendant’s aggravated battery instruction since the evidence at trial clearly established defendant’s specific intent to kill.

If there is any evidence supporting the defendant’s theory of the case, then the court should allow an instruction tendered by defendant that embodies his theory. (People v. Ulatowski (1977), 54 Ill. App. 3d 893, 897, 368 N.E.2d 174.) Therefore, where there is sufficient evidence, a trial judge must instruct a jury on aggravated battery as a lesser included offense of attempted murder. People v. Smith (1981), 94 Ill. App. 3d 969, 419 N.E.2d 404.

Conviction for the crime of attempted murder requires a finding that defendant specifically intended to kill the victim, while aggravated battery requires no specific intent. (People v. Hancock (1980), 83 Ill. App. 3d 700, 704, 404 N.E.2d 914.) Aggravated battery involves the commission of a battery with the intention or knowledge that great bodily harm will result. Ill. Rev. Stat. 1979, ch. 38, par. 12 — 4(a).

In this case an instruction for the offense of aggravated battery should have been given. The fact that defendant shot Nathan Davis twice is consistent with the intent to kill that is necessary for attempted murder, but it does not necessarily show that. Rather, the firing of two shots, under the circumstances of the instant case, is also consistent with the finding of “intention or knowledge that great bodily harm will result.” From the evidence presented at trial, the jury could have concluded either that defendant possessed the specific intent to kill Davis or that defendant acted in the heat of passion and lacked the level of intent necessary to establish the offense of attempted murder. Therefore, defendant’s conviction for attempted murder is reversed and remanded for a new trial.

Defendant next contends that the State failed to prove beyond a reasonable doubt that defendant made an unauthorized entry into Parker’s apartment and, therefore, the home invasion conviction must be vacated. The offense of home invasion is defined by Illinois law as follows:

“A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons -within such dwelling place whether or not injury occurs, or
(2) Intentionally causes any injury to any person or persons within such dwelling place.” (Ill. Rev. Stat. 1979, ch. 38, par. 12-11.)

Under this statute the gravamen of the offense is the unauthorized entry. See People v. Bitner (1980), 89 Ill. App. 3d 1106, 1109, 412 N.E.2d 721.

On the record, before us we conclude that the jury could have found that defendant entered the home of Parker without authority. Defendant maintains that the State failed to prove his lack of authority to enter Parker’s house in light of his testimony which showed that he possessed a key to her townhouse and that he had contributed to payments on it and that on a number of occasions he had entered the townhouse without Parker’s permission. However, Nathan Davis testified that on the night in question, and immediately prior to defendant’s entry, he heard “the breaking of glass in the doorway.” Moreover the police officer who questioned defendant on the night in question testified that defendant told him that he had gained entry into Parker’s home by reaching through a previously broken pane of glass and unlocking the door. Therefore, even if defendant did possess a key to Parker’s home, in light of all of the evidence presented at trial, we believe that defendant’s conviction for home invasion was not so improbable or so palpably contrary to the verdict as to raise a reasonable doubt of guilt. People v. Yarbrough (1977), 67 Ill. 2d 222, 367 N.E.2d 666.

Defendant finally contends that the sentences imposed by the trial court were excessive because they fail to reflect mitigating factors and defendant’s rehabilitative potential and, thus, must be reduced. In light of our disposition of the foregoing matters we need not address this issue in regard to the sentences for murder and attempted murder. However, we must vacate defendant’s sentence on the home invasion conviction and remand for resentencing on that conviction. We cannot be certain that the presence of the murder and attempted murder convictions did not influence the trial court’s sentence on the home invasion conviction. See People v. Alejos (1982), 104 Ill. App. 3d 414, 432 N.E.2d 1046; People v. Filker (1981), 101 Ill. App. 3d 228, 229, 427 N.E.2d 1311.

In summary, defendant’s conviction of murder is vacated, his conviction of voluntary manslaughter is affirmed and remanded for imposition of sentence; his conviction of attempted murder is reversed and remanded for a new trial; and his conviction of home invasion is affirmed and remanded for resentencing.

Reversed in part, affirmed in part, and remanded with directions.

RIZZI and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDBERG

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROLAND SHEPARD, Defendant-Appellant.
    First District (1st Division)
    No. 82—0096
    Opinion filed May 9, 1983.

      Daniel F. Murray, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Thomas J. Finn, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GOLDBERG

delivered the opinion of the court:

After a jury trial, Roland Shepard (defendant) was convicted of rape, armed robbery, two counts of home invasion, attempted murder, and three counts of aggravated battery. Defendant was sentenced to 60 years’ imprisonment for each offense, all to run concurrently. He appeals.

Complainant testified that on June 16, 1981, a man she identified as defendant came to her door. He was wearing a yellow hard hat, a white shirt and black pants. Defendant told her he had been sent by her husband to look at the gas meter. She let him in. He grabbed a flashlight she was holding and hit her on the side of her face. He demanded money. She gave him $55 or $60. He pushed her into the bedroom, undressed her and raped her. Defendant told her he had a gun. After the rape, defendant demanded guns. He took two shotguns, a pistol, and shotgun shells and left. This took about half an hour.

Complainant’s father-in-law testified he was working in the garage. Complainant ran out from the apartment. She was crying and pale. She had a bruise on her face. She told him she had been raped and that the assailant went toward North Avenue. They went inside the building and called the police.

Michael Goy testified that on the afternoon in question at 1 to 1:30, he was driving on Keeler Avenue crossing North Avenue. He noticed a man, whom he identified as defendant, wearing a yellow hat, white shirt, and black pants. Defendant was carrying a long parcel from which a gun butt protruded. The witness was eight to 10 feet from defendant. He watched defendant walk into a gangway. The witness drove down an alley and saw defendant “come out” of the gangway without the parcel and without the hard hat. The witness then walked into the gangway. He saw two guns up against a wall. He identified two shotguns in court as the guns he recovered in the gangway. Complainant identified these guns as the property of her husband. An “old tablecloth” was wrapped around the guns. The witness rewrapped the guns and put them in his car. He saw squad cars in the area. He turned the guns over to the police.

Police officer John Scheckells testified he talked to complainant and put out a “flash message” describing the offender. The officer then “toured the area.” He observed Mr. Goy flagging down a police car. He stopped and Mr. Goy gave him the shotguns. The witness found the yellow hard hat in the gangway where Mr. Goy had found the guns. He identified a hat as the hat he found in the gangway.

Chicago police officer John Amoroso testified he was called to search for the offender. He observed defendant driving a blue Mercury. He followed defendant into a gas station. The officer demanded defendant’s driver’s license. While he was observing the license, defendant knocked him to the ground and pulled out the officer’s revolver. Defendant told the officer, “I’m going to kill you. You’re not taking me in for nothing.” As they struggled for the gun, more police officers arrived and pulled defendant off the witness. The witness was so enraged he hit the defendant twice before being restrained by the other officers. The witness saw a .22-caliber revolver in defendant’s car. This gun was identified as belonging to complainant’s husband.

Chicago police officer Korhonen testified he was touring the area searching for the offender. He saw Officer Amoroso wrestling with defendant at a gas station with the officer’s gun out of its holster. Defendant was holding the handle of the gun and Officer Amoroso had his hands on the cylinder. The gun was pointed at the face of Officer Amoroso. Officer Korhonen got on top of the two men and wedged his hand against the hammer to prevent the gun from firing. The trigger was pulled but the hammer struck the witness in the web of the right hand. The hammer did not hit the firing pin. Defendant was subdued and arrested.

Defendant testified he has never had a yellow hard hat. On the day of the rape, defendant was visiting his ex-wife and stopped for a couple of hours at a factory where he formerly worked. He stopped at the gas station because his car became overheated. Officer Amoroso asked him for his driver’s license. As he gave the officer his license, he noticed his car begin to roll. He tried to jump in and put it in park. Officer Amoroso pulled out his gun and struck defendant in the back of the head. Defendant grabbed the officer’s arm and they began to wrestle. During the scuffle another officer came and knocked defendant unconscious. After a few seconds he awoke to find himself handcuffed and being beaten. He was taken to the police station where he was questioned and beaten some more. Defendant was admitted to the hospital. He remained there from three to five days.

Defendant denied raping the complainant, trying to kill Officer Amoroso, or having a gun in his car. On cross-examination defendant admitted having been convicted of rape and deviate sexual assault in 1975.

On rebuttal, Detective Michael Heridogt testified he interviewed defendant on June 16, 1981, at the 14th District lockup. After advising defendant of his Miranda rights, defendant told the detective he had visited a woman whom he knew as “Delores.” Defendant gave the detective “Delores’ ” address which was complainant’s address. Defendant told the detective he had intercourse with “Delores” on numerous occasions. “Delores” told defendant she was having some problems with her husband and asked him to take the guns out of the house. Defendant took the guns and secreted them in a gangway.

The jury had no obligation to believe the defendant’s alibi which was uncorroborated and discredited by contrary evidence. (People v. Tennant (1976), 65 Ill. 2d 401, 412, 358 N.E.2d 1116, cert. denied (1977), 431 U.S. 918, 53 L. Ed. 2d 229, 97 S. Ct. 2184.) In our opinion the evidence proves defendant’s guilt beyond reasonable doubt and to an overwhelming degree. No point is made by defendant regarding proof beyond a reasonable doubt.

I

Defendant complains of improper final arguments by the prosecution:

(1) Reference to defense counsel as using “smoke screens” to confuse the jurors. This occurred twice but no objection was made to this argument. Also the prosecutor referred to defendant as a “dog.” No objection was made to this argument. Thus, these points are waived. People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739.

(2) The prosecutor said the defense attorney’s role was “to beat this case so that animal can walk out of here laughing at you ***.” He said the jury should not be afraid of defendant and they could “look that lying raping attempt murdering dog in the eye and tell him what you think of him.” In these instances, the trial court sustained objections by defense counsel and instructed the jury to disregard the objectionable matter. These errors were therefore cured. People v. Baptist (1979), 76 Ill. 2d 19, 30, 389 N.E.2d 1200.

(3) The prosecutor stated:

“Officer Korhonen could have killed him right then and there, he would have been justified, he would have saved all the tax payers’ money if he did kill him right there and he could have done it because he was trying to kill Officer Amoroso. He would have done us all a favor by killing him there.”

We find this statement by the prosecutor to be reprehensible and uncalled for. This type of argument constitutes an insult to the court and to the dignity of the trial bar. The situation is aggravated by the fact that the evidence of guilt is overwhelming. Against overpowering evidence of guilt, we have simply an alibi by defendant which was absolutely uncorroborated and which is negated by the rebuttal testimony such as that of Detective Heridogt. There was no need for the prosecutor to engage in these ugly tactics. Perhaps some reports to the Attorney Registration and Disciplinary Commission are required to provide an antidote for this virulent condition. In view of the overwhelming nature of the evidence, we are impelled to conclude that defendant was not prejudiced by the improper argument. (People v. Baptist (1979), 76 Ill. 2d 19, 29-30.) Also, defendant has failed to show that any or all of the assailed arguments constituted a material factor in the conviction. People v. Clark (1972), 52 Ill. 2d 374, 390, 288 N.E.2d 363.

(4) The trial court instructed the jury that remarks of counsel were not evidence. (Illinois Pattern Jury Instruction (IPI), Criminal, No. 1.03 (2d ed. 1981); see People v. King (1977), 66 Ill. 2d 551, 559, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) Also, the trial judge instructed the jury that the facts were to be determined solely from the evidence before them. IPI Criminal No. 1.01; People v. Olejniczak (1979), 73 Ill. App. 3d 112, 121-22, 390 N.E.2d 1339.

(5) It is manifest here that the evidence of guilt is so overwhelmingly strong that these assailed arguments were harmless error beyond any reasonable doubt. People v. Skorusa (1973), 55 Ill. 2d 577, 585, 304 N.E.2d 630, cited in People v. Battles (1981), 93 Ill. App. 3d 1093, 1099, 418 N.E.2d 22. See also People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.

Only these reasons restrain us from reversing the conviction before us.

II

In urging ineffective assistance of counsel, defendant cites trial counsel’s “lack of preparation,” his failure to remember the substance of a witness’ testimony during his opening statement, and his failure to develop an alibi defense in accordance with defendant’s testimony.

In Illinois a claim of ineffective representation by counsel is judged as follows (People v. Haywood (1980), 82 Ill. 2d 540, 543-44, 413 N.E.2d 410):

“[I]it must be established that counsel was actually incompetent in the performance of his duties and that substantial prejudice resulted from such incompetency, without which the results of the trial would have been different. [Citations.] However, if the alleged incompetency is a matter of trial tactics or strategy, which are purely matters of professional judgment, such allegations cannot support a claim of ineffective representation. [Citations.]”

Furthermore, the competence of defense counsel will be determined through an examination of the totality of the circumstances and the record as a whole. People v. Davis (1981), 103 Ill. App. 3d 792, 796, 431 N.E.2d 1210.

In the case at bar, at the end of trial, the trial judge stated to defense counsel, “Let me say this, Mr. Sherwin, you are a fine lawyer.” We find this unsolicited remark by the trial judge, who diligently watched and listened to the entire proceedings, to be quite informative.

In any event, because of the overwhelming nature of the evidence against defendant, we do not see how any alleged shortcomings of the defense counsel could possibly have affected the outcome. As regards failure of defendant’s counsel to present witnesses to bolster defendant’s alibi, it is painfully obvious that no such evidence existed. In any event, any such “failure” is merely an element of an attorney’s trial tactics which “cannot support a claim of ineffective representation.” (See People v. Haywood (1980), 82 Ill. 2d 540, 544.) We find no merit in this contention. No counsel for defendant could conceivably have changed the outcome of the instant trial.

Ill

In imposing sentence, the trial judge stated he was sentencing defendant to “sixty years, Department of Corrections, the extended term concurrent to all of the Class X felonies that you stand convicted before the bar of this court.” The Orders of Sentence and Commitment as written show 60 years prison terms for each of the rape, armed robbery, two counts of home invasion, the attempted murder and also for three counts of aggravated battery.

Aggravated battery is a Class 3 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 12 — 4(e).) The maximum sentence is five years (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—1(a)(6)), and the extended term is 10 years (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 8—2(a)(5)). Therefore, the sentences of 60 years for the three aggravated battery convictions are improper and will be vacated. However, all other crimes for which defendant stands convicted are Class X felonies. Defendant was subject to extended terms because he had been convicted of previous Class X felonies within 10 years prior to the instant convictions. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 5—3.2(bXl).) The 60-year sentences for the Class X felonies are within the statutory limits for an extended term. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-2(aX2).

We find the trial judge did not abuse his discretion in imposing the maximum 60-year sentence of the Class X felonies. (See People v. Willingham (1982), 89 Ill. 2d 352, 364, 432 N.E.2d 861.) Therefore, the sentences for the Class X felony convictions are affirmed.

For these reasons the judgment appealed from is affirmed in all respects except the sentences for aggravated battery are vacated.

Finally, the State’s motion for fees in the sum of $75 is granted. People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.

Affirmed in part, vacated in part.

BUCKLEY, P.J., and CAMPBELL, J., concur.


author: PRESIDING JUSTICE DOWNING

text:
    ROBERT C. PECHOUS, Third-Party Plaintiff-Appellant, v. FIELD ENTERPRISES, INC., et al., Third-Party Defendants-Appellees.
    First District (2nd Division)
    No. 82—830
    Opinion filed May 10, 1983.
    James E. Gierach and Robert M. Winter, both of Gierach & Schussler, Ltd., of Oak Lawn, for appellant.
    A. Daniel Feldman, Steven R. Gilford, and Rebecca J. Lauer, all of Chicago, for appellees.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

Appellant, Robert C. Pechous, appeals from the dismissal of his third-party complaint in which he sought equitable apportionment from his codefendants in a defamation suit for any damages which may be assessed against him. The facts of the underlying defamation action are briefly summarized before outlining the third-party complaint which is the basis of this appeal.

On June 28, 1976, seven aldermen on the Berwyn City Council brought a defamation acton against Pechous, who at the time of the incident was the city clerk, for statements that he uttered at a council meeting and for statements made to defendant Mark Fineman, a reporter employed by defendant Field Enterprises, Inc. The statements made by Pechous to Fineman regarding the awarding of a garbage collection contract by the city council were printed in an article in the May 12-13, 1976, edition of a weekly supplement to the Chicago Sun-Times published by Field. The aldermen appealed the grant of a summary judgment in favor of all defendants. This court held that actual malice was not shown on the part of Field and Fineman and thus the article was privileged under New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710. The dismissal of Pechous was reversed because this court found, and our supreme court agreed, that Pechous acted with actual malice, that is, with reckless disregard of whether a statement he made was true or false, and his comments were not privileged. Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 387 N.E.2d 714, aff'd (1980), 83 Ill. 2d 146, 419 N.E.2d 350, cert. denied (1981), 451 U.S. 911, 68 L. Ed. 2d 300, 101 S. Ct. 1981.

After the case was remanded to the trial court for a resolution of the issue of damages, Pechous filed a third-party complaint against Fineman and Field in which he alleged that by publishing the May 12 article they enhanced any damages plaintiffs may recover against him by altering and transforming the information he gave to Fineman. Pechous named six specific ways in which he claimed Field and Fine-man “aggravated and substantially increased the harm and damage to the plaintiffs, if any, by [their] contorted report of misquotation, material omission and editorial addition.” Field moved to dismiss the third-party complaint pursuant to sections 45 and 48(l)(d) of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, pars. 45, 48(l)(d)), now codified as sections 2 — 615 and 2 — 619(a)(4) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 615, 2 — 619(a)(4)), and the trial court dismissed the action. Trial on the aldermen’s damage claim against Pechous has been stayed pending this appeal of the dismissal of the third-party complaint.

Pechous bases his third-party action upon the theory of equitable apportionment, as enunciated in Gertz v. Campbell (1973), 55 Ill. 2d 84, 302 N.E.2d 40. In that case, a negligent motorist who injured the plaintiff sought indemnity from a third-party physician for that portion of the plaintiff’s damages which was caused by the physician’s malpractice. Our supreme court recognized the motorist’s right to bring the action, saying that to deny the claim would be to allow the physician an indefensible enrichment at the motorist’s expense. (Gertz v. Campbell (1973), 55 Ill. 2d 84, 91-92.) Pechous claims that the the ory of equitable apportionment is applicable to his action because Field’s article has enhanced plaintiffs’ damages and Field must be made to answer for the additions, omissions and interpretations contained in the article. He and Field are successive tortfeasors, Pechous argues, because the words spoken at the city council meeting and the publication of the article occurred at different times and he remains liable to plaintiffs for all foreseeable damage his actions caused.

Without commenting on the appropriateness of the theory of equitable apportionment to this particular set of facts, we affirm the trial court’s dismissal of the action by reason of the principle of collateral estoppel. This principle bars relitigation of matters previously decided in a subsequent action which alleges a different cause of action. (Pierog v. H. F. Karl Contractors, Inc. (1976), 39 Ill. App. 3d 1057, 1060, 351 N.E.2d 249, appeal denied (1976), 63 Ill. 2d 562.) Pechous argues that he was not an adversary of Field’s in,the underlying action, as no counterclaim was filed, no liability between the two was ever litigated, and in fact each argued compatible defenses. The supreme and appellate courts’ decisions which found Field did not act with actual malice, Pechous contends, were only based upon the aider-men’s allegations. Pechous claims that in his third-party complaint he is alleging different acts of wrongdoing in order to establish the actual malice of Field.

As support for his contention that collateral estoppel should not be applied here, Pechous relies upon Gay v. Open Kitchens, Inc. (1981), 100 Ill. App. 3d 968, 427 N.E.2d 338, appeal denied (1982), 88 Ill. 2d 550. In that case, the appellate court held that the third-party plaintiff might be able to recover on the theory of indemnity if it could prove the allegations which were not contained in the original suit, in spite of the summary judgment that was rendered in the previous suit. (Gay v. Open Kitchens, Inc. (1981), 100 Ill. App. 3d 968, 972.) Here, the theory of recovery which is advanced, equitable apportionment, is premised upon the fact that Pechous and Field are successive tortfeasors, and a finding by both the appellate and supreme courts that Field is not liable to plaintiffs prevents application of that theory. As stated in Gay, “a prior judgment can operate as a collateral estoppel only as to those issues and specific allegations that were actually controverted in the first proceeding.” (Gay v. Open Kitchens, Inc. (1981), 100 Ill. App. 3d 968, 972.) The issue and allegations regarding Field’s liability for the May 12 article were involved in plaintiff’s underlying defamation action and have already been resolved.

The doctrine of collateral estoppel, like res judicata, is founded upon the policy that a question once determined by a court should be considered final and conclusive on the parties. (City of Elmhurst v. Kegerreis (1945), 392 Ill. 195, 201, 64 N.E.2d 450.) When some specific fact or question has been directly in issue and decided upon, and the same fact or question is again put into issue by the same parties or their privies, the former adjudication is conclusive on the parties whether or not the cause of action is the same; further, the parties need not have been arrayed on opposite sides in the prior suit, nor must formal issues have been raised between them. (Lynch v. Chicago Transit Authority (1965), 62 Ill. App. 2d 220, 222, 210 N.E.2d 792.) The issue that Pechous is attempting to relitigate here is Field’s actual malice in publishing the article, and this issue is barred by the previous decisions in this case. These decisions establish the law applicable to this case. Because Field has been held to be nonliable to plaintiffs, Pechous is now prevented from recovering under the theory of equitable apportionment between successive tortfeasors. The complaint was properly dismissed.

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

Affirmed.

STAMOS and PERLIN, JJ., concur.


author: JUSTICE JOHNSON

text:
    JUANITA HENON, Plaintiff-Appellant, v. LEVER BROTHERS COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 82—1001
    Opinions filed May 5, 1983.

      Michael D. Gerstein, of Chicago (William J. O’Connor, of counsel), for appellant.
    Robert E. Maciorowski and Julie O’Connor, both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Juanita Henon, appeals an order of the trial court dismissing count II of her amended complaint which alleged retaliatory-discharge.

We reverse and remand.

On December 5, 1979, plaintiff filed a complaint against defendant, Lever Brothers Company, under section 8.01(a) of the Fair Employment Practices Act (Ill. Rev. Stat. 1977, ch. 48, par. 858.01(a)). Plaintiff alleged that in 1975 she sustained a back injury while employed by defendant. Although her injury prevented her from lifting heavy objects, defendant assigned her to jobs which required heavy lifting. Defendant assigned light duties to its white employees with similar injuries. Plaintiff claimed that she was wrongfully terminated on January 7, 1977. She prayed for lost wages and benefits and compensatory damages of $15,000.

On December 30, 1981, plaintiff amended her complaint to add count II in which she alleged that defendant violated section 4(h) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.4(h)) by wrongfully terminating her rights under that act. Defendant answered count II, claiming that it failed to state a cause of action and was barred by the statute of limitations. The trial court ruled that count II stated a cause of action but was barred by the statute of limitations. Plaintiff appeals.

In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, the Illinois Supreme Court recognized a civil cause of action for retaliatory discharge by an employee who exercised his rights under the Workmen’s Compensation Act. The sole issue to be decided here is the appropriate limitations period for a cause of action for retaliatory discharge.

Section 14 of the Limitations Act provides that “[a]ctions for damages for an injury to the person *** or for a statutory penalty *** shall be commenced within two years next after the cause of action accrued.” (Ill. Rev. Stat. 1975, ch. 83, par. 15.) Section 15 of the Limitations Act provides that “all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” Ill. Rev. Stat. 1975, ch. 83, par. 16.

The trial court ruled that a two-year limitation period applied to plaintiff’s cause of action for retaliatory discharge. Presumably it considered the cause of action to be one for a statutory penalty. Section 4(h) of the Workmen’s Compensation Act makes it unlawful for an employer to discharge an employee because of the exercise of rights or remedies granted by the Act. (Ill. Rev. Stat. 1975, ch. 48, par. 138.4(h).) Defendant contends that this statute is a statutory penalty and cites the proposition that if an individual is subjected to civil liability for the violation of a regulatory statute for the general protection of the public such liability is penal in character and barred by the two-year statute of limitations. Daly v. Columbia Broadcasting System, Inc. (7th Cir. 1962), 309 F.2d 83, 86.

In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 185, 384 N.E.2d 353, 358-59, our supreme court stated the following:

“[Retaliatory discharge is offensive to the public policy of this State as stated in the Workmen’s Compensation Act. This policy can only be effectively implemented and enforced by allowing a civil remedy for damages, distinct from any criminal sanctions which may be imposed on employers for violating the Act after 1975. The imposition of a small fine, enuring to the benefit of the State, does nothing to alleviate the plight of those employees who are threatened with retaliation and forgo their rights, or those who lose their jobs when they proceed to file claims under the Act. It is conceivable, moreover, that some employers would risk the threat of criminal sanction in order to escape their responsibility under the Act. Further, the fact that an act is penal in nature does not bar a civil remedy, and where a statute is enacted for the benefit of a particular class of individuals a violation of its terms may result in civil as well as criminal liability, even though the former remedy is not specifically mentioned.”

In our opinion, plaintiff’s cause of action is not an action for a statutory penalty because she does not seek the imposition of a fine but compensation for her wrongful discharge. (See McDonald’s Corp. v. Levine (1982), 108 Ill. App. 3d 732, 439 N.E.2d 475.) Plaintiff’s cause of action is governed by section 15 of the Limitations Act which provides a five-year limitation period for “all civil actions not otherwise provided for.” Ill. Rev. Stat. 1975, ch. 83, par. 16.

Defendant also argues that under Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 421 N.E.2d 876, retaliatory discharge is a tort for which the two-year limitation period applies. Although in that case our supreme court did describe retaliatory discharge as a tort, it is a tort arising out of a contractual relationship. In Del Bianco v. American Motorists Insurance Co. (1979), 73 Ill. App. 3d 743, 392 N.E.2d 120, the appellate court applied a five-year limitation period to a tort arising out of a contractual obligation.

Plaintiff’s cause of action accrued on January 7, 1977, and she amended her complaint to allege retaliatory discharge on December 30, 1981. This amendment was within the five-year limitation period. Therefore, we hold that the trial court erred in dismissing count II of plaintiff’s amended complaint.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded.

Reversed and remanded.

ROMITI, P.J., and LINN, J., concur.


text:
      In re ESTATE OF BRIAN R. HADER, a Minor (The Hanover Insurance Company, Petitioner-Appellee, v. Roselle State Bank & Trust Company, Respondent-Appellant (Cook County, Appellee)).
    First District (2nd Division)
    No. 82—702
    Opinion filed May 10, 1983.

      Ray F. Drexler, Alan S. Ganz, and Stephen D. Sharp, all of Rooks, Pitts, Fullagar & Poust, and Edward S. Mraz, of Edward S. Mraz, Ltd., both of Chicago, for appellant.
    James M. Corcoran, Jr., Sheribel Rothenberg, and Randy S. Gussis, all of D’Ancona & Pflaum, of Chicago, for appellee Hanover Insurance Company.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court;

This appeal arises from a February 23, 1981, order of the trial court denying the appearance of Rooks, Pitts, Fullagar and Poust (Rooks) as attorneys on behalf of Roselle State Bank and Trust Company (Roselle) in a citation proceeding pursuant to section 16 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. IIOV2, par. 16 — 1). By the February 23 order, the trial court also denied Roselle’s motion to vacate an October 14, 1981, order finding Roselle in contempt of court for its failure to comply with a citation to discover information to produce documents pursuant to section 16 — 1. Roselle was assessed afine of $1,500.

The following issues are raised on appeal: (1) was the trial court’s order of February 23, 1982, a final and appealable order subject to the review of this court; (2) does this court lack jurisdiction to review the October 14, 1981, contempt order of the trial court; (3) was Rooks properly denied leave to file its appearance; (4) did the trial court abuse its discretion when it found Roselle to be in civil contempt of court; and (5) is Roselle’s request for attorney fees properly before the court?

The underlying facts of this case are as follows: James R. Hader (Hader) was appointed plenary guardian of the estate of his son, Brian, on October 15, 1980. Brian’s estate consisted of $182,190.85 received as settlement of a personal injury suit. John T. Conroy was attorney for Hader and on February 17, 1981, Conroy filed a petition requesting that the probate court issue a citation to Hader to produce all records concerning the property of Brian Hader, appoint a special administrator for Brian and remove Hader as plenary guardian.

As a result of Conroy’s petition, a citation was issued against Hader ordering him to appear before the court and appointing Leon M. Despres as guardian ad litem (GAL) for Brian. The GAL notified the Hanover Insurance Company (Hanover), the surety of Brian’s estate, that there was evidence that the estate was in jeopardy and requested that Hanover join in efforts to protect the estate. James M. Corcoran, Jr. entered his appearance as attorney for Hanover on April 14, 1981.

On April 14, 1981, James R. and Janice K. Hader were examined under oath and disclosed that two bank accounts at Roselle State Bank and Trust Company (Roselle) contained the majority of Brian’s estate. Judge Alvin Turner issued an order on April 28, 1981, restraining the Haders from removing funds from these accounts and ordering evidence of ownership of these accounts to be assigned to Hanover or to the GAL.

On June 29, 1981, Corcoran filed a petition requesting that three citations to discover information and to produce documentation issue to Manning Savings and Loan Association (Manning),' Palatine National Bank (Palatine) and Roselle. That same day, the citations were issued, returnable on July 23, 1981, requiring an appearance on behalf of the three named institutions for purposes of examination regarding knowledge of the property of Brian and requesting the production of all information in their possession and control regarding the property of Brian. The form citation contained a small print admonition concerning exposure to contempt of court for failure to comply with the citation. Each citation was timely served by the sheriff of each county of the residence of the three respondents.

On July 23, 1981, Manning appeared in court and a hearing took place. Palatine transmitted information to Corcoran pursuant to the citation but did not appear at the hearing. As a result of Roselle’s failure to appear or respond adequately, Corcoran petitioned for, and the court issued, an order directing the clerk of the court to issue a citation for rule to show cause why Roselle should not be held in contempt of court for its failure to respond to the citation or appear at the July 23 hearing. The return date of the rule to show cause was September 10, 1981. On September 10, a hearing was held on the issue of contempt. The testimony from that hearing shows that on July 24, an employee of Roselle discovered that the citation for the July 23 hearing had been misfiled. Employees of Roselle testified that they had attempted to contact Corcoran in order to comply with the citation by providing the requested information. Although Corcoran acknowledged receiving these phone calls, he refused to talk to the employees, claiming that to do so would violate Rule 7 — 104(a) of the Illinois Code of Professional Responsibility (87 Ill. 2d R. 7—104(a)), which prohibits communications, absent the opposing attorney’s consent, by an attorney during the course of representation with a party he knows to be represented by a lawyer in that matter. At the September 10 hearing, Roselle produced some of the documentation requested by Hanover in the citation. Roselle had previously transmitted to Hanover additional information requested by the citation.

Edward D. Mraz, one of Roselle’s attorneys, had not filed an appearance to represent Roselle prior to the September 10 hearing, nor did he request permission at the hearing to do so. There was no objection to Mraz’ representation, but Corcoran suggested that an appearance be filed on behalf of the banks to facilitate continuing notice in the matter. The citations issued were continued, and Corcoran revealed that additional information was yet to be provided by both Palatine and Roselle.

Following the discovery hearing, argument was heard on the rule to show cause why both banks should not be held in contempt. Judge Turner concluded that both banks were in civil contempt of the court. Roselle was fined $1,500 and Palatine was fined $750. Judgment for contempt was entered on October 14, 1981.

On November 12, 1981, Rooks filed a written appearance on behalf of Roselle and the following pleadings: (1) a motion to vacate the memorandum of order and judgment for contempt; and (2) a memorandum in support of the motion to vacate. Each of these pleadings revealed that Rooks represented Roselle and contained Rooks’ address and identified the attorneys at Rooks’ firm handling the Roselle matter. Rooks was involved in subsequent matters on Roselle’s behalf, including a motion to certify the report of proceedings from the September 10 hearing, presented to Judge Turner on December 4, 1981, by Stephen D. Sharp of Rooks. Subsequent to this motion, several continuances on certain of Rooks’ motions were made and notices of such continuances were filed. Upon the insistence of Corcoran, on January 7, 1982, Rooks filed a motion for leave to file an appearance as additional counsel. On January 29, 1982, Hanover filed a petition to strike the appearance of Rooks and to strike Roselle’s motion to vacate the contempt order on the basis that Rooks’ appearance was void and therefore the motion to vacate was of no effect. Hanover alleged the appearance originally filed was void for failure to comply with circuit court of Cook County Rule 1.4.

A hearing on Hanover’s motion to strike the pleadings of Roselle and Rooks’ appearance was held on February 23, 1982. At the beginning of the February 23 hearing, Alan S. Ganz of Rooks turned over to the GAL the last of the assets of the Hader estate in Roselle’s possession. The focus of the hearing then turned to Rooks’ appearance and Roselle’s motion to vacate the contempt order. Following argument, the trial court determined that Rooks had failed to comply with the requirements of circuit court Rule 1.4 which reads as follows:

“1.4 Appearance and Withdrawal of Attorneys
(a) Addressing the court — An attórney shall file his appearance before he addresses the court unless he is presenting a motion for leave to appear by intervention or otherwise.
(b) Notice of withdrawal — An attorney may not withdraw his appearance for a party without leave of court nor unless he has given reasonable notice of the time and place of the presentation of the motion for leave to withdraw by personal service or by registered or certified mail, directed to the party represented by him at his last known business or residence address.
(c) Motion to withdraw — The motion for leave to withdraw shall be in writing and, unless another attorney is substituted, shall state the last known address of the party represented. The motion may be denied by the court if the granting of it would delay the trial of the case.”

The trial court then granted Hanover’s motion to strike Rooks’ appearance. The trial court further denied Roselle’s motion by Rooks to vacate the contempt order of October 14, 1981. The order of February 23 included a phrase which read: “There is no reason for delaying enforcement or appeal of this order.”

On March 23, 1982, Rooks, on behalf of Roselle, filed a notice of appeal challenging: (1) the trial court’s order of October 14, 1981, requiring the continued production of documents regarding the Hader estate and finding Roselle in civil contempt; (2) the order of December 14, 1981, in which the trial court denied Roselle’s motion to certify the report of proceedings from the September 10 hearing; and (3) the February 23 order. Additionally, for the first time since these proceedings began, Rooks has made a request in this court for attorney fees.

Hanover filed a motion in this court challenging our jurisdiction to review the February 23 order of the trial court and the timeliness of Roselle’s appeal of the October 14 and December 14, 1981, orders. Hanover’s motion to dismiss those portions of Roselle’s appeal dealing with our authority to review the trial court’s orders was taken with this appeal.

I

Initially, we consider our authority to review the orders of the trial court. By motion filed with this court, Hanover contends that the February 23, 1982, order striking Rooks’ motion for leave to file its appearance is not a final and appealable order. Additionally, based upon the alleged faulty appearance of Rooks, the trial court summarily denied Roselle’s motion to vacate the contempt order filed by Rooks. The trial court concluded the February 23 order by stating that “there [was] no reason for delaying enforcement or appeal of the order.”

It must be remembered that even though an order of a trial court includes language which indicates that there is no just reason for delaying the appeal of that order, the order will not be appealable if it is not final. (Chicago Title & Trust Co. v. Guaranty Bank & Trust Co. (1978), 59 Ill. App. 3d 362, 364, 375 N.E.2d 522.) Generally, “an order striking the appearance of an attorney pertains merely to a matter collateral to the main issue and is not a final and appealable order.” Chicago Title & Trust Co. v. Guaranty Bank & Trust Co. (1978), 59 Ill. App. 3d 362, 363.

Roselle argues that the trial court’s denial of Rooks’ motion for leave to file its appearance is so intimately linked to their rights in the contempt matter that the February 23 order is final and appealable. After denying Rooks’ appearance, the trial court denied Roselle’s motion to vacate the October 14 contempt order, concluding that all matters filed by Rooks on Roselle’s behalf were without effect due to the faulty appearance.

The trial court’s decision to deny Rooks’ motion to file its appearance as additional counsel for Roselle was based on its understanding of the requirements of circuit court Rule 1.4. However, Rooks was in strict compliance with Rule 1.4. (Tobias v. King (1980), 84 Ill. App. 3d 998, 1001, 406 N.E.2d 101.) This court in Tobias points out that Rule 1.4 is a supervisory tool without specific sanctions for failure to comply with it. (Tobias v. King (1980), 84 Ill. App. 3d 998, 1001.) Rule 1.4 requires an attorney to file an appearance, so as to inform the court and the parties of who is representing each party and where that person may be served with necessary notices. (Tobias v. King (1980), 84 Ill. App. 3d 998, 1001.) Here, the record shows numerous pleadings which informed the court and interested parties that Rooks represented Roselle and where they could be contacted. Hanover was notified by the November 12, 1981, pleadings that Rooks represented Roselle. The pleadings included the name, address and phone number of the attorney handling the matter at Rooks. Hanover has not shown how Rooks’ representation or the manner in which Rooks attempted to appear on behalf of Roselle prejudiced Hanover or delayed, inconvenienced or confused the court or the parties. (Tobias v. King (1980), 84 Ill. App. 3d 998, 1001.) Frankly, we are at a loss to understand Hanover’s actions and the trial court’s orders in this respect. Nothing has been pointed out in the record which justified these delaying, harassing and unnecessary tactics.

After the trial court erroneously determined that Rooks was not in compliance with Rule 1.4, it summarily denied all motions filed by Rooks, including Roselle’s motion to vacate the contempt order of October 14, 1981. Since Rooks was in strict compliance with Rule 1.4, the additional pleadings filed on Roselle’s behalf should not have been summarily denied. The motion to vacate the contempt order was timely filed and a hearing on that motion should have been held. Although the underlying matters regarding the estate of Brian Hader were continuing, the rights of Roselle regarding the contempt order of October 14 were concluded by the February 23 order, which was, therefore, appealable. Almon v. American Carloading Corp. (1942), 380 Ill. 524, 530, 44 N.E.2d 592.

Hanover also asserts that Roselle may not appeal the October 14 contempt order since it failed to file a notice of appeal within 30 days of that order pursuant to Supreme Court Rule 303 (87 Ill. 2d R. 303). However, the post-judgment motion to vacate the October 14 contempt order was timely filed, and the denial of that motion is reviewable, as was the related order of December 14, 1981, regarding the certification of the report of proceedings of October 14. (Sears v. Sears (1981), 85 Ill. 2d 253, 258, 422 N.E.2d 610 (where the supreme court concluded that a notice of appeal must be filed within 30 days of denial of a post-trial motion and filing a second post-trial motion will not extend that time limit).) For the aforesaid reasons, Hanover’s motion to dismiss portions of this appeal is denied.

II

Having determined that the orders of the trial court in this matter are properly before this court, we now address the propriety of the contempt order entered against Roselle. It is Roselle’s contention that the trial court abused its discretion by finding it to be guilty of civil contempt and imposing a penalty of $1,500. We agree.

In its October 14, 1981, order finding Roselle guilty of civil contempt, the trial court found Roselle “did knowingly, wilfully and intentionally refuse to, and did not, produce ***” and did so “for the purpose of obstructing, impeding and thwarting the administration of justice and defy the processes of the court.” Further, the court found that Roselle “failed to show cause why it should not be punished as and for civil contempt for knowingly, wilfully and intentionally violating the citation ***.”

Contempt of court has generally been defined as “ ' “conduct calculated to embarrass, hinder or obstruct a court in its administration of justice or to derogate from its authority or dignity, or bring the administration of law into disrepute.” ’ ” (People v. Robinson (1981), 100 Ill. App. 3d 660, 662, 427 N.E.2d 288, quoting People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 59-60, 364 N.E.2d 50, cert. denied (1978), 434 U.S. 1023, 54 L. Ed. 2d 771, 98 S. Ct. 750.) Contempt proceedings possess characteristics of both civil and criminal law, yet they are neither civil nor criminal. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1977), 56 Ill. App. 3d 229, 233, 371 N.E.2d 294, appeal denied (1978), 71 Ill. 2d 598.) Contempt proceedings which are civil in nature are defined as those prosecuted to enforce the rights of private parties and to compel obedience to orders of the court for the benefit of opposing parties. (47th & State Currency Exchange, Inc. v. B. Coleman Corp. (1978), 56 Ill. App. 3d 229, 233.) A finding of civil contempt is a matter of fact to be determined by the trial court, and it will not be disturbed on review unless there is a clear abuse of discretion. (People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 276, 438 N.E.2d 1273.) However, “[a] civil contempt decree must provide defendant with the keys to his cell, enabling him through compliance with the terms of the command to purge himself of contempt.” Continental Illinois National Bank v. Brack (1979), 71 Ill. App. 3d 789, 792-93, 390 N.E.2d 373.

In the instant case, there is no dispute that Roselle failed to respond to the citation to discover information on or before the hearing which was held on July 23, 1981. However, the record reveals Roselle’s continued attempts to comply with the citation and that full compliance with the citation was achieved on or before February 23, 1982. The trial court was persuaded that Roselle had so inconvenienced the parties and the court by its failure to comply with the citation on or before the July 23 return date that an order of contempt was warranted.

We have searched the record for any evidence that the action of Roselle was wilful, intentional or contumacious. The record fails to support these essential findings, nor could counsel for Hanover at oral argument point to any evidence to support these findings. There is no dispute that Roselle failed to comply through office procedure carelessness. But once that fact was discovered, Roselle attempted to do what had to be done. What followed was the amazing lack of cooperation on the part of the attorney for Hanover. We believe this entire problem could have been, yes, should have been, avoided by normal cooperation rather than the unfortunate attempt to use Rule 7 — 104(a) of the Code of Professional Responsibility (87 Ill. 2d R. 7—104(a)). As we understand the record, Roselle did not have an attorney of record in the citation proceedings at the time Roselle employees were attempting to work with Hanover’s attorney. Recipients of citation proceedings should not be compelled to employ attorneys to process the furnishing of information and documents of the type involved in this matter.

Roselle, having been served with a rule to show cause, attempted to furnish everything requested. In our opinion, Roselle, even if its conduct could be characterized as contumacious, purged itself. The purpose of imposing any civil sanction against Roselle abated, and further sanctions were unwarranted. (People ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Association (1982), 108 Ill. App. 3d 266, 277.) As we have noted, counsel for Hanover was less than cooperative in Roselle’s efforts to comply with the citation. It is not readily understood why counsel for Hanover was not anxious to have Roselle comply with the citation but Roselle should not be punished for the failure of its efforts which, in part, resulted from uncooperative opposing counsel. See Prairie States Petroleum Co. v. Universal Oil Sales Corp. (1980), 88 Ill. App. 3d 753, 758, 410 N.E.2d 1008 (where it is noted that a party cannot be held in contempt when he is unable to comply with court order through no fault of his own).

Ill

Roselle contends that they are entitled to attorney fees for defending frivolous and untrue trial court pleadings and for prosecuting this appeal. Roselle’s request for attorney fees is made pursuant to section 41 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 41), now codified as section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 611). According to Roselle, the attorney for Hanover intentionally made false statements to the trial court and filed pleadings (i.e., rule to show cause) which made it appear that Roselle was refusing to comply with the citation to discover information. Also, Roselle points out that Hanover’s attorney was well aware of Rooks’ representation of Roselle and yet persisted in requests to have Rooks file an appearance.

Hanover argues that the issue of attorney fees is not properly before this court because it was not raised in the trial court and is therefore waived. Also, Hanover argues that a “citation to discover” does not fall within the anticipated scope of section 41.

It has long been established in Illinois that a court of review may entertain a motion for attorney fees pursuant to section 41 even though such a request was not made in the trial court. (See Brooks v. Goins (1967), 81 Ill. App. 2d 12, 21-22, 225 N.E.2d 707.) We feel, however, that a determination of the propriety of attorney fees in this case is better left to the trial court after a hearing on remand.

The finding of contempt is reversed and the cause is remanded to the trial court for a hearing on the issue of attorney fees. Because we have reversed the finding of contempt, it is unnecessary for us to address the issue raised by Roselle regarding the nature and amount of the fine imposed.

The judgment of the circuit court of Cook County is reversed and the cause remanded for a hearing on the issue of attorney fees.

Reversed and remanded.

PERLIN and HARTMAN, JJ., concur.

      “Rule 7 — 104. Communicating With One of Adverse Interest
      (a) During the course of his representation of a client a lawyer shall not
      (1) communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so; or
      (2) give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.”

      At oral argument before this court we wondered why phone calls from Roselle employees were refused by counsel for Hanover. The argument offered by counsel for Hanover that to answer the calls would violate Rule 7 — 104(a) of the Illinois Code of Professional Responsibility (87 Ill. 2d R. 7—104(a)) is without merit.


text:
    ST. AUGUSTINE’S CENTER FOR AMERICAN INDIANS, INC., Plaintiff-Appellant, v. THE DEPARTMENT OF LABOR et al., Defendants-Appellees.
    First District (2nd Division)
    No. 82—1356
    Opinion filed May 10, 1983.
    Rehearing denied June 9, 1983.
    A. Bruce White, of Karaganis, Gail & White, Ltd., of Chicago, for appellant.

      Neil F. Hartigan, Attorney General, of Springfield (Scott J. Linn, Special Assistant Attorney General, of counsel), for appellees.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

This is an appeal from the circuit court’s affirmance of a determination made by defendant, the Illinois Department of Labor, that plaintiff, St. Augustine’s Center for American Indians, Inc., is not exempt from paying employer’s contributions under the Unemployment Insurance Act (Ill. Rev. Stat. 1981, ch. 48, par. 300, et seq.).

Plaintiff was founded in 1962 in Chicago by an Episcopal priest, Father Peter J. Powell. According to the bylaws, it was “established to provide counseling, casework and supportive services, and scholarship aid for American Indians, primarily those resident in Chicago.” Plaintiff is a separate legal entity with the backing of the Episcopal Church of Chicago. The Bishop of the Episcopal Diocese of Chicago is an ex officio member of the board of trustees, an ex officio member of the corporation and its ex officio president. All members of the corporation and at least two-thirds of the board of trustees must be members of the Episcopal Church.

The building plaintiff owns and uses for its activities has three stories with a chapel on the first floor. Approximately 2,500 American Indian families are helped annually by plaintiff, by means of monetary assistance, food, clothing, job training, counseling and other services. Mass is offered in the chapel twice daily and on Sundays; confessions are heard at least once weekly and priests offer the full range of sacraments.

In late 1974, upon learning of a change in the Unemployment Compensation Act (Act), plaintiff contacted defendant in order to obtain a determination of whether it was exempt from coverage. After initially being told that it was exempt, plaintiff was notified on September 28, 1978, that it was covered under the Act and an assessment and demand for payment of unpaid contributions was made for the period covering November 1, 1974, through August 1, 1978. Since that date, plaintiff has been paying the contribution voluntarily, but filed a timely protest to the determination and the assessment.

On February 22, 1979, a hearing was held before the Director’s representative, during which plaintiff presented documentary and testimonial evidence. Plaintiff argued that it was exempt from paying contributions under section 211.3(A)(2) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 321.3(A)(2)) as an organization operated primarily for religious purposes. On January 29, 1980, the Director’s representative issued his report which contained the finding that plaintiff was not operated primarily for religious purposes and the recommendation that a minor modification be made to the Department’s assessment. On February 15, 1980, before the period allowed for filing objections to the report had expired, the Director rendered a final decision affirming the representative’s report. On February 22, 1980, plaintiff filed its timely objections to the report.

Plaintiff filed a complaint for administrative review in the circuit court of Cook County. The trial court remanded the matter to the Department because it failed to consider plaintiff’s objections before affirming the report of the Director’s representative. After the Director overruled plaintiff’s objections, oral argument was held in the circuit court on plaintiff’s amended complaint. On May 3, 1982, a final order was entered by the trial court affirming defendant’s decision and assessing the amount of $11,030.72 plus costs for unpaid unemployment insurance contributions and interest.

STATUTORY HISTORY

Prior to January 1, 1972, section 221 of the Unemployment Compensation Act exempted services performed for a “foundation, organized and operated exclusively for religious, charitable *** or educational purposes ***.” (Ill. Rev. Stat. 1969, ch. 48, par. 331.) As a result of changes in the Federal Employment Security Amendments of 1970, all States were required to extend, by 1972, State unemployment insurance coverage to nonprofit organizations. In response, Illinois amended section 221 of the Act to no longer apply to services performed in the employ of a nonprofit organization. Section 211.2 of the Act provides that the term “employment” does include services performed by individuals working for a nonprofit organization that is “organized and operated exclusively for religious, charitable *** purposes ***.” Ill. Rev. Stat. 1981, ch. 48, par. 321.2.

The next section, 211.3(A)(2), however, allows for a religious organization exemption and states that “employment” shall not include services performed in the employ of an organization “which is operated primarily for religious purposes and which is operated, supervised, controlled or principally supported by a church or convention or association of churches.” (Ill. Rev. Stat. 1981, ch. 48, par. 321.3(A)(2).) The second of the dual requirements, concerning control or supervision by a church, is not being questioned in this appeal, as the Department conceded that plaintiff meets this prerequisite. The sole issue with regard to the statute, therefore, is whether the trial court correctly agreed with the Director that plaintiff is not “operated primarily for religious purposes.” Plaintiff also argues on appeal that this decision was against the manifest weight of the evidence. For further history of the Act and the historical context of unemployment insurance programs, see Community Renewal Society v. Department of Labor (1982), 108 Ill. App. 3d 773, 777-78, 439 N.E.2d 975.

I

The portion of the Act involved in this appeal (Ill. Rev. Stat. 1981, ch. 48, par. 321.3(A)(2)) had not been judicially construed in Illinois at the time both the Director and the trial court made their respective decisions in regards to plaintiff’s exemption under it. This section has been subsequently examined by this court in Community Renewal Society v. Department of Labor (1982), 108 Ill. App. 3d 773, 439 N.E.2d 975 (Community Renewal). Relying upon this case, plaintiff argues that the Director utilized an erroneous standard which would, as in Community Renewal, warrant a reversal of the Director’s decision.

The following well-established rules of statutory construction are applicable in this situation: the Unemployment Compensation Act is a benevolent attempt to shield unfortunate persons from economic burdens caused by involuntary unemployment; the statute must be liberally construed with this objective in mind; the burden of proving a tax exemption is upon the one claiming it; exemption statutes are strictly construed; and debatable questions are resolved in favor of taxation. Ducks Unlimited, Inc. v. Grabiec (1971), 133 Ill. App. 2d 134, 140, 272 N.E.2d 657.

It is also well established that the role of the courts, in reviewing administrative decisions, is not to weigh the evidence, but is limited to ascertaining whether the agency’s findings are against the manifest weight of the evidence. (Degrazio v. Civil Service Com. (1964), 31 Ill. 2d 482, 489, 202 N.E.2d 522.) The conclusions of the agency on questions of fact are held to be prima facie true and correct. Ill. Rev. Stat. 1981, ch. 110, par. 274.

This court in the Community Renewal case determined that based upon the Illinois statutory amendment to section 211.3(A)(2) of the Act, which adopted verbatim the language in the Federal Unemployment Tax Act (FUTA) exemption, the previous Illinois cases which construed the phrase “religious purposes” were no longer controlling. (Community Renewal Society v. Department of Labor (1982), 108 Ill. App. 3d 773, 779.) The Director of the Department of Labor in that case erroneously based his interpretation of the statute upon language in People ex rel. McCullough v. Deutsche Evangelisch Lutherische Jehovah Gemeinde Ungeaenderter Augsburgischer Confession (1911), 249 Ill. 132, 137, 94 N.E. 162, which held that “religious purpose” meant use of the property for “public worship, Sunday schools and religious instruction.” The Community Renewal court recognized that this error of law affected the Director’s deliberations and thus his decision had to be overturned. Community Renewal Society v. Department of Labor (1982), 108 Ill. App. 3d 773, 778-80.

Plaintiff strenuously contends that in the instant case, the Director likewise applied an erroneous standard. Plaintiff points to several comments the Director made during the hearing as well as to several references in the report to support this contention: for example, the Director’s representative framed the issue as whether plaintiff is a “nonprofit corporation under the Act organized and operated primarily for charitable purposes”; the representative focused upon plaintiff’s bylaws and articles of incorporation; the representative utilized the narrow definition of “religious purpose” as use of property “for public worship, Sunday schools and religious instruction,” quoting People ex rel. Carson v. Muldoon (1922), 306 Ill. 234, 238, 137 N.E. 863; and that the representative’s conclusion stated that “we conclude, based on petitioner’s corporate charter and by-laws, that it is a charitable not-for-profit corporation whose primary purpose is to assist American Indians in the Chicago area.” (Emphasis added.)

During the review of the Department’s decision, the trial court agreed with plaintiff that “the nature of St. Augustine’s organization should not have been dispositive.” After noting the legislative changes in the statute which deleted the organization and exclusivity requirements in section 211.3 of the Act, the trial court nevertheless affirmed the agency’s decision because it could not conclude that the representative’s decision was premised solely on plaintiff’s organizational structure. The court commented that in light of all the evidence that was presented regarding plaintiff’s actual functions and activities, “[e]ven without considering the charter and by-laws this Court concludes that the evidence supports the Director’s decision that St. Augustine’s is operated primarily for charitable purposes.” The trial court agreed with the Director’s finding that the religious services which plaintiff offered “were only incidental to the Center’s primary charitable function of providing secular assistance and benefits to American Indians.” The trial court therefore affirmed the Department’s decision as not being against the manifest weight of the evidence.

After a review of the record, we conclude that the trial court was correct in its analysis of the law and the record. We have considered the numerous cases plaintiff cites from other jurisdictions which, like Community Renewal, reject the narrow definition of “religious purposes” as being limited to public worship and religious instruction activities. We agree with the Ohio Court of Appeals that the terms “charitable” and “religious” are not mutually exclusive and that “[i]t is true that the mere fact that an organization is charitable does not necessarily mean that it is religious, but, conversely, the fact that an organization is charitable does not preclude it from being religious.” (St. Vincent DePaul Shop v. Admr., Unempl. Ins. Rep. (CCH) par. 8914, at 38, 676 (Ohio Ct. App. Sept. 17, 1974).) While the record in the instant case indicates that plaintiff offers religious services, we agree with the conclusion that the “primary” purpose of the Center is to offer social services and the religious purpose is only secondary. As one court noted, the use of the word “primarily” necessarily contemplates an additional attribute and means “of first importance” as opposed to “secondarily.” Department of Employment v. Champion Bake-N-Serve, Inc. (1979), 100 Idaho 53, 55, 592 P.2d 1370, 1372.

Plaintiff’s assistant director testified at the hearing before the Director’s representative that “the emphasis, thrust of the program and the main goal of the program is the same. To help out American Indian families who are coming to Chicago to achieve a better life, both morally, spiritually and physically.” The fact that religious services and guidance are provided by the plaintiff does not preclude a determination that the Center’s primary goal is to provide secular assistance to American Indians in the Chicago area.

We also note that the report of the House Ways and Means Committee on the Employment Security Amendments of 1970, relied upon in Community Renewal because of the close causal relationship between FUTA and our Act, offers this guideline as to what services would be exempt which were performed for organizations “operated primarily for religious purposes”:

“ ‘***[A] church related (separately incorporated) charitable organization (such as, for example, an orphanage or a home for the aged) would not be considered under [section 3309(b)(1) of FUTA] to be operated primarily for religious purposes.’ ” Com munity Renewal Society v. Departmemt of Labor (1982), 108 Ill. App. 3d 773, 781.

Keeping in mind that each tax-exemption case must be determined on its individual facts (Inter-Varsity Christian Fellowship of the United States v. Hoffman (1978), 62 Ill. App. 3d 798, 801, 379 N.E.2d 813), we conclude that the record supports the Department of Labor’s decision and the trial court’s well-reasoned judgment that plaintiff is not exempt under section 211.3(AX2) of the Unemployment Insurance Act.

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

Affirmed.

PERLIN and HARTMAN, JJ., concur.

      Father Powell has devoted his entire lifetime to the study and service of American Indians and is a noted author and historian specializing in the history of the Cheyenne.

      One definition given for the term “secular” is “of or relating to the worldly or temporal as distinguished from the spiritual or eternal.” Webster’s Third New International Dictionary 2053 (1971).


author: JUSTICE MILLER

text:
      In re MARRIAGE OF MINDIRA MITTRA, Petitioner and Counterrespondent-Appellee, and RAJ MITTRA, Respondent and Counterpetitioner-Appellant.
    Fourth District
    No. 4—82—0551
    Opinion filed May 16, 1983.

      Robert I. Auler, of Auler Law Offices, of Urbana, for appellant.
    Burt Greaves, of Greaves & Lerner, of Champaign, for appellee.
   JUSTICE MILLER

delivered the opinion of the court:

This is an appeal by respondent Raj Mittra from a judgment of the circuit court of Champaign County ordering him to pay maintenance of $1,800 to petitioner monthly. The maintenance award was a part of the final judgment in the parties’ dissolution proceeding. In this appeal respondent does not challenge the trial court’s provision of custody, support, distribution of marital assets, or the fact of maintenance. Respondent challenges only the amount and duration of the maintenance award. We affirm.

Petitioner Mindira Mittra and respondent Raj Mittra were married approximately 23 years and had three children; two were attending college at the time of the dissolution. Custody of the third child was awarded to petitioner, and respondent was required to pay $250 per month for her support.

Petitioner is 46 years of age and is employed part-time as a teacher’s aide. Her estimated salary as of June 1981 was $226 net per month. Petitioner had received a master’s degree in history from the University of New Delhi (India) in 1957 but had never been employed in her field of study. Petitioner assumed the role of full-time housekeeper and mother during the parties’ marriage. At the hearing on maintenance, petitioner testified that she was unaware of employment prospects and felt incapable of finding employment to use her degree.

Respondent is 49 years old and is employed by the University of Illinois as a professor of electrical engineering. He derives a substantial income from his profession and other consulting work and had managed to accumulate a significant amount of property during the parties’ marriage. An affidavit filed by respondent lists only $3,398 net monthly as his income although respondent’s tax returns for the years 1979 and 1980 show more substantial earnings. For the taxable year 1980, respondent and petitioner reported total taxable receipts of $82,170. Of this sum only $6,720 can be attributed to petitioner’s employment, leaving respondent with a gross monthly income of approximately $6,287.

The expenses of the parties were significant, though neither party has challenged the reasonableness of the other’s listed expenses. Petitioner’s June 1981 affidavit of expenses and income shows monthly requirements of $2,325; respondent’s estimate of monthly expenses totaled $2,940.

As a part of the final order of dissolution, each party also received substantial assets, some of which had income-producing potential. The trial court awarded the petitioner the marital home (equity $105,000), a stock portfolio (value $20,390), a $1,000 money market fund, checking and savings accounts (value $900), a 1976 Dodge Aspen (equity $2,500) and $25,000 in cash. Respondent received a house in Champaign (equity $20,000), two tax-deferred annuities (value $50,682), a University of Illinois retirement fund ($58,775 in contributions), a “T. Rowe Price Fund” valued at $20,145, other tax-sheltered investments of $8,000, a Buick Regal automobile (equity $1,000), and checking and savings accounts (value $600).

In support of respondent’s contention that the trial court abused its discretion in the award of maintenance, he makes the following arguments: (1) The trial court based its maintenance award on speculation of his future income; (2) the trial court failed to consider all of petitioner’s sources of income; (3) the trial court abused its discretion in failing to consider the temporary nature of respondent’s consulting work; and (4) the trial court erred in not considering petitioner’s employment potential.

Awards of maintenance under the Illinois Marriage and Dissolution of Marriage Act are governed by the criteria of section 504 of that Act. (Ill. Rev. Stat. 1981, ch. 40, par. 504.) Under this section, an award of maintenance may only be granted if the court finds that the spouse seeking maintenance: lacks sufficient property including marital property to provide for reasonable needs, and (1) is either unable to support herself through appropriate employment, (2) is the custodian of a child requiring in-home care, or (3) is otherwise without sufficient income. At bar, respondent does not challenge the trial court’s award of maintenance but only the amount of the award.

Section 504(b) details the relevant considerations for the court in determining the amount and duration of the award. Among the factors are the financial resources of the party seeking maintenance, including marital assets and child support payments, that party’s ability to become self-sufficient, the time necessary to acquire education or training for appropriate employment, the standard of living established during the marriage, the duration of the marriage, the age and health of the parties, and the ability of a spouse to pay maintenance and meet his needs. (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(1) through (6).) In reviewing the trial court’s award of maintenance we will not overturn the trial court’s findings and conclusions unless such are against the manifest weight of the evidence thus showing an abuse of discretion. In re Marriage of Bramson (1981), 100 Ill. App. 3d 657, 427 N.E.2d 285; In re Support of McGrew (1980), 90 Ill. App. 3d 27, 412 N.E.2d 996; In re Marriage of Lovejoy (1980), 84 Ill. App. 3d 53, 404 N.E.2d 1092.

Respondent’s first contention is that the trial court improperly considered his future potential rather than his actual income in determining the award. Respondent states in his brief that his after-tax income is $57,000 but that the trial court considered he had $70,000 annual net income. Respondent further asserts that he has never made as much as $70,000 per year.

Our examination of the record and of the exhibits offered by petitioner persuades us that such assertion finds no support. The trial court never used the figure of $70,000 annual net income. What the trial court did state was that “it appeared to the court that his reasonable income potential was in the neighborhood of $70,000 a year.” The court never assumed that respondent made $70,000 net a year. In addition, the claim by respondent that he has never made $70,000 per year is inaccurate. Respondent’s 1980 joint tax returns shows gross receipts of approximately $81,670. Discounting this figure by petitioner’s yearly earnings of $6,720 leaves respondent with well over $70,000 gross per year contrary to his assertion.

It is clear that the trial court did not use respondent’s potential income rather than his actual income in assessing the award of maintenance. Moreover, it is not improper in all cases for the trial court to use income potential rather than actual income. (In re Marriage of Smith (1979), 77 Ill. App. 3d 858, 396 N.E.2d 859.) Although the trial court used a figure reflecting respondent’s gross income in arriving at its award, nothing in the record persuades us that the trial court failed to take this into consideration.

In making a maintenance award the trial court must also consider the financial resources of the party seeking maintenance, including marital property apportioned to her. (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(1).) The trial court awarded petitioner a stock portfolio valued at $20,390, a $1,000 money market fund and $25,000 in cash. Respondent’s argument that the trial judge did not consider these amounts is again unsupported by the record. The court noted in its judgment order that it was aware of the fact that petitioner had received income-producing assets and clarified this at the post-trial hearing by pointing out that he did impute some reasonable rate of return to the income-producing assets.

Respondent’s suggestion that the court failed to consider the income potential of this property is again refuted by explicit statements of the trial judge. We have no doubt that the trial judge imputed some reasonable rate of return to those assets awarded which formed a part of the parties’ marital estate. The fact that he did not determine with mathematical certainty the amount of return does not indicate he failed to consider this factor, among several, in fixing the award. In any event we would note that the trial court is not required to make explicit findings of the factors it considered in an award of maintenance. (In re Marriage of Coram (1980), 86 Ill. App. 3d 845, 408 N.E.2d 418.) All that is required is a sufficiently detailed basis in the record to support the award.

At the hearing on the maintenance petition respondent related that he was working as a consultant for NASA, Lockheed and other defense-oriented industries during the year. Those contracts were neither of unlimited duration nor certain to be renewed. The trial court indicated in its findings that it did consider the temporary nature of this income but discounted this factor in light of evidence suggesting that respondent’s skills were highly in demand. On appeal, respondent suggests that this income should not have been considered by the trial court. We disagree.

The fact that income was earned by respondent was certainly a factor the trial court properly considered. Whether it would continue in the future is a question appropriate to virtually all sources of income, whether they be considered permanent or temporary. If a source of income, no matter how certain the probability it will continue, should cease, this matter then becomes an appropriate factor to support a petition to modify an order of maintenance as is provided by section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)). In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 398 N.E.2d 641.

Our review of the record persuades us that the trial court’s award of $1,800 monthly was not an abuse of discretion. Respondent has not challenged here or below the reasonableness of petitioner’s affidavit of expenses and income nor did he challenge the trial court’s finding that he was able to pay the maintenance award and meet his needs. After subtracting respondent’s monthly income of $226 from her monthly needs of $2,325, petitioner has a monthly deficit of $2,099. Although certainly some income can be expected from the income-producing assets, petitioner will also be required to pay income taxes on the monthly maintenance payment of $1,800. We cannot say that the trial court abused its discretion in its award of maintenance. Bramson; Lovejoy.

A more bothersome aspect of the trial court’s award if the indefinite term of the maintenance payments. Respondent challenges both the trial court’s entry of this indefinite award and also its implicit conclusions that petitioner was unemployable.

The evidence presented below reveals that petitioner was bom and educated in India and moved to the United States in 1958. At the time of the hearing she was 45 years old. Although she did receive a master’s degree in history of her country from the University of New Delhi in 1957, she had never worked in that field. From the time of the parties’ marriage petitioner had assumed the role of homemaker and mother. She had no specific skills and had been employed only part-time as a teacher’s aide for the past eight years.

It is clear that the trial court has the power to order maintenance for an indefinite period. (In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300; In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868; Ill. Ann. Stat., ch. 40, par. 405, Historical & Practice Notes, at 272 (Smith-Hurd 1980).) In fact, Public Act 82 — 716, effective July 1, 1982, amended section 504 to explicitly provide that a maintenance order could be for an indefinite period. Ill. Rev. Stat. 1981, ch. 40, par. 504(b).

Respondent’s reliance on In re Marriage of Marsh (1978), 64 Ill. App. 3d 572, 381 N.E.2d 804, is misplaced. In Marsh this court upheld an award of maintenance of $500 per month for two years. The opinion discussed only whether the prerequisites for maintenance of section 504(a) had been established, and nowhere in the opinion is there a discussion of the propriety of the two-year limit.

One of the appropriate considerations which should govern the duration of the maintenance award is the extent to which the receiving spouse is shown to have either the present ability to become self-sufficient or the future ability to acquire skills which would allow entry into the job market. This consideration is explicitly provided for in section 504(b)(2) of the Act under which the court, in awarding maintenance, is to consider “the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment.” Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(2).

In Wisniewski, this court held that an award of indefinite maintenance of $600 per month was an abuse of discretion. There the wife was pursuing a master’s of library science degree, held a bachelor’s of music degree and was earning $923 net per month. In holding that the award of indefinite maintenance was an abuse of discretion we emphasized the respondent’s educational background, her present educational pursuits and the substantial likelihood that she would be able to support herself within a definite time period.

Conversely, in In re Marriage of Bramson (1981), 100 Ill. App. 3d 657, 427 N.E.2d 285, a two-year maintenance order was held to be an abuse of discretion. There, as here, the evidence indicated a long-term marriage and an accompanying absence from the job market for a considerable period. Striking down the limit on the award, the appellate court noted:

“It appears that this provision of the trial court’s order was based on speculation as to the future condition of the parties, specifically, that respondent’s employment income would be sufficient to support her needs. [Citation.] Should respondent’s income increase as a result of employment or other sources of support, or should there be a substantial change in the circumstances of the parties, either of them can petition for a modifi- ■ cation of the maintenance award. [Citations.] However, at this time, a limit on the duration of the alimony period is inappropriate.” 100 Ill. App. 3d 657, 659, 427 N.E.2d 285, 287.

Here, the trial court specifically noted the fact that petitioner had never been employed in her field of study during the marriage and the absence of evidence showing that petitioner had embarked upon a planned course of study to develop marketable skills as in Wisniewski. The trial judge’s order in this case indicates that he carefully considered petitioner’s situation in making the award indefinite. The trial judge is in a much better position than we are to assess petitioner’s education, training and skills, and we cannot conclude that his findings were manifestly erroneous under the circumstances presented in this case. In re Marriage of Westphal (1981), 99 Ill. App. 3d 1042, 426 N.E.2d 303.

Despite our affirmance of this indefinite award, we do note that petitioner is under an affirmative obligation to seek appropriate training and skills to become financially independent in the future. This is inherent in the concept of rehabilitative maintenance which is embraced within the Act and is reflected in the comments to section 504(b)(2):

“This subsection directs the court to consider the time necessary for the party seeking maintenance to acquire sufficient education or training to find employment. This concept of rehabilitative maintenance is new to Illinois law. The amount and duration of such maintenance should be determined by reference to what is necessary to obviate marriage-conditioned needs and to enable a formerly dependent spouse to acquire financial independence for the future. Under prior decisional law, there was no duty to seek employment. [Citation.] This subsection creates an affirmative obligation on the part of the spouse seeking maintenance to seek employment, where plausible, and this reflects one of the most important changes brought about by this Act. [Citations.]” (Emphasis added.) Ill. Ann. Stat., ch. 40, par. 504(b)(2), Historical & Practice Notes, at 529 (Smith-Hurd 1980).

The failure of the petitioner to make good-faith efforts to achieve this goal, following a reasonable time frame during which the objective should be accomplished, might form the basis for a petition for modification pursuant to section 510(a) of the Act. Ill. Rev. Stat. 1981, ch. 40, par. 510(a); Tan v. Tan (1972), 3 Ill. App. 3d 671, 279 N.E.2d 486; Lindsay v. Lindsay (1977), 115 Ariz. 322, 565 P.2d 199.

At the hearing on respondent’s post-trial motion, the trial court remarked that “[t]here was no suggestion as to what the education or training would be, what sort of job Professor Mittra had in mind that his wife would secure by this education and training; again I believe that this is the same as any other civil law suit that the court cannot go through putting evidence in gaps in the case where evidence belongs, and that’s the obligation of the parties.” Respondent contends that this statement by the trial court indicates that it erroneously put the burden on him to demonstrate petitioner was employable.

The statement upon which respondent relies was made by the trial court at the post-trial hearing and, if anything, indicates that the trial court correctly imposed the burden on respondent to prove the allegations of his post-trial motion.

For the foregoing reasons, the order of the circuit court of Champaign County directing respondent to pay petitioner maintenance of $1,800 monthly is affirmed.

Affirmed.

WEBBER, P.J., and TRAPP, J., concur.