text:
    GEORGE R. BECK, d/b/a Beck’s Texaco Service, Plaintiff-Appellant and Cross-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellee and Cross-Appellant.
    Fifth District
    No. 82—614
    Opinion filed January 10, 1984.

      Ronald D. Stanley and James C. Cook, both of Walker and Williams, P.C., of Belleville, for appellant.

      Neil F. Hartigan, Attorney General, of Springfield (Paul J. Bargiel, Special Assistant Attorney General, of Doss, Puchalski, Keenan & Bargiel, Ltd., and Rosalyn B. Kaplan, Assistant Attorney General, of counsel), for appellee.
   JUSTICE JONES

delivered the opinion of the court:

Plaintiff, George R. Beck, doing business as Beck’s Texaco Service, brought the instant action for judicial review of a final assessment for delinquent motor fuel taxes rendered by the defendant, the Department of Revenue (Department). Following a hearing the trial court affirmed the Department’s assessment of tax delinquencies against the plaintiff but reversed the Department’s imposition of a fraud penalty for “wilful failure” to pay the amounts due. The plaintiff has appealed from the trial court’s judgment in favor of the Department, and the Department has cross-appealed from that portion of the judgment reversing its assessment of a fraud penalty. We affirm.

The plaintiff’s alleged tax liability stems from his failure to remit taxes pursuant to the Motor Fuel Tax Law (MFTL) (Ill. Rev. Stat. 1971, ch. 120, par. 417 et seq.) for the period from January 1971 through September 1974. It is undisputed that during that time he was engaged in the business of supplying motor fuel although he was not a licensed supplier under the terms of the MFTL.

The MFTL, at issue in this appeal, imposes a tax upon the privilege of operating a motor vehicle upon the State’s public highways and waters. (Ill. Rev. Stat. 1971, ch. 120, pars. 418, 433.) This tax is based upon the consumption of fuel by vehicles operating in the State and is to be collected by distributors and suppliers of such fuel. (Ill. Rev. Stat. 1971, ch. 120, pars. 433, 422, 422(a).) Such persons are required by the MFTL to be licensed by the State, and they must further execute a bond with the State to protect against a failure to account for and pay the tax collected. Ill. Rev. Stat. 1971, ch. 120, pars. 419, 419(a); People ex rel. Rice v. Wilson Oil Co. (1936), 364 Ill. 406, 4 N.E.2d 847.

Section 3(a) of the MFTL (Ill. Rev. Stat. 1971, ch. 120, par. 419(a)) provides specifically:

“No person, other than a licensed distributor, shall act as a supplier of special fuel within this State without first securing a license to act as a supplier of special fuel from the Department.”

Under section 5(a) (Ill. Rev. Stat. 1971, ch. 120, par. 421(a)), a licensed supplier is required to file monthly tax returns with the Department, itemizing the number of taxable gallons of special fuel purchased or sold during the preceding calendar month. A person whose license has been revoked must make a return, subject to the same conditions, for the period immediately prior to the revocation of the license.

The supplier’s duty to collect motor fuel taxes is set forth in section 6(a) of the MFTL (Ill. Rev. Stat. 1971, ch. 120, par. 422(a)), which states:

“A supplier, other than a licensed distributor, who sells or distributes any special fuel, which he is required by Section 5a [par. 421(a)] to report to the Department when filing a return, shall *** collect at the time of such sale and distribution, the amount of tax imposed under this Act on all such special fuel sold and distributed, and at the time of making a return, the supplier shall pay to the Department the amount so collected *** and shall also pay to the Department an amount equal to the amount that would be collectible as a tax in the event of a sale thereof on all such special fuel used by said supplier during the period covered by the return.
A person whose license to act as supplier of special fuel has been revoked shall, at the time of making a return, also pay to the Department an amount equal to the amount that would be collectible as a tax in the event of a sale thereof on all special fuel, which he is required by the 1st paragraph of Section 5a [par. 419(a)] to report to the Department in making a return.”

Section 7 of the MFTL (Ill. Rev. Stat. 1971, ch. 120, par. 423) further provides:

“Any person, not licensed as a distributor or supplier, purchasing motor fuel as to which there has been no charge made to him of the motor fuel tax shall, if the same be thereafter used in the operation of a motor vehicle upon the public highways, make payment of the motor fuel tax *** on the amount so used ***.”

As noted, the Department assessed a tax liability against' the plaintiff for failure to make returns and pay the tax due under these provisions, and the trial court affirmed the Department’s finding of tax delinquencies for the period in question. On appeal from this decision, the plaintiff contends that he cannot be held liable for failure to collect the tax due under the MFTL where, at the time of the pertinent sales, he had neither a current nor a revoked license to act as a supplier of special fuel. Since, he contends, the MFTL makes no provision for the collection of motor fuel taxes by one who is not licensed or bonded as a supplier, he had neither the authority nor the responsibility to collect such taxes from purchasers of the fuel at the time of sale. The plaintiff contends further that he should not be held liable for payment of the tax where, by statute, the legal incidence of the tax falls not upon the supplier but upon the eventual user of the motor fuel. See American Oil Co. v. Mahin (1971), 49 Ill. 2d 199, 273 N.E.2d 818.

In addressing the plaintiff’s contentions, we note preliminarily that no question is raised regarding the plaintiff’s status as a “supplier” of special fuel under the MFTL (see Ill. Rev. Stat. 1971, ch. 120, par. 417.14) at the time of the relevant sales. It is the plaintiff’s position, however, that because he was supplying fuel in violation of the licensing and bonding requirements of the statute, he was thereby relieved of the obligations imposed by statute upon those who complied with such requirements. While, as the plaintiff asserts, the MFTL makes no provision for the collection of taxes by an unlicensed supplier, this omission cannot, under relevant principles of statutory construction, be interpreted as an authorization to dispense with the collection of taxes under the MFTL.

The Illinois Supreme Court, in Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 575, 369 N.E.2d 1279, 1282, reviewed the rules of construction used to interpret statutes relating to the collection of taxes, stating that:

“A statute is to be reasonably interpreted according to its intent and meaning. A situation within the object, spirit and meaning of the statute falls within it, although it may be without the letter of the law. ‘Where the spirit and intention of the legislature in adopting the acts are clearly expressed and their objects and purposes are clearly set forth, the courts are not confined to the literal meaning of the words used, when to do so will defeat the obvious intention of the legislature and result in absurd consequences not contemplated by it.’ [Citation.] Specifically, in construing statutes relating to the collection of taxes, the policy of this court has been to give them a common sense meaning so as to avoid making collection difficult or impossible. [Citation.]”

Applying these rules to the instant case, it is plain that the legislature, in enacting the MFTL, intended that the motor fuel tax apply, except for specified exceptions, to all sales of fuel used in vehicles operating within the State (see Pascal v. Lyons (1958), 15 Ill. 2d 41, 153 N.E.2d 817) and that all persons supplying such fuel be licensed by the Department and be obligated to collect and remit motor fuel taxes. Having mandated that all suppliers be licensed in order to operate, the legislature quite reasonably specified reporting requirements for “licensed” suppliers and, indeed, included a final reporting requirement for suppliers whose licenses had been revoked. Since the statutory scheme does not permit individuals to supply motor fuel without a valid license, it would have been incongruous for the legislature to include additional reporting requirements for those who failed to comply with the licensing provisions. Thus, the legislature’s omission in this regard can hardly be interpreted to exempt such unlicensed suppliers from the duties imposed on suppliers under the MFTL.

Under the construction of the statute urged by the plaintiff, it would be necessary for the State, after becoming aware of the plaintiff’s failure to comply with the licensing requirements of the MFTL, to attempt to collect the tax due from each of the plaintiff’s customers individually. This procedure would be inefficient and difficult, if not impossible, and would be contrary to a “common sense” interpretation of the statute regarding collection. While, as the plaintiff asserts, the user of the motor fuel is ultimately responsible for payment of the tax under the MFTL, the burden of collecting the tax falls upon the vendor of the fuel. (Mitchell v. State (1942), 12 Ill. Ct. Cl. 317; Midland Oil Co. v. State (1939), 10 Ill. Ct. Cl. 635; Silver Fleet Motor Express, Inc. v. State (1938), 10 Ill. Ct. Cl. 396.) Where such vendor fails to collect the tax at the time of sale, he is liable therefor and must pay the tax from his own funds. (Midland Oil Co. v. State (distributor who sold fuel on credit was responsible for payment of motor fuel taxes even though he was later unable to collect same from purchasers); see also 53 C.J.S. Licenses sec. 47 (1948).) The plaintiff here cannot escape this liability under a literal reading of the statute where his activities as a supplier during the period in question brought him “within the object, spirit and meaning” of the law.

Having found that the trial court did not err in affirming the Department’s assessment for delinquent motor fuel taxes for the period from January 1971 through September 1974, we turn to the question of the propriety of the fraud penalty imposed upon the plaintiff for “wilful failure” to pay the amounts due. The trial court, upon review of the record, ruled that there was insufficient evidence to support the Department’s finding that the plaintiff wilfully failed to pay the tax due under the MFTL. We likewise find no basis for the imposition of a fraud penalty, and we accordingly affirm the trial court’s ruling.

Section 15(7) of the MFTL (Ill. Rev. Stat. 1971, ch. 120, par. 431(7)), upon which the instant penalty was based, states:

“If any licensed distributor, licensed supplier or licensed bulk user or any other person wilfully fails to pay over to the Department the amount due under this Act on *** special fuel *** as and when it becomes payable, a penalty of 10% of the amount due shall be added, and the unpaid ta.x and penalty shall immediately accrue and thereafter shall bear interest at the rate of 1% per month *** until paid.”

At a hearing before the Department on the matter of the plaintiff’s tax liability, James Davis, an auditor with the Department who had conducted the plaintiffs audit, testified that he had acted upon the Department’s instruction in assessing a 10% fraud penalty against the plaintiff. He stated that he had had no discretion in this particular case regarding the applicability of the fraud penalty. Rather, he stated, he had inserted the fraud penalty because “[t]his was going to be a fraud case. [W]e work real close with the investigation division *** [a]nd I was instructed to make out the SC-10. I applied the 10% penalty to that based upon my understanding.” When asked if he had found any indication that the plaintiff had wilfully refused to pay the tax in this case, Davis responded that it was not his responsibility to make that determination but that he personally had believed the plaintiff when the plaintiff told him he did not know he was supposed to pay the tax. The Department presented no other evidence regarding the assessment of the fraud penalty.

From the record it appears that the fraud penalty was imposed against the plaintiff not because of any finding of “wilfulness” on the plaintiff’s part, but because the plaintiff was also under investigation for failure to obtain a license for the period in question. Unlike section 15(1) of the MFTL (Ill. Rev. Stat. 1971, ch. 120, par. 431(1)), which contains no scienter requirement for the imposition of criminal penalties against one who acts as a supplier without a license or who fails to pay the tax due under the statute, section 15(7) expressly requires a finding of “wilful” failure to pay before imposition of a fraud penalty. The evidence presented by the Department was insufficient to support such a finding, and the trial court thus acted properly in vacating the fraud penalty imposed against the plaintiff under section 15(7).

For the reasons stated in this opinion, we hereby affirm the judgment of the circuit court of Jefferson County.

Affirmed.

HARRISON and KASSERMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE KARNS WELCH, P.J.,

license: Public Domain

text:
      In re MARRIAGE OF GARY ALAN GOFORTH, Petitioner-Appellant, v. MARILYN KAYE GOFORTH, Respondent-Appellee.
    Fifth District
    No. 82—543
    Opinion filed January 13, 1984.

      WELCH, P.J., dissenting.
    John Womick, of John Paul Womick & Associates, Chartered, of Carbon-dale, for appellant.
    Walker & Williams, P.C., of Belleville (David B. Stutsman and Jeffrey S. Hebrank, of counsel), for appellee.
   JUSTICE KARNS

delivered the opinion of the court:

Petitioner Gary Goforth filed for dissolution of his marriage to Marilyn Goforth in the circuit court of Jackson County. The respondent objected to that venue and perfected an appeal to this court pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308). In a Rule 23 order (In re Marriage of Goforth (1981), 99 Ill. App. 3d 1205, 429 N.E.2d 212), we found that the petitioner had failed to prove that proper venue for his action existed in Jackson County and ordered that the respondent’s motion to transfer venue to Washington County be granted. On January 4, 1982, the circuit court of Washington County entered an order granting the petition for dissolution and reversing the disposition of property. Following a June 29, 1982, hearing on the property issues, the court entered an order on August 19, 1982, disposing of the property and ordering the petitioner to pay maintenance and child support. The petitioner appeals from this order, and argues that (1) the trial court made an inequitable distribution of the marital property, (2) the court improperly required the petitioner to pay the respondent’s attorney fees, (3) the court erred in awarding maintenance and child support based on a percentage of the petitioner’s net income, (4) the court’s award of any maintenance was unsupported by the evidence presented at trial, (5) the child support award was excessive, and (6) the petitioner should not have been ordered to assume a $12,000 debt incurred by the respondent after the parties’ separation. The facts in this case are largely undisputed.

The parties were married on June 15, 1968, in Tazewell County, Illinois. In September of that year, they moved to Kirksville, Missouri, where the petitioner began his studies at the Kirksville College of Osteopathic Medicine, from which he graduated in 1972. During the course of this schooling, the petitioner spent approximately six months in required externships in Oregon, Florida, Michigan, Ohio and Missouri. He received housing and a monthly allowance of $250 for this work. After his graduation, he served an internship in Grand Rapids, Michigan, for a year at a salary of $1,500 per month plus housing. While the petitioner was in school, the respondent worked at Southwestern Bell in Kirksville, then at the Osteopathic Hospital, as a receptionist. She testified that she worked continuously during that period, except for six weeks surrounding the birth of the parties’ first child, and except for the periods of the petitioner’s externships. The respondent testified that she did not recall her wages for this employment, but the petitioner estimated that she had earned $5,000 while he was in school. The petitioner was employed as a lab technician at the hospital at this time, and put in 25 or 30 hours a week during the school year and 50 or 60 hours during vacations. He was of the opinion that his rate of pay was three to four times that of the respondent.

Following the completion of the petitioner’s internship in Grand Rapids, during which time the respondent was employed part time, the parties moved to Florida, where they remained for approximately two'years. After the couple’s first year there, the respondent took employment at a clinic where the petitioner worked. While in Florida, the petitioner earned between $30,000 and $35,000 annually. In 1975, the parties moved to Nashville, Illinois, where the respondent remains with the parties’ three children. She did not work outside the home until 1979, but the petitioner became a salaried employee at the Family Medical Practice in Nashville and Okawville. His gross earnings from his employment were $53,557.76 in 1977, $63,574.74 in 1978, $71,925.91 in 1979, $90,384.47 in 1980 and $92,205.04 in 1981. Additionally, the Family Medical Practice pays for the petitioner’s automobile, plus gasoline and repairs, malpractice insurance and health insurance for the petitioner and his family. In 1979, the respondent started to work at a flower shop in Nashville, where she was paid the minimum wage for a work week of 16 hours, or greater, as business required. She was so employed until she accepted a job at a jewelry store in Nashville in early 1982. In that position, she earned $3.35 per hour and was normally scheduled to work 35 hours per week. At the time of the property disposition hearing, she was still employed by the jewelry store.

The parties’ estimates of their own living expenses were not contradicted at trial. The respondent, who retained custody of the parties’ three children, testified that her monthly expenses were as follows: food, $600; telephone, $80 to $90; children’s clothing, $200; her clothing, $100 to $150; gasoline, $95; auto insurance, $100; homeowners’ insurance, $35; property taxes, $95; payments on a television, $25; payments on encyclopedias, $15; children’s entertainment, $60 to $65, and her entertainment, $12 to $15. These figures excluded expenses for vacations and birthday and Christmas presents, as well as $150 for monthly utilities at the marital residence, which the petitioner customarily paid. The respondent testified that after the petitioner left that residence in September 1980, she borrowed a total of approximately $12,000 from the Farmers’ and Merchants’ Bank of Nashville to assist in paying for living expenses, including such items as vacations and birthday and Christmas presents.

The petitioner stated that he lived in a house, which he rented, with Sue Bockentin, a registered nurse who earns between $1,000 and $1,200 per month, and who pays for her own expenses. His monthly rent at that residence was $250, the utilities, $150, and his personal expenditures for food he estimated at $240. In his answers to the respondent’s interrogatories, the petitioner represented his monthly clothing and laundry expenses at $125, transportation expenses at $50 and recreation at $100 to $150. He also introduced at trial a list of expenses which showed entries of $180 per year for books, magazines and newspapers, $240 for cigarettes and liquor, $2,616 for disability and life insurance and $1,200 for “miscellaneous.” He also paid $600 per year for family medical and dental expenses not covered by insurance, and, as noted above, paid the real estate taxes and utility bills for the marital home.

The parties’ only significant tangible assets are the marital home, the household goods and the car driven by the respondent. The house was appraised at $68,500, which figure is not seriously challenged, and the household goods were valued at $8,541. The petitioner thought that the personal property was worth nearly $1,000 more than that figure. The respondent’s automobile was valued at $3,900 by the petitioner. The parties also carry insurance policies on themselves which have a cash value of more than $2,000.

Against these debts stand the parties’ substantial liabilities, which include loans to pay for the petitioner’s schooling and the parties’ living expenses, in addition to three mortgages on the parties’ home. The outstanding balance on those mortgages totalled $76,199.35, the balance on the parties’ unsecured loans was $25,441.27, and the balance on four credit cards was approximately $4,000 at the time of the property disposition hearing. Certified public accountant John Kolisek testified that he had verified these figures and further estimated the petitioner’s net income for 1982 to be at least $61,500. The petitioner’s financial statement, as prepared by Kolisek, listed proposed applications of that income in 1982 to credit cards of $4,000, loan payments of $12,000 and mortgage payments of $15,000.

In its order distributing the marital property, the court granted the marital residence along with its furniture, except for a wall plaque and Christmas decorations, to the respondent, who also received the automobile which she used. The petitioner was required to assume all indebtedness, including the mortgages, which had been incurred prior to the separation of the parties, in addition to a debt of $2,000 incurred by the petitioner after that time and a debt of $12,000 incurred by the respondent after that time. The petitioner was also ordered to pay the respondent 40% of his net income, 20% of which sum (8% of petitioner’s net income) would be considered maintenance and would continue only for five years, and the remaining 80% (32% of petitioner’s net income) would be for child support. Under the terms of the court’s order, the petitioner was required to pay $9,089.78 of attorney fees incurred by the respondent.

As noted earlier, the petitioner presents a number of challenges to the court’s order, but his basic argument is that the order, taken as a whole, is completely inequitable. After the court’s division of property, the respondent received the house without debt, the household furnishings and her automobile, which property was valued at approximately $81,000. The petitioner, in contrast, was ordered to assume $76,000 in mortgages, $25,000 in unsecured loans incurred prior to separation, $14,000 in unsecured loans incurred after separation, at least $4,000 in credit card debts and $9,000 in the respondent’s attorney fees, for a total of $128,000. The only marital assets which he received were some Christmas decorations and a wall plaque. This disposition, he argues, is inequitable enough, but he urges this court to recall that in addition he must pay 40% of his net income for maintenance and child support. Thus, on a net income of approximately $61,000, he is required to pay $24,400 in maintenance and make payments on $128,000 in debts, while the respondent contributes nothing toward the payment of those debts.

When a dispositional order is entered upon dissolution of a marriage, it must be equitable. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238; Ill. Rev. Stat. 1981, ch. 40, par. 503(c).) In reviewing such an order, this court should consider the sum of its provisions, because the distribution of marital property both affects and is affected by the amount of maintenance (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(9)) and child support. (Ill. Rev. Stat. 1981, ch. 40, pars. 505(a)(2), (5).) The Illinois Marriage and Dissolution of Marriage Act incorporates a partnership theory of marriage, and thus an order disposing of the parties’ property and awarding maintenance or child support should recognize and compensate each party for his or her contribution to the marriage. (In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239; In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635.) An important objective to be reached by the trial court in entering such an order is to place the parties in a position from which they can begin anew, in addition to providing adequate support for the children. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) The trial court’s decision will not be challenged absent an abuse of discretion. In re Marriage of Peoples (1981), 96 Ill. App. 3d 94, 420 N.E.2d 1072.

The trial court was held to have exceeded that discretion in In re Marriage of Clearman (1980), 85 Ill. App. 3d 584, 407 N.E.2d 189, appeal after remand (1981), 97 Ill. App. 3d 641, 423 N.E.2d 283. In that case the parties had accumulated marital assets in excess of $71,000 and marital debts of $31,519, with no significant nonmarital property. The trial court awarded the wife assets worth $65,620, including the marital home, and awarded the husband $6,200 of those assets and required him to assume all of the marital debts. In addition, the husband was ordered to pay $50 a week in support of the parties’ two children, and he was directed to pay $2,000 of the wife’s attorney fees. This disposition, according to the appellate court, effectively denied the husband any share of the net wealth accumulated by the parties during the marriage. It was stated that “[s]uch a vast disparity in the proportionate disposition of marital property must be accompanied by the most extraordinary circumstances before this court can uphold it as just.” (85 Ill. App. 3d 584, 587, 407 N.E.2d 189, 191.) The court found that no such circumstances existed, because both parties were employable, even if some difference existed in their economic opportunities, and neither party demonstrated a grossly disproportionate need. The cause was remanded to allow the trial court to reconsider its order. Upon remand, the court entered virtually the same disposition of property, but this was upheld on appeal, because in the interim, the wife had become seriously ill, to the extent of requiring brain surgery, and had suffered serious impairment of her vision, speech and thinking processes. In re Marriage of Clearman (1981), 97 Ill. App. 3d 641, 423 N.E.2d 283.

We believe that the court’s order in the case at bar bears the same element of inequity that the appellate court found impermissible in the first Clearman case. Although the petitioner has not furnished a detailed schedule of payments or a listing of interest rates on the debts he was required to assume, it is nonetheless apparent that the petitioner will suffer much greater hardship than the respondent under the terms of the decree. On a net income of $61,000, which, of course, was the petitioner’s net income for 1982, the petitioner would spend 40% of his income, or $24,400, on child support and maintenance. Taking the lowest of the petitioner’s estimates of his own living expenses, it can be seen that he needs at least $15,800 to support himself. This would leave him approximately $20,000 a year to make payments on the $128,000 in debts, and, when those debts are paid, the respondent would retain all of the property for which the debts were incurred. Also, the petitioner’s monthly payments to the respondent would be over $2,000, on the petitioner’s salary, and that amount is nearly $500 more than the respondent’s estimate of the needs of herself and the children, even without considering the respondent’s income.

This distribution of property violates several of the principles we discussed earlier. It fails to recognize any of the petitioner’s contributions to the marriage, by leaving him with only debts, Christmas decorations and a wall plaque. It also does not put the parties in a position from which they can begin anew. During the marriage, the parties lived considerably beyond their means, and under the trial court’s order, it is only the petitioner who must shoulder the burdens of the marital finances. This ignores authority which holds that where the partners to a marriage accumulate debts exceeding their assets, those debts must be distributed equitably. In re Marriage of Simmons (1981), 101 Ill. App. 3d 645, 428 N.E.2d 1032.

While we acknowledge that the parties’ disparity in education and earning capacity is great (Ill. Rev. Stat. 1981, ch. 40, pars. 503(c)(7), (10)), and certainly greater than that presented in the first Clearman case, this does not warrant granting all the benefits of the marriage to the respondent and imposing all of its burdens on the petitioner. The court’s decree must therefore be seen as an abuse of discretion. An equitable disposition would result if the trial court’s order were modified.

In our disposition of this cause as initially filed, we modified the trial court’s order to provide the following:

Paragraph 1 of the decree should read:

The marital home at 703 South Broadway, Nashville, Illinois, is awarded to the plaintiff, and the defendant shall sign a quit claim deed conveying her interest therein to the plaintiff. The defendant shall retain possession of the home until the youngest of the parties’ three children reaches age 18 or until the respondent’s remarriage, whichever occurs first. The plaintiff is ordered to pay for taxes and homeowners’ insurance on the residence and is responsible for major maintenance of the home.

Paragraphs 4 and 5 of the decree should be replaced by the following paragraph:

The plaintiff shall pay the respondent $750 for maintenance and $450 for child support on the first day of each month, effective September 1, 1982. Maintenance shall continue until the first day of the month following which the youngest of the parties’ three children reaches age 18 or until the respondent’s remarriage, whichever occurs first. Child support shall continue until all of the children have reached age 18 or have completed their formal college education, whichever occurs later, but in no event shall continue beyond the youngest child’s twenty-second birthday. Child support shall not be reduced proportionately by virtue of a child’s reaching age 18 or completing his or her formal college education.

The respondent thereafter filed a petition for rehearing which convinced the majority of this court that our earlier decision did not adequately recognize and compensate respondent for her contribution to the marriage as mother and homemaker nor place her in a position whereby she could be said to have a reasonable opportunity to begin life anew. We allowed the petition for rehearing.

Our original opinion filed in this cause noted that the Illinois Marriage and Dissolution of Marriage Act incorporates a partnership theory of marriage, and observed that any disposition of marital property should place the parties in a position from which they can begin anew. The petition for rehearing has called to our attention the impossible position in which respondent has been placed should she wish to remarry and begin life anew.

The marital home of the parties is clearly marital property (In re Marriage of Smith (1981), 86 Ill. 2d 518, 527 N.E.2d 1239.) There is no equity in the home as the mortgages substantially exceed its value. Our original modification of the trial court’s property disposition deprived the respondent and the children of any opportunity to acquire and live in the marital home in the event respondent should remarry and begin a new marital life.

The judgment of the trial court awarded respondent 40% of petitioner’s net income, defined as gross income after deductions for Federal income tax, State income tax and social security contributions. Of this amount, 20% of this sum was awarded as maintenance and was to continue for five years and 80% was awarded as child support. Thus, assuming petitioner’s net income was $60,000, respondent would receive in that year $4,800, or $400 monthly as maintenance, and $19,200, or $1,600 monthly, as child support. As modified by our original opinion, petitioner was required to pay $750 monthly as maintenance and $450 monthly as child support. Should respondent thereafter remarry, maintenance would have terminated and petitioner, a doctor earning $92,000, with an obvious potential for increased income, would only have had an obligation to his former family to contribute $450 monthly towards the support of his three minor children who would also be deprived of the family marital home.

With these considerations in mind, paragraph 1 of the trial court’s dispositional order is modified to read:

The marital home at 703 South Broadway, Nashville, Illinois, is awarded to the plaintiff and defendant shall execute a quit claim deed conveying her interest therein to the plaintiff. The defendant shall retain possession of the home until the youngest of the parties’ three children reaches age 18 or until the defendant remarries, whichever occurs first. The plaintiff is ordered to pay taxes and homeowners’ insurance on the residence and is responsible for major maintenance of the home. Defendant, however, is given the option to become the sole owner of the marital home if within one year after this dispositional order becomes final she so notifies the plaintiff in writing and repays him any amounts he had paid for mortgage payments allocable solely to the debt owing on the purchase of the marital home, and for taxes and homeowners’ insurance. Plaintiff shall thereupon convey his interest in the marital home to defendant free and clear of any interest any other person may have acquired in the property. Future mortgage payments, taxes, insurance and maintenance shall thereafter be the responsibility of the defendant.

Paragraphs 4 and 5 of the decree shall be replaced by the following paragraph:

The plaintiff shall pay the defendant $500 for maintenance and $1,500 for child support on the first day of each month, effective November 1, 1983. Maintenance shall continue for a period of five years from that date or until defendant remarries. Child support shall continue until all of the children have reached age 18 or have completed their formal college education, whichever occurs later, but in no event shall continue beyond the youngest child’s twenty-second birthday. Child support shall not be reduced proportionately by virtue of a child’s reaching age 18 or completing his or her formal college education.

The remaining portions of the decree should be enforced as written. The modified decree should be effective as of November 1, 1983. Pursuant to our authority under Supreme Court Rule 366(a)(5) (87 111. 2d R. 366(a)(5)), those modifications of the trial court’s decree are so ordered.

Because our modification of the decree answers the petitioner’s specific objections to the amount and form of the trial court’s award of maintenance and child support, we need not discuss those objections further. However, the petitioner additionally challenges the trial court’s assignment of a specific item of indebtedness to him, which was unaffected by our modification. This item is the $12,000 debt incurred by the respondent to defray living expenses for herself and the children between the petitioner’s departure from the marital home and the date of the court’s judgment. During that time, the petitioner testified, he regularly paid the respondent between $700 and $750 a month for support, but this amount was not sufficient to meet the needs of the respondent and the children and thus the debt was incurred. The petitioner argues that this debt could not be considered marital property because it accrued after he left the marital residence, that it cannot be considered temporary support because no such order was entered against him, and that it can only be thought of as maintenance in a lump sum to which, he claims, the respondent has not shown her entitlement. However, this argument, as the respondent points out, is based on a faulty premise. Property acquired after the marriage but before a judgment of dissolution is generally presumed to be marital property (Ill. Rev. Stat. 1981, ch. 40, par. 503(b); see also In re Marriage of Hofstetter (1981), 102 Ill. App. 3d 392, 430 N.E.2d 79), and it is the date of dissolution, not the date of physical separation, which is relevant. Consequently, the debt incurred by the respondent could properly be considered marital and was within the discretion of the court to assign to the petitioner.

The petitioner’s remaining assignments of error pertain to the court’s award of attorney fees. He insists that the award was unjustified because the respondent did not introduce testimony pertaining to those fees. The trial court had before it in this case a four-page itemized statement of the legal services rendered the respondent and two affidavits from local attorneys expressing the opinion that those services were necessary and that the charges therefor were reasonable. Petitioner’s counsel objected to the affidavits on hearsay grounds, but, as the respondent correctly observes, the court may rely upon the pleadings, affidavits on file and its own experience in fixing those fees. (In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1118, 421 N.E.2d 1308, 1315.) While it has been indicated that attorney fees should not be awarded where there is no evidence concerning the items of service performed or the reasonableness of the fees (In re Marriage of Brophy; In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 411 N.E.2d 947), it cannot be said that the record in this case suffers from that deficiency. We find nothing to show that the amount of those fees was unreasonable. Nor was the assessment of those fees against the petitioner improper. An award of attorney fees is justifiable only if it is shown that the party seeking the award is unable to pay those fees and the other party is able to do so. (In re Marriage of Adams (1981), 92 Ill. App. 3d 797, 416 N.E.2d 316.) It is not necessary for a party to be destitute before a court may award attorney fees. (Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56.) Here, the $9,000 in attorney fees amounts to approximately double the respondent’s annual gross earnings, and she does not own any income producing assets. The petitioner’s ability to pay attorney fees is considerably greater than that of the respondent’s and thus supports an award of attorney fees. (In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, 419 N.E.2d 400; Gauger v. Gauger (1979), 70 Ill. App. 3d 378, 388 N.E.2d 123.) Accordingly, we affirm the trial court’s award of those fees.

In conclusion, paragraphs 1, 4 and 5 of the judgment of August 19, 1982, are modified as we have indicated above. The remaining provisions of the judgment of the circuit court of Washington County are affirmed.

Affirmed as modified.

JONES, J., concurs.

WELCH, P.J.,

dissenting:

I dissent. The original proposed disposition was appropriate to the circumstances of the parties as they now exist. In the event respondent should remarry, modifications of maintenance and child support could then be made according to her needs and those of the children under the circumstances as they then exist. It was the unanimous opinion of this court that the initial disposition was fair and equitable. I see no need to alter it on speculation as to future events.


author: JUSTICE KARNS

text:
    EUGENE BEELMAN, Plaintiff-Appellant, v. BARBARA BEELMAN et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0463
    Opinion filed January 12, 1984

      Donald M. Samson, of Stiehl & Stiehl, of Belleville, for appellant.
    Harry J. Sterling, P.C., of Fairview Heights, for appellees.
   JUSTICE KARNS

delivered the opinion of the court:

Eugene A. Beelman appeals from the judgment of the circuit court of St. Clair County, which raised a constructive trust in favor of his brother Raymond’s estate on a residential property to which Eugene holds legal title evidenced by a properly recorded warranty deed executed by both Raymond Beelman and his wife, Barbara. Eugene’s original action of forcible entry and detainer filed against Barbara and her counter suit for a declaration of a constructive or resulting trust were consolidated in a single bench trial. Eugene asks that the judgment be vacated and that either judgment be entered in his favor or the cause be remanded for a new trial.

Raymond and Eugene Beelman were brothers whose family had lived on the property in question since 1925. Raymond purchased the house and lots from his grandmother’s estate in 1963. Following his marriage to Barbara in 1969, they made their home there until his death in 1981. Raymond operated two businesses in Belleville. Eugene lived in Centralia where he was a plumber and owned several pieces of real estate. Although they enjoyed a trusting relationship, neither brother participated in the other’s business affairs. Barbara was not on cordial terms with her husband’s family, and Raymond visited them in Centralia only three or four times a year.

Raymond experienced continual financial difficulties and occasionally received small loans from his brother which were never repaid. In 1974, matters became more serious when it appeared that the Internal Revenue Service (IRS) was about to place liens on Raymond’s home and business assets to satisfy unpaid income taxes amounting to several thousand dollars. In December 1974, Eugene gave $1,000 in cash to Raymond because he understood the IRS might move at any moment. Eugene testified that he “loaned” him the money and that Raymond agreed to getting some “loan papers” from the bank to document their transaction. When Raymond returned to Centralia a few days after receiving the $1,000, Eugene had obtained several copies of the “Mortgage Loan Record Book” used by The Old National Bank in Centralia which he wanted to use as guidelines for their agreement. Eugene reported that at this second meeting Raymond said, “I don’t want to do it that way ***. I will sign the house over to you.” Eugene agreed to this suggestion without question. Consequently, on January 13, 1975, Raymond and Barbara executed a warranty deed transferring the property to Eugene. The deed was recorded on January 14. Raymond kept the deed. The brothers never discussed the value of the house and made no arrangement for Raymond to pay rent. Raymond told his brother he would continue to pay all expenses and Eugene would not be expected to pay unless it became impossible for Raymond to do so.

Barbara characterized the transfer as an effort to shield the property from the tax liens. The idea of the transfer originated with Raymond and Barbara, but she contends that Eugene understood it for what it was. Eugene denies her assertions that he called her at home to express his understanding that he was only holding it for them until they got their affairs in order. There is conflicting testimony as to Eugene’s knowledge of the .unlisted number at the Belleville house. Raymond and Barbara reached an accord with the IRS, and no lien was placed against the house.

The transfer of title led to no change in the possession or use of the property. Barbara and Raymond continued to live there, paying the mortgage, the taxes, and maintenance expenses. During Raymond’s final illness, Eugene did some minor repair work on the house. He required no accounting from Raymond and Barbara with regard to taxes, expenses, insurance or mortgage payments and did not indicate on his income tax returns that he regarded their payments as rent on the property. On one occasion Eugene was informed by his uncle that taxes were due on the property. The uncle paid them.

In the period near the time of Raymond’s death, Eugene took a greater interest in the house. In November 1981, he tried to insure it for $15,000, but the insurer cancelled the policy because it considered the house too great a risk. Just after Raymond’s death, Eugene tried to borrow money on the house. At about the same time, he paid the remaining mortgage indebtedness of $818.55.

One week after Raymond’s funeral, Eugene and Barbara made an abortive attempt to clarify their relationship with regard to ownership of the house. In one account Eugene pointed out to Barbara “this all belongs to me now.” In a different version, she asked him to reconvey to her on condition she would leave the house to him in her will. Although Eugene predicted they would come to some agreement, they did not. On March 2, 1982, Eugene notified Barbara that he was willing to rent the house to her for $55 a week, but if she would not accept those terms he expected her to leave the house by March 12, 1983. She did not accept or leave. He sought immediate possession and filed an action for forcible entry and detainer which she countered with a petition for a declaration of á constructive trust. After consolidating the causes for trial, the court permitted ^Barbara to amend the pleadings to add Raymond’s estate as an additional party and to include the theory of resulting trust as a basis for recovery. On July 5, 1983, the court declared a constructive trust on the property in favor of Barbara as the independent administrator of Raymond’s estate. The court denied Eugene’s post-trial motion to vacate the judgment and to enter judgment in his favor or to grant a new trial.

The trial court found that “the parties had originally agreed to a loan, but at some subsequent time Raymond Beelman and Eugene Beelman determined to transfer the property by warranty deed.” It also found that there was a fiduciary relationship between the brothers and “[bjecause of the relative financial positions of Eugene Beelman and Raymond Beelman, there was influence and superiority of Eugene over Raymond.” The court apparently concluded that Eugene had abused his brother’s confidence by taking title to the property and refusing to relinquish it to the estate.

We are asked to decide whether the imposition of a constructive trust is against the manifest weight of the evidence. We find that it is. Eugene also asks that we find Barbara’s claim for equitable relief is barred by her admission that the transfer of title was intended to foil the Internal Revenue Service. Without approving such a tactic, we nevertheless find that the equitable doctrine of clean hands does not bar her claim. If in attempting to shield her property from a tax lien, she intended no harm to Eugene against whom she now seeks redress, she may properly invoke the court’s equity powers. Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 369 N.E.2d 498.

When, as in the present case, a party seeks to have a constructive trust imposed in equity on the basis of parol evidence, the proof must be clear and convincing. (Compton v. Compton (1953), 414 Ill. 149, 111 N.E.2d 109.) It must clearly appear that the party against whom the trust is to be imposed has engaged in actual fraud or has abused a confidential or fiduciary relationship. (Bremer v. Bremer (1952), 411 Ill. 454, 104 N.E.2d 299.) A blood relationship is not sufficient to establish a confidential or fiduciary relationship. (McCartney v. McCartney (1956), 8 Ill. 2d 494, 134 N.E.2d 789.) It must be shown that the dominant party in a relationship built on trust has taken advantage of his superior position. (Compton v. Compton (1953), 414 Ill. 149, 111 N.E.2d 109.) When the servient party conveys property to the dominant party, the abuse of the trust relationship must consist of the dominant party’s efforts to procure the conveyance to himself. (McCartney v. McCartney (1956), 8 Ill. 2d 494, 134 N.E.2d 789; Miethe v. Miethe (1951), 410 Ill. 226, 101 N.E.2d 571.) When all the evidence marshalled to prove a constructive trust is doubtful or may be reasonably explained by other theories, it is insufficient to support the imposition of a constructive trust. Compton v. Compton (1953), 414 Ill. 149, 111 N.E.2d 109.

There is no evidence that Eugene played any dominant role in Raymond’s personal or financial life. Raymond visited Eugene in Centralia only occasionally. Eugene came by the Beelman home in Belleville even less frequently. It is not clear that Eugene had Raymond’s unlisted telephone number. Although Barbara characterized the brothers’ relationship as trusting, she admitted Eugene had no part in Raymond’s businesses. His only contributions were small loans he never sought to have repaid. Eugene’s real estate dealings in Centralia do not appear to have given him any authoritative position in his brother’s life. The transfer of the Belleville property to Eugene was not Eugene’s idea but originated with Barbara and Raymond as the only solution to their tax problems. We do not think the evidence provides clear and convincing proof of a fiduciary relationship between the brothers. The imposition of the constructive trust is therefore an inappropriate equitable remedy.

Although neither party has argued that the deed is an equitable mortgage, we think the evidence supports such a view and thus provides the basis for a just result. For that reason we choose to disregard the rule that issues not presented are waived. (Anderson v. Smith (1980), 91 Ill. App. 3d 938, 415 N.E.2d 643.) We are conscious that in considering a new theory we must take care that the parties are not deprived of the right to present argument. (Hux v. Raben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.) In view of the fact that the parties testified extensively as to their intentions regarding the loan and deed as well as their subsequent relationship to the property, we do not believe they have been deprived of relevant argument.

A deed which on its face appears to be an absolute conveyance is to be considered a mortgage if it appears that the parties intended it to serve only as a security. (Ill. Rev. Stat. 1981, ch. 95, par. 55.) Whether a deed is to be taken as a mortgage depends on the intention of the parties at the time of the execution of the deed. (Warner v. Gosnell (1956), 8 Ill. 2d 24, 132 N.E.2d 526; Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 369 N.E.2d 498.) Any evidence tending to indicate that the parties intended to create a loan and security is admissible. (Burroughs v. Burroughs (1971), 1 Ill. App. 3d 697, 274 N.E.2d 376.) Relevant factors may include "[t]he relation of the parties, the circumstances surrounding the transaction, the appearance of the transaction, the adequacy of consideration and the situation of the parties after the transaction ***.” (Smith v. Fried (1981), 98 Ill. App. 3d 467, 470, 424 N.E.2d 636, 638.) Parol evidence is admissible to establish an equitable mortgage. (Wilkinson v. Johnson (1963), 29 Ill. 2d 392, 194 N.E.2d 328; Warner v. Gosnell (1956), 8 Ill. 2d 24, 132 N.E.2d 526.) Whatever its nature, the body of evidence must provide clear, satisfactory and convincing proof that the deed absolute in form was intended to be a mortgage. (Schwartzentruber v. Stephens (1956), 8 Ill. 2d 222, 133 N.E.2d 33.) When a deed is intended by the parties to be a mortgage, the relationship created between the parties is that of equitable mortgagor and mortgagee. Holt v. Duncan (1962), 33 Ill. App. 2d 477, 180 N.E.2d 36.

To find that a deed was intended as a mortgage, it is necessary to determine that there was a debt. (Evans v. Berko (1951), 408 Ill. 438, 97 N.E.2d 316.) Eugene admits that he loaned Raymond $1,000 in cash. At the time he handed over the money, both parties contemplated treating the transaction as a loan to be repaid in the same way Eugene repaid his loan to The Old National Bank in Centraba. At their next meeting, Eugene had mortgage loan record books from the bank on hand. Clearly both parties understood the $1,000 to be a debt to be repaid, presumably in an orderly fashion.

At a second meeting, Raymond rejected the original plan. Eugene interprets Raymond’s declaration, “I don’t want to do it that way ***. I will sign the house over to you,” as an offer to sell the home to satisfy the $1,000 debt. At the time neither party spoke of a sale. Eugene simply agreed to do whatever Raymond wanted. Eugene made no inquiries about the property. There was no discussion concerning Raymond’s obligation to pay rent to Eugene or to consult him about maintenance. Raymond said he would continue to pay for everything and Eugene would be expected to pay only if it became impossible for Raymond to do so. Although Raymond reportedly said he did not want the house back and he did not want Barbara to get it, he retained the original deed and Eugene was left to get a copy from the courthouse rather than demand the original from his brother. Raymond’s decision to transfer his house to his brother came shortly after Barbara and Raymond agreed such a transfer would give them some protection from the IRS. In view of the pressure on Raymond of which Eugene was aware, and the failure of Eugene to inquire about or demand any of the rights of ownership, as well as the fact that Raymond owed Eugene only $1,000, we think the deed was not evidence of a sale but Raymond’s alternative way of handling the debt to his brother and dealing with the IRS at the same time.

The events following the execution of the deed confirm the view that neither party considered Eugene the owner of the house. Barbara and Raymond continued to live there as before. Although Eugene said he checked to see that the taxes were paid, he did not communicate directly with Raymond or Barbara about keeping up with expenses. He either did not know or did not care that the house was uninsurable from 1976 until just before his brother’s death when he tried to insure it for $15,000. Eugene took no part in deciding what repairs or improvements were made, although he did minor repairs and knew that the house was in “terrible condition” by the time of his brother’s death. Eugene’s income tax returns do not reflect his claims of ownership. He did not report the sums paid on the house by Raymond and Barbara as rental income nor did he claim deductions for the interest on the mortgage.

It was only in the period immediately before and after Raymond’s death that Eugene took steps to secure the benefits of ownership to himself by insuring the house in his own name, borrowing money on it, and paying off the mortgage.

For the foregoing reasons, we reverse the judgment of the circuit court of St. Clair County and remand for further proceedings in accord with the views expressed above. The parties are allowed to amend their pleadings to conform to our conclusion that the transaction be treated as an equitable mortgage and that the parties be accorded the rights and duties usually accorded mortgagors and mortgagees.

Reversed and remanded.

HARRISON, P.J., and WELCH, J., concur.


author: JUSTICE HARRISON

text:
    WILBERT M. VOSS, Adm’r of the Estate of Anton Haar, Plaintiff-Respondent, v. KEVIN TUNE et al., Defendants-Petitioners.
    Fifth District
    No. 82—590
    Opinion filed January 12, 1984.

      Walker and Williams, P.C., of Belleville (David B. Stutsman and Jeffrey S. Hebrank, of counsel), for appellant Bauer Brothers Construction Company.
    Pope and Driemeyer, of Belleville (Thomas W. Alvey, Jr., of counsel), for appellant Kevin Tune.
    John H. Hustava, of Law Offices of William W. Schooley, of Granite City, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Wilbert Voss (plaintiff), administrator of the estate of Anton Haar, brought suit against Kevin Tune and Bauer Brothers Construction Company (defendants). Plaintiff’s complaint alleged that Tune, while within the scope of his employment with Bauer Brothers, failed to exercise ordinary care in the operation of his vehicle, and as a consequence struck and injured Anton Haar. Following a jury trial, the jury returned a verdict in favor of both defendants, and the court entered judgment on the verdict. The court subsequently granted plaintiff’s post-trial motion and allowed a new trial on all issues, finding that the evidence established “some degree of negligence” on the part of Tune. Defendants filed a petition for leave to appeal to this court pursuant to Supreme Court Rule 306 (87 Ill. 2d R. 306), and we granted the petition. We affirm.

Initially, we note that there is disagreement regarding the standard to be applied by a trial judge in determining whether to set aside a jury verdict and grant a new trial in a civil case. This court has held that a trial judge is only justified in setting aside a verdict and allowing a new trial when the verdict is contrary to the manifest weight of the evidence. (Bean v. Volkswagenwerk Aktiengesellschaft (1982), 109 Ill. App. 3d 333, 335, 440 N.E.2d 426.) The appellate court for the first district has held that a trial judge is warranted in granting a new trial when the verdict of the jury is not supported by a preponderance of the evidence. (Spankroy v. Alesky (1977), 45 Ill. App. 3d 432, 436-37, 359 N.E.2d 1078.) We believe that the manifest weight of the evidence standard expressed in Bean is the one which we are compelled to follow, as our supreme court has specifically articulated its adherence to that same standard. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32.) Finally, in analyzing the propriety of a trial court order granting a new trial, a reviewing court will not reverse such an order unless that order is shown to constitute an abuse of the trial court’s discretion. Looft v. Missouri Pacific R.R. Co. (1982), 104 Ill. App. 3d 152, 156, 432 N.E.2d 1152.

Applying these standards to the case at bar, we cannot say that the trial court abused its discretion in allowing a new trial. The instant case was tried in May 1982, well after the effective date of our supreme court’s adoption of the doctrine of "pure” comparative negligence (Alvis v. Ribar (1981), 85 Ill. 2d 1, 28, 421 N.E.2d 886). Thus, plaintiff here was only required to show some negligence on the part of the defendant Tune, and, upon such a showing, any contributory negligence on the part of Mr. Haar could not operate to bar recovery entirely. (Alvis v. Ribar (1981), 85 Ill. 2d 1, 11.) While there was evidence in this case tending to show that Mr. Haar was walking in the road, and not on the edge of it, we cannot say that the trial court abused its discretion in finding that the verdict of the jury was contrary to the manifest weight of the evidence. It was undisputed that the accident happened in broad daylight, that defendant Tune saw Mr. Haar just prior to making the right turn after which his vehicle struck Mr. Haar; that Tune looked to his left, but not his right, just before crossing a pair of train tracks and striking Mr. Haar; and that Haar was struck by the right front of the Tune vehicle. Moreover, while defendants suggest that Mr. Haar either stumbled or fell in front of the Tune vehicle, there was no evidence suggesting that such was the case. Although Tune testified that Mr. Haar “could have stumbled,” Tune admitted that he didn’t know if Haar had in fact stumbled, that Haar was walking in a straight line when Tune last saw him, and that Haar was standing up when Tune’s vehicle struck him. Viewing the evidence in its entirety, we cannot say that the trial judge abused his discretion in setting aside the jury’s verdict and ordering a new trial on all issues.

For the foregoing reasons, the order of the circuit court of Madison County granting a new trial in this cause is affirmed.

Affirmed.

WELCH, P.J., and EARNS, J., concur.


author: PRESIDING JUSTICE WELCH

text:
    JERE LEE HOLT, a Minor, by Virginia Holt, his Mother and Next Friend, Plaintiff-Appellant, v. ROBERT CROSS et al., Defendants-Appellees.
    Fifth District
    No. 5—83—0335
    Opinion filed December 30, 1983.
    Rehearing denied January 26, 1984.

      James B. Roberts and Donna H. Kolb, both of Carbondale, for appellant.
    Richard A. Green, Mary Lou Rouhandeh and Michael F. Dahlen, all of Feirich, Schoen, Mager, Green and Associates, of Carbondale, for appellees.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court;

The issue in this case of first impression is whether a student can recover punitive damages against a teacher who allegedly administered excessive corporal punishment. On November 6, 1980, plaintiff Jere Lee Holt, a minor, by his next friend and mother, Virginia Holt, filed suit against defendant Robert Cross, principal of Century Elementary School, and against the Board of Education, Century Unit School District 100, Pulaski County, Illinois. On December 22, 1982, plaintiffs third amended complaint, demanding punitive damages, was filed. Defendants subsequently filed a motion for involuntary dismissal asserting that the plaintiff is not entitled to punitive damages as a matter of law. The court entered an order on March 7, 1983, striking the punitive damage claim. Plaintiff’s motion to vacate was denied on April 29,1983. Plaintiff appeals.

Illinois teachers have express statutory authority to maintain discipline in the schools for the safety and supervision of the students in the absence of their parents or guardians. (Ill. Rev. Stat. 1981, ch. 122, par. 24 — 24.) The Illinois Supreme Court held in People v. Ball (1974), 58 Ill. 2d 36, 317 N.E.2d 54, that a teacher’s right to discipline students is subject to the same standard of reasonableness which is applicable to parents in disciplining their own children. (See also Kobylanski v. Chicago Board of Education (1976), 63 Ill. 2d 165, 347 N.E.2d 705.) In an action by a student against a teacher, the burden is upon the student to prove wilful and wanton misconduct by the teacher. (Baike v. Luther High School South (1977), 51 Ill. App. 3d 405, 366 N.E.2d 542.) Wilful and wanton conduct requires an intentional act or an act committed under circumstances exhibiting a reckless disregard for the safety of others. (Baike v. Luther High School South.) Criminal prosecution and a tort action for personal injuries have each been held proper remedies for excessive corporal punishment. (People v. Ball; Baike v. Luther High School South.) However, plaintiff cites no direct authority for the proposition that punitive damages may be recovered for such conduct in Illinois.

It is generally recognized that punitive damages are awarded to punish the offender and deter other similar offensive conduct. (Mattyasovszky v. West Towns Bus Co. (1975), 61 Ill. 2d 31, 330 N.E.2d 509.) Punitive damages are in the nature of a criminal penalty and are not favored under the law. (Cornell v. Langland (1982), 109 Ill. App. 3d 472, 440 N.E.2d 985.) Given the important role of education in our society, we cannot allow a rule which would make potential liability for punitive damages a primary concern in teachers’ minds when they are called upon to maintain school discipline. Moreover, an allegation of wilful and wanton misconduct does not confer a right to punitive damages when the minimum requirement to state a cause of action requires such conduct. (Ill. Rev. Stat. 1981, ch. 122, par. 24— 24; see Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157.) Walker v. Dominick’s Finer Foods, Inc. (1980), 92 Ill. App. 3d 645, 415 N.E.2d 1213, cited by the plaintiff, is inapplicable to the case at bar since “wilful and wanton” conduct was not the minimum level of culpability required for recovery of compensatory damages in that case as it is in the case at bar (Kain v. Rockridge Community Unit School District No. 300 (1983), 117 Ill. App. 3d 681, 453 N.E.2d 118).

Since wilful and wanton conduct forms the basis for an action against a teacher for excessive corporal punishment, punitive damages cannot be sanctioned as an additional recovery. In holding that punitive damages are prohibited against a teacher alleged to have excessively punished a student, we need not decide whether the school district would be required to indemnify an employee for any punitive damages recovered. Ill. Rev. Stat. 1981, ch. 122, par. 10 — 20.20.

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

Affirmed.

EARNS and HARRISON, JJ., concur.


text:
      In re MARRIAGE OF DOROTHY L. STEPHENSON, Petitioner-Appellee, and RONALD K. STEPHENSON, Respondent-Appellant.
    Fifth District
    No. 83—200
    Opinion filed December 14, 1983.
    Rehearing denied March 1, 1984.
    Pessin, Baird & Wells, of Belleville, for appellant.
    Crowder, Traughber & Scoggins, Ltd., of Columbia, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Ronald Stephenson (respondent) and Dorothy Stephenson (petitioner) were married in 1956, and their marriage was dissolved by a judgment entered in the circuit court of Randolph County on December 3, 1982. On February 17, 1983, following denial of a post-trial motion directed toward the December 3, 1982, judgment, respondent filed a petition to modify the maintenance portion of that judgment, alleging that he had become unemployed. On March 16, 1983, the court entered an order denying the petition to modify. In this consolidated appeal, respondent alleges error both in the terms of the original judgment and in the denial of the petition to modify. For the reasons which follow, we affirm the circuit court in all respects.

In attacking the judgment of December 3, 1982, respondent alleges that (1) the division of marital property constitutes an abuse of discretion; (2) the awarding of the $500 per month in maintenance to petitioner also constitutes an abuse of discretion; and, (3) the court erred in refusing to consider petitioner’s potential inheritance from her 75-year-old mother. As to the first of these issues, we note that, in reviewing a property distribution upon a dissolution of marriage, we will find an abuse of discretion only where no reasonable person would adopt the view taken by the trial court. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.) In the instant case, we cannot say that such an abuse occurred. While respondent points out that petitioner received approximately 75% of the marital property, including two homes owned by the parties, respondent retained possession of nonmarital real property totaling 60 acres and containing tillable land, a lake, and two dwellings. The value of the nonmarital property set aside to each party is properly considered in determining how the marital property is divided (Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503(d)(2); In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1085, 412 N.E.2d 1336), and we cannot say, in light of the substantial value of the nonmarital property retained by respondent, that the court abused its discretion in awarding petitioner a greater share of the marital assets. Moreover, the distribution effectuated by the trial court is further justified by the vast difference in the future earning capacities of the parties. Respondent needs only to complete a dissertation to obtain a doctorate in educational administration, while petitioner has only a high school education. Thus, respondent has vastly greater opportunity for the future acquisition of assets and income, and the court properly relied on this fact in dividing the marital property. See Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503(d)(7).

Respondent next argues that the court abused its discretion in ordering him to pay petitioner maintenance of $500 per month. We disagree. At the time of the hearing, respondent was employed as director of the Beck Vocational Institute, and earned a yearly salary of $30,000. Petitioner, who worked as a part-time librarian and school lunchroom supervisor, had earned less than $2,000 during the first nine months of 1982. Moreover, as noted by the trial court, petitioner is a person of limited education, and “in view of her age, [is] without any real prospects or any ability to earn any large amount of income or increase her income substantially.” A maintenance award will only be disturbed upon a showing that it constitutes an abuse of the trial court’s discretion (In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 1014, 398 N.E.2d 641), and we cannot say that such an abuse occurred here.

The next contention raised by respondent concerns the trial court’s failure to consider evidence concerning petitioner’s potential inheritance from her mother. In an offer of proof, respondent’s counsel indicated that petitioner’s mother is 75 years of age, that petitioner is the sole heir of her mother, and that the mother’s estate has a current value of $100,000. The court refused to consider this evidence, characterizing it as “speculation.” We believe that this ruling was correct. Petitioner’s mother may live for many more years, may dissipate her estate, or may leave that estate to someone other than petitioner. Appropriate here is the maxim nemo est haeres viventis. In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 427 N.E.2d 1262, the case relied on by respondent, is inapposite. In Smith, the wife was to receive a definite inheritance from an estate which was in probate at the time of the dissolution action, and the court recognized that this inheritance was relevant in assessing the economic circumstances of each spouse for purposes of arriving at a fair property distribution. (100 Ill. App. 3d 1126, 1130.) In contrast, petitioner in the instant case has no assurance of ever receiving anything from her mother’s estate, and we agree with the trial court that the mere possibility of a future inheritance is not something to be considered in dividing marital property upon a dissolution of marriage.

Finally, in his appeal from the order denying his petition to modify the judgment, respondent asserts that the court erred in failing to relieve him of his obligation to pay maintenance to petitioner. The evidence offered at the hearing on the petition established that respondent resigned from his job in January 1983, as a result of differences of opinion between respondent and the board which supervised him. It was uncontradicted, however, that respondent’s term of employment did not expire until June 20, 1983, and that he could have worked until that time. While substantial economic reverses resulting from employment or investments are proper circumstances in considering whether support obligations should be reduced or terminated, such changes in economic circumstances must be fortuitous in nature, and not the result of deliberate action by the party seeking the reduction. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785.) Respondent’s resignation from his job in this case was entirely voluntary, occurred within two months of the judgment of dissolution, and came at a time when respondent still had over five months remaining in his term of employment. Under these circumstances, we agree with the trial court that the voluntary change in respondent’s economic conditions did not mandate abatement of his maintenance obligations.

For the foregoing reasons, the December 3, 1982, judgment of the circuit court of Randolph County is affirmed in its entirety. The order of March 16, 1983, denying respondent’s petition to modify the judgment, is also affirmed.

Affirmed.

EARNS and JONES, JJ., concur.


text:
      In re MARRIAGE OF CHARLES F. HUMPHREY, Petitioner-Appellant, and SUSAN I. HUMPHREY, Respondent-Appellee.
    Fifth District
    No. 82—725
    Opinion filed January 12, 1984.
    Rehearing denied February 7, 1984.

      Hanagan and Ford, of Benton, for appellant.
    Joseph J. Neely, of Neely and Neely, of Metropolis, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

On December 14, 1982, the marriage of Charles E Humphrey, petitioner, and Susan I. Humphrey, respondent, was dissolved by a judgment filed in the circuit court of Pope County. This judgment followed a November 22, 1982, order in which the court ordered all of petitioner’s pleadings stricken as a consequence of his refusal to produce certain documents and file answers to interrogatories as ordered by the court. Petitioner appeals from both this order and the judgment, as well as from a December 15, 1982, order sentencing him to 60 days’ imprisonment on a prior finding that he was in contempt of court. For the reasons which follow, we reverse the November 22, 1982, order, the judgment of dissolution, and the sentencing order of December 15, 1982, and remand for further proceedings.

Initially, petitioner argues that the November 22, 1982, order imposing sanctions must be reversed because petitioner did not receive proper notice of the fact that his counsel had withdrawn from the case prior to the hearing on respondent’s motion for sanctions. We agree. The record establishes that on November 9, 1982, petitioner’s counsel filed a motion to withdraw from the case. The proof of service attached to the motion certified only that a copy of the motion “was served upon the attorneys of record of all parties,” and there is nothing to indicate that petitioner ever received a copy of the motion. A docket entry dated November 16, 1982, reflects that the motion for leave to withdraw filed by petitioner’s counsel was granted on that date. Also on November 16, 1982, the hearing on respondent’s motion for sanctions was held. Neither petitioner nor any attorney representing him appeared at this hearing.

Supreme Court Rule 13(c)(2) (87 Ill. 2d R. 13(c)(2)) provides, in pertinent part, that “[a]n attorney may not withdraw his appearance for a party without leave of court and notice to all parties of record, and, unless another attorney is substituted, he must give reasonable notice of the time and place of the presentation of the motion for leave to withdraw, by personal service, or by certified mail directed to the party represented by him at his last known business or residence address.” In the instant case, the record fails to establish even minimum compliance with these requirements. While respondent asserts that certain affidavits contained in the record establish that the petitioner “was fully aware of the status of his case” at all times, thereby rendering his counsel’s noncompliance with Rule 13(c)(2) harmless, we do not believe that such is the case. These affidavits establish no more than that a copy of the file was forwarded to a different attorney at petitioner’s request on November 9, 1982. It does not follow, however, that petitioner’s efforts to make another attorney aware of the status of his case indicate that petitioner was fully aware of his current attorney’s immediate efforts to withdraw, and we will not eviscerate Rule 13(c)(2) by speculating on what the party not receiving notice might have known. Accordingly, since there is nothing establishing that petitioner knew his counsel had withdrawn prior to the hearing on the motion for sanctions, and since petitioner was in fact unrepresented at that hearing, the November 22, 1982, order striking all of petitioner’s pleadings must be reversed. Since the terms of the December 14, 1982, final judgment of dissolution were determined without consideration of any of petitioner’s pleadings, that judgment must also be reversed.

Petitioner next argues that the court erred in sentencing him to 60 days’ imprisonment for contempt of court. We note parenthetically that the December 15, 1982, order terminating a prior stay of commitment on the contempt finding, and sentencing petitioner to 60 days’ imprisonment, resulted from a hearing held November 1, 1982, before petitioner’s original counsel withdrew from the case. Petitioner characterizes the contempt in question as civil in nature, and argues that the sentence imposed was improper in that he was not given an opportunity to purge himself by complying with the underlying child support and discovery orders of the court. Respondent agrees that the contempt was civil in nature, but asserts that inclusion of the paragraph sentencing petitioner to 60 days’ imprisonment was inadvertent. It is respondent’s position that the record, taken as a whole, indicates that the court intended to imprison respondent for civil contempt, and to provide him with an opportunity to purge himself by paying accrued child support.

“Appeals are not designed to decide what a judgment means, as opposed to whether it is erroneous” (People v. Hollingsworth (1982), 89 Ill. 2d 466, 468, 433 N.E.2d 682), and we will not search for hidden meaning in the court’s unambiguous order sentencing petitioner to 60 days’ imprisonment. While such a sentence may be proper in circumstances involving criminal contempt, both parties concede that the contempt at issue here was civil in nature, as it was intended to compel obedience to orders or decrees for the benefit of an opposing party (People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 409, 173 N.E.2d 417). When a contempt order is civil in nature, it is improper to the extent it fixes a definite punishment without giving the contemnor the opportunity to purge himself of the contempt. (Continental Illinois National Bank v. Brach (1979), 71 Ill. App. 3d 789, 793, 390 N.E.2d 373.) Accordingly, the order of December 15,1982, must be reversed.

Finally, we have considered respondent’s arguments that this appeal should be dismissed, and conclude that they are without merit. Contrary to respondent’s assertions, the record does contain the notice of appeal filed by petitioner, and the appendix to petitioner’s brief is in proper form.

For the foregoing reasons, the order of November 22, 1982, the judgment of dissolution of December 14, 1982, and the sentencing order of December 15, 1982, are reversed, and this cause is remanded to the circuit court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

WELCH, P.J., and EARNS, J., concur.