author: JUSTICE ROMITI

text:
      In re MARRIAGE OF JAMES N. WEINSTEIN, Plaintiff-Appellee, and FRANCES S. WEINSTEIN, Defendant-Appellant.
    First District (4th Division)
    No. 83—1763
    Opinion filed October 18, 1984.

      Richard L. Hoffman, of Chicago, for appellant.
    Edward R. Nathanson, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   JUSTICE ROMITI

delivered the opinion of the court:

Frances S. Weinstein (Frances) appeals from the judgment of the Cook County circuit court which dissolved her marriage to James N. Weinstein (James) and distributed the couple’s marital property and from the court’s denial of her post-judgment motions to reopen proofs. She raises three issues for our review:

1. Whether the trial court erred in excluding expert testimony of the value of James’ osteopathy degree and his license to practice surgery, offered by Frances on the grounds, inter alia, that she had a property interest therein;

2. Whether the trial court committed reversible error in finding that Frances’ jewelry was marital property;

3. Whether the trial court committed reversible error in denying Frances’ motion to reopen proofs to show that she had lost her job, that James was about to enter the job market as a surgeon, and that he had breached an out-of-court agreement to obtain a Jewish divorce.

We find Frances’ arguments on each issue unpersuasive, and affirm the trial court’s judgment and order.

James and Frances were married on July 15, 1973, and separated on November 12, 1981. There were no children as a result of the marriage. James filed his petition for dissolution of marriage on December 10, 1981, and Frances her counterpetition for dissolution on December 9, 1982. The trial court granted Frances’ petition and distributed the couple’s marital assets on May 16, 1983. Testimony and evidence produced at the hearings before the court revealed the following pertinent facts.

At the time of their marriage James was 23 years old and Frances was 21. James had completed one year of study toward a master’s degree in anatomy; Frances had received a bachelor’s degree and had begun a career in retailing. During their marriage, James continued his studies while Frances held retail positions at Albert K, a women’s clothing store chain. Essentially, James’ parents paid for his tuition and related educational expenses, and Frances’ salary was used for the couple’s common living expenses. The record indicates that James pursued his academic endeavors full-time from 1973 to 1977. He graduated from Chicago College of Osteopathic Medicine in June 1977 and interned for a year at Chicago Osteopathic Hospital. He then received his Doctor of Osteopathy license and began a residency in orthopedic surgery at Rush-Presbyterian-St. Luke’s Medical Center, earning a yearly salary of approximately $22,000. At the time of the court’s hearings, he was to complete this residency in July 1983 and had applied for a grant to the National Institute of Health for a three-year fellowship at a maximum salary of $17,000 per year. No final determination of this application had been made at the time the court dissolved the couple’s marriage and distributed the marital estate.

During the period James attended medical school, Frances held retailing positions at Albert K. Her employment record reflected consistent raises in her salary over the previous years, and in the last four to five years prior to the dissolution hearings, Frances had been given increasing responsibilities, culminating in a promotion into the management level of the company. Her gross earnings from this retailing management position were almost $22,000 in 1981 and almost $26,000 in 1982. She stated at the hearing, however, that the advancement potential of the position she held was uncertain because the company had encountered financial difficulties in recent months which had caused it to lay off employees with many more years of experience with the company than she had.

Overall, evidence presented to the trial court indicated that for the years from 1973 to 1977, Frances’ earnings totalled approximately $50,000 while James’ amounted to roughly $9,000, a good portion of which was earned in the last months of 1977 when James began his internship. From 1977 to the date of the dissolution hearing their earnings were roughly equivalent, with Frances earning slightly more than James.

The trial court found that during the marriage James and Frances were able to accumulate a marital estate valued at almost $120,000. At the time of the hearing the estate consisted of the following:

1. a condominium unit at 1660 North LaSalle Street with a fair market value of $90,000, a mortgage balance of $48,000, and a net equity of $42,000, which they owned as joint tenants;

2. a condominium unit at 1460 North Sandburg Terrace with a fair market value of $86,000, a mortgage balance of $66,524, and a net equity of $19,476; they owned this unit jointly with Frances’ parents, and thus had an interest in one half of the net equity, or $9,738;

3. a condominium unit at 5415 North Sheridan Road with a fair market value of $55,500, a mortgage balance of $34,021, and a net equity of $21,479; they owned this unit jointly with Frances’ parents, and thus had an interest in one half of the net equity, or $10,740;

4. a Dreyfus money market fund, valued at $34,053 at the time of the couple’s separation, of which Frances had spent $7,053 subsequent thereto, for a present value of $27,000;

5. a pension plan owned by Frances with her present employer, with no preset value;

6. Commonwealth Edison stock valued at $2,500;

7. Kansas City Power & Light common stock, valued at $2,800;

8. The Inland Limited Partnership, a tax shelter, valued at $4,000;

9. a life insurance policy covering James, valued at $6,439;

10. a 1968 Chevrolet automobile, valued at $2,800;

11. items of women’s jewelry, worn by Frances, valued at $4,300.

The trial court determined that James’ medical degree and license were not marital property subject to distribution.

To Frances, the trial court awarded the marital interests in the three condominium units, her pension plan, and her jewelry. The court added to these assets the amount of $7,053, which she had withdrawn from the parties’ Dreyfus fund subsequent to their separation. Her award thus amounted to $73,831, or approximately 62% of the marital estate.

James was awarded the Dreyfus fund, the life insurance plan, the various shares of stock, and the couple’s car. This award amounted to $45,539, or roughly 38% of the estate.

Subsequent to the court’s judgment, Frances filed motions to reopen proofs on the grounds that additional evidence required a modification of the court’s judgment in dissolution of the marriage. Specifically, she alleged that she had lost her job, that James’ application for the National Institute of Health grant had not been approved and he was about to enter the job market as an orthopedic surgeon, and that he had breached an out-of-court agreement to cooperate with her in procuring a Jewish divorce. The trial court denied these motions, and the present appeal by Frances ensued.

I

Frances argues that the trial court committed reversible error in excluding evidence of the value of James’ degree and license to practice surgery. Specifically, Frances sought below to introduce expert testimony of the total future increased value of James’ income from this advanced degree and license. This was to be determined by subtracting from his average lifetime earnings with his degree and license the average lifetime earnings he would have acquired with only his bachelor’s degree in science, for a total of $1,172,000. Frances advances two alternative arguments in support of her contentions that exclusion of this evidence constituted reversible error. First, she claims that James’ license and degree are marital property within the contemplation of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.). Alternatively, she contends that this evidence should have been admitted to prove the extent of the parties’ relative earning capacities, as this is one factor the trial court is to consider in order to distribute the marital estate between the spouses in a just and equitable manner. Ill. Rev. Stat. 1981, ch. 40, par. 503(d)(7).

A

Frances initially claims that James’ license and degree should be considered marital property under the Act. She concedes that this issue has never been definitively resolved under Illinois law, and urges us to adopt what appears to be the view of a minority of courts in other jurisdictions that a spouse’s professional license or degree earned while married is marital property subject to distribution.

Our research indicates that 23 jurisdictions have considered the appropriate manner in which to distribute the marital assets and award maintenance or other relief when the spouse who engaged in employment in order to support the family unit while the other pursued academic interests argues upon dissolution of the marriage that the student spouse’s degree or license constitutes marital property. Of these. 16 have held that the student spouse’s degree or license is not marital property. (Arizona (Pyeatte v. Pyeatte (Ariz. App. 1982), 135 Ariz. 346, 661 P.2d 196; Wisner v. Wisner (Ariz. App. 1981), 129 Ariz. 333, 631 P.2d 115); California (In re Marriage of Sullivan (1982), 134 Cal. App. 3d 634, 184 Cal. Rptr. 796 (hearing granted); In re Marriage of Aufmuth (1979), 89 Cal. App. 3d 446, 152 Cal. Rptr. 668, overruled on other grounds; In re Marriage of Lucas (1980), 27 Cal. 3d 808, 614 P.2d 285, 166 Cal. Rptr. 853; Todd v. Todd (1969), 272 Cal. App. 2d 786, 78 Cal. Rptr. 131); Colorado (In re Marriage of Graham (1978), 194 Colo. 429, 574 P.2d 75; In re Marriage of McVey (Colo. App. 1981), 641 P.2d 300); Connecticut (Zahler v. Zahler (Conn. Super. Ct., New Haven Dist., Aug. 5, 1982), 8 Fam. L. Rptr. 2694); Delaware (Wright v. Wright (Del. Fam. Ct. 1983), 469 A.2d 803); Florida (Hughes v. Hughes (Fla. App. 1983), 438 So. 2d 146; Severs v. Severs (Fla. App. 1983), 426 So. 2d 992); Indiana (McManama v. McManama (1980), 272 Ind. 483, 399 N.E.2d 371); Iowa (In re Marriage of Horstmann (Iowa 1978), 263 N.W.2d 885); Kentucky (Inman v. Inman (Ky. 1982), 648 S.W.2d 847; McGowan v. McGowan (Ky. App. 1983), 663 S.W.2d 219; Leveck v. Leveck (Ky. App. 1981), 614 S.W.2d 710); New Jersey (Mahoney v. Mahoney (1982), 91 N.J. 488, 453 A.2d 527); New Hampshire (Ruben v. Ruben (N.H. 1983), 461 A.2d 733); New Mexico (Muckleroy v. Muckleroy (1972), 84 N.M. 14, 498 P.2d 1357); Oklahoma (Hubbard v. Hubbard (Okla. 1979), 603 P.2d 747); Texas (Frausto v. Frausto (Tex. Civ. App. 1980), 611 S.W.2d 656); Wisconsin (In re Marriage of Lundberg (1982), 107 Wis. 2d 1, 318 N.W.2d 918); Wyoming (Grosskopf v. Grosskopf (1984), 677 P.2d 814).) Four jurisdictions have declined to resolve the specific issue, concluding instead that the degree or license is to be considered in determining the distribution of property, maintenance, or some form of equitable reimbursement. (Minnesota (In re Marriage of DeLaRosa (Minn. 1981), 309 N.W.2d 755); Missouri (In re Marriage of Lowrey (Mo. App. 1982), 633 S.W.2d 157); Ohio (Lira v. Lira (1980), 68 Ohio App. 2d 164, 428 N.E.2d 445); Washington (Washburn v. Washburn (1984), 101 Wash. 2d 168, 677 P.2d 152 (en banc)).) There are three jurisdictions in which some authority may be found to support the contention that a degree or license may be marital property in certain circumstances. In Michigan, courts have concluded that a degree or license is to be treated as a marital asset only where there is no marital property to distribute and the contributing spouse is not entitled to maintenance. (Compare Watling v. Watling (1983), 127 Mich. App. 624, 339 N.W.2d 505 (substantial marital estate; degree held not marital property) with Woodworth v. Woodworth (1983), 126 Mich. App. 258, 337 N.W.2d 332 (no marital estate, contributing spouse not entitled to maintenance; degree held marital property).) In New York, one court has concluded that an advanced degree was marital property (O’Brien v. O’Brien (1982), 114 Misc. 2d 233, 452 N.Y.S.2d 801), while two have held that it was not (Conner v. Conner (1983), 97 App. Div. 2d 88, 468 N.Y.S.2d 482; Lesman v. Lesman (1982), 88 App. Div. 2d 153, 452 N.Y.S.2d 935.) Finally, in Massachusetts, one trial court has concluded that a husband’s degree constituted marital property. Been v. Reen (Mass. Prob. & Fam. Ct., Dec. 23, 1981), 8 Fam. L. Rptr. 1053, 2193.

Courts which have refused to recognize a degree or license as marital property have justified this result either on the grounds that the degree or license is not “property” because it cannot be assigned, transferred, sold, conveyed, pledged, or inherited (Wisner v. Wisner (Ariz. App. 1981), 129 Ariz. 333, 340, 631 P.2d 115, 122; In re Marriage of Graham (1978), 194 Colo. 429, 432, 574 P.2d 75, 77; In re Marriage of Horstmann (Iowa 1978), 263 N.W.2d 885, 891; Mahoney v. Mahoney (1982), 91 N.J. 488, 496, 453 A.2d 527, 531; Ruben v. Ruben (N.H. 1983), 461 A.2d 733, 735; Conner v. Conner (1983), 97 App. Div. 2d, 88, 93 n.1, 468 N.Y.S.2d 482, 487 n.1; Lesman v. Lesman (1982), 88 App. Div. 2d 153, 157, 452 N.Y.S.2d 935, 938; Lira v. Lira (1980), 68 Ohio App. 2d 164, 167-68, 428 N.E.2d 445, 448; Hubbard v. Hubbard (Okla. 1979), 603 P.2d 747, 750; Frausto v. Frausto (Tex. Civ. App. 1980), 611 S.W.2d 656, 659; Grosskopf v. Grosskopf (Wyo. 1984), 677 P.2d 814, 822); or on the grounds that the degree is not “marital property” because it is not susceptible to joint ownership (In re Marriage of Aufmuth (1979), 89 Cal. App. 3d 446, 461, 152 Cal. Rptr. 668, 677; Todd v. Todd (1969), 272 Cal. App. 2d 786, 791, 78 Cal. Rptr. 131, 134; Muckleroy v. Muckleroy (1972), 84 N.M. 14, 15, 498 P.2d 1357, 1358), or on the grounds that regardless of whether it may be deemed “property” it has no readily ascertainable value. Hughes v. Hughes (Fla. App. 1983), 438 So. 2d 146, 148; Mahoney v. Mahoney (1982), 91 N.J. 488, 496, 453 A.2d 527, 531.

Courts which have concluded that a degree or license constituted marital property have focused primarily on the achievement of an equitable result, reasoning that “whether or not an advanced degree can physically or metaphysically be defined as ‘property’ is beside the point” (Woodworth v. Woodworth (1983), 126 Mich. App. 258, 263, 337 N.W.2d 332, 335; see also O’Brien v. O’Brien (1982), 114 Misc. 2d 233, 239-40, 452 N.Y.S.2d 801, 805) and observing that the valuation of a degree according to its future earning potential is not any more speculative than similar analyses in the contexts of personal injury, wrongful death, or worker’s compensation. Woodworth v. Woodworth (1983), 126 Mich. App. 258, 266-67, 337 N.W.2d 332, 336; see also O’Brien v. O’Brien (1982), 114 Misc. 2d 233, 240-41, 452 N.Y.S.2d 801, 806.

Notwithstanding this seeming divergence of opinion on the characterization of a degree or license, there is nevertheless clear agreement that the contributing spouse should be entitled to some form of compensation for the financial efforts and support provided to the student spouse in the expectation that the marital unit would prosper in the future as a direct result of the couple’s previous sacrifices. (Pyeatte v. Pyeatte (Ariz. App. 1982), 135 Ariz. 346, 357, 661 P.2d 196, 207; Wisner v. Wisner (Ariz. App. 1981), 129 Ariz. 333, 341, 631 P.2d 115, 123; In re Marriage of Aufmuth (1979), 89 Cal. App. 3d 446, 461, 152 Cal. Rptr. 668, 677; In re Marriage of McVey (Colo. App. 1981), 641 P.2d 300, 301; Zahler v. Zahler (Conn. Super. Ct., New Haven Dist., Aug. 5, 1982), 8 Fam. L. Rptr. 2694, 2695; Hughes v. Hughes (Fla. App. 1983), 438 So. 2d 146, 150; In re Marriage of Horstmann (Iowa 1978), 263 N.W.2d 885, 890; Inman v. Inman (Ky. 1982), 648 S.W.2d 847, 852; McGowan v. McGowan (Ky. App. 1983), 663 S.W.2d 219, 223; Moss v. Moss (Ky. App. 1982), 639 S.W.2d 370, 375; Leveck v. Leveck (Ky. App. 1981), 614 S.W.2d 710, 712; Watling v. Watling (1983), 127 Mich. App. 624, 627, 339 N.W.2d 505, 507; Woodworth v. Woodworth (1983), 126 Mich. App. 258, 261, 337 N.W.2d 332, 334; In re Marriage of DeLaRosa (Minn. 1981), 309 N.W.2d 755, 758; In re Marriage of Lowrey (Mo. App. 1982), 633 S.W.2d 157, 160; In re Marriage of Vanet (Mo. App. 1976), 544 S.W.2d 236, 241; Mahoney v. Mahoney (1982), 91 N.J. 488, 500, 453 A.2d 527, 533; Lesman v. Lesman (1982), 88 App. Div. 2d 153, 158, 452 N.Y.S.2d 935, 939; Conteh v. Conteh (1982), 117 Misc. 2d 42, 45, 457 N.Y.S.2d 363, 364; O’Brien v. O’Brien (1982), 114 Misc. 2d 233, 239, 452 N.Y.S.2d 801, 805; Hubbard v. Hubbard (Okla. 1979), 603 P.2d 747, 751; Frausto v. Frausto (Tex. Civ. App. 1980), 611 S.W.2d 656, 659; Washburn v. Washburn (1984), 101 Wash. 2d 168, 173, 677 P.2d 152, 158; In re Marriage of Haugan (1984), 117 Wis. 2d 200, 207, 343 N.W.2d 796, 800; In re Marriage of Lundberg (1982), 107 Wis. 2d 1, 14, 318 N.W.2d 918, 923; Grosskopf v. Grosskopf (Wyo. 1984), 677 P.2d 814, 822-23.

We believe comparative analysis reveals a developing majority consensus which recognizes three alternative methods to permit such compensation: (1) distribution of marital assets and liabilities, (2) some form of maintenance or alimony, or (3) an equitable monetary award to the spouse based on unjust enrichment or some other equitable principle. Usually, the first alternative, and the most preferred, is to distribute the couple’s marital assets and liabilities such that the supporting spouse’s past contributions and the student spouse’s resulting increased earning capacity are taken into consideration. (See Wisner v. Wisner (Ariz. App. 1981), 129 Ariz. 333, 631 P.2d 115; In re Marriage of Aufmuth (1979), 89 Cal. App. 3d 446, 152 Cal. Rptr. 668; Todd v. Todd (1969), 272 Cal. App. 2d 786, 78 Cal. Rptr. 131; In re Marriage of McVey (Colo. App. 1981), 641 P.2d 300; Wright v. Wright (Del. Fam. Ct. 1983), 469 A.2d 803; Hughes v. Hughes (Fla. App. 1983), 438 So. 2d 146; Severs v. Severs (Fla. App. 1983), 426 So. 2d 992; McGowan v. McGowan (Ky. App. 1983), 663 S.W.2d 219; Leveck v. Leveck (Ky. App. 1981), 614 S.W.2d 710; Watling v. Watling (1983), 127 Mich. App. 624, 339 N.W.2d 505; In re Marriage of Lowrey (Mo. App. 1982), 633 S.W.2d 157; In re Marriage of Vanet (Mo. App. 1976), 544 S.W.2d 236; Mahoney v. Mahoney (1982), 91 N.J. 488, 453 A.2d 527; Ruben v. Ruben (N.H. 1983), 461 A.2d 733; Lira v. Lira (1980), 68 Ohio App. 2d 164, 428 N.E.2d 445; Daniels v. Daniels (1961), 20 Ohio Op. 2d 458, 185 N.E.2d 773; Hubbard v. Hubbard (Okla. 1979), 603 P.2d 747; Frausto v. Frausto (Tex. Civ. App. 1980), 611 S.W.2d 656; Washburn v. Washburn (1984), 101 Wash. 2d 168, 677 P.2d 152; In re Marriage of Haugan (1984), 117 Wis. 2d 200, 343 N.W.2d 796; In re Marriage of Lundberg (1982), 107 Wis. 2d 1, 318 N.W.2d 918; Grosskopf v. Grosskopf (Wyo. 1984), 677 P.2d 814; see also In re Marriage of Angerman (1980), 44 Colo. App. 298, 612 P.2d 1166; Greer v. Greer (1973), 32 Colo. App. 196, 510 P.2d 905.) In this manner, the contributing spouse is awarded an equitable percentage of the benefits the couple has already been able to reap as a result of the other spouse’s enhanced professional opportunities. See Wisner v. Wisner (Ariz. App. 1981), 129 Ariz. 333, 341, 631 P.2d 115, 123; In re Marriage of Aufmuth (1979), 89 Cal. App. 3d 446, 461, 152 Cal. Rptr. 668, 677; Todd v. Todd (1969), 272 Cal. App. 2d 786, 791, 78 Cal. Rptr. 131, 134-35; Wright v. Wright (Del. Fam. Ct. 1983), 469 A.2d 803, 805-06; McGowan v. McGowan (Ky. App. 1983), 663 S.W.2d 219, 224; Watling v. Watling (1983), 127 Mich. App. 624, 627, 339 N.W.2d 505, 507; Mahoney v. Mahoney (1982), 91 N.J. 488, 504, 453 A.2d 527, 536; Hubbard v. Hubbard (Okla. 1979), 603 P.2d 747, 751; Grosskopf v. Grosskopf (Wyo. 1984), 677 P.2d 814, 822.

The second alternative, either in addition to or instead of property distribution, is an award in maintenance or alimony. See In re Marriage of Aufmuth (1979), 89 Cal. App. 3d 446, 152 Cal. Rptr. 668; Zahler v. Zahler (Conn. Super. Ct., New Haven Dist., Aug. 5, 1982), 8 Fam. L. Rptr. 2694; Hughes v. Hughes (Fla. App. 1983), 438 So. 2d 146; Severs v. Severs (Fla. App. 1983), 426 So. 2d 992; In re Marriage of Horstmann (Iowa 1978), 263 N.W.2d 885; McGowan v. McGowan (Ky. App. 1983), 663 S.W.2d 219; Leveck v. Leveck (Ky. App. 1981), 614 S.W.2d 710; Vaclav v. Vaclav (1980), 96 Mich. App. 584, 293 N.W.2d 613; Moss v. Moss (1978), 80 Mich. App. 693, 264 N.W.2d 97; In re Marriage of Lowrey (Mo. App. 1982), 633 S.W.2d 157; In re Marriage of Vanet (Mo. App. 1976), 544 S.W.2d 236; Mahoney v. Ma honey (1982), 91 N.J. 488, 453 A.2d 527; Conteh v. Conteh (1982), 117 Misc. 2d 42, 457 N.Y.S.2d 363; Lira v. Lira (1980), 68 Ohio App. 2d 164, 428 N.W.2d 445; Daniels v. Daniels (1961), 20 Ohio Op. 2d 458, 185 N.E.2d 773; Washburn v. Washburn (1984), 101 Wash. 2d 168, 677 P.2d 152; In re Marriage of Haugan (1984), 117 Wis. 2d 200, 343 N.W.2d 796; In re Marriage of Lundberg (1982), 107 Wis. 2d 1, 318 N.W.2d 918; see also In re Marriage of Graham (1978), 194 Colo. 429, 547 P.2d 75 (maintenance not requested); In re Marriage of Angerman (1980), 44 Colo. App. 298, 612 P.2d 1166.

The third alternative is a separate monetary award to the contributing spouse as compensation for funds advanced to defray the student spouse’s educational costs and living expenses. Courts have usually followed this approach when the traditional methods of property distribution and maintenance were not sufficient to reach an equitable result, and have relied upon the trial court’s inherent equitable powers and the theory of unjust enrichment to justify such awards. See Pyeatte v. Pyeatte (Ariz. App. 1982), 135 Ariz. 346, 661 P.2d 196; Inman v. Inman (Ky. 1982), 648 S.W.2d 847; In re Marriage of DeLaRosa (Minn. 1981), 309 N.W.2d 755; Mahoney v. Mahoney (1982), 91 N.J. 488, 453 A.2d 527; Hubbard v. Hubbard (Okla. 1979), 603 P.2d 747; Washburn v. Washburn (984), 101 Wash. 2d 168, 677 P.2d 152; see also McManama v. McManama (1980), 272 Ind. 483, 399 N.E.2d 371; Conteh v. Conteh (1982), 117 Misc. 2d 42, 457 N.Y.S.2d 363; Grosskopf v. Grosskopf (Wyo. 1984), 677 P.2d 814.

As previously observed, a minority has adhered to the fourth alternative of recognition of a degree or license as a marital asset. (See Woodworth v. Woodworth (1983), 126 Mich. App. 258, 337 N.W.2d 332; O’Brien v. O’Brien (1982), 114 Misc. 2d 233, 452 N.Y.S.2d 801; Reen v. Reen (Mass. Prob. and Fam. Ct., Dec. 23, 1981), 8 Fam. L. Rptr. 1053, 2193.) In our opinion, these decisions did not intend adoption of a rule that a license or degree earned during a marriage should always be a marital asset per se, however. Instead, they represented a last-resort method to justify a compensatory award to the supporting spouse for the financial contributions made to the professional academic pursuits of the other spouse, available only where the remedies of property distribution, maintenance, or unjust enrichment awards were not available in order to reach an equitable result. See Watling v. Watling (1983), 127 Mich. App. 624, 626-28, 339 N.W.2d 505, 506-07, interpreting Woodworth v. Woodworth (1983), 126 Mich. App. 258, 337 N.W.2d 332; O’Brien v. O’Brien (1982), 114 Misc. 2d 233, 452 N.Y.S.2d 801 (license and degree held marital property given “unusual circumstances” of case in which wife supported husband through medical school, couple divorced shortly after husband’s attainment of degree and license, there were no substantial marital assets, and wife was not entitled to maintenance).

In our view, Illinois law presently provides an ample method for compensation to the contributing spouse through traditional remedies, without the need to resort to adoption of a hard and fast rule that a spouse’s degree or license earned during the marriage is to be considered a marital asset even under limited circumstances.

We agree with the trial court’s determination in the case at bar that James’ degree and license did not constitute property. In Illinois, the term property has been defined as “a word of the very broadest import, connoting any tangible or intangible res which might be made the subject of ownership.” (In re Marriage of Goldstein (1981), 97 Ill. App. 3d 1023, 1026, 423 N.E.2d 1201, appeal denied (1981), 85 Ill. 2d 565.) In order to be property within the ambit of the Act, however, the res must be in the nature of a present property interest, rather than a mere expectancy interest. (In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 660, 397 N.E.2d 511.) An expectancy interest is the “interest of a person who merely foresees that he might receive a future beneficence, such as the interest of an heir apparent *** or of a beneficiary designated by a living insured who has a right to change the beneficiary.” In re Marriage of Pesheck (1980), 89 Ill. App. 3d 959, 964, 412 N.E.2d 698.

A degree or license is at most a mere expectancy of some future income or earnings. (See In re Marriage of Goldstein (1981), 97 Ill. App. 3d 1023, 1027-28, 423 N.E.2d 1201.) Neither has a present assignable value, as neither can be sold as can other items of an intangible nature such as goodwill of a business (see, e.g., In re Marriage of White (1981), 98 Ill. App. 3d 380, 424 N.E.2d 421, appeal denied (1981), 85 Ill. 2d 582), nor can either be said to represent a guarantee of receipt of a set amount in the future such as pension benefits. See, e.g., In re Marriage of Keller (1982), 108 Ill. App. 3d 556, 439 N.E.2d 44.

Rather than being classified as marital assets, a spouse’s professional degree or license, earned while married through the financial support of the other spouse, is a relevant factor in distribution of the couple’s marital assets and liabilities. (Ill. Rev. Stat. 1981, ch. 40, par. 503(d); see In re Marriage of Woodward (1980), 83 Ill. App. 3d 253, 256, 404 N.E.2d 575.) In addition, each spouse’s individual contributions to the marital unit are also relevant to this distribution. (Ill. Rev. Stat. 1981, ch. 40, par. 503(d)(7); see e.g., In re Marriage of Clearman (1981), 97 Ill. App. 3d 641, 648, 423 N.E.2d 283, appeal denied (1981), 85 Ill. 2d 565.) Maintenance awards, where appropriate, are to be granted according to similar standards which take into account the contributions of the parties, the duration of the marriage, and their relative future earning capacities. (See Ill. Rev. Stat. 1981, ch. 40, par. 504; see also In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 631, 450 N.E.2d 1229.) Finally, although the remedies a trial court may award pursuant to a petition for dissolution of marriage are limited to those specified in the Act (see Gray v. Gray (1978), 57 Ill. App. 3d 430, 437, 373 N.E.2d 317), at least one Illinois court has determined that a trial court nevertheless possesses inherent equitable authority to grant relief upon a properly pleaded and proved claim of unjust enrichment presented in conjunction with a petition for dissolution of marriage. In re Marriage of Robinson (1981), 100 Ill. App. 3d 437, 444, 429 N.E.2d 183.

In the case at bar, the trial court properly followed these principles and guidelines. The court specifically emphasized that it took into consideration both James’ greater earning potential and Frances’ financial contributions to the marital unit in its award to Frances of a disproportionately greater share of the marital estate. Frances has not argued that this distribution constituted an abuse of discretion, and we can find none in the record before us. See In re Marriage of Sevon (1984), 117 Ill. App. 3d 313, 319, 453 N.E.2d 866.

Furthermore, we observe that Frances has made no contention in this appeal that she was entitled to maintenance or equitable relief Sen-unjust enrichment. We also note that she has not disputed the uncontroverted evidence presented by James at the trial court’s hearing to prove that his tuition and related educational costs were paid by his parents, not by Frances. Finally, we observe that Frances’ proffered expert testimony valued James’ degree and license according to an estimated increased earning capacity which he might possess because of the degree and license, and that such increased earning potential is not a divisible marital asset under Illinois law. (See In re Marriage of Evans (1981), 85 Ill. 2d 523, 426 N.E.2d 854; In re Marriage of Goldstein (1981), 97 Ill. App. 3d 1023, 423 N.E.2d 1201.) We decline to adhere to Frances’ view that James’ potential increased future earning capacity should be labelled instead as the value of his degree and license and in that guise be considered marital property, in order to avoid the precedent of Evans and Goldstein.

For the reasons set forth above, we find no error in the trial court’s ruling.

B

Frances also contends that the trial court committed reversible error in its refusal to admit her offered expert testimony because such evidence was relevant to the couple’s relative future earning capacity. We find no such error.

The Act provides that the court “shall divide the marital property *** in just proportions considering all relevant factors including *** the amount and sources of income *** of each of the parties ***.” (Ill. Rev. Stat. 1981, ch. 40, par. 503(d)(7).) In considering this factor, the Act contemplates that the court will need to make only an approximation of the income available to both parties. (In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 427 N.E.2d 1262, appeal denied (1982), 91 Ill. 2d 581.) The decision to allow or exclude expert testimony is within the sound discretion of the trial court (Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 418 N.E.2d 1079, appeal denied (1981), 85 Ill. 2d 576, and where the evidence is cumulative and would not materially alter the outcome of the case, it is not error for the trial court to refuse to allow it. In re Estate of Letches (1979), 79 Ill. App. 3d 772, 398 N.E.2d 1043, appeal denied (1980), 79 Ill. 2d 634.

Here, both parties testified extensively on their past, current, and future earning potentials. The trial court specifically took into consideration this disproportionate earning capacity in its award of 62% of the marital estate to Frances. Consequently, we find no error.

II

Frances’ second argument for reversal of the trial court’s judgment rests upon a narrow reading of the trial court’s oral pronouncement a few months prior to entry of the court’s dissolution judgment. Specifically, she points to the following statement of the trial court as grounds that its judgment was erroneous and therefore should be reversed:

“Mrs. Weinstein has some jewelry, including *** her engagement ring, and a gold watch and a diamond necklace given to her by Dr. Weinstein which cost about $4,300 ***.”

Frances claims that the court clearly found that this jewelry was a gift, and therefore should not have been included as part of the marital estate awarded to her upon dissolution of the marriage. She contends that this error requires reversal of the trial court’s judgment and remandment for a redistribution of the marital estate. We disagree.

Section 503 of the Act provides that property acquired by one spouse as a gift is considered nonmarital property. (Ill. Rev. Stat. 1981, ch. 40 par. 503(a)(1).) The section has been interpreted to permit both interspousal gifts as well as gifts from third parties. In re Marriage of Severns (1981), 93 Ill. App. 3d 122, 416 N.E.2d 1235.

A spouse claiming property as a gift must “show not only delivery, but also that the delivery *** was made ‘with the intention of vesting the title absolutely and irrevocably in the donee.’ ” (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 654, 409 N.E.2d 321.) Where the subject matter of an interspousal transfer is property acquired prior to the marriage, the common law presumption of a gift controls, which the “donor” spouse may rebut with clear and convincing evidence. (In re Marriage of Severns (1981), 93 Ill. App. 3d 122, 416 N.E.2d 1235.) Where the property is acquired during the marriage, however, the Act’s presumption in favor of recognition as marital property is controlling, which the “donee” spouse must rebut with clear and convincing evidence. In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635.

In the case at bar, the disputed items were of two kinds. The record shows that the engagement ring was acquired prior to the marriage; the gold watch and diamond necklace were purchased during the marriage. James presented undisputed testimony that the engagement ring was purchased by his parents and given to both James and Frances as a wedding gift to them. Thus, the facts here do not present an interspousal transfer of property acquired prior to marriage to which the common law presumption of a gift to Frances would apply. (See In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 440 N.E.2d 1028, appeal denied (1983), 92 Ill. 2d 579.) Rather, the record reflects that the property was a gift to the couple and consequently part of the marital estate, and that Frances failed to rebut this with clear and convincing evidence to the contrary. (See In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 427 N.E.2d 1262.) As a result, the trial court did not err in including the ring as part of the marital estate.

The gold watch and diamond necklace which Frances also claims as nonmarital property were both purchased subsequent to the marriage. The Act presumes that in such instances the interspousal transfer is nonetheless marital property. (In re Marriage of Severns (1981), 93 Ill. App. 3d 122, 416 N.E.2d 1235.) Frances introduced only her own testimony that the jewelry was intended as a gift to her personally which would not remain part of the marital estate. The trial court found this insufficient to meet the burden of clear and convincing proof required of Frances to prove her claim, and we can find no abuse of discretion in this determination.

Moreover, even assuming arguendo that the trial court’s determination of the nature of the disputed items was erroneous, a full review of the record demonstrates that it was nonetheless harmless. A trial court’s error is not grounds for reversal and remandment where it was of insignificant importance and did not unduly affect the trial court’s discretion. (In re Marriage of Arkin (1982), 108 Ill. App. 3d 103, 438 N.E.2d 957.) The jewelry in question had an uncontroverted value of $4,300; the value of the total marital estate, subtracting the worth of the jewelry, was approximately $115,000. The jewelry was thus roughly one-fortieth of the total estate. This amount was an insignificant portion of the total marital property accumulated by the parties during their marriage, and had no special effect on the trial court’s distribution of the estate. As a result, we find no reversible error in the trial court’s judgment.

Ill

Lastly, Frances argues that the trial court committed reversible error in its denial of her motions to reopen proofs to show that she had lost her job, that James’ salary was about to increase substantially because he was about to begin his career as a surgeon, and that he had breached an out-of-court agreement to obtain a Jewish divorce. Based on the record before us, we cannot conclude that the trial court’s denial of these motions was improper.

In considering a motion to reopen proofs, a trial court should take into account whether there is some excuse for the failure to introduce the evidence at trial, whether the adverse party will be surprised or unfairly prejudiced by the new evidence, whether the evidence is of utmost importance to the movant’s case, and whether there are the most cogent reasons to deny the motion. (Western Transportation Co. v. Republic Molding Co. (1982), 104 Ill. App. 3d 1081, 433 N.E.2d 1060; Harper v. Johnson (1978), 61 Ill. App. 3d 190, 377 N.E.2d 1288.) The decision to deny such motions is within the sound discretion of the trial court and will not be disturbed on review absent a clear abuse thereof. Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 428 N.E.2d 190, appeal denied (1982), 91 Ill. 2d 557.

We cannot say that the trial court abused its discretion in the case at bar, as the evidence Frances sought to introduce was not of utmost importance to her case and likely would not have materially altered the trial court’s judgment. The trial court emphasized that it awarded Frances substantial marital assets because of the parties’ disparate earning capacities; consequently, any change in James’ immediate earnings would not have altered the trial court’s distribution of the marital estate. Furthermore, the record indicates that Frances’ loss of employment was only a temporary setback in her several years of professional experience, occasioned by economic reversals of the company where she had been employed. This, also, would not have required a redistribution of the marital assets. Finally, James’ alleged breach of an out-of-court agreement to obtain a Jewish divorce was not a factor cognizable by the trial court in its distribution of assets. See Ill. Rev. Stat. 1981, ch. 40, par. 503(d).

For the foregoing reasons, the judgment and order of the trial court are affirmed.

Affirmed.

JOHNSON and JIGANTI, JJ., concur.

        In re Marriage of Maun (1983), 110 Ill. App. 3d 1209, relied on by Frances is a Supreme Court Rule 23 Order and has no precedential value. In any event it is inapposite to the case at bar since it held that a husband’s practice was marital property.


source: Caselaw Access Project

author: PRESIDING JUSTICE LINN

license: Public Domain

text:
    S. HELENE SADACCA, Plaintiff-Appellee, v. MARY MONHART, Defendant and Counterplaintiff-Appellant (S. Helene Sadacca, et al., Counter defendants-Appellees).
    First District (4th Division)
    No. 83—1531
    Opinion filed October 25, 1984.

      William R. Yowell, of Chicago, for appellant.
    Nathan M. Cohen and Joel S. Siegel, both of Arvey, Hodes, Costello & Bruman, of Chicago, for appellee S. Helene Sadacca.
    Jerry D. Jones and Susan M. McCowin, both of Wilson & McIlvaine, of Chicago, for appellee David M. Hartigan.
   PRESIDING JUSTICE LINN

delivered the opinion of the court:

Defendant, Mary Monhart, appeals from the decision of the circuit court of Cook County entering judgment in the amount of $107,988.25 in favor of plaintiff, Helene Sadacca, in her action to quiet title to certain real estate. On appeal, Monhart claims that (1) Sadacca presented insufficient evidence of forgery to overcome the presumption that a duly acknowledged deed is valid; (2) the trial court erred in refusing to impose a constructive trust in Monhart’s favor on certain funds received by Sadacca; (3) the trial court erred in discharging the administrator of Albert Sadacca’s estate; and (4) entry of a money judgment in favor of Sadacca was error because there was no privity between the parties and no breach of duty by Monhart.

We reverse the decision of the trial court.

Facts

Testimony at trial established that on May 9, 1980, Mary Monhart and her husband entered into a contract with Albert Sadacca, husband of plaintiff Helene Sadacca, to purchase the Sadaccas’ condominium unit located at 175 East Delaware, Chicago (the John Hancock Building), for $255,000. Although the Sadaccas held the unit in joint tenancy, Albert alone had signed the real estate listing agreement and the contract of sale.

Since 1960, while Albert lived in Chicago, Helene maintained as her residence a condominium unit in Miami, Florida. Originally, Helene came to Chicago for six months of each year, but for the five years prior to this action she was too ill to leave Florida. During this period, Albert usually sent Helene a monthly allowance of $3,500.

At the closing of the sale in June 1980, Kenneth Jacobson, the Monharts’ attorney, turned over the balance of the purchase price, $215,976.59, and received in exchange a deed, on its face executed by Albert and Helene and acknowledged by Morris Goldman, Albert’s attorney. Jacobson testified that the entire purchase price was paid to Albert because Goldman had verbally instructed him to have the check made out to Albert alone.

Albert then deposited $15,976.59 in his checking account and purchased a $200,000 short-term certificate of deposit with the balance of the sale proceeds. He subsequently cashed the certificate of deposit and, over a period of five months, purchased successively smaller certificates while depositing the balance in his checking account. He also sent Helene $3,500 in each of the five months following the sale. On December 4, 1980, when Albert died, a $100,000 certificate of deposit remained, which was cashed by the administrator of Albert’s estate at the direction of the court in order to give Helene a $75,000 widow’s award.

When Helene discovered the purported sale of the Hancock Building unit during an examination of Albert’s papers, she brought an action to quiet title to the property, claiming that she had not signed the deed, that her signature had been forged, and that she had received no consideration, and • asserting title to the unit as the surviving joint tenant of Albert.. Mary counterclaimed for the imposition of a constructive trust on funds received by Helene and entry of judgment in Mary’s favor against the administrator of Albert’s estate for $120,738.30, one-half the net value of the sale proceeds, for Albert’s breach of contract in not conveying full title. Originally, Mary had filed her claim against Albert’s estate in the probate division, but she joined the administrator as a defendant in her counterclaim after Helene filed her quiet title action in chancery.

At trial, Donald Doud, an examiner of questioned documents, testified that Helene could not be identified as having signed the deed and that he felt very strongly that she had not. However, he could not positively identify Albert as the person who had signed Helene’s name, although Albert’s writing was more compatible with the forged signature than was Helene’s.

The majority of the testimony of both Helene and Morris Goldman, Albert’s attorney and the notary who had acknowledged the deed, was presented through evidence depositions. According to Helene, she had known Goldman for over 10 years, and he had been a dinner guest of the Sadaccas. She maintained that she had never come to Chicago during the period of time surrounding the sale and had never signed any deed.

Goldman, in contrast, stated that he did not know Helene well, that he had seen her only a few times, and that when he suggested to Albert that the deed be sent to Helene in Florida for her acknowledged signature, Albert had told him that Helene was coming to Chicago and would sign the deed when she arrived. According to Goldman, when he arrived at the Sadacca’s apartment, he was shown into the bedroom because Helene was in bed, and he had her sign the deed there.

Goldman’s evidence deposition was further contradicted by Jerome Zurla, administrator of Albert’s estate. Zurla testified that when he called Goldman to inform him of Helene’s allegation that her signature on the deed had been forged, Goldman said, “Oh, my God. The old man just handed me the document, and I notarized it.” To Zurla’s question, “Did you see Mrs. Sadacca?” Goldman replied, “No. I just took it for granted that she signed it, and I just notarized it. I think I’m in a lot of trouble.” Zurla further testified that he knew from his personal knowledge that Helene was not in Chicago during June and July of 1980.

Following the close of testimony, the trial court found that Albert had signed a warranty deed that also contained a forged signature purporting to be that of Helene; that Albert had received the net amount of $215,976.59 as sale proceeds; that Helene knew nothing of the sale and had received none of her share of the consideration, $107,988.25; that Albert had severed the joint tenancy and had conveyed his interest to Mary, whereupon Mary and Helene became tenants in common; that Mary’s claim against Albert’s estate for the $127,500 half interest would best be disposed of in the probate court; that Mary’s request for repayment from Helene of all sums Helene recovered or may yet recover from Albert’s estate was unfounded in law; and that equity required that Mary be awarded clear title to the real estate upon her payment to Helene of an- amount equal to the fair value of Helene’s interest in the property. Judgment was thereupon entered in favor of Helene in the sum of $107,988.25; upon satisfaction of judgment Helene was ordered to quitclaim her interest to Mary; and the administrator was dismissed from the case. Helene subsequently amended her complaint to include a count for partition.

This appeal followed.

Opinion

I

The first issue raised by Mary on appeal concerns the sufficiency of the evidence to overcome the presumption of validity that attaches to a duly acknowledged deed. (Stone v. Stone (1950), 407 Ill. 66, 94 N.E.2d 855.) Specifically, Mary argues that Helene has failed to meet her burden to present the “clear, convincing and satisfactory [evidence], and by disinterested witnesses” necessary to prove a recorded, duly acknowledged deed to be a forgery. (Witt v. Panek (1951), 408 Ill. 328, 333, 97 N.E.2d 283, 285.) While we agree with Mary’s statement of the law in Illinois, we do not agree with her conclusions regarding Helene’s evidence.

It is true that the strongest testimony concerning the forgery came from Helene herself. However, Donald Doud, the examiner of questioned documents and handwriting expert, testified that he could not identify the signature as Helene’s, and that in his judgment she had not signed the deed. Mary attempts to diminish the effect of Doud’s evidence by saying that the second statement, which was given in testimony but not in Doud’s earlier written report to Mary, demonstrates a change of opinion. We do not agree. Our reading of his responses leads us to conclude that Doud merely said the same thing in two different ways.

In addition, Jerome Zurla, the administrator, presented evidence that he had talked to Helene in Florida by telephone during the time surrounding the sale; Albert told the real estate broker that Helene was too ill to come to Chicago; and Goldman, knowing the extent of her illness, was very surprised at Albert’s representation that Helene would be coming to Chicago to sign the deed. Further, Zurla’s recounting of his telephone call to Goldman casts grave doubt on Goldman’s testimony that Helene had signed the deed while in bed. Albert’s actions in signing the listing agreement and sale contract, as well as the fact that the check for the sale proceeds was directed to be made out solely to Albert, all demonstrate that Helene knew nothing of the sale. When all the evidence pertaining to the forged signature is examined, it is clear to us that Helene has met her burden of proof and that the trial court properly held that Helene’s signature on the deed was a forgery.

II

In her second claim of error, Mary contends that because Albert breached his contract and conveyed only a one-half interest in the real estate while receiving the total purchase price, the trial court should have imposed a constructive trust for her benefit on one-half of the sale proceeds she paid to Albert. We agree.

“A constructive trust is a device used by chancery to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs.” (Gravitt v. Jennings (1979), 79 Ill. App. 3d 286, 288, 398 N.E.2d 395, 397.) An implied or constructive trust “ ‘arises by operation of law when the circumstances of a transaction are such that the court finds it inequitable for the legal owner to enjoy the beneficial interest.’ ” (Price v. State of Illinois (1979), 79 Ill. App. 3d 143, 148, 398 N.E.2d 365, 370.) A constructive trust will be imposed to prevent a person holding title to property to profit from his wrong or be unjustly enriched by retaining the property. Bozeman v. Sheriff (1976), 42 Ill. App. 3d 228, 355 N.E.2d 624.

A constructive trust will arise when there is a breach of a fiduciary relationship or when fraud is proved. (Williams v. Teachers Insurance & Annuity Association (1973), 15 Ill. App. 3d 542, 304 N.E.2d 656.) However, a court of equity will raise a constructive trust even where there is no fraud whenever the circumstances of the transaction are such that a person who takes the legal estate may not enjoy the beneficial interest therein, as against the other party to the transaction. Selmaville Community Consolidated School District No. 10 v. Salem Elementary School District No. 111 (1981), 96 Ill. App. 3d 1062, 421 N.E.2d 1087.

Helene argues that a constructive trust may not be imposed on either the $75,000 widow’s award or on the $21,000 she received from Albert as maintenance between the date of the sale and Albert’s death because she and Mary had no fiduciary relationship and Helene was not the perpetrator of the fraud. Accordingly, maintains Helene, the precedent cases cited by Mary are inapposite to the present case.

Helene misperceives the nature and effect of a constructive trust as applied to her situation, as did the trial court. “The purpose of a constructive trust, in addition to preventing unjust enrichment [citation], is to make available against the involuntary trustee all the conventional remedies available against a conventional fiduciary for breach of duty.” David v. Russo (1983), 119 Ill. App. 3d 290, 297, 456 N.E.2d 342, 347.

In the instant case, as Helene herself has successfully argued, the fraud has been established as a fact. However, it is not Helene but Albert (now his estate) who is the constructive trustee holding property that belongs to Mary. Recognizing this fact from the outset, Mary joined the administrator of Albert’s estate as a party defendant. Mary’s request that the total of $96,000 given to Helene by Albert or the administrator be impressed with a constructive trust is based on the well-established principle that “[t]he trust res, if capable of identification, may be followed by the beneficiary into any and all the forms it may assume.” (Emphasis added.) (In re Estate of Joseph (1961), 30 Ill. App. 2d 492, 495, 175 N.E.2d 265, 266, citing Winger v. Chicago City Bank & Trust Co. (1946), 394 Ill. 94, 67 N.E.2d 265, and others.) When a person’s property has been wrongfully appropriated and converted into a different form, “equity impresses a constructive trust upon the new form or species of property, not only while it is in the hands of the original wrong-doer, but as long as it can be followed and identified in whosesoever hands it may come, except those of a bona fide purchaser for value.” (4 J. Pomeroy, Equity Jurisprudence (sec. 1051, at 113 (5th ed. 1941).) “[Property obtained by one [Helene] through the fraudulent practices of a third person [Albert] will be held under a constructive trust for the person defrauded [Mary] although the person receiving the benefit is innocent of collusion. If such person accepts the property, he adopts the means by which it was procured ***.” Brennan v. Persselli (1933), 353 Ill. 630, 636, 187 N.E. 820, 822.

The testimony of Kenneth Jacobson, attorney for the Monharts, established that after the closing, he and Albert, who was carrying the check for $215,976.59, walked to the Merchandise National Bank, where Jacobson observed Albert purchase a $200,000 certificate of deposit with the majority of the sale proceeds and deposit the remainder in his checking account. Bank officials testified to the successive rollovers of the fund into smaller certificates and the deposit of each balance in Albert’s checking account. The last certificate, which the administrator was directed by the court to cash in order to provide Helene with her widow’s award, was established to be in a direct chain from the first deposit and thus an identifiable res of the constructive trust.

Helene argues that no constructive trust may be imposed on her widow’s award of maintenance payments, traceable or not, because the fraud was made possible by Mary’s negligence in not demanding that the $215,976.59 check be made payable to both Helene and Albert; the necessity for Helene’s endorsement would have alerted her to Albert’s action in selling the property. As a result, Helene contends, Mary, whose action made the loss possible, must bear the loss as between two innocent parties. (National Premium Budget Plan Corp. v. La Salle Casualty Co. (1967), 81 Ill. App. 2d 466, 225 N.E.2d 400.) However, when all the conditions necessary to the imposition of a constructive trust are present, i.e., when one person has obtained legal title to property that he ought not in equity and good conscience retain, neither the good faith of the recipient nor the negligence of the payor preclude recovery. (Selmaville Community Consolidated School District No. 10 v. Salem Elementary School District No. 111 (1981), 96 Ill. App. 3d 1062, 421 N.E.2d 1087; Board of Education v. Holt (1976), 41 Ill. App. 3d 625, 354 N.E.2d 534.) We find, therefore, that the trial court erred in refusing to impose a constructive trust on Mary’s behalf on the $75,000 received by Helene as a widow’s award.

As to the $21,000 Helene received as maintenance, we find that Mary has not proved sufficiently that this money should be impressed with the trust. The monthly amounts were paid from Albert’s checking account, into which the balance of the res was deposited after each certificate rollover. Helene argues that because money from other sources also was deposited into that account, there was insufficient proof that the money she received monthly came from the trust res itself. We agree.

“If the trust property is money and it has become commingled with private funds of like character, the [beneficiary] *** may recover an equivalent amount from the mixed fund if he can show the particular fund into which the money has gone, such as, for example, an individual bank account of the trustee.” (35 Ill. L. & Prac. Trusts sec. 227, at 398 (1958).) However, where the trustee commingles trust funds with his own and subsequently withdraws sums from the combined fund for his own use, the conclusive presumption is that the trustee withdrew his own funds first. (4 J. Pomeroy, Equity Jurisprudence sec. 1058d, at 151 (5th ed. 1941); People v. Barrett (1950), 405 Ill. 188, 90 N.E.2d 94.) The burden is on Mary, therefore, to establish that the $3,500 payment each month actually depleted the trust res and was not paid out of Albert’s other deposited funds. As we do not find such evidence in the record, we cannot find that Mary has sufficiently traced the $21,000 in maintenance payments to warrant impressing them with a constructive trust in her favor.

Ill

Mary’s third claim on appeal is that the trial court erred in discharging the administrator at the conclusion of the trial and refusing to decide her claim against Albert’s estate. We agree.

Although the first suit filed by either of these parties was a breach of contract claim against Albert’s estate brought by Mary in the probate court, after Helene filed her claim to quiet title, Mary joined the administrator as a party defendant in order that all issues in the case be decided in one proceeding. The trial judge heard all the evidence necessary to establish Mary’s claim for reimbursement from Albert’s estate and made specific findings of fact on those elements— the existence of a valid contract between Mary and Albert, her payment of the entire purchase price, and Albert’s failure to fulfill his obligation under the sales contract to convey full title to the condominium unit. No other inquiry was necessary to support the claim, for the issue of the constructive trust and the tracing of the funds had no bearing on the breach of contract claim. Therefore, in the interest of judicial economy, the trial court should have decided the claim against Albert’s estate.

“It is axiomatic that where equity has assumed and has jurisdiction for the purpose of granting equitable relief the court may determine all the issues of the case, whether legal or equitable.” (McLeod v. Lambdin (1961), 22 Ill. 2d 232, 236, 174 N.E.2d 869, 872.) A court acting in equity should enter a decree adjudicating all matters in controversy so as to avoid multiple litigation and to do full and complete justice. Midway Tobacco Co. v. Mahin (1976), 42 Ill. App. 3d 797, 356 N.E.2d 909.

Further, Supreme Court Rule 366(a)(5) (73 Ill. 2d R. 366(a)(5)) affirms the power of the reviewing court to render any judgment and make any order that the case may require. Consequently, this court finds that, based on the record presented, Mary has proved her claim against Albert’s estate in the amount of $113,163.30, which represents the consideration for the unconveyed one-half interest in the condominium unit, or one-half the earnest money ($5,175) plus one-half the net balance due at closing ($106,988.30).

Having decided that the trial court erred in refusing to impose a constructive trust on that amount and to trace the trust res, we further find that the $75,000 traceable to Helene in her widow’s award should be impressed with a constructive trust. The balance payable to Mary from Albert’s estate for the one-half interest he failed to convey is $38,163.30, and we enter judgment in that amount against Albert’s estate. Upon Mary’s receipt of that amount and her payment of it to Helene, Helene shall execute a quit-claim deed conveying her interest in the condominium unit to Mary. Helene, of course, is not barred from filing a claim against Albert’s estate for the $75,000 widow’s award now credited to Mary.

In light of our disposition of Mary’s third claim of error, we need not decide whether the trial court erred in entering judgment against one who had breached no duty nor was in privity with the prevailing party.

Judgment reversed, cause remanded for such further action as required to implement this court’s decision.

Reversed and remanded.

JIGANTI and ROMITI, JJ., concur.


author: JUSTICE SULLIVAN

text:
    MARGARET BRUCATO, Plaintiff-Appellant, v. JAMES EDGAR, Secretary of State, et al., Defendants-Appellants.
    First District (5th Division)
    No. 83—3093
    Opinion filed October 26, 1984.

      Larry D. Drury, Ltd., of Chicago, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Kathleen Kreisel, Assistant Attorney General, of counsel), for appellee James Edgar.
    Jonathan A. Rothstein, of Chicago (Rothstein, Adams & Rothstein, of counsel), for appellee General Service Employees Union, Local 73.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from the dismissal of plaintiff’s amended complaint against defendants James Edgar, Secretary of State (Secretary) and General Service Employees Union, Local 73, Service Employees International Union, AFL-CIO-CLC (Union) in an action for injunctive relief, an accounting, and damages. The sole issue on review is the propriety of that dismissal.

Plaintiff, formerly employed by the office of the Secretary as a facility service representative in Du Page County, filed a three-count complaint on behalf of herself and all persons similarly situated, alleging essentially that the 1978 and 1981 collective bargaining agreements between the Secretary and the Union, as labor representative of facility service personnel, were unconstitutional. Specifically, she alleged that the Secretary employs two classifications of facility service representatives — “Cook County” and “Downstate/Collar” (downstate) county employees and that, pursuant to the agreements at issue, downstate service personnel are paid at a lower rate than their Cook County counterparts.

In count I, which was directed against the Secretary, plaintiff alleged that the classifications and the corresponding wage differentials were arbitrary and discriminatory and constituted a denial of her constitutional right to due process and equal protection, and sought (a) to enjoin the Secretary from currently paying, or contracting in the future to pay, downstate service workers lower wages than those paid to Cook County service personnel; (b) an accounting of the salary differentials and the interest accrued thereon for 10 years preceding institution of this action; and (c) appointment of a trustee to administer and distribute the back wages to downstate employees. Plaintiff also alleged, in counts II and III, gross negligence and breach of fiduciary duty by the Union in negotiating and entering into these agreements and sought the same relief as requested in count I as well as both actual and punitive damages from the Union.

Both defendants moved to dismiss plaintiff’s action. In his motion, the Secretary essentially maintained that although plaintiff’s complaint was purportedly directed against him as an individual, in actuality it alleged a claim founded upon a contract for damages against him in his official capacity as an officer of the State, and it was thus within the exclusive jurisdiction of the Illinois Court of Claims. In support of its motion, the Union asserted, inter alia, that being a voluntary, unincorporated association, it was not amenable to a suit for damages; that the complaint failed to allege the existence or breach of a duty owed by it to plaintiff; and that she had failed to exhaust all internal administrative remedies available to her prior to filing this action, as is required by the Union’s constitution and bylaws. The motions to dismiss were granted, and this appeal followed.

Opinion

We first consider plaintiff’s contention that dismissal of count I against the Secretary was improper. Initially, we note that although by section 4, article XIII, of the 1970 Illinois Constitution (Ill. Const. 1970, art. XIII, sec. 4) the doctrine of sovereign immunity was abolished, the legislature, acting under its constitutional authority, partially reinstated the doctrine by passing section 1 of “An Act in relation to immunity for the State of Illinois” (the immunity statute), which states that “[ejxcept as provided in ‘An Act to create the Court of Claims ***,’ the State of Illinois shall not be made a defendant or party in any court.” Ill. Rev. Stat. 1981, ch. 127, par. 801.

Plaintiff asserts, however, that the immunity statute is inapplicable here, arguing in substance that (a) the action is not one against the State; (b) even if it were, the State waived immunity by entering into the disputed contracts; and (c) the Court of Claims lacks the power to grant the equitable relief sought herein.

With regard to plaintiff’s first assertion, it has repeatedly been held that in determining whether an action is a suit against the State and, therefore, one which must be brought in the Court of Claims, the circuit court is not bound by the formal identification of the parties, but rather, must analyze the issues involved and the nature of the relief sought (Hudgens v. Dean (1979), 75 Ill. 2d 353, 388 N.E.2d 1242; Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975); and while it is true that an action to restrain a State official from acting in contravention of the law or exceeding his authority thereunder is not considered to be against the State (Board of Trustees v. Illinois Community College Board (1978), 63 Ill. App. 3d 969, 380 N.E.2d 988), it is well settled that where the action seeks to control the officer’s conduct in governmental matters with respect to which he has been granted discretionary authority (Boards of Education v. Cronin (1977), 54 Ill. App. 3d 584, 370 N.E.2d 19), and if a judgment for plaintiff could operate to control the actions of the State or subject it to liability, it will be deemed an action against the State even though it is not a named party therein (Local 3236 v. Illinois State Board of Education (1984), 121 Ill. App. 3d 160, 459 N.E.2d 300; McGuire v. Board of Regents (1979), 71 Ill. App. 3d 998, 390 N.E.2d 632).

Relying principally on Board of Education v. Cronin (1979), 69 Ill. App. 3d 472, 388 N.E.2d 72, and Hoffman v. Yack (1978), 57 Ill. App. 3d 744, 373 N.E.2d 486, plaintiff argues that this suit is not against the State, but against James Edgar as an individual and in his official capacity as Secretary of State to enjoin him from acting in excess of the authority delegated to him, and to compel him “to perform his duties within the law.”

Preliminarily, we note that there is nothing in the record to suggest that in negotiating and contracting with the Union to establish the disputed schedule of wage rates, the Secretary was acting in other than his official capacity; indeed, the allegations in plaintiff’s complaint, which contain numerous references to “defendant’s employees,” “defendant’s office,” and even to “defendant’s predecessor,” and which challenge the propriety of actions relating to his official duties, indicate that the action was directed against the Secretary as an officer of the State. See Hudgens v. Dean (1979), 75 Ill. 2d 353, 388 N.E.2d 1242.

Secondly, in our view, plaintiff’s reliance on the cases she cites as support for her position that this is not a suit against the State is misplaced. In Hoffman v. Yack (1978), 57 Ill. App. 3d 744, 373 N.E.2d 486, plaintiff, a tenured instructor, filed a two-count complaint against the board of trustees of the university where he taught and the supervisor of his department thereat, alleging that the supervisor had engaged in a deliberate and malicious course of conduct designed to damage his relationship with the university administration and that the board breached its duty to accord him fair consideration with respect to increases in pay and promotions. Although the court affirmed the dismissal of plaintiff’s action against the board, finding that “as framed by both the issues and the relief sought,” i.e., money damages, it was a suit against the State over which the circuit court had no jurisdiction, the court reversed the order dismissing plaintiff’s action against the supervisor, observing that the actions complained of — which included the propagation of false accusations concerning plaintiff’s competency, morality, and integrity, as well as interference with student evaluations of him and interception of his mail — constituted wrongful conduct not within the scope of his duties as a supervisor, and that a judgment against defendant as an individual would neither affect the actions of the State nor subject it to liability. Inasmuch as the complaint before us contains no such allegations of tortious conduct and the relief sought would clearly affect the actions of the State and subject it to liability, we believe that the holding in Hoffman v. Yack is inapplicable here.

In Board of Education v. Cronin (1979), 69 Ill. App. 3d 472, 388 N.E.2d 72, plaintiff school district brought an action against the State Superintendent of Education seeking to restrain him from withholding legislatively budgeted transportation funds from it. The Cronin court held that the Superintendent’s conduct was in violation of a nondiscretionary duty to disburse those funds as mandated by the School Code, and thereby concluded that the action was not against the State but against its agents to compel their compliance with the law. In the case at bar, we note that section 10a of the Merit Employment Code (Ill. Rev. Stat. 1981, ch. 124, par. 110a) authorizes the Secretary to appoint a director of personnel who is responsible for the preparation of a “fair and reasonable” compensation plan which “may include provisions for *** area differentials” and which is subject to approval by the Secretary. Furthermore, although at the time the disputed contracts were negotiated, the Secretary — as a public employer — was empowered to enter into collective bargaining agreements with bargaining representatives selected by its employees (Tobin v. Health & Hospitals Governing Com. (1978), 66 Ill. App. 3d 564, 384 N.E.2d 77), it could not be compelled to do so (Peters v. Health & Hospitals Governing Com. (1981), 88 Ill. 2d 316, 430 N.E.2d 1128, cert. denied (1982), 459 U.S. 826, 74 L. Ed. 2d 63, 103 S. Ct. 60). Thus, unlike Cronin, in which plaintiff sought to compel compliance with a nondiscretionary, statutorily mandated duty, the claim in this case arises from a contract which the Secretary was under no legal duty to negotiate and which concerned wage matters within the discretionary authority conferred upon him by the legislature. Section 8(b) of the Court of Claims Act provides that the Illinois Court of Claims “shall have exclusive jurisdiction to hear and determine *** all claims against the state founded upon any contract entered into with the State of Illinois.” Ill. Rev. Stat. 1981, ch. 37, par. 439.8(b).

We turn then to plaintiff’s argument that even if we find this action to be one against the State, as we have, the State — through the Secretary — has waived immunity by entering into the contracts at issue. In response to an analogous argument made in a breach of contract action against the State, the supreme court in S.J. Groves & Sons Co. v. State of Illinois (1982), 93 Ill. 2d 397, 404, 444 N.E.2d 131, 134, stated:

“Because the State is obligated under a Contract it signed does not mean that a remedy to institute a suit in a circuit court *** is implied.
Consent to be sued cannot be implied when there is an express statutory provision to the contrary. Whether the State is liable on a particular contract is a different question from whether the State is immune from being sued by an aggrieved party on that contract.”

We recently had occasion to address a similar argument in Local 3236 v. Illinois State Board of Education (1984), 121 Ill. App. 3d 160, 459 N.E.2d 300, wherein the plaintiff union sued in the circuit court to compel the board of education to arbitrate a salary grievance arising from a collective bargaining agreement. Quoting J. L. Simmons Co. v. Capital Development Board (1981), 98 Ill. App. 3d 445, 424 N.E.2d 821, we observed that “[t]he State can consent to suit, but only through the affirmative action of the General Assembly. [Citations.] An officer or agency of the [S]tate does not have the authority to waive laws that are for the benefit of this State ***.” (Local 3236 v. Illinois State Board of Education (1984), 121 Ill. App. 3d 160, 166, 459 N.E.2d 300, 304.) Consequently, we find no merit in plaintiff’s contention that the Secretary waived immunity by entering into the contracts at issue.

Similarly, we are unpersuaded by plaintiff’s assertion that this action is properly within the jurisdiction of the chancery division of the circuit court because, she argues, the Court of Claims Act “reveals that the claims court is not equipped to award the equitable relief sought herein [but] [r]ather, strictly limits *** jurisdiction to entry of a money judgment *** against the State.”

Noting first that plaintiff is no longer employed by the Secretary, we agree with the latter — and plaintiff appeared to concede in arguments before us — that she no longer has standing to seek prospective relief in the form of an injunction restraining him from paying or contracting to pay downstate employees wages which are disparate from those paid to Cook County employees. Moreover, even if plaintiff were currently employed by the Secretary, in view of the fact that the legislature has conferred upon him, as an agent of the State, the responsibility and authority to establish a compensation plan which, in his discretion, is fair and reasonable and which may contain variations in wage rates within the same job classification based on geographical considerations, he could not be compelled to pay plaintiff at a rate equal to that paid to Cook County facility service representatives (see Peters v. Health & Hospitals Governing Com. (1981), 88 Ill. 2d 316, 430 N.E.2d 1128, cert. denied (1982), 459 U.S. 826, 74 L. Ed. 2d 63, 103 S. Ct. 60), and the issuance of a mandatory injunction to that effect would therefore be meaningless.

Furthermore, although plaintiff’s prayer for relief is framed in equitable terms, it is apparent from reading of the complaint in its entirety that the principal relief sought is a monetary judgment fqr the difference between the wages paid to her and those paid to Cook County personnel pursuant to the collective bargaining agreements in effect throughout the last decade; indeed, plaintiff acknowledged both in her brief and in arguments before us that essentially she is seeking to be recompensed for those wage discrepancies. Thus, notwithstanding the terminology employed in the pleadings, the present action is substantively a claim for monetary damages from the State arising from a contract with the State. As such, it is within the exclusive jurisdiction of the Court of Claims, and the mere fact that equitable relief in the form of an accounting and appointment of a trustee is also sought does not alter the basic nature of the suit, inasmuch as an order granting such relief clearly would be dependent upon and incidental to a preliminary finding that plaintiff is entitled to a judgment for damages and would merely serve as the vehicles by which to calculate and distribute the amount due her thereunder.

Moreover, we find nothing in the language of the Court of Claims Act — nor in the case law interpreting it — which “strictly limits” jurisdiction of that Court to monetary claims. To the contrary, section 8 provides that the Court shall have exclusive jurisdiction to hear and determine, “(a) all claims against the state founded upon any law of the State of Illinois,” and “(b) all claims against the state founded upon any contract entered into with the State of Illinois.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 37, pars. 439.8(a), (d).) It appears therefrom — and cases have held — that it is the nature of the action, i.e., whether it is one against the State, as well as the relief sought, which determines whether jurisdiction is in the Court of Claims.

In G. H. Sternberg & Co. v. Bond (1975), 30 Ill. App. 3d 874, 333 N.E.2d 261, this court reversed the order of the circuit court temporarily enjoining defendant from attempting to enforce its rights under a contract between plaintiff and the State of Illinois, holding that, being a claim founded upon a contract with the State, the action was cognizable only in the Court of Claims. This court further noted, however, that its holding would not preclude plaintiff from seeking injunctive relief therein because “it is clear that the jurisdiction of the Court of Claims is not limited to money ‘claims’ and that one may pursue remedies in the Court of Claims other than for the recovery of a sum of money.” 30 Ill. App. 3d 874, 878, 333 N.E.2d 261, 264.

Most recently, in Ellis v. Board of Governors (1984), 102 Ill. 2d 387, 466 N.E.2d 202, wherein plaintiff sought injunctive relief in addition to money damages in her action against the board for breach of her employment rights in wrongfully discharging her from her position as a tenured professor, the supreme court reviewed the language of the Court of Claims Act and held that, whether construed as an action sounding in contract or tort or as one for a violation of the statute governing the State college and university system, under section 8 the action was a claim against the State within the exclusive jurisdiction of the Court of Claims. The court also stated:

“Because plaintiff seeks injunctive relief, in addition to money damages, does not mean, as plaintiff asserts, that her suit must be severed into two parts, that portion of the suit for money damages being brought in the Court of Claims and the other portion being brought in the circuit court. *** [Plaintiff’s suit *** is clearly based upon a present claim which has the potential to subject the State to liability and thus, must be brought in the Court of Claims.” (Ellis v. Board of Governors (1984), 102 Ill. 2d 387, 395, 466 N.E.2d 202, 206-07.)

Thus, whether the basis of plaintiff’s claim is that the Secretary acted outside the scope of his authority under the Merit Employment Code (Ill. Rev. Stat. 1981, ch. 124, par. 110a) — a law of this State-in entering into the collective bargaining contracts challenged here and/or that the agreements are unconstitutional, the action is nonetheless a claim which has the potential to control the actions of the State and subject it to liability, and under sections 8(a) and 8(b) of the Court of Claims Act, as well as the authorities we have cited, may be brought only in the Court of Claims.

Turning then to plaintiff’s contention that dismissal of counts II and III against the Union was improper, we note initially that under the common law, a voluntary unincorporated association-such as a labor union — had no legal existence independent of the members who composed it, and therefore could neither sue nor be sued in its own name in an action at law. (Burkhart v. Illinois Power Co. (1973), 9 Ill. App. 3d 139, 291 N.E.2d 673; Cahill v. Plumbers’, Gas & Steam Fitters’ & Helpers’ Local 93 (1925), 238 Ill. App. 123.) This long-standing principle was reaffirmed in American Federation of Technical Engineers, Local 144 v. La Jeunesse (1976), 63 Ill. 2d 263, 347 N.E.2d 712, where the majority of the court stated:

“ ‘There is no authority for an action at law against a defendant in a representative capacity or for an action at law by a plaintiff in a representative capacity.’ ” (63 Ill. 2d 263, 267, 347 N.E.2d 712, 715.)

Plaintiff maintains, however, that this rule is inapplicable in the present case because it is an action for equitable relief. While it is true that representative actions are permitted in equity (American Federation of Technical Engineers, Local 144, v. La Jeunesse (1976), 63 Ill. 2d 263, 347 N.E.2d 712), we note that although counts II and III, directed at the Union — like count I against the Secretary — purported to seek equitable relief in the form of an injunction restraining the Union from contracting with the Secretary for lower wages for downstate employees than those paid to Cook County personnel and an accounting and appointment of a trustee, plaintiff also sought a monetary judgment for the loss of wages caused by the Union’s alleged past negligence in negotiating and entering into the contracts at issue as well as $1,000,000 in punitive damages. Given our findings that because she is no longer an employee of the Secretary — or a member of the Union — plaintiff has no standing to seek prospective relief in the form of a mandatory injunction; that even if such an injunction were issued, the Secretary, as a public officer vested by the legislature with discretion in the establishment of a compensation schedule for employees of his agency, could not be compelled to comply therewith; and that the ordering of an accounting and the appointment of a trustee are merely incidental to a finding that plaintiff is entitled to money damages, we believe that this was, in substance, an action at law over which the circuit court lacked jurisdiction under the common law rule barring such suits by or against a voluntary unincorporated association.

We note, however, that the three dissenting justices in La Jeunesse expressed the sentiment of numerous critics who urged abrogating of the common law rule (see, e.g., Mulligan v. Teamsters Union, Local 971 (1978), 59 Ill. App. 3d 587, 375 N.E.2d 891 (dissenting opinions)), stating:

“The facts of life are that unincorporated voluntary associations, as entities, own and control assets worth millions of dollars and wield great power, both economic and political. Their ability to sue and be sued should not depend upon the continued existence of an archaic rule based on a legal fiction.” (American Federation of Technical Engineers v. La Jeunesse (1976), 63 Ill. 2d 263, 269, 347 N.E.2d 712, 716.)

Nevertheless, the majority held that if the common law rule were to be changed in Illinois, such change should come as it had in other States — by legislative action.

Thereafter, in apparent response to criticism of the doctrine, the General Assembly enacted section 2 — 209.1 of the Code of Civil Procedure (Ill. Ann. Stat., ch. 110, par. 2 — 209.1 (Smith-Hurd Supp. 1984)), effective January 1, 1984, which provides in pertinent part:

“A voluntary unincorporated association may sue and be sued in its own name, and may complain and defend in all actions.” (Emphasis added.)

Thus, although not raised by the parties, we will next consider the question as to whether section 2 — 209.1, which was enacted subsequent to the dismissal of the case before us, may be applied retroactively thereto.

A retroactive law is generally defined as one which “takes away or impairs vested rights acquired under existing laws or creates a new obligation, imposes a new duty, or attaches a new disability in respect of transactions or considerations already past” (United States Steel Credit Union v. Knight (1965), 32 Ill. 2d 138, 142, 204 N.E.2d 4), and as our supreme court has stated:

“In the absence of express language declaring otherwise, an amendatory act is ordinarily construed as being prospective in its operation [citations] ***. However, *** [w]hen a change of law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure, without regard to whether they accrued before or after such change of law and without regard to whether or not the action has been instituted, unless there is a saving clause as to existing litigation.” Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, 415 N.E.2d 1034, 1041-42; see also Board of Education v. Illinois State Board of Education (1984), 122 Ill. App. 3d 471, 473, 461 N.E.2d 567, 569.

Applying this reasoning, the courts have retrospectively applied statutory amendments affecting only changes in procedure. (See Nelson v. Miller (1957), 11 Ill. 2d 378, 143 N.E.2d 673; Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 122 N.E.2d 513; In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 434 N.E.2d 400.) However, retroactive legislation is not favored (34 Ill. L. & Prac. Statutes sec. 193 (1958)), and it is presumed that the legislature intended a provision affecting substantive rights to operate prospectively unless a contrary intent is expressed or clearly implied by the language therein or the circumstances surrounding its enactment (1A Sutherland, Statutory Construction sec. 22.36 (4th ed. 1972)).

Here, the conduct of the Union purportedly giving rise to liability occurred several years prior to enactment of the statute creating such liability. In view of the long-standing common law principle barring suits for damages against voluntary unincorporated associations, we think it clear that section 2 — 209.1 is not merely a change in remedy or procedure, but instead, creates both new rights and new obligations which heretofore did not exist. Moreover, we find nothing in the language of the provision, nor in the Historical and Practice Notes following it, expressing or even suggesting a legislative intent that the new provision be applied retrospectively to suits instituted prior to its enactment. Adhering to established principles of statutory construction, we therefore conclude that the legislature intended section 2 — 209.1 to operate prospectively. Having determined that, for purposes of this action, the Union was not a legal entity with the capacity to sue or be sued, it is unnecessary to address the parties’ additional arguments concerning whether it breached a duty owed to plaintiff and whether she properly exhausted all internal administrative remedies available to her prior to filing this action.

For the foregoing reasons, the order of the circuit court dismissing plaintiff’s amended complaint is affirmed.

Affirmed.

MEJDA, P.J., and PINCHAM, J., concur.

      The record indicates that during the pendency of this appeal, plaintiff’s employment with the office of the Secretary of State was terminated for reasons apparently unassociated with the issues involved in this case.

      Although plaintiff characterizes this as a class action suit, no class has ever been certified.

      Under the Illinois Public Labor Relations Act (Ill. Ann. Stat., ch. 48, par. 1601 et seq. (Smith-Hurd 1984 Supp.)), effective July 1, 1984, a public employer has the duty to bargain collectively with the exclusive bargaining representative of its employees (Ill. Ann. Stat., ch. 48, par. 1607 (Smith-Hurd 1984 Supp.)), and refusal to do so constitutes an unfair labor practice (Ill. Ann. Stat., ch. 48, par. 1610 (Smith-Hurd 1984 Supp.)).


author: PRESIDING JUSTICE SEIDENFELD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SCOTT J. HARTWICK, Defendant-Appellant.
    Second District
    No. 2—83—0798
    Opinion filed October 26, 1984.

      William E. Schirger, of Schirger, Beger & Ferguson, of Rockford, for appellant.
    Charles R. Hartman, State’s Attorney, of Freeport (Phyllis J. Perko and Sally A. Swiss, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Scott J. Hartwick, the defendant, appeals from his conviction of the offense of reckless homicide (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3) and from his sentence of 30 months’ imprisonment. He contends that evidence of a blood-alcohol test was erroneously admitted.

On July 29, 1982, the defendant was involved in a head-on collision in Stephenson County on Illinois Route 26, near the Wisconsin border, which resulted in three deaths. Defendant was taken in an unconscious state to a hospital in Wisconsin. There, an attending physician examined him and ordered, for medical reasons, certain blood tests which included a blood-alcohol test. A blood sample was taken and an analysis made by a medical technologist. The results of the test reflected a blood-alcohol level of .2%. Defendant remained hospitalized for two months, and after his discharge he was charged with driving under the influence of alcohol (DUI) and reckless homicide. However, the DUI charge was later dismissed.

Defendant filed a pretrial motion to suppress the results of the blood test on the basis that it was not performed in accordance with the mandates of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95V2, par. 1 — 100 et seq.) and the Illinois Department of Public Health standards. It is undisputed that neither the hospital nor the medical technologist who analyzed defendant’s blood was certified to conduct blood-alcohol tests pursuant to Illinois law.

The trial judge, in determining the admissibility of the blood test results, relied upon common law principles of reliability and relevancy, and not upon statutory law, and found that the evidence sustained the fact that normal, recognized medical procedures were used to withdraw the blood and to analyze it. He relied on the testimony of the attending physician in the emergency room, who stated that the test was ordered on his own volition for diagnostic medical reasons and who further testified to his opinion that the blood-alcohol level found “implies a severe intoxication.” In addition, the medical technologist who withdrew the blood sample described in detail the method used. The medical technologist who analyzed defendant’s blood for its aleohoi content also testified, and it was stipulated that the analysis was performed according to normal hospital procedure and that the alcohol level was .2%.

The Illinois Vehicle Code provides, as relevant, that no person who is under the influence of intoxicating liquor may drive or be in actual physical control of any vehicle within this State. The Act further provides that any person who drives or is in actual physical control of a motor vehicle upon a public highway within the State thereby consents to a chemical test of his blood to determine its alcohol content “if arrested, as evidenced by the issuance of a Uniform Traffic Ticket, for any offense as defined in Section 11 — 501 or a similar provision of a local ordinance.” (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 951/2, par. 11 — 501.1(a).) Section 11 — 501.2 of the Act provides as applicable here:

“Upon the trial of any civil or criminal action or proceeding arising out of an arrest for an offense as defined in Section 11 — 501 or a similar local ordinance, evidence of the concentration of alcohol, *** as determined by analysis of the person’s blood *** shall be admissible. Where such test is made the following provisions shall apply: [including, as applicable here, certification requirements for performing a blood-alcohol test.]” (Emphasis added.) Ill. Rev. Stat. 1983, ch. 95Va, par. 11— 501.2(a).

The blood test taken by Wisconsin hospital personnel did not, and obviously could not, comply with the certification requirements of the Illinois Vehicle Code. However, we conclude that the provisions of that code do not apply to a prosecution for reckless homicide and are limited in their application to prosecutions for offenses as defined in section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1983, ch. 95V2, par. 11-501).

The language regarding chemical analysis, prior to an amendment effective July 13, 1982 (Ill. Rev. Stat., 1982 Supp., ch. 951/2, par. 11— 501), stated that the statute applied “[u]pon the trial of any action or proceeding arising out of the acts alleged to have been committed by any person while driving *** under the influence of intoxicating liquor ***.” (Ill. Rev. Stat. 1981, ch. 95^2, par. ll-501(c).) Under the former statute this court held that the statute was applicable to charges of involuntary manslaughter (People v. Leffew (1975), 33 Ill. App. 3d 700, 703) and reckless homicide (People v. Weissinger (1980), 90 Ill. App. 3d 700, 701) arising from driving while under the influence. However, the amendment which is applicable here, by its terms, does not now encompass offenses which do not arise out of an arrest for an Illinois Vehicle Code offense. See Ill. Rev. Stat. 1983, ch. 9572, par. 11 — 501.2(a).

While we are aware that a recent case not cited by the parties concludes that the amended statute applies to reckless homicide (People v. Murphy (1984), 124 Ill. App. 3d 695, 699), we do not agree. In Murphy, the court emphasized the words in the new statute “[u]pon the trial of any civil or criminal action or proceeding” (emphasis in original) but does not discuss the language which follows, “arising out of an arrest for an offense as defined in Section 11 — 501 or a similar local ordinance ***.” Ill. Rev. Stat. 1981, ch. 9572, par. 11 — 501.2(a).

The whole of the sentence must be read in context giving effect to the qualifying terms. (See, e.g., City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 375.) The fact that the qualifying words were added by amendment indicates a purpose to change the law as it previously existed, particularly since the amendment was not for the purpose of removing a previous ambiguity. See, e.g., O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 271.

In Murphy, the reviewing court also relied upon the language in section 11 — 501.2(c) of the Illinois Vehicle Code as further authority that the statute applies to reckless homicide charges. We again cannot agree. This section does not deal with restrictions governing the chemical analysis of a person’s bodily substance, which is here involved. It instead applies to the refusal to submit to a chemical test and states that “evidence of refusal shall be admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person under the influence of alcohol *** was driving *** a motor vehicle.” Ill. Rev. Stat. 1983, ch. 9572, par. 11— 501.2(c).

In context, the statutory scheme indicates a purpose to provide restrictions on chemical testing as a constitutional safeguard to one who, merely by driving on the Illinois highways, impliedly consents to being chemically tested when he is charged with an offense under the Illinois Vehicle Code. While the legislature could well establish similar restrictions on chemical testing in any civil or criminal proceeding, it has chosen by the language of the amended statute not to do so. (See Ill. Rev. Stat. 1983, ch. 9572, par. 11 — 501.2(a).) Therefore, we agree with the trial court’s conclusion that common law principles apply to the chemical testing here involved. We are also satisfied from the record that the blood-alcohol testing process was performed in a manner using generally accepted methodology, insuring that the results were reliable.

People v. Palmer (1983), 114 Ill. App. 3d 454, cited by defendant and which was also relied upon in Murphy, is inapplicable. In Palmer, a prosecution for the offense of driving while under the influence was involved, not reckless homicide.

In the view we have taken we also do not reach the State’s alternative argument that if the sections of the Illinois Vehicle Code in question are held to apply to a charge of reckless homicide, they so apply only when State action is involved.

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

Affirmed.

LINDBERG and REINHARD, JJ., concur.