author: PRESIDING JUSTICE CAMPBELL

text:
      In re CUSTODY OF PERI BAROKAS, a Minor.-(Stephen R. Feuer et al., Petitioners-Appellees v. Mary Jane Barokas, Respondent-Appellant.)
    First District (1st Division)
    No. 81—1684
    Opinion filed September 27, 1982.
    Victor Brown and William F. Krahl, both of Chicago, for appellant.
    Stanley F. Kaplan and Claire Adair, both of Chicago, for appellees.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Respondent, Mary Jane Barokas, appeals from a decision of the circuit court of Cook County awarding custody of respondent’s 15-year-old daughter, Peri Barokas, to nonparents, petitioners Stephen R. Feuer and Linda M. Feuer, under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) (hereinafter IMDMA). The issues raised on appeal are: (1) whether petitioners had standing to commence the action; and (2) whether section 610 of the IMDMA establishes the appropriate standard for change of custody to a nonparent.

On June 4, 1980, petitioners filed an emergency petition for custody of Peri alleging that the child then resided with them, that she was neglected and threatened with mistreatment by the mother, and that she wished to live with petitioners. Petitioners also sought to enjoin the mother from removing the child or trying to telephone or visit her. Petitioners met Peri 15 months before the filing of the petition at a time when Stephen Feuer, an attorney, was representing Peri’s mother. The court issued a temporary restraining order ex parte. On July 1, 1980, respondent filed a special appearance and moved to dismiss the cause for lack of jurisdiction, arguing that section 601(b)(2) of the IMDMA provided for commencement of a child custody proceeding by a nonparent only if the child “is not in the physical custody of one of [her] parents.” (Ill. Rev. Stat. 1979, ch. 40, par. 601(b)(2).) Respondent alleged that she had legal custody of the child pursuant to a divorce decree entered in 1974 and that she had not given physical custody to the Feuers. Respondent alleged that petitioners took possession of the child from the home of the child’s adult sister, without respondent’s permission, on the evening of June 3, 1980, and filed the emergency petition for custody the following morning. The court found that it had jurisdiction of the subject matter based upon the affidavits, motions and arguments of counsel and denied respondent’s motion to dismiss on July 17, 1980. The matter was set for trial on the remaining issues.

The trial was held on December 11, 1980, and March 30, 1981, at which time respondent reiterated her contention that the petitioners lacked standing. The trial court, however, held that the standing issue was res judicata based on the July 17 order. The first witness for petitioners was a social worker who had been appointed by the court to conduct a custody investigation. The social worker testified that Peri had blossomed during the period she had spent with the Feuers and that in her opinion Peri’s best interests would be served by awarding her custody to the Feuers. She testified that in her interview of Peri, Peri had complained of having to often go to fast food restaurants to get food for herself and of going hungry when she did not want to go out to buy a meal. Peri also complained of sleeping on the floor of her mother’s bedroom and of their frequent moves from one apartment to another. The social worker described respondent’s apartment as cluttered with moving boxes and not clean.

Peri’s eight-grade teacher for the 1978-1979 school year testified that she considered Peri to be a troubled child who was “looking for love anyway she could find it.” The teacher testified Peri often arrived at school looking pale and tired and would ask if she could sleep at school since she was unable to sleep at home. Peri’s school work was below average. The teacher scheduled a conference with Mrs. Barokas at which she suggested that respondent arrange counseling for Peri since it was the teacher’s belief that a great deal of Peri’s energy went into worrying about her own problems. The teacher suspected that there were frequent verbal arguments between the mother and the daughter. An incident at school prompted the teacher to schedule another parent-teacher conference. One day Peri left the classroom suddenly and the teacher found her in an empty classroom crying and shaking. Peri told the teacher that she was having problems at home which she was not allowed to talk about and that she thought that she might be having a nervous breakdown. The teacher suggested immediate counseling for Peri, which was not arranged until sometime later.

Respondent testified that she was 45 years old and was currently employed part-time as a research assistant to a historian and was a part owner of an artist’s co-operative at which she sold her work. Respondent’s testimony disclosed that she had two daughters, Kimberly, age 25, and Debra, age 22, by her first marriage. Kimberly had lived on her own since she was 18. Debra had lived with Peri and respondent until she was 16 years old, when difficulties between Debra and her mother led her mother to place Debra with friends. Peri’s father resides in Turkey, and has had no contact with his child in 12 years.

Respondent testified that she was hospitalized for 41/2 months following a suicide attempt in January 1977. In a juvenile court action, Peri was placed with a private party while her mother was recovering. In May 1977, respondent regained custody of Peri. Respondent testified that between May 1977 and the commencement of this action, she and Peri had seven residences. Sometimes they lived in their own apartment; other times they shared apartments with various women friends of the respondent, and once, they lived with a family for whom her mother worked as a housekeeper. The moves were triggered by either disputes with the landlord, disagreements with the roommates or financial difficulties resulting from the cessation of child-support payments from Peri’s father.

Respondent testified that Peri met petitioners in March 1979, when Stephen Feuer represented respondent in a dispute between her and a roommate. Respondent stated that with her permission Peri began to work in petitioner’s law office after school. Respondent testified that in May 1980 Peri was operated on to remove a cyst from her ovary. At that time Peri had dropped out of high school at the suggestion of her therapist since she was very depressed and unhappy at school, was doing poorly, and frequently cut classes. Respondent testified that the weeks before that surgery were very trying for Peri because she was afraid of the surgery and ashamed to be seen by her former classmates now that she was not attending school. So it was agreed that her mother would let her visit the Feuers for approximately eight nonconsecutive days. Peri was released from the hospital on May 28, 1980, and respondent took Peri to stay with Peri’s sister Kimberly, until respondent found a new apartment as a prior lease arrangement had been broken by the lessor.

Peri testified in chambers that she would not return to her mother even if the court so ordered. She testified that ever since 1977 she and her mother had argued constantly about everything. Peri testified that on one occasion her mother had hit her on the knee with a pan. Peri stated that in order to prevent her from leaving the apartment late at night, her mother would tie Peri’s bedroom door shut or threaten to spray Peri with mace. Her mother would also threaten to disfigure Peri by pouring hot coffee over her while she slept. Peri testified that once she slept with a knife under her pillow for three days as a result of these threats but admitted that she may have become paranoid. Peri indicated that she and her sister had talked about ways for Peri to get away from her mother. The Feuers did not tell Peri that they would let her stay with them until after Peri’s operation when she was staying with Kimberly. Peri also told the court that she did not want to live with her mother because her mother was planning to move to the south shore, an area which Peri considered to be too dangerous. Peri said that her mother wanted to move there “to isolate me from everything.” Peri testified that she liked her new school, was getting high grades and had new friends. She stated that she would prefer to live with the Feuers.

Petitioner, Stephen Feuer, testified that he first met Peri in March 1979. His secretary became ill so he decided to hire a high school student temporarily to answer the telephone and do filing. Since Peri was the child of a client and seemed bright, he hired her. Feuer testified that he and his wife often took Peri out to dinner after they finished work. Feuer testified that on four or five occasions he took Peri to the beach. Different people would accompany them: Peri’s sister, Kimberly, Mrs. Barokas and his wife. The Feuer’s also took Peri on a weekend vacation to Indiana. Feuer testified that “most of the time” he and his wife would ask Mrs. Barokas for permission to take Peri somewhere, but “after we had known Peri for a while, we told Peri we would like to take her to a show or whatever we had in mind and expected her to ask her mother.”

Feuer testified that he had long conversations with Mrs. Barokas on two occasions about the problems she was having with her daughter. After the second of these, Feuer suggested that Peri stay with the Feuers during the summer so that Mrs. Barokas could take a vacation and she and Peri could work out their problems before the school year began.

Feuer testified that he and his wife decided to seek custody of Peri about the time that she was in the hospital. He stated that her situation seemed desperate and he thought that seeking her custody was preferable to allowing Peri to carry out her threats to run away from home.

Kimberly Barokas testified that for sometime she had been alarmed because the arguments between her mother and Peri were becoming frequent and more violent and Peri had talked more seriously about suicide. The sister testified that she repeatedly urged her mother to seek counseling for herself and Peri but no arrangements were made until Kimberly made the appointments and accompanied her mother and sister to the first two sessions. Kimberly testified that Peri was still undergoing therapy. Kimberly also testified that sometimes her mother was a very concerned type of parent and other times she was not.

Respondent contends that petitioners did not have standing to commence this suit. Respondent argues that under section 601(b)(2) of the IMDMA a nonparent may commence an action to acquire custody of a child only if the child “is not in the physical custody of one of his parents.” (Ill. Rev. Stat. 1979, ch. 40, par. 601(b)(2).) Respondent argues that the trial court erred in finding that the taking of the child from the home of her adult sister, without her mother’s permission, one day before filing the custody action, gave petitioners physical custody within the meaning of the statute. Respondent asserts that such an interpretation is contrary to the spirit and intent of the IMDMA and would lead to the illogical position that a nonparent may file for custody any time a child is not in the physical presence of one of his or her parents.

Respondent argues that she had physical custody of the child at the time petitioners brought this action. She obtained custody in 1974 pursuant to a divorce decree and except for five months in 1977 she continued to have possession and control of the child until the court issued a temporary restraining order prohibiting her from contacting her daughter. Respondent maintains that she never relinquished the child’s custody to petitioners nor has she acquiesced to their attempt to obtain custody. She also argues that her adult daughter had no authority to release Peri into the possession of petitioners. Although there was a special hearing on the jurisdictional issue, no evidence was taken. Respondent argues that there should have been a bifurcated hearing with evidence taken on the issue of standing.

Petitioners argue that the issue of who has physical custody is a factual question to be decided by the trial court, and its definition will differ from case to case. Petitioners assert that they have an absolute right pursuant to the IMDMA to bring this action since they had actual, physical possession of the child. Petitioners argue that the alleged behavior of the mother, and the child’s desire to reside with them, give further evidence of their right to bring this action. Petitioners also argue that respondent relinquished her right to physical custody by turning to petitioners for help in caring for her child, by relying on petitioners to provide a home for Peri during the traumatic period before her operation and by placing Peri with her sister while she was recuperating from the operation.

Section 601(b) of the IMDMA determines who, other than a parent, has standing to bring a child custody action. It provides in part:

“(b) A child custody proceeding is commenced in the court:
(1) by a parent, by filing a petition:
* * *
(2) by a person other than parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.”

The Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1979, ch. 40, par. 2101 et seq.), which is incorporated by reference into section 601(a), defines physical custody as “actual possession and control of a child” (Ill. Rev. Stat. 1979, ch. 40, par. 2103.08). Section 601(b) places no qualifications on a parent’s standing to file a petition for the determination of child custody or for the modification of a prior determination. A nonparent, however, is restricted as to when he or she has standing to invoke the court’s jurisdiction over child custody. Section 601(b)(2) is substantially identical to section 401(d)(2) of the Uniform Marriage and Divorce Act (hereinafter Uniform Act). The Commissioner’s Note to the Uniform Act clarifies the meaning of this section within the statutory scheme:

“*** if one of the parents has physical custody of the child, a non-parent may not bring an action to contest that parent’s right to continuing custody under the ‘best interest of the child’ standard of Section 402. If a non-parent (a grandparent or an aunt or uncle, perhaps) wants to acquire custody, he must commence proceedings under the far more stringent standards for intervention provided in the typical Juvenile Court Act. In short, this subsection has been devised to protect the ‘parental rights’ of custodial parents and to insure that intrusions upon those rights will occur only when the care the parent is providing the child falls short of the minimum standard imposed by the community at large — the standard incorporated in the neglect or delinquency definitions of the state’s Juvenile Court Act.” (Commissioners’ Note, Uniform Marriage and Divorce Act sec. 401, 9A Uniform Laws Annotated 194-95 (1979).)

This important distinction in the standing requirements for parents and nonparents protects the single parent from challenges to his or her right to custody by interested third parties so long as the child is in the parent’s physical custody.

In Henderson v. Henderson (1977), 174 Mont. 1, 568, P.2d 177, the Montana Supreme Court interpreted a standing provision similar to the section at issue here. A father who had obtained custody of his two children following a divorce decree died suddenly in a car accident. An aunt of the children took them from the care of a babysitter and subsequently filed for custody. The court held that the aunt did not have standing to commence a custody action. The court determined that physical custody in section 401(d)(2) of the Uniform Act “is not limited to having actual, immediate control of the physical presence of the child.” (174 Mont. 1, 5, 568 P.2d 177, 179.) The court found that the standing requirement referred to “the custodial rights involved in the care and control of the child” (174 Mont. 1, 5, 568 P.2d 177, 179), and refused to accept an interpretation of this section which would “allow a nonparent to file a petition for custody anytime the child is out of the physical presence of the parent or parents, even if for a few minutes” (174 Mont. 1, 5, 568 P.2d 177, 179).

Petitioners argue that this court should not follow Henderson since Henderson dealt with a Montana law which automatically transferred custody from one parent to the other upon the death of the custodial parent. We do not view this distinction as significant since both Henderson and the case at bar require a determination in the first instance of whether a nonparent has standing to file a custody petition against the right of a parent who has been awarded custody either by the court as in the case at bar or by operation of law as in Henderson.

The Arizona Court of Appeals adopted the interpretation of section 401(d)(2) of the Uniform Act given in Henderson. (Webb v. Charles (1980), 125 Ariz. 558, 611 P.2d 562.) In Webb, a father brought a habeas corpus action to obtain custody of his son who was residing with the child’s grandmother following his wife’s death. The grandmother responded by alleging that the father was unfit to obtain custody. The court found that the grandmother did not have standing under Arizona’s version of section 401(d)(2) of the Uniform Act to raise the issue of fitness to obtain custody since the father never relinquished the right to care and control of his child. The court noted that if the grandmother believed that the father was not a fit parent, she should use the statutory remedies of the juvenile court. In denying its jurisdiction over the custody issue, the court noted that “when the state deprives a parent of the fundamental right to raise his child, the proceedings must be conducted in a strict compliance with the statutes involved.” 125 Ariz. 558, 561, 611 P.2d 562, 565.

Petitioners rely on Webb to argue that respondent relinquished her right to the physical custody of Peri by her inability to provide Peri with a stable environment, by allowing Peri to visit petitioners for eight days, and by placing Peri with her sister. These actions, petitioners argue, are tantamount to actually relinquishing physical custody. We believe this argument to be without merit. The Webb court refused to hold that the father had relinquished the custody of his son by allowing him to stay with his grandmother at the time of his wife’s funeral. Certainly respondent is entitled to seek the assistance of others in the raising of her daughter without affecting her custodial rights. We find no basis in the statute or in the Webb case for petitioners’ theory of constructive relinquishment of physical custody.

“The right and correlative responsibility of a parent to care for his or her child is fundamental and as ancient as mankind.” (In re Custody of Townsend (1981), 86 Ill. 2d 502, 509, 427 N.E.2d 1231, 1235.) In a custody dispute between a parent and a nonparent, the parties do not start out on equal footing, unlike a custody dispute between parents. (Townsend.) This inequality between the positions of parents and nonparents is incorporated in the standing requirements of section 601.

In the recent case of Santosky v. Kramer (1982), 455 U.S. 745, 71 L. Ed. 2d 599, 102 S. Ct. 1388, the United States Supreme Court held that the due process guarantees of the fourteenth amendment protect natural parents in a State initiated proceeding to terminate parental rights. The court stated:

“The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.” (455 U.S. 745, 753, 71 L. Ed. 2d 599, 606, 102 S. Ct. 1388, 1394.)

We note that the consequences to a parent’s interests of a change of custody from a parent to a nonparent under IMDMA are severe. Unlike an action under the juvenile court, a “court need not find that the natural parent is unfit or has forfeited his custodial rights before awarding custody to another person if the best interests of the child will be served.” (In re Custody of Townsend (1981), 86 Ill. 2d 502, 508, 427 N.E.2d 1231, 1234.) Moreover, section 610 of the IMDMA prohibits a parent from petitioning to regain custody for two years unless the child’s physical or emotional health is seriously endangered. A nonparent who obtains custody pursuant to IMDMA is not under a legal obligation to mend the relationship between the child and his or her parents.

We are not convinced under the circumstances of this case that the manner in which petitioners acquired the child satisfied the standing requirement of section 601(b)(2). Overnight contact with third parties fails to fulfill the statutory provision that the child not be in the physical custody of one of her parents. A parent’s “actual possession and control of a child” (Ill. Rev. Stat. 1979, ch. 40, par. 2103.08) is not lost every time the child visits or spends a vacation with a relative or friend. We do not accept petitioners’ theory that physical custody may be relinquished by default if a parent performs the task of parenting in a less than adequate manner. Petitioners cannot deprive respondent of physical custody of her child so as to acquire standing under section 601(b)(2) by taking the child from the home of her adult sister where respondent had placed her.

Respondent filed a special appearance and a motion to dismiss under oath contesting petitioners’ standing. The motion and the affidavit accompanying it appear to refute petitioners claim that they came into possession of the child by any lawful act. Therefore, respondent was entitled to a hearing and an opportunity to present evidence on the jurisdiction and standing issue before proceeding to a consideration of the merits of the custody petition.

We recognize that petitioners are motivated by a laudable concern for the child’s welfare. We also recognize that the effects of this decision will be minimal in view of the age of the child who will turn 18 in April 1983. Nevertheless, a natural parent’s superior right to the care, custody and control of his child (.Townsend) should not be deprived absent strict compliance with the statutory provisions involved. Therefore, we vacate the judgment order and the order entered July 17, 1980, which denied respondent’s motion to dismiss, and remand for a hearing on the issue of jurisdiction and standing as to the date of the filing of the petition. In view of the disposition of this case, we find it unnecessary to discuss the remaining issue.

For the reasons stated herein, we reverse and remand for further proceedings consistent with this opinion.

Judgment reversed and remanded.

McGLOON and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDBERG

license: Public Domain

text:
    JAMES D. GRANT et al., Plaintiffs-Appellants, v. ZALE CONSTRUCTION COMPANY et al., Defendants-Appellees.
    First District (1st Division)
    Nos. 81—1933, 81—2658 cons.
    Opinion filed September 27, 1982.

      Thomas H. Stern, P. C., of Chicago (Jesus N. Borrillo, Jr., of counsel), for appellants.
    Clausen, Miller, Gorman, Caffrey & Witous, P. C., of Chicago (James T. Ferrini, Thomas H. Ryerson, and Elizabeth J. Whinery, of counsel), for appellee Zale Construction Company.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, Daniel J. O’Con-nor, Evan Burton Karnes II, of counsel), for appellee Fred Bereskin
   JUSTICE GOLDBERG

delivered the opinion of the court:

James D. Grant (plaintiff) and his wife, Lynne Grant, brought an action against Zale Construction Company and Fred Bereskin, individually and doing business as Fullerton Plumbing Company (defendants). Count I of plaintiff’s complaint seeks recovery under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.). Count II is based on common law negligence. Count III seeks recovery for plaintiffs wife for loss of consortium. Count I was dismissed by the trial court. Plaintiff appeals.

According to plaintiff’s complaint, on September 1, 1979, plaintiff was employed as a full-time firefighter by the village of Northbrook. He was summoned to a construction site to extricate a construction worker who was trapped when a sanitary sewer line trench collapsed. Plaintiff climbed into the trench, and while there was struck by falling dirt and debris. The only issue in this appeal is whether the Structural Work Act covers a firefighter injured while rescuing a construction worker.

The pertinent language of the statute provides (Ill. Rev. Stat. 1979, ch. 48, par. 60:

“That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and.proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.”

The basic purpose of the statute is protection for persons engaged in extrahazardous work. (Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 393, 398 N.E.2d 383, appeal denied (1980), 79 Ill. 2d 634.) More specifically, “[t]he primary purpose of the Structural Work Act is to secure for construction workers a safe place to work and a remedy for injuries suffered by employees at the hazardous construction site.” (Kelly v. Northwest Community Hospital (1978), 66 Ill. App. 3d 679, 683, 384 N.E.2d 102, appeal denied (1979), 74 Ill. 2d 586.) The statute is to be liberally construed to afford a broad protection of working men. (Halberstadt v. Harris Trust & Savings-Bank (1973), 55 Ill. 2d 121, 127, 302 N.E.2d 64. See also McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151, 317 N.E.2d 573, and cases there cited.) However, liberal construction cannot extend the statutory protection to all classes of persons and all types of situations. Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 436, 328 N.E.2d 318; Kelly v. Northwest Community Hospital (1978), 66 Ill. App. 3d 679, 683.

Plaintiff urges the Act should extend to all persons injured while legitimately on the construction site, without exception. We believe the Supreme Court of Illinois has recently rejected a similar argument. In Long v. City of New Boston (1982), 91 Ill. 2d 456, the supreme court rejected the Structural Work Act claim of a volunteer who was injured while stringing lights between two poles for defendant city. The court noted, “[assuming for the sake of argument that a utility pole is a structure, however, plaintiffs’ contention still must fail, because Long was not engaged in an alteration of that structure.” 91 Ill. 2d 456, 467.

A similar result can be found in Wright v. Synergistics, Inc. (1977), 52 Ill. App. 3d 233, 367 N.E.2d 466, appeal denied (1977), 66 Ill. 2d 642. There, plaintiff was employed in a school building which was being remodeled. While leaving from the rear door, she fell from a scaffold and was injured. The court noted (52 Ill. App. 3d 233, 236):

“In walking upon the scaffold when she left her employment in the school building, plaintiff in this case was neither a construction worker nor engaged in a hazardous occupation, she was not involved in the construction, alteration or repair of any structure or building, and she was not concerned with the building or repair of a structure. She was, therefore, not protected by the Act. This interpretation is in harmony with Bitner v. Lester B. Knight & Associates, Inc. (1974), 16 Ill. App. 3d 857, 307 N.E.2d 136. In Bitner, plaintiff, employed as an electrician in the maintenance department of a company, was injured by falling from a beam he was crossing to get to a conveyor. He was held not to be covered by the Act because he was not a ‘construction worker’ involved in the construction, alteration or repair of any building or structure. As in this case, the plaintiff in Bitner appears to have walked on the beam he fell from only because it was a convenient means of getting to another part of the plant where he was working.”

See also Lavery v. Ridgeway House, Inc. (1969), 117 Ill. App. 2d 176, 184-85, 254 N.E.2d 117.

In Long, Wright and Lavery the plaintiffs were clearly “legitimately” on the construction site. Nevertheless, the courts denied their Structural Work Act claims and held plaintiffs were required to establish they were involved in the construction process in some degree to be protected by the Act.

Plaintiff relies upon the following authority to support the proposition that he was engaged in the construction process. We find these cases inapposite to the case at bar for the following reasons:

(1) Kelly v. Northwest Community Hospital (1978), 66 Ill. App. 3d 679. The court rejected a Structural Work Act claim. Plaintiff’s decedent had been treated for mental illness. He wandered onto a construction site, went to the top of an uncompleted section of a building which was under construction and fell or jumped. Plaintiff cites dicta where the court noted that plaintiff “was not employed as a worker on the construction site, and was not engaged in any legitimate activity at the site.” (66 Ill. App. 3d 679, 683.) We cannot interpret Kelly as requiring the type of expansive application of the Act urged by plaintiff.

(2) Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121. The court held a window washer working on a scaffold was protected by the Act. The court noted, “ ‘[t]he business of washing windows, as such, in large cities, is as much a part of maintenance of buildings as would be the replacing of glass in windows, the painting and decorating of the buildings, or the re-pointing of the outside where the mortar between the bricks is giving way’.” 55 Ill. 2d 121, 127-28, quoting Chicago Cleaning Co. v. Industrial Board (1918), 283 Ill. 177, 118 N.E. 989.

(3) In Warren v. Meeker (1973), 55 Ill. 2d 108, 302 N.E.2d 54, the court held a farmhand repairing a silo while standing on a ladder was protected by the Act. The court rejected the argument that agricultural workers were not covered by the Act because of “the plain language of section 1 of the Act which extends protection to ‘any person’ engaged on a ladder while repairing a structure.” 55 Ill. 2d 108, 113.

(4) In Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, 418 N.E.2d 1011, appeal denied (1981), 85 Ill. 2d 575, the court held a city inspector injured by a fall while inspecting a construction site was under the protection of the Act. There, the court stressed that “[pjlaintiff, in his role as an inspector, played a vital part in the construction process. He entered the site for the purpose of evaluating the fire’s effect on the building’s structural integrity.” 94 Ill. App. 3d 660, 662.

(5) Finally, in Bennett v. Musgrave (1970), 130 Ill. App. 2d 891, 266 N.E.2d 128, a nonemployee was injured while inspecting a construction site at the request of the builder. The court held plaintiff was covered by the Act. There, the plaintiff was actually engaged in the process of inspection, as in Quinn. Furthermore, he was covered by the statute because he was “passing under” a scaffold, precisely as stated in the pertinent statute, when he was injured by a falling wrench. Thus the court held the scaffold was involved in plaintiff’s injury. 130 Ill. App. 2d 891, 895.

In all five of the cases cited above, plaintiffs had direct contact with the construction process or with closely allied maintenance. In the case at bar, plaintiff was engaged in rendering medical assistance to an individual workman. The activities of plaintiff as a firefighter cannot be considered as being generally within the “construction process.” A firefighter usually has no connection with construction. The plaintiff’s presence on the construction site in the case before us was the result of an extraordinary emergency, and was for the limited purpose of personally assisting the distressed worker.

This situation in turn is far different from the situation in which a city inspector is hurt during the construction process, as in Quinn. The services of the inspector are directly essential to completion of the construction process. The profession of city inspector would necessarily involve greater contact with the dangers of construction itself than would the profession of firefighter. Therefore, we find complete consistency in the holdings that the statute authorizes the inclusion of city inspectors but not of firefighters.

Upon consideration and comparison of all of the cases above cited, we conclude the judgment appealed from should be and it is affirmed.

Judgment affirmed.

McGLOON and O’CONNOR, JJ., concur.


text:
    ROBERT K. ANZINGER et al., Plaintiffs-Appellees, v. PHILIP R. O’CONNOR, Acting Director of the Department of Insurance et al., Defendants-Appellants.
    First District (1st Division)
    No. 81-568
    Opinion filed September 27, 1982.
    Epton, Mullin, Segal & Druth, Ltd., of Chicago, for appellant Illinois State Medical Inter-Insurance Exchange.
    Tyrone C. Fahner, Attorney General, of Springfield, for appellant Philip R. O’Connor.
    Daniel Karlin and Stuart Perlman, both of Chicago, for appellees.
   PRESIDING JUSTICE CAMPBELL

delivered the opinion of the court:

Defendants, Philip R. O’Connor, Acting Director of the Illinois Department of Insurance (Director), and the Illinois State Medical Inter-Insurance Exchange (ISMIE), appeal from a judgment of the circuit court of Cook County which reversed the decision of the Director. The Director had determined that the classification scheme and the insurance rate scheme applied to emergency room physicians was permissible and that plaintiffs should bear the costs of the administrative proceedings. Defendant Director only appeals from that portion of the trial court’s order which denied the assessment of costs against plaintiffs. Defendant ISMIE raises the following issues on appeal: (1) whether insurance policy classification of emergency room physicians based on risk factors uniquely associated with the practice of emergency medicine was permitted by the statute regulating medical liability insurance rates; (2) whether insurance policy classification of emergency room physicians by medical speciality was proper under ISMIE’s manual of rules and rates; (3) whether ISMIE’s underwriting rules pertaining to part-time and obligatory staffing of emergency rooms was unfairly discriminatory; (4) whether the decision of the Director upholding ISMIE’s classification scheme was supported by substantial competent evidence; (5) whether the trial court improperly substituted its judgment for that of the Director; and (6) whether the trial court erred in reversing the assessment of hearing costs against plaintiffs and prohibiting the future assessment of costs.

A discussion of the background of the parties may be helpful in understanding the issues involved since this appeal arises out of a dispute involving insurance rates for medical malpractice coverage. Generally, the amount of insurance premiums is determined by the classification in which a particular type of physician is placed; the higher the classification, the larger the premium that is assessed. The rates assigned by insurance companies are regulated by the Illinois Insurance Code. Ill. Rev. Stat. 1977, ch. 73, par. 613 et seq.

The Illinois Medical Inter-Insurance Exchange (ISMIE) is a physician-owned and controlled reciprocal insurance company created to provide Illinois physicians with medical malpractice insurance. In 1976, the first year of its operation, ISMIE adopted the classification and rate system used by the Hartford Insurance Company which had previously insured Illinois physicians. This system classified physicians into five groups. Emergency room physicians were placed in class three and paid the premiums for that class. In 1977, after receiving negative input from some of its members, ISMIE adopted a seven class rating system following recommendation of the same by its “Ad Hoc Advisory Committee.”

Under this new classification system, nonsurgical specialities were placed in Classes 1, 2 and 3, while those in the surgical specialties were placed in Classes 4 through 7. Full-time emergency room physicians were placed in Class 4, although other physicians with specialities other than emergency medicine could work in an emergency room up to 36 hours per month without incurring a change in classification. A Class 1, 2 or 3 physician who worked more than 36 hours in an emergency room would be charged 50% of his regular rate and 50% of the Class 4 rate. A full-time resident whose emergency room activity did not exceed 24 hours per week would also be charged 50% of the Class 4 rate. In addition, the ISMIE rating scheme exempted physicians who staffed an emergency room under a “Pontiac Plan.” A “Pontiac Plan” is a corporate arrangement whereby some staff doctors contract with the hospital to provide emergency room services, thereby eliminating the need to involve other staff physicians who are not interested in working in the emergency room. Finally, in each of the seven classifications, physicians were permitted to downgrade their ranking by demonstrating that they did not perform certain procedures typical to their class. This opportunity to downgrade their status was not afforded to emergency room physicians. The ISMIE classification scheme only provided for an upgrade in the classification of emergency room physicians.

Plaintiffs are full-time emergency room physicians. On November 1, 1977, plaintiffs requested that the Director review the new classification system. Plaintiffs charged that the reclassification of emergency room physicians violated section 155.18 of the Illinois Insurance Code (Ill. Rev. Stat. 1977, ch. 73, par. 767.18), which prohibits insurance rates which are excessive and unfairly discriminatory. On June 14, 1978, the Department of Insurance gave notice of a fact-finding, nonadversarial hearing to be conducted on the issues raised by plaintiffs. The Director appointed an independent, consulting actuary as hearing officer in the matter.

Plaintiffs petitioned and were permitted to intervene in the administrative proceedings and a preliminary hearing was held. Since plaintiffs had requested the review, the hearing officer, following the usual and customary procedure of the Department of Insurance, ordered that the costs of his fees in the matter be assessed to plaintiffs. (Ill. Rev. Stat. 1977, ch. 73, par. 1020(3).) Plaintiffs objected to this order, arguing that it was premature under section 27 D of Rule 24.02 of the Illinois Insurance Department Regulations. Plaintiffs were ordered to pay a $500 advance payment to the hearing officer, which they in fact paid.

The hearing convened and the hearing officer found that on the basis of the evidence presented, the classification system adopted by ISMIE was not unfairly discriminatory towards emergency room physicians, nor were the rates charged to the physicians excessive. He recommended that: (1) the hearing be dismissed with prejudice; (2) plaintiffs bear the costs of the hearing officer’s fees, and (3) each party pay its own attorney fees. On March 24, 1980, the Director adopted the findings, conclusions and recommendations of the héaring officer.

Pursuant to the Administrative Review Act (Ill. Rev. Stat. 1979, ch. 110, par. 264 et seq.), plaintiffs filed this action alleging, inter alia, that the decision of the Director was contrary to the manifest weight of the evidence and that the premium rate charged to emergency room physicians was unfairly discriminatory and excessive. The circuit court found that the decision of the Director upholding the classification scheme and premium rate charges of ISMIE was contrary to the manifest weight of the evidence and was found to be excessive and unfairly discriminatory in violation of section 155.18 of the Illinois Insurance Code. (Ill. Rev. Stat. 1979, ch. 73, par. 767.18.) In addition, the court reversed without remand that portion of the Director’s decision which assessed fees and expenses to plaintiffs and ordered that no fees or expenses may be assessed by the Director on account of the proceedings.

At the outset, we note that the final determination of the Director was defended in the trial court by both ISMIE and the Attorney General on behalf of the Director. The issue of whether ISMIE has the right to defend the decision of the Director was not addressed by the trial court, nor was it raised on appeal by any of the parties. An examination of the record indicates that the order of the trial court was directed to the Director alone. Although plaintiffs argue in their brief that the Director waived his right to contest the decision of the circuit court on appeal, the issue of the propriety of the prosecution of this appeal by ISMIE on behalf of the Director was not raised by plaintiffs in this appeal. We will not consider the issue in this appeal since plaintiffs failed to raise this issue below. Brown v. Lober (1979), 75 Ill. 2d 547, 389 N.E.2d 1188.

ISMIE raises numerous issues which pertain to the classification scheme which it employed in determining insurance rates. Although these issues are stated separately, each of the issues is intertwined with the trial court’s decision as to whether the decision of the Director was contrary to the manifest weight of the evidence. Therefore, we shall address these issues as follows: (1) whether the decision of the Director which concluded that the premium rates charged to emergency room physicians was not excessive was contrary to the manifest weight of the evidence and whether the premium rates were excessive in violation of the statute; and (2) whether the decision of the Director which concluded that the premium rates charged to emergency room physicians were not unfairly discriminatory was contrary to the manifest weight of the evidence and whether the premium rates were unfairly discriminatory in violation of statute.

ISMIE first contends that due consideration to section 155.18 of the Insurance Code (Ill. Rev. Stat. 1979, ch. 73, par. 767.18) was not given by the trial court. Defendant ISMIE urges that its determination of the malpractice insurance rates charged to emergency room physicians was proper under the statute which permits classification according to risks pursuant to section 155.18(b)(4). In establishing classification, ISMIE maintains that the statute is clear in the factors which may be considered in establishing a classification scheme. IS-MIE refers to section 155.18(b)(2) which states in pertinent part:

“Consideration shall be given, to the extent applicable, to past and prospective loss experience within and outside this State, to a reasonable margin for underwriting profit and contingencies, to past and prospective expenses both countrywide and those especially applicable to this State, and to all other factors, including judgment factors, deemed relevant within and outside this State.” (Ill. Rev. Stat. 1979, ch. 73, par. 767.18(b)(2).)

Defendant ISMIE argues that the statute does not require that the same factors be utilized when assigning risk classifications, but that the statute requires grouping and identification of similar risks. As an example, ISMIE notes that urologists and emergency room physicians were both assigned to Class 4 because the relative risk of malpractice claims against the two specialities was deemed by ISMIE to be the same. Defendant, however, argues that the factors which contribute to the incidence of malpractice claims against urologists are not the same factors which are necessarily valid for emergency room physicians. Defendant urges that its “Ad Hoc Advisory Committee” concluded that the risks attendant with the practice of emergency medicine were deemed to be greater than some specialties and less than other areas of specialization and that this does not constitute unfair discrimination so long as other physicians with similar risks were treated identically.

Defendant also contends that the classification of emergency room physicians is consistent with the ISMIE manual and that a number of considerations played a part in the classification scheme. The considerations relied upon by ISMIE are as follows: (1) There is no history of an established doctor-patient relationship and there is a reduced ability to research relevant medical history of the patient; (2) an emergency room physician does not have the luxury of accepting or rejecting patients and must take whatever develops; (3) patients who utilize emergency rooms frequently have no prior regular health care contact and their problems are frequently acute because of the patient’s failure to treat symptoms during the early states of illness; (4) it is difficult to insure that patients will follow instructions and avail themselves of necessary post-emergency care; (5) routine matters are conducted under emergency conditions in an often hectic and depersonalized milieu; and (6) the scope of procedures in emergency practice are not well defined and, therefore, are difficult to assess for insurance. ISMIE contends that the primary basis for classification of physicians depends upon the medical specialty which is practiced. ISMIE refers to the “Classification Procedure” in its Manual on Rules and Rates, which states:

“CLASSIFICATION PROCEDURE
A. Classification assignment shall be made on the basis of medical specialty and medical procedure risk classification in accordance with the rules established for this plan, contained in this manual.
B. A classification assignment determined by reference to a physician’s medical specialty *** may be changed to a lower risk classification assignment, on the basis of represented medical procedure being performed ***.”

ISMIE argues that the testimony of its staff and the members of its “Ad Hoc Advisory Committee” was consistent and that the testimony indicated that the classification of emergency room physicians was determined more by the nature of emergency medicine, rather than by the procedures which were used or not used in the emergency room. ISMIE also urges that the trial court misapprehended the classification scheme utilized by ISMIE. Defendant argues that ISMIE never classified physicians according to surgical specialties and nonsurgical specialties without additional considerations. Paul Singer, the chief executive officer of ISMIE, in a discovery deposition which was admitted into evidence by the hearing officer explained that the physicians in Classes 1, 2 and 3 were deemed to be nonsurgical and could perform minor or intermediate surgeries and those in Classes 4, 5, 6 and 7 were classed as surgical specialties as a matter of convenience in the application of a geographical location rating rule. Singer also stated that the issue of whether an emergency room physician performed surgery-was not relevant to the classification of emergency room physicians; rather, it was the environment in which emergency medicine was practiced which influenced the classification and not the procedures performed.

ISMIE also urges that the nature of emergency medicine does not lend itself to the concept of restricting procedures as a way to lower the physician’s insurance rate. According to Singer, if an emergency room physician eliminated enough aspects of emergency medicine to reduce his classification to Class 1 or 2, then the physician would cease to be a practitioner of emergency medicine. ISMIE urges that the Director was correct in his finding that the classification scheme was proper because of the' hazards normally associated with the emergency room environment.

Defendant also urges that the decision of the Director was supported by substantial competent evidence. ISMIE notes that plaintiff Anzinger acknowledged that the emergency room was a busy place, often filled with unhappy individuals who are not familiar with doctors or the health care system. ISMIE argues that plaintiffs did not submit any evidence to refute the considerations which influenced the “Ad Hoc Advisory Committee” in assigning the physicians to Class 4. Defendant argues that at the time the classification scheme was developed, emergency medicine was in its infancy and that there was no actuarial claims data for emergency physicians that would merit reliance. Defendant argues that in the absence of reliable data, it was entirely proper to base its classification upon informed judgment.

Plaintiffs contend that the trial court properly found that the findings and decision of the Director were against the manifest weight of the evidence. Plaintiffs maintain that the classification scheme employed by ISMIE was properly determined by the circuit court to be unfairly discriminatory. They argue that the evidence established that emergency room physicians only performed minor surgical techniques associated with Classes 1, 2 and 3 and that if emergency room physicians were performing major surgery, the physicians were insured as surgeons. Plaintiffs also contend that the evidence established that emergency room physicians were not permitted to take patients into the operating room. Plaintiffs also argue that the ISMIE manual as it pertained to classification procedures permitted physicians to be assigned to a reduced risk class based upon the representation that the physician was not performing procedures which would otherwise result in a higher risk classification. Plaintiffs maintain that by not permitting emergency room physicians to lower their risk classification, ISMIE unfairly discriminated against emergency room doctors. Plaintiffs refer to a July 1977 memorandum from Hank Nussbaum, ISMIE’s director of underwriting and risk management, which indicated that assignment of emergency room to Class 4 was the decision of the “Ad Hoc Advisory Committee” and that the underwriting department would be amenable to adoption of a dual class approach employed by the Insurance Services Organization. (ISO), the statistical agency for the insurance industry. Plaintiffs also refer to a May 1977 memo from Nussbaum which stated that: “a realistic rating approach would be to adopt the current ISO class structure which calls for Class 3 designation if ER physician does no major surgery and Class 5 if he does major surgery.” Plaintiffs urge that these memoranda demonstrate the arbitrariness of ISMIE’s classification scheme. Plaintiffs also contend that it was discriminatory for ISMIE to classify other physicians based upon procedures performed and to classify emergency room physicians based upon the fact that they practice medicine in an emergency room and not upon the procedures utilized in an emergency room.

Plaintiffs also maintain that the decision of the Director was not supported by substantial evidence. Plaintiffs contend that ISMIE’s reference to the Florida Medical Association Plan which placed emergency room physicians in Class 4 of a five-class rating scheme is misplaced since the testimony of ISMIE’s witness established that the five-class rating scheme was employed seven to ten years prior to the adoption of ISMIE’s seven class system and that in 1977, the Florida Medical Association used a seven class system which placed emergency room doctors in Class 3 or Class 5, depending upon whether the major surgery was performed. Plaintiffs also maintain that ISMIE declined to act upon the recommendations of its director of underwriting and risk management and its actuarial consultant.

Plaintiffs argue that the trial court properly determined that the premium rates charged to emergency room physicians were excessive pursuant to section 155.18(b)(1) of the Insurance Code (Ill. Rev. Stat. 1977, ch. 73, par. 767.18(b)(1)). Section 155.18(b)(1) states, in pertinent part:

“Rates shall not be excessive *** nor shall they be unfairly discriminatory. No rate shall be held to be excessive unless such rate is unreasonably high for the insurance provided, and a reasonable degree of competition does not exist in the area with respect to the classification to which such rate is applicable.”

Plaintiffs maintain that the evidence established that the premium rates charged emergency room physicians increased by 68.8% for Territory I physicians and 50.5% for Territory II physicians, while the average rate increase for all other doctors was 6.5%. Plaintiffs argue that the trial court properly concluded that there was not a reasonable degree of competition because the other insurance companies did not have comparable policies available to emergency room physicians. They also contend that the hearing officer and the trial court both noted that ISMIE’s actuaries recommended limiting any premium increase to 30% to 40%.

Judicial review of a decision of an administrative agency is limited to a determination of whether the decision of the agency is against the manifest weight of the evidence and a court may only reverse where the decision is clearly contrary to the evidence presented. (Tanquilut v. Department of Public Aid (1979), 78 Ill. App. 3d 55, 396 N.E.2d 1126.) In the instant case, the trial court concluded that the decision of the Director that the premium rate charged to emergency room physicians was not unfairly discriminatory or excessive was contrary to the manifest weight of the evidence. The court also determined that the premium rates were excessive and unfairly discriminatory in violation of section 155.18 of the Insurance' Code. Ill. Rev. Stat. 1977, ch. 73, par. 767.18.

Pursuant to section 155.18 of the Insurance Code, a premium rate may not be excessive or unfairly discriminatory. Subsection (b)(1) of section 155.18 provides that a rate will not be deemed to be excessive unless the rate is both “unreasonably high for the insurance provided” and “a reasonable degree of competition does not exist in the area with respect to the classification to which such rate is applicable.” The hearing officer determined that the evidence established that there was not a reasonable degree of competition since no other insurance carrier offered coverage at the same liability limits to emergency room physicians as ISMIE. The hearing officer concluded that there was no adequate statistical data at the time that ISMIE filed its rate schedule which could show whether the experience for emergency room physicians indicated that the filed rate was excessive. The hearing officer indicated that a limited rate comparison would not be sufficient to substantiate the excessiveness of the premium rate and that it would be helpful to compare the classification scheme used by other insurance companies. The hearing officer concluded that the classification of emergency room physicians was permissible and, therefore, the rate assessed the physicians was also acceptable.

The record as it pertains to the classification of emergency room physicians by ISMIE is not clear. The record does indicate that emergency medicine was an emerging medical specialty and that ISMIE and other insurers did not have sufficient loss data for or experience with emergency room doctors. The record also discloses that there was considerable doubt as to where to classify the doctors. Comparison with other insurance companies classification schemes established a lack of uniformity in the classification of emergency room physicians. Our review of the record indicates that ISMIE did not have any substantial or reliable data or experience upon which to base its classification of emergency room physicians. The evidence in support of ISMIE‘s classification scheme is, by no means, clear and is often contradictory. The trial court concluded, and we agree, that the decision of the Director which upheld ISMIE’s classification scheme was contrary to the manifest weight of the evidence and not supported by the evidence.

Based upon a classification scheme which the trial court concluded was improper, the court found that the premium rates assessed to emergency room physicians were excessive in violation of section 155.18 of the Insurance Code and the decision upholding the rates was contrary to the manifest weight of the evidence. The record discloses that emergency room physicians were assessed a 68.8% or 50.5% premium increase depending upon whether the physician was in Territory I or Territory II, respectively. The hearing officer found that the average rate increase for ISMIE’s insureds was 6.5%. One consultant to ISMIE recommended that rate increases for an individual class of physicians be limited to 30%, while another consultant recommended that the increase in premium rates that resulted from reclassification be limited to 40%. Our review of the record fails to disclose any evidence which would warrant such a large increase in insurance premiums for emergency room physicians, especially when the record indicates that the rate increase was so disproportionate when compared to the average rate increase. Accordingly, we agree with the trial court that the premium rate was excessive and in violation of section 155.18 of the Insurance Code and that the decision of the Director upholding the rate was contrary to the manifest weight of the evidence.

Pursuant to section 155.18 of the Insurance Code, a premium rate also may not be unfairly discriminatory. Unfair discrimination in the context of insurance law arises where similarly situated individuals are treated differently. (Bentley v. Allstate Insurance Co. (1971), 227 Ga. 708, 182 S.E.2d 770.) In the instant action, the trial court concluded that ISMIE classified all doctors according to whether or not surgery was performed and that emergency room doctors were included in the classification with surgeons although the doctors did not perform surgery. Additionally, the court found that all physicians, except emergency room physicians, were classified according to medical procedures which were performed. The record also reveals that a physician, except for an emergency room physician, could obtain a reduced premium rate by representing to ISMIE that certain medical procedures were excluded from the physician’s practice. The trial court determined that both ISMIE and the Department of Insurance found that the practice of medicine in an emergency room was the primary reason that the physicians received a higher rating, although ISMIE’s manual and its witnesses indicated that the practice of medicine in an emergency room was not a salient factor in the classification of emergency room physicians. We agree with the trial court that the classification of emergency room doctors which resulted in higher premium rates resulted in unfair discrimination against the physicians in violation of section 155.18 and that the decision of the Director upholding the rates was contrary to the manifest weight of the evidence.

Both ISMIE and the Attorney General on behalf of the Director of Insurance contend that the trial court erred in reversing the decision of the Director as it pertained to the assessment of costs against plaintiffs. ISMIE maintains that it was improper for the trial court to prohibit the Director from assessing costs against plaintiffs since the costs were assessed pursuant to a Department rule and since it was plaintiffs who initiated the proceedings before the Director. The Director argues that it was error for the trial court to prohibit the Director from ordering fees and costs to be assessed against either party because of the proceedings. Plaintiffs argue that the trial court properly reversed the assessment of fees and costs against plaintiffs and that, contrary to the Director’s position, the trial court’s order does not preclude the assessment of costs against ISMIE on remand to the Director.

Under the circumstances of this case, we find no error in the trial court’s reversal of the assessment of costs and fees against plaintiffs. Since plaintiffs have prevailed in their challenge to ISMIE’s premium rates, it would not be appropriate to permit costs to be charged to plaintiffs. We do not read the trial court’s order as an absolute prohibition against the assessment of fees and costs; rather, the order prohibits the Director from charging plaintiffs with fees and costs.

Accordingly, the judgment of the circuit court of Cook County is affirmed and remanded to the circuit court for further proceedings.

Judgment affirmed and remanded.

McGLOON and GOLDBERG, JJ., concur.

       Territory I consists of the counties of Cook, Du Page, Kane, Lake, Madison, McHenry, Peoria, Rock Island and St. Clair. Territory II covers the remainder of Illinois.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODOLFO CASTRO, Defendant-Appellant.
    First District (5th Division)
    No. 81—548
    Opinion filed September 24, 1982.

      Steven Clark and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin D. Sweeney, and Daniel E. Jordan, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a jury trial, defendant Rodolfo Castro was convicted of theft (Ill. Rev. Stat. 1975, ch. 38, par. 16 — 1(a)(1)) and sentenced to 18 months’ probation.

On appeal he contends that: (1) he was denied a fair trial by the prosecutor’s improper cross-examination concerning his use of an interpreter and ability to speak English; (2) the trial court erred in denying defendant’s IPI jury instruction on prior inconsistent statements and prior inconsistent conduct; (3) the theft count upon which he was convicted was fatally defective; (4) his right to a speedy trial was violated; and (5) his conviction for felony theft was improper where there was insufficient proof that the stolen snowblower was worth over $150.

The following pertinent evidence was adduced at trial.

John Andrews testified for the State that on June 25, 1980, he owned a storefront used for storing equipment at 1342 North Western Avenue in Chicago, Illinois. At approximately 2 a.m., a police officer came over to his residence, woke him, and informed him that his storefront had been burglarized. He accompanied the police to the storefront where he observed that the front door had been forced open and shattered, and the inside had been ransacked.

Andrews identified a snowblower and a bicycle recovered by the police as belonging to him. He testified that he had bought the snow-blower used for $300 although it would probably cost $600 new. He had used it for five years and it had a broken handle.

Officer Oscar Martinez testified for the State that he and his partner, Officer Jose Salazar, were patrolling southbound on Western Avenue on June 25, 1980, at about 1:45 a.m., when he saw three individuals run across Western Avenue carrying objects, including a snowblower and a bicycle. The officers proceeded to block defendant, who was holding the snowblower, with the squad car whereupon defendant let go of it and began to run away from them. Officer Salazar got out of the squad car and grabbed defendant about 10 feet from the car; however, Officer Martinez was unable to apprehend either of the other men.

Martinez further testified that shortly after his arrest, defendant stated that he was “helping one of the other individuals move some stuff,” while in custody at the 13th District police station. Upon cross-examination, Martinez stated that he did not include this statement in the police report.

He further testified in response to cross-examination:

“Q. You had occasion to speak to me yesterday in the hallway right over there, isn’t that correct?
A. Yes.
Q. And the State’s Attorney, Mr. Kopec, was there, at that time?
A. Yes.
Q. I asked you if Rodolfo Castro made any statements to you on the evening he was arrested?
A. Yes.
Q. You told me he didn’t, is that correct?
A. I told you I did not remember.”

Officer Jose Salazar testified for the State that he had caught the defendant 10 to 15 feet from the squad car, and when he asked the defendant what he was doing, defendant responded, “Nothing,” in English.

Defendant testified on his own behalf through an interpreter that he was 21 years old at the time of trial and had lived in Chicago for the past five or six years. He had come to the United States at the age of six or seven; had returned to Mexico for five years at one time; and currently was working as a waiter at the Knickerbocker Hotel in downtown Chicago. He stated that he spoke mostly Spanish at home although he spoke English at work, which he understood better than he could speak.

He further testified that on June 25, 1980, at 1:45 a.m., he was walking alone on Western Avenue toward a bar to buy some drinks to take home. He saw a machine in the middle of the street and was pulling it towards the sidewalk when the police arrived. At that time, he turned and saw “many guys” running behind him.

Although he was running a little due to traffic on Western Avenue, he had let go of the machine and was standing still when the police arrived. He further stated that he did not tell the police that he was helping a friend.

Upon cross-examination, the prosecutor questioned him regarding his ability to speak English instead of Spanish. Illustrative of this questioning was the following dialogue:

“Q. Well, if I ask you questions in English, can you answer [them] in English without using the interpreter ***?
A. Yeah, well, I can answer you, but I didn’t talk real good English.
Q. Will you try and answer my question. If you can’t, we will use the interpreter.
A. I feel better with the interpreter so that way I can say everything that I want to say.
OTHER PROSECUTOR: Judge, ask to continue in English and if the defendant has any problem, he has the assistance of the interpreter.
THE COURT: Yeah. I will let you question and if he doesn’t understand, he can have it repeated and be translated.
PUBLIC DEFENDER: Judge, I would object.
THE COURT: Objection overruled.
(Whereupon the [subsequent] answers by the defendant were answered in English.)”

On redirect examination, defendant said he preferred to return to Spanish testimony. During closing argument the prosecutor “asked the jury to remember” that defendant spoke Spanish all during trial but that it “became obvious” that he spoke English “probably as well as I speak if not better.”

The record further discloses that, subsequent to defendant’s arrest on June 26, 1980, a preliminary hearing was held on July 21, 1980, wherein he was charged by a one-count information with burglary. On November 11, 1980, defendant made his first demand for trial. Jury selection for trial commenced on February 3,1981.

On that day the court allowed the filing of an additional count against the defendant alleging theft of the snowblower, over the defendant’s objection. This second count did not state the name of the defendant as the accused, and was not verified or sworn to by the State’s Attorney’s office.

Defendant’s motion to dismiss the theft count, motion for a new trial, and motion in arrest of judgment were all subsequently denied.

Opinion

We first consider defendant’s contention that he was denied a fair trial by the prosecutor’s cross-examination concerning his use of an interpreter and ability to speak English.

We note that pursuant to statute (Ill. Rev. Stat. 1971, ch. 38, pars. 165 — 11, 165 — 12; and ch. 51, par. 47) an interpreter may be sworn to interpret when necessary, although the calling of an interpreter is normally within the discretion of the trial court. People v. Soldat (1965), 32 Ill. 2d 478, 481, 207 N.E.2d 449.

In the present case, the defendant was assisted by an interpreter throughout most of his testimony. We think that, although an interpreter was appointed, the record demonstrates that defendant was nonetheless sufficiently conversant with the English language to understand and make responses in English. Defendant used English understandingly a number of times in testifying and in his initial conversation with the Latino police officer at the time of his arrest.

While we are of the opinion that the prosecutor placed undue attention upon the issue of defendant’s ability to speak English, the record refutes defendant’s claim that he was deprived of a basic right, or was denied a fair trial thereby. There is no indication of record that defendant was either not personally understandable, comprehensible or intelligible (see People v. Bragg (1979), 68 Ill. App. 3d 622, 630, 386 N.E.2d 485), or was forced to answer questions which he did not understand.

The law in Illinois is that even where the trial judge has committed error, such error will not require reversal unless the defendant has been prejudiced or the outcome of the trial unduly influenced. Appellate court review is intended to seek out prejudicial error and is not intended to determine whether the record is totally devoid of error. People v. Scarpelli (1980), 82 Ill. App. 3d 689, 402 N.E.2d 915, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 340,101 S. Ct. 1357.

We therefore reject defendant’s argument that the prosecutor’s cross-examination of defendant in English was improper and prejudiced his right to a fair trial by allegedly forcing him to answer trick questions.

Defendant also claims that the trial court erred in refusing his tendered instruction regarding prior inconsistent statements and conduct pertaining to Officer Martinez’s testimony.

It is clear in Illinois that it is the responsibility of the trier of fact “to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. [Citations.] Where the evidence is merely conflicting a court of review will not substitute its judgment for that of the trier of fact. [Citations.]” People v. Searpelli (1980), 82 Ill. App. 3d 689, 698, 402 N.E.2d 915, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 340, 101 S. Ct. 1357.

With respect to prior inconsistent statements, a witness may be cross-examined as to prior statements which are repugnant or inconsistent with his testimony at trial, but the inconsistency must relate to material and not collateral or irrelevant matters. O’Brien v. Walker (1977), 49 Ill. App. 3d 940, 364 N.E.2d 533.

The test of whether the prior statement is sufficiently inconsistent to permit its utilization is that the “statement must have a reasonable tendency to discredit the direct testimony on a material matter.” (People v. Burgin (1979), 74 Ill. App. 3d 58, 73, 392 N.E.2d 251, citing People v. Curtis (1977), 48 Ill. App. 3d 375, 386, 362 N.E.2d 1319.) Materiality lies within the discretion of the trial court. People v. Svoboda (1979), 75 Ill. App. 3d 487, 394 N.E.2d 72.

The record of the instant case discloses that the officer’s testimony with respect to defendant’s purported statement that he was “helping one of the other persons move the stuff,” where he did not earlier remember or record such statement in the police report, was merely collateral to the issue of defendant’s guilt or innocence for the offense charged.

Since we are of the opinion that whether or not defendant uttered such a statement is patently immaterial, we find that the trial court properly ruled by refusing to give the tendered instruction on prior inconsistent statements and conduct.

Defendant next contends that the theft count upon which he was convicted was fatally defective in the following specifics: (1) it fails to state the name of the accused; (2) it is not signed or verified by the State’s Attorney’s office; and (3) it fails to set forth the nature and elements of the offense charged.

As to the latter contention, we note that the supreme court has specifically held that the element of knowledge can be charged “ ‘either in the language of the statute or in other appropriate words.’ People v. Shelton (1969), 42 Ill. 2d 490, 494, 248 N.E.2d 65.

Here, the count in issue charged that defendant “committed the offense of theft in that he exerted unauthorized control over the property (Toro snowblower) of the owner, Mr. John Andrews, intending to deprive [him] permanently of the use or benefit of the property, which was valued in excess of $150 in violation of chapter 38, section 16— 1(a)(1) Ill. Rev. Stat. ***.”

In People v. Wilson (1973), 10 Ill. App. 3d 48, 294 N.E.2d 1, we held that a theft charge which alleges that a defendant obtained unauthorized control of specific property with intent to deprive the owner permanently of its use and benefit is not rendered fatally defective for omission of the word “knowingly.”

In accordance with these principles, we find that the failure to include the word “knowingly” in count 2 charging theft does not render this charge fatally defective.

We are also not persuaded by defendant’s argument that count 2 was fatally defective because it was not verified by the State’s Attorney’s office and failed to state the name of the accused.

While the authority cited by defendant indicates that an amendment to an information which charges an offense separate and distinct from that charged in the original information must be re-verified (People v. Moore (1959), 21 Ill. App. 2d 9, 157 N.E.2d 94), we find the cases cited inapplicable to the case at bar where the defendant did not object to the lack of verification until after the defense had rested its case.

The supreme court has consistently held that a sworn or verified complaint is not a jurisdictional prerequisite to the prosecution of a criminal offense and may be waived by a plea of guilty or by proceeding to trial without objection. People v. Bradford (1975), 62 Ill. 2d 21, 338 N.E.2d 182; People v. Harding (1966), 34 Ill. 2d 475, 216 N.E.2d 147; People v. Billow (1941), 377 Ill. 236, 36 N.E.2d 339.

Here, an examination of the record shows that although defendant made several motions to dismiss count 2 prior to trial, he did not specifically object to the lack of verification until after proceeding to trial on all charges. Accordingly, we conclude that defendant has waived the verification issue for the purpose of this appeal.

Similarly, we do not find that the omission of defendant’s name on count 2 renders it fatally defective where the name of the accused was stated on the first count and where the second count for theft was added in open court.

It is the policy of our modern courts to disregard mere technical objections and require only that the indictment state the essential elements of the offense (People v. Ballard (1978), 65 Ill. App. 3d 831, 382 N.E.2d 800, cert. denied (1979), 444 U.S. 925, 62 L. Ed. 2d 180, 100 S. Ct. 262), and we do not find any showing that defendant was prejudiced by this omission.

Consequently, we conclude that the theft count upon which the defendant was convicted is not fatally defective under section 111 — 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111-3).

Defendant also urges us that his right to a speedy trial under section 103 — 5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103 — 5) was violated with respect to the theft count, which was filed over seven months after his arrest and over six months after the original information charging burglary was filed.

We are not persuaded by the cases cited by defendant which hold that trial must commence within 120 days from the date an accused is taken into custody, where, as here, the defendant was not in custody but was out on bond prior to trial.

The pertinent provision applicable to the instant case is, instead, section 103 — 5(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 103 — 5(b)), which provides: “(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant ***.” (Emphasis added.)

The record discloses that defendant made his first of three demands for trial on November 12, 1980, and that trial commenced on February 3, 1981, or 83 days after his first demand for trial had been made.

While the defendant persistently argues that the State waited over seven months before filing the theft count on the date that trial commenced on February 3, 1981, this does not bear upon the clear mandate of section 103 — 5(b) which requires that we direct our examination only to the time elapsed between defendant’s demand and subsequent trial.

We conclude, therefore, that the defendant’s right to a speedy trial was not violated.

We finally consider defendant’s contention that there was insufficient proof of the value of the snowblower to warrant a felony conviction. The owner of the snowblower in the case at bar testified that he had bought it used five years earlier for $300, although it probably cost $600 new, and that it had a broken handle.

To sustain a felony conviction for theft, rather than a misdemeanor, the value of the stolen property must be proven to be in excess of $150. Ill. Rev. Stat. 1975, ch. 38, par 16 — 1(e)(3).

As the court in People v. Brown (1976), 36 Ill. App. 3d 416, 421, 343 N.E.2d 700, stated: “The criterion used in determining value in theft cases is the fair cash market value at the time and place of the theft. [Citations.] Cost is not the standard, whether it be original cost or replacement cost. [Citations.]”

In the present case, the record discloses that the snowblower was used for five years subsequent to purchase and had a broken handle. Moreover, none of the questions propounded to the complainant related to fair cash market value, but instead concerned the actual price paid and speculation as to its retail value if purchased new five years earlier.

With these factors in mind, we are of the opinion that the evidence of value presented was not sufficient to support a conviction for felony theft.

We therefore reduce the degree of the offense for which defendant was convicted to theft of property not- exceeding $150 in value, pursuant to Supreme Court Rule 615(b)(3) (73 Ill. 2d R. 615 (b)(3)) and remand the cause to the circuit court of Cook County for resentencing.

Judgment of guilty affirmed; conviction reduced to theft of property not exceeding $150 in value; cause remanded for resentencing.

Affirmed in part; reversed in part; remanded for further proceedings.

SULLIVAN, P. J., and WILSON, J., concur.


author: JUSTICE O’CONNOR

text:
      In re MARRIAGE OF ARLENE WOJCICKI, Petitioner-Appellant, and ROBERT WOJCICKI, Respondent-Appellee.
    First District (1st Division)
    Nos. 81—0886, 81—0957, 81—1319 cons.
    Opinion filed September 27, 1982.

      Melvyn H. Berks, of Berks & Marcus, Ltd., of Des Plaines, for appellant.

      Philip S. Lieb, of Kirsh & Berman, Ltd., of Chicago (J. Scott Bonner, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioner, Arlene Wojcicki, filed a petition for dissolution of her marriage to respondent, Robert Wojcicki. Grounds for dissolution were proved up without contest. After a full hearing, the trial court determined the property rights of the parties in various items of personalty, realty and cash, barred both parties from receiving maintenance and held the parties responsible for their own attorney fees. Petitioner appeals from the court’s findings and orders with respect to all of the above, exclusive of the grounds for dissolution.

Robert and Arlene Wojcicki were married in August of 1975 and resided as husband and wife until August of 1979, at which time petitioner vacated the marital home. No children were born to the marriage. It was the second marriage for both of the parties, and each entered into it with substantial property.

Respondent was the sole owner of a residence in Schaumburg, Illinois, in which the parties resided during their marriage. Principal due on the then existing mortgage had been reduced to under $2,500. The stipulated value as of November 1978 of said residence was $123,000. Respondent also owned 120 acres of real estate in the Wisconsin Dells upon which he had constructed a shell of a residence, and an additional 20 acres which was divided into four lots, all of which were vacant in 1975. Shortly after the parties’ marriage, respondent transferred title to the above properties into joint tenancy with petitioner. In addition, respondent entered the marriage with over $10,000 in savings, which was deposited in the parties’ joint account.

Petitioner owned free and clear a residence in Des Plaines, Illinois, valued at approximately $69,000 and various items of personal property.

During the pendency of the marriage, certain improvements were made to the real estate and the parties’ assets were augmented by both sales and rental income. Specifically, a garage was constructed on the 120 acres of Wisconsin property, financed in part with funds from the parties’ joint bank account and mortgaged in part. The 20-acre tract of Wisconsin property was sold as four lots in 1977 for cash and on contract. Petitioner received rental income of $395 per month from her Des Plaines residence up until 1977, when said residence was sold, realizing $65,000 after expenses.

Apart from $5,000 which petitioner used to repay a personal loan, it is undisputed that all monies received from the above properties were placed in one or another of the parties’ joint bank accounts, as were salary checks of both parties. Similarly, all taxes and mortgage payments on the properties were paid from a joint account.

Other property acquired during the marriage included $18,500 which petitioner had received as settlement for a personal injury claim, a truck and van purchased for use in respondent’s business and a $2,821 tax refund. Each party also owned a pension fund of approximately equal value. In addition, petitioner purchased a 1980 Plymouth automobile during the pendency of the dissolution proceedings.

After a full hearing, the trial court made specific findings and ordered the following distribution of property, to which petitioner objects: The court found the Schaumburg residence and the Wisconsin properties to be nonmarital, awarding same to respondent. The proceeds from the sale of petitioner’s residence were also held nonmarital and awarded exclusively to petitioner. The parties each received their interests in their respective pension funds, which were marital property to the extent of contributions made during the marriage. Both the van and the truck (having over 90,000 miles and being of uncertain value) were found to be marital and awarded to respondent. Petitioner was awarded the Plymouth automobile, valued at $5,000, to be credited against her interest in the parties’ marital property. Remaining marital property included the tax refund, which had previously been applied to cover respondent’s prospective liability, and the proceeds from the personal injury settlement. Petitioner was awarded the $69,000 to $70,000 which had been in her constructive possession at the time of hearing (these funds representing the remaining proceeds from the sale of her home and the personal injury settlement) and an additional $5,000 to be paid by respondent in monthly installments without interest.

Petitioner first argues that the classifying of the Schaumburg and Wisconsin properties as nonmarital and awarding same to respondent was improper, and relies on the theory of transmutation set forth in the recent case of In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239. While the court in Smith did recognize a “legislative preference” for classifying property as marital under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.), it also recognized the legislative intent to preserve the character of nonmarital property where the actions of the parties have not created ambiguity in that regard. (86 Ill. 2d 518, 530.) The Smith court held that where, as here, a spouse owning separate nonmarital property performs the affirmative act of either transferring title into a form of joint ownership or augmenting the nonmarital property by commingling it with marital property, such act creates the "rebuttable presumption” of that party’s intention to change the character of the property to marital. Thus, transmutation is not absolute and nonmarital property may still retain its character despite a contribution of marital funds. (86 Ill. 2d 518, 531.) In another recent decision, In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635, the court clearly stated that the Illinois Marriage and Dissolution of Marriage Act does not purport to change the law regarding interspousal transfers of property owned individually, nor does the Act indicate any dissatisfaction with prior cases in which the intention of a spouse conveying property was ascertained. (85 Ill. 2d 217, 223.) In dissolution proceedings, where the subject matter is property acquired prior to the marriage, the controlling presumption will be the common law presumption of gift which the “donor” spouse may rebut with “clear, convincing and unmistakable evidence.” In re Marriage of Severns (1981), 93 Ill. App. 3d 122, 126, 416 N.E.2d 1235.

In the instant case, the trial court heard conflicting testimony with regard to respondent’s intentions at the time he transferred the property into joint tenancy and found respondent’s testimony to be the more credible. Respondent had emigrated from Poland and had limited education. His first wife died after a lengthy marriage, and he testified that he had encountered difficulties succeeding to title in the Schaumburg and Wisconsin properties upon her death. His motivation at the time of transferring title, and that which he conveyed to the attorneys preparing the documents, was to insulate himself and petitioner from similar difficulties in the event of the death of one or the other.

In contrast, petitioner denied respondent’s stated intent, although she admitted that respondent had indicated the same to the attorneys involved. It was, and still is, petitioner’s contention that respondent intended to convey a present interest in the properties to her by transferring title. Interestingly, petitioner does not assert a similar intent on her part when she commingled the proceeds from the sale of her residence in joint marital accounts, nor does she contest the trial court’s finding that said proceeds were her sole nonmarital property.

It is the trial court’s function to resolve conflicting testimony by assessing the credibility of witnesses and the weight to be accorded their testimony, and the court’s findings will not be disturbed unless against the manifest weight of the evidence. (Stallings v. Stallings (1979), 75 Ill. App. 3d 96, 100, 393 N.E.2d 1065.) Given the fact that the parties here were the only witnesses to testify, the trial court’s determination as to credibility was central to its adjudication of the issue. The record is replete with instances of evasive and inconsistent testimony by petitioner; the trial court, and even petitioner’s own attorney, were forced to admonish her for being unresponsive. Under the circumstances, we do not find the court’s decision to accept respondent’s testimony over that of petitioner an abuse of discretion.

In addition to the parties’ testimony, several factors have been deemed significant where a spouse who has paid the purchase price for property seeks to overcome the common law presumption of a gift. Among those factors are the making of improvements, payment of taxes and the mortgage debt, occupancy of the premises as a home and place of business, and the exercise of control and management of the property. Coates v. Coates (1978), 64 Ill. App. 3d 914, 917, 381, N.E.2d 1200; Scanlon v. Scanlon (1955), 6 Ill. 2d 224, 231, 127 N.E.2d 435.

Not only did respondent here pay the purchase price for the properties in question, but, as the trial court correctly found, his contributions, both in money and physical labor, to the preservation and improvement of the properties far outweighed the contributions to be credited to petitioner during the parties’ brief marriage. The record shows that for a period of 21 years prior to the parties’ marriage, respondent, along with his first wife and children, made substantial improvements to the Wisconsin property, which included the clearing of approximately 200 trees and stumps in order to open a roadway which respondent later built, the digging of a culvert to carry away drainage, the removal of approximately 1,000 dead trees from the acreage and the planting of over 6,000 trees on the property. Respondent also made habitable a cabin on the property which was subsequently destroyed in a storm. In 1968, at a cost of $8,000 a new foundation and shell of a home were built on the property. During this period respondent paid all real estate taxes and maintenance costs. The only significant improvement to the Wisconsin property during respondent’s marriage to petitioner was the construction of a garage, which was financed for the most part with respondent’s premarital savings and funds realized from the sale of respondent’s other properties. The Schaumburg property was also acquired some 15 years before the parties’ marriage and improved with respondent’s own funds. The home had served as the primary residence for respondent and his family for more than 11 years prior to his marriage to petitioner. Respondent testified that he exercised exclusive control over said properties during his marriage to petitioner.

We note also that in the majority of the cases cited by petitioner in which the gift presumption was not overcome the subject property was acquired after the parties’ marriage and contributions by the “donee” spouse were significantly greater than in the instant case. (See, i.e., In re Marriage of Spina (1939), 372 Ill. 50, 22 N.E.2d 687; In re Marriage of Kratzer (1971), 130 Ill. App. 2d 762, 266 N.E.2d 419.) In addition, some of those decisions relied heavily on the fact that, while the subject property had been acquired in (or transferred into) joint tenancy, other nonmarital property was kept separate by the parties, evidencing the gift intent with regard to the commingled assets only. (See In re Marriage of Rogers (1981), 85 Ill. 2d 217, 223.) In contrast, the parties here placed all of their property, including the proceeds from the sale of petitioner’s house, in joint tenancy. Under these circumstances, we do not find the trial court’s holding that no gift was intended was against the manifest weight of the evidence.

Petitioner next contends that the trial court’s distribution of marital property was not in “just proportions” as required by statute. (Ill. Rev. Stat. 1977, ch. 40, par. 503(c).) We note that the trial court specifically stated that it considered its award of the Schaumburg and Wisconsin properties to respondent to be equitable in light of the record before it and the criteria of section 503 regardless of whether the properties were classified as marital or nonmarital.

Section 503 authorizes the trial court to divide marital property in “just proportions” after consideration of “all relevant factors” including 10 factors specifically set forth. The statutory factors relevant to our determination in this case include: the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value of the marital and nonmarital property, including the contribution of a spouse as homemaker or to the family unit; the value of the property set apart to each spouse; the duration of the marriage; the relevant economic circumstances of each spouse when the division of property is to become effective; the age, health, station, occupation, amount and source of income, vocational skills, employability, estate, liabilities and needs of each of the parties; whether the apportionment is in lieu of or in addition to maintenance; and the reasonable opportunity of each spouse for future acquisition of capital assets and income.

We have carefully reviewed the record and find that the trial court considered each of the foregoing criteria in its property division. The relative economic circumstances of the parties, their age, health, stage, occupation, vocational skills, liabilities and needs were found to be roughly equivalent. At the time of trial, petitioner was 44 years old and employed as an order clerk. Her net monthly income was $608.50, which was the most she had earned from any job. She was employed during most of the parties’ marriage and had been self-supporting prior thereto. Respondent was 52 years old and worked as a self-employed truck driver. According to his testimony, he earned approximately $520 per month net after expenses. While petitioner gave conflicting testimony with respect to respondent’s earnings, the trial court chose to accept respondent’s testimony and preferred exhibits. In light of the court’s previous finding with respect to the parties’ credibility, we cannot say that such was an abuse of discretion.

The marriage was short-lived. The parties resided together as husband and wife for four years and judgment of dissolution was entered in March of 1981.

Given these findings, the trial court could properly accord greater weight to the parties’ respective contributions to the acquisition, preservation and appreciation of the subject property. The law is clear that an equal distribution is not mandated (In re Marriage of Hyland (1981), 95 Ill. App. 3d 31, 34-35, 419 N.E.2d 662; In re Marriage of Miller (1980), 84 Ill. App. 3d 931, 935, 405 N.E.2d 1099, appeal denied (1980), 81 Ill. 2d 593), and the distribution of marital property rests within the sound discretion of the trial court, the standard to be applied being whether the court, in the exercise of that discretion, acted arbitrarily without the employment of conscientious judgment. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126.

Based on our review of the record and the surrounding circumstances, we affirm the trial court’s property distribution. Similarly, we reject petitioner’s contentions that the trial court abused its discretion in denying her maintenance and in granting to her the items of personalty contained in respondent’s proffered exhibit rather than in petitioner’s. We also find no merit in petitioner’s claim that the court incorrectly determined the amount due her as a result of temporary orders entered during the dissolution proceedings.

Lastly, petitioner contends that the court improperly denied her request for attorney fees. Section 508 of the Act provides that the court may order either spouse to pay attorney' fees incurred by the other spouse after it considers the financial resources of the parties. (Ill. Rev. Stat. 1977, ch. 40, par. 508.) In the present case, the parties’ earnings were substantially equal. Petitioner received a substantial cash award, while respondent was left with relatively no liquid assets and was, in fact, required to pay petitioner the sum of $5,000 in monthly installments of $300 each. We agree with the court’s specific finding that petitioner had not shown an inability to pay her own attorney fees.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

On June 22, 1982, this court stayed the judgment order insofar as it requires petitioner to execute a quitclaim deed of her interest in the Wisconsin property to respondent. That stay is hereby dissolved.

Affirmed.

CAMPBELL, P. J., and GOLDBERG, J., concur.