author: PRESIDING JUSTICE JOHNSON

text:
    IRVING COTOVSKY, et al., Plaintiffs-Appellees, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION, Defendant-Appellant.
    First District (4th Division)
    No. 81—997
    Opinion filed October 14, 1982.
    Rehearing denied December 6, 1982.

      Tyrone C. Fahner, Attorney General, of Springfield (Charles J. Pesek, Special Assistant Attorney General, of counsel), for appellant.
    Klafter, Burke, Keane & Nathan, of Chicago, for appellee Joseph Schreier.
    William J. Harte, Ltd., of Chicago (William J. Harte and Maureen Connors, of counsel), for other appellees.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

The Department of Registration and Education appeals an order of the trial court setting aside the Department’s decision to revoke the pharmacy practice licenses held by Irving Cotovsky, Joseph Schreier and Edward Jung. The Department presents the following issues for review: (1) whether the trial court can set aside the decision of an administrative agency based on a factual argument which was never raised before the agency; (2) whether the finding that Joseph Schreier and Edward Jung dispensed excessive quantities of controlled substances is contrary to the manifest weight of the evidence; and (3) whether it is unconscionably harsh, arbitrary and capricious to revoke the license of a pharmacist found to have dispensed excessive quantities of controlled substances.

We affirm.

In 1976, the Department of Registration and Education (Depart-merit) filed a complaint against Irving Cotovsky, Joseph Schreier, Edward Jung, Irving’s Pharmacy and Irv’s No. 2 Pharmacy. Cotovsky owned and operated two pharmacies in Chicago, Illinois. Irving’s Pharmacy (Irving’s) located at 1346 West Irving Park Road, and Irv’s No. 2 Pharmacy (Irv’s #2) at 1601 West Montrose Avenue. Cotovsky was a registered pharmacist, and both of his pharmacies held certificates of registration. Jung worked at Irving’s, and Schreier worked at Irv’s #2. Both Jung and Schreier were registered pharmacists. The Department alleged that between January 1 and June 1, 1976, Cotovsky or someone under his direction and control dispensed from the pharmacies 7,112 prescriptions issued by Dr. Gerald McCabe for controlled substances. The prescriptions were issued at intervals of three, four and seven days for many of the same individuals for whom similar prescriptions were issued previously.

The Department charged that the large amount of controlled substances ordered and dispensed indicated that respondents in the trial court, appellees in the instant case, were jointly and separately guilty of gross immorality; “did not exercise good faith and dispensed *** Controlled Substances for no legitimate medical purpose” but rather to maintain the drug addiction of the recipients of the prescriptions and/or to illicitly divert the controlled substances. The Department alleged that appellees’ acts were grounds for revocation or suspension of their certificates of registration under section 7.6 of the Pharmacy Practice Act of the State of Illinois (Ill. Rev. Stat. 1975, ch. 91, par. 55.7 — 6) and under rules VII and IX(5) of rules and regulations promulgated for the administration of the Act. The Department asked that appellees’ certificates be suspended or revoked.

On July 29, 1976, after an ex parte hearing, the director of the Department suspended the controlled substances licenses of the pharmacies. Section 305(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 5Qxlz, par. 1305(b)) provides for suspension pending a formal hearing. On August 10, 1976, the hearing began. The record established that 7,112 prescriptions written by Dr. Gerald Mc-Cabe were filled at the two pharmacies from January 1 to June 1, 1976. From these prescriptions, the Department selected prescriptions filled for 10 individuals which were marked as Department’s exhibits 8A to 8J. All of the expert testimony offered by the Department and the pharmacies was directed toward the prescriptions written for those 10 individuals.

The Department called as its first witness Lawrence B. Slotnik, its drug compliance coordinator. Slotnik examined the prescriptions and stated that in his opinion they were excessive and not filled in good faith.

Marvin Graber, a pharmacist, was qualified as an expert witness. When asked what duty is imposed upon a pharmacist to fill a prescription for a controlled substance, Graber stated that the pharmacist should determine the validity of the prescription. According to Graber, a pharmacist could have a duty to refuse to fill a prescription for a controlled substance. Graber reviewed the prescriptions and gave as his opinion that the dosages were excessive.

Sherwood Thomas, a practicing pharmacist, also testified that the prescriptions were excessive. The Department then rested and the defense put on their case.

Norman Farnsworth, a professor of pharmacognosy and head of the Department of Pharmacognosy and Pharmacology at the College of Pharmacy at the University of Illinois, was qualified as an expert witness. He examined the prescriptions and testified that the dosages were not excessive. Other expert witnesses who also testified that the prescriptions were not excessive were Philippe Benoit, a professor of pharmacology at the University of Illinois Medical Center, Leonard C. Arnold, a physician and attorney, and Ralph William Morris, a professor of pharmacology at the University of Illinois, College of Medicine.

Several individuals who filled their prescriptions at Cotovsky’s pharmacies testified that they had pathological conditions for which controlled substances were prescribed. These individuals were not those whose prescriptions were examined by the expert witnesses. William Stevens, an accountant, testified that McCabe prescribed morphine sulphate for pain caused by metal fragments in his spine. His wife, also a patient at McCabe’s, took morphine sulphate to relieve pain caused by bone infection. Kenneth LeVey, a lawyer, stated that he suffered from rapid heartbeat for which McCabe prescribed quaalude. John Tornabene suffered from emphysema and lung tumors for which McCabe prescribed morphine sulphate. Vito Cancialosi took morphine sulphate to relieve pain caused by automobile accident injuries. Patricia Trapp was paralyzed in her left arm. McCabe prescribed Dilaudid. Some of the patients described the difficulties they had in getting their prescriptions filled.

Following the conclusion of the hearing and upon recommendation of the hearing officer, the director of the Department ordered the revocation of the licenses of the pharmacies to dispense controlled substances. The pharmacies filed suit for administrative review and the trial, court upheld the Department’s decision. We affirmed in Irving’s Pharmacy v. Department of Registration & Education (1979), 75 Ill. App. 3d 652, 658, 394 N.E.2d 627, 632, holding that the evidence adduced at the administrative hearing supported the decision of the Department and that its findings were based on substantial evidence in the record and were not against the manifest weight of the evidence.

On November 1, 1976, proceedings against appellees began before the State Board of Pharmacy (Board). It accepted as evidence the transcript of the proceedings before the hearing officer. At a hearing on August 1, 1977, the chairman explained that “the Board would like to have an opportunity to ask questions of additional witnesses in addition to the witnesses that did testify in the previous hearing.” The Board wanted testimony from pharmacologists as well as a physician to represent the Board because there was an imbalance in the expertise of the witnesses. The Department had presented pharmacists, whereas appellees had presented pharmacologists. Appellees objected to calling more witnesses.

Earl Frederick Wendell, Jr., a urologist, was qualified as an expert. He described the medication used to treat patients for renal colic. He examined the prescriptions in the Department’s exhibits and stated that the dosages were excessive. Michael T. Schaffer, chief toxicologist for the office of the medical examiner for Cook County, was also qualified as an expert. He described the factors which affected dosage. After examining the prescriptions on exhibit, he stated that the dosages were excessive. None of the individual respondents testified at the administrative hearings.

On September 12, 1977, the Board found that Cotovsky, Jung and Schreier and/or someone under the direction and control of Cotovsky filled 7,112 prescriptions at intervals of three, four and seven days for many of the same individuals for whom prescriptions were issued previously. The Board also found as follows:

“[I]t is apparent from the evidence that the inordinately large amount of Controlled Substances dispensed during the aforementioned short period of time by Respondent Pharmacists and Respondent Pharmacies that Respondents jointly and separately, did not exercise good faith in dispensing and filling the aforementioned prescriptions and dispensed the aforementioned Controlled Substances for no legitimate medical purpose but rather for the purpose of maintaining the addiction of drugs of those individuals for whom Respondents filled said prescriptions and/or for the illicit diversion of the aforementioned Controlled Substances, or for some other non-medical reason.”

The Board concluded that Cotovsky, Jung, Schreier, Irving’s and Irv’s #2 jointly and separately violated section 7.6 of the Pharmacy Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 55.7 — 6) and rules VII and IX(5) of the rules and regulations promulgated for the administration of the Act. The Board recommended that licenses issued to Cotovsky, Jung and Schreier be revoked and pharmacy licenses issued to Irving’s and Irv’s #2 be suspended for 30 days.

Appellees’ petition for rehearing was denied. On January 18, 1978, they filed a complaint for judicial review of the administrative decision. On August 28, 1980, the trial court confirmed the Department’s order revoking the licenses. Eventually, it stayed the order of revocation. On April 13, 1981, the trial court, upon reconsideration, set aside the revocation of the licenses of Schreier and Jung, ordered a modification of the penalty against Cotovsky and confirmed as to the pharmacies. The court explained its decision as follows:

“[T]he Court cannot see a record absent some evidence *** of conspiracy that would make Joseph Schreier and Edward Jung responsible for the conduct of the other parties, and since the finding of facts indicates that they were responsible, and the basis of their finding of gross immorality is based on the acts of others, this Court *** feels that on the motion for reconsideration that it must reverse the order of the Department of Registration and Education in revoking their individual licenses.
With respect to Irving Cotovsky *** it seems to the Court that he was *** responsible, and that the administrative agency could properly infer that Irving Cotovsky was responsible for the acts of the other parties, and since there was evidence *** of *** the selling of excessive amounts of controlled substances supported by the testimony of experts, so that insofar as Irving Cotovsky and Irving’s Pharmacy and Irv’s No. 2 Pharmacy is concerned, this Court feels it must affirm the decision of the Department of Registration and Education.
However, with respect to Irving Cotovsky, the Court feels also that inasmuch as the agency found that the Irving’s Pharmacy and Irv’s No. 2 Pharmacy are concerned, the two were only entitled to a suspension of thirty days, and the Department revoked *** Irving Cotovsky’s license, and this Court feels that is arbitrary conduct, because the Court cannot and does not feel that based on this record that Irving Cotovsky could be held more accountable than the drug stores which actually employed all three pharmacists.
So with respect to him individually, since it is the province of the agency rather than this Court to determine the suspension of anyone, in a case where the Court finds arbitrary actions in imposing a penalty, the only thing that a Court can do is remand the matter back to the agency for the imposition of a proper penalty based upon the penalty already imposed ***.”

In its order, the court confirmed the' decision of the Department with respect to the pharmacies; it confirmed the finding of gross immorality with respect to Cotovsky, but remanded the matter to the agency for the imposition of an appropriate suspension, and set aside the Department’s order revoking the licenses of Schreier and Jung. The Department appeals.

The Department argues that the trial court improperly based its decision on an issue never raised before the administrative agency. At the administrative hearing, Jung and Schreier never contended they were not proved individually responsible for dispensing the controlled substances, although, appellant contends, they had ample opportunity to assert this defense. Therefore, the failure to raise the issue constituted a waiver. The Department further argues that the trial court erroneously concluded that Jung and Schreier were not individually responsible for the inordinate quantities of controlled substances dispensed.

We disagree. Even assuming the waiver rule might apply in this case, the rule is not absolute. (See Hux v. Roben (1967), 38 Ill. 2d 223, 230 N.E.2d 831.) The familiar standard for administrative hearings is that the decision of the agency will not be set aside unless it is contrary to the manifest weight of the evidence. (Eastman Kodak Co. v. Fair Employment Practices Com. (1981), 86 Ill. 2d 60, 76, 426 N.E.2d 877, 884.) In the findings of fact, the Board used the disjunctive “or” as well as the conjunctive “and” to describe the conduct of the pharmacists. It stated:

“21. That from January 1, 1976 through February 1, 1976, Respondent Cotovsky and/or Respondent Jung and/or someone under Respondent Cotovsky’s direction and control dispensed from Respondent Pharmacy Number One approximately the following amounts of Controlled Substances ***.
22. That from January 1, 1976 through February 1, 1976, Respondent Cotovsky and/or Respondent Schreier dispensed from Respondent Pharmacy Number Two approximately the following amount of Controlled Substances ***.
23. That Respondent Cotovsky and/or Schreier and/or Jung and/or someone under the direction and control of Respondent Cotovsky filled approximately 660 prescriptions at Respondent Pharmacy Number One and Number Two during the time period set forth below ***.
24. That a review of these prescriptions indicate that Respondents Cotovsky, Jung and Schreier and/or someone under the direction and control of Respondent Cotovsky filled the aforementioned 7,112 prescriptions ***.”

We have examined the record in this case. The focus of the Department’s argument at the administrative hearings was that excessive amounts of controlled substances were dispensed from the two pharmacies. The Department did not establish what amounts of drugs were dispensed by the pharmacists individually, but merely inferred that because of the large amounts dispensed Schreier and Jung must have known the prescriptions were excessive. The Board concluded in its findings that the pharmacists were jointly and separately guilty of gross immorality because they did not exercise good faith in dispensing and filling the prescriptions. In our opinion, the finding that excessive amounts of controlled substances were dispensed from the two pharmacies is insufficient by itself to establish that Schreier and Jung were individually responsible for dispensing those excessive amounts. Therefore, we hold that the trial court properly set aside the order of the Department which revoked the licenses of Schreier and Jung.

Finally, the Department argues that the trial court improperly interfered with its authority to revoke the license of a pharmacist found guilty of gross immorality. The trial court found that Cotovsky was responsible for selling excessive amounts of controlled substances; but, that court found the revocation of Cotovsky’s pharmacy practice license an arbitrary sanction compared to the sanction invoked against the two pharmacies — 30-day suspensions. The trial court remanded to the Department the determination of a more appropriate sanction against Cotovsky.

Illinois courts will not interfere with the discretionary authority vested in administrative bodies unless such authority is exercised in an arbitrary or capricious manner or the administrative order is against the manifest weight of the evidence. (People ex rel. Stephens v. Collins (1966), 35 Ill. 2d 499, 500, 221 N.E.2d 254, 255.) However, Illinois courts have overturned sanctions imposed by administrative agencies which were overly harsh in view of mitigating circumstances. Citrano v. Department of Registration & Education (1980), 90 Ill. App. 3d 937, 940, 414 N.E.2d 74, 77; Cartwright v. Illinois Civil Service Com. (1980), 80 Ill. App. 3d 787, 793, 400 N.E.2d 581, 586; Kelsey-Hayes Co. v. Howlett (1978), 64 Ill. App. 3d 14, 17, 380 N.E.2d 999, 1002.

We agree with the trial court that the sanction of revocation applied to Cotovsky was arbitrary compared with the sanction of suspension applied to the pharmacies. We hold that the trial court acted properly in setting aside the revocation of Cotovsky’s license and remanding the matter to the Department for a determination of a proper suspension.

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

Affirmed.

LINN and ROMITI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McGLOON

license: Public Domain

text:
    RALPH J. GUST et al., Plaintiffs-Appellees, v. THE VILLAGE OF WESTCHESTER et al., Defendants-Appellants.
    First District (1st Division)
    No. 81—2006
    Opinion filed October 25, 1982.
    Rehearing denied December 7, 1982.

      Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago (R. Marlin Smith, Wendy U. Larsen, and David H. Kistenbroker, of counsel), for appellants.
    Ralph J. Gust, Jr., of Lombard, for appellees.
   JUSTICE McGLOON

delivered the opinion of the court:

Plaintiffs, owners of properties improved with single-family residences, brought an action seeking a declaratory judgment invalidating a village of Westchester zoning ordinance which reclassified four lots adjacent to and fronting the homeowners’ properties from R-l (single-family residential) to B-2 (restricted business). The current owners of the four lots, Jeteo, Inc. (a subsidiary of Jewel Companies, Inc.), intended to raze the residences on the lots to expand the existing food store. The circuit court of Cook County held that the plaintiffs demonstrated by clear and convincing evidence that the village of Westchester acted without due cause in granting the zoning change. Prior to this appeal, the village of Westchester voluntarily withdrew as a party-appellant.

On appeal, defendants Jewel Companies, Inc., and Jeteo, Inc., contend that (1) the plaintiffs failed to establish by clear and convincing proof the invalidity of the zoning ordinance, and (2) the trial court applied improper or .erroneous rules of law.

We affirm.

The property which is the subject of this litigation consists of four lots improved with three well-maintained single-family residences which face north toward Dorchester Avenue in the village of Westchester (Village). The properties were zoned R-l (single-family residential) and were occupied as such prior to their acquisition by defendants, Jewel Companies, Inc. (Jewel), through its subsidiary Jeteo, Inc. (Jeteo). After purchasing the properties, Jewel sought a zoning change from R-l to B-2 (restricted business) to accommodate its proposed site design plan. On November 23, 1978, Jewel was granted the zoning change by an ordinance enacted by the Village. Thereafter, plaintiffs filed their complaint for declaratory judgment.

Plaintiffs, Ralph J. and Gertrude Gust, have owned their residence since 1954. It is located northwest of the subject property and faces south toward Dorchester Avenue. Plaintiffs, Paul J. and Sonia Capri, have resided in their home since 1960. It is located directly north of the subject property and also faces south toward Dorchester Avenue. The surrounding neighborhood is a long-established single-family residential area. The three residences that Jewel seeks to raze are part of that neighborhood and serve as a buffer between the plaintiffs’ homes and the Jewel store, almost completely blocking their view of the existing Jewel.

The Jewel store is located in a small shopping center at 230 South Mannheim Road,, immediately south of the subject property at the northwest corner of the intersection of Mannheim and Cermak Roads. Presently the only customer entrance to the food store faces Mannheim Road. Trucks making deliveries enter from Mannheim Road, proceed across the parking lot to a public alley directly south of the food store which borders commercial buildings to the loading dock area at the rear and west of the food store. Details of the proposed site plan include demolishing the three existing residences and expanding the existing food store north onto the subject property, thereby adding an additional 20,000 square feet. The plan also features construction of a driveway just south of Dorchester Avenue and the addition of a parking lot to the west of the food store behind the loading area. A five-foot pedestrian walkway along the new driveway is included to accommodate pedestrians walking from their automobiles parked in the rear parking lot to the front entrance. A six-foot cedar fence and some trees will be planted to serve as a buffer between the newly expanded commercial area and the residential neighborhood.

Both parties to this appeal presented evidence regarding the impact of the rezoning and the proposed expansion of the food store as it relates to the parties themselves, the public and the neighborhood. After hearing extensive testimony, the trial court held that the plaintiffs demonstrated by clear and convincing evidence that the Village acted without due cause in granting the zoning change requested by Jewel because there was no real or substantial relation to the public health, safety, morals, comfort and general welfare and that the ordinance effecting the zoning change was therefore void.

The principal issue in this appeal is whether the plaintiffs failed to establish by clear and convincing evidence the invalidity of the rezoning ordinance.

It has been firmly established by case law that zoning is a legislative function, subject to court review only where the party attacking the validity of the ordinance establishes by clear and convincing evidence that the ordinance is arbitrary and unreasonable and has no substantial relation to the public health, safety, or welfare. The plaintiffs’ burden is a heavy one due to the fact that a zoning ordinance is presumptively valid. (LaSalle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65; American National Bank & Trust Co. v. Village of Oak Lawn (1980), 81 Ill. App. 3d 952, 401 N.E.2d 963.) We agree with the trial court’s finding that plaintiffs have met this burden.

The factors relevant to our determination, as set forth in La Salle, are: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property values of plaintiff promotes the health, safety, morals, or general welfare of the public; and (4) the relative gain to the public as compared to the hardship imposed upon the individual property owner. (American National Bank & Trust Co. v. Village of Oak Lawn (1980), 81 Ill. App. 3d 952, 958, 401 N.E.2d 963, 967, citing LaSalle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 46-47, 145 N.E.2d 65, 69.) An additional factor considered to be of crucial importance is the right of every property owner to rely on the zoning classification in effect when his property was purchased. American National Bank & Trust Co. v. Village of Oak Lawn (1980), 81 Ill. App. 3d 952, 960-61, 401 N.E.2d 963, 968, citing Oak Park National Bank v. City of Chicago (1973), 10 Ill. App. 3d 258, 294 N.E.2d 42.

The first factor which we consider is whether the subject property is zoned in conformity with the surrounding existing uses and whether those are uniform and established. The defendants contend that the proposed site plan merely extends the commercial area because the subject property was rezoned to the same classification as the abutting shopping center, and both the residential and commercial uses were long established. However, this argument ignores the fact that there is a definite demarcation between the residential community and the commercial area. Plaintiffs introduced testimony that the commercial area is confined to a strip along Mannheim and Cermak Roads and the shopping center and Jewel’s proposed expansion would thereby constitute an intrusion into an established neighborhood. The three residences that Jewel seeks to destroy are an integral part of a residential neighborhood where, for a distance of seven blocks the residences face each other. As in American National Bank & Trust Co., the neighborhood was “planned to allow similar uses to face each other, an admittedly accepted zoning practice.” (81 Ill. App. 3d 952, 959.) Here, as in American National Bank & Trust Co., the residential neighborhood has maintained its R-l zoning for a substantial period of time and evidence was presented which clearly demonstrates that the plaintiffs relied on the R-l zoning when they purchased and improved their property. The homes on the subject property face the residential district, and presently act as buffers and constitute a reasonable demarcation between the residential and business areas.

Following the proposed expansion, the residents on the north of Dorchester Avenue would face a commercial area buffered only by a six-foot fence and some trees. For the first time, semi-trailer trucks approximately 55 feet long and over 12 feet high would be traveling down Dorchester Avenue, entering the subject property and then driving west along the driveway behind the fence. Trucks presently enter the loading area from Mannheim Road, which is a major thoroughfare. Plaintiffs’ expert witness, Major Hearn, Jr., regional manager of the division of noise pollution control, Elinois Environmental Protection Agency, testified that trucks entering the subject property from Dorchester Avenue would disturb citizens living along the north side of the food store and that property owners on the west side would be inconvenienced by increased traffic and noise. He further testified that, based on his observation, trucks unloading would probably violate noise emission standards. The trial court properly concluded that the “existing use and zoning of nearby property” criteria weighs in favor of plaintiffs.

Both parties presented conflicting expert testimony regarding the extent to which property values are diminished by the particular zoning restrictions; however, defendants’ expert witness testified that homes would be more difficult to sell. A reviewing court will not disturb the trial court’s finding unless it is against the manifest weight of the evidence. (La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65.) The record amply supports plaintiffs’ position.

We also consider whether the rezoning promotes, health, safety, morals or general welfare. The defendants contend that unless the expansion is permitted, the shopping center is destined for deterioration. However, we find nothing in the record to support defendants’ allegations that the food store is presently losing money, or that the testimony established that Jewel would close if the expansion was not allowed. Testimony presented by plaintiffs’ experts, however, indicates that pedestrians, cars and semi-trailer trucks would conceivably be in a 25-foot driveway simultaneously, supporting the trial court’s conclusion that the proposed rear parking facility poses a safety hazard to the public.

Under LaSalle the relative gain to the public should be compared to the hardship imposed upon Jewel. Absent the zoning change and consequent expansion, the hardship imposed upon defendants is an asserted loss of profits. In the instant case, the trial court properly found that defendants’ hardship is outweighed by the public interest in safety and maintaining the integrity of the established residential neighborhood.

In addition, Illinois courts have adopted the modern view that aesthetic factors such as the aesthetic enjoyment of one’s home, do have a significant bearing on zoning. (Amalgamated Trust & Savings Bank v. County of Cook (1980), 82 Ill. App. 3d 370, 402 N.E.2d 719; Ward v. County of Cook (1979), 68 Ill. App. 3d 563, 386 N.E.2d 309.) The adverse effects which would ensue by the proposed plan are analogous to those complained of in Amalgamated, where the court stated, “[e]ven ignoring the added population, traffic and noise, it can hardly be said that the building of a 125-foot water tower is conducive to the neighbors’ enjoyment of their property.” (82 Ill. App. 3d 370, 383.) That court went on to characterize a six-story apartment house as a “drastic alteration” as compared to a three-story multi-family building across the street. Surely, the changes complained of in the case at bar are just as drastic.

We therefore conclude that plaintiffs met their burden of proof. The evidence established that the proposed expansion would intrude on and destroy an integral part of an established residential neighborhood, cause increased traffic and noise, present safety hazards, and diminish the residential property owners’ enjoyment of their property. Thus, the trial court’s finding is not against the manifest weight of the evidence.

The second issue raised by defendants is whether the trial court applied improper legal principles. However, the trial court applied the same rules of law as we have applied in this appeal. These standards are applied consistently by the courts of this State and are correct.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

GOLDBERG and O’CONNOR, JJ., concur.


author: PRESIDING JUSTICE SULLIVAN

text:
    JOSEPH W. SMITH, Plaintiff-Appellee, v. PHILLIP G. GOLDSTICK, Defendant-Appellant.—(Robert E. Gordon & Associates, P.C., et al., Intervening Plaintiffs-Appellees.)
    First District (5th Division)
    No. 82—587
    Opinion filed November 5, 1982.

      Friedman & Koven and Stewart M. Weltman, both of Chicago, for appellant.
    Gordon & Gordon, Ltd., of Chicago (Gilbert W. Gordon, of counsel), for appellees Robert E. Gordon & Associates, P.C., et al.

    Butler, Rubin, Newcomer & Saltarelli, of Chicago (Ronald Butler and Barbara J. Putta, of counsel), for appellee Joseph W. Smith.
   PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

In an action for an accounting and injunctive relief upon dissolution of a law partnership, defendant appeals from a series of orders approving the sublease of the partnership leasehold to intervening plaintiffs and directing defendant to execute the agreement and vacate the premises. He contends that (1) the trial court improperly ordered a sublease to a third party which was (a) unnecessary to conserve the partnership assets when defendant, as a continuing partner, offered to sublease and (b) less profitable to the partnership than his offer; and (2) the orders were procedurally improper and constituted an abuse of discretion.

Plaintiff’s verified complaint, seeking an accounting, alleged that the parties’ oral partnership agreement was dissolved on November 1, 1979, and that defendant had not properly wound up the partnership affairs. Defendant’s verified answer, which admitted the dissolution of the partnership but denied any wrongdoing, included an affirmative defense asking dismissal for want of equity because plaintiff was without clean hands in that he had frustrated defendant’s attempt to wind up partnership affairs. Thereafter, plaintiff filed a verified amended complaint containing more detailed allegations and adding a count seeking damages for breach of contract. No answer to the amended complaint appears in the record.

Among the partnership assets was a lease of office space at 180 North LaSalle Street, Chicago, from August 1, 1976, to November 30, 1986, with an option for an additional five years. Upon dissolution of the partnership, defendant continued to occupy the leasehold premises, subleasing portions thereof to other attorneys and to a corporation partially owned by him. Pursuant to plaintiff’s motion, a realtor was appointed to offer the leasehold for sale when the parties failed to reach a mutually satisfactory agreement on its disposition. The only offer received was for $16.50 per square foot from Robert E. Gordon & Associates, and on February 11, 1982, after the trial court" found defendant’s oral offer (made that day) to sublease for $15 per square foot was not acceptable to plaintiff, it ordered acceptance of Gordon’s offer subject to negotiation, drafting, and court approval of appropriate documents and terms, and further directed the court-appointed realtor to negotiate with the owners of the building for approval of the sublease. The order also contained an express finding that there was no just reason to delay enforcement or appeal.

On March 4, 1982, intervening plaintiffs were granted leave to enter the action, and the realtor was directed to notify all current tenants to vacate the premises by April 30. Thereafter, defendant’s motion for a stay without bond was denied, and an appeal bond of $415,361.91 was set. Finally, on March 24, pursuant to intervening plaintiff’s motion, the trial court approved the sublease agreement and ordered plaintiff and defendant to execute it and vacate the premises. This appeal from the February 11, March 4, and March 24 orders followed.

Opinion

Because defendant failed to post the bond required by the trial court or seek a stay in this court, a question is raised as to whether this appeal is moot. The failure to obtain a stay pending appeal, of itself, does not make an issue moot (Schaumburg State Bank v. Seyffert (1979), 71 Ill. App. 3d 630, 390 N.E.2d 388), but when supervening events make it impossible for a reviewing court to grant relief to any party (Panduit Corp. v. All States Plastic Manufacturing Co. (1980), 84 Ill. App. 3d 1144, 405 N.E.2d 1316), the case is moot because “an appellate finding *** on the issue *** cannot *** have any practical legal effect on the controversy.” Betts v. Ray (1982), 104 Ill. App. 3d 168, 171, 432 N.E.2d 1222, 1225.

In the instant case, defendant’s request that the orders be vacated would divest intervening plaintiffs of their interest in the leasehold, and whether such relief may be granted depends on the status of intervening plaintiffs in this action on February 11 and on the finality of the trial court’s order of that date. If they were parties when the order became final, the relief requested may be granted, since “ ‘[a] party to a suit *** cannot acquire any rights or interests based on [an] erroneous decree that will not be abrogated by a subsequent reversal thereof.’ ” (Schaumburg State Bank v. Seyffert (1979), 71 Ill. App. 3d 630, 636, 390 N.E.2d 388, 392, quoting First National Bank v. Road District No. 8 (1945), 389 Ill. 156, 161-62, 58 N.E.2d 884, 887.) However, if intervening plaintiffs were not parties when the order became final, then the relief requested may not be granted, since Supreme Court Rule 305(i) (73 Ill. 2d R. 305(i)) provides that in the absence of a stay within 30 days of entry of judgment, persons who are not a party to the action and acquire a right, title or interest in property after the judgment becomes final are not affected by subsequent reversal or modification thereof.

In their initial brief, intervening plaintiffs conceded that they had waived the protection of Rule 305(i) by their intervention. However, they suggested at argument and in their supplemental brief that, should we find that the February 11 order was final, they are protected by Rule 305(i) since their petition to intervene was not granted until March 4. Defendant contends that the February 11 order did not become final until 30 days after entry thereof, and since intervening plaintiffs were parties at that time, Rule 305(i) is inapplicable. In the light of our decision set forth below, that the February 11 order was not final, we find that intervening plaintiffs were parties to this action at the time they acquired their interest in the lease-' hold premises and therefore, as the relief requested by defendant could be granted, the issue is not moot.

However, intervening plaintiffs’ motion to dismiss on the ground that the orders are not appealable was taken with the case, and we will address the question of our jurisdiction before reaching the merits of the action.

Defendant advances several statutory bases for jurisdiction, initially contending that the orders are appealable under section 1 of “An Act concerning *** suits seeking equitable relief involving real property ***” (Ill. Rev. Stat. 1979, ch. 110, par. 405) (hereinafter section 1), which provides in part that “[ajppeal shall lie from any order which either authorizes or denies the making of a deed, mortgage, lease or other conveyance of real estate.”

Supreme Court Rule 1 provided that “rules on appeals supersede statutory provisions inconsistent with the rules and govern all appeals.” (73 Ill. 2d R. 1.) Thus, an appeal must comply with the Supreme Court Rules (People ex rel. Stamos v. Jones (1968), 40 Ill. 2d 62, 237 N.E.2d 495; People v. Kepi (1978), 65 Ill. App. 3d 327, 382 N.E.2d 642), for the constitution gives the supreme court, not the legislature, rule making responsibility for appeals (Ill. Const. 1970, art. VI, secs. 1, 16; Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 369 N.E.2d 498), and any statutory provision which “may in any sense be interpreted as an attempt to govern appeals from the circuit court *** must yield to the Supreme Court Rules” (Illinois Consolidated Telephone Co. v. Aircall Communications, Inc. (1981), 101 Ill. App. 3d 767, 769, 428 N.E.2d 747, 750).

This court has never decided the effect of section 1 on appealability, although we noted in Horvath v. Loesch (1980), 87 Ill. App. 3d 615, 410 N.E.2d 154, that there were doubts as to “the constitutionality of the legislature’s prescribing, in [section 1 (Ill. Rev. Stat. 1979, ch. 110, par. 405)], the appealability of trial court orders.” (87 Ill. App. 3d 615, 620 n.3, 410 N.E.2d 154, 158 n.3.) The question was not reached in Horvath because the court found that plaintiff’s failure to obtain a stay of judgment had made the appeal moot since the property was transferred to a person who was not a party to the action. (See 7.3 Ill. 2d R. 305(i).) Such is not the case here, and we thus reach the question as to whether section 1 is inconsistent with the Supreme Court Rules governing appeals.

Section 1 purports to make any order granting or denying the conveyance of real estate appealable, regardless of the stage of the proceedings when the order is entered; whereas, under the Supreme Court Rules, only final judgments are appealable as of right. (73 Ill. 2d R. 301.) In all other cases, the rules governing appeals mandate compliance with certain prerequisites to jurisdiction. (E.g., 73 Ill. 2d R. 304 (orders final in character which do not dispose of the entire proceeding) and 73 Ill. 2d R. 307 (exceptions for certain interlocutory orders).) Section 1 could be interpreted as including orders which do not comply with the applicable Supreme Court Rules, and to that extént it is inconsistent with the Rules and cannot confer appellate jurisdiction. (See Browning v. Heritage Insurance Co. (1974), 20 Ill. App. 3d 622, 314 N.E.2d 1 (jurisdiction of appellate court is limited to judgments and orders specified in Rules 301-08).) Since we find, as set forth below, that none of the orders appealed from here constitutes a final judgment disposing of the entire controversy between the parties, jurisdiction does not lie under section 1.

Turning then to defendant’s contention that we have jurisdiction pursuant to Rule 304(a) (73 Ill. 2d R. 304(a)), we note that it provides in relevant part:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.”

To be appealable thereunder, the order must contain the requisite express finding (Highway Industries, Inc. v. Trailer Leasing Co. (1977), 48 Ill. App. 3d 235, 363 N.E.2d 60) and must be final in its character, apart from that finding (O’Donnell v. Sears, Roebuck & Co. (1979), 71 Ill. App. 3d 1, 388 N.E.2d 1073), as mere inclusion thereof cannot confer appellate jurisdiction where the order is not in fact final (Hayna v. Arby’s, Inc. (1981), 99 Ill. App. 3d 700, 425 N.E.2d 1174). A final order is one which “disposes of the entire controversy on the merits, so that, if affirmed, the trial court need only proceed with execution of judgment” (Factor v. Factor (1975), 27 Ill. App. 3d 594, 596, 327 N.E.2d 396, 398), and there is no finality “if the court retains jurisdiction for future determination of matters of substantial controversy” (Smith v. Interstate Fire & Casualty Co. (1977), 47 Ill. App. 3d 555, 558, 362 N.E.2d 38, 40).

In the instant action, only one of the orders appealed from, that of February 11, contains the finding that there is no just reason to delay enforcement or appeal. Because no such finding appears in the orders of March 4 and March 24, they are not appealable under Rule 304(a), since the requisite finding cannot be implied where it is not expressed. (Monticello College v. Scott (1973), 13 Ill. App. 3d 133, 299 N.E.2d 778.) Turning to the February 11 order, we note that although it contains an express finding, it is our view that it lacks finality. Acceptance of intervening plaintiffs’ offer was conditioned upon negotiation and court approval of appropriate terms and documents. In addition, no sublease was possible until and unless the court-appointed realtor procured the approval of the building owners. Thus, the order failed to dispose of the entire controversy, and the court retained jurisdiction. See Smith v. Lewis (1967), 85 Ill. App. 2d 246, 229 N.E.2d 323.

Defendant further asserts that jurisdiction is proper under Rule 304(b), which provides for appeal without the finding required by Rule 304(a) where an interlocutory order “finally determines a right or status of a party.” (73 Ill. 2d R. 304(b)(1), (2).) He argues that these orders in effect finally determined his right to occupy the law offices, and thus satisfy the requirements of Rule 304(b). However, that rule is applicable only to judgments or orders entered in the administration of an estate, guardianship, conservatorship, or other similar proceeding. Since the present action is not within the proceedings specified, Rule 304(b) is inapplicable.

Finally, we consider defendant’s contention that the March 4 and March 24 orders are in the nature of a mandatory injunction and are therefore appealable under Rule 307(a)(1) (73 Ill. 2d R. 307(a)(1)), which provides that appeal may be taken from an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.”

Whether an order is within the provisions of Rule 307 must be determined by its substance rather than its form (Lake Shore Racquet Club, Inc. v. Fireman’s Fund Insurance Cos. (1980), 91 Ill. App. 3d 1118, 415 N.E.2d 625), and since the rule is addressed only to interlocutory orders, the court’s action must not be in the nature of a permanent injunction (Betts v. Ray (1982), 104 Ill. App. 3d 168, 432 N.E.2d 1222).

We find that Statistical Tabulating Corp. v. Hauck (1972), 5 Ill. App. 3d 50, 282 N.E.2d 524, is dispositive of this issue. There, the trial court permanently enjoined defendant from competing with plaintiff’s business activities. Since other issues were still pending before the trial court, defendant sought to appeal pursuant to Rule 307, contending that the injunction was interlocutory rather than final since it did not dispose of the entire litigation. It was held that the permanent injunction constituted a final order on the issue which was the subject thereof, and therefore was not appealable under Rule 307. Thus, if an injunction is permanent in nature, it is a final order appealable only under Rule 301 or 304(a), if those rules are otherwise applicable.

Here, if the orders of March 4 and March 24 are in the nature of a mandatory injunction, as defendant contends, they are permanent rather than interlocutory in character. An interlocutory injunction is granted to preserve the status quo pending a decision on the merits (Grillo v. Sidney Wanzer & Sons, Inc. (1975), 26 Ill. App. 3d 1007, 326 N.E.2d 180) and concludes no rights (Spunar v. Clark Oil & Refining Corp. (1977), 53 Ill. App. 3d 477, 368 N.E.2d 990). Such orders are either preliminary injunctions or temporary restraining orders which are limited in duration and in no case extending beyond the conclusion of thé action. (Black’s Law Dictionary 705 (5th ed. 1979).) The March 4 and March 24 orders are not limited in their duration, nor do they merely preserve the status quo; rather, by them defendant is permanently deprived of his right to occupy the law offices, and they are more in the nature of final orders disposing of an issue between the parties. They are thus not appealable under Rule 307(a)(1).

For the reasons stated, we find that jurisdiction is not proper in this case, and the appeal is dismissed.

Dismissed.

LORENZ and WILSON, JJ., concur.

      Intervening plaintiffs asserted in their motion to dismiss that the orders were not appealable because defendant failed to post bond. This contention was not further briefed or argued by them; however, we note that while posting of a bond may be a prerequisite to a stay of judgment, the right to prosecute an appeal may not be so conditioned. Jack Spring, Inc. v. Little (1972), 50 Ill. 2d 351, 280 N.E.2d 208.


author: JUSTICE LINDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN STEINMETZ, Defendant-Appellant.
    Second District
    No. 81—583
    Opinion filed November 22, 1982.
    G. Joseph Weller and John Wimmer, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE LINDBERG

delivered the opinion of the court:

Defendant, John Steinmetz, a/k/a John Seaberry, appeals from an order of the circuit court of Lake County denying his motion to withdraw his guilty plea. On April 13, 1981, defendant, represented by a court-appointed attorney, pleaded guilty to theft over $150 (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)(1)). The trial court accepted the plea and later sentenced defendant. On May 14, 1981, the same attorney filed a motion to withdraw the guilty plea on the grounds that defendant entered his plea involuntarily and without a complete understanding of the charges against him. Defendant’s contention on appeal is that the hearing on the motion to withdraw the guilty plea was defective because of the failure of defendant’s attorney to file a certificate of compliance pursuant to Supreme Court Rule 604(d) (73 Ill. 2d R. 604(d)).

Defendant raised several issues concerning his plea pursuant to Supreme Court Rule 402 (73 Ill. 2d R. 402). In an affidavit to the trial court, defendant stated (1) that he was not advised that he had a right to trial by a judge alone, and (2) that he was afraid of a jury trial because the State’s Attorney advised him that as a “career criminal” a conviction by a jury could result in an extended term or consecutive sentence. Defendant testified concerning those contentions at the withdrawal hearing, but after hearing all the evidence, the court denied the motion to withdraw the plea. Since then, defendant’s appellate counsel apparently has examined the previously unavailable transcript of the plea proceedings and noticed defendant was not questioned concerning the voluntariness of his plea; specifically, the trial court did not ask defendant whether there was a plea agreement, or whether any force, threats or promises were used to obtain the plea. See 73 Ill. 2d R. 402(b).

The State has submitted to this court what purports to be a certificate of compliance subsequently executed by defendant’s defense attorney. In it, defendant’s attorney says that: “(a) I fully consulted with the defendant before he entered his guilty plea in the above case, (b) that I was present at the hearing wherein the Court held that the defendant had been advised of his right to a trial by a jury alone, and (c) that I was present at the hearing where the Court denied defendant’s motion to vacate on the grounds that he was afraid of proceeding to trial because of the possibility of an extended term being asked for by the State’s Attorney.”

With some displeasure, we note the matters referred to in the certificate have nothing to do with the requirements of Rule 604(d). The rule requires in part that:

“The defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.” 73 Ill. 2d R. 604(d).

Defendant’s attorney’s purported certificate of compliance so misses the mark that we can only treat it as a nullity and proceed with an analysis of the issue as if it had never been filed. The failure to file any certificate either in the trial or appellate court may be harmless error where the record shows trial counsel performs every function contemplated by Rule 604(d). People v. Thompson (1977), 50 Ill. App. 3d 51, 54, 365 N.E.2d 255, 257; People v. Evans (1977), 46 Ill. App. 3d 689, 690, 361 N.E.2d 77.

Defendant admits in his brief that his attorney consulted with him to ascertain his contentions of error in the entry of the plea of guilty. Thus, the issue becomes whether the attorney examined the trial court file and report of proceedings of the guilty plea and made any necessary amendments to the motion as required by Rule 604(d).

It would have been impossible for defendant’s attorney to examine the report of proceedings of the guilty plea since the transcripts were not filed until several months after the hearing on the motion to withdraw the plea. In People v. Sorensen (1977), 49 Ill. App. 3d 984, 365 N.E.2d 171, the court held it was reversible error for a hearing to be held on a motion under Rule 604(d) when a transcript had not been provided to the defendant. The court said examination of the transcript by the defendant’s attorney is necessary to ensure an informed hearing on the motion and adequate advocacy of the defendant’s rights. (49 Ill. App. 3d 984, 986-87, 365 N.E.2d 171, 173.) In People v. Garrett (1978), 57 Ill. App. 3d 906, 373 N.E.2d 792, appeal denied (1979), 75 Ill. 2d 592, the court remanded for a hearing to determine whether the defendant’s attorney examined the transcript. The defendant’s attorney had the opportunity to read the transcript of the plea proceedings, but no certificate had been filed and there was no evidence that the attorney did in fact comply with the rule.

Those cases by themselves might justify a reversal in the present case. However, the State asserts a somewhat unique argument that since the same attorney represented defendant at the plea proceedings and at the withdrawal hearing, the attorney necessarily was familiar with the record. This argument is unique only in its application to the transcript requirement of Rule 604(d). The argument previously has been made and rejected in connection with the requirement that trial counsel consult with the defendant. (See People v. Norris (1977), 46 Ill. App. 3d 536, 361 N.E.2d 105.) In People v. Dean (1978), 61 Ill. App. 3d 612, 378 N.E.2d 248, appeal denied (1979), 79 Ill. 2d 613, the same attorney represented the defendant during the plea hearing and on the motion to withdraw the plea. The court remanded for a hearing on whether a conversation between the attorney and the defendant involved the ascertaining of the defendant’s contentions of error.

If continuous representation of a defendant by an attorney cannot justify an inference of consultation, just as compelling is the conclusion that continuous representation cannot justify an assumed knowledge of a hearing that may have been held months earlier and may have been only one of many pleas participated in by the attorney during that period. In the present case, three months passed from the proceedings on the plea to the hearing on the motion to withdraw it.

We perceive the policy behind this particular requirement of Rule 604(d) to be a concern that each defendant be assured adequate and proper representation on his motion to withdraw his guilty plea. (People v. Hummel (1977), 48 Ill. App. 3d 1002, 1007, 365 N.E.2d 122, 126, appeal denied (1977), 66 Ill. 2d 633.) Specifically, the concern has to be that an attorney make a subsequent thorough and dispassionate review of the record to assure that the defendant’s rights were safeguarded. To assume from the mere fact of continuous representation a knowledge of the record trammels on that policy. It ignores not only the reality that a vast amount of time often separates hearings but also that defense attorneys often represent numerous defendants with cases far too complex to commit to memory.

Although we hold the transcript requirement to be an important one, we must affirm the cause regardless because we find from an examination of the record that the error is harmless under the facts of this case. (See People v. Saldana (1977), 53 Ill. App. 3d 636, 368 N.E.2d 1055.) The record is clear, for example, that defendant acknowledged not just once, but twice, his right to a trial by a judge alone. Also, the law is well settled that a defendant who merely hopes or believes he will get a shorter sentence by pleading guilty is not entitled to withdraw his plea. (People v. Taylor (1977), 48 Ill. App. 3d 925, 363 N.E.2d 643.) Finally, no express inquiry is needed into voluntariness where, as here, the entire record shows the court conducted an extensive and thorough examination of defendant. (People v. Tucker (1975), 28 Ill. App. 3d 148, 328 N.E.2d 41.) The record shows defendant and the trial court discussed the charged offense, its factual basis and its sentencing potentialities. Defendant acknowledged he discussed with counsel his plan to plead guilty. The trial court admonished defendant regarding his presumption of innocence, his right to be proved guilty beyond a reasonable doubt and his right to confront witnesses. The entire record — including the entering of the plea and the hearing on the motion to withdraw it — supports a conclusion that the plea was voluntary.

Accordingly, we affirm the judgment of the circuit court of Lake County.

Affirmed.

REINHARD and VAN DEUSEN, JJ., concur.


author: JUSTICE HEIPLE PRESIDING JUSTICE BARRY,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v ROY BROWN, Defendant-Appellee.
    Third District
    No. 81-655
    Opinion filed November 5, 1982.
    BARRY, P.J., dissenting.
    Samuel Naylor, VI, State’s Attorney, of Carthage (John X. Breslin and Kenneth A. Wilhelm, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    R. P. O’Connell, of Richard P. O’Connell, Ltd., and Chet W. Vahle, both of Quincy, for appellee.
   JUSTICE HEIPLE

delivered the opinion of the court:

This case involves the dismissal of all charges against a criminal defendant for failure of the People to comply with the 160-day speedy trial statute. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(b).) The People appeal.

Defendant was originally charged with aggravated battery on July 10, 1980. He was arrested, posted bail and was released. On July 31, 1980, he pleaded not guilty and demanded a speedy jury trial.

On September 29, 1980, a pretrial conference was held and, by agreement of counsel, the cause was continued to December for trial.

At the December 8, 1980, trial call, defendant said he was unprepared to defend on a newly added rape count. Defendant did not object, however, to the amendment of the information which added this count.

The following colloquy then took place between the prosecutor, the court, and defense counsel:

“MR. NAYLOR: Your Honor, I simply want to observe that the parties have agreed that the jury trial scheduled for this date on aggravated battery is continued by agreement of the parties due to the addition of the Count on rape, and that it is contemplated it will be continued from the day — today to the next jury calendar on both Counts.
THE COURT: Mr. Vierling?
MR. VIERLING [defense counsel]: That’s correct.
THE COURT: I’ll show that the matter is continued by agreement on both Counts to the next jury calendar, which you gentlemen are aware is in February.
MR. NAYLOR: Yes, Your Honor.
THE COURT: Thank you. Anything further, Mr. Vierling, in this case?
MR. VIERLING: Nothing, Your Honor.
THE COURT: Thank you. That’ll be all.”

The matter was thus continued twice by agreement of the parties. Both sides agreed to placing the case on the December jury calendar and the February jury calendar. It is well settled that the statutory speedy trial term is tolled where a defendant requests, stipulates to, or consents to a continuance. (People v. Tillman (1963), 26 Ill. 2d 552, 554; People v. Canada (1967), 81 Ill. App. 2d 220, 227-29.) Unmistakably, defendant acquiesced in the trial scheduling. Accordingly, the delay from September 29, 1980, to February 9, 1981, is attributable to the defendant.

On February 9, 1981, when the case was called for trial, the People answered ready. Defendant again requested a continuance. He wanted to hire a new lawyer. Up to that point, Mr. Brown had been represented by the public defender, Mr. Vierling. During this hearing, Mr. Vierling stated that the trial of the case “*** was originally docketed for September. I took a continuance then. *** I just wasn’t ready ***.” He also stated he agreed to the December 8 continuance. Five minutes before jury selection commenced, Mr. Brown entered a negotiated plea of guilty to aggravated battery in exchange for a nolle prosequi on the rape charge, and a recommendation of a five-year prison term. After a hearing, the plea was accepted. Defendant was sentenced to five years’ imprisonment. At that point, the defendant’s speedy-trial rights were tolled. It is the law of this State that a guilty plea negatives the right to a speedy trial. People v. De Cola (1959), 15 Ill. 2d 527, 531; and see People v. Hickman (1971), 3 Ill. App. 3d 919, 930, aff’d as modified (1974), 56 Ill. 2d 175.

Then, on February 13, 1981, defendant was back in court with a new attorney, Mr. O’Connell, on a motion to vacate his guilty plea. This motion was unopposed by the People and was scheduled for a hearing. During such hearing, the following colloquy occurred:

“MR. NAYLOR: I would also like to stipulate that by actions of the defendant he has tolled the 160 days speedy trial period because I don’t think that the state should be caused to suffer a dismissal of charges under the speedy trial act.
MR. O’CONNELL: I have no problem with that.
THE COURT: All right, that is shown that there is no question about the 160 days on the part of the defendant’s attorney. I will set it again ***.”

The assertion of defendant’s counsel is clear. The 160-day speedy-trial period was tolled. The period began anew on February 13,1981.

Defense counsel subsequently filed a motion for supplemental discovery on March 17, a motion to suppress on March 19, and a motion to dismiss for want of speedy trial on April 21.

On April 27, 1981, a hearing was held on defendant’s motion to dismiss. However, Judge Evans terminated the hearing after it had begun and recused himself when it became apparent to him that defendant’s evidence was different from what the judge recalled. The cause was referred to the chief judge for assignment of a different judge to hear this motion. The motion was subsequently set for hearing before a different judge on May 28, 1981. The delay from April 27, 1981, to May 28, 1981, is directly related to defendant’s speedy-trial motion and is thus chargeable to the defendant.

Further delays were caused by the defendant. Defense counsel could not appear on May 28 due to a scheduling conflict which caused a continuance until June 29,1981.

On June 29, the court continued the hearing on its own motion to July 10. On July 10, the motion hearing was again continued on defendant’s motion to July 17. On July 17, the hearing was continued on the People’s motion and the motion was finally heard on August 21,1981.

A total of 189 days elapsed between February 13, when the defendant withdrew his guilty plea and August 21 when the court held its final hearing on defendant’s ill-founded speedy-trial motion. Subtracting the 63 days chargeable to the defendant leaves 126 days chargeable to the People. It is thus seen that on the day of the final hearing on defendant’s speedy-trial motion, there were 34 days still remaining within the 160-day period during which the defendant could have been tried without violating his right to a speedy trial under the statute. The trial judge was in error in granting the defendant’s speedy-trial motion and in dismissing the charges against him.

For the reasons stated, the dismissal order of the Hancock County Circuit Court is reversed. The cause is reinstated and remanded to that court for trial within 160 days from the issuance of the mandate.

Reversed and remanded.

ALLOY, J., concurs.

PRESIDING JUSTICE BARRY,

dissenting:

In adopting the State’s position on appeal and reversing the trial court, the majority ignores the principle espoused in People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840, which is applicable when the State adds charges sometime after proceedings have begun on related offenses. I also believe that the majority’s reliance on People v. De Cola (1959), 15 Ill. 2d 527, 155 N.E.2d 622, and People v. Hickman (1971), 3 Ill. App. 3d 919, 280 N.E.2d 787, is misplaced where, as here, a plea of guilty is vacated by the trial court.

As I see it, the withdrawal of a guilty plea and vacatur of judgment are not rights of a defendant which may be exercised or not at the defendant’s whim. Rather, they are allowed or not at the discretion of the trial court upon consideration of allegations of defects in the guilty plea proceedings. See, e.g., 73 Ill. 2d R. 604(d); People v. Williams (1977), 52 Ill. App. 3d 229, 367 N.E.2d 449.

As such, we are not presented here with a situation wherein the defendant has manipulated delays at will, pleaded guilty to the charges against him, and decided to withdraw his plea, all with the intended result that the statutory period of limitations would run before the State could get the defendant to trial. (Cf. People v. George (1979), 71 Ill. App. 3d 932, 390 N.E.2d 586; Hickman.) Lacking a “novel situation” such as was presented in George and Hickman, I believe that the statutory limitations period applies and requires that the defendant herein be discharged on grounds that the State violated his right to a speedy trial.

With respect to the aggravated battery charge, the question before us on appeal is whether the defendant’s plea of guilty served to waive his right to a speedy trial or merely to toll the time. The majority opinion concludes that the guilty plea “negatives the right to a speedy trial.” In my opinion, the defendant’s plea, which was later vacated, merely tolled the running of the 160-day period during the time that it was in effect.

The precise issue was decided in People v. Bowman (1981), 96 Ill. App. 3d 136, 420 N.E.2d 1132. There, the defendant was incarcerated on July 22, 1978, and made a speedy-trial demand prior to his trial on February 5, 1979. The 120-day rule was, therefore, in effect. (Ill. Rev. Stat. 1979, ch. 38, par. 103 — 5(a).) The defendant had entered a negotiated plea of guilty on November 27, 1978, which remained in effect until January 5, 1979, when it was vacated sua sponte by the trial judge. The defendant was tried on February 5, 1979. The defendant conceded that 66 days of delay were attributable to him but urged that the remaining 132 days were chargeable to the State and that he was, accordingly, entitled to a discharge under the speedy trial statute. On these facts, the appellate court determined that the “plea of guilty operated to toll the running of the 120-day rule during the period that elapsed between the entry of such plea and the order vacating it.” (96 Ill. App. 3d 136, 140, 420 N.E.2d 1132, 1135.) Subtracting out the 66 days which the defendant admitted were occasioned by him and the 39 days during which the guilty plea was in effect, the court concluded that the defendant had been brought to trial on the 93d day of the 120-day period; thus, the State had not violated the defendant’s statutory right to a speedy trial.

Applying the principle of Bowman to the facts before us, I conclude that 123 days of the 160-day period had elapsed prior to the entry of the defendant’s plea: the 60-day period between July 31, 1980, when the speedy-trial demand was made, and September 29, 1980, when a pretrial conference was held and counsel agreed to continue the case; and the 63-day period between December 8, 1980, when the State amended its information, and February 9, 1981, the date set for defendant’s trial. Unlike the majority, I find that the defendant’s acquiescence in the delay between the State’s amendment of the charging instrument and the February 9 trial date did not operate to relieve the State of its continuing burden to bring the defendant to trial promptly on the original charges. It is clear to me that the addition of charges forced the defense to either ask for or acquiesce in a request for a continuance in order to adequately prepare itself on the new charge. See People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840; People v. Shields (1974), 58 Ill. 2d 202, 317 N.E.2d 529.

Following the defendant’s withdrawal of his guilty plea, as I see it, the 160-day period resumed running against the State and was exhausted on March 22 — 37 days after the guilty plea was vacated. Because the defendant was not brought to trial on or before March 22, he was entitled to dismissal as the trial court correctly ruled.

With respect to the rape charge, I find guidance in the reasoning of the court in People v. Williams (1981), 94 Ill. App. 3d 241, 418 N.E.2d 840. In Williams, as here, the State amended its information to charge additional offenses based upon the same set of facts as were the original charges. In Williams, the new charges were added on August 11, 1978 — 120 days after the defendants were taken into custody on April 13, 1978. Although defendants had obtained continuances in connection with the original charges, the court held that such continuances “cannot be attributed to defendants with respect to the new and additional charges because these new and additional charges were not before the court when those continuances were obtained.” (94 Ill. App. 3d 241, 249, 418 N.E.2d 840, 846.) In addition, the court ruled that two continuances sought by the defendants — on August 11 to investigate grounds for a motion to strike the additional charges and on August 14, upon denial of this motion, to prepare their defense to the additional charges — were chargeable to the State. The court reasoned:

“The State had the continuing burden to take the necessary steps to bring about a prompt trial in conformance with the provisions of the speedy trial act. (People v. Perkins (1980), 90 Ill. App. 3d 975, 414 N.E.2d 110.) The record demonstrates that the State had knowledge of all facts necessary to file the new and additional charges long before August 11, 1978. Only the State’s tardiness (for which the State has never offered an explanation) in filing the new and additional charges precluded commencement of prosecution on these charges within the speedy trial term. To charge defendants with a tolling of the term under these circumstances, especially where the need for time to effectuate discovery was essential, would circumvent the very protection the statute aimed to provide. (Accord, People v. Nunnery (1973), 54 Ill. 2d 372, 297 N.E.2d 129; People v. Perkins (1980), 90 Ill. App. 3d 975, 414 N.E.2d 110; of. People v. Shields (1974), 58 Ill. 2d 202, 317 N.E.2d 529.) We necessarily conclude that the State violated defendant’s statutory right to a speedy trial on the nine new charges.” (94 Ill. App. 3d 241, 249, 418 N.E.2d 840, 846-47.)

In Williams, as the trial court herein observed, the defendants objected to the State’s addition of charges on the 120th day of the 120-day term for the original charges. In the present case, defense counsel failed to object to the State’s addition of the rape charge on the 130th day of the 160-day period for the original charge. I do not find this distinguishing factor dispositive. The State’s duly to bring about a prompt trial is not diminished by defendant’s failure to object. Nor can it be said that such failure constitutes a waiver by defendant of his statutory right to a speedy trial. (People v. Reimolds (1982), 92 Ill. 2d 101.) In my opinion, Williams squarely addresses the issue before us on the rape charge, and the principles expressed therein control the calculation of days chargeable to the State. Applying Williams to the facts before us, I find that 130 days of the limitation period had elapsed by the date of the addition of the rape charge. In addition, the 63-day period between the date of the amendment and February 9, when the trial was to be held, is chargeable to the State because the defendant was forced to prepare a defense on the new charge. (Williams.) Therefore, for the rape charge, as defendant correctly asserts on appeal, the 160-day limitations period was exhausted before the defendant entered his plea of guilty. I would affirm the order of the trial court.


author: JUSTICE HEIPLE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEBBIE MARTIN, Defendant-Appellant.
    Third District
    No. 82—372
    Opinion filed November 8, 1982.

      Robert Agostinelli and Pamela Peters, both of Ottawa, for appellant.
    Thomas J. Homer, State’s Attorney, of Lewistown (John X. Breslin and Gary E Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE HEIPLE

delivered the opinion of the court:

A Fulton County jury found Debbie Martin guilty of unlawful delivery of cannabis. She was sentenced to 30 months probation on the condition that she pay a $300 fine and $35 in restitution during the period of her probation. The restitution represented the amount expended by the State in making the controlled purchase which resulted in her arrest. In addition, she was required to pay $120.20 in court costs giving her a total liability of $459.20. On appeal, Miss Martin argues that the court improperly assessed the fíne against her because it neglected to give sufficient consideration to her ability to pay. We affirm.

Unlawful delivery of cannabis is a Class 4 felony and carries with it a maximum fine of $10,000. Before imposing a fine, a judge should consider the defendant’s financial resources and future ability to pay, and whether the fine would prevent the defendant from making court-ordered restitution. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 — 9—1(c) and (2).) Before passing sentence on Miss Martin, the trial court ascertained that she was in good health, was a licensed practical nurse (although her certification may be in jeopardy due to this conviction), had been steadily employed until the time of her conviction, had a high school equivalency certificate, owned a car, and was in the process of securing unemployment compensation. She also had one child, was not married, and received no support from the child’s father.

The fine of $300 was well under the statutory maximum of $10,000. The defendánt has the resources to find employment and has the entire 30 months’ probationary period within which to pay the penalty. The fine and restitution imposed were well below what might properly have been imposed and were the result of a reasonable exercise of the trial judge’s discretion. We will not disturb the sentence on review.

Affirmed.

ALLOY and STOUDER, JJ., concur.


author: JUSTICE STOUDER

text:
      In re MARRIAGE OF FRANCES DELORES HOBBS, Petitioner-Appellant and Cross-Appellee, and JAMES HOBBS, Respondent-Appellee and Cross-Appellant.
    Third District
    No. 82—111
    Opinion filed November 18, 1982.

      Mary Lynn Angel May, of Gilchrist & May, of Walnut, for appellant.
    Watts C. Johnson, of Johnson, Martin & Russell, of Princeton, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Petitioner Frances Delores Hobbs filed a petition for dissolution of her marriage to respondent James Hobbs. After a bifurcated hearing, the circuit court of Bureau County dissolved the marriage and entered the various awards from which this appeal and cross-appeal are taken.

The Hobbs were married on June 14, 1958. Petitioner, 45, is employed as a factory worker for Grayline Housewares and earns approximately $168 per week. With 10 years of schooling, she came to the United States from Ireland in 1957 to serve as a domestic. After her marriage a year later, and with respondent’s consent, petitioner terminated her employment as a sales clerk. During the early years of the marriage, she was homemaker to the family unit of five and primarily responsible for raising three children and performing household tasks, including canning, gardening, and yard maintenance. During the later years of the marriage, she remained primarily responsible for these tasks while at the same time working 10 to 12 hours a day in a restaurant which, contrary to her wishes, respondent had decided to purchase. Petitioner lives in a 21/2-room apartment consisting of a living room with a pull-out bed, small kitchen, and bath. It is uncontested that she has no automobile, a used black-and-white television, and buys only used clothing from garage sales or a resale shop. Nonetheless petitioner’s weekly expenses of $140 exceed her net income of $139.79.

Respondent, 49, is employed as a supervising communications technician for the Illinois State Police and earns approximately $378 per week in that capacity. Throughout the marriage, he customarily maintained part-time employment from which he most recently earned an additional $24 per week. Respondent has had two years of specialized training in electronics and served as a radio operator in the Air Force. He lives in the six-room former marital residence with the Hobbs’ minor daughter, owns an automobile, and recently purchased a new color television set. Other facts will be set forth in our discussion of the issues to which they are germane.

Before we may consider those issues, we must first turn to respondent’s motion to dismiss this appeal. Respondent so moves on the basis of several transactions into which the parties have entered. Since the trial court’s judgment, respondent has taken out a $10,000 second mortgage on the former family home, paid petitioner’s attorney $2,500, and paid petitioner $12,500. The latter amount represents the court’s award to petitioner less the allegedly approximate value of the child support she was ordered to pay. Respondent contends that, pursuant to the doctrine of release of errors, this appeal must now be dismissed.

The doctrine of release of errors provides that a party to a divorce decree cannot accept those portions of the decree which are beneficial to him and afterward prosecute on appeal to reverse those parts which are unfavorable to him, where to do so would place the opposing party at a distinct disadvantage upon a reversal of the decree. (Sullivan v. Sullivan (1979), 68 Ill. App. 3d 242, 385 N.E.2d 860 and Kissin v. Kissin (1961), 29 Ill. App. 2d 126, 172 N.E.2d 635.) However, in such cases as Royster v. Hammel (1977), 51 Ill. App. 3d 710, 366 N.E.2d 535, and Pearson v. Pearson (1976), 42 Ill. App. 3d 522, 356 N.E.2d 993, it has been held that where an appellant accepts a share of the proceeds of jointly owned property no benefit is being accepted under the decree since the appellant is merely exchanging interests. Furthermore, according to such cases, the appellee sustains no particular disadvantage, consequently no reason exists for discontinuing the appeal.

We believe the application of the rule as in Royster v. Hammet (1977), 51 Ill. App. 3d 710, 366 N.E.2d 535, is applicable to this case since the appellant’s delivery of a quitclaim deed and acceptance of $12,500 represented a transfer of her joint interest in the property and the transaction rather than being of any disadvantage to the appellee was advantageous to him. Unlike Boylan v. Boylan (1932), 349 Ill. 471, 182 N.E. 614, the appellee paid the attorney fees directly to appellant’s counsel, a circumstance which was also held in Lemon v. Lemon (1958), 14 Ill. 2d 15, 150 N.E.2d 608, to render inapplicable the release of errors rule. Accordingly, we deny the appellee’s motion to dismiss the appeal.

The first of the three issues we today address is whether the trial court abused its discretion in its division of marital property. Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)) provides in part that the court:

“shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:
(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
* * *
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
* *. *
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in in lieu of or in addition to maintenance; and
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.”

In this cause, petitioner was primarily responsible for raising three children and performing all domestic tasks. She additionally canned, gardened, and maintained the yard. She had no domestic help. When respondent purchásed a restaurant, she worked 10 to 12 hours a day outside the home, while continuing her at-home duties. The parties were married for approximately 23 years. Upon the division of property, petitioner would receive $15,500 and respondent, the custodial parent, would receive the family home and all other marital assets awarded by the court. Petitioner is 45, has 10 years of schooling and no specialized skills, and earns $168 per week. Respondent is 49, has two years of specialized training in electronics, has been employed by the State since 1961, and earns $402 per week. Respondent apparently- is in good health while petitioner has had recent health problems, at least one requiring hospitalization. The apportionment was not expressly in lieu of, nor in addition to, maintenance. With respondent earning well over twice petitioner’s earnings, and having accumulated what the court presently valued at $13,000 to $18,000 in retirement benefits, he would appear to have the superior opportunity for acquiring future assets and income. Petitioner has no parallel opportunity. It is possible she may eventually qualify for pension benefits, but this is speculative. As respondent’s pension is not coordinated with social security, petitioner’s possible future benefits from that program will be based on her own earnings.

The Hobbs’ principal asset was the marital home. It was appraised at $54,500, had a mortgage debt of approximately $15,000, and contained six rooms of apparently unappraised furniture and appliances owned by the parties. In addition to the aforementioned pension benefits, to which we shall return, the Hobbs’ assets also included a contract action, valued by respondent at $15,000; a 1976 Plymouth Scamp, valued by respondent at $2,000; mutual fund shares, valued by respondent between approximately $505 and $758; a life insurance policy, valued by respondent at $328; and savings of $2,457, two months after the parties separated. Accepting the court’s valuation of the pension benefits and respondent’s valuation of the other assets, the net marital estate totaled between $72,790 and $78,043.

Before proceeding to a discussion of the trial court’s overall disposition of marital property, we first consider the matter of the court’s valuation and disposition of respondent’s pension benefits. As mentioned previously, the court found that the benefits had a present value of $13,000 to $18,000 and, pursuant to petitioner’s present cash award, respondent was awarded the future benefits. The valuation of the pension was contested by petitioner, but due to our disposition of the matter, .we need not reach the question of valuation nor its attendant procedural issues.

Appellate decisions of this State have established that pension rights, whether matured, vested or not vested, contributory or noncontributory, are property under section 503 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 503). (See In re Marriage of Bodford (1981), 94 Ill. App. 3d 91, 92, 418 N.E.2d 487, 488.) Where one spouse has acquired a right to potential pension benefits, there is no way the other spouse may be awarded a defined interest in the benefits without a determination of their value (In re Marriage of Evans (1981), 85 Ill. 2d 523, 426 N.E.2d 854), at least in the case of a present award based on the discounted value of the future payments. This presents a problem when the actual value of the benefits depends on future contingencies.

An excellent discussion of this problem and a well-conceived solution to it are found in In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470. As the Fairchild court concluded:

“The dilemma, then, is that while it is unfair to' ignore the value of nonvested benefits in the division of marital property, those benefits in some instances being the only significant marital asset, it is also unfair to effect a present division of the marital property utilizing an actuarial value of those benefits computed in reliance on speculative, albeit actuarily accepted assumptions. Numerous authorities have suggested a solution to this dilemma.
‘[R]eserving jurisdiction over the future benefits and effecting a subsequent division of the actual monetary benefits had the dual advantage of allocating equally between the parties the risk that the rights may never vest and enabling the court to better determine the actual proportion of future benefits that accrued to each party during the marriage.’ (Keating, Recent Decision, 70 Ill. B. J. 582, 585 (1982).)” (In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 475.)

A similar concept had been suggested earlier:

“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).)” (In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 663, 397 N.E.2d 511, 519.)

It can be seen that both solutions share the common advantage of dividing the pension benefits at a time when, at least in terms of periodic payments, they are certain. Given this common advantage, we direct the trial court, upon the necessary remand of this cause, to reserve jurisdiction over the future benefits. Whether it makes a present percentage allocation of those benefits, or reserves this decision for the future, is left to the court’s sound discretion.

Returning to the trial court’s overall distribution of marital property, we note that even while disregarding the furniture, appliances, and pension benefits in the marital estate, petitioner’s award is approximately 26% of the estate. While the division of property can never be reduced to pure numerics, we find, under the specific circumstances herein, the court’s disposition was an abuse of discretion. Respondent reminds us that such a percentage award was upheld in In re Marriage of Borg (1981), 96 Ill. App. 3d 282, 421 N.E.2d 214, and we agree that such an award might be totally appropriate in a given situation. Here, however, the factors we have previously articulated do not present such a situation. We also note parenthetically that the Borg award to which respondent refers totalled approximately $177,500. On remand, we direct the court to increase petitioner’s awarded share of marital property to a just proportion of the estate. In so doing, the court, in its discretion, may regard the parties’ chose in action in the same fashion as the pension benefits.

The second issue is whether the trial court abused its discretion in failing to award all of the marital property. Section 503(a) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)) states that “ ‘marital property’ means all property ***” and section 503(c) (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)) directs the court to “divide the marital property ***.” Therefore the court abused its discretion in failing to do so.

The final issue we today address is whether the trial court abused its discretion in ordering respondent to pay $2,500 of petitioner’s attorney fees. Those fees and costs totaled approximately $3,789. Petitioner prays for the total amount, while respondent cross-appeals on the ground the ordered amount is excessive. Section 508(a) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 508(a)) provides that, after considering the financial resources of the parties, the court may order a party to pay “a reasonable amount” for fees and costs “necessarily incurred.” Without detailing the various arguments and counterarguments here made, we find the award to be well within the court’s discretion.

Other assignments of error have been urged regarding child support, which the petitioner was ordered to pay, and maintenance, which she was denied. However, since these issues are related to and dependent upon the distribution of marital property, we believe it is inappropriate to review these issues in this appeal and express no opinions on the merits of the issues. They should be considered by the trial court in light of the reconsideration required by this opinion.

Accordingly, the judgment of the circuit court of Bureau County is affirmed in part, reversed in part, and remanded with directions for further proceedings consistent with the views herein.

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

ALLOY and SCOTT, JJ., concur.