text:
      In re MARRIAGE OF JO ANN REDMER, a/k/a Jo Ann Beckner, Petitioner-Appellant, and JACK LEE REDMER, Respondent-Appellee.
    Second District
    No. 82—204
    Opinion filed December 10, 1982.

      Jonathan L. Carbary, of Robert A. Chapski, Ltd., of Elgin, for appellant.
    James M. Bolz, of McCuaig, Haeger & Bolz, of West Dundee, for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Jo Ann Redmer, now Jo Ann Beckner (wife), appeals from an order granting a petition by her former husband, Jack L. Redmer (husband), to amend the judgment of dissolution of the marriage of the parties.

The judgment of dissolution was entered on January 25, 1979. It provided, inter alia, that the wife have custody of the minor child of the parties, who was then 11 years of age, and the husband pay $55 each week as child support. Maintenance was denied to both parties. The judgment also determined that the parties had an equal interest in their marital home and gave temporary possession of it to the husband under certain terms and conditions: that each party had an option to purchase the other’s interest therein for one-half of its appraised value of $165,000; that in the event neither party exercised the option within a specified time, the property was to be listed for sale and the net proceeds of sale divided equally between them; that each party was to be responsible for one-half of accruing taxes and the husband responsible for mortgage and utility payments and maintenance of the property while he was in possession. Neither party, however, exercised their option to purchase the home and initial attempts to sell it were not successful; the husband remained in possession.

On May 7, 1981, more than two years after entry of the judgment of dissolution, the husband filed a petition in which he sought permanent custody of the minor child and, also, that the judgment be amended to permit the husband and the child to have exclusive possession of the former marital home until such time as the child becomes emancipated. The petition requested that on emancipation of the child the property be then sold and the proceeds divided equally between the parties.

The wife thereupon petitioned the court to enforce the terms of the judgment by ordering the immediate sale of the property and division of the proceeds. She also filed a motion to strike the husband’s petition on the grounds it failed to allege any jurisdictional basis upon which the trial court could then amend or modify the property provisions of the judgment.

The trial court denied the wife’s motion to strike and, after a hearing, transferred custody of the child to the husband without objection by the wife. On February 8, 1982, after further hearing, the court denied the wife’s petition to sell the property and entered an order amending the 1979 judgment by granting exclusive possession of the property to the husband until such time as the child becomes emancipated when it is to be sold and the net proceeds equally divided between the parties. The wife appeals.

The sole question presented by this appeal is whether the circuit court had subject matter jurisdiction in 1982 to amend that portion of the 1979 judgment which distributed marital property between the parties. The wife does not contest the change of custody of the child nor was she directed in the order to contribute to the child’s support.

The wife contends that her property rights in the former marital home created by the judgment of dissolution had become vested and the trial court lacked jurisdiction to modify it after the judgment became final. The husband asserts that the amendment related to child support, rather than a disposition of property rights, and the court was thus authorized to so modify the judgment.

Generally, the subject matter jurisdiction of a court is lost and its final decree in a civil case is a conclusive adjudication after 30 days from its entry. (Ill. Rev. Stat. 1981, ch. 110, par. 50(5); Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 53, 398 N.E.2d 5, 8.) In a dissolution proceeding, however, the court retains jurisdiction for the purpose of enforcing its judgments. (People ex rel. Kazubowski v. Ray (1971), 48 Ill. 2d 413, 417, 272 N.E.2d 225, 227, cert. denied (1971), 404 U.S. 818, 30 L. Ed. 2d 118, 92 S. Ct. 78.) Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)) provides for the “Modification and Termination of Provisions for Maintenance, Support and Property Disposition” and states, in relevant part:

“[T]he provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to the filing of the motion for modification with due notice by the moving party and only upon a showing of a substantial change in circumstances. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” (Emphasis added.)

The trial court considered that the last sentence of section 510(a) was a jurisdictional grant authorizing it to amend the terms of the prior judgment if the special circumstances of the case so required. Section 510(a), however, clearly bars revocation or modification of the terms of a property disposition in a judgment unless “the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” The husband did not request the relief sought by his petition within 30 days from the entry of the final judgment of dissolution (Ill. Rev. Stat. 1979, ch. 110, pars. 68.1, 68.3) and it was not brought within the two-year period during which post-judgment relief would lie. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) Nor did the petition allege facts which, if timely presented for post-judgment relief, might have authorized the court to reopen the judgment in order to vacate or modify its property terms. See, e.g., In re Marriage of Pearson (1981), 101 Ill. App. 3d 422, 425, 428 N.E.2d 578, 581; Thompson v. Thompson (1980), 91 Ill. App. 3d 943, 945, 415 N.E.2d 28, 29-30; In re Marriage of Bower (1980), 87 Ill. App. 3d 324, 326, 409 N.E.2d 75, 77; In re Marriage of Beck (1980), 83 Ill. App. 3d 976, 980, 404 N.E.2d 972, 974.

We conclude that section 510(a) did not grant the trial court the broad authority upon which it relied to vary the terms of the initial judgment in this case.

Property rights created by a judgment of divorce become vested when the judgment is final and a trial court lacks general jurisdiction to modify an order affecting those rights. (Lamp v. Lamp (1979), 73 Ill. App. 3d 713, 392 N.E.2d 349, aff’d (1980), 81 Ill. 2d 364, 410 N.E.2d 31; In re Marriage of Kekstadt (1980), 85 Ill. App. 3d 952, 956, 407 N.E.2d 746, 749; Kelly v. Kelly (1982), 105 Ill. App. 3d 136, 139, 434 N.E.2d 55, 58, appeal denied (1982), 91 Ill. 2d 570; see Waggoner v. Waggoner (1979), 78 Ill. 2d 50, 398 N.E.2d 5; Jamal v. Jamal (1968), 98 Ill. App. 2d 180, 240 N.E.2d 246.) As earlier noted, section 510(a) (Ill. Rev. Stat. 1981, ch. 40, par. 510(a)) permits modification of the property disposition in such a judgment only under the conditions which would permit reopening of a judgment as in other civil cases.

Child support directed to be paid by a party, however, is subject to modification upon showing of a substantial change in circumstances. Ill. Rev. Stat. 1979, ch. 40, par. 510(a); In re Support of Burks (1981), 100 Ill. App. 3d 700, 704, 427 N.E.2d 353, 355-56; Lamp v. Lamp (1980), 81 Ill. 2d 364, 369, 410 N.E.2d 31, 37.

The dispositive question presented by this appeal is whether the husband’s petition to “amend” the judgment, as requested, sought a modification of the judgment’s child support provisions or was, instead, directed towards a revision of the property rights of the parties as determined by that judgment.

We note first that the husband’s petition did not ask to modify the child support provisions of the judgment, nor does the record disclose that a hearing was held at which evidence was presented directed to the justification for a child support order under section 505 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 505). The order entered by the trial court was also not directed to the question of child support; it simply denied the wife’s petition to sell the property, as ordered in the initial judgment, and amended the provision of the judgment that the property be sold to provide for its continued possession by the husband until the minor child is emancipated. There is nothing in the record to suggest that the disputed order was considered by either party or the trial court to be a form of child support.

It also seems apparent that the original judgment, as directed to the property in issue, was not considered to be a part of the child support obligations of the parties. Their respective interests in the property were fixed in that judgment and its division between them determined. Child support was separately provided for by the provision that the wife have custody and the husband make weekly payments for that purpose.

The husband relies primarily upon Lamp v. Lamp (1980), 81 Ill. 2d 364, 410 N.E.2d 31, and Pope v. Pope (1972), 7 Ill. App. 3d 935, 289 N.E.2d 9, to sustain his argument that the award of possession of the home to him may be now considered as a child support contribution of the wife, thus permitting the modification of that aspect of the initial judgment. However, Lamp and Pope are readily distinguishable. In each of those cases the original judgment had set aside the use of the marital home for the support of the parties’ minor children. The ownership interests in the property, also granted to the parties in the judgment, were there conditioned upon its temporary possession by the custodial parent as a home for the children, a form of child support. (See Lamp v. Lamp (1980), 81 Ill. 2d 364, 371-72, 410 N.E.2d 31, 34; Pope v. Pope (1972), 7 Ill. App. 3d 935, 937, 289 N.E.2d 9, 11.) In such circumstances the property interests of the parents clearly would not vest until such time as the home was no longer subject to their child support obligations. In the present case, the property interests of these parties was not so conditioned in the judgment.

The conclusion urged by the husband in the present case would be especially inappropriate as the trial court made no finding in either the initial judgment or its amendment that the award of temporary possession of the former marital home was a provision for child support or necessary for that purpose.

We conclude that the award of their interests in the home to the parties in the 1979 judgment was a property disposition and not subject to modification as a form of child support under the Illinois Marriage and Dissolution of Marriage Act. The orders of the trial court denying the wife’s petition to enforce the initial judgment and amending it in response to the husband’s petition will be reversed and the cause remanded with directions that the wife’s petition be granted.

Reversed and remanded with directions.

REINHARD and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE SEIDENFELD

license: Public Domain

text:
    LeROY WINSTEAD et al., Plaintiffs-Appellants, v. THE COUNTY OF LAKE et al., Defendants-Appellees.
    Second District
    No. 82—201
    Opinion filed December 28, 1982.
    Benedict J. Ori and Alex Rafferty, both of Waukegan, and William Marlatt, of Lake Forest, for appellants.
    Fred. L. Foreman, State’s Attorney, of Waukegan (Gary Neddenriep, Assistant State’s Attorney, and Miles J. Zaremski, Special Assistant State’s Attorney, of counsel), for appellees.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Nine jail officers who were former employees of Lake County sought a declaratory judgment that the county’s board of supervisors lacked power to remove them from merit personnel status. The county, its board of supervisors and the sheriff of Lake County were made defendants, and thereafter their motion for summary judgment was granted.

Plaintiffs appeal. The motion of the Lake County merit commission, also made a party defendant, to be dismissed from the appeal has been taken with the case.

The facts are undisputed. On September 14, 1965, the Lake County Board approved and passed an ordinance creating the Lake County sheriff’s office merit commission. The authority of the merit commission extended only to officers and deputies of the sheriff’s department. The ordinance in question was enacted pursuant to a statute (Ill. Rev. Stat. 1965, ch. 34, par. 859.1) which stated, in part, that the county “may, by ordinance, provide” that all full-time sheriff’s deputies, other than special deputies, were to be appointed, promoted, disciplined, and discharged in accordance with recognized merit principles of public employment. In 1975, the legislature amended the statute to include “all deputies other than special deputies, and all jail officers” employed on a full-time basis in the office of the sheriff. (Ill. Rev. Stat. 1975, ch. 34, par. 859.1.) Shortly thereafter, on May 11, 1976, the county board enacted a resolution including all jail officers in the sheriff’s department under the jurisdiction of the merit commission.

Pursuant to the above resolution, the merit commission certified the plaintiffs as merit personnel. On March 13, 1979, the county board, by resolution, removed all jail officers from the jurisdiction of the merit commission. Subsequently, on September 3, 1980, the sheriff of Lake County, Thomas Brown, terminated the employment of the plaintiffs. Thereafter, the plaintiffs requested that the merit commission conduct a hearing pursuant to its rules and regulations to determine the propriety of the sheriff’s action in discharging the jail officers. On November 20, 1980, the merit commission refused to hear the plaintiffs’ challenge to their discharges on the ground that once the county board had removed the jailers from the control or jurisdiction of the commission, the administrative agency was powerless to hold a hearing into the correctness of the discharges. The plaintiffs thereafter filed grievances with the Lake County grievance committee pursuant to the terms of 'the Lake County personnel manual which permits a post-discharge hearing. This proceeding is pending subject to disposition of this litigation.

On November 21, 1980, five of the plaintiffs filed a six-count complaint for declaratory judgment and other relief. Later four other discharged jailers were allowed to intervene as plaintiffs. The complaint requested a declaration that the county board’s resolution of March 13, 1979, was void, unconstitutional, and ineffective; that the merit commission be ordered to accept and act upon the plaintiffs’ requests for a hearing; that the sheriff be ordered to reinstate the plaintiffs; and that they be awarded back pay from the date of termination. All defendants, except the merit commission, filed a joint motion for summary judgment, while the plaintiffs made a motion for judgment on the pleadings. Both motions were denied.

The same defendants who made the original motion for summary judgment filed a motion to reconsider the denial of their earlier motion for summary judgment. On February 8, 1982, the trial court entered an order granting the defendants’ motion for summary judgment. In its order, the court concluded that because the county board had the authority to totally abolish the merit commission, it accordingly had the less intrusive power to withdraw the class of jail officers from the jurisdiction of the merit commission. The court also found that there was no genuine issue of material fact presented.

The plaintiffs contend that the county board does not have the statutory authority to remove jail officers, as a class, from the jurisdiction of the merit commission. They concede that the statute is permissive in the sense that, by using the word “may” a county is allowed, rather than obligated, to establish a merit commission. They argue, however, that once established, the use of the conjunction “and” links the regular deputies and the jail officers together, thus mandating that the County may not remove one class, jail officers, from the control of the merit commission without removing the other class, the regular deputies.

The statutory language is the most reliable indication of the intent of the drafters; and where that intent can be gleaned from the language of the statute, it will be given effect without resorting to extrinsic aids for construction. People v. Robinson (1982), 89 Ill. 2d 469, 475-76.

When the statutory section in question is read in its entirety, it is apparent that the legislature intended that the county board could establish a merit commission by ordinance if it so desired, but was not required to do so. The statute, as amended in 1975 to permit the inclusion of jail officers, simply adds an additional category of employees who may be placed under the jurisdiction of the merit commission. The legislative intent was that the county board may provide, by ordinance, for the placement of all deputies within the control of the commission and, also, may provide that all jail officers be included within the commission’s control. The conjunction “and” does not indicate a contrary intent.

A recent opinion of the Attorney General concluded that jailers employed on a full-time basis in the office of the sheriff need not be included in the merit system which the county board established pursuant to section 58.1. (1979 Ill. Att’y Gen. Op. 6.) Implicit in that opinion is the rejection of the argument which the plaintiffs raise here, that is, that the effect of the use of the conjunction “and” is to link deputies other than special deputies with jail officers and to require that both groups be viewed as a single class for purposes of inclusion within or exclusion from the control of the merit commission. The plaintiffs correctly note that, in the absence of any case law, the courts accord the opinions of the Attorney General great weight where they are well-reasoned and persuasive, although such opinions are not binding on the judiciary. (City of Springfield v. Allphin (1978), 74 Ill. 2d 117, 130-31.) In the present case, we consider the Attorney General’s opinion well-reasoned and persuasive.

We find additional support for the same conclusion regarding the legislative intent behind section 58.1 in section 7 of the Sheriff’s Merit System Act (Ill. Rev. Stat. 1981, ch. 125, par. 157), which replaced section 58.1. Under section 7 of the Sheriff’s Merit System Act, all full-time deputy sheriffs “shall” be included under the jurisdiction of the merit commission, whereas the county board “may” provide that other positions, such as jail officers, shall be placed under the control of the merit commission. Although this statute became law after the controversy in question and, hence, does not govern the present case, it affords some legislative indication that the county board’s decision, under former section 58.1, to include deputies within the control of the commission could be accomplished without also requiring that the jail officers be placed under the commission.

Section 58.1 is a permissive statute meant to give a county latitude in deciding on the scope of its merit system. We do not believe that the legislature intended to force counties to choose between placing both regular deputies and jail officers under merit protection or placing neither under such protection. Requiring such an all-or-nothing choice could interfere with this policy of free choice in the adoption of merit employment. A county wishing to withdraw one class of employees from merit employment because it is experiencing difficulty in providing a sufficient number of certified candidates for that class (or for any other reason) would have to abolish its merit system altogether; a county wishing to place one class of employees under merit employment might be discouraged by a requirement that the other class also be included.

We cannot assume that the legislature intended that the evils of patronage must be prevented if the adoption of the system is made permissive and, thus, the legislature has not stated an underlying policy against patronage. Civil service or “merit” status is not a vested right and is subject to change by the legislature. (Grobsmith v. Kempiners (1981), 88 Ill. 2d 399, 404.) We conclude that because the county board has the power to abolish the merit system, or to adopt a merit system covering regular deputies but not jail officers, it follows that it has the power to retain merit commission jurisdiction over regular deputies while withdrawing jail officers from the system. In our view, the statute expresses no policy against removing a class of employees who are not required to be included in merit employment in the first instance.

The motion of the merit commission to be dismissed is allowed. The judgment of the circuit court of Lake County is affirmed.

Affirmed.

LINDBERG and HOPE, JJ., concur.

      Effective January 1, 1981, section 58.1 (Ill. Rev. Stat. 1979, eh. 34, par. 859.1) has been repealed and replaced by section 7 of the Sheriff’s Merit System Act which now provides that all full-time deputy sheriffs “shall be under the jurisdiction of this Act and the county board may provide that other positions, including jail officers *** shall be under the jurisdiction of the Commission.” (Ill. Rev. Stat. 1981, ch. 125, par. 157.) The new statute is not itself applicable in this case.


author: JUSTICE NASH

text:
    BETTYE NOGA, Petitioner-Appellant, v. JOANNE NOGA, a/k/a Joanne Schopp, Respondent-Appellee.
    Second District
    No. 82—74
    Opinion filed December 28, 1982.
    Denis J. McKeown, of Rawles, McKeown & LoMonaco, Ltd., of Waukegan, for appellant.
    No appearance for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Petitioner, Bettye Noga, appeals from an order of the trial court which dismissed her petition for visitation rights with her grandchildren on the grounds the court lacked jurisdiction.

From the record it appears that petitioner’s son, Joseph Noga, and Joanne Noga, now Joanne Schopp, were married in 1970 in Lake County, Illinois, and had two children. They were thereafter divorced in Lake County in 1976; the decree provided that Joanne have custody of the children and Joseph the right of reasonable visitation with them and to pay $50 each week as child support. In 1978, Joanne married her present husband, Patrick Schopp, and in January 1979, they and the two children moved from Illinois to the State of Arkansas; Joanne did not request leave to remove the children from this State as is required by section 609 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 609).

In February 1980, Joanne and Patrick Schopp initiated proceedings in Arkansas in which he sought to adopt the two minor children. The children’s natural father, Joseph Noga, appeared in the Arkansas court and contested the adoptions. On May 8, 1980, however, the Chancery Court in Arkansas terminated Joseph’s parental rights and entered a judgment of adoption. Joseph Noga was in the process of appealing the adoption judgment to a higher Arkansas court at the time of the proceedings below.

In September 1981, Joseph’s mother, Bettye Noga, filed a petition for visitation with her grandchildren in the circuit court of Lake County. The children’s mother, Joanne Schopp, specially appeared and moved to dismiss the petition on the jurisdictional grounds the children were not Illinois residents and that the trial court must give full faith and credit to the Arkansas judgment terminating Joseph Noga’s parental rights. After a hearing the trial court dismissed the petition for visitation for lack of jurisdiction.

In her appeal the children’s grandmother, Bettye Noga, contends the Illinois court has jurisdiction to grant visitation with her grandchildren pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 607(b)). She also asserts that the judgment of adoption of the children, which terminated Joseph Noga’s parental rights, does not affect her visitation rights as a grandparent.

Joanne Schopp has not responded with a brief in this court; however, we will consider the appeal under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

We note initially that as Bettye Noga’s petition for visitation rights was filed after October 1, 1977, the provisions of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1979, ch. 40, par. 101 et seq.) are applicable. (See Ill. Rev. Stat. 1979, ch. 40, par. 801(a), (c); In re Custody of Ehr (1979), 77 Ill. App. 3d 540, 542, 396 N.E.2d 87, 89.) Under section 601(a) of the IMDMA, an Illinois court has jurisdiction to make child custody determinations as is provided in section 4 of the Uniform Child Custody Jurisdiction Act (UCCJA) (Ill. Rev. Stat. 1979, ch. 40, par. 2101 et seq.). (Ill. Rev. Stat. 1979, ch. 40, par. 601(a).) We consider that a petition for visitation rights is a child custody determination for the purposes of the UCCJA (see Ill. Rev. Stat. 1979, ch. 40, par. 2103.02) and, since the present visitation proceeding was filed after September 11, 1979, the provisions of the UCCJA are applicable. See Ill. Ann. Stat., ch. ,40, par. 2101, Historical Note, at 517 (Smith-Hurd 1980).

Under prior law, a court which had entered a decree for divorce retained continuing jurisdiction over the parties with respect to child custody and visitation even though one of the parties may have moved out of the court’s geographical jurisdiction. (Crawley v. Bauchens (1973), 13 Ill. App. 3d 791, 794-95, 300 N.E.2d 603, 606, aff'd (1974), 57 Ill. 2d 360, 312 N.E.2d 236; McClellan v. McClellan (1970), 125 Ill. App. 2d 477, 481-82, 261 N.E.2d 216, 218.) However, under the UC-CJA, the trial court may lose such jurisdiction unless it continues to meet certain jurisdictional criteria, regardless of whether it entered the original decree or specifically retained jurisdiction for enforcement of the decree. (Siegel v. Siegel (1981), 84 Ill. 2d 212, 218, 417 N.E.2d 1312, 1318-19; In re Custody of Ehr (1979), 77 Ill. App. 3d 540, 542-43, 396 N.E.2d 87, 89-90.) In the context of the UCCJA, “jurisdiction” refers not to the due process limits of potential subject matter or personal jurisdiction (International Shoe Co. v. Washington (1945), 326 U.S. 310, 90 L. Ed. 95, 66 S.Ct. 154), but rather to the legislature’s discretionary limitation upon the exercise of existing jurisdiction. Siegel v. Siegel (1981), 84 Ill. 2d 212, 221, 417 N.E.2d 1312, 1316.

The criteria to be considered in determining whether a continuing jurisdiction has been retained by the trial court are set forth in section 4 of the UCCJA, which provides:

“(a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:
1. this State
(i) is the home state of the child at the time of commencement of the proceeding, or
(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
2. it is in the best interest of the child that a court of this State assume jurisdiction because
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and
(ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
3. the child is physically present in this State and
(i) the child has been abandoned or
(ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
4. (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs
1., 2., or 3., or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and
(ii) it is in the best interest of the child that this court assume jurisdiction.
(b) Except under paragraphs 3. and 4. of subsection (a), physical presence in this State of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.” Ill. Rev. Stat. 1979, ch. 40, par. 2104.

However, even where the requirements of section 4 of the UCCJA are met and the court has jurisdiction to make a child custody determination, it may decline to exercise it if it finds that court to be an inconvenient forum for the determination, under the circumstances of the case, and that a court of another State is a more appropriate forum. (Ill. Rev. Stat. 1979, ch. 40, par. 2108; Flesner v. Houser (1982), 104 Ill. App. 3d 904, 905-06, 433 N.E.2d 720, 721.) Section 8 of the UCCJA provides, in pertinent part:

“(c) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
1. if another state is or recently was the child’s home state;
2. if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
3. if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
4. if the parties have agreed on another forum which is no less appropriate; and
5. if the exercise of jurisdiction by a court of this State would contravene any of the purposes stated in Section 2 of this Act.” Ill. Rev. Stat. 1979, ch. 40, par. 2108.

Section 7 of the UCCJA (Ill. Rev. Stat. 1979, ch. 40, par. 2107) would also necessarily be considered by the trial court in determining whether it could properly exercise jurisdiction of the question of grandparental visitation with these children. It provides that an Illinois court shall not exercise its jurisdiction if a proceeding concerning the custody of the children was pending in a court of another State. (See Weimer v. Weimer (1980), 82 Ill. App. 3d 290, 291-92, 402 N.E.2d 706, 708.) We note that the State of Arkansas had also adopted the UCCJA prior to the initiation of the adoption proceedings in that State. See 9 Uniform Laws Annotated 11 (Supp. 1981); Ark. Stat. secs. 34-2701, 34-2725 (1981 Supp.).

When the undisputed facts set forth in the pleadings are considered it is apparent that the trial court correctly declined to assert jurisdiction over the visitation petition.

The children have not been residents of Illinois for over two years, and it would appear Arkansas is now their home State. The only criteria for jurisdiction under section 4 of the UCCJA which has been shown are that the children formerly resided in this State as does the petitioner, their grandmother. The record does not disclose whether the children’s natural father continues to reside in Illinois and he has, in any event, submitted to the jurisdiction of the Arkansas courts in the adoption proceeding in which his parental rights are being determined.

The trial court recognized that in view of the adoption proceeding in Arkansas the Illinois courts were not the appropriate forum in which a custody determination should now be considered and that petitioner should present her visitation request to the Arkansas court.

The Arkansas courts are exercising jurisdiction over Joanne Schopp, Joseph Noga and their two children in the adoption proceeding. As the adoption appears to be a custody proceeding within the scope of the UCCJA over which the Arkansas courts have asserted jurisdiction, the Illinois courts must decline to do so. (Ill. Rev. Stat. 1979, ch. 40, par. 2107(a); People ex rel. Bachleda v. Dean (1971), 48 Ill. 2d 16, 18-19, 268 N.E.2d 11, 13.) Crawley v. Bauchens (1973), 13 Ill. App. 3d 791, 300 N.E.2d 603, aff’d (1974), 57 Ill. 2d 360, 312 N.E.2d 236, relied upon by petitioner, is not applicable as it was decided under Illinois law prior to the enactment of the UCCJA.

We Conclude in these circumstances the trial court properly declined to assert jurisdiction and granted the motion to dismiss the petition for visitation. In view of our resolution of this issue we need not consider the other matters raised by petitioner in this appeal.

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

Affirmed.

REINHARD and UNVERZAGT, JJ., concur.


author: JUSTICE VAN DEUSEN

text:
    MARTIN GREGOR, a Minor, by his Mother and Next Friend, Elizabeth Gregor, Plaintiff-Appellant, v. WILLIAM E. KLEISER et al., DefendantsAppellees.
    Second District
    No. 82—58
    Opinion filed December 29, 1982.
    Rehearing denied February 1, 1983.

      Thomas P. Cernak, of Chicago, for appellant.
    John C. Bartler and Michael F. Dahlen, both of McKenna, Storer, Rowe, White & Farrug, of Wheaton, for appellees.
   JUSTICE VAN DEUSEN

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Du Page County dismissing plaintiff’s second amended complaint for failure to state a cause of action against William E. Kleiser, Donna Kleiser and William Kleiser, Jr. In his reply brief, plaintiff conceded that his reliance on the doctrine of nuisance in count II was misplaced, and he therefore withdrew those allegations and has limited his appeal to that portion of the order dismissing count I of his second amended complaint.

An appeal from an order dismissing a complaint for failure to state a cause of action preserves for review only a question of law as to the complaint’s legal sufficiency. (Richards v. Leimbacher (1971), 131 Ill. App. 2d 775, 778.) The well-settled principles of law that control the disposition of such a motion are succinctly set forth in Cain v.

American National Bank & Trust Co. (1975), 26 Ill. App. 3d 574, 578-79:

“A motion to dismiss admits for purposes of review such facts as are well pleaded, but it does not admit conclusions of law, the pleader’s construction of a statute, or conclusions of fact unsupported by allegations of specific facts upon which such conclusions rest. (Richards v. Leimbacher, 131 Ill. App. 2d 775, 267 N.E.2d 523; Fred Nemerovski, and Co. v. Barbara, 106 Ill. App. 2d 466, 246 N.E.2d 124.) In determining whether a complaint states facts or conclusions, the complaint must be considered as a whole and not in its disconnected parts. (Courtney v. Board of Education, 6 Ill. App. 3d 424, 286 N.E.2d 25.) With these legal principles in mind, a complaint should not be dismissed for failure to state a cause of action unless it clearly appears that no set of facts could be proved under the pleadings which would entitle plaintiffs to relief. (Courtney v. Board of Education, swpra; Callaizakis v. Astor Development Co., 4 Ill. App. 3d 163, 280 N.E.2d 512.) Finally, section 42(2) of the Civil Practice Act states that ‘[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet.’ (Ill. Rev. Stat. 1973, ch. 110, par. 42(2).)”

Therefore, the question before us is whether, measured by the foregoing standards, the allegations of count I of the plaintiff’s second amended complaint are sufficient to state a cause of action against any or all of the defendant Kleisers.

Count I of the complaint charged that certain alleged acts or omissions of the defendants constituted wilful and wanton misconduct which was the proximate cause of plaintiff’s injuries and damages.

In more detail, count I asserted, in substance, that on or about February 22, 1980, approximately 200 teenagers, most if not all of whom had been invited by William Kleiser, Jr., were gathered at the residence of William E. Kleiser and Donna Kleiser between the hours of 7:30 p.m. and 11:30 p.m. as the guests of the Kleisers and their teenage son, William Kleiser, Jr. Defendant Pape was also a guest at the invitation of William Kleiser, Jr., who engaged, authorized and directed Pape to maintain discipline by physical force and to perform the role of bouncer. Defendant Kleiser, Jr., knew well Pape’s reputation and vicious propensities for violence upon others, as well as his body-building, weight-lifting achievements and extraordinary physical strength. It was further asserted in the complaint that the 200 guests so gathered were unmanageable and constituted a danger to the pub-lie, including plaintiff; that they consumed alcoholic beverages; that the combination of the large number of young persons and the consumption of alcohol by them created a dangerous situation to the public at large, including plaintiff; and that the Kleisers knew or should have known that the above combination of facts created a condition which was dangerous and constituted a threat of bodily injury to the public at large, including plaintiff. At approximately 11:30 p.m., according to the allegations in the complaint, Pape, without cause or provocation, assaulted the plaintiff, causing the plaintiff to have severe and permanent injuries. Additionally, the complaint alleged that the Kleisers and each of them were guilty of conscious, reckless and wilful acts or omissions as set forth which proximately caused plaintiff to be injured and damaged.

Under the facts well pleaded, plaintiff was a social guest upon the premises of William E. Kleiser and Donna Kleiser. A social guest is a person who goes onto the property of another for companionship, diversion and enjoyment of hospitality. (Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App. 3d 656, 673.) It is well settled that a social guest is treated as a licensee and not an invitee. Ciaglo v. Ciaglo (1959), 20 Ill. App. 2d 360, 367.

A property owner is under no duty to make premises safe for a licensee. His only duty is to warn the licensee of concealed defects that are known to the owner and refrain from injuring him wilfully or wantonly. (DuMond v. City of Mattoon (1965), 60 Ill. App. 2d 83, 91, citing Kapka v. Urbaszewski (1964), 47 Ill. App. 2d 321, 325.) Wilful and wanton misconduct means a course of action which shows either a deliberate intention to harm or an utter indifference to, or conscious disregard for, the safety of others. (Kapka v. Urbaszewski (1964), 47 Ill. App. 2d 321, 324.) Wilful and wanton misconduct must be manifested by the facts alleged in the complaint, and the mere characterization of certain acts as wilful and wanton misconduct is insufficient to withstand a motion to dismiss. Cipolla v. Bloom Township High School District No. 206 (1979), 69 Ill. App. 3d 434, 437.

We first point out that the allegations of the complaint that the number of the guests of the defendants was so large as to be unmanageable and to constitute a danger and threat to the public at large, including the plaintiff, and the additional allegation that the combination of a dangerously large number of approximately 200 young persons together with the consumption of alcoholic beverages by said young persons created a dangerous situation are conclusions of fact. A motion to dismiss does not admit conclusions of fact unsupported by underlying allegations of specific facts upon which such conelusions rest. (Richards v. Leimbacher (1971), 131 Ill. App. 2d 775, 778.) The underlying allegations here are that 200 teenagers, minors and adults, were gathered on defendants’ premises and consumed alcoholic beverages. There are no allegations that any of the group were intoxicated, nor are any facts alleged upon which one could conclude that they were acting in an unruly or dangerous manner. The only antisocial behavior alleged in the complaint was that Charles A. Pape, without cause or provocation, struck and injured the plaintiff. Because the underlying allegations of fact contained in the complaint do not support the factual conclusions described above, these conclusional allegations cannot be considered well-pleaded facts which stand admitted, and they must be disregarded for the purpose of deciding the sufficiency of the complaint to state a cause of action.

With regard to the well-pleaded factual allegations directed against Mr. and Mrs. Kleiser, the second amended complaint alleges only that the Kleisers invited approximately 200 teenagers and young adults into their home; that they knew or should have known that the 200 would attend and consume alcoholic beverages, and that they knew or should have known that their son and one of the guests, Charles Pape, would consume alcoholic beverages. The complaint did not allege that Mr. and Mrs. Kleiser were aware that their son, William, Jr., had engaged Pape to maintain discipline by physical force and to perform the role of a bouncer or that he was acting as their agent in doing so. The facts well pleaded, taken together with all reasonable intendments and inferences which can be drawn therefrom in favor of the plaintiff, fail to establish that William E. Kleiser and Donna Kleiser were guilty of wilful and wanton misconduct or any other tortious conduct. Count I of the second amended complaint fails to state a cause of action against William E. Kleiser and Donna Kleiser, and the court properly dismissed it as to these defendants.

With reference to William Kleiser, Jr., however, we reach a contrary conclusion. Though the complaint was insufficient to make out a cause of action against any or all of the defendants based on their owners and occupiers status, the allegations in count I of the second amended complaint are legally sufficient to support a cause of action against the defendant William Kleiser, Jr., on two other theories. A motion to dismiss does not lie if a good cause of action is stated, although not the one intended by plaintiff. Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 964; Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 947.

First, under a traditional respondeat superior analysis, an employer is liable for an employee’s torts committed within the scope of his employment. (Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 493.) The doctrine is applicable where an employee is acting within the scope of his employment with respect to the transaction or occurrence from which the injury arose. (McDonnell v. City of Chicago (1981), 102 Ill. App. 3d 578, 583.) If an employee commits an intentional tort with the dual purpose of furthering the employer’s interest and venting personal anger, respondeat superior may lie; however, if the employee acts purely in his own interest, liability under respondeat superior is inappropriate. Sunseri v. Puccia (1981), 97 Ill. App. 3d 488, 493.

The complaint alleges that Kleiser, Jr., engaged, authorized and directed Pape to maintain discipline by physical force and to perform the role of a bouncer. While the complaint does not specifically allege that Pape was acting in the scope of his employment as a bouncer at the time he assaulted plaintiff, for the purpose of ruling on the motion to dismiss, a reasonable inference can be drawn from the facts well pleaded that he was so engaged. This is particularly true where the lack of such an allegation was not asserted as a defect by the defendant in his motion to dismiss. Section 45 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 45, now found at Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615) requires that the motion shall specifically point out wherein the complaint is defective. (Browning v. Heritage Insurance Co. (1975), 33 Ill. App. 3d 943, 946-47.) In sum, the allegations of the complaint were legally sufficient to state a cause of action against Kleiser, Jr., upon which he could be held responsible for the conduct of his employee under the doctrine of respondeat superior.

Second, it is settled law in Illinois that there is a cause of action against an employer for negligently hiring someone the employer knew, or should have known, was unfit for the position sought to be filled. (Easley v. Apollo Detective Agency, Inc. (1979), 69 Ill. App. 3d 920, 931.) A cause of action for negligent or reckless hiring of an employee is recognized even though the employee commits the criminal or intentional act outside the scope of employment. (Rosenberg v. Packerland Packing Co. (1977), 55 Ill. App. 3d 959, 964.) In count I of the second amended complaint, plaintiff alleged that defendant Kleiser, Jr., knew well Pape’s reputation and vicious propensity for physical violence upon others, as well as his body-building and weight-lifting achievements and extraordinary strength, and that Pape, without cause or provocation, physically attacked and assaulted plaintiff and caused plaintiff to sustain serious injuries. These allegations taken together with the other allegations of fact well pleaded were legally sufficient to support a cause of action against the defendant Kleiser, Jr., upon the theory of negligent, reckless or wilful and wanton conduct in the hiring of Pape as a bouncer.

For the foregoing reasons, that part of the order of the circuit court of Du Page County entered December 28, 1981, which dismissed count I of the second amended complaint directed against defendants William E. Kleiser and Donna Kleiser without leave to file any amended pleadings against them is affirmed. That part of said order dismissing count I against defendant William Kleiser, Jr., and denying plaintiff leave to file any further amended pleadings against defendant William Kleiser, Jr., is reversed, and this matter is remanded to the trial court for further proceedings consistent with this order.

Affirmed in part; reversed in part.

REINHARD and NASH, JJ., concur.


author: JUSTICE UNVERZAGT

text:
      In re DISCONNECTION OF CERTAIN TERRITORY FROM THE SANITARY DISTRICT OF ROCKFORD. (Catherine N. Elden et al., PetitionersAppellees, v. The Sanitary District of Rockford, Respondent-Appellant.)
    Second District
    No. 82—299
    Opinion filed December 10, 1982.

      John B. Roseberg and H. Emmett Folgate, both of Reno, Zahm, Folgate, Lindberg & Powell, of Rockford, for appellant.
    Michael F. O’Brien, of Paddock, McGreevy & Johnson, of Rockford, for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

The Sanitary District of Rockford, Illinois (hereinafter the District), appeals an order of the circuit court of Winnebago County approving disconnection of the Panorama Valley Tract from the District, as well as the trial court’s earlier order permitting an election regarding disconnection. The petitioners are voters of the Panorama Valley and Holiday Subdivisions in Winnebago County. The disconnection proceedings were brought pursuant to section 24 of the Sanitary District Act of 1917 (Ill. Rev. Stat. 1981, ch. 42, par. 317f). The issues presented for review are whether there was an existing improvement or an authorized improvement within the meaning of section 24 that should have precluded the election for disconnection.

The facts are not in dispute. In August 1979, a year and one-half before the annexation of the Panorama Valley Tract to the District, the District built an 18-inch interceptor sewer outside its boundaries that extended under 12 of the 268 lots in the Panorama Valley Tract. The sewer was built with Federal funds and bond revenues, not financed by special assessment, and was one of several built outside the District’s boundaries to serve outlying areas expected to need sewer service within five years. On February 6, 1981, petitions were filed by more than 60% of the property owners in the Panorama Valley Tract, seeking that the District annex the tract and sewer it by means of special assessment. The area was annexed to the District in March 1981. It comprised parts of three subdivisions and some adjacent unplatted tracts of land. Following a public hearing, the District on July 20, 1981, enacted Ordinance No. 383, providing for the construction of sewers in the territory to be paid for by special assessment and directing its attorney to petition the court to levy a special assessment. On August 14, 1981, a petition signed by approximately half of the registered voters in the Panorama Valley Tract was filed in the circuit court, seeking an election to disconnect that area from the District. The District opposed the election on grounds that the petitioners could not satisfy the statutory prerequisites for the ordering of a disconnection election. At the time of the hearing on the petition, the sewer that was installed prior to annexation was not being used for sewage. On August 19, 1981, five days after the petition for disconnection was filed, the District filed a petition to levy the special assessment. Those proceedings were stayed pending resolution of this action. Hearings were held on September 22 and 30, 1981. The trial court found that there was no existing or authorized improvement, within the meaning of the statute, that would preclude a disconnection election and ordered an election. The election was held November 3, 1981, and disconnection was favored by a margin of 269 to 142. On the trial court’s order, the District board of trustees passed an ordinance of disconnection, which was approved by the court’s order and filed August 16, 1982, disconnecting the territory. The District appealed.

The first issue presented is whether the District’s enactment of the special assessment ordinance amounted to the authorization of the improvement under section 24 of the Sanitary District Act of 1917, so as to preclude a disconnection election, when at the time the election was asked for the District had not petitioned the court to levy the special assessment.

Section 24 provides a means for disconnecting territory from a sanitary district. The procedure is initiated by a voters’ petition to the circuit court for an election on the question of disconnection. Besides describing the boundaries of the territory, the petition must recite the following:

(1) “that there is no bonded indebtedness of such sanitary district incurred while such territory was a part of such sanitary district”;
(2) “that no special assessments for local improvements were levied upon or assessed against any of the lands within such territory or if so levied or assessed, that all of such assessments have been fully paid and discharged”; and
(3) “that such territory is not, at the time of the filing of such petition, and will not be, either benefited or served by any work or improvements either then existing or then authorized by said sanitary district.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 42, par. 317f.

The ordinance in question in the instant case, No. 383, purported to provide for local improvements — the sewering of parts of the Panorama Valley Tract — to be paid for by special assessment. It provided that the sewers be constructed in accordance with the official specifications prepared by the District’s engineering department and adopted by the board of trustees. The cost of the improvement was estimated to be $1,223,000, and there were provisions for the plan of payment of the special assessment. The District’s attorney was directed to file in the circuit court a petition to levy the special assessment. The ordinance was “to take effect and be in force from and after its passage and approval.”

The District contends that the passage of Ordinance No. 383 was the authorization of an improvement within the meaning of section 24. It relies on the rule of statutory construction that the ordinary and popularly understood meanings of statutory terms presumably apply unless the legislature provides otherwise. (La Salle National Bank v. Village of Burr Ridge (1967), 81 Ill. App. 2d 209, 217, appeal denied (1967), 36 Ill. 2d 631.) According to the District, the dictionary meaning of “authorized” buttresses its position that the improvement was authorized by the ordinance. The District also urges that the legislature intended to favor retention rather than disconnection of territory in that the statute puts the burden on the petitioners to demonstrate that there is no bonded indebtedness, levied special assessment, or existing or authorized improvements. This, the District believes, reflects an intent to permit disconnection only in limited cases, when property is merely burdened by taxation and should not have been in the sanitary district in the first place, and not when an area is about to incur some benefit by its presence in the sanitary district.

The petitioners also address the questions of statutory construetion and legislative intent. They argue that to construe the ordinance’s initial passage as authorizing the improvement would render as meaningless surplusage section 24’s specific provision for special assessments. The petitioners contend that the statute should be liberally construed to facilitate disconnection, citing cases construing other disconnection statutes with different terms. They attribute to the legislature an intent to prevent disconnection only when a sanitary district has assumed actual obligations in reliance on a territory’s continued status as part of the district. According to the petitioners, the passage of the special assessment was simply an early step in the multi-stepped procedure for making local improvements and was preliminary to authorization.

There is really no question that the sewers being contemplated amount to an improvement. The inquiry is whether they were “authorized.” The cardinal rule of statutory construction is that the courts give effect to the intention of the legislature as expressed in the statute. (Young v. Mikva (1977), 66 Ill. 2d 579, 583.) In determining legislative intent, the court should construe the statute in its entirety. (Jahn v. City of Woodstock (1981), 99 Ill. App. 3d 206, 209.) Article 9, division 2, of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 9—2—1 et seq.) governs the procedure for making local improvements by special assessment and is applied to sanitary districts by section 19 of the Sanitary District Act of 1917 (Ill. Rev. Stat. 1981, ch. 42, par. 317a). It should be considered with chapter 42 in determining whether Ordinance No. 383 “authorized” the improvement. A municipality may provide by ordinance for the making of any local improvement by special assessment (Ill. Rev. Stat. 1981, ch. 24, par. 9—2—5) and must adequately describe the improvement (Ill. Rev. Stat. 1981, ch. 24, par. 9—2—9), hold public hearings (Ill. Rev. Stat. 1981, ch. 24, par. 9—2—10), and estimate the cost of the improvement (Ill. Rev. Stat. 1981, ch. 24, par. 9—2—12). If the ordinance passes, an officer of the municipality petitions the circuit court to levy an assessment for the improvement in accordance with the ordinance (Ill. Rev. Stat. 1981, ch. 24, par. 9—2—43). After an ordinance has been adopted and before it is confirmed in court, the corporate authorities may abandon any portion of the proposed improvement (Ill. Rev. Stat. 1981, ch. 24, pars. 9—2—6, 9—2—61). The court determines the sufficiency of the proceedings and whether there is an equitable and just distribution of the cost of the improvement among the properties benefited (Ill. Rev. Stat. 1981, ch. 24, pars. 9—2—56, 9—2—57). The judgment of the court levying a special assessment is a lien on the property assessed, on behalf of the municipality, but the municipality may later have the court's order vacated if no contract is let or if the making of the improvement is never commenced or is abandoned (Ill. Rev. Stat. 1981, ch. 24, par. 9—2—65).

Thus, a special assessment is not finalized until it has been reviewed by the court and levied. Arrangements to make the improvement itself are finalized even later. The time for entertaining bids for contracting the construction of the improvement is within 90 days after the judgment of confirmation of the special assessment (Ill. Rev. Stat. 1981, ch. 24, par. 9—2—102), and there is always the possibility that the municipality may abandon the project. The District views the court hearing and confirmation of an assessment roll as simply a measure to insure the proper distribution of cost and benefits among the affected properties, suggesting that the improvement itself is not subject to review. However, the court may invalidate an ordinance if it is unreasonable. Village of Glencoe v. Jackson (1968), 102 Ill. App. 2d 65, 74 (clear proof that an improvement is unnecessary will overcome a presumption that an ordinance is valid).

Although the procedure set forth in article 9 lends support to the position that the District had no power to “authorize” at the time it enacted Ordinance No. 383, there is perhaps a clearer indication to the way article 9 characterizes the improvement being sought. Article 9 repeatedly refers to the improvement contemplated by a special assessment ordinance as a “proposed improvement.” (See, e.g., Ill. Rev. Stat. 1981, ch. 24, pars. 9-2-6, 9-2-9, 9-2-10, 9-2-12, 9-2-47, 9—2—56, 9—261.) Nowhere is the improvement described as “authorized.” The District’s reference to section 9 — 2—5 as the “ordinance authorizing improvements” is inaccurate. That title was supplied by the West Publishing Co. and not by the legislature, and its language does not appear in the text of the provision. There is a reference in section 20 of the Sanitary District Act of 1917 (Ill. Rev. Stat. 1981, ch. 42, par. 317b) to the “ordinance authorizing such assessment.” (Emphasis added.) It could be argued that that language by inference refers also to the improvements, since without a contemplated improvement there is no basis for a special assessment. However, the ordinary meanings of the words “authorized” and “proposed” support the petitioners’ position rather than the District’s. “Authorized” means “given or endowed with authority” (“authority” is defined as “the power to determine, adjudicate, or otherwise settle issues or disputes; *** the right to control, command or determine”) or “legally or duly sanctioned.” “Propose” means “to offer or suggest *** for consideration, acceptance or action.” (Random House Dictionary of the English Language 100, 1153 (1967).) It is not clear that the District had any power, prior to the court’s final judgment, to make an improvement, since the ordinance could be overturned and there was no power to contract for the work. Therefore, it could not firmly “authorize” one.

Section 24 does refer to authorization of an improvement by the sanitary district rather than by the court, but it does not necessarily follow that the passage of Ordinance No. 383 was such an authorization. The necessity of a local improvement is a legislative determination within the ambit of the municipality. (In re Special Assessment for Construction of Sidewalks (1973), 10 Ill. App. 3d 243, 246.) However, here it is subject to mandatory review by the court before any action may be taken. That seems to be the point at which a sanitary district may finally authorize an improvement to be built. Prior to that, it has determined a need for the improvement and proposed an improvement to meet that need.

The District argues that the statute was meant to preclude disconnection when an improvement was imminent and believes that Ordinance No. 383 would impose such a restriction. However, not only could the District change its mind and abandon the improvement, but there is no statutory time limit by which it must seek court approval. Thus, even if this was indeed a purpose of the legislature, in the present case the improvement was not imminent, as the District could indefinitely delay pursuing it. Even Ordinance No. 383 itself provides that it will “take effect and be in force from and after its passage and approval.” (Emphasis added.)

When a word or phrase used in a statute becomes an issue, its strict meaning is not as important as the sense in which it was used by the law-making body. (City of East St. Louis v. Union Electric Co. (1967), 37 Ill. 2d 537, cert. denied (1968), 390 U.S. 948, 19 L. Ed. 2d 1136, 88 S. Ct. 1034.) The provisions of section 24 give several indications of what the legislature intended to accomplish. One purpose is to protect a sanitary district that has made commitments or incurred obligations for the benefit of the territory — when it has authorized improvements or when a bonded indebtedness exists. In the present case, the District bore the expense of preparing the ordinance, including specifications and cost estimates, but that was incurred without any assurance .that the ordinance would pass and is preliminary to committing that the work be done. Another objective of section 24 is to prevent territory for which the District has completed projects from then withdrawing from the District — when there exists work or improvements which currently or prospectively serve or benefit the area. The legislature also wanted to preclude disconnection when proceedings for local improvement by special assessment reach a certain stage — when the special assessment is levied. Since the legislature included this specific provision for special assessments, it seems unlikely that it contemplated that an earlier stage in the special assessment proceedings should preclude an election concerning disconnection. As the petitioners propose, such an interpretation would make the specific special assessment provisions superfluous, which is to be avoided if logically possible. (See Patteson v. City of Peoria (1944), 386 Ill. 460, 463.) To find that Ordinance No. 383 did not, prior to court approval, preclude the election, however, would give effect to all the provisions, since the “authorized improvement” language is broad enough to include improvements financed by means other than special assessments.

The most obvious and basic purpose of section 24 is to provide a means of disconnection from a sanitary district when the enumerated restrictions have been satisfied. In view of the guidelines for statutory construction, the apparent intention of the legislature, the characterization of the improvement as proposed rather than authorized, the lack of commitment by the District at that point, and its ability to change its mind, the trial court was correct in certifying the disconnection election notwithstanding Ordinance No. 383.

The second issue raised is whether a nonfunctioning interceptor sewer is an “existing” improvement under section 24 of the Sanitary District Act of 1917, so as to preclude a disconnection election, when the interceptor was constructed to serve an area outside the District prior to the territory’s annexation and extended under only a small portion of that territory.

As already noted, section 24 precludes an election for disconnection if there is an existing improvement that either serves or benefits the territory or will serve or benefit it. The District contends that an 18-inch gravity flow interceptor sewer that extends under 12 of the 268 lots of the territory and was built by the District should have barred the election. The District acknowledges that the sewer was installed before the territory was annexed to the District and that it had not yet been hooked up and was not functioning. However, the District argues that under the language of section 24 it is an existing sewer that will benefit and serve the territory when it is connected to the sewer proposed in Ordinance No. 383.

The petitioners present several arguments to rebut the District’s position. They note'that the sewer was built with Federal funds before the territory was annexed and was not built specifically to serve the territory. They argue that this sewer should not be given the status of an existing improvement that would bar disconnection because such an interpretation is not consistent with a liberal construction of disconnection statutes. Since the sewer was completed before annexation of the territory, they contend that this is not an instance of a sanitary district’s injurious reliance upon the inclusion of territory and so would not contravene the legislators’ intent to protect a sanitary district in such a circumstance. The petitioners further argue that there is no assurance that the interceptor will ever benefit or serve the territory, since the special assessment through which the proposed connecting sewer would be financed has not been levied and the contemplated improvement might never be constructed. They suggest that the District’s position, if adopted, could be extended to the District’s sewage treatment facilities and interceptor system, which can potentially benefit any outlying area, and would foreclose the possibility of disconnection. Finally, even if the sewer did fall within section 24’s meaning, it should at the most preclude disconnection of only the small portion of the territory under which the sewer extends.

The petitioners’ arguments are persuasive. To hold that the previously constructed sewer bars disconnection would make annexation irrevocable at the outset. Given the reasons behind the legislature’s imposition of the three restrictions on petitioning for disconnection, which we have discussed, it is unlikely that the legislature intended the rigid application proposed by the District. Such an interpretation would give a sanitary district the ability to lock a territory in permanently, without any chance for disconnection. Although there are no cases construing the section 24 issues presented in the instant case, the courts have liberally construed other disconnection statutes in favor of disconnection. Disconnection is favored whether it happens by operation of law and the burden is on the municipality to show a reason that would preclude disconnection (In re Roberts Park Fire Protection District (1975), 61 Ill. 2d 429), or is initiated by a petition setting forth the requisite facts to support disconnection (Sun Electric Corp. v. Village of Prairie Grove (1978), 59 Ill. App. 3d 608, 612, appeal denied (1978), 71 Ill. 2d 615; In re Disconnection of Certain Territory from the City of Palos Heights (1961), 30 Ill. App. 2d 336, 342, appeal denied (1961), 21 Ill. 2d 622). Although the facts that a petition must recite under section 24 differ from those in statutes that have been construed to favor disconnection, a liberal construction of section 24 in favor of disconnection seems appropriate in light of those cases. The common theme is to permit disconnection absent a hardship or impairment to the municipality. This is in harmony with the apparent intent of section 24. The language of the statute is clear and unequivocal and is not qualified. However, the court may determine intent from the necessity or reasons of a statute and the meaning of its words, enlarged or restricted according to their real intent. (In re Roberts Fire Protection District (1975), 61 Ill. 2d 429, 438.) Courts should be cognizant of the difficulty of drafting legislation that will work smoothly in all situations, some of which might not have occurred to the proponents. (Childers v. Modglin (1954), 2 Ill. App. 2d 292, 299.) The District’s interpretation of section 24 would make disconnection impossible even in a case where a sanitary district had not changed its position in reliance on a territory’s annexation.

The judgment of the circuit court of Winnebago County is affirmed.

Judgment affirmed.

HOPF and NASH, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THEODORE FLOWERS, Defendant-Appellant.
    Second District
    No. 81—399
    Opinion filed December 30, 1982.

      B.J. Farrell, of Wheaton, and G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

After trial by jury defendant, Theodore Flowers, was convicted of burglary (Ill. Rev. Stat. 1979, ch. 38, par. 19—1) and possession of burglary tools (Ill. Rev. Stat. 1979, ch. 38, par. 19—2). He was sentenced to concurrent terms of imprisonment of seven years and one year, respectively, for these offenses.

Defendant appeals contending the trial court erred (1) in denying his motion to suppress evidence on the grounds defendant lacked “standing” to assert a fourth amendment interest in the vehicle searched; (2) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; (3) that the court erred in denying his petition to be treated as an addict under the Dangerous Drug Abuse Act; and (4) that the court erred in refusing defendant’s tendered circumstantial evidence instruction.

We consider first whether defendant, as driver of a car in which its owner was a passenger, had such an expectation of privacy in the car and its contents as to permit him to challenge the reasonableness of a search of the car.

Defendant filed a pretrial motion to suppress evidence seized after a warrantless search by police of a car in which he was riding, together with all other evidence resulting from the alleged illegal search and seizure. At the hearing of his motion defendant testified that at 11:50 p.m. on December 11, 1980, he was driving a Buick automobile owned by co-defendant, Julius Harshaw, in Oak Brook, Illinois. Harshaw was a passenger riding in the front seat. When defendant noticed the flashing lights of a police car behind him he pulled over to the curb and got out. One of the officers met defendant at the rear of the Buick where Harshaw joined them. When defendant could not produce a driver’s license the officer asked for his name, address and birthdate. Harshaw was also unable to produce a driver’s license but exhibited a traffic citation, apparently to show his license existed. Defendant told the officer the car belonged to Harshaw.

Defendant testified the officer returned to his squad car, without telling them why they had been stopped, and he and Harshaw returned to the Buick. Harshaw got in on the driver’s side and defendant in the front passenger’s seat.

The officer came back to the Buick and after speaking to Harshaw they went back to the squad car; Harshaw returned in a few minutes and again got in the driver’s seat. The officer then opened the rear door, looked into the back seat of the Buick, and started to question them about items he saw there. The officer had no warrant nor did either defendant or Harshaw give him permission to go into the car.

The officer saw a brown shoulder bag on the back seat inside of which he found prescription forms. He then directed both men to get out of the car and continued his search locating hypodermic syringes and tools near the front passenger seat. The officer then told the men they were under arrest; he did not tell them why they had been originally stopped until later at the police station where defendant was given traffic citations for failure to have a driver’s license and for defective brake lights.

After defendant’s testimony the State moved for a directed finding denying the motion to suppress on the grounds defendant had failed to establish “standing” to assert a fourth amendment violation premised upon the search of Julius Harshaw’s car. The trial court agreed and denied the motion to suppress evidence.

In considering a ruling on a motion to suppress evidence a reviewing court may also consider evidence adduced in trial following the suppression hearing. (People v. Braden (1966), 34 Ill. 2d 516, 520, 216 N.E.2d 808, 810; People v. Sledge (1981), 92 Ill. App. 3d 1051, 1055, 416 N.E.2d 412, 415, appeal denied (1981), 85 Ill. 2d 560.) We will do so to the extent necessary to resolve the issues presented.

Officers Alan Borkover and Sue Srch of the Oak Brook Police Department testified in trial they had observed the Buick automobile after it pulled out of the driveway of a business located at 600 Hunter Drive and noticed it did not have brake lights. After stopping the car Officer Borkover asked the driver, who he identified as defendant, for his license. When defendant could not produce a license the officer made a radio check and, on learning it had expired, arrested defendant for driving without a valid license.

Officer Borkover further testified that while standing beside the car he had observed a typewriter and a space heater in its back seat and he opened the door and searched the vehicle. On the passenger side of the floor of the front seat the officer found a pair of pliers, chisel and two rocks. He also found there an envelope containing can-celled and blank checks imprinted with the name of C. David Loftus of 615 West 22nd Street, Oak Brook, Illinois, a location adjacent to the place the Buick was first seen by the officers. The officer also searched the rear seat area of the car finding two bags containing cameras and photograph equipment, an IBM typewriter, space heater, tape recorder, clock radio and a calculator. A brown shoulder bag when opened was found to contain blank prescription pads and hypodermic syringes were also located in the car.

Officer Borkover thereupon contacted another officer by radio requesting he check the building located at the address on the checks. That investigation disclosed the building had been forcibly entered that night and most of the items found in the Buick had been stolen. A button was also located at the scene of the burglary. It was compared to the buttons on defendant’s coat in a crime laboratory and a witness testified they were from the same die; a button was missing from defendant’s coat.

After searching the car the officers removed the items located in it and took both men to the police station where citations for failure to have a driver’s license (Ill. Rev. Stat. 1979, ch. 951/2, par. 6—101) and defective brake lights (Ill. Rev. Stat. 1979, ch. 951/2, par. 12—208) were issued to defendant. He was subsequently charged with burglary and the evidence seized from the car and the button were admitted in trial.

On appeal defendant contends that as the driver of the car and in control of it he had a possessory interest giving rise to a legitimate expectation of privacy protected by the fourth amendment. He further argues that the nonconsensual search of the vehicle without a warrant and without probable cause to believe he had committed or was committing a crime was unreasonable. The State responds that as the car was owned by the passenger, Julius Harshaw, the mere fact defendant was driving it was insufficient to invest him with an interest in the car protected by the fourth amendment. It also asserts that the officers were justified in stopping the car for the brake light violation and the ensuing circumstances supported defendant’s arrest and the search of the vehicle.

In Rakas v. Illinois (1978), 439 U.S. 128, 139, 58 L. Ed. 2d 387, 398, 99 S. Ct. 421, 428, the court concluded the issue of standing involved “two inquiries: first, whether the proponent of a particular legal right has alleged ‘injury in fact,’ and, second, whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties.” The court there rejected the claim that passengers in a car, who asserted no property or possessory interest in either the car or property seized in it, had a protected privacy interest which would be violated by an unreasonable search. Under Rakas, a defendant must show that he had a “legitimate expectation of privacy in the invaded place” (439 U.S. 128, 143, 58 L. Ed. 2d 387, 401, 99 S. Ct. 421, 430) and cannot rely upon the former “automatic standing” rule of Jones v. United States (1960), 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725, simply because he was in a place he had a right to be at the time of the search. See United States v. Salvucci (1980), 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547.

The circumstances in which an automobile was stopped and searched by officers when its owner was a passenger and defendant was driver have been considered by reviewing courts. In State v. Emery (1979), 41 Or. App. 35, 597 P.2d 375, the court concluded that defendant’s temporary control of the car as driver did not give him a sufficiently greater expectation of privacy in its contents to enable him to object to a search of the passenger compartment and trunk. In United States v. Lochan (1st Cir. 1982), 674 F.2d 960, the court considered as factors relevant to a privacy expectation whether defendant was legitimately present in the area searched; his possession or ownership of the area or the property seized; prior use of the area searched or the property seized; the ability to control or exclude others use of the property; and, a subjective expectation of privacy therein. (674 F.2d 960, 965.) The Loehan court concluded that defendant’s expectation of privacy based upon the facts he was driving the car when stopped, that he had the car’s registration in his pocket and had apparently been on a trip of several hundred miles was insufficient in view of the presence of the owner and lack of other evidence of a privacy expectation.

In the present case defendant concedes he had no technical property rights in the car, but argues that as driver he controlled and directed it giving him a sufficient possessory interest to give rise to a privacy expectation in its contents.

We find the reasoning of the courts in Emery and Lochan persuasive and conclude defendant has failed to establish he had a reasonable expectation of privacy in the contents of the car to support assertion of his claim of a fourth amendment violation. Neither in his motion to suppress evidence or testimony in support of it did defendant claim any property interest in the items seized in the search or any other property in the car. He did not own the vehicle and has not shown that the owner, also present, had given defendant any rights in it other than to drive it; that too may well have been under the direction and control of the owner. It also appears that the owner of the car had reasserted all control over it at the time of the search. After being stopped by the officers both defendant and Harshaw left their respective positions in the car; however, after talking to the officer, Harshaw got in the driver’s seat and defendant became a passenger. At the time of the search defendant in this case had no different status relative to the vehicle and its contents than did the defendant in Rakas. As he failed to show a reasonable expectation of privacy in the vehicle or the items seized defendant may not be heard to object to the reasonableness of the search of the car and seizure of evidence therein.

Defendant has also argued that the stopping of the car and detention of its occupants for a routine traffic offense was an unreasonable seizure of his person under the fourth amendment of the United States Constitution requiring suppression of evidence seized as a result thereof. (Delaware v. Prouse (1979), 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391; People v. Kunath (1981), 99 Ill. App. 3d 201, 425 N.E.2d 486, appeal denied (1981), 85 111. 2d 580.) Although we have found defendant did not have a legitimate expectation of privacy in the car and thus could not raise a challenge to its search, he clearly may test the reasonableness of the stop of the vehicle and his detention as it affected his personal liberty. See People v. Deppert (1980), 83 Ill. App. 3d 375, 403 N.E.2d 1279.

The Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 107—2) provides,

“A peace officer may arrest a person when:
* * *
(c) He has reasonable grounds to believe that the person is committing or has committed an offense.”

The officers stopped defendant when they observed the brake lights on the car were not operating. When defendant could not produce a driver’s license they arrested him for failure to have a license. As the officers had a reasonable basis for stopping and detaining defendant, suppression of the evidence thereafter seized is not required on that grounds. Compare People v. Kunath (1981), 99 Ill. App. 3d 201, 425 N.E.2d 486, appeal denied (1981), 85 Ill. 2d 580; see People v. Hampton (1981), 96 Ill. App. 3d 728, 732, 422 N.E.2d 11, 14, appeal denied (1981), 85 Ill. 2d 570; People v. Mathis (1977), 55 Ill. App. 3d 680, 684, 371 N.E.2d 245, 249, appeal denied (1978), 71 Ill. 2d 597; People v. Huth (1977), 45 Ill. App. 3d 910, 360 N.E.2d 408; Gustafson v. Florida (1973), 414 U.S. 260, 38 L. Ed. 2d 456, 94 S. Ct. 488; New York v. Belton (1981), 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860.

Defendant next contends he was not proved guilty of burglary beyond a reasonable doubt because his conviction was based solely on the presumption of guilt arising from exclusive and unexplained possession of recently stolen property.

It has been established that the permissive inference of burglary based upon the exclusive, unexplained possession of recently stolen property is not proper absent other corroborative evidence which makes the inference “more likely than not.” (County Court of Ulster County v. Allen (1979), 442 U.S. 140, 163-64, 60 L. Ed. 2d 777, 795-96, 99 S. Ct. 2213, 2228; People v. Housby (1981), 84 Ill. 2d 415, 423-24, 420 N.E.2d 151, 155, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160; People v. Moore (1981), 98 Ill. App. 3d 507, 511, 424 N.E.2d 751, 753.) Thus, there must be a rational connection between the facts proved (possession) and the facts inferred (burglary). People v. Housby (1981), 84 Ill. 2d 415, 424, 420 N.E.2d 151, 155, cert. denied (1981), 454 U.S. 845, 70 L. Ed. 2d 131, 102 S. Ct. 160; People v. Moore (1981), 98 Ill. App. 3d 507, 511, 424 N.E.2d 751, 753.

The evidence was sufficient in this case to support the permissive inference of burglary. In addition to defendant’s possession of the recently stolen property there was direct evidence: that a forcible entry had been made into the building from which the property was stolen; that the defendant was in possession of tools with which to make such an entry; that his arrest occurred near the building within six hours of the time the property was last seen in the building; that a button similar to those on defendant’s coat was found at the scene of the crime and the defendant’s coat was missing a button. We conclude there was a rational connection between defendant’s possession of the stolen property and his participation in the burglary and the evidence was sufficient to make it “more likely than not” that defendant committed the burglary. (People v. Moore (1981), 98 Ill. App. 3d 507, 513-14, 424 N.E.2d 751, 755.) Defendant’s reliance on People v. Ross (1981), 103 Ill. App. 3d 883, 431 N.E.2d 1288, appeal denied (1982), 91 111. 2d 62, is misplaced. In Ross, there was no evidence of forcible entry into the apartment nor evidence that the defendant may have been on the premises.

Defendant next asserts the trial court erred in denying his petition to be treated as a narcotic addict under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1979, ch. 911/2, par. 120.1 et seq.).

On April 20, 1981, after conviction but before sentencing, defendant filed a petition to elect to be treated under the Act. The State moved to strike the petition, alleging defendant was not eligible to elect treatment as an addict because there were two pending burglary charges against him and, also, defendant’s probation officer had not consented to the election. The State also argued he was not eligible for any type of probation because of a prior conviction for burglary within 10 years.

At the hearing of defendant’s motion held May 14, 1981, defendant’s counsel advised the court that due to an oversight the Cook County Probation Department had not been contacted to request a consent and asked for a continuance in order to do so. He also advised the trial court that defendant had entered guilty pleas to the other burglary charges before another judge of the Du Page County Circuit Court, for which he was awaiting sentence, and, therefore, those charges were no longer pending against defendant. Counsel further argued that defendant was eligible for treatment under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1979, ch. 951/2, par. 120.1 et seq.) pursuant to People v. Teschner (1980), 81 Ill. 2d 187, 407 N.E.2d 49.

The trial court denied defendant’s petition to elect treatment as an addict rather than be sentenced finding he was not eligible to do so, after conviction, as defendant was not eligible for probation because he had also been convicted of burglary in 1980.

At the sentencing hearing held following denial of defendant’s petition he testified he had started using heroin in 1976 and by 1980 he was expending $75 to $150 each day for that purpose. The presentence report also discloses defendant was convicted of robbery with violence in the State of Connecticut in 1970 and sentenced to a term of IV2 to five years’ imprisonment; in 1980 he was convicted of burglary in Illinois and was serving a term of probation when sentenced in the present case, and, he had been convicted of the illegal possession of credit cards in 1980 for which defendant served four days in jail.

On May 14, 1981, when defendant’s petition was denied and he was sentenced to imprisonment, section 10 of the Dangerous Drug Abuse Act provided that a court may place a person who has been convicted of a crime on probation for treatment under the Act, “if such a sentence is consistent with Section 5 — 6—1(a) of the Unified Code of Corrections ***.’’ (Ill. Rev. Stat. 1979, ch. 911/2, par. 120.10.) Section 5 — 6—1(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005—6—1(a)) provided that a sentence of probation could be imposed “[ejxcept where specifically prohibited by other provisions of this Code.” One such prohibitive provision in the Unified Code of Corrections was section 5 — 5—3(c)(2)(F), which stated that a term of probation shall not be imposed for a Class 2 felony if the defendant has been convicted of a Class 2 or greater class felony within 10 years of committing the present offense. Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3(c)(2)(F).

As eligibility for probation was a condition superimposed upon section 10 of the Dangerous Drug Abuse Act at the time defendant was sentenced, the trial court correctly denied his petition to elect treatment under the Act. (See People v. Teschner (1980), 81 Ill. 2d 187, 194, 407 N.E.2d 49, 53; People v. Benedetto (1981), 102 Ill. App. 3d 10, 17-18, 428 N.E.2d 1169, 1175-76.) Public Act 81-851 (approved and effective September 20, 1979), which imposed the condition barring defendant’s eligibility under the Act, was in effect both at the time this offense was committed and when defendant was sentenced and no question of election to be sentenced under a different law arises. See People v. Andrews (1981), 95 Ill. App. 3d 595, 600, 420 N.E.2d 509, 512, appeal denied (1981), 85 Ill. 2d 567.

Defendant has argued, without citation of relevant authority, that application of the requirement that he be eligible for probation under the Unified Code of Corrections to the eligibility requirements of the Dangerous Drug Abuse Act unconstitutionally deprives him of due process of law. That was the law, however, when defendant committed the offense and when sentenced, and the trial court followed the applicable legislative provisions. See People v. Teschner (1980), 81 Ill. 2d 187, 194, 407 N.E.2d 49, 53.

In view of our disposition of this issue we need not consider whether the trial court abused its discretion in failing to grant a continuance for defendant to seek the consent of his probation officer. Nor will we address the issue of whether defendant was ineligible to elect treatment under the Act because other burglary charges were pending to which he had pled guilty, but had not yet been sentenced. See People v. Morguez (1980), 90 Ill. App. 3d 471, 413 N.E.2d 128, appeal denied (1981), 83 Ill. 2d 573.

Defendant finally contends the trial court erred by refusing to submit to the jury the second paragraph of the circumstantial evidence instruction (Illinois Pattern Jury Instruction, Criminal, No. 3.02 (2d ed. 1981)) (hereinafter cited as IPI Criminal). It provides:

“You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.”

It is established, however, that this paragraph should be given only when the evidence is entirely circumstantial. (People v. Edmondson (1982), 106 Ill. App. 3d 716, 720, 435 N.E.2d 870, 873; People v. Stokes (1981), 95 Ill. App. 3d 62, 69, 419 N.E.2d 1181, 1187, appeal denied (1981), 85 Ill. 2d 573.) Even where the paragraph should have been given, but was not, a reversal is not required unless it appears that justice was denied or that the verdict resulted from such error. (People v. Edmondson (1982), 106 Ill. App. 3d 716, 720-21, 435 N.E.2d 870, 873.) That is especially true where the jury has been instructed as to the presumption of innocence and the State’s burden of proof, since the second paragraph of IPI Criminal No. 3.02 is essentially a restatement that the defendant must be proved guilty beyond a reasonable doubt. People v. Cross (1981), 100 Ill. App. 3d 83, 90, 426 N.E.2d 623, 629.

In this case there was direct evidence that a burglary had been committed showing the forcible entry of the building and missing property. The only circumstantial evidence considered was the button which linked the defendant to the place where the offense occurred. It has been held by this court that direct evidence of the crime alone is sufficient to preclude giving of the second paragraph of IPI Criminal No. 3.02. (People v. Edmondson (1982), 106 Ill. App. 3d 716, 721, 435 N.E.2d 870, 874; People v. Christiansen (1969), 118 Ill. App. 2d 51, 57-58, 254 N.E.2d 156, 159-60.) In any event, it does not appear from the record that justice was denied or that the verdict was based upon the lack of the requested instruction and the jury was correctly instructed as to the presumption of innocence and the State’s burden of proof.

Accordingly, the judgment of the circuit court of Du Page County will be affirmed.

Affirmed.

REINHARD and "VAN DEUSEN, JJ., concur.