author: JUSTICE MILLS

text:
    THE PEOPLE ex rel. CATHY LOU REYNOLDS, Plaintiff-Appellee, v. DAVID ALDRIDGE, Defendant-Appellant.
    Fourth District
    No. 16820
    Opinion filed July 8, 1982.

      Steven C. Mills, of Springfield, for appellant.
    J. William Roberts, State’s Attorney, of Springfield (Robert J. Biderman and Denise M. Paul, both of State’s Attorneys Appellate Service Commission, of counsel), for appellee.
   JUSTICE MILLS

delivered the opinion of the court;

Paternity action.

A jury verdict for the defendant was declared by the trial judge to be clearly erroneous and unsupported by the evidence.

The trial court then granted plaintiff judgment non obstante veredicto and conditionally granted a new trial.

We reverse the judgment n.o.v. and remand for a new trial.

The facts are lengthy, but must necessarily be set forth in detail. The complaining witness, Cathy Reynolds, testified at trial that a child was born to her on April 19, 1978; that she was unmarried; and that the child was living and had never been adopted. Reynolds had known and dated the defendant since she was 13. Beginning on July 10, 1977, complaining witness and defendant began having sexual intercourse on a regular basis and intermittently cohabited through the end of August 1977. They did not use any birth control measures. The complaining witness discovered she was pregnant in September of 1977 and attempted to notify the defendant but was unsuccessful. Both before and after the child was born, defendant engaged in actions consistent with his paternity of the child. These acts included, stating the child was his, playing with and expressing affection toward the child, wanting to change the child’s surname to his own, and acknowledging a responsibility to support the child and marry the complaining witness. There was no denial of the testimony regarding Reynolds’ and defendant’s sexual relationship and defendant’s behavior vis-a-vis the child. Several witnesses corroborated these facts.

The controversy centers around the credibility of Reynolds’ testimony regarding the date of conception and her sexual activities during the time of conception. At trial, Reynolds admitted to having cohabited with a Douglas Hurley for 1 )i years until approximately April of 1977. In May she went to Florida with a friend, “Danny,” and her brother. She testified that she broke off the relationship with Hurley and did not have sexual intercourse with any other man other than the defendant from June through August of 1977. However, at a preliminary hearing, Reynolds said that she had engaged in sexual intercourse with Hurley in June. Again, at trial, Reynolds claimed that she spent June in Iowa with Karla Hendricker looking for a job. Corroborating testimony varied as to whether Reynolds went to Iowa in early June or later in the month. Christine Todd testified that Reynolds attended a birthday party in the company of Hurley on June 13, in Springfield, and that Reynolds dated a Maynard Coyle at least once in June. Cathy Hendricker said that until June 15, Hurley was spending the nights with Reynolds and that they continued to see each other through the summer of 1977.

Reynolds admitted to having told Thelma and Karla Hendricker (Hurley’s mother and half sister, respectively) that Hurley was the father. She claimed that the reason for this was that she wanted to move in with the Hendrickers because she became scared when she discovered she was pregnant and had moved away from home after an argument with her mother. There was contradictory testimony regarding whether Reynolds cohabited with Hurley when she lived with the Hendrickers during her pregnancy. Cathy Hendricker, Karla Hendrickers sister, and defendant’s girlfriend at the time of trial, said Reynolds slept in Hurley’s room, but Reynolds and Karla Hendricker denied it.

The standard for entering a judgment n.o.v. in Illinois is the well-established Pedrick test. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) The Pedrick standard is applicable to paternity actions. Petrous v. Roberts (1973), 12 Ill. App. 3d 992, 299 N.E.2d 322.

Reynolds testified that her last menstrual period before her pregnancy was in early July as she began relations with the defendant. Karla Hendricker corroborated this. However, at the preliminary hearing Reynolds had testified that her last period was in June. Christine Todd testified that Reynolds told her in June, before she went to Iowa, that Reynolds thought she was pregnant and that sometime in June that was confirmed by a doctor. Todd and Cathy Hendricker also claimed that Reynolds told them in September that she was three months pregnant and that the baby was due in March. Dr. Travis L. Hindman testified that blood tests on Reynolds, Reynolds’ child and Hurley precluded Hurley from being the father.

Defendant contends that (1) Reynolds’ prior inconsistent statements regarding her last menstrual period and her relations with Hurley in June of 1977 impeach her credibility, and (2) the substantive effect of Reynolds’ prior inconsistent statements together with the other testimony regarding the due date of the child provides sufficient evidence so that the jury’s verdict cannot be said to be erroneous.

The credibility of witnesses is crucial in paternity actions, and the jury is not required to believe a witness’ statement merely because it is unrebutted. (People ex rel. Martin v. Presswood (1980), 85 Ill. App. 3d 975, 407 N.E.2d 770.) However, plaintiff cites three cases where the trier of fact’s evaluation of the complainant-mother’s credibility was overruled on appeal. In Petrous, the court affirmed a judgment n.o.v. entered in favor of the mother where a defendant admitted having intercourse with plaintiff several times during the period of conception, often without the use of protective devices, stated that he possibly could be the child’s father, and could not substantiate his assertion that plaintiff had relations with others. Plaintiff testified that she did not have relations with anyone other than the defendant during the period of conception.

In People ex rel. Temple v. Williams (1976), 40 Ill. App. 3d 764, 353 N.E.2d 94, error was found in the lower court’s denial of plaintiff’s motion for a judgment n.o.v. in a paternity action. The complaining witness denied having sexual relations with any male other than the defendant, there was no evidence that she did so, and defendant admitted having sexual relations with her during the period of conception. There was no denial of complainant’s testimony that defendant and she discussed marriage when she thought she was pregnant, and defendant admitted to a friend that he could be the father of the child. Central to the decision was the court’s finding that plaintiff’s contradiction of her own testimony did not render it unworthy of credit because the matters contradicted were immaterial.

In People ex rel. Gomez v. Wedech (1978), 58 Ill. App. 3d 518, 374 N.E.2d 849, the lower court’s judgment discharging a father in a paternity proceeding was reversed. The evidence established that conception occurred around May of 1975. Plaintiff testified at one point that she had sexual relations with defendant in April through June of 1975 but also stated that they had an argument in “early spring” of 1975 which resulted in a discontinuation of sexual relations for five or six weeks. On cross-examination plaintiff’s response to defense counsel’s question about the date of her last menstrual period was unresponsive and defensive. The court found the contradiction and uncertainty in plaintiff’s testimony was easily explained by the lapse of time between the events and trial, the fact that examination took place with an interpreter, and that descriptions of spring are often based on the weather rather than the calendar. Also medical records substantiate plaintiff’s testimony that she did not have sex with any other man during the relevant period. The court found that the trial court’s evaluation of plaintiff’s credibility was not substantiated.

The common elements in these three cases were (1) the defendant’s sexual relationship with the complaining witness during the time of conception was admitted; (2) the defendant either admitted at some time that he was the father or took actions consistent with his paternity; (3) the complaining witness testified that she had not engaged in sexual relations with any male other than the defendant during the period of conception and was not contradicted (defendant in Petrous merely asserted the contrary without substantiation); and (4) the defendant was not impeached on any material fact.

In the present case, there was uncontradicted multiple testimony establishing Reynolds’ and the defendant’s sexual relations and defendant’s actions consistent with his fathering the child. That is where the parallel ends between these facts and the cases cited by the State. The complaining witness here contradicted herself regarding sexual relations with other men. At a preliminary hearing held in August of 1978, Reynolds testified that she had sexual relations twice with Hurley in June of 1977. At trial, in August of 1980, she claimed to have had no sexual relations with any man other than the defendant from June through August of 1977 and said she did not remember giving a contrary answer at the preliminary hearing,

While defense counsel admitted at oral argument that the blood test conclusively precluded Hurley’s paternity, that does not make the impeachment immaterial. The complaining witness’ sexual partners are a central issue in paternity actions. The jury could have concluded that since Reynolds’ recollection of her sexual activities during the relevant period changed between the preliminary hearing and trial, and that during that interval it became known that Hurley could not have been the father, then perhaps her recollection was not to be trusted as regarding other sexual partners. The record indicates that Reynolds went to Florida with a “Danny” in May of 1977 and dated a Maynard Coyle in June of 1977, but no testimony asserted any sexual activity on the part of the complaining witness with anyone other than the defendant. However, it is not incumbent upon the defendant to adduce evidence of other sexual partners once doubt has been cast on the complaining witness’ testimony regarding her sexual activities. People ex rel. Martin v. Presswood (1980), 85 Ill. App. 3d 975, 407 N.E.2d 770.

Furthermore, the testimony of Christine Todd and Cathy Hendricker to the effect that Reynolds was pregnant in June and that the baby was due in March is evidence that conception took place prior to Reynolds’ liaison with the defendant beginning on July 10. Reynolds’ earlier testimony that she did not have a menstrual period in July also supports a June conception. (Reynolds’ contradictory statement at trial that she did have a menstrual period in July provides a further material impeachment of her as a witness.)

At oral argument the State questioned the medical probability of a conception sufficiently early that Reynolds could have known that she was pregnant in June, as Todd testified, and yet have delivered a normal child in mid-April. Other than Reynolds’ testimony that the child was born four days overdue, the record contains no evidence regarding the term of the pregnancy or the normality of the child. Even if Reynolds could not have known of the pregnancy in June, the testimony that Reynolds stated in September that the child was due in March and that she had no menstrual period in July would support a jury conclusion that conception occurred before the defendant could have impregnated Reynolds. Therefore, we conclude that the complaining witness was impeached on two material issues and that there was substantive evidence to support the jury’s findings.

The State urges that the judgment n.o.v. was proper because the defendant conceded the underlying factual issues by failing to either object to or deny the State’s request for admissions within the 28 days prescribed by statute. A request for admissions was filed on May 31,1979, in accordance with Supreme Court Rule 216(a). (Ill. Rev. Stat. 1979, ch. 110A, par. 216(a).) It requested that the defendant admit that he had engaged in sexual intercourse with Cathy Reynolds during the period June 1, 1977, through August 31, 1977, and that he was the father of Reynolds’ child. There is no record that the defendant ever filed an answer. While there was a motion filed with the court in September of 1979 that the requested admissions be deemed true since unanswered, there was never a hearing or ruling on the motion. The failure of the defendant to respond to the admission request was never offered for evidence or any other purpose at trial.

II. The question of the effect of a failure to respond to an admission request, which failure is not offered at trial, is one of first impression in Illinois. Supreme Court Rule 216(c) (Ill. Rev. Stat. 1979, ch. 110A, par. 216(c)) provides in part:

“Each of the matters of fact * * * of which admission is requested is admitted unless, within 28 days after service thereof, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part.”

We find no merit in the State’s argument that the trier of fact can be reversed by the trial judge on the basis of facts which were available at the time of trial but never proffered. The trial court is to base a judgment n.o.v. solely on the basis of evidence introduced at trial. (See Darda v. Chicago Transit Authority (1968), 100 Ill. App. 2d 94, 241 N.E.2d 478; Farmer v. Alton Building & Loan Association (1938), 294 Ill. App. 206,13 N.E.2d 652.) A party wishing to rely on an admission requested but not answered must at some point in the trial introduce the party’s failure to answer before the failure can have any effect. See Gilbert v. General Motors Corp. (2d Cir. 1943), 133 F.2d 997, cert. denied (1943), 319 U.S. 743, 87 L. Ed. 1700, 63 S. Ct. 1031, applying Rule 36 of the Federal Rules of Civil Procedure, from which Supreme Court Rule 216 was derived. Ill. Ann. Stat., ch. 110A, par. 216, Historical & Practice Notes, at 208 (SmithHurd 1968).

Furthermore, by introducing evidence on the issues which would have been determined by the admissions, the State waived any right to rely on the admissions. In Welch v. City of Evanston (1980), 87 Ill. App. 3d 1017, 1023, 409 N.E.2d 450, 455, the court refused to order the admission of unanswered requested admissions and explained:.

“Plaintiffs were aware their request for admission was not answered in a timely manner. Nevertheless, plaintiffs introduced evidence [directly on those issues]. This conduct at trial waived plaintiffs’ right to rely on defendant’s admissions.”

The Welch holding is apparently an extension of the rule that when a defendant does not raise the issue of plaintiff’s failure to respond to affirmative defenses and pleadings, and then introduces evidence at trial on those allegations, defendant may no longer claim the allegations were admitted because of the failure to respond. Sottiaux v. Bean (1950), 408 Ill. 25, 95 N.E.2d 899; Brokerage Resources, Inc. v. Jordan (1980), 80 Ill. App. 3d 605, 400 N.E.2d 77; Franks v. North Shore Farms, Inc. (1969), 115 Ill. App. 2d 57, 253 N.E.2d 45.

The State clearly set out at trial to prove the two assertions contained in the request for admissions. We find the Welch result persuasive and hold that the State waived its right to rely on defendant’s admissions when it introduced evidence directly on those issues for which admissions were requested.

The trial court’s final order granted judgment n.o.v. for the State and conditionally granted a new trial. The defendant’s notice appealed the entire order, but neither defendant’s brief nor defense counsel at oral argument raised any objections to the order for a new trial. The issue of a new trial was thus waived. 73 Ill. 2d R. 341(e)(7); Janssen v. City of Springfield (1980), 79 Ill. 2d 435, 404 N.E.2d 213.

Reversed in part and remanded for a new trial.

GREEN, P. J., and TRAPP, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ILLINOIS EDUCATION ASSOCIATION et al., Plaintiffs-Appellants, v. ILLINOIS FEDERATION OF TEACHERS et al., Defendants-Appellees.
    Fourth District
    No. 17539
    Opinion filed July 7, 1982.
    Drach, Terrell & Deffenbaugh, P. C., of Springfield, for appellants.
    Barbara J. Hillman, of Cornfield & Feldman, of Chicago, for appellees.
   JUSTICE MILLS

delivered the opinion of the court:

We deal here with the theory of conversion.

Specifically, did defendant members of the Spring Valley Elementary Teachers Association convert dues belonging to the Illinois Education Association?

No.

The denial of plaintiffs’ request for injunction and dismissal of their complaint for money damages were proper and we affirm.

Sometime in the late 1960’s, a group of teachers at Spring Valley Elementary School District No. 99 formed the Spring Valley Elementary Teachers Association (SVETA) for the purpose of collectively bargaining with the district’s school board. In April 1972, SVETA became affiliated with the Illinois Education Association (IEA) and was issued a charter as one of the IEA’s local education associations.

In May 1977, the members of the SVETA voted to disaffiliate from the IEA and to affiliate with the Illinois Federation of Teachers (IFT). Five of the Spring Valley teachers apparently decided not to join the IFT, retained affiliation with the IEA, and operated a local chapter chartered with the IEA. This association was also called the Spring Valley Elementary Teachers Association. When the trial in this case took place, this IEA local was still in existence, but had only one member.

At the time of disaffiliation, the treasury of the SVETA consisted primarily of dues paid to it by its members either through cash payments or by authorized deductions from the members’ paychecks. Prior to disaffiliation, SVETA made payments from its treasury of $1,800 and $858.25 to the IEA for the IEA dues of SVETA members. An additional payment of $190.25 was later submitted to the IEA by SVETA for the balance of the membership dues owed by those five members who retained affiliation with the IEA after the disaffiliation vote. This left a balance of $1,378.50 owed by Spring Valley teachers for IEA dues for the remainder of the 1976-77 membership year.

An IEA representative informed SVETA that the IEA “fully expected them to live up to their obligations of their membership dues for the remainder of the year,” and asked that the SVETA immediately transmit the funds.

In June 1977, the officers of the IFT affiliate met and decided to refuse further payment of dues to the IEA. As a result of the meeting, checks were issued to Daniel Marenda in the amount of $500 for “expenses”; to David Hepner in the amount of $400; to Mick Finn in the amount of $500 for “negotiating expenses”; and to Lynn Nimee in the amount of $434.70 for “P.R. expenses.” The checks were all signed by Beverly Kimble, the treasurer of SVETA. Her authorization came from the executive committee of the association. At the time the checks were issued, all of the parties involved knew that no expenses had actually been incurred. Nor were the funds thereafter expended for the purposes for which they were disbursed. Rather, the persons to whom the checks had been issued immediately cashed them and placed the money in a safety deposit box rented by Daniel Marenda and David Hepner. The funds were subsequently returned intact to the treasury of the IFT affiliate.

IEA and its local affiliates filed a complaint in the circuit court alleging that Daniel Marenda, David Hepner, Michael Finn, Noralyn Nimee, and Beverly Kimble had illegally converted the funds of the IEA. Damages sought were $1,378.50, the alleged balance of dues owing for the 1976-77 membership year. The complaint also sought to enjoin the IFT from using the name Spring Valley Elementary Teachers Association.

Trial was held and at the close of plaintiffs’ case, defendants made an oral motion for a directed verdict on both counts. The trial court did not adopt this unfortunate and erroneous terminology, but did grant the relief requested. The trial judge denied plaintiffs’ request for an injunction and dismissed the remainder of their complaint. Plaintiffs originally contended that both rulings were incorrect. However, they no longer pursue their appeal as to injunctive relief, and that portion of it is dismissed.

As to the remainder of plaintiffs’ appeal, the decision below was not governed by the standards set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504 — as both parties seem to assume. Rather, the trial court’s decision is to be reviewed to determine whether it comports with the requirements of section 64(3) of the Civil Practice Act, which provides:

“In all cases tried without a jury, defendant may, at the close of plaintiff’s case, move for a finding or judgment in his favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant he may proceed to adduce evidence in support of his defense, in which event the motion is waived.” Ill. Rev. Stat. 1979, ch. 110, par. 64(3).

This standard is much different than that applicable to directed verdict situations where the trial judge is to refrain from weighing the evidence. The supreme court has recently held that in ruling on a section 64(3) motion, the trial judge must engage in a two-step analysis. First, the trial judge must decide if the plaintiff has presented some evidence on each of the elements of his cause of action. If plaintiff has not, the cause must be dismissed. Otherwise, the judge must go on to determine if any of the evidence necessary to plaintiff’s prima facie case has been negated. If so, dismissal is required. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 407 N.E.2d 43.) We hold that the trial judge could properly have determined — after engaging in this weighing process — that plaintiffs did not present a prima facie case and properly dismissed plaintiffs’ complaint.

In order to make out a case for conversion, the plaintiff must establish each of the following four elements: (1) unauthorized and wrongful assumption of control, dominion, or ownership over the personal property of another; (2) the plaintiff’s right to the property; (3) his absolute and unconditional right to immediate possession of the property; and (4) a demand for possession. Kunde v. Biddle (1976), 41 Ill. App. 3d 223, 353 N.E.2d 410.

There can be no doubt that, if the funds in the SVETA treasury actually belonged to the IEA, the distribution of the funds to defendants Marenda, Hepner, Finn, and Nimee for expenses they did not actually incur was a wrongful assumption of control over the personal property of another. That the funds were eventually returned to the treasury of SVETA will not insulate these defendants from liability. An action for conversion will lie even though the defendant has returned the property. (Barrelett v. Bellgard (1874), 71 Ill. 280.) However, in such a situation only nominal damages are recoverable.

Nor can it be argued that the plaintiffs did not make a demand for the property involved here. Testimony at trial indicated that a representative of the IEA informed SVETA that the IEA expected them to live up to their obligation for membership dues and requested immediate transmission of those dues to the IEA. Even though this oral demand was not the usual procedure, it is clear that SVETA treated it as a demand. Hoffman v. Allstate Insurance Co. (1980), 85 Ill. App. 3d 631, 407 N.E.2d 156, relied upon by the defendants for the proposition that no demand was made, is inapposite. In Hoffman, the evidence indicated that the plaintiff simply inquired as to the whereabouts of his property; he never demanded possession of it. The contrary is true here.

There are two theories under which plaintiffs’ ownership and immediate possessory right to the money herein involved could be established. The first is a contract between IEA and its members in SVETA; the second is an agency contract between IEA and SVETA itself. We find neither persuasive.

This court has held that the constitution and bylaws of a labor union are contracts binding upon the members of the union. (Payne v. Collier (1976), 38 Ill. App. 3d 201, 347 N.E.2d 863.) Thus, the IEA could prevail if its constitution/bylaws provided for a forfeiture of the property of an IEA local upon disaffiliation of the local. (Gross Loge des Deutschen Orden der Harugari des Staates Illinois v. Brausch (1912), 256 Ill. 185, 199 N.E. 908; Freundschaft Lodge No. 72 D. O. H. v. Alchenburger (1908), 235 Ill. 438, 85 N.E. 653.) However, no evidence was introduced at trial as to the existence of any such provision.

Martinek v. Zarovy (1943), 318 Ill. App. 605, 48 N.E.2d 760, and Bachman v. Hofman (1902), 104 Ill. App. 159, are of no aid to the plaintiffs because both cases merely deal with the rights of minority members of an association when the majority votes to dissolve. There was no dissolution here. SVETA existed before affiliating with the IEA, and it continued to exist afterwards. Since this is not a suit by the five members of the SVETA who voted to retain affiliation with the IEA, Martinek and Bachman are not persuasive.

The second — agency theory — also fails because, as the defendants correctly point out, SVETA is a voluntary labor organization and as such is an agent of its members, not the agent of a parent body with which it is affiliated. (Louisville Ry. Co. v. Louisville Area Transport Workers Union (1950), 312 Ry. 657, 228 S.W.2d 652.) Thus, the mere fact that the IEA issued a charter to SVETA does not make SVETA its agent for collecting dues.

Although not directly on point, Technical Engineers Local 144 v. La Jeunesse (1976), 63 Ill. 2d 263, 347 N.E.2d 712 (holding that an unincorporated association cannot sue or be sued in its own name) at least implies that an unincorporated association has no existence beyond its members and is thus only their agent and not that of the national or international labor organization. We so hold.

Plaintiffs did present evidence that SVETA transfered dues money both before and after disaffiliation. This is some evidence of a contract between the IEA and the SVETA. However, evidence also established that SVETA was a voluntary labor organization in existence both before affiliation with the IEA and after disaffiliation. This evidence negates the inference that SVETA was acting as an agent for IEA when it transmitted dues. Without more, the evidence establishes only that the SVETA was acting as the agent of its members.

The IEA failed to present a prima facie case and dismissal was proper.

Affirmed.

GREEN, P. J., and TRAPP, J., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRELL L. WATSON, Defendant-Appellant.
    Third District
    No. 81-154
    Opinion filed March 24, 1982.
    Modified on denial of rehearing August 16, 1982.

      Robert Agostinelli and Stephen Omolecki, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Warren T. McNeill, State’s Attorney, of Monmouth (John X. Breslin and Gerry R. Arnold, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Darrell Watson was tried before a jury, convicted of indecent liberties with a child, and sentenced to 15 years’ imprisonment.

According to the evidence presented at trial, defendant’s wife left the family home about 6 p.m. on November 4,1979, to run an errand, leaving defendant with the couple’s two children, three-year-old Margaret and one-year-old Darrell Raymond. Defendant was preparing to take a shower, and the two children were in their bedroom — the baby in his crib and the little girl playing with some toys on the floor. Margaret was wearing the play clothes she had had on all day — pants and a T-shirt. When the mother returned about one-half hour later, defendant was in his bedroom watching television, and he said that both children had been put to bed because they were ornery, even though it was two hours before their usual bedtime. He also said that while he was taking a bath, he had heard a loud crash, that he called to Margaretj and that she came to the bathroom door with blood on her face, chest and legs. He cleaned her up but could not tell where the blood was coming from. He stated that he changed her clothing and put her dirty clothes in the washing machine.

Although defendant told her not to go see Margaret for fear of waking her, the mother did check on Margaret and found her sleeping. She was covered with a blanket and there was no trace of blood on her face or arms. Defendant told the mother that he supposed Margaret must have been trying to climb into the crib and fallen onto the rocking chair which was next to the crib. A short time later Margaret awoke, and the mother discovered that the little girl was bleeding between her legs. She cleaned her with a washcloth, put on clean underpanties, and over defendant’s objection, the mother took Margaret to Monmouth Memorial Hospital emergency room. She told emergency room personnel that the little girl had been injured while at home with defendant, and that defendant thought she must have fallen.

The Watson’s family doctor, Dr. Lindo, was summoned, and his examination indicated a laceration in the vaginal area, extending from the exterior into the interior of the vagina. He was able to insert his index finger into the vaginal canal where he detected additional lacerations. He consulted with a gynecologist, Dr. Limanon, who also examined Margaret. It was decided to admit Margaret to the hospital and to do a complete examination under anesthetic the next morning.

The mother called defendant and her mother and grandmother to come to the hospital as soon as the doctors decided to hospitalize Margaret overnight. When defendant arrived, the examining physician told him that he believed Margaret had been sexually abused..

During the examination the next morning, it was confirmed that Margaret had suffered two additional interior lacerations of the vaginal wall. All three lacerations required sutures. Both doctors testified at trial that the lacerations were indicative of penile penetration and that a fall onto the rocking chair was not a likely cause of the injuries because there were no bruises in either the exterior or interior region.

Photographic exhibits in the record reveal that the rocker in question was a sturdy, wooden, child’s rocker with a nonpointed rounded knob, appearing to be more than an inch in diameter, extending upward no more than two inches at either corner of the back of the chair. When the mother returned home the night of the incident, the chair was located near the baby crib in the bedroom shared by the children. There was testimony that in the past Margaret had used the chair in order to climb into the baby’s bed and that the chair was usually kept on the other side of the room. The State called as witnesses two nurses who had attended Margaret in the emergency room. They both testified that Margaret had told them that she did not fall on the rocking chair.

On November 5, the morning of the surgery, a police officer, Lieutenant Roy Johnson visited the Watson home to investigate the possible child-abuse charge. He and the defendant’s wife went through all the items in the washing machine where she had placed the soiled clothing when she cleaned Margaret before going to the hospital. They found two pairs of bloodstained panties and three soiled washcloths.

On the morning of surgery, the father came to the hospital for awhile, but then he left and went to the home of his foster mother. She testified that he was so upset and depressed that she called two different hospitals, finally making arrangements for him to be admitted to a hospital in Burlington, Iowa. According to defendant’s wife, the night before defendant had commented that if he went to Burlington, “they couldn’t touch me,” but she had advised him that it would look like he was guilty if he left. Defendant also commented to some neighbors that he might as well leave since they already had him convicted.

Defendant called several witnesses who told how upset he was on the morning of November 5. He took the stand in his own defense and described how he thought Margaret must have injured herself by falling onto the rocking chair. Defendant identified the underpants he took off Margaret when he cleaned the blood off her. He stated that he cleaned blood off the rocking chair before the mother came home. He denied ever mentioning leaving the State of Illinois to avoid the authorities.

Defendant was charged with aggravated incest, indecent liberties with a child, and aggravated battery. The jury found him guilty on all three charges, and the State elected to have judgment of conviction entered on the indecent liberties verdict. Following a sentencing hearing, the trial court entered the maximum sentence of 15 years’ imprisonment. Defendant has appealed from his conviction and sentence. We affirm.

Defendant first contends that he was not proved guilty beyond a reasonable doubt in view of the fact that all of the evidence against him was circumstantial and considering that sexual offenses require a stricter standard of proof than do other types of crimes. Defendant discusses the credibility of witnesses and the weight that should be given the evidence, and concludes that the State failed to meet its burden. We do not agree. Clearly only the defendant had an opportunity to commit the act charged, and the medical evidence indicated not only that sexual abuse was the probable cause of injury but also that a fall onto the rocking chair was an unlikely cause. There was additional corroborative evidence for the State’s theory, such as that only two bloodstained panties were found, that it can be inferred that defendant attempted to flee to Iowa to avoid Illinois authorities, and that he was reluctant to have Margaret taken to the hospital. The only explanation offered by defendant for a cause of the injuries was a fall. After viewing photographs of the rocking chair, we believe it inherently incredible to suggest that a three-year-old child could suffer lacerations to the interior of the vaginal canal without incurring any bruises as a result of a fall upon the chair while she was wearing pants — the play clothes she had worn all day. We conclude that the evidence was sufficient to support a finding of defendant’s guilt.

Defendant has assigned as error 13 rulings by the trial court sustaining objections by the State to questions asked by defense counsel during cross-examination, five rulings sustaining objections to questions asked by defense counsel during defendant’s case-in-chief, and three comments made by the State during closing arguments. Defendant also contends that he was denied a fair trial by the combined effect of the prosecutor’s misconduct and the trial court’s acquiescence in that conduct. None of these alleged errors were specifically included in defendant’s post-trial motion; hence, all were waived. Because defendant claims the cumulative effect of the allegedly erroneous rulings was to deny him a fair trial, we have nonetheless considered the merits of defendant’s arguments and have concluded that most of the rulings were not erroneous, and that defendant was not denied a fair trial. It would serve no useful purpose to discuss each ruling separately and would unduly lengthen this opinion.

Defendant also contends that the trial court erred in allowing the two emergency room nurses to testify to statements made by Margaret, the three-year-old victim. According to the record, one of the nurses asked Margaret who washed the rocking chair, and the little girl answered, “Nobody.” The nurse then asked, “Wasn’t there blood on the rocking chair?” and Margaret said, “No.” The nurse then asked where the blood was, and Margaret did not answer. The other nurse then asked if it was a secret, and when Margaret said yes, the nurse asked, “Why don’t you tell me.” Margaret answered, “I didn’t fall on the rocking chair.” The trial court permitted the nurses to testify to Margaret’s statements on the ground that they were spontaneous declarations and thus came within an exception to the rule against hearsay.

As a general rule, a statement will qualify as a spontaneous declaration (1) if the occurrence was sufficiently startling so as to produce a spontaneous and unreflecting statement, (2) if there was an absence of time to fabricate, and (3) if the statement related to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill. 2d 175, 174 N.E.2d 804; People v. Robertson (1976), 43 Ill. App. 3d 143, 356 N.E.2d 1180.) Defendant argues that Margaret’s statements did not qualify as spontaneous because she was answering questions, because she had approximately two hours to reflect and fabricate, because she had a reason to fabricate in that she had been told not to climb on the rocking chair, and because she was not excited but placid.

We note, first, that these were the first words which Margaret spoke after her mother discovered her injury, and also that she had been out of the presence of defendant only for the short time it took to drive to the hospital. The mother had testified to Margaret’s withdrawn manner, and apparently the little girl was in bed asleep for nearly one hour before the injury was discovered. Thus there was actually very little time for fabrication. Certainly the event was sufficiently startling to produce a spontaneous statement, and clearly the statements did relate to the circumstances of the occurrence. We also note that the credibility of a child of such tender years would be a matter for the jury to weigh. We are not prepared to say that the trial court erred in this case. We believe that the admissibility of the statements of an abused child of tender years is a matter for the discretion of the trial court who is in the better position to weigh the probative value of the evidence against the possible prejudice to defendant. To have left the impression that Margaret never said anything about the incident would give the jury cause for speculation which might be more harmful to defendant than the nurses’ testimony. We cannot say that the trial court abused its discretion in this case. Cf. People v. Gross (1979), 75 Ill. App. 3d 311, 393 N.E.2d 1308.

Defendant further contends that it was error to permit a police officer to testify that he met defendant in a hospital psychiatric ward in Iowa two days after the incident, and that such testimony was irrelevant and would give rise to “wild speculation.” Defendant did not object on that ground at trial or in his post-trial motion, but rather objected only on the ground that it would be prejudicial to inform the jury that the conversation occurred in Burlington, Iowa. Therefore, defendant waived any error that may have occurred. Furthermore, the testimony was relevant to show that defendant did in fact leave the State of Illinois within a short time after the offense.

Another error assigned by defendant was the fact that the trial court permitted the bloodstained clothing to be taken into the jury room during deliberations. Generally a trial judge may permit jurors to take with them those tangible objects which have been duly admitted into evidence, if they are relevant to any material issues, and the court has considerable discretion in deciding what exhibits may be sent to the jury room. (People v. Dixon (1978), 58 Ill. App. 3d 557, 374 N.E.2d 900.) In this case we believe the items of clothing were relevant to the issues of fact confronting the jury. Defendant claimed that his daughter was wearing clothes, including underpants, when she fell, while the State theorized that she was unclothed when she was sexually abused. Under defendant’s theory, there should have been three sets of underpants in the washing machine, while the State’s theory would have been compatible with the two pairs that were found. Both the number and condition of the panties were relevant to the jury’s deliberation. We conclude the trial court did not err.

Finally, defendant contends that the 15-year sentence was grossly excessive, that the trial court did not consider all possible mitigating factors, and that the trial court should not have taken into account his lack of remorse. We note the evidence presented at the sentencing hearing included that the victim has suffered emotionally as well as physically.

In imposing sentence, the trial court observed that defendant had been convicted of a particularly offensive crime but rejected the prosecutor’s suggestion that defendant be sentenced to an extended term of imprisonment. The court found that probation would not be appropriate, that imprisonment was required for the protection of at least one member of the public, presumably the victim, that probation would tend to deprecate the seriousness of the offense and would not be consistent with the ends of justice, that defendant inflicted bodily injury to another person, that a sentence of imprisonment was necessary for deterrence, that the victim was of a tender age, that defendant had abused his parental relationship with the victim, and that defendant had shown no remorse. In mitigation, the court observed that defendant did not have a significant history of prior criminal activity and had led a substantially law-abiding life prior to the commission of the instant offense. The presentence investigation report reveals that the 27-year-old defendant’s only prior criminal record consisted of six different traffic convictions between 1973 and 1980.

The standard of review when considering the sentence a trial court has imposed is whether the trial court has abused its discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) When a reviewing court is asked to exercise its power to reduce a sentence, that power will be exercised cautiously and the court will not reduce the sentence merely as an exercise of judicial clemency. People v. York (1980), 87 Ill. App. 3d 1026, 1033, 409 N.E.2d 525, 530.

Although rehabilitation, together with the seriousness of the offense, is a factor which the Illinois Constitution requires a sentencing judge to consider (Ill. Const. 1970, art. I, §11), rehabilitation is not the sole factor (People v. West (1977), 54 Ill. App. 3d 903, 909, 370 N.E.2d 265, 270, and does not outweigh the other factors (People v. Henderson (1980), 83 Ill. App. 3d 854, 870, 404 N.E.2d 392, 404). Also, this court has previously recognized that a defendant’s lack of remorse is an appropriate factor to consider.

In our view, the trial court properly took into account that the nature of this crime was particularly offensive and heinous. We do not believe the trial court abused its discretion in this case.

For the reasons stated, we affirm the conviction and sentence.

Affirmed.

ALLOY and HEIPLE, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TYRONE WALTON, Defendant-Appellant.
    Fourth District
    No. 17382
    Opinion filed July 8, 1982.

      Daniel D. Yuhas and Diana N. Cherry, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Ronald C. Dozier, State’s Attorney, of Bloomington (Robert J. Biderman and Garry W. Bryan, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE MILLS

delivered the opinion of the court:

Armed robbery — jury—guilty—25 years.

Walton was identified by his victim, who had been hospitalized for a nervous disorder prior to the robbery.

Motion for discovery of the victim’s mental health records in the possession of State agencies was denied.

We affirm.

Facts

Because of the issues raised by defendant on appeal, the facts of this case may be stated in somewhat abridged form.

At approximately 1 p.m., on February 12, 1981, the victim, of Bloomington, was robbed at gunpoint while walking in the vicinity of his home. The robber engaged him in conversation prior to the robbery, but according to the victim, the entire incident took no more than 10 or 15 minutes. After he was robbed, he went immediately to his home and reported the incident to police. He described his assailant as a black man of slim build, approximately six feet in height, weighing 150 or 160 pounds. The robber wore a long tweed trench coat and a stocking cap, and was approximately 20 years old. Officer Frank, of the Bloomington police department stated that when he first arrived at the victim’s residence following the robbery, the victim was highly agitated, shaking, and spoke with a nervous voice.

Shortly after the robbery, Officer Bauer, who had heard a radio report of the incident, noticed that a short black male appeared to be leaning forward and stuffing something under the front seat of a suspicious automobile driven by a taller black male which the officer was following. Bauer stopped the vehicle and ordered the two occupants out. The car was driven by defendant, and the other occupant was Jimmie Dale Hannah, who was known by Bauer to have a revoked driver’s license. Bauer subsequently discovered a tweed coat on the floor of the car where Hannah’s legs would have been. He checked the coat for identification and found a stocking hat, a pair of gloves, and a billfold containing the victim’s identification papers. The defendant was thereupon arrested and placed in a holding cell at the Bloomington police station.

Less than 75 minutes after the robbery, the victim was brought into the Bloomington police station’s cellblock area. He had previously been shown his wallet, which police told him was taken from a suspect who was in custody. As soon as he saw defendant, he pointed at him and said, “That’s him. That’s him.” The defendant was apparently the only person in the cellblock at the time and was the only suspect shown to the victim. The defendant was not wearing an overcoat or hat at the time the victim identified him. Persons arrested by the Bloomington police department are normally taken to the McLean County jail when they are to be held in custody for more than a short period of time, and lineups usually take place there. It usually takes from one to three hours to organize a lineup.

At a hearing on defendant’s motion to suppress the victim’s identification of defendant at the showup and the fruits of the search of the automobile which defendant was driving when arrested, the victim stated that he really was not certain whether he had seen defendant prior to the robbery, since a lot of black people look alike. He also stated that on the afternoon of the robbery, he was in no hurry to leave the police department.

At trial of this cause, he also made an in-court identification of defendant and stated that defendant was the person who accosted him. Under cross-examination, he acknowledged that the defendant was “not really” slim, that he appeared approximately six feet two to six feet three inches tall, weighed approximately 170 pounds and was approximately 23 to 25 years old. He further testified that he was convicted of burglary in 1971 and that for the past five or six years had periodically been under a doctor’s care for his “nerves.” He had voluntarily been a resident in a Decatur mental hospital, where he underwent treatment for his nervous condition, from November 1980 to January 1981. He had never been involuntarily committed to a State hospital. When his nerves got “real bad” they caused him “not to think too good,” but he was “completely right” on February 12, 1981. He also described the medication which he took as part of his treatment.

Opinion

I. Defendant first contends that the pretrial showup was improperly suggestive and that evidence of this identification was therefore improperly admitted at his trial. Pretrial identifications which are overly suggestive are not per se violative of a defendant’s confrontation and due process rights. Evidence of such identifications is admissible if, based on the totality of the circumstances, the identification possesses sufficient indicia of reliability. The relevant factors in evaluating the reliability of such identifications are: (1) the opportunity of the witness to view the defendant at the time of the crime; (2) the witness’ degree of attention to the details of the crime and the criminal; (3) the accuracy of the witness’ preidentification description of the criminal; (4) the level of certainty demonstrated by the witness in identifying the defendant as the culprit; and (5) the amount of time elapsed between the commission of the crime and the identification. Against these factors must be weighed the corrupting effect of the suggestive identification. (Manson v. Brathwaite (1977), 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243.) Furthermore, a one-man showup within a short time of the commission of a crime is to a certain extent justified by the necessity for the police to determine whether the perpetrator of the crime has been apprehended, so that they may know whether to continue the search for the culprit. People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.

An analysis of the circumstances surrounding the victim’s pretrial identification of defendant reveals that the identification contains sufficient manifestations of reliability, and was sufficiently justified by exigent circumstances, to satisfy constitutional standards for admissibility. First of all, he had a clear view of defendant for at least five to 10 minutes while standing outside in the early afternoon. He thus had ample opportunity to view the defendant at the time of the robbery. Furthermore, the witness and defendant were alone at the time of the robbery, and his attention was thus obviously focused on defendant. Also, he provided a rather accurate description of defendant, including a description of his height, weight, and wearing apparel. Upon first seeing defendant in the cell-block, he spontaneously identified him as his robber, thus signifying that he was completely certain of his identification. Also, he provided a description of the robber to the police within a half-hour of the crime and identified defendant as the robber within 75 minutes of the incident. Finally, booking defendant into the McLean County jail and organizing a lineup would obviously have resulted in a rather considerable delay in his viewing of defendant. Thus, the indicia of the reliability of his identification of defendant, coupled with the need for the police to promptly determine whether his robber had been apprehended, outweigh any prejudice accruing to defendant as a result of the suggestiveness of the pretrial identification procedure. The trial court did not err in admitting evidence of the showup.

II. Defendant also maintains that the victim’s in-court identification was improper, since it was tainted by the allegedly suggestive police station identification. In order for an in-court identification to be admissible, it must meet the same five-factor test of reliability set forth in Manson, augmented by a sixth factor which the Illinois Supreme Court has appended to the standard: the extent of any prior acquaintance of the witness with the defendant. Furthermore, the in-court identification must have an origin independent of any improper out-of-court identifications. (People v. McTush (1980), 81 Ill. 2d 513, 410 N.E.2d 861.) As previously indicated, the circumstances of his encounter with defendant fully satisfy the first and second prongs of the Manson test. The victim did not demonstrate any uncertainty in his courtroom identification of defendant, and a not unreasonable amount of time elapsed between the robbery and the trial. Furthermore, there is some evidence that the victim may have known (or at least seen) the defendant prior to the robbery. The minor discrepancies in his description of defendant on the day of the robbery and his description of defendant at trial, which essentially amount to a difference in the estimate of defendant’s weight of approximately 20 pounds, and a difference in the estimate of defendant’s height of two to three inches, are immaterial in view of the other factors which support the reliability of the victim’s identification. (Cf. People v. Nolden (1980), 91 Ill. App. 3d 532, 414 N.E.2d 1124 (minor discrepancies in initial description of defendant which crime victim provided police and defendant’s actual physical characteristics do not raise reasonable doubt as to perpetrator’s identity; instead such inconsistencies are to be weighed by the trier of fact in evaluating identification testimony).) Since the victim’s in-court identification of defendant thus possesses sufficient indicia of reliability, and did not stem from an improper out-of-court identification, the trial court acted properly in permitting this identification.

III. Defendant finally asserts that he should have been granted access to the victim’s health records, which were in the possession of State agencies. On May 4, 1981, defendant filed a motion for discovery of this material, which was denied by the trial court on May 5,1981. On May 20, 1981, the defendant filed a subpoena for “any and all medical records relating to the mental status of one [victim]” in the possession of the McLean County Center for Human Services, but compliance with this subpoena was not ordered. Defendant, relying exclusively on this court’s recent decision in People v. Phipps (1981), 98 Ill. App. 3d 413, 424 N.E.2d 727, asserts that the trial court’s refusal to provide him with access to the victim’s mental health records amounts to reversible error. We find Phipps distinguishable, however.

In Phipps, the defendant was charged with cruelty to persons, maltreatment of a mentally retarded person, and battery. The defendant’s motion for discovery of mental health records asserted that seven of the witnesses which the State planned to call against defendant were residents of the Lincoln Developmental Center, that the State maintained personnel files on those individuals, and that the files contained mental evaluations, intelligence quotients, and statements concerning the truth and veracity of the witnesses. We held that under the circumstances there present, the defendant’s constitutional rights of due process and confrontation mandated disclosure of the relevant portions of the mental health records of the witnesses confined to the Lincoln Developmental Center, notwithstanding the mental health therapist-patient privilege. Ill. Rev. Stat. 1981, ch. 91½, par. 810(a).

Prior to Phipps, Illinois courts held that evidence of a witness’ mental condition is admissible to the extent that it bears on the credibility of the witness’ testimony. (See People v. Lindsey (1979), 73 Ill. App. 3d 436, 392 N.E.2d 278.) Before such evidence may be introduced, however, its relevance to a witness’ credibility must be established. (State v. Harman (W. Va. 1980), 270 S.E.2d 146; see People v. Brown (1966), 76 Ill. App. 2d 362, 222 N.E.2d 227.) We do not deem the rule of Phipps to be so broad as to negate the necessity of establishing the pertinence of a witness’ psychiatric condition or history to the credibility of his or her testimony before such evidence may be introduced or before a witness’ otherwise confidential mental health records may be subpoenaed or discovered.

The witnesses involved in the Phipps case, whose mental health records the defendant sought to obtain, suffered from psychiatric disorders so severe that they were long-term residents of a mental hospital. They were institutionalized at both the time of the alleged offenses and the time of the trial. In the case at bar, by contrast, the defendant had once been a voluntary patient in a mental hospital, but apparently had successfully completed his treatment there. He was not hospitalized at either the time of the robbery, the time of defendant’s trial, or during the intervening period. Aside from the victim’s testimony as to his nervous condition and prior treatment therefor, the only other evidence offered in support of defendant’s effort to obtain access to the victim’s mental health records was the statement of defendant’s counsel, while arguing defendant’s motion for discovery of those records, that the victim was “under medical supervision by the McLean County Center for Human Services.” The defendant’s evidence in support of his motion to discover, and his subpoena for the victim’s mental health records is obviously not comparable, in either its substance or the specificity of the allegations as to the contents of the victim’s mental health records, to that offered in support of Phipps’ discovery motion. It falls short of the type of evidence which would have been necessary to establish the relevancy of the information contained in the victim’s mental health records to his credibility as a witness.

We therefore hold that on the basis of the record before us, the defendant did not make a sufficient showing that information contained in the victim’s mental health records in the possession of State agencies was relevant to his credibility as a witness.

Affirmed.

GREEN, P. J., and TRAPP, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    MICHAEL COX, Plaintiff-Appellant, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF DANVILLE et al., Defendants-Appellees.
    Fourth District
    Nos. 17527, 17610 cons.
    Opinion filed July 8, 1982.

      MILLS, J., dissenting.
    Thomas H. McGary Law Offices, of Springfield (Donald A. LoBue, of counsel), for appellant.
    Hardin W. Hawes, of Sebat, Swanson, Banks, Lessen and Garman, of Danville, for appellees.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

Plaintiff, Michael Cox, filed notice of appeal from two orders of the circuit court of Vermilion County, each purporting to dismiss, as not having been timely commenced, plaintiff’s suit brought under the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.) seeking review of a decision of defendant, the Board of Fire and Police Commissioners of the City of Danville (Board), discharging him from his employment as a police officer of that city.

The first notice of appeal was filed October 14, 1981, and was from an order entered by pronouncement in open court on September 16,1981. The second notice of appeal was filed November 16, 1981, and was from a written order filed October 20,1981, giving a slightly different rationale for the dismissal. The appeals have been consolidated. We conclude the case is properly before us on one of the notices of appeal. We affirm.

The facts bearing upon the timeliness of the institution of the suit are not in dispute. Prior to May 12, 1981, defendant Board had before it a petition requesting plaintiff’s discharge. After the Board had originally found plaintiff not guilty of charges made against him, the decision had been appealed to the circuit court and then remanded to the Board for further proceedings. On May 12, 1981, the Board reconsidered the matter and on May 13, 1981, entered an order discharging plaintiff. On May 13, 1981, copies of the order were placed into the United States mail in envelopes with proper postage thereon and addressed to plaintiff and his attorney. They received the documents on May 15, 1981. On June 17, 1981, at about 9:30 a.m., plaintiff’s attorney presented his complaint in administrative review to the office of the clerk of the circuit court of Vermilion County together with unsigned summonses directed to each of the proper parties defendant to the administrative review sought. Affidavits as to the addresses of all of the parties were presented. The summonses were not signed on behalf of the clerk until the next day, June 18,1981, at which time the summonses were sent by mail to the respective defendants.

Section 4 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 267) states that an action for review under the Act “shall be commenced by the filing of a complaint and the issuance of summons within 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected thereby.” (Emphasis added.) The parties are in dispute concerning the legal questions as to (1) when was a copy of the decision “served” on plaintiff, and (2) when was the proceeding for review in the circuit court “commenced.”

With reference to the decisions of administrative agencies such as the Board, section 4 of the Administrative Review Act states in part:

“The method of service of the decision shall be as provided in the Act governing the procedure before the administrative agency, but if no method is provided, a decision shall be deemed to have been served either when personally delivered or when deposited in the United States mail, in a sealed envelope or package, with postage prepaid, addressed to the party affected thereby at his last known residence or place of business.” (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 110, par. 267.)

The Act governing procedure before the Board (Ill. Rev. Stat. 1979, ch. 24, par. 10 — 2.1—17) makes no provision for method of service. Thus, it would appear that, here, the parties affected were “served” by the Board’s decision and the 35-day period to “commence” review started on May 13, 1981, when copies of the Board’s order were placed in the mail. However, plaintiff presents two arguments to support his contention that he was not “served” until he received a copy of the order on May 15, 1981.

First, plaintiff relies upon dictum in Pearce Hospital Foundation v. Illinois Public Aid Com. (1958), 15 Ill. 2d 301, 154 N.E.2d 691, where the court held that a party could not extend its time for seeking review under the Administrative Review Act by filing a petition with the administrative agency for reconsideration of its order. In the course of the opinion, the court stated:

“Had judicial review been sought within 35 days after appellees had received the administrative decision, the court in which relief was sought would have had the power to affirm or reverse the decision, or to remand it to the commission for further hearing if the need therefor was found to exist.” (Emphasis added.) 15 Ill. 2d 301, 306, 154 N.E.2d 691, 694.

Plaintiff points out that the quoted language from Pearce was cited in A-1 Security Services, Inc. v. Stackler (1978), 61 Ill. App. 3d 285, 377 N.E.2d 1199, but that case concerned the administrative review of a decision of the Department of Registration and Education revoking detective licenses. There, the legislation governing the procedure before the agency (Ill. Rev. Stat. 1975, ch. 38, par. 201 — 21) provided for service of the decision by personal delivery or registered mail and made no statement as to when the service was deemed to have taken place. Date of receipt was held to be the date of service.

Plaintiff also relies upon Varnes v. Lentz (1975), 30 Ill. App. 3d 806, 332 N.E.2d 639, where the issue before the court was whether an administrative order was final. The opinion noted that Pearce had held that proceedings for review under the Administrative Review Act had to be started within 35 days of “the date that a copy of the final decision sought to be reviewed was served upon the party affected thereby.” (Emphasis added.) (30 Ill. App. 3d 806, 810, 332 N.E.2d 639, 643.) Not only was the foregoing statement dictum but it used the word “served” rather than received. Thus, the statement did nothing to resolve the question of whether a copy of the decision is served when mailed or when received.

On the other hand, Chin v. Department of Public Aid (1979), 78 Ill. App. 3d 1137, 398 N.E.2d 135, and Thompson v. Illinois Civil Service Com. (1978), 63 Ill. App. 3d 153, 379 N.E.2d 655, directly hold that unless the Act governing the procedure provides for other method of service than that provided in the Administrative Review Act, the copy of the administrative order is served when mailed. Plaintiff argues that we should follow the statement in Pearce as appropriate authority rather than Chin or Thompson. However, as the statement in Pearce was dictum, we need not follow it. We do not consider A-1 Security Service or Varnes to be on point. We consider Chin and Thompson to be logically reasoned and to follow the expressed meaning of section 4.

In arguing that the copy of the Board order was not served when mailed, plaintiff also seeks support from Supreme Court Rule 12(c) (73 Ill. 2d R. 12(c)), which states that “[s]ervice by mail is complete four days after mailing.” He contends that rule is applicable because of section 14 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 277) stating that the Supreme Court Rules “apply to all proceedings” under that Act, but that same sentence further states, “except as otherwise provided in this Act.” Section 4 of the Act provides otherwise and states that the copy of the decision is served when mailed unless otherwise provided in the Act governing the administrative agency.

We hold that the trial court correctly determined the copy of the order was served on May 13, 1981, when mailed, and the 35-day period for commencing the review proceedings started to run at that time. See Summers v. Illinois Commerce Com. (1978), 58 Ill. App. 3d 933, 374 N.E.2d 1111; Fletcher v. Civil Service Com. (1972), 6 Ill. App. 3d 593, 286 N.E.2d 130.

The parties do not dispute that in computing the 35-day period of section 4, the first day should be excluded and the last day included. (Ill. Rev. Stat. 1979, ch. 1, par. 1012.) Upon this basis Wednesday, June 17, 1981, was the 35th and last day to commence the review in the circuit court. That was the day plaintiff’s complaint for administrative review was filed but it was the day before June 18, 1981, when the summonses were signed on behalf of the circuit clerk. Section 4 states that not only must the complaint be filed within the 35-day period but the summons must also be issued within that period. Regardless of what acts are required to constitute the issuance of a summons, clearly no summons was issued here until June 18, 1981. We thus come to the question as to whether the apparent requirement of issuance of summons should be disregarded.

In support of his argument that the requirement for issuance of summons within the 35-day period be disregarded, plaintiff cites language in various cases which recites that the only thing required to be done within the 35-day period was the filing of the complaint. (Norris v. City of Aurora (1978), 64 Ill. App. 3d 748, 381 N.E.2d 996; Springfield-Sangamon County Regional Plan Com. v. Fair Employment Practices Com. (1976), 45 Ill. App. 3d 116, 359 N.E.2d 174; Dendor v. Board of Fire & Police Commissioners (1973), 11 Ill. App. 3d 582, 297 N.E.2d 316; Hailey v. County Board of School Trustees (1959), 21 Ill. App. 2d 105, 157 N.E.2d 570.) In none of the cases was any issue raised as to whether a summons had been timely issued. Rather, the issue was whether new parties, some of which were necessary, could be brought in after the 35-day period, and reviewing courts held they could.

Plaintiff also cites cases from other jurisdictions where both filing of the complaint and issuance of summons was required to commence a case. The courts deemed the filing of the complaint together with a direction to the clerk to issue summons to be sufficient compliance. (Hagy v. Allen (E.D. Ky. 1957), 153 F. Supp. 302; State ex rel. Bair v. Producers Gravel Co. (1937), 341 Mo. 1106, 111 S.W.2d 521; State ex rel. Evans v. Broaddus (1912), 245 Mo. 123, 149 S.W. 473.) Hagy dealt with the procedural law of Kentucky. The opinion implied that the attorney filing the complaint near the deadline had advised the clerk of the necessity of immediate issuance of the summons to satisfy the statutory deadline.

In the case before us, counsel for the plaintiff had presented the complaint and all of the necessary documents to the clerk of the court on the last day for commencement of the proceeding. Thus, counsel had done most of the things necessary to assure immediate issuance of summons. However, there is no indication here that the clerk s office personnel were informed that summons was required to be issued that day in order for the administrative review to have been timely commenced. Issuance of a summons the day after the filing of a complaint would not ordinarily be dilatory. Had the clerk’s personnel been advised of the exigencies of the circumstances and then failed or refused to issue summons immediately, as apparently occurred in Hagy, a strong case would be made for disregarding the requirement that summons issue, but we need not decide what the ruling would be under those circumstances. In the absence of such a showing, we must follow the plain wording of section 4.

Because both the filing of the complaint and the issuance of summons did not take place within 35 days of the service of a copy of the Board’s decision, the trial court properly dismissed the complaint for administrative review.

Accordingly, we affirm.

Affirmed.

LONDRIGAN, J., concurs.

JUSTICE MILLS,

dissenting:

Cox has lost his job and is now denied review — perhaps for no better reason than that someone in the clerk’s office put off until tomorrow what could have been done on the 35th day.

Our supreme court has said, “ ‘Rules of procedure are not ends in themselves; they are designed to secure orderly and fair methods of disposing of litigated matters.’ ” (People ex rel. Southfield Apartment Co. v. Jarecki (1951), 408 Ill. 266, 273, 96 N.E.2d 569, 572, quoting People ex rel. Pickerill v. New York Central R.R. Co. (1945), 391 Ill. 377, 63 N.E.2d 405.) The court has also stated that, “A situation within the object, spirit and meaning of [a] statute falls within it, although it may be without the letter of the law.” Department of Revenue v. Joseph Bublick ir Sons, Inc. (1977), 68 Ill. 2d 568, 575, 369 N.E.2d 1279, 1282.

The obvious purpose of a 35-day filing rule is to encourage prompt action by the aggrieved party so that timely dispositions of a matter may be made. This purpose was fulfilled in the present case. There is no apparent purpose for requiring that the filing be made sooner than 35 days after service of a copy of the decision so that the summons can be issued within 35 days. This only serves to punish a plaintiff for less than ideal operations at the clerk’s office. A “trap for the unwary” if ever there was one.

With respect to the former Civil Practice Act, Illinois courts have always held a liberal viewpoint when construing the Act. A notable example is Campbell v. Fazio (1959), 23 Ill. App. 2d 106, 110, 161 N.E.2d 579, 581, where the court said:

“Our courts in their interpretation of the Practice Act have been reluctant to deny any litigant his day in court and they have avoided any harsh construction of the rules. In keeping with the intent of the Practice Act and the rules adopted thereunder, no attempt has been made to require a ‘strict letter of the law’ compliance with the Act or the rules, but rather there has been a liberal construction and interpretation. Appeals have been dismissed only where there has been an omission or failure that is flagrant in its character.” (Emphasis added.)

This is merely a filing rule. It should be clear and straightforward because there will quite often be important rights affected, as in this case. A liberal construction is especially appropriate here because the Act’s subtleties impose a great injustice on the plaintiff, whereas the prejudice to the defendant is nil.

The following quotations are from two cases involving section 4 of the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 267) in which the plaintiffs’ complaints were filed after 35 days. However, the appellate court in both cases indicated that filing on the 35th day would have been sufficient to obtain review.

“This 35-day limit is a jurisdictional requirement [citation], and a plaintiff who fails to file a complaint within the specified period is time-barred from seeking review of the agency decision. [Citation.]

# # #

In short, once plaintiff received notice via certified mail * * * of the director’s suspension order, his only recourse was to file an administrative review action within 35 days.” Hoffman v. Department of Registration 6- Education (1980), 87 Ill. App. 3d 920, 924-25, 410 N.E.2d 291, 293-94.

“Under the provisions of that Act, a plaintiff must file a complaint with [in] 35 days from the date that a copy of the decision sought to be reviewed was served upon the party affected.” Varnes v. Dougherty (1976), 39 Ill. App. 3d 476, 479, 350 N.E.2d 6, 9.

The import of this language is that if the plaintiffs had filed within 35 days, they would have had their cases reviewed in the circuit court. In the present case, plaintiff filed within 35 days.

I believe he is entitled to an appeal.

Therefore, I dissent.


text:
      In re MARRIAGE OF THOMAS WISNIEWSKI, Petitioner and Counterrespondent-Appellant, and VIRGINIA WISNIEWSKI, Respondent and Counterpetitioner-Appellee.
    Fourth District
    Nos. 17437, 17477 cons.
    Opinion filed July 12, 1982.

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

delivered the opinion of the court:

Division of pension benefits in a dissolved marriage.

Expert testimony should be heard to assist the court.

None here.

We send it back.

Petitioner appeals from the apportionment of property and award of maintenance following dissolution of marriage. The main point of contention involves classification of his pension as marital property and the valuation of the pension. He also appeals an order finding him in contempt for failure to pay the maintenance and make other arrangements for settlement in compliance with the court order. We reverse and remand the property and maintenance awards. The contempt finding is affirmed.

Petitioner, Thomas Wisniewski, filed a petition for dissolution of marriage on November 26, 1980, in the Champaign County circuit court. Following hearings, judgment of dissolution was filed on June 8, 1981. Marital property other than petitioner’s pension was awarded such that the wife had marital property valued at $97,156, and petitioner had marital property valued at $15,950. These values are not disputed. Petitioner was also awarded his pension. Respondent was to receive $600 maintenance per month until her remarriage or death. There are no minor dependents.

Pension

Petitioner’s pension derived from his service to and contributions into the Teachers’ Retirement System of the State of Illinois (Ill. Rev. Stat. 1979, ch. 108½, par. 16 — 101 et seq.) and the State Universities Retirement System (Ill. Rev. Stat. 1979, ch. 108½, par. 15 — 101 et seq.). He asserts the pension is not properly classified as marital property because the benefits are too speculative and also because the Act creating the State Universities Retirement System reveals a legislative intent that the benefits not go to a divorced spouse. Even if the benefits are properly classified as marital property, petitioner argues the distribution was inequitable.

The contention that the pension cannot be marital property because it is too speculative is based upon In re Marriage of Pickell (1979), 76 Ill. App. 3d 855, 395 N.E.2d 673. The Pickell court found that respondent’s interest in the retirement fund under the Federal Railroad Retirement Act was not a present asset of the respondent since any present value was clearly speculative. However, that respondent was 38 years old at the time of the proceedings and he was not entitled to receive any benefits until he reached age 60. He could not withdraw the funds he had contributed. Furthermore, the court could not determine the amount of pension respondent would receive even assuming he continued working for the required time. For these reasons the pension was not considered a present asset of the respondent. The court also noted alternatively that the United States Supreme Court had determined that benefits payable under the Railroad Retirement Act were not subject to division because Congress intended to exclude divorced spouses from reaping those benefits. See Hisquierdo v. Hisquierdo (1979), 439 U.S. 572, 59 L. Ed. 2d 1, 99 S. Ct. 802.

In the present case the trial court found that the petitioner could currently cash in his interest for a refund of his contributions in the amount of $35,013. The court further found that petitioner was 54 years of age at the time of the proceedings and would be entitled to monthly benefits of $864 if he worked to age 55 and monthly benefits of $1,235 if he worked to age 60. The present cash refund value of the pension, the ability to determine future benefits, and the proximity of this petitioner’s present age to the age he would be entitled to receive benefits all distinguish this case from Pickett. Furthermore, although placing a present cash value on the nonvested pension benefits may be difficult, “difficulties in valuation are not an insurmountable barrier to including a pension or profit-sharing interest, whether matured, vested or nonvested, as marital property.” (In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 663, 397 N.E.2d 511, 519.) The benefits from petitioner’s pension are not too speculative to be classified as marital property.

Petitioner bases his legislative-intent argument on Hisquierdo and McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728. Hisquierdo pitted the Federal Railroad Retirement Act against the California community property law. McCarty pitted military nondisability retirement pay against the California community property law. In both cases, the United States Supreme Court made a rather detailed analysis of the relevant statutory sections and legislative history to determine that it was the intent of Congress that the benefits under those systems be available to the retiree and that the conflict sufficiently injured the objectives of the Federal programs to require nonrecognition of the community property law.

It is not necessary to recap the details of the McCarty analysis because we are not dealing with a Federal law potentially in conflict with a State law requiring consequent nonrecognition due to the supremacy clause. Rather, we are dealing with two acts of the Illinois State legislature passed at different times. The only provision cited by petitioner as evidence of legislative intent is section 15 — 120 of the Illinois Pension Code. (Ill. Rev. Stat. 1979, ch. 108½, par. 15 — 120.) That section states that “[a] spouse whose marriage was dissolved shall be disqualified as beneficiary unless the spouse was designated as beneficiary after the effective date of the dissolution of marriage.” We find the mere existence of this provision unpersuasive as evidence of legislative intent to absolutely exclude the pension benefits as marital property. Rather, it is more readily inferred that such provision is merely a statutory safeguard of the pensioner’s interest by automatically doing what the legislature presumed he would desire, i.e., dropping his divorced spouse as beneficiary.

Since the above arguments fail, we find petitioner’s pension was properly classified as marital property.

Petitioner’s alternative contention is that the distribution was inequitable, although he acknowledges that equitable does not necessarily mean an equal division. Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 376 N.E.2d 1382.

The trial court found that at the time of judgment petitioner could apply for a cash refund from the two systems totaling $35,013. Petitioner, who was 54 years old at the time the petition was filed on November 26, 1980, could apply for a monthly retirement annuity of $864 at the age of 55. At 60, he could retire with $1,235 per month. The court noted petitioner testified he intended to continue as a professor of music at the University of Illinois beyond age 60. Mandatory retirement occurs at age 70. All but the first three years of his employment eligibility in the retirement systems were spent during the marriage. That part of the pension attributable to the married years is to be considered as marital property.

The court stated that a present cash refund is not a realistic value of the pension. Respondent’s exhibit No. 3 states that an actuarial present value of a monthly annuity of $864 per month is $121,334. The actuarial present value of $1,235 per month is $155,764. The court computed as follows:

“For age 55 the multiplying fraction which represents the years of marriage into the entire service period is 27/31 of the $864.00 monthly annuity, equals $753.00, one-half to the wife being $376.00 per month. Based upon life expectancy of both sexes for 22.8 years from United States Mortality Tables (of which the court takes judicial notice), the wife’s lifetime benefit from the employee husband’s pension could be $102,874.00. At age 60 the multiplier becomes 27/36 applied to $1,235.00 monthly annuity, equals $926.00, one-half of which is $463.00 per month, 19 years of life expectancy, spousal lifetime benefit $105,564.00. These computations are only meant to indicate the variance of ways the pension values can be viewed in light of how the court must fairly deal with the distribution of the parties’ tangible property and the issue of maintenance in such a manner that takes into account that respondent will not participate in petitioner’s retirement fund.”

The court did not make a specific finding as to the value of the pension. It merely noted that the grants of other marital property to respondent were in part to offset this pension benefit which would go entirely to the petitioner.

In In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 663, 397 N.E.2d 511, 519, the court stated:

“The trial court can in some cases determine, by actuarial evidence, the present value of such an interest at the time of divorce. (42 Mo. L. Rev. 143, 149 (1977).) The amount of the pension or profit-sharing interest included as marital property would then be the present value of the interest multiplied by a fraction whose numerator is the number of years (or months) of marriage during which benefits were being accumulated, and whose denominator is the total number of years (or months) during which benefits accumulated prior to divorce. Once the trial court has determined the present value of that part of the pension or profit-sharing interest which is marital property, the trial court may award the interest to the employee spouse and give the nonemployee spouse other marital property to offset her marital share in the interest. Kalcheim, Marital Property, Tax Ramifications, and Maintenance: Practice Under the Illinois Marriage and Dissolution of Marriage Act — A Comparative Study, 66 Ill. B. J. 324, 335 (1978).
In those instances where it is difficult to place a present value on the pension or profit-sharing interest due to uncertainties regarding vesting or maturation, or when the present value can be ascertained but the type, or lack, of other marital property makes it impractical or impossible to award sufficient offsetting marital property to the nonemployee spouse, then the trial court in its discretion may award each spouse an appropriate percentage of the pension to be paid ‘if, as and when’ the pension becomes payable. (In re Marriage of Brown (1976), 15 Cal. 3d 838, 544 P.2d 561, 126 Cal. Rptr. 633; Kalcheim, Marital Property, Tax Ramifications, and Maintenance: Practice Under the Illinois Marriage and Dissolution of Marriage Act — A Comparative Study, 66 Ill. B. J. 324, 335 (1978); 42 Mo. L. Rev. 143, 150 (1977).) The marital interest in each payment will be a fraction of that payment, the numerator of the fraction being the number of years (or months) of marriage during which benefits were being accumulated, the denominator being the total number of years (or months) during which benefits were accumulated prior to when paid. The trial court, when using this method of allocation, will retain jurisdiction and award the nonemployee spouse some percentage of the marital interest in each payment. (In re Marriage of Musser (1979), 70 Ill. App. 3d 706, 388 N.E.2d 1289; In re Marriage of Brown (1976), 15 Cal. 3d 838, 544 P.2d 561, 126 Cal. Rptr. 633; Cearley v. Cearley (Tex. 1976), 544 S.W.2d 661.) Placing a present value on the nonvested pension or profit-sharing interest requires a court to take into account the possibility that death or termination of employment may destroy the interest. (Brown, 15 Cal. 3d 838, 848, 544 P.2d 561, 567, 126 Cal. Rptr. 633, 639.) Thus, this second method of allocating the interest seems particularly appropriate if the interest has not vested, because it ‘divides * * * the risk that the pension will fail to vest.’ Brown, 15 Cal. 3d 838, 848, 544 P.2d 561, 567, 126 Cal. Rptr. 633, 639.”

The trial court below calculated the amount of each monthly payment which would be marital property and divided this amount by one-half to calculate the wife’s share. Up to this point, the calculations are the same recommended by the Hunt court to determine how much of the currently nonvested pension should be awarded to the nonpensioner spouse “if, as and when payable,” thus dividing the risk of failure to vest. However, the trial court then multiplied the wife’s monthly share by her remaining life expectancy. The figure thus obtained as the wife’s share of the pension gave her the fullest possible benefit without considering the possibility the pension would not vest or that it might be discontinued for some reason prior to the full life-expectancy term. The distortion resulting from this method is acute. Respondent’s exhibit No. 3 states that an actuarial present value of a monthly annuity of $864 was $121,334. 27/31sts of this, or $105,678, was marital property. The wife’s share under the above computations was found to be $102,874. Although the court did not make a specific finding as to the value of the pension fund, the distortion in these computations must have affected the property distribution.

If a trial court deems it best to divide the pension interest prior to vesting, it must take the value of the pension as determined by actuarial evidence, discount this amount to an extent in consideration of the probability it will not vest, discount to present value, and then determine the marital portion of that amount. In some cases the trial court may be able to evaluate this risk in determining the value. (In re Marriage of Brown (1976), 15 Cal. 3d 838, 544 P.2d 561, 126 Cal. Rptr. 633.) However, generally it will require expert testimony regarding the discount factors and evidence to enable an evaluation of the probability the benefits will be enjoyed. (Robert C.S. v. Barbara J.S. (Del. 1981), 434 A.2d 383; Heatwole v. Heatwole (Wis. App. 1981), 103 Wis. 2d 613, 309 N.W.2d 380.) This method is best only where the pensioner is close to mandatory retirement age or retirement is otherwise imminent, and there are sufficient other marital assets to allow an offset to the nonpensioner spouse. Shill v. Shill (1979), 100 Idaho 433, 599 P.2d 1004.

Where this method proves impractical, the court may choose to postpone a decision on the ultimate method of apportionment of pension rights until the rights vest. This can be accomplished by the court simply awarding “each spouse an appropriate portion of each pension payment as it is paid.” This method “will require the court to continue jurisdiction to supervise the payments of pension benefits.” (In re Marriage of Brown (1976), 15 Cal. 3d 838, 848-49, 544 P.2d 561, 567, 126 Cal. Rptr. 633, 639; Holbrook v. Holbrook (1981), 103 Wis. 2d 327, 309 N.W.2d 343; Robert C.S.; Hunt; Shill.) It is especially appropriate here since petitioner’s monthly benefits will be dependent upon the number of years of employment at retirement. Petitioner will have attained the age of 55 by at least November 26, 1981. Therefore, on remand it can be determined if the conditions for the interest that would have vested at 55 have been met. Nonetheless, if petitioner retains his position until age 60, his monthly payments would be considerably more than the payments he would receive by retiring earlier. Therefore, the court may deem it best to postpone disposition of the pension benefits until it is known whether the larger interest will vest.

We also note that the antiattachment provision in the retirement law is not a bar to this option. In In re Marriage of Papeck (1981), 95 Ill. App. 3d 624, 629, 420 N.E.2d 528, 532, the appellate court stated:

“The spouse of the plan participant, upon dissolution of the marriage, obtains an actual co-ownership interest in the benefits as marital property. Thus a divorced wife is not in the position of a mere ‘creditor,’ and the anti-attachment provision of the Firemen’s Act does not bar her claim to a certain proportion of the benefits.”

The court concluded that “[i]f present value is too difficult to determine, or if there is a lack of other marital property to award the nonemployee spouse, the trial court has the discretion to allocate to each spouse ‘an appropriate percentage of the pension to be paid “if, as and when” the pension becomes payable.’ ” 95 Ill. App. 3d 624, 630, 420 N.E.2d 528, 532.

We must remand for the trial court to reconsider the method of apportionment. If it is determined the disposition shall include a present offset of property for respondent, the trial court should make a specific finding on the value of the pension benefits. While the possibility that expert testimony may not be necessary to properly value a pension was acknowledged in Brown, we believe it the better view that such valuation should be supported by expert testimony.

Amount of Maintenance

Petitioner next challenges the award of maintenance. Petitioner cites section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 504(a)) for the requirements that the court may grant maintenance “only if it finds that the spouse seeking maintenance: (1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and (2) is unable to support himself through appropriate employment * * * Petitioner states that respondent is not incapable of finding work, Rather, she was pursuing a Master of Library Science and holds a Bachelor of Music degree. Furthermore, at the time of the proceedings, she restored books at home. Since, in all likelihood, respondent will be able to work and support herself in the future, petitioner contends that the maintenance award was an abuse of discretion in its duration and in that it did not take into account her prospective income.

The court’s findings state:

“The evidence shows that petitioner’s income from his earnings at University of Illinois, royalties, and clinics is gross $3,192.00 per month. With deductions his net income is $2,098.00 per month. He itemizes $1,175.00 in expenses each month, leaving $923.00. Respondent’s gross income per month is $1,192.00, netting after deductions $816.00. Her expenses are estimated at $1,020.00 per month. Thus, she has a deficit of $204.00 each month. She is undergoing an apprenticeship which should result in an eventual income that matches her living expenses. Again, pension lost to the respondent is a consideration. As and for maintenance, petitioner is ordered to pay to respondent through the Clerk of the Court the sum of $600 per month commencing June 15, 1981 and on the fifteenth of each succeeding month until respondent remarries or becomes deceased.”

These figures are not disputed by the parties. The $600 maintenance award leaves petitioner with $323 each month and respondent with $400 each month. While an award of maintenance is merited under section 504, we believe this award is an abuse of discretion. In Shaver v. Shaver (1978), 56 Ill. App. 3d 845, 372 N.E.2d 696, the court stated that a party is entitled to alimony depending upon that party’s needs and the other party’s ability to pay. The comparative needs of respondent and ability of petitioner to pay do not justify the $600 maintenance award. Furthermore, whatever maintenance is granted upon remand will be dependent upon a proper valuation and disposition of the pension rights.

Duration of Maintenance

Regarding the duration of the award, section 504(b) of the Illinois Marriage and Dissolution of Marriage Act states that the maintenance award shall be “for such periods of time as the court deems just * * *." This section does not preclude an amount of maintenance for an indefinite period of time and it is true that the award “should not be based on speculation as to the future conditions of the parties.” (In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 845, 398 N.E.2d 868, 875.) Nonetheless, respondent’s educational background, present educational pursuits, and income at the time of the proceedings below are not speculation. Although she had a deficit of $204 per month at the time of the proceedings below, it is reasonable to expect her to adjust her situation so that she is able to support herself within a definite time period. Consequently, we also find the award of maintenance for an indefinite period of time to be an abuse of discretion.

Contempt

On August 19, 1981, a petition for rule to show cause was filed by respondent praying for an order to show cause to be entered against petitioner for failure to pay any of the maintenance payments, or to make other arrangements for settlement in accord with the trial court’s order. An order to show cause was issued to petitioner on that same date and a hearing on the matter was held on September 3, 1981. At the hearing, the court entered judgment in favor of respondent and against petitioner in the sum of $5,745 as money due and owing. It also sentenced petitioner to six months of weekends in the Champaign County jail beginning immediately. In the initial order of periodic imprisonment, the court stated that the sentence may be expunged upon the petitioner’s payment of $1,800. On September 4,1981,-the court entered an order stating that respondent was purged of his contempt since he had deposited $1,800 with the clerk.

Petitioner challenges the contempt finding as against the manifest weight of the evidence. He asserts a party “should not be held in contempt for failing to make payments required by a divorce decree unless such failure shows a wilful and contumacious refusal.” (White v. White (1976), 41 Ill. App. 3d 758, 761, 354 N.E.2d 486.) Petitioner asserts his refusal to pay in this case was not wilful and contumacious, since he did not understand he had to follow the order before his appeal was decided. Therefore, he concludes he was merely mistaken and not acting with the requisite knowledge.

The court order plainly states that “the parties are ordered to execute any and all Conveyances and to do any other thing necessary to carry out the provisions herein.” It further states that the maintenance was to be paid “commencing June 15, 1981, and on the 15th of each succeeding month * * *." This is not unclear. The finding that petitioner’s actions were wilful and contumacious was not against the manifest weight of the evidence.

Petitioner also argues that his failure to pay was not punishable as contempt since he was unable to pay. However, the petitioner did in fact pay the $1,800 in back maintenance payments and purged himself of the contempt on September 4, 1981. The imprisonment order was then expunged. Since he was obviously able to pay, this argument fails. Therefore, we conclude petitioner was properly found guilty of contempt of court.

For the reasons stated, the cause is remanded for reconsideration of the method of apportionment of pension rights and a finding as to the value of those rights if necessary. Apportionment of the remaining marital property, as well as any award of maintenance, must be reconsidered in light of the disposition of pension rights. The contempt finding is affirmed.

Reversed and remanded. Contempt finding affirmed.

WEBBER and LONDRIGAN, JJ., concur.