author: JUSTICE REINHARD

text:
    TERRY J. CARROLL, Plaintiff-Appellant, v. BOARD OF REVIEW, ILLINOIS DEPARTMENT OF LABOR, et al., Defendants-Appellees.
    Second District
    No. 84—0424
    Opinion filed April 26, 1985.

      Jerry Brask, of Prairie State Legal Services, Inc., of Geneva, for appellant.

      Neil F. Hartigan, Attorney General, of Springfield (William R. Wallin, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, Terry J. Carroll, appeals from that part of the trial court’s judgment affirming the decision of defendant, Board of Review, Illinois Department of Labor (the Board), which found plaintiff ineligible for unemployment insurance benefits on the basis that he was discharged by his former employer, defendant Musicland, for misconduct connected with his work. The sole issue raised by plaintiff on appeal is whether that part of the trial court’s judgment was against the manifest weight of the evidence. Without filing a cross-appeal, the Board challenges the remaining part of the judgment which denied the Board recoupment of $465 in benefits previously paid to plaintiff.

Plaintiff was discharged from his position as assistant manager of a Musicland store in Dundee on May 4, 1982, and applied for unemployment insurance benefits. He received $465 in benefits for a three-week period before being declared ineligible by a claims adjudicator, who found plaintiff had been discharged for insubordination and poor work performance, and determined that plaintiff had received a prior warning about work performance and that there was detriment to the employer’s interest.

Plaintiff appealed this determination, and a hearing was held before a referee. At that hearing, the referee reviewed plaintiff’s written statement to the claims adjudicator, in which plaintiff stated that he was discharged by Sue Clark, the new store manager, because of poor work performance, that Clark said the store was a mess when she came in that morning, and that while there were LPs on the floor, that was the way plaintiff usually handled it when a shipment could not be finished.

Plaintiff then testified that he had been employed by the store for a year and a half, had been given no prior warnings, and had always been complimented before Clark arrived. Plaintiff stated that on Thursday, May 4, 1982, the day he was terminated, he came into work and immediately returned to the work that he had left Tuesday night. A short time later, Clark fired him, and he told her he worked “my tail off” that day and that she had to have an okay from a district manager to fire him. Clark told him to clock out three times before he went home. Plaintiff denied using any profanity, and said he told Clark, “I worked my tail off that day. I don’t need to hear this.” Plaintiff admitted that Pete Smith, who had been a store manager sometime before Clark, had come up to him in January with a regular yellow sheet of paper and pointed out a couple of things that were wrong with the store, but plaintiff denied ever receiving a written or verbal evaluation with regard to work performance inadequacies. He had never received an evaluation that was less than satisfactory, was promoted to assistant manager two months after he started at Musicland, and was told no one ever became assistant manager within that length of time before.

Sue Clark stated that when she walked into the store that morning, she did not intend to discharge plaintiff. She said she came into the store to catch up on everything that had not been done from the day before, and that she “couldn’t put up with this.” She acknowledged that she was new in the store and plaintiff was not used to her style, but said when she told him about his job performance, plaintiff looked at her and said he “didn’t need to hear this bullshit” from her. She then told him her first inclination was to fire him, to which he said, “If you’re going to fire me, fire me.” Clark then told him he was fired. She believed the content of his statement was insubordinate. Clark further stated that there was a prior written warning in January about job performance that was in plaintiff’s personnel file.

Pete Smith identified the yellow legal-size piece of paper and stated that he prepared it. Smith said he talked to plaintiff several times about the points on the paper, verbally warning him, and came in on Saturday the 16th of January and the store was a total mess. Smith intended the paper to be a written warning, as he did not have the company forms.

Plaintiff admitted he saw the yellow paper, but said he made a 100% effort to resolve those matters and to correct his performance. Recounting the events on the day he was fired, plaintiff said Clark asked him to stop his work and told him the store was a mess and he was fired. Plaintiff told of times that he worked when he was ill, when he worked without pay, and when he worked alone on Good Friday when there should have been at least five people working. Plaintiff’s brother testified that plaintiff enjoyed his work very much, worked long hours and through lunch, and that when he visited the store while plaintiff worked there, it was very clean and customers were treated very well.

Following the hearing, the referee concluded that plaintiff was discharged for misconduct connected with his work. In his written decision, the referee stated that it was undisputed that a verbal interchange occurred in which plaintiff admitted he challenged the authority of the supervisor to issue a verbal reprimand concerning his work performance. While the referee found the language used was moderate, he concluded it was a clear rejection of a reasonable management directive, and was therefore insubordinate. The referee also decided that the benefits which had been paid to plaintiff may be recovered by way of recoupment.

Plaintiff appealed to the Board of Review, which, after examining the record, affirmed the decision of the referee. The Board found that the evidence was conflicting, but that the referee had the opportunity to observe the demeanor of both parties and that his decision was not contrary to the manifest weight of the evidence. On administrative review in the circuit court, the trial judge concluded that he could not, under the law, hold that the finding of the referee, affirmed by the Board, was against the manifest weight of the evidence but, upon finding that recoupment was not justified, reversed the order granting recoupment.

Plaintiff seeks reversal of the decisions of the agency and the trial court finding him ineligible for unemployment insurance benefits on the basis that the evidence indicates his actions did not constitute misconduct.

The Illinois Unemployment Insurance Act (the Act) establishes a compulsory unemployment insurance program for the benefit of those involuntarily unemployed. (Ill. Rev. Stat. 1981, ch. 48, par. 300; Garland v. Department of Labor (1984), 104 Ill. 2d 383, 390, 472 N.E.2d 434.) Section 602(A) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 432) states: “An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work ***.” Every justifiable discharge does not disqualify the discharged employee from receiving benefits under the Act. (Jackson v. Board of Review (1985), 105 Ill. 2d 501, 507.) While an employee’s conduct may be such that the employer may properly discharge him, such conduct may not constitute “misconduct connected with his work” which disqualifies the employee from receiving unemployment benefits. (Jackson v. Board of Review (1985), 105 Ill. 2d 501, 507.) Thus, we must determine whether plaintiff’s conduct constituted “misconduct” within the purview of the Act, making him ineligible for unemployment compensation.

The hearing referee and the Board found that plaintiff’s actions disqualified him from receiving unemployment benefits. We note that it is the decision of the Board, not the referee, which is reviewed by the courts. (Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 379, 465 N.E.2d 1052.) It is the function of the Board to determine the facts from all the evidence and circumstances. (125 Ill. App. 3d 376, 379, 465 N.E.2d 1052.) Agency findings and conclusions on questions of fact are held to be prima facie true and correct, and the sole function of the reviewing court is to determine whether the agency’s decision is against the manifest weight of the evidence. (Jackson v. Board of Review (1985), 105 Ill. 2d 501, 513; Garland v. Department of Labor (1984), 104 Ill. 2d 383, 392, 472 N.E.2d 434; Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085.) If the issue is merely one of conflicting testimony and credibility of a witness, the agency’s determination should be sustained. Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 383, 465 N.E.2d 1052.

Here, the Board expressly found that the evidence was conflicting and, upon review of the record, upheld the decision of the referee, who had the opportunity to observe the demeanor of the parties, as not being contrary to the manifest weight of the evidence. We, too, find the evidence conflicting. Plaintiff’s version of his actions leading to his discharge differs from the account of the incident given by Clark. Plaintiff denied using any profanity and denied ever receiving a prior warning about his work, while admitting that he had seen the yellow paper prepared by Smith with points about plaintiff’s job performance. He said Clark told him to clock out three times, and admitted questioning Clark’s ability to fire him without approval of a district manager, while denying that he ever questioned her authority. Clark, however, stated that plaintiff used profanity, that plaintiff had been given a prior warning about leaving the store in a mess, and that she did not intend to fire him and only did so after plaintiff used profanity and challenged her to do so. Based on this record, we conclude that, while the evidence was contradictory, the Board’s finding affirming the decision of the referee that plaintiff was insubordinate was correct and not contrary to the manifest weight of the evidence.

Even though we agree with the Board’s finding, we must decide whether it was correct in its determination of the legal effect of plaintiff’s acts; i.e., whether plaintiff’s act of insubordination was sufficient to result in discharge for “misconduct connected with work.” (See Sheff v. Board of Review (1984), 128 Ill. App. 3d 347, 351, 470 N.E.2d 1044.) Generally, insubordinate conduct by an employee disqualifies him for benefits. See Packard, Unemployment Without Fault: Disqualifications for Unemployment Insurance Benefits, 17 Vill. L. Rev. 635, 646 (1972); see also Annot., 26 A.L.R. 3d 1333 (1969).

Our supreme court recently addressed the issue of what acts of an employee will constitute such misconduct under the Act in the context of violation of a company rule, and held that it is not necessary to show harm or potential harm to the employer to establish misconduct. (Jackson v. Board of Review (1985), 105 Ill. 2d 501, 511.) The court cited with approval the following language, finding that this definition of disqualifying misconduct has gained acceptance:

“ ‘[T]he intended meaning of the term “misconduct” *** is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.’ ” Jackson v. Board of Review (1985), 105 Ill. 2d 501, 511-12, citing Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 259-60, 296 N.W. 636, 640. See generally Annot., 26 A.L.R.3d 1356 (1969).

Applying this definition to the facts in the present case, we believe that plaintiff’s conduct constituted a serious and deliberate disregard of standards of behavior which Clark had a right to expect and a substantial disregard of Musicland’s interests and of plaintiff’s duties and obligations to Musicland. Plaintiff did not deny that he left the store in an impresentable condition, and when Clark attempted to question plaintiff about this, plaintiff refused to listen and instead told Clark he “didn’t need to hear this” and then challenged her authority to fire him. An employee has the duty to discuss with his supervisor complaints regarding his job performance. (See Snodgrass v. Oxford Properties, Inc. (Minn. App. 1984), 354 N.W.2d 79.) An employee’s insubordinate refusal to discuss work performance and challenges to authority to fire him are in clear disregard of an employer’s interest. See Hines v. Department of Labor & Employment Security (Fla. App. 1984), 455 So. 2d 1104,1106-07.

In addition, abusive language is a form of insubordination which alone may be found to be disqualifying. (See Strong v. Pennsylvania Unemployment Compensation Board of Review (1983), 73 Pa. Commw. 554, 556-57, 459 A.2d 57, 59; cf. Sheff v. Board of Review (1984), 128 Ill. App. 3d 347, 351-52, 470 N.E.2d 1044, where raising a voice and being argumentative to a supervisor in a private office without threatening or abusive language held not an act of insubordination sufficient for ineligibility due to misconduct.) While Clark stated that plaintiff used profanity, we agree with the referee’s determination that plaintiff’s language was “moderate” and would not, taken alone, constitute misconduct so as to disqualify him from receiving unemployment benefits. However, plaintiff’s language is a factor to be considered and here reflects plaintiff’s insubordinate attitude. On this record, we believe that the Board correctly determined that plaintiff’s insubordinate behavior, although only a single incident, constituted misconduct as contemplated by the Act.

The Board contends that the trial court was clearly wrong in determining that recoupment of benefits previously paid to plaintiff was unjustified and that although the Board did not appeal from this portion of the trial court’s judgment, this court may still consider the issue and reverse the trial court on this point. The Board misperceives the authority of this court. Reviewing courts in this State refuse to consider complaints raised by an appellee in his brief concerning action taken by the circuit court when he has failed to file a cross-appeal from the circuit court’s decision. (Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 412, 462 N.E.2d 488.) The Board did not cross-appeal from that aspect of the trial court’s order reversing the Board’s decision granting recoupment of $465 in benefits previously paid to plaintiff, and that issue is not properly before this court. (City of Chicago v. Industrial Com. (1974), 59 Ill. 2d 284, 290, 319 N.E.2d 749.) Thus, having failed to appeal from that portion of the trial court’s decision which the Board now seeks to contest, the Board is bound by the judgment below. See Abdul-Karim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 412, 462 N.E.2d 488.

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

Affirmed.

NASH, P.J., and UNVERZAGT, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MEJDA

license: Public Domain

text:
      In re MARRIAGE OF SUSAN S. SMITH, Petitioner-Appellee, and DONALD A. SMITH, Respondent-Appellant.
    First District (5th Division)
    Nos. 84—0355, 84—1192 cons.
    Opinion filed April 19, 1985.

      Arthur Solomon, of Solomon & Behrendt, of Chicago, for appellant.
    David B. Carlson, of Rinella & Rinella, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court;

This is an appeal from several portions of a judgment for dissolution of marriage brought by respondent, Donald Smith. Respondent contends that the trial court erred in: (1) reserving maintenance for the petitioner, Susan Smith; (2) granting permanent custody of the Smith children to the petitioner; (3) failing to consider both the needs of the children and the petitioner’s income when making the child support award; (4) failing to distribute the marital property in just proportions; (5) awarding attorney fees and costs to the petitioner and her attorneys and awarding them in an excessive amount; and (6) denying respondent’s request to examine opposing counsel’s original time sheets. We affirm in part and reverse in part.

The Smiths were married on July 12, 1969. Two daughters were born to the parties: Lindsay on June 25, 1976, and Courtney on October 14, 1979. In May 1981, the parties separated and the respondent moved into his own apartment.

Petitioner worked as an elementary school teacher from 1969 to 1976. She returned to the teaching profession in 1983, earning an annual salary of $20,258. Respondent is employed by the V. A. Smith Company (V. A. Smith), a business owned by his father. Respondent, his father and George Olsen are the directors of the company. The directors vote on the payment of salaries, bonuses and loans. In 1980, respondent earned $88,000, including a bonus. His income for 1981 was $58,600, which also included a bonus. In 1982, respondent was not paid a bonus and earned only $28,600. The decline in his salary was due to two factors: a decrease in the company’s profitability and a reduction in respondent’s sales volume. In addition to his salary, the company paid for respondent’s use of two company cars, his business expenses and medical insurance. Some of the company’s customers gave him free vacation trips.

Respondent received several loans from V. A. Smith totaling $58,000. The principal on these loans has not been repaid. The money borrowed was used to make several real estate investments, which proved unprofitable, and for the payment of legal expenses for this lawsuit. The respondent is indebted in the amount of $5,475 to the First National Bank of Skokie and is a guarantor of his $3,700 share of a loan assumed by the buyer of property which he owned in part. Petitioner borrowed $7,480 from her parents to cover court costs and living expenses prior to resuming a teaching position.

During their marriage, the parties acquired a home valued at $170,967 with an outstanding mortgage of $27,184, furnishings in the marital home valued by the respondent at $32,895, a sailboat worth $9,000, a powerboat worth $750 and a snowmobile worth about $250.

At trial, Virginia Simons, a clinical social worker, and Dr. Peter Fink, a psychiatrist, testified on the issue of child custody. Simons interviewed both the parties and the children. She also spoke with the children’s teachers, petitioner’s minister and her therapist. Simons concluded that the petitioner should be given custody of the children. She based this conclusion on their attachment to the petitioner, petitioner’s affection for and nurturance of them and her care of them since their birth. On cross-examination, Simons stated that respondent’s interactions with the children were structured and that, although she detected love and affection between them, it was not of a physical nature, such as hugs and pats.

With Simons in attendance, Dr. Fink later interviewed the parties and the children. After the interviews, it was his and Simons’ opinion that the petitioner should have custody and the respondent should have liberal visitation. Fink stated that the petitioner could provide consistency, structure and reliability for the children. She demonstrated a capacity to tolerate both negative and positive emotional experiences with her children in an effective and adaptive manner. He testified that respondent was a concerned and loving parent but did not have a sufficient quality and quantity of the characteristics which the petitioner possessed.

Dr. Jack Arbit, a clinical psychologist, testified on respondent’s behalf. He examined the respondent, concluding that he is a suitable full-time parent. Lindsay and Courtney were interviewed. Lindsay’s physical, psychological and intellectual development were within the normal range. He found Courtney to be a healthy child with no psychological abnormalities. He stated that the current visitation with the respondent, every other weekend and evening a week, was inadequate. On cross-examination, Dr. Arbit indicated that he did not interview the petitioner. He recommended joint custody, with the children spending equal time with each parent.

A neighbor, Julie Stoops, testified that the petitioner did not get along with her children and that she did not play with them. When the petitioner was away, she would leave the children with three or four pre-teenage babysitters in one day. Petitioner told her of calling the Abused Children Hotline because she had difficulty controlling her temper. Petitioner also told her about meeting and having sexual relations with men she met on Rush Street. In her opinion, the petitioner is one of the most insensitive mothers she knows. During cross-examination, Stoops indicated she has not kept in touch with the petitioner since Stoops moved out of the neighborhood in 1982.

Heather Campbell, a neighbor, testified that she has known the Smith family for 6V2 years. She stated that she sees the petitioner four times a week, that the petitioner keeps a neat home, that the Smith children are normal and healthy, and that the petitioner is an excellent mother. Petitioner babysits for the witness’ children and she trusts her to take good care of them.

Jean Garschagen and Sheila Mitchell, neighbors of the Smiths, gave testimony similar to Campbell’s. Garschagen also testified that she knows Julie Stoops. The petitioner and Stoops were friends until they had a disagreement over which Stoops became upset and violent. Stoops was opinionated and was often out in the street loudly voicing her opinions. Stoops’ opinions were always negative, and she criticized everyone in the neighborhood behind their backs. Mitchell stated that she is acquainted with Julie Stoops. Stoops consistently complained and was dissatisfied with every aspect of life in the neighborhood.

Respondent’s mother, Ruth Smith, testified that her son’s family visited her home four to six times a month. Since the separation, respondent brings the children over for dinner on Friday nights. During these visits, she has observed respondent playing games, reading stories and taking walks with the children. She thought that the petitioner did not properly discipline the children. Although she felt respondent was capable of taking care of the children, she concluded that she was not better able than the experts to decide where to place the children.

Respondent’s sister, Susan Sprowl, testified that she visited her brother’s family for a month every summer and sometimes at Christmas. Respondent was affectionate with the children and was concerned with teaching them good grooming habits and manners. She stated that he could take care of the children on a full-time basis.

Karen McArthur, a long-time friend of respondent’s, testified that she visited the Smiths for a few hours every other month. Respondent was close to Lindsay. After the Smith’s separation, respondent and the children visited the witness about once a month. He played with and cared for the children. She stated that respondent is a caring, concerned and competent parent. She testified on cross-examination that she had not been in the Smith home for three or four years and could not testify about the home as it is today.

Respondent testified that he and Lindsay are very close. He assisted in caring for both children by feeding, bathing and playing with them. He taught them proper table manners and how to get along with other children. Petitioner generally disciplined the children. On several evenings after the separation, respondent drove by the marital home. As he drove by, he noticed a car belonging to petitioner’s male friend, Richard Cook, in the driveway. The only lights on in the house were in the master bedroom. Respondent testified that he has had a female friend since before he and the petitioner separated. If granted custody and the children were to take sick, respondent could stay home with them or his mother, who lives nearby, could care for them.

Petitioner stated that she cared for the children when they were very young. As they grew, shet continued to care for them. If the children become ill, she could leave work to care for them. She testified that Cook had never spent the night at her home.

The court interviewed Lindsay Smith in camera. She stated that Richard Cook had never spent the night at their home. She told the court that the petitioner told her that respondent lied when he testified that petitioner has several boyfriends and that Cook spends the night at their home. Lindsay stated that petitioner has only one boyfriend.

A court order of September 17, 1981, required the respondent to pay the petitioner $500 per month unallocated support and maintenance plus the mortgage on the marital home, real estate taxes on the home, utility bills, pharmacy charges, automobile expenses and the children’s medical bills. On October 4, 1982, this order was modified, relieving respondent of the mortgage and real estate tax payments.

The judgment of dissolution was entered on January 24, 1984. Custody of the children was granted to the petitioner. The respondent was given liberal visitation rights. He was ordered to pay child support of $600 per month per child. Petitioner was awarded the marital home and its furnishings. All title and interest in the real estate investments was granted to respondent plus the sailboat, powerboat and snowmobile. The court reserved the issue of maintenance for the petitioner and the question of attorney fees was reserved for a later hearing on proper notice and petition.

On February 23, 1984, petitioner’s attorneys filed a supplemental petition asking that respondent be ordered to pay them $830 in costs and $25,666 in fees. Petitioner’s attorneys also filed a petition for court costs, seeking $950 plus interest. Petitioner’s attorneys based their fee petition on a list summarizing their services which was attached to the petition. Respondent’s attorneys requested the production of the original time sheets. After an in camera inspection of these time sheets, the trial court ruled that production of these sheets was improper because they were work product. During his testimony, one of petitioner’s attorneys referred to the original time sheets to refresh his memory. After the hearing, the court ordered the respondent to pay petitioner’s attorneys $22,013 in fees and to pay the petitioner $950 in costs. Respondent appeals.

Opinion

The first issue presented is whether reservation of maintenance for the petitioner was error. Respondent maintains that the petitioner is employed and able to support herself. The propriety of an award of maintenance is within the sound discretion of the trial court. (In re Marriage of Lovejoy (1980), 84 Ill. App. 3d 53, 59, 404 N.E.2d 1092.) Its decision will not be set aside unless it is contrary to the manifest weight of the evidence and, therefore, an abuse of discretion. 84 Ill. App. 3d 53, 59, 404 N.E.2d 1092.

The case of In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748, presented a situation similar to the one presented in the instant case. In McNeeley, the wife, who had been away from the labor force for a substantial period of time, sought an award of maintenance. The court held that under these circumstances it was an abuse of discretion to award the wife maintenance. (117 Ill. App. 3d 320, 329, 453 N.E.2d 748.) In so ruling, the court reasoned that it would have been more appropriate for the trial court to reserve the maintenance award for review after a certain time period, giving the wife an opportunity to seek appropriate employment. Similarly in this case, petitioner had not worked for a period of seven years. Although petitioner had recently secured a teaching position, the trial court decided to reserve maintenance to allow her time to begin working and to become self-supporting after her long absence from the teaching profession. Based on these facts, we find no error in the trial court’s reservation of maintenance.

Our decision is further supported by In re Marriage of Cohn (1982), 93 Ill. 2d 190, 443 N.E.2d 541. In Cohn, our supreme court held that there must be appropriate circumstances for entering a judgment of dissolution of marriage while reserving the question of maintenance. One such instance is where a party is unable to pay maintenance if so ordered. (93 Ill. 2d 190, 199, 443 N.E.2d 541.) The facts in this case indicate that respondent’s salary has steadily decreased over the last few years and that he is paying a high percentage of his salary for child support. With his present salary, he would be unable to pay more of his income to the petitioner and meet his own needs. We therefore find that the reservation of maintenance was not an abuse of discretion.

The second issue raised is whether the trial court’s grant of permanent custody of the children to the petitioner was an abuse of discretion. Respondent maintains that he is the better parent because he has more time to spend with the children and is able to better care for them. Respondent contends that Richard Cook’s presence in petitioner’s home several evenings and the testimony of Julie Stoops concerning petitioner’s encounters with men on Rush Street are evidence of her low moral standards which would be harmful to the children.

Respondent argues that Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421, cert, denied (1980), 449 U.S. 927, 66 L. Ed. 2d 155, 101 S. Ct. 329, controls. The Jarrett court held that a custodial parent’s cohabitation with a member of the opposite sex offends public policy and endangers children’s moral development. (78 Ill. 2d 337, 346-49, 400 N.E.2d 421.) Later case law clarifying Jarrett held that there is no presumption that a child is harmed by a custodial parent’s cohabitation. (In re Marriage of Thompson (1983), 96 Ill. 2d 67, 78, 449 N.E.2d 88, cert, denied (1983), 464 U.S. 895, 78 L. Ed. 2d 232, 104 S. Ct., 242.) Rather, it is one of many factors to be considered in determining the best interests of the child. 96 Ill. 2d 67, 78, 449 N.E.2d 88.

Under the facts of this case, Jarrett is inapplicable. In Jarrett, the wife’s male friend had moved into her home but the couple had no plans to marry. Mrs. Jarrett spoke openly about this living arrangement with both her former husband and her neighbors. No such cohabitation, much less the open and notorious cohabitation found in Jarrett, exists in the instant case. The respondent testified that he saw Cook’s car in the driveway several evenings and saw lights on in the master bedroom. Petitioner denied that Cook ever spent the night at her home. We are of the opinion that the evidence respondent presented does not support his argument that petitioner and Cook were cohabiting. We are likewise not persuaded that Julie Stoops’ testimony regarding petitioner’s encounters with men on Rush Street provided sufficient evidence that her moral standards are low. Julie Stoops’ testimony was discredited by the testimony of Jean Garschagen and Sheila Mitchell. They stated that Stoops is a negative, critical, dissatisfied person. The friendship between Stoops and petitioner ended over a disagreement which caused Stoops to become upset and violent. After hearing evidence for both parties, the trial court found that the petitioner was “capable of parenting alone” and had done “an exemplary job of raising the children.” The determination of child custody rests within the broad discretion of the trial court, and its decision will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. (In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 715, 463 N.E.2d 773.) After a careful review of the record, we do not think that the trial court’s decision was against the manifest weight of the evidence.

Respondent’s third contention is that the award of $600 per month per child is excessive and that the trial court abused its discretion in failing to consider both the needs of the children and the petitioner’s income. He argues that the financial resources of both parents must be considered, that the petitioner earns $20,258 per year, and that the trial court failed to consider her income. Respondent also maintains that $1,200 per month is excessive because only $285 of the $1,729 petitioner claims as monthly expenses for herself and the children is attributable to the children’s expenses.

Respondent argues that the trial court failed to consider petitioner’s income. It is well settled that on appeal, all reasonable presumptions are in favor of the action of the trial court, and the burden is on the appellant to show affirmatively the errors assigned on review. (In re Estate of Elson (1983), 120 Ill. App. 3d 649, 656-57, 458 N.E.2d 637.) The record discloses that both parties are employed and indicates the annual income of each of the parties. There is no affirmative evidence in the record that the trial court failed to consider petitioner’s income when considering the child support award. In making its determination, however, the court focused chiefly on respondent’s lifestyle, which gave the court the “impression that he is a man of means and a devoted father who wants to properly provide for his children.” No finding was made as to the amount of his income. Respondent testified that he earns $28,600 per year and that he received loans in the amount of $58,000 from V. A. Smith. He stated that his salary decreased over the last few years because his sales volume was down, as well as the company’s profitability. Although the evidence indicates that respondent’s income is greater than petitioner’s, we agree that he should not be required to pay nearly 70% of the total family expenses when the petitioner is able to contribute toward the children’s expenses. The trial court abused its discretion by basing the award on the assumption, unsupported by the evidence, that respondent earned more than $28,600 and by requiring respondent to pay a disproportionate portion of the children’s expenses. The issue of child support must be remanded for redetermination.

The fourth issue respondent raises is whether the marital property distribution was in just proportions. Respondent argues that the trial court awarded most of the marital debts to him and most of the marital assets to the petitioner. Petitioner contends that it was a fair disposition considering the duration of the marriage, petitioner’s contributions as a wife and mother and her lower income capacity.

Section 503(d)(7) of the Illinois Marriage and Dissolution of Marriage Act provides:

“In a proceeding for dissolution of marriage *** the court shall assign each spouse’s nonmarital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including: *** (7) the age, health, station, occupation, amount and sources of income, ***, and needs of each of the parties; ***.” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 40, par. 503(d)(7).

Absent an abuse of discretion, the trial court has a great amount of discretion in allocating marital property between the parties. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126.) The property distribution was based on the court’s subjective impression that the respondent was earning more than $28,600. The respondent presented evidence on the amount of his income. He testified that the decrease in his salary was due to the company’s lower profits and to a decline in his sales volume. Petitioner did not refute this evidence. Respondent also presented evidence that he did obtain $58,000 worth of loans from V. A. Smith which he will have to repay. This evidence was not controverted by petitioner. The evidence, therefore, does not support the conclusion that the loans to the respondent are income. Again the trial court made the property distribution assuming that the respondent earns more than $28,600, which is unsupported by the evidence. Accordingly, we find that the distribution of marital property was against the manifest weight of the evidence and should be redetermined upon remand.

Respondent’s fifth contention is that the trial court erred in awarding costs and attorney fees and that the amount awarded is excessive. The general rule in dissolution cases is that to justify allowance of attorney fees the party seeking the relief must show financial inability to pay and the ability of the other spouse to do so. (In re Marriage of Uphoff (1980), 80 Ill. App. 3d 145, 147-48, 398 N.E.2d 1243.) Because the ability of either spouse in this context is based largely upon the distribution of the parties’ assets and the property issue must be remanded, we are unable to determine that the relative financial abilities of the parties have been adequately considered by the trial court. Upon remand, the trial court should be guided by the general standard that any allowance should be only in such amount as will compensate for the services rendered, and must be fair and just to all parties concerned, namely the attorney to be compensated, the client, and the person required to make payment. See In re Marriage of Cuisance (1983), 115 Ill. App. 3d 551, 450 N.E.2d 1302; see also Green v. Green (1976), 41 Ill. App. 3d 154, 354 N.E.2d 661.

Concerning the sixth issue raised, respondent argues that because the petitioner’s attorney used the original time sheets at trial to refresh his recollection, his attorney should have been allowed access to those time sheets. During the hearing, the trial court inspected the original time sheets in camera, comparing the hours on those sheets with the hours listed on the sheets attached to the fee petition. The court’s basis for later denying respondent’s request to see the original time sheets is that the documents are work product and, therefore, privileged material. Documents used to refresh a witness’ recollection must be furnished to opposing counsel on demand. (People v. Olson (1978), 59 Ill. App. 3d 643, 647, 375 N.E.2d 533; see also People v. Scott (1963), 29 Ill. 2d 97, 193 N.E.2d 814.) The appellant, however, has the burden of presenting a sufficiently complete record of the earlier proceedings to support a claim of error, and any doubts occasioned by the incompleteness of the record are resolved against the appellant. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958.) Because the court reviewed and compared the time sheets and because the record does not contain the original time sheets, we cannot say the trial court erred in holding that the time sheets were work product.

The order of the circuit court reserving maintenance and granting custody to the petitioner is affirmed. Those portions of the order awarding child support, distributing the marital property and awarding attorney fees are reversed and remanded for proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded, with directions.

SULLIVAN and LORENZ, JJ., concur.


author: JUSTICE HOPE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID HEPLER, Defendant-Appellant.
    Second District
    No. 84—0021
    Opinion filed April 26, 1985.
    Paul E. Gaziano, of Liebovich & Gaziano, of Rockford, for appellant.

      Charles R Hartman, State’s Attorney, of Freeport (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HOPE

delivered the opinion of the court:

Following a jury trial in the circuit court of Stephenson County, defendant David Hepler was convicted of robbery, residential burglary, burglary, aggravated battery, and felony-murder (based on the commission of the underlying forcible felonies of residential burglary or robbery). (Ill. Rev. Stat. 1983, ch. 38, pars. 18 — 1, 19 — 1, 19 — 3, 12 — 4, 9 — 1(3).) He received sentences of 20 years for murder, 12 years for residential burglary, seven years for robbery, five years for burglary, and five years for aggravated battery, all to run concurrently. He was found not guilty of home invasion. (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 11.) On appeal from the denial of his post-trial motion for a new trial, defendant contends that: (1) the evidence was insufficient to establish his guilt of any of these offenses; and (2) the trial court erred in permitting the State’s pathologist to opine as to the cause of death, since this opinion improperly assumed a fact not in evidence, namely, the existence of a stressful event. We reverse.

On Sunday, January 30, 1983, at approximately 1:30 p.m., Isabel Bangasser, an 80-year-old widow residing at 1205 South Maple in Freeport, was found dead of cardiovascular failure in the living room of her home. She was discovered sitting on the floor with her back leaning against the couch. There was no evidence of a forced entry or a struggle; however, Mrs. Bangasser’s engagement and wedding rings were missing from her hand, and a ring of keys, which was usually kept on a keyboard in the kitchen, was missing. Mrs. Bangasser’s purse was on an end table in the living room; her billfold was found on a step leading to the second floor of the home. Her glasses were discovered behind a pillow on the sofa. Currency located at various places in the house was not disturbed.

An investigation into Mrs. Bangasser’s death revealed that on January 29, 1983, the evening prior to her death, she attended Mass with neighbors from 5:30 to 6:30 p.m. and was wearing her rings at that time. After Mass, Mrs. Bangasser drove her neighbors home and then went to visit her daughter, Dorothy Weist, from 6:30 p.m. until about 9 p.m. Mrs. Weist noticed no unusual marks or bruises on her mother’s hands that evening.

On the morning of her death, at around 8:30 a.m., 11-year-old Matt Goebel went to Mrs. Bangasser’s house to shovel her sidewalks and driveway. After completing the job, the boy knocked on the door but no one answered. He returned later that morning between 10 and 10:30 a.m. This time Mrs. Bangasser answered the door and paid Matt for his work.

At 11 a.m. on January 30, 1983, a neighbor, Dennis Goethe, was watching television when his dog, which was tied up outside, began barking incessantly. After several minutes, Goethe went outside to investigate the situation. He observed someone, whom he later identified at trial as defendant, standing by Mrs. Bangasser’s garage sorting through a set of keys. After watching this man for two to three minutes, Mr. Goethe telephoned Mrs. Bangasser, but no one answered the telephone. Goethe returned to the door and saw the man in Mrs. Bangasser’s dark green Plymouth Horizon backing down her driveway. When the car disappeared, Goethe resumed watching television.

At approximately 1:30 p.m. that day Mel and Dorothy Weist went to Mrs. Bangasser’s home to pick her up for her 80th birthday party. When they pulled into the driveway, they noticed that a light was on above the garage. After waiting awhile for her mother to come out, Mrs. Weist attempted to unlock the front door, but had difficulty doing so. A subsequent attempt by Mr. Weist to unlock the door was successful. The door had apparently been double-locked, although Mrs. Weist testified that in the 28 years she had lived in the house this double lock was never used. Upon entering the house, the Weists discovered Mrs. Bangasser and the house in the condition previously described. A police search of the house revealed no rings or keys. Also, no fingerprints were discovered on the premises.

The body was examined at the scene by Stephenson County Coroner Richard Cramer. No unusual circumstances were noted, and the body was released to the funeral home, where it was embalmed. A second examination by the coroner at the funeral home revealed several finger-shaped bruises on the deceased’s right forearm and a small laceration towards the wrist. Following these findings an autopsy was conducted; however, the cause of death was found to be “undetermined.” Mrs. Bangasser was subsequently buried.

Meanwhile, in the early morning hours of January 31, 1983, defendant was discovered traveling northbound just outside Beloit, Wisconsin. At that time and place, he was placed under arrest for driving under the influence of alcohol. Defendant was driving Mrs. Bangasser’s dark green Plymouth Horizon and had had an accident in the vehicle. Upon questioning, defendant stated that the car belonged to his grandmother and that he was on his way back home to Freeport from a party in Beloit, although Freeport is located southwest of Beloit. Chemical tests conducted at the Beloit police station revealed that defendant’s alcohol level was not high enough to sustain a charge for DUI, and defendant was released on that charge.

On January 31, 1983, at approximately 6:15 p.m., Detective Han-nan of the Freeport police department went to the Hepler residence to question defendant, who had since returned from Wisconsin. Detective Hannan requested that defendant come to the police station to answer some questions. The defendant was not under arrest at that time, and he was accompanied to the station by his parents. After being advised of his Miranda rights, defendant gave a statement regarding his whereabouts on the morning of January 30, 1983. In the statement, defendant admitted that he went to Isabel Bangasser’s house at approximately 10 a.m. that day; however, he denied having committed the offenses in question and also denied that he had ever been in Mrs. Bangasser’s car. During the interview, Detective Hannan noticed a large bruise on defendant’s right hand, which defendant stated he had received the previous Saturday when he brushed his hand against a doorway.

On February 1, 1983 (Tuesday), Freeport police received an anonymous call directing them to the intersection of Homer and Cherry streets in Freeport, where they found Mrs. Bangasser’s automobile. According to a nearby resident, the car had been there since Monday evening, but was not there Sunday evening. The vehicle was removed to the police department, and a subsequent search of it revealed a gold key with tape which had initials on it and a latent fingerprint on the glass on the inside passenger door. The key was later found to fit the emergency release lock on the Bangasser garage door, and the fingerprint was identified as defendant’s.

Police again questioned defendant on February 10, 1983, regarding his whereabouts on January 30 and 31, 1983. During this second period of questioning, defendant stated he was in Monroe, Wisconsin, and had gotten into a fight with a man who had driven him there. The police then informed him that they could prove that he was in Mrs. Bangasser’s car, and defendant responded, “You’ll just have to prove it.”

After learning of the suspicious circumstances surrounding Mrs. Bangasser’s death, the body was exhumed and another autopsy was performed, this time by Dr. Robert Stein, the Cook County medical examiner. Also present during this autopsy were Dr. Roh, the hospital pathologist who performed the original autopsy, and Dr. Rouse, the defendant’s medical expert. External examination revealed several elongated bruises on the right forearm and a large bruised area on the right upper arm, which Dr. Stein concluded were caused prior to death. Internal examination revealed some arteriosclerotic changes in the heart. According to Dr. Stein, these findings, without any further history or knowledge of the surrounding circumstances, were inconclusive as to cause of death. Dr. Stein was then given a lengthy hypothetical, objected to by defendant, in which he was asked to assume the circumstances in evidence. On the basis of the facts so assumed, Dr. Stein opined that fright was the initiating factor that resulted in cardiovascular failure. He also stated that due to the fact that Mrs. Bangasser had already been embalmed, he was unable to conduct a toxicology test upon her body. Regarding the elongated bruises, Dr. Stein stated that he could not think of an instrument that could have inflicted the bruises because they were “too uniform and too parallel.”

Testifying in defendant’s behalf was Rev. Karl Hepler, a neighbor of Mrs. Bangasser and defendant’s father. Rev. Hepler testified that on Sunday, January 30, 1983, defendant was at home when he and his wife left for church around 9 a.m. Defendant was also at home when the Reverend returned home from church around noon. The witness learned of Mrs. Bangasser’s death around 2 p.m. that day; his son was still in the house at that time. However, defendant left the house later that afternoon and did not return. The witness did not know where defendant was between the hours of 9 a.m. and noon on Sunday.

Dr. Rouse, also testifying for the defense, reviewed the findings in the two autopsies which were performed, as well as some of the medical reports of Dr. Clark, Mrs. Bangasser’s personal physician. Dr. Rouse stated that Dr. Roh’s findings in the initial autopsy report, particularly the presence of mononuclear cell infiltrates, indicated that Mrs. Bangasser had had a cardiac event within days of her death. Dr. Clark’s notes also indicated that at the time of her death, Mrs. Bangasser was being treated for mild to moderate hypertension. Regarding the theory of reflex death, Dr. Rouse stated that in the majority of such cases, there would be evidence of “contraction band necrosis” in the heart muscle, indicating the presence of adrenaline. However, no findings regarding contraction band necrosis were documented in the instant case. Finally, Dr. Rouse conceded that a pathologist must have a full and complete investigation before an opinion could be rendered on whether reflex death has occurred in a given case.

In rebuttal to Rev. Hepler’s testimony, Rev. John Hollis testified that on Sunday, January 30, 1983, at approximately noon, he was walking from his church to the parsonage when he observed a dark green Plymouth Horizon automobile in the parking lot. Several hours later, between 2:30 and 3 p.m., Rev. Hollis was looking onto the parking lot through the parsonage windows when he observed a young man in the Plymouth. The car then pulled out of the parking lot. The parking lot was three to four blocks away from the Bangasser residence.

Defendant contends that this evidence was insufficient to prove him guilty beyond a reasonable doubt of the offenses of which he stands convicted. The parties apparently agree that the evidence in the instant case is entirely circumstantial and thus every reasonable hypothesis of innocence must be excluded before the defendant may be found guilty of the instant offenses. (People v. Deatherage (1984), 122 Ill. App. 3d 620, 624, 461 N.E.2d 631.) It is essential to a conviction upon circumstantial evidence that the facts proved be not only consistent with the accused’s guilt, but that they be inconsistent, upon any reasonable hypothesis, with his innocence. People v. Scribner (1982), 108 Ill. App. 3d 1138,1143, 440 N.E.2d 160.

With respect to the crime of residential burglary, defendant contends that there was insufficient evidence to prove that he entered the house or, if he did, that he did so without authority. (See Ill. Rev. Stat. 1983, ch. 38, par. 19 — 3.) Rather, he argues that the lack of evidence showing a forceful entry tends to suggest that the defendant, if he was present, was there with authority. Similarly, with respect to the offense of burglary of the garage, defendant argues that there was a lack of evidence indicating that he entered without Mrs. Bangasser’s authority.

The fact that there was an entry into the house was demonstrated by several “unusual” circumstances tending to indicate that someone other than Mrs. Bangasser was present in her home on the morning of her death. The door leading from the house onto the rear pantry was found locked, although it had a history of always being open and unlocked whenever Mrs. Bangasser was inside. The skeleton key, which was always left in the keyhole of that door, was missing. The dining room drapes inside the house were drawn when Mrs. Weist came to pick up her mother at 1:30 p.m.; however, Mrs. Weist testified that the only time those drapes were ever closed was late in the evening to keep out the western sun. The front door was double-locked, although according to Mrs. Weist this lock was never used. Someone had attempted to turn on a closet light by means of a dangling light switch from the ceiling of the closet. This switch was too high for Mrs. Bangasser to reach, and thus she always used a light switch located on the wall by the stairway, as did her relatives. Certain items of value were missing from the house, namely Mrs. Bangasser’s wedding and engagement rings, which she was wearing the previous evening, and a set of keys, which included keys to the car and garage. Finally, defendant was observed outside the Bangasser garage “fumbling” through a set of keys at the time in question, and driving off in the Bangasser car shortly thereafter. (Cf. People v. Baker (1978), 59 Ill. App. 3d 100, 101, 375 N.E.2d 176.) These circumstances justify an inference by the jury that someone other than Mrs. Bangasser was present in her home on the morning of her death, and that that person was the defendant.

With respect to the element of an entry without authority into both the house and the garage, the fact that a private building, as opposed to a public one, was the subject of the theft is significant. In such cases, this district has long held that the fact of an unauthorized entry must be proved separately from the fact of an entry with a wrongful intent. (In re S.R.H. (1982), 106 Ill. App. 3d 276, 279-80, 435 N.E.2d 883; People v. Baker (1978), 59 Ill. App. 3d 100, 102-03, 375 N.E.2d 176.) Thus, it is not sufficient to show that defendant entered either the Bangasser house or garage with an intent to steal something inside. Rather, it must also be shown that the entry itself was without authority. (In re S.R.H. (1982), 106 Ill. App. 3d 276, 279-80, 435 N.E.2d 883; People v. Baker (1978), 59 Ill. App. 3d 100, 102-03, 375 N.E.2d 176.) With respect to the Bangasser residence, while there is ample evidence to support an inference that defendant entered the house with an intent to commit a theft, there is no evidence to indicate that he entered without Mrs. Bangasser’s authority. The facts that defendant lived only two doors away from the Bangasser residence, that he likely knew the decedent by virtue of the fact that he had been her paperboy in the past, and that there were no signs of a forced entry or a struggle inside the house lend credence to the theory that Mrs. Bangasser allowed defendant into her home. We conclude there was insufficient evidence to support a finding that defendant entered the home without authority.

However, contrary to this, there is evidence to support a finding that defendant entered the garage without authority. Certain facts in the instant case tend to establish a lack of communication between Mrs. Bangasser and the defendant and thus that defendant was acting without her authority when he entered the garage. Defendant was observed “fumbling” through the set of car keys outside the garage and he used a key to open the electric garage door. These facts tend to show that Mrs. Bangasser neither told defendant which key to use nor informed him that the garage door could be opened by means of an electric garage door opener located just inside the kitchen door. These facts, together with the subsequent taking of the car, which defendant at all times denied, tend to indicate that defendant’s entry into the garage was without authority.

With respect to the offense of aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12 — 4(b)(10)), defendant argues that the proof was lacking as to the elements of defendant’s presence in the house and his infliction of bodily harm upon the decedent. As previously stated, the facts sufficiently establish defendant’s presence inside the house. However, we do not believe there was sufficient evidence that defendant inflicted bodily harm upon Mrs. Bangasser. The only evidence in this regard was the presence of bruises on the decedent’s hand and arm, as well as a large bruise discovered on the defendant’s hand. The testimony regarding Mrs. Bangasser’s bruises was inconclusive as to when they occurred. The experts could only state that they occurred within several days of her death. We conclude that while the bruises found on the decedent’s body, as well as those discovered later on defendant’s hand, were consistent with the accused’s guilt, they were not inconsistent with a reasonable hypothesis of innocence, i.e., that they occurred at different times by means of other more innocent instrumentalities. (See People v. Scribner (1982), 108 Ill. App. 3d 1138, 1143, 440 N.E.2d 160.) Accordingly, we conclude that the evidence was insufficient to prove defendant guilty of aggravated battery beyond a reasonable doubt.

Similarly, we conclude that there was insufficient evidence to establish the use of force or the threat of force upon Mrs. Bangasser by defendant, a necessary element of the offense of robbery. (Ill. Rev. Stat. 1983, ch. 38, par. 18 — 1(a).) Initially, there was no evidence that defendant took the rings off of Mrs. Bangasser’s finger, since these' rings were never recovered and were not found in defendant’s possession. Also, there was no evidence that any of the missing items were taken by force or threat of force. Nothing in the house was in disarray, nor was there any evidence of a struggle having taken place, except for the bruises found on Mrs. Bangasser’s hand and forearm. These bruises cannot be attributed to the defendant beyond a reasonable doubt. Further, even if it could be assumed that the bruises were inflicted by defendant, there was no evidence indicating that any force or threat of force preceded or was contemporaneous with the taking of the property. (See People v. Kleba (1982), 110 Ill. App. 3d 345, 355-56, 442 N.E.2d 605; People v. King (1979), 67 Ill. App. 3d 754, 759, 384 N.E.2d 1013.) Accordingly, we conclude there was insufficient evidence to establish that the defendant committed a robbery while inside the Bangasser residence.

Finally, because we have concluded that the underlying offenses of residential burglary and robbery were not proved beyond a reasonable doubt, we must necessarily conclude that defendant’s conviction for felony-murder based upon these offenses must also be reversed. Therefore, we do not reach the question whether Dr. Stein was improperly permitted to opine as to the cause of death.

For the foregoing reasons, defendant’s conviction for burglary is affirmed. Defendant’s convictions for residential burglary, robbery, aggravated battery, and felony-murder are reversed, and the cause is remanded for resentencing in accordance with the views expressed in this opinion.

Affirmed in part; reversed in part; remanded.

NASH, P.J., and STROUSE, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM A. BAUGH, SR., Defendant-Appellant.
    Fourth District
    No. 4—84—0727
    Opinion filed April 24, 1985.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Jeffrey K. Davison, State’s Attorney, of Decatur (Robert J. Biderman and Linda Welge, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

After conviction in the circuit court of Macon County for felony theft and the loss of his appeal of that conviction, William Baugh, petitioner, filed a pro se post-conviction petition in that court on February 22, 1984. At the same time he filed a request for appointment of counsel. The trial court dismissed the petition as without merit pursuant to section 122 — 2.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 122 — 2.1). The petitioner then filed two successive pro se post-conviction petitions with concurrent requests for appointment of counsel, and each of these petitions was also dismissed for lack of merit and without the appointment of counsel. Petitioner appeals from the dismissal of the third petition on September 19, 1984, claiming that section 122 — 2.1 is unconstitutional because it allows the dismissal of post-conviction petitions which are deemed to be without merit prior to the appointment of counsel. We find petitioner’s constitutional challenge to section 122 — 2.1 to be without merit.

Petitioner has put forth three grounds in support of his contention that section 122 — 2.1 is unconstitutional: (1) This section conflicts with Supreme Court Rule 651(c) (87 Ill. 2d R. 651(c)), therefore violating the doctrine of separation of powers; (2) providing, as a matter of right, counsel for indigents who take direct appeals from convictions but refusing appointment for those seeking post-conviction relief when the trial court finds their petition to be “frivolous or without merit” violates the doctrine of equal protection; and (3) denying counsel to indigent post-conviction petitioners violates due process guarantees of both the State and Federal constitutions.

The State maintains that the petitioner has waived the issue of the constitutionality of section 122 — 2.1 by failing to raise it in his amended petitions for post-conviction relief. Because we do not find petitioner’s arguments that the statute is unconstitutional to be persuasive, we need not decide whether the issue is waived.

In support of his contention that section 122 — 2.1 violates the doctrine of separation of powers, petitioner points out that Rule 651(c) provides that counsel shall be provided for an indigent petitioner who appeals a denial of his post-conviction petition, while section 122 — 2.1 permits the trial court to dismiss certain petitions summarily prior to the appointment of counsel. No conflict exists. Section 122 — 2.1 deals with post-conviction procedure at the trial level, while Rule 651(c) concerns appellate procedure. The exclusive power of the supreme court to make rules regarding appeals (People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 237 N.E.2d 495) has not been usurped by the legislature here, as it is entitled to enact laws governing judicial practice so long as they do not unduly infringe upon the judiciary’s inherent powers. People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; Agran v. Checker Taxi Co. (1952), 412 Ill. 145,105 N.E.2d 713.

The constitutional right to counsel, which is absolute at trial, has not been found to apply to post-conviction proceedings. (Rodriquez v. United States (1969), 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715.) Indeed, this court has stated in reference to section 122 — 2.1 that “the right to counsel at post-conviction proceedings is a matter of legislative grace and favor which may be altered by the legislature at will.” People v. Ward (1984), 124 Ill. App. 3d 974, 978, 464 N.E.2d 1144,1147.

Section 122 — 2.1 does not operate to deny counsel to indigents wishing to institute post-conviction proceedings. Instead, it is an attempt to screen out the cases that have no merit to them at an early stage, and the requirement in subsection (a) that the trial court make a written order setting forth its findings in dismissing the petition produces a record for the counsel provided in Rule 651 to use to appeal the dismissal. If a petition is found to have merit under section 122 — 2.1, counsel will be appointed pursuant to section 122 — 4. We do not find this to be an instance of the legislature infringing upon the powers of the judiciary.

Petitioner next contends that the furnishing of counsel to indigents on their first direct appeal pursuant to Supreme Court Rule 607(a) (87 Ill. 2d R. 607(a)) but the refusal to appoint counsel until after a decision on the merits of a post-conviction petition is a violation of the doctrine of equal protection. Petitioner contends that the post-conviction petition is analogous to a first direct appeal in that it is the first time that issues outside of the record may be put forward for consideration. We find, however, that the two situations are not analogous and that there is a rational basis for treating the two situations differently.

A direct appeal is the next stage after a trial where the State, and not the defendant, has the burden of proof. The fundamental right to counsel extends into the appellate procedure where the defendant contends that there was error in the record on the part of the State or the court which resulted in his conviction.

A post-conviction petition, on the other hand, involves the defendant-petitioner introducing collateral matters which he then claims make his conviction invalid. The petitioner, and not the State, has the burden of proof. Counsel on behalf of petitioner would now become a sword against the State rather than a shield from it. The post-conviction process usually does not even begin until the petitioner has had his trial and appeal as of right, both with the aid of court-appointed counsel if he is indigent. The different treatment of indigents involved here is free from distinctions which are without reason. (See Ross v. Moffitt (1974), 417 U.S. 600, 612, 41 L. Ed. 2d 341, 352, 94 S. Ct. 2437, 2444-45.) We find no deprivation of equal protection.

The final contention of petitioner is that section 122 — 2.1 violates the doctrine of due process. Petitioner cites the cases of People v. Hawkins (1970), 44 Ill. 2d 296, 255 N.E.2d 456, and People v. Slaughter (1968), 39 Ill. 2d 278, 235 N.E.2d 566, which discuss the kind of help required of appointed counsel in post-conviction proceedings where pro se petitions are filed by those with a “meager” knowledge of the law. Both of these cases deal with the adequacy of counsel once counsel has been appointed and not with the necessity of appointing counsel in order for the trial court to make a determination as to whether the petition has merit.

The United States Supreme Court has indicated in Rodriquez approval of legislation whereby an indigent petitioner must prepare his petition for post-conviction relief without the benefit of counsel in the Federal courts. Section 122 — 2.1 parallels the Federal habeas corpus procedures which provide that the court may appoint counsel if petitioner is indigent but may also dismiss the petition if it is found to be frivolous or malicious. (28 U.S.C. sec. 1915(d) (1966).) In fact, the practice in the Federal courts is to appoint counsel in post-conviction proceedings only after the petition for post-conviction relief passes initial judicial scrutiny to determine if an evidentiary hearing is necessary. Johnson v. Avery (1969), 393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747.

The State is not depriving an indigent petitioner of pursuing a meritorious post-conviction petition by providing in section 122 — 2.1 that the trial court make a determination that a claim has merit before appointing counsel. In fact, section 122 — 2.1 simply provides that all post-conviction petitions filed shall be reviewed for merit before proceeding to the stage requiring receipt of proof. While it is obvious that counsel should be better able to more artfully draft a petition than an indigent petitioner unschooled in legal drafting, it is certainly not clear that an indigent petitioner could not present the gist of his claim so that the trial court could make an initial determination as to whether or not the claim is frivolous. An indigent petitioner is not deprived of post-conviction relief. We do not find a denial of due process by the operation of section 122 — 2.1.

For the foregoing reasons, we find that petitioner’s arguments do not overcome the strong presumption that a legislative enactment is constitutional. (People v. Gurell (1983), 98 Ill. 2d 194, 456 N.E.2d 18.) Accordingly, we affirm.

Affirmed.

WEBBER and McCULLOUGH, JJ., concur.


author: JUSTICE STOUDER

text:
    STRUCTURAL SALES, INC., Plaintiff-Appellant, v. CHARLES VAVRUS, d/b/a Vavrus and Associates, Defendant-Appellee.
    Third District
    No. 3—84—0376
    Opinion filed April 25, 1985.
    Rehearing denied May 29,1985.
    Louis R. Bertani, of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet, and David H. Pauker, of Jurón, Pauker & Rubin, Ltd., of Chicago, for appellant.
    Thomas Feehan, of Thomas, Wallace, Feehan, Baron & Kaplan, Ltd., of Joliet, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

This appeal arises from a suit brought by Structural Sales, Inc., to foreclose a mechanic’s lien filed against Charles Vavrus, d/b/a Vavrus & Associates. Vavrus counterclaimed against Structural Sales alleging that a delay caused by Structural Sales’ failure to meet the time schedule appended to the construction contract entitled Vavrus to a setoff in excess of the balance owed on the contract. The circuit court of Will County found that Structural Sales was entitled to a lien in the amount of $132,145 (the balance owed on the contract plus extras). The trial court further found that the approximate four-month delay was caused entirely by Structural Sales and allowed a setoff of $100,568 against plaintiff for loss of profits, advertising, expense of hiring a manager, heating the premises, and use of a different tennis court surface, among other things.

The contract between Structural Sales and Vavrus was entered into June 22, 1977, and provided that Structural Sales was to provide all of the steel for the construction of Charlie’s Club, a health club complex which was being built by Charles Vavrus and Vavrus & Associates, his construction company. The complex was to include a health club, dining facilities, a retail area and an indoor tennis building. The tennis building was to be a prefabricated steel building which Structural Sales was to order and erect. The remainder of the steel work consisted of installation of roof and floor joists, steel columns and a deck area, and Structural' Sales was to provide anchor bolts, setting plates and lintels to be incorporated in several conventional masonry buildings which comprised the remainder of the Charlie’s Club complex.

An addendum attached to a confirmation of order signed by the parties provided a time schedule for completion of the steel work on the health club in four phases. This schedule did not include the retail portion of the complex. The final completion date on the schedule was August 29, 1977, and the addendum provided further that “Should the above schedule be materially violated, Vavrus and Associates shall have the right to complete said work and prorate payment.” Although the steel work was not completed in December of 1977, Vavrus at no time attempted to exercise its right to replace Structural Sales and prorate payment. Furthermore, despite the delay, the job performed by Structural Sales was of good quality and was fully performed.

The issues before us on appeal are first, whether the addendum provided for an exclusive remedy limiting Vavrus to replacing Structural Sales as the steel contractor and prorating payment, and therefore, the trial court could not properly set off damages for delay. Second, whether the trial court’s finding that Structural Sales caused the delay was against the manifest weight of the evidence. And, third, whether the setoffs themselves were supported by the evidence.

As to the first issue, Structural Sales argues that the clause in the addendum to the contract which stated “Should the above schedule be materially violated, Vavrus and Associates shall have the right to complete said work and prorate payment” prohibited the trial court from setting off damages for delay. The gist of plaintiff’s argument is that the above contract provision was an agreement by the parties that if the schedule was not met Vavrus was to consider the contract breached and proceed to complete the steel work and set off the value of completion from the contract amount of $202,000. This, plaintiff argues, was Vavrus’ sole remedy for delay.

The basic rule is that the parties to a contract may limit their rights, duties and obligations by express agreement. However, the contract must clearly indicate that the parties intend that the stipulated remedy be the sole or exclusive remedy. (Board of Regents v. Wilson (1975), 27 Ill. App. 3d 26, 32, 326 N.E.2d 216, 220.) In this case, we do not believe that the parties meant that the provision in the addendum provide the sole remedy in case of a failure to follow the time schedule. The contract provision confers a right upon Vavrus to terminate the contract and proceed with the steel work himself. It is clear from the record that both Vavrus and Structural Sales agreed to proceed with their contract obligations on several occasions after there was no possibility that the time schedule could be followed. In this case, there is no indication that either party intended the remedy set out in the addendum to be the exclusive remedy in case of a material violation of the time schedule. We, therefore, find that Vavrus was not precluded by the contract from seeking damages for the delay allegedly caused by Structural Sales in its counterclaim to this mechanic’s lien foreclosure suit.

Plaintiff’s second allegation of error is that the trial court’s finding that the delay was caused by Structural Sales was against the manifest weight of the evidence. We agree. Section 13 of the Mechanics’ Liens Act (Ill. Rev. Stat. 1977, ch. 82, par. 13) provides that in pertinent part

“The owner may make any defense against the contractor by way of counterclaim that he could in any civil action for the payment of money ***.” (Ill. Rev. Stat. 1977, ch. 82, par. 13.)

Therefore, Vavrus properly brought his counterclaim for delay in this action and common law principles of contract law govern its disposition. The general rule is that a party who fails to complete a contract within a specified time can be held liable for damages caused by the delay. (Sperry v. Fanning (1875), 80 Ill. 371.) The party claiming damages for delay must prove that the delay was the fault of the party against whom the damages are sought. Despite the finding of the trial court to the contrary, we find that the evidence does not support a finding that Structural Sales was at fault for the delay. It is clear from the record that numerous causes contributed to the delay in completion of the steel work. Furthermore, both parties conceded in argument that the schedule set out as an addendum to the contract was never followed because the site was not ready. The record indicates changes were made in certain roof joists requiring refabricating and changes in the shop drawings. The parties admitted revising the schedule for steel work sometime in late August 1977 by mutual agreement. This alone contradicts the finding of the trial court that Structural Sales alone caused the delay.

The next question that we must decide is whether the damages caused by delay should be apportioned between the parties when both parties were apparently at fault for the delay. In Pathman Construction Co. v. Hi-Way Electric Co. (1978), 65 Ill. App. 3d 480, 382 N.E.2d 453, the trial court was able to apportion damages between a contractor and subcontractor. However, the appellate court in Pathman relied upon Walsh v. North American Cold Storage Co. (1913), 260 Ill. 322, 103 N.E. 185, in reaching its conclusion that the damages for delay in Pathman could properly be apportioned. In Walsh, the Illinois Supreme Court found that the proof in that case was too uncertain and speculative to furnish a proper assessment of damages. (260 Ill. 322, 327, 103 N.E. 185, 187.) The court went on to state that “[t]he proof furnishes no reasonable basis upon which a court could apportion the damages between Walsh & Masterson and the bridge company, even if it established plaintiff in error had sustained damages, as claimed.” 260 Ill. 322, 327-28,103 N.E. 185,187.

Unlike Pathman, we do not believe the delay in this case could be allocated between the parties because the proof is too speculative and uncertain. The record reveals that Vavrus, his field superintendent and the rest of his construction crew were unfamiliar with the construction of steel buildings and knew very little about the problems with steel fabrication and erection. None of the other subcontractors, i.e., masons and plumbers who worked regularly for Vavrus, were familiar with the erection of steel buildings. None of these subcontractors had contracts with Vavrus which required their work be completed within a certain time, and there is no proof in the record that any of these subcontractors or their men sat idle on the job waiting for Structural Sales to complete the steel work. The record indicates that the parties worked together to complete Charlie’s Club after the project got off to a slow start and admittedly could not be completed by the agreed time set out in the addendum. Because numerous factors contributed to the delay in completion and both parties agreed to at least one revision in the time schedule, we find that the proof in this case was too speculative and uncertain, and, even though some damages arguably resulted, they were not such that they could be apportioned between the parties.

Because we find that no damages for delay could be allowed as set-offs on the mechanic’s lien, we need not reach plaintiff’s allegation that the evidence does not support the damages allowed as setoffs. We, therefore, affirm the decision of the circuit court of Will County that plaintiff was entitled to a lien in the amount of $132,145 and reverse the damage award in favor of defendant for delay in completion of the contract. We instruct the trial court to set off crane rental in the amount of $6,568 from the judgment in favor of Structural Sales, since both parties agree this was an expense chargeable to Structural Sales.

Affirmed in part, reversed in part and remanded with instructions.

SCOTT and WOMBACHER, JJ., concur.