author: JUSTICE KASSERMAN

text:
    BRADLEY SHERMAN et al., Plaintiffs-Appellees, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF HIGHLAND et al., Defendants-Appellants.—(Stephen Earnhart et al., Complainants-Appellants.)
    Fifth District
    No. 82—5
    Opinion filed December 8, 1982.
    Rehearing denied January 5, 1983.

      Dennis Koch, of Highland, for appellants Stephen Earnhart and William Frey.
    Daniel J. Stack, of Donald J. Johannes, P.C., of Highland, for other appellants.
    Robert F. Kaucher, of Kaucher and Ligman, of Highland, for appellees.
   JUSTICE KASSERMAN

delivered the opinion of the court:

On December 11, 1981, plaintiffs, Bradley Sherman and Larry Gilbert, police officers employed by the police department of the city of Highland, Illinois, filed a petition for a temporary restraining order and a complaint for injunction in the circuit court of Madison County. Plaintiffs sought to enjoin the Board of Fire and Police Commissioners of the city of Highland (hereinafter referred to as the Board) from holding hearings concerning pending charges filed against them by Stephen Earnhart and William Frey (hereinafter referred to as complainants). Plaintiffs’ complaint for injunction alleged, inter alia, that the Board was without jurisdiction to hear the charges filed by complainants because the Board filed to set the matter for a hearing within 30 days as required by section 10 — 2.1—17 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 10—2.1—17). Plaintiffs’ petition for a temporary restraining order was granted, and a hearing on their request for an injunction was set for later in December.

On December 17 and 18, 1981, complainants and the Board, respectively, filed motions to dismiss the plaintiffs’ complaint for injunction on the grounds that plaintiffs (1) had not exhausted their administrative remedies, (2) had an adequate remedy at law, and (3) would not suffer irreparable harm if the injunction was not issued. On December 18, 1981, both the Board and complainants filed their answers to plaintiffs’ complaint for injunction, which denied that the Board had failed to comply with section 10 — 2.1—17 of the Illinois Municipal Code and alleged, as affirmative defense, essentially the same grounds asserted as a basis for dismissal of plaintiffs’ complaint.

A hearing on plaintiffs’ complaint for injunction and the Board’s and complainants’ motions to dismiss was had on December 18, 1981. A stipulation of facts was entered into by all the parties. This stipulation indicated that complainant Earnhart submitted written allegations against both plaintiffs to the Board on October 22 or 26, 1981. Complainant Frey submitted similar allegations against Officer Sherman on November 10, 1981. Both documents submitted by complainants claimed, in essence, that plaintiffs were guilty of official misconduct during an incident at a tavern in the early morning hours of September 4,1981.

The Board’s attorney sent a letter to complainants on November 13, 1981. The letter read in pertinent part:

“I am enclosing the charges which you filed with the Board of Fire & Police Commissioners on October 26, 1981.
I have been asked by the Board members to point out to you that Section 2 of their Rules and Regulations regarding charges, hearings, dismissals and suspensions provides in Sub-paragraph (c) that charges must be in writing and filed with the Secretary of the Board. The charges shall specify the rule violated and shall designate the time and place of the offense.
We ask that if you are going to file the charges, that you amend them to specifically point out the rule which was violated in each instance. The Rules and Regulations of the Fire & Police Commissioners and of the Highland Police Department are available at the City Offices.
If you wish to have any further action on the charges, you must amend them and file them with the Secretary of the Board of Fire & Police Commissioners, Kathy Essenpreis, within a reasonable period of time. I would recommend that they be filed in the near future if you intend to follow through with this matter.”

The section of the Board’s rules and regulations referred to in the above letter reads as follows:

“Sec. 2. Persons holding positions in the fire and police departments may be suspended without pay or discharged from service in the following manner:
* * *
(c) Charges shall be preferred in writing and shall be filed with the Secretary of the Board. The charges shall specify the rule violated and shall designate the time and place of the offense; ***.”
Rules and Regulations of the Board of Fire and Police Commissioners of the City of Highland Madison County, Illinois— Charges, Hearings, Dismissals and Suspensions sec. 2 (1975).

On November 24, 1981, both complainants submitted new documents to the Board which included the citations the Board had requested. Complainant Barnhart’s allegations remained unchanged, but complainant Frey had added the allegation that Officer Sherman intentionally prolonged the processing of charges against him. A letter acknowledging the receipt of complainants’ charges and noting their filing was sent on November 26, 1981, by Kathleen Essenpreis, the secretary of the Board.

On December 4, 1981, the Board issued and plaintiffs received notice of complainants’ charges and plaintiffs were informed that a hearing on the matter would be held on December 16, 1981.

The Board called two witnesses at the hearing had in the circuit court on December 18, 1981. Jack Cygan, the president of the Board, testified that the documents originally submitted by complainants in October and early November were returned because they were not specific enough. Kathleen Essenpreis testified that the Board returned the documents originally submitted by complainants because the rules of the Board allegedly violated were not specified.

On December 21, 1981, the circuit court entered its order enjoining the Board from conducting any hearings relative to the charge and also enjoining complainants from further prosecution of the charges before the Board. In its order, the court, after reciting the facts, stated, inter alia:

“[T]he unalterable fact in this case is the thirty (30) day hearing period is jurisdictional. (See Bridges v. Board of Fire and Police Commissioners of Mount Zion, 83 Ill. App. 3d 190, 403 N.E.2d 1062 (1980)) [sic]. As the jurisdiction of the Defendant Board to hear charges no longer exists, the Court must decide whether injunctive relief is proper. The overwhelming weight of case law is, as Frey and Earnhart concede, in Plaintiffs’ favor. (See Roche v. County of Cook, App., 18 Ill. Dec. 134, 377 N.E.2d 288 (19 ), [sic] for example). Accordingly, this Court will follow precedent.”

The Board and complainants appeal the circuit court’s order granting the injunction. There are four issues to be considered: (1) whether the doctrine of exhaustion of administrative remedies prevented judicial relief; (2) whether the circuit court erred by finding that the Board lacked jurisdiction to hear the charges filed by complainants because the Board failed to set the matter for a hearing within 30 days as required by section 10 — 2.1—17 of the Illinois Municipal Code; (3) whether an injunction was a proper remedy; and (4) whether complainant Frey is entitled to a hearing on an additional charge against Officer Sherman which was not in the original document he submitted to the Board.

Before discussing the issues presented, we deem it necessary, since defendants have argued the matter at length, to mention the issue regarding the propriety of the Board’s requirement that charges against police officers specify the Board’s rule which allegedly has been violated. Despite defendants’ characterization of the circuit court’s ruling as holding the Board’s requirement invalid, we find no such ruling in the order appealed from. The circuit court found that complainant Barnhart’s charges were filed on October 22 or 26, 1981, and complainant Frey’s charges were filed on November 10, 1981. The circuit court further found that an injunction was proper in the instant case. We find no evidence in the circuit court’s order that it, either implicitly or explicitly, ruled that the Board’s rule regarding specificity was invalid. Hence, the matter is not presented for our review and we express no opinion thereon.

Defendants argue that the circuit court erred by granting relief because the doctrine of exhaustion of administrative remedies precluded judicial relief. We do not agree. Plaintiffs alleged that under section 10 — 2.1—17 of the Illinois Municipal Code the Board lacked the jurisdiction to proceed with a hearing concerning complainants’ charges. Section 10 — 2.1—17 states that “[t]he board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time.” (Ill. Rev. Stat. 1981, ch. 24, par. 10—2.1—17.) The 30-day time limit set forth in this section is jurisdictional. (Bridges v. Board of Fire & Police Commissioners (1980), 83 Ill. App. 3d 190, 194-95, 403 N.E.2d 1062, 1065; Kozsdiy v. O'Fallon Board of Fire & Police Commissioners (1975), 31 Ill. App. 3d 173, 174-75, 334 N.E.2d 325, 327.) When a party, as here, attacks the authority of an administrative agency to act, the circuit court has jurisdiction to consider the merits of such a contention regardless of whether administrative remedies have been exhausted. Riggins v. Board of Fire & Police Commissioners (1982), 107 Ill. App. 3d 126, 129, 437 N.E.2d 327, 328; Horan v. Foley (1963), 39 Ill. App. 2d 458, 463-64,188 N.E.2d 877, 880.

Defendants urge that the circuit court erroneously found that charges against plaintiffs were filed by complainant Earnhart on October 22 or 26, 1981, and that charges against Officer Sherman were filed by complainant Frey on November 10, 1981. Defendants maintain that the documents they submitted to the Board in October and early November did not constitute “charges” or amount to a “filing” under section 10 — 2.1—17 of the Illinois Municipal Code because the documents failed to comply with the Board’s rule requiring specificity as to what Board rules were allegedly violated. Defendants urge that it was not until complainants submitted their second document on November 24, 1981, that charges were filed and, therefore, a hearing was scheduled within 30 days.

Defendants’ position that the documents originally submitted to the Board did not constitute “charges” is untenable. A “charge” has been defined as “an accusation of a wrong or offense.” (Pack v. Sporleder (1945), 327 Ill. App. 420, 426, 64 N.E.2d 674, 677.) The documents the complainants originally submitted to the Board alleging various misdeeds by the plaintiffs fall within this definition. Nevertheless, defendants suggest that a charge does not exist unless it comports with the Board’s rules and regulations which require that the complainants specify a rule of the Board which has been violated. This assertion also lacks merit. The Board is empowered to discharge a police officer for “cause” regardless of whether the police officer’s actions violated a rule of the Board. (Flynn v. Board of Fire & Police Commissioners (1975), 33 Ill. App. 3d 394, 398, 342 N.E.2d 298, 301.) Thus, a charge, with potential adverse consequences for a police officer, may exist despite the fact that no Board rule has been violated.

Defendants also argue that there was no “filing” as contemplated in section 10 — 2.1—17 of the Illinois Municipal Code when complainants submitted their charges in late October and early November. We reject this contention. A document is filed when it is delivered to the proper officer with the intent of having such document kept on file by such officer in the proper place. (Sparacino v. Ferona (1956), 9 Ill. App. 2d 422, 425-26, 133 N.E.2d 753, 755; Labrier v. Anheuser Ford, Inc. (Mo. 1981), 621 S.W.2d 51, 54; Stanley v. Board of Appeals (1938), 168 Misc. 797, 800, 5 N.Y.S.2d 956, 959-60.) The record establishes that complainants’ original charges were delivered to the proper authority, at the proper place, and with the requisite intent to constitute a filing.

The circuit court properly found that the Board should have set a hearing on such charges within 30 days as required by section 10— 2.1 — 17 of the Illinois Municipal Code, especially because after a hearing was scheduled the Board could have granted a continuance on its own motion to allow complainants to amend their charges to comply with the Board’s rules and regulations. (See Flynn v. Board of Fire & Police Commissioners (1975), 33 Ill. App. 3d 394, 396-97, 342 N.E.2d 298, 301.) The Board’s failure to schedule a hearing on the charges originally filed by complainants in October and early November resulted in the Board losing jurisdiction because the hearing scheduled after complainants’ second filings was beyond the 30-day period allowed by statute. (See Bridges v. Board of Fire & Police Commissioners; Kozsdiy v. O’Fallon Board of Fire & Police Commissioners.) Having lost jurisdiction, the Board could not proceed with the hearing on complainants’ charges which was to be held on December 16,1981.

Defendants alternatively argue that an injunction was an improper remedy in the instant case. We do not agree with this contention. Where a party questions an administrative agency’s jurisdiction, the courts will entertain a complaint for injunction. (Riggins v. Board of Fire & Police Commissioners; 42 Am. Jur. 2d Injunctions sec. 176 (1969).) Generally, injunctive relief will not be granted against public officials unless such acts are outside their authority or are unlawful. (Rocke v. County of Cook (1978), 60 Ill. App. 3d 874, 875, 377 N.E.2d 287, 288; 21A Ill. L. & Prac. Injunctions sec. 81 (1977).) Here, the Board, if allowed to proceed with the hearing on complainants’ charges, which was scheduled after the 30-day statutory period had run, would be acting without jurisdiction and injunctive relief is proper.

Finally, complainant Frey argues that the circuit court erred by finding that the document he originally submitted to the Board on November 10, 1981, and the document he subsequently filed on November 24, 1981, contained the same charges. He points out that the document he filed on November 24, contained the additional allegations that Officer Sherman prolonged the processing of charges against him. Complainant Frey suggests that this court should allow the Board to conduct a hearing on this additional allegation.

Plaintiffs urge, and we agree, that complainant Frey has waived consideration of the issue as to whether Frey is entitled to a hearing on the additional allegation submitted to the Board on November 24. Where the record fails to show that a matter urged on appeal was decided by the circuit court, the issue is not properly preserved (Eleopoulos v. City of Chicago (1954), 3 Ill. 2d 247, 254, 120 N.E.2d 555, 559), and an argument presented for the first time on appeal is deemed waived. (Snow v. Dixon (1977), 66 Ill. 2d 443, 453, 362 N.E.2d 1052, 1056; People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 313, 335 N.E.2d 448, 453.) In the case at bar, complainant Frey, contrary to his assertion at oral argument, had an adequate opportunity at trial to present the argument he now raises for the first time on appeal. Both his pleadings and arguments in the circuit court fail to raise the issue regarding his additional allegation in the second charge filed against Officer Sherman and, consequently, we conclude that the issue is waived.

For the foregoing reasons, the order of the circuit court of Madison County is affirmed.

Affirmed.

HARRISON, P.J., and WELCH, J., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    JERRY COSTELLO, Plaintiff-Appellant, v. CAPITAL CITIES MEDIA, INC., et al., Defendants-Appellees.
    Fifth District
    No. 81—301
    Opinion filed December 21, 1982.
    Rehearing denied January 18, 1983.
    Amiel Cueto, of Belleville, for appellant.
    Robert B. Hoemeke and John M. Hessel, both of Lewis, Rice, Tucker, Allen and Chubb, of St. Louis, Missouri, for appellees.
   JUSTICE WELCH

delivered the opinion of the court:

This case arose as an action in the circuit court of St. Clair County to recover damages for the publication of an alleged libel. The plaintiff, chairman of the St. Clair County Board, brought suit against Capital Cities Media, Inc., publisher of the Belleville News Democrat and Richard N. Hargraves, an editorial writer for that newspaper. The trial court sustained a motion to dismiss the complaint and entered judgment for the defendants. Plaintiff has appealed.

On December 31, 1980, the following editorial appeared in the Belleville News Democrat:

“COSTELLO BLEW HIS FIRST CHANCE
Jerry Costello lied to us.
There’s no nicer way to put it; he simply lied.
And, when he lied to us, he lied to you.
He said he was going to be a tough county board chairman, especially when board members wanted to spend taxpayers’ money.
He said he would militantly oppose the implementation of any new tax without first seeking the voters’ approval through a referendum.
He said he would lead the County Board down the proper paths, protecting the rights of the taxpayers.
Well, he lied.
He didn’t do any of those things Monday night, thereby breaking his most sacred campaign promise at his very first meeting.
The County Board had an opportunity to conduct a binding referendum, asking you if you wanted to pay a new sales tax to support the Bi-State bus system. That’s the very thing Costello had pledged he would do. He had promised, in the strongest possible terms, that he would let the voters decide.
But when the time came to make a decision, he was up there sitting on his gavel.
Some leader!
You couldn’t tell him from any other politician in the bunch. He did absolutely nothing to protect your interests.
To say we’re disappointed is too mild; we’re irate. We supported Costello’s election because of what he said to us. We told you what he said and how we thought he was different from the run-of-the-mill, Touchette-dominated Democrats of the past.
Now we wonder if we didn’t lie to you.
Maybe Costello isn’t different.
Maybe Costello didn’t mean any of the things he said.
Maybe his opponent, Republican Larry Reineck, was right when he said Jerry Costello was nothing more than another patronage-oriented political hack.
How are we supposed to tell otherwise?
Jerry Costello asked for a chance to prove himself and, in his very first meeting, he blew it.
Just think, we’ve got two more years of the Costello brand of lying leadership.
Doesn’t that thrill you?
-RICHARD N. HARGRAVES.”

On January 6, 1981, the plaintiff filed a complaint alleging that the corporation and the editorial writer had libeled him.

The sole issue on appeal is whether the complaint states a cause of action. Plaintiff’s complaint alleges substantially that the editorial contained one or more false statements concerning the plaintiff, which the defendants knew were false or the truth of which the defendants recklessly disregarded. Seven particular allegedly false statements are set forth in plaintiff’s petition: “Jerry Costello lied to us”; “There’s no nicer way to put it, he simply lied”; “And when he lied to us, he lied to you”; “Well he lied”; “But when the time came to make a decision, he was up there sitting on his gavel”; “He did absolutely nothing to protect your interests”; and “Just think, we’ve got two more years of the Costello brand of lying leadership.” Plaintiff alleges that these statements held him up to disrepute, public scorn, contempt, hatred and ridicule. He asserts that his personal and professional reputation were injured, as well as his reputation for truth, veracity, honesty and integrity. Plaintiff also asserts that these injuries caused great mental anguish and emotional distress.

Plaintiff acknowledges in his brief that since special damages have not been pleaded, the editorial must be libelous per se in order to state a claim for libel. Establishing libel per se requires a serious charge of incapacity or misconduct in words so obviously and actually hurtful that proof of their injurious character is dispensed with. (Makis v. Area Publications Corp. (1979), 77 Ill. App. 3d 452, 456, 395 N.E.2d 1185.) The four categories of words constituting libel per se are: (1) those imputing the commission of a crime, (2) those imputing infection with a loathsome disease, (3) those imputing unfitness or want of integrity in performing the duties of an office or employment, and (4) those imputing lack of ability in a person’s business, trade or profession. Fried, v. Jacobson (1982), 107 Ill. App. 3d 780, 438 N.E.2d 495, appeal allowed, Sup. Ct. Docket No. 57279; Makis v. Area Publi cations Corp.

Plaintiff contends that the editorial in question imputes an ability to perform his duties in office or a want of integrity in performing his duties. Defendants respond that the editorial does not impute any want of integrity or ability and that under the rule of innocent construction followed in Illinois, dismissal of the complaint is required. The traditional rule states that a publication must be read as a whole, the words must be given their natural and obvious meaning and words capable of being read innocently must be so read and declared nonactionable as a matter of law. John v. Tribune Co. (1962), 24 Ill. 2d 437, 181 N.E.2d 105; Fried v. Jacobson.

In the instant case, the defendants assert that their words, although harsh and uncomplimentary, amounted only to criticism of the plaintiff’s conduct in a particular instance. They claim that there was no personal attack on the plaintiff’s honesty or character in general, despite the repeated references to “lying.” Delis v. Sepsis (1972), 9 Ill. App. 3d 217, 292 N.E.2d 138; Wade v. Sterling Gazette Co. (1965), 56 Ill. App. 2d 101, 205 N.E.2d 44.

The alleged libel in Wade v. Sterling Gazette Co. was discussed at length in the defendants’ trial and appellate briefs. A portion of the editorial alleged to be libelous per se in that case is reproduced below:

“NO WORD TAKES PLACE OF ‘LIAR’!
(An Editorial)
In an advertisement appearing in today’s issue of The Daily Gazette, inserted by Cecil P. Wade, candidate for mayor of Rock Falls, appears this statement:
‘After reading these articles, I endeavored to obtain equal space and equal coverage in this newspaper to answer and refute the assertions made by the writer. My request for fair play fell upon dead ears and the only conclusion that can be drawn is that only the present mayor is afforded such privileges and opportunities.’
That statement is a ‘lie’ of the common garden variety, which means that the person accepting the responsibility for that statement, Mr. Cecil P. Wade, in the parlance of the street, is an ‘unadulterated liar.’
We dislike using the word ‘liar’; it is not dignified, it is unbecoming of either a reputable newspaper or its publisher; unfortunately it lowers the author of this editorial to the degraded level of the advertiser.
* * *
What Mr. Wade is, perhaps is best known to himself alone, but he ‘lies’ when he says he was refused space in the Daily Gazette - and from ‘lies’ come ‘liars.’
* * *
WEBSTER’S DEFINITION OF ‘LIAR.’
LIAR — A person who knowingly utters falsehood.
In the instance referred to above Mr. Wade is ‘tops’ — his batting average is ONE THOUSAND PERCENT!” Wade v. Sterling Gazette Co. (1965), 56 Ill. App. 2d 101, 105, 205 N.E.2d 44, 46-47.

The reviewing court in Wade v. Sterling Gazette Co. observed that the alleged libel was identified as an editorial and did not brand the plaintiff as one unworthy of belief under any circumstances, but merely stated he had been untruthful in one particular instance. The Wade court further took into consideration the circumstances surrounding the editorial, including the fact that the plaintiff was a political candidate at the time. The court stated that the word “liar” is far from complimentary, but held that abusiveness alone does not make a publication libel per se and therefore, the editorial posed no serious threat to the plaintiff’s reputation. Accordingly, the trial court’s dismissal of the libel action was affirmed.

After Wade, a reviewing court in Delis v. Sepsis (1972), 9 Ill. App. 3d 217, 292 N.E.2d 138, reached a similar result. The defendant in that case was sued after he wrote a letter attacking the plaintiff for-his activities as secretary of an organization of persons of Greek descent. The letter also stated that the plaintiff was “sly, coy and evasive” and “deluded, deceptive and possessing a disordered state of mind” and “a deliberate liar and distorter of truths.” (Delis v. Sepsis (1972), 9 Ill. App. 3d 217, 220, 292 N.E.2d 138, 141.) Despite this abusive language, the appellate court held that the letter was capable of being read innocently. The court stated that the charge did not imply that the plaintiff was generally dishonest or one who could not be believed under oath. Therefore, the words were held to be mere name-calling and not libel per se.

Although not mentioned by the parties, Britton v. Winfield Public Library, (1981), 101 Ill. App. 3d 546, 428 N.E.2d 650, also involved charges of dishonesty. In Britton a library’s board of directors was sued for libel after writing a letter to local newspapers attacking the actions of the Winfield village administrator. The village administrator was accused of “cheap and dishonest government” and “dirty tricks”; the defendants sought a reprimand and public apology in order to bring “honest and upright” government back to their village. (Britton v. Winfield Public Library (1981), 101 Ill. App. 3d 546, 547, 428 N.E.2d 650, 651.) On appeal, the Britton court found that the editorial in Wade and the letter in Delis were indistinguishable from the library board’s letter in that case. The court stated that all three cases involved “harsh criticism of plaintiff’s actions in a single case rather than an assault on his character in general.” Britton v. Winfield Public Library (1981), 101 Ill. App. 3d 546, 550, 428 N.E.2d 650, 653.

Like the instant case, Wade, Delis, and Britton, all involved charges of dishonesty. Nonetheless, we hold that these cases are factually distinguishable from the case at bar. As the plaintiff points out, the editorial in the instant case repeatedly attacked him as a liar and also included an explicit reference to “two more years of the Costello brand of lying leadership.” The language of the editorial makes it quite apparent that it was an actionable assault on the plaintiff’s character in general, not mere criticism of his conduct in a particular instance. Accordingly, we find that the editorial constituted libel per se because it imputed to the plaintiff an inability to perform his duties and a want of integrity or lack of honesty in performing the duties of his office.

Moreover, the Illinois Supreme Court recently clarified the application of the innocent construction rule in Chapski v. Copley Press (1982), 92 Ill. 2d 344. In Chapski, the court modified the longstanding doctrine relied on by defendants in the case at bar, and followed in Wade, Delis and Britton. The traditional rule was criticized by the court because it allowed trial judges to dismiss cases without adequate review if there was any way the alleged libel could be read innocently. The Chapski opinion stated that “courts generally strain to find unnatural but possibly innocent meanings of words where such a construction is clearly unreasonable and a defamatory meaning is far more probable.” (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 350-51.) The supreme court went on to state that the common misapplication of the innocent construction rule is especially improper since, by its own terms, the holding of John v. Tribune Co. (1962), 24 Ill. 2d 437, 442, 181 N.E.2d 105, 108, requires that words be given their “natural and obvious meaning.” Chapski v. Copley Press (1982), 92 Ill. 2d 344, 351.

The rule, as modified, states that “a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se.” (Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352.) Although Chapski allows trial judges to continue to make a preliminary determination whether a statement may reasonably be innocently construed, contorted interpretations of language so that it might be seen as innocent are now precluded. The court stressed that this modified rule would serve to protect both the individual’s interest in vindicating his good name and reputation as well as first amendment interests. Chapski v. Copley Press.

Since the editorial in the instant case repeatedly attacks the plaintiff’s honesty and makes reference to “two more years of the Costello brand of lying leadership,” we feel the Chapski decision does not allow us to consider this language innocent of libelous content as a matter of law. To do so would require us to strain to find a possible, but unnatural, innocent meaning, when a defamatory meaning is far more probable. Chapski v. Copley Press (1982), 92 Ill. 2d 344.

The defendants also assert in their brief that the allegations of dishonesty were privileged as a matter of law as a constitutionally protected expression of opinion. (Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 339-40, 41 L. Ed. 2d 789, 805, 94 S. Ct. 2997, 3006-07.) Although the boundary between fact and opinion is not a precise one (Catalano v. Pechous (1978), 69 Ill. App. 3d 797, 808, 387 N.E.2d 714, 723, aff’d (1980), 83 Ill. 2d 146, 419 N.E.2d 350), in the case at bar, the newspaper repeatedly stated that the plaintiff lied to its editors and to his constituents. The newspaper stated that the plaintiff had firmly promised that the county board would conduct a binding referendum on a new sales tax to support the local bus system and then refused to do so at his very first meeting. As a result, the newspaper concluded that the plaintiff had deliberately lied and was therefore “nothing more than another patronage-oriented political hack.”

In Buckley v. Littell (2d Cir. 1976), 539 F.2d 882, a journalist brought an action for libel against the author of a book. Although the court held the terms “fascist,” “fellow traveler” and “radical right” to be constitutionally protected opinions, the passage of the book that stated that the journalist had lied about several people was held to be a factual assertion relating to the plaintiff’s journalistic integrity. (Buckley v. Littell (2d Cir. 1976), 539 F.2d 882, 895-96.) The United States Court of Appeals for the Second Circuit further explained Buckley in Cianci v. New Times Publishing Co. (2d Cir. 1980), 639 F.2d 54. The court stated that when an opinion is “something more than a generally derogatory remark but is laden with factual content,” the first amendment does not confer absolute immunity, but merely the qualified protection accorded by New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710, in cases where the plaintiffs are public figures. (Cianci v. New Times Publishing Co. (2d Cir. 1980), 639 F.2d 54, 63.) Buckley and Cianci stand for the principle that the allegation that a public figure is a “liar” can be seen as a factual assertion unprotected by absolute privilege when the derogatory remark is laden with factual content, as opposed to mere name-calling.

In labelling the plaintiff in the instant case a liar, the newspaper impugned a want of integrity and lack of ability in performing the duties of his office. (Fried v. Jacobson.) The allegations were not made in a loose, figurative sense or as mere rhetorical exaggeration. (Catalano v. Pechous (1980), 83 Ill, 2d 146, 161, 419 N.E.2d 350, 357.) Rather, while purporting to be expressing an opinion, the newspaper stated that the plaintiff was a dishonest man and a dishonest leader. For the foregoing reasons we find that the defendants made factual statements that the plaintiff deliberately lied for politically motivated reasons. These statements do not warrant protection as constitutional expressions of opinions merely because they happen to be made on a newspaper’s editorial page.

Finally, we must examine whether the plaintiff’s complaint sufficiently alleges actual malice, as required by New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710. The Illinois Supreme Court has stated that since pleadings are to be liberally construed, accomplishing the minimal New York Times requirement of aUeging that a false statement was made knowingly or in reckless disregard of whether it was true or false can be sufficient to avoid dismissal. (Colson v. Stieg (1982), 89 Ill. 2d 205, 433 N.E.2d 246.) In the instant case, the plaintiff alleged that the defendants either knowingly or recklessly printed false statements concerning him. The allegedly libelous statements are set forth in the complaint and the publication itself was incorporated into the complaint by reference. Accordingly, the minimal requirements necessary for alleging actual malice are present in the plaintiff’s complaint. (New York Times Co. v. Sullivan; Colson v. Stieg; Fogus v. Capital Cities Media, Inc. (1982), 111 Ill. App. 3d 1060.) Further proceedings are required to determine whether actual malice can be established with clear and convincing evidence. Therefore, the trial court’s order dismissing the plaintiff’s complaint for failure to state a cause of action must be reversed and this cause remanded for further proceedings consistent with this opinion.

Reversed and remanded.

HARRISON, P.J., and JONES, J., concur.


author: PRESIDING JUSTICE HARRISON

text:
    FRANCES GIAMANCO, Petitioner-Appellee, v. PAUL D. GIAMANCO, Respondent-Appellant.
    Fifth District
    Nos. 82—256, 82—365, 82—481 cons.
    Opinion filed December 13, 1982.

      Roy Eugene Clark, of Clark Law Offices, of Mt. Vernon, for appellant.
    Feiger, Quindry, Molt, Harvey, Fyie & Hawkins, of Fairfield (Morris Lane Harvey, of counsel), for appellee.
   PRESIDING JUSTICE HARRISON

delivered the opinion of the court:

Paul D. Giamanco (hereinafter referred to as the defendant) appeals from three separate post-divorce orders of the circuit court of Jefferson County. The central issue in each of these causes is whether the defendant’s written admission of his ability to pay precludes him from introducing evidence controverting that admission at any future time. For the reasons which follow we affirm the judgment of the circuit court in case No. 82 — 256 (disposition of Frances Giamanco’s petition to modify) and reverse the judgments in case Nos. 82 — 365 (contempt judgment against the husband) and 82 — 481 (disposition of the husband’s petition to modify) and remand these causes for further proceedings.

The parties were divorced on June 12, 1972, and Frances Giamanco (hereinafter referred to as the plaintiff), pursuant to the parties’ separation agreement, was granted custody of the couple’s daughter, Samantha. The divorce decree obligated the husband to pay the wife the sum of $300 per month child support and $60 per month maintenance. On July 23, 1980, the plaintiff filed a petition for modification of the 1972 decree. The petition alleged that substantial changes in her physical and financial circumstances had occurred and therefore sought an increase in maintenance. On October 8, 1980, the plaintiff filed a petition for attorney fees incurred in connection with the modification proceeding. On January 12, 1981, defendant filed a written admission of “his financial ability to pay in this cause and understands that by so admitting that that issue will be resolved by this court and that a judicial finding of his ability to pay will be made and that the only remaining issue in this cause will be the financial needs of the Petitioner.” The document concluded with a motion that the court order that defendant no longer need produce financial records. This motion was granted on February 5, 1981. On April 10, 1981, the plaintiff filed a petition for modification of child support alleging that substantial changes in circumstances had occurred which warranted an increase in payments.

Hearings were held on December 16 and 28, 1981. The plaintiff testified that her 10-year-old daughter suffers from asthma, which was not diagnosed until after the parties were divorced. She testified that the daughter’s condition sometimes causes her to miss school, at which times plaintiff must take care of her. The plaintiff is self-employed in a small advertising business. She had formerly been employed as a college teacher and as a radio time salesperson. In 1977, she underwent surgery for a hernia repair which apparently induced blood clots to form in one of her legs. She also suffers from a slipped disc. These conditions limit her physical activity.

She testified that her gross expenditures between June of 1980 and December 15, 1981, were about $47,000 and her gross receipts during that period were about $42,000. The gross receipts included about $9,000 in loans from her father. The gross receipts in her business were about $22,475 and gross expenses were about $19,687. The pending bills of her business were about $1,833, and her personal bills at the time of trial were about $3,412.

She further testified that around 1978 her ex-husband voluntarily increased his total monthly payments by $50. She testified that she was able to finance the successive purchases of three Lincoln automobiles by selling one car and then re-investing in a new one. She was able to do this because interest rates at the time were very low. In 1980 she sold the last Lincoln and bought a Cougar. She also testified that while she was married she was able to buy many clothes but that since the divorce she had bought very few new clothes. She has also been forced to buy less expensive food. She testified that during her marriage she generally did not work and that she has not investigated the possibility of obtaining a teaching job at the college where she formerly taught.

Dr. Rosemary Walker, an economist, testified that from the time of the divorce in 1972 until May of 1981, the consumer price index had increased from 125 to 269, or about 215%. Additionally, she testified that during this time the needs of a child increased about 11.5% between the ages of one and 10 years.

Plaintiff’s attorney submitted itemized bills for services rendered during the litigation. Included in the bills were 172% hours at $60 per hour, and $2,396.14 in expenses, for a total bill of $12,896.14. The defendant testified that, in his opinion, the hours billed were excessive and, in some instances, inaccurate.

The trial court found that the plaintiff had proved a substantial change in circumstances since the 1972 divorce decree. The court ordered an increase in maintenance from $60 to $150 per month, an increase in child support from $300 to $700 per month, and payment of plaintiffs attorney fees in the amount of $9,996.92.

The defendant filed a post-trial motion seeking,, inter alia, leave to present additional evidence pertaining to his financial circumstances. On April 15, 1982, the trial court denied this motion and on May 10, 1982, the husband filed a notice of appeal from that denial. On May 6, 1982, the plaintiff filed a petition for rule to show cause why defendant should not be held in contempt of court. A hearing was held on May 27, 1982, at which the defendant testified that he had made three payments totaling $100 toward an arrearage of about $1,290 accrued during February, March, and April. The defendant testified that he failed to pay because he did not have the money to pay. The trial court sustained the plaintiff’s objection based on the prior finding of the defendant’s ability to pay. The defendant then made an offer of proof that, if allowed to present evidence on the subject, the defendant would testify that his liabilities exceeded his assets by $82,000 and that because of his current financial circumstances he had not wilfully failed to pay. The trial court accepted the offer of proof and denied admission of the evidence to which it pertained.

The trial court found the defendant in wilful contempt of court and sentenced him to 30 days in jail with an opportunity to purge himself of the contempt by paying the underlying judgment. On July 1, 1982, the defendant filed a notice of appeal from the June 10, 1982, order holding the defendant in contempt of court.

On May 26, 1982, the defendant filed a petition to modify the trial court’s previous orders, alleging that his financial circumstances had changed. The plaintiff filed a motion to dismiss and on July 29, 1982, the trial court dismissed the defendant’s petition to modify. On August 16,1982, the defendant filed a notice of appeal from that order.

I. CASE NO. 82-256

This appeal raises three issues for review. First, the defendant contends that the trial court erred in ordering the increase in maintenance. Second, he challenges the propriety of the trial court’s order increasing the amount of child support. Third, he asserts that the award of attorney fees was excessive. We affirm.

The modification of the alimony award will not be set aside on review unless the trial court abused its discretion. (Shive v. Shive (1978), 57 Ill. App. 3d 754, 759, 373 N.E.2d 557.) The general rule is that a request for modification of maintenance may be granted “only upon a showing of a substantial change in circumstances.” (Ill. Rev. Stat. 1981, ch. 40, par. 510(a).) The trial court specifically found that the plaintiff had established a substantial change in circumstances. The defendant argues that the plaintiff deliberately and voluntarily eroded her financial stability by purchasing new Lincoln automobiles every year and by quitting a higher paying job and that, therefore, she is not entitled to an increase in maintenance because the change in circumstances is not fortuitous. (See Pierce v. Pierce (1979), 69 El. App. 3d 42, 45, 386 N.E.2d 1175.) We have found nothing in the record to indicate that the trial court considered plaintiff’s automobile purchases in determining that modification was appropriate. There is ample evidence from which the trial court could have concluded that plaintiff’s decision to become self-employed was necessitated by her daughter’s physical condition. This also provides a basis for concluding that a change of circumstances occurred in that the plaintiff’s income had decreased. The trial court’s award of increased maintenance was supported by the evidence and, therefore, was not an abuse of discretion.

The defendant also contends that the trial court erred in excluding evidence of the defendant’s financial condition. The defendant filed a written admission of his ability to pay; this admission contained no qualification or conditional element. At no time before the trial court’s judgment was entered did the defendant seek to present evidence of his inability to pay. Only after the judgment was entered, and it became apparent that his stratagem had failed, did defendant seek to repudiate his admission. The gist of the defendant’s post-trial motion was that the amounts awarded exceeded his expectations and therefore the court should hear evidence of his actual financial condition. A judicial admission is a formal act “which waives or disposes with the production of evidence, by conceding for the purposes of litigation that the proposition of fact *** is true.” (Hudson v. Augustine’s, Inc. (1966), 72 Ill. App. 2d 225, 234-35, 218 N.E.2d 510.) The defendant’s admission was a written document which he had signed and filed in the trial court and which resulted in a court order adopting its substance. This document, and its attendant circumstances, is a sufficiently formal act for us to conclude that it constitutes a judicial admission. The consequence of this conclusion is that the admission “is a waiver relieving the opposing party from the need of any evidence, and is conclusive in the sense that it formally waives all right to deny [the admitted facts], for the purposes of the trial; it removes the proposition in question from the field of disputed issues.” (Hudson v. Augustine’s, Inc. (1966), 72 Ill. App. 2d 225, 235.) We hold that the issue of the defendant’s ability to pay was waived by his judicial admission and therefore, that the trial court correctly denied the post-trial motion.

Defendant next contends that the trial court erred in modifying the child support payments. Like maintenance, modification of child support depends on a showing of a material change in circumstances. (Ill. Rev. Stat. 1981, ch. 40, par. 510(a).) “The specific factors to be considered include the financial resources of the child, financial status and needs of the custodial parent, the standard of living the child would have enjoyed had the marriage not been dissolved, the physical and emotional condition of the child and his educational needs, and the financial ability and needs of the noncustodial parent.” (In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 160, 408 N.E.2d 1021.) The diagnosis of the child’s asthma occurred subsequent to the original divorce decree. The trial court could have found that this physical condition necessitated an increase in the support. The increased needs of the child may also be established by the child’s growing older and the increase in the cost of living established by the expert testimony. (See In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 161.) The previous discussion of the husband’s admission of his ability to pay applies to this issue. We conclude that there is ample basis in the record for the increase in support.

Third, the defendant contests the amount of the attorney fee award. The award of attorney fees is committed by statute to the sound discretion of the trial court and will not be reversed absent an abuse of discretion. (In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 162-63.) The plaintiff’s attorney submitted an itemized bill at a stipulated hourly rate of $60. We also note that although the amount requested was nearly $13,000, the trial court awarded only about $10,000. The record provides a thorough itemization of time spent on behalf of the plaintiff and is therefore a sufficient foundation for the award. (In re Sharp (1978), 65 Ill. App. 3d 945, 950, 382 N.E.2d 1279.) The defendant also contends that the plaintiff brought the underlying action in bad faith, in that she knowingly and deliberately undermined her financial position, and that therefore the fee award was based upon unnecessary judicial action. Whether the plaintiff was guilty of bringing the modification proceeding in bad faith is only one of the factors which the trial court, in the exercise of its discretionary powers, will consider in allowing attorney fees. (Brandt v. Brandt (1981), 99 Ill. App. 3d 1089, 1109-10, 425 N.E.2d 1251.) In the instant case we find no abuse of discretion.

The judgment of the circuit court of Jefferson County in case No. 82 — 256 is affirmed.

II. CASE NO. 82-365

On May 6, 1982, the plaintiff filed a petition for rule to show cause why the defendant should not be held in contempt of court for failure to pay child support, maintenance, and attorney fees. A hearing was held during which the defendant sought to introduce evidence of his current financial condition. The trial court sustained objections to the introduction of this evidence and found the defendant in contempt of court.

A father’s failure to make child support payments as required in a decree is prima facie evidence of contempt. (Gentile v. Gentile (1980), 87 Ill. App. 3d 311, 313, 409 N.E.2d 52.) The defendant admitted that he had not made the payments ordered by the court. “ ‘The burden is then on the husband to show that he had a valid excuse for non-payment. *** It is not enough *** to find that the defendant is in arrears. Mere absence of compliance with the provisions of the decree is not sufficient basis for a judgment of contempt of court unless the evidence shows the failure to comply was a willful [sic] and contumacious refusal to obey the court order. Mesirow v. Mesirow, 346 Ill. 219, 178 N.E. 411.’ ” (Storm v. Storm (1973), 9 Ill. App. 3d 1071, 1077, 293 N.E.2d 633, quoting from Cole v. Cole (1967), 85 Ill. App. 2d 105, 112-13, 229 N.E.2d 293.) In the instant case the trial court excluded evidence of defendant’s financial condition. The plaintiff asserts that this was proper because the defendant’s admission of his ability to pay is conclusive against him and incontrovertible. In support of this contention she cites several cases relating generally to the effect of prior admissions but which we find distinguishable in that they do not involve contempt proceedings. (See, e.g., People v. Bone (1980), 82 Ill. 2d 282, 412 N.E.2d 444 (criminal proceeding to revoke probation); People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851 (quo warranto proceeding); Chicago & Alton R. R. Co. v. Raidy (1903), 203 Ill. 310, 67 N.E. 782 (effect of newly discovered evidence on motion for new trial); Badger Mutual Insurance Co. v. Murry (1977), 54 Ill. App. 3d 459, 370 N.E.2d 295 (declaratory judgment action on insurance policy); Rosbottom v. Hensley (1965), 61 Ill. App. 2d 198, 209 N.E.2d 655 (effect of admission in negligence suit).) As noted above, the general rule governing contempt proceedings is that the failure to pay must be wilful and contumacious. As the court in Cole v. Cole (1967), 85 Ill. App. 2d 105, 113, 229 N.E.2d 293, stated, “[t]he defense to the contempt charge should, in our opinion, be thoroughly heard and considered.” Therefore, the court should have considered the defendant’s financial condition at the time of the contempt hearing to determine whether the failure to pay was wilful and contumacious.

Accordingly, we reverse the judgment of the circuit court of Jefferson County in case No. 82 — 365 and remand for further proceedings not inconsistent with this disposition.

Reversed and remanded with directions.

III. CASE NO. 82-481

On May 26, 1982, after filing his notice of appeal in case No. 82 — 256, the defendant filed a petition to modify which the trial court dismissed without an evidentiary hearing. Initially, we must determine whether the filing of the defendant’s notice of appeal before filing his petition to modify divested the circuit court of jurisdiction over the petition to modify. We find this issue to be governed by the recent case of In re Marriage of Petramale (1981), 102 Ill. App. 3d 1049, 430 N.E.2d 569. “The general rule is that once a notice of appeal is filed, the trial court is divested of jurisdiction to enter any order involving a matter of substance, and the jurisdiction of the appellate court attaches instanter.” (102 Ill. App. 3d 1049, 1052.) The Petra-male court concluded, however, that a petition for modification of child support or for temporary alimony or appellate attorney fees constitutes an exception to the general rule. “We therefore hold that the trial court erred in striking respondent’s petition and remand for consideration [of] the modification petition.” (102 Ill. App. 3d 1049, 1053.) We conclude that the trial court had jurisdiction to consider the defendant’s petition.

The plaintiff contends that the defendant’s judicial admission justifies dismissing the petition to modify. We disagree. The defendant’s judicial admission is conclusive against him for the purposes of the trial (Hudson v. Augustine’s, Inc. (1966), 72 Ill. App. 2d 225, 235), but the purpose of a modification proceeding is to show that a substantial change in circumstances has occurred since the prior judgment. (Ill. Rev. Stat. 1981, ch. 40, par. 510(a).) We therefore hold that the defendant may prove the existence of a change in circumstances occurring since the rendition of the prior judgment. The defendant’s admission is not, however, without consequence in our consideration of this issue. “Having affirmed under oath that a given state of facts exists, a party cannot be permitted to later affirm that the contrary is true.” (Finley v. Kesling (1982), 105 Ill. App. 3d 1, 9, 433 N.E.2d 1112.) In the instant case, the defendant filed his admission on January 12, 1981, and never attempted to put his financial condition in issue until after the judgment was rendered on January 25, 1982. Applying Finley to the instant case, we hold that the defendant may not assert as a “substantial change in circumstances” any change in his financial condition which occurred before January 25, 1982, because the defendant never asserted before that date that the admission did not represent his then current financial condition. A change occurring after January 25, 1982, is relevant. Therefore, we hold that the defendant may introduce evidence of his financial condition as of any time after January 25, 1982, but if he does so, he must also introduce evidence of his financial condition on January 25, 1982, in order to demonstrate a change in circumstances.

Accordingly, we reverse the judgment of the circuit court of Jefferson County in case No. 82 — 481, and remand for further proceedings not inconsistent with this disposition.

Reversed and remanded with directions.

WELCH and KASSERMAN, JJ., concur.


author: PRESIDING JUSTICE BARRY JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES H. MITCHELL et al., Defendants-Appellants.
    Third District
    No. 82—119
    Opinion filed January 19, 1983.
    HEIPLE, J., dissenting.
    Ronald L. Hamm, of Hamm & Hanna, Ltd., of Peoria, for appellants.
    John A. Barra, State’s Attorney, of Peoria (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Defendants, James H. Mitchell and David R. Mitchell, were convicted of gambling by the circuit court of Peoria County following a jury trial and fined $50 each and ordered to make restitution in the amount of $375 each to the Illinois Department of Law Enforcement.

The charge grew out of an incident which occurred on March 16, 1980, when undercover agent William Pennell of the Illinois Division of Criminal Investigation took part in two poker games in the basement of a residence at 1309 Elmhurst, Peoria. According to the testimony of Pennell, he was invited to participate in the game by an informer, Michael Paulson, who accompanied Pennell to the residence which was owned by defendant David Mitchell. Pennell and eight other individuals, including both defendants, paid $500 each to get into a game of “Hold 'em” poker. The money was collected by defendant David Mitchell and laid on the piano. Poker chips representing $500 in value per player were distributed to the nine participants.

David Mitchell explained that the $4,500 pot would be distributed to the first and second-place winners in the amounts of $3,500 and $1,000, respectively. The game was played with two cards in the hand of each participant and three, four and five cards dealt face up to the center of the table progressively as the players announced their decision to bet, call or fold. David Mitchell was the first player to lose all of his chips; Pennell was the second.

Pennell and David Mitchell then discussed starting up a second game with $250 stakes. Pennell left to get more money, returned, and the second game was started up with Pennell, David Mitchell and two others who had also lost at the first table. Pennell and David Mitchell again each lost all of their chips, and Pennell left the residence before the winners had been determined at either table. At the completion of all testimony and arguments of counsel, the court instructed the jury on the applicable law.

Over the State’s objection, the jury was instructed that, in addition to proving that the defendants played a game of chance or skill for money or other thing of value (Ill. Rev. Stat. 1979, ch. 38, par. 28— 1(a)(1)), the State had the burden of proving that the defendants were not participating for the offer of prizes in any bona fide contest for the determination of skill (Ill. Rev. Stat. 1979, ch. 38, par. 28 — l(bX2)). After a half hour of deliberations, the jury returned verdicts of guilty against both defendants. The court, after considering the wide range of sentences available under section 5 — 5—3 of the Unified Code of Corrections from imprisonment through restitution (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3(b)), imposed the fines and orders of restitution as aforesaid. This appeal followed.

The sole issue presented for our consideration is whether the State proved defendants guilty beyond a reasonable doubt of having committed the offense of gambling as charged. (Ill. Rev. Stat. 1979, ch. 38, par. 28 — 1(a)(1).) Defendants’ primary contention is that the State failed to prove beyond a reasonable doubt that the game did not qualify as a bona fide contest for the determination of skill (Ill. Rev. Stat. 1979, ch. 38, par. 28 — 1(b)(2)), an exception to the games constituting offenses in subsection (a)(1) of the gambling statute. Pennell testified that he was less skillful than certain other players who participated in the games. His performance, as testified to by himself, supported his conclusion in this regard.

The trial court ruled that the issue of whether “Hold 'em” poker qualified for the exception or not was a question of fact in this case. Whether or not the issue is a question of fact is not before us. (See Annot., 135 A.L.R. 104, 130-33 (1941).) Defendants contend merely that the jury’s conclusion cannot be supported by the evidence of record.

Certainly the State has the burden of proving each element of the offense beyond a reasonable doubt. In the present case, the jury found that the State had borne its burden. On appeal we •will not reverse defendants’ convictions unless- we find the evidence so unsatisfactory as to create a reasonable doubt of guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671; accord, People v. Diesel (1970), 128 Ill. App. 2d 388, 262 N.E.2d 15, 18 (same standard applied in bench trial).) Circumstantial evidence has the same validity and weight in gambling cases as in other offenses. Ill. Rev. Stat. 1979, ch. 38, par. 28—1(d).

While the defendants have failed to cite any authority for the precise issue they present, the State refers us to People v. Diesel which, they suggest, provides authority by implication for affirming defendants’ convictions. In Diesel, as here, defendant asserted that the State had not borne its burden of proving him guilty of gambling (Ill. Rev. Stat. 1967, ch. 38, par. 28 — 1(a)(1)) beyond a reasonable doubt. Diesel was seen by police officers seated at a table with others, cards in hand and money on the table. Without discussing the rules of the game in progress or the exception in subparagraph (b)(2) of the gambling act, the court upheld Diesel’s conviction on the reasonable doubt challenge.

In our opinion, the poker game played under the circumstances of the instant case is precisely the type of “game of chance or skill” which falls squarely within the plain meaning of the activity proscribed under subsection (a)(1). Although there was some testimony tending to indicate that the poker games involved some degree of skill, we do not find the jury’s implicit conclusion that they were not “bona fide contests for the determination of skill” so improbable as to warrant a reversal. Both direct and circumstantial evidence was introduced to support the conclusion that the games, in fact, required a combination of skill and chance, and that they were definitely not the type of “bona fide contests” excepted from subsection (a)(1). See People v. Diesel (1970), 128 Ill. App. 2d 388, 394-95, 262 N.E.2d 15, 18-19.

Defendants next contend, again without citation to any authority whatever, that their convictions may not stand because the evidence showed that both defendants “through lack of skill” failed to reach the point where they qualified to win any money. The argument is specious, at best.

The fact that poker chips were used in lieu of cash at the table and that the rules allowed for only two cash winners does not diminish the fact that each participant played “for money or other thing of value.” Plainly, “things of value” (poker chips representing various dollar amounts by their colors) were what was being bet and money was all that could be won. (There was no evidence tending to establish that the defendants merely donated $500 each to the pot for the entertainment of their friends with no hope of possibly winning money back.) Were we to adopt the defendants’ reasoning, we would effectively repeal the gambling statute, a legislative function which the judiciary is not empowered to perform.

Finally, although Pennell could not state definitely that anyone had, in fact, left the games with money, sufficient evidence was presented at trial to permit the jury to find that the games were played “for money or other thing of value” as opposed to, for instance, a pat on the back. Defendants’ argument to the contrary is meritless.

For the foregoing reasons, the defendants’ convictions are affirmed.

Affirmed.

STOUDER, J., concurs.

JUSTICE HEIPLE,

dissenting:

The position of the State of Illinois on gambling is ambivalent, inconsistent, contradictory and self-serving. We have State regulated race track betting. We have bingo. We have the Illinois State Lottery.

People gamble in their homes. They gamble on the golf course. They bet on baseball, basketball, football, and prize fights. They shop at certain stores so they can be in the store’s weekly lottery drawing. They buy and sell futures contracts through their stockbrokers. They gamble in taverns, private clubs and fraternal organizations.

Gambling is more than endemic in Illinois. It is epidemic. Officially, however, it is illegal in most situations. How is this illegality recognized? It is tolerated, accepted, smiled at, and, in rare instances, prosecuted. If all of the illegal gambling in Illinois were totted up for the purpose of computing the percentage of gambling that is prosecuted, prosecutions would equal an infinitesimal fraction of one percent. No one could doubt that. Yet gambling prosecutions continue in selected cases. A good argument could be made that any gambling prosecution is unconstitutional as involving an unequal application of the laws.

The instant case is just so.

Defendants paid $500 each to enter a game called “Hold 'em” poker. There were nine players. Chips were issued in denominated values of $50, $20 and $5. These chips were not redeemable but would be used to play successive poker hands. At the end of the game, the-player with the most value in chips would receive a prize of $3,500 and the player with the next most value in chips would receive $1,000. The $4,500 would be paid from the entrance fee of $500 paid by each of the nine players. There was to be no cut for the house and no refund for any chips. No part of the entry fee would be refunded once the game had begun.

Unfortunately for the defendants in this case, one of the nine players in the game in question was undercover officer William Pennell, a special agent with the Illinois Division of Criminal Investigation. He was also an unskilled and unlucky poker player. He lost $500 in the first game of “Hold 'em” and $250 in a second game which was played for smaller stakes. The $750 which he lost was not his money, of course. It was seed money advanced to Pennell by the State of Illinois, the proprietor of the Illinois State Lottery, for the purpose of ferreting out evidence against gambling.

The two defendants were subsequently charged by the State of Illinois, tried and found guilty of gambling. They were fined $50 each and ordered to refund Pennell’s $750 seed money, presumably to be used by Pennell in future evidence gathering operations regarding gambling.

Defendants have appealed, claiming that the statute on gambling exempts their particular activity from prosecution.

What does the statute say?

First of all, it says that a person commits gambling when he plays a game of chance or skill for money or other thing of value, unless excepted in subsection (b) of section 28 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 28 — 1).

What does the exception in subsection (b) say? It says:

“(b) Participants in any of the following activities shall not be convicted of gambling;
* * *
(2) Offers of prizes, award or compensation to the actual contestants in any bona fide contest for the determination of skill, speed, strength or endurance ***.’’ (Emphasis added.) Ill. Rev. Stat. 1979, ch. 38, par. 28-1(b)(2).

The defendants quite correctly claim that the game of “Hold 'em” poker which they were playing was a contest for the determination of skill. And it might be said that the element of endurance was also involved. The money paid at the conclusion of the contest was prize money for the two most skillful contestants. It must be remembered that no hand of cards was played for money. Additional chips could not be purchased during the game. And at no time could the chips be cashed in for anything. If a person dropped out before the end of the game, his chips were valueless. The fund from which the two prizes were paid was created from the entrance fees.

The State argues that poker is not a game of skill but is a game of pure chance or luck. This allegation is a canard. Anyone familiar with even the barest rudiments of the game knows better. Pure luck? Send a neophyte player to a Saturday night poker game with seasoned players and he will leave his clothes behind and walk home in a barrel. Pure luck? This is true of bingo or lottery. But it cannot be said of poker. The court should take judicial notice that poker is a game of skill. It cannot be gainsaid, of course, that there is an element of luck in poker. Of course there is. There is an element of luck in everything in life. Even the prosecution of a lawsuit contains an element of luck. But everything that contains an element of luck is not gambling.

The payment of the specified entry fee in order to enter the instant contest was no different than the payment of an entry fee to enter a bridge tournament, chess tournament, bowling tournament or golf tournament. In such tournaments, the entry fee is not refundable. Some such tournaments involve the receipt of cash prizes while others result in trophies. Compensation and prizes in contests of skill are exempted by statute. The fact that the prize here was cash instead of a trophy is of no moment. That does not make it gambling. So far as prizes are concerned, even the smallest trophy has a value. If defendants are guilty of gambling because they participated in a contest involving cash prizes, then everyone and anyone receiving a trophy or ribbon in any type contest is guilty of gambling. Such a strained construction cannot be the law.

The question here is one of law. It is not a question of whether one is for or against gambling. It is not a question of whether poker playing is gambling in popular parlance. The question, rather, is whether these particular defendants in this particular game of “Hold 'em” poker brought themselves within a particular prohibited section of the gambling statute. And secondly, if their activity constituted prohibited gambling in the first instance, was it excepted from prosecution by the exception in the statute?

Clearly, as a matter of law, the defendants are not guilty. They are entitled to a judgment of acquittal. Accordingly, I dissent.


author: JUSTICE STOUDER

text:
    JUDITH P. THOMAS, Respondent-Appellee, v. PAYNE E. L. THOMAS, Petitioner-Appellant.
    Fourth District
    No. 4—82—0279
    Opinion filed January 11, 1983.
    John L. Swartz, of Giffin, Winning, Lindner, Newkirk, Cohen & Bodewes, P.C., of Springfield, for appellant.
    Alexandra deSaint Phalle, of Londrigan & Potter, P.C., and John P. Lynaugh, both of Springfield, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

Petitioner Payne Thomas filed a petition for relief from a decree of divorce requesting a declaration that his obligation for the continued payment of alimony to respondent Judith Thomas had terminated. Respondent filed a counterpetition to compel the resumption of alimony payments. After a hearing in the circuit court of Sangamon County, the petition was denied and the counterpetition was granted.

The facts are uncontroverted. The Thomas’ were divorced on May 10, 1973, and petitioner was ordered to pay alimony of $3,150 per month for 10 years and $3,000 per month thereafter until respondent’s “death or remarriage.” On July 20, 1978, respondent married Donald L. Laisure, Sr. Within a month, she filed a petition for declaration of invalidity of marriage, alleging incapacity to consent. At the hearing on the petition, respondent testified that she had been under the influence of intoxicating beverages combined with stupefying drugs administered by Laisure under the guise of vitamins. She further indicated that Laisure had threatened her life and those of her parents if she would not have participated in the marriage ceremony. A default judgment was entered on November 14,1978.

The sole issue germane to our decision is whether the term “remarriage” refers to a ceremony of marriage or a status of marriage. Two decisions of this State guide our determinations: Lehmann v. Lehmann (1922), 225 Ill. App. 513, and In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 425 N.E.2d 1301, appeal denied, (1982), 88 Ill. 2d 551.

Lehmann involved a remarriage of a woman within one year of her divorce, at that time a prohibited practice in Illinois. The remarriage, however, did not take place in this State but in New Jersey. After living with her second husband in New York and Maine for 15 months, she obtained a default annulment on the ground that her second marriage was in violation of the Illinois statute. When she brought the appealed contempt action to compel alimony payments from her first husband, the court found the second marriage valid as so being where contracted and in her previous domiciles. As to the meaning of remarry and remarriage, the court was clear: “We think that said words as so used were intended by the parties to refer to the ceremony or act of marriage as distinguished from the status or relation thereafter.” (Lehmann v. Lehmann (1922), 225 Ill. App. 513, 522.) The court later explained:

“[I]t appears that after the Quintard marriage and during the entire period of the cohabitation of the parties thereto, respondent did not pay, and petitioner did not demand, any alimony for petitioner’s own support as provided in the divorce decree and the written agreements. Both petitioner and respondent seemingly believed that the former had lost her right to receive such alimony from the latter and they acted accordingly, and thereby themselves practically construed their own agreements as to alimony. Such construction is entitled to great if not controlling weight and should, we think, be followed. [Citations.]” Lehmann v. Lehmann (1922), 225 Ill. App. 513, 526-27.

Kolb involved a remarriage of a woman in Las Vegas. At a reception immediately following the remarriage, the second husband became involved in a heated argument. As a consequence, the marriage was never consummated and was annulled in Nevada. The woman did not tell her first husband, who continued to pay monthly installments on an alimony in gross award. When he later petitioned for a declaration that his responsibility to pay alimony had earlier terminated, the court looked to Lehmann’s clear statement regarding intent.

“The court stressed that the parties themselves had practically revealed their intent as to the meaning of the term ‘remarriage’ in the divorce decree and other agreements where the husband automatically terminated his alimony payments upon the wife’s remarriage and she made no demands upon him for such payments until after her annulment. ***
We note that the approach followed by the court in Lehmann in explaining and ascertaining the intent of the parties in using this term was consistent with more recent decisions of this court.” In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 899, 425 N.E.2d 1301, 1305.

The respondent in Kolb contended that she and her first husband intended the alimony payments to terminate upon her entering into a marriage from which she would be supported, based on the further intent that she should not receive simultaneous support from both men. The court rejected this contention and found, as did the Lehmann court, that the parties intended remarriage to refer to a ceremony of marriage.

In the case at bar, it appears that petitioner ceased his payment of alimony upon learning of respondent’s second marriage. Under the rationale of Lehmann and Kolb, this would appear consistent with the intent that remarriage refer to a ceremony of marriage; however, additional facts must be considered.

Prior to the filing of the petition for declaration of invalidity of marriage, John Lynaugh, one of respondent’s attorneys, gave notice of intent to file the petition to Bernard Segatto, then petitioner’s attorney. Segatto advised Lynaugh that his client would not contest the hearing, but that the decree must be properly drawn so that petitioner could resume alimony payments. Approximately two months later, Segatto asked Lynaugh to expedite the hearing, so that it would be concluded, for tax reasons, before the end of the year. After securing a hearing date, Lynaugh notified Segatto. After the hearing, Segatto was given a copy of the judgment, and shortly thereafter petitioner resumed alimony payments as per the 1973 decree of divorce. Petitioner then continued to make the alimony payments for three years.

Unlike the parties in Lehmann and Kolb, the actions of the parties herein evidenced an intent that the term “remarriage” refer to a status, rather than a ceremony, of marriage. If this were not the case, petitioner would not have voluntarily resumed his alimony payments upon the judicial declaration of invalidity, for such a declaration would be immaterial. Under these specific circumstances, we find the term remarriage, as used in the parties’ decree of divorce, refers to a status of marriage.

The Thomas’ have raised several other issues concerning respondent’s lack of consent (see In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 900, 425 N.E.2d 1301, 1306) and whether the second marriage was void ab initio or voidable (see In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 897, 425 N.E.2d 1301, 1303). While it is unnecessary for us to reach these questions, we note that the courts are by no means agreed on their answers (see Annot., 45 A.L.R.3d 1033 (1972)). Petitioner has also contended that the declaration of invalidity is not binding on him as he had no standing to participate or intervene in that action. As petitioner made no attempt to participate or intervene, we decline to offer an advisory opinion on the question, and leave its resolution to an appropriate factual setting or the legislature (see Annot., 45 A.L.R.3d 1033 (1972)).

Accordingly, the judgments of the circuit court of Sangamon County are affirmed.

Affirmed.

BARRY, P.J., and SCOTT, J., concur.


author: JUSTICE WELCH JUSTICE JONES,

text:
      In re ESTATE OF FLORENCE DONNELLY, a Disabled Adult.—(Margie Lee Tegeler et al., Guardians of the Person and Estate of Florence Donnelly, Petitioners-Appellants, v. Ralph J. Mendelsohn, Guardian ad litem of Florence Donnelly, Respondent-Appellee.)
    Fifth District
    No. 81—492
    Opinion filed January 12, 1983.

      JONES, J., dissenting.
    Stephanie Robbins, of Earl L. Vuagniaux, P.C., of Edwardsville, for appellants.
    Ralph J. Mendelsohn, of Mendelsohn & Simmons, of Alton, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This appeal presents the question of whether plenary guardians for a disabled adult may be compensated from the estate of the adult for services rendered solely in relation to the emotional needs of the adult. We hold that, subject to guidelines pertaining to representatives’ fees in general, they may be so compensated.

Florence Donnelly, the disabled adult, was discovered in June 1980 by appellants Margie Tegeler and June Smith through their work with a meals on wheels program. Ms. Donnelly, who was 73 years old at the time, lived alone in her Collinsville home in squalid conditions. She had a great deal of difficulty in caring for herself and was in a state of physical and mental deterioration.

The appellants, in addition to making frequent visits to Ms. Donnelly’s home to assist in improving her personal hygiene and dietary habits, also attempted to locate any surviving relatives. It was determined that Ms. Donnelly’s 85-year-old half-brother lived in Niles, Michigan. The half-brother came to Collinsville with a grandson, and, after visiting with the appellants and Ms. Donnelly, he agreed that the appellants should be appointed as her guardians. A petition to that effect was filed in the circuit court of Madison County in September 1980, and, on September 26, the appellants were appointed guardians of the person and of the estate of Florence Donnelly.

Pursuant to their appointment, the appellants had Ms. Donnelly placed in a nursing home, sold her Collinsville house and otherwise assumed the management of her estate, which is valued at approximately $90,000. They also visited her in the nursing home at least three times a week, brought presents and other items to her, took her on outings and invited her to their homes on holidays and other occasions. On January 23, 1981, the appellants filed an interim report of their activities between August 1, 1980, and December 31, 198Ó. That report alleged that the appellants had spent 444 hours in different capacities, performed for the benefit of Ms. Donnelly. The appellants petitioned the probate court to allow them $1,350 each as compensation for their services.

The court-appointed guardian ad litem for Ms. Donnelly objected to this request. At hearings on the appellants’ report, he argued that the guardians should be compensated for managing Ms. Donnelly’s estate and for attending to her physical needs, but not for services performed to meet her emotional needs. The court accepted this distinction “after evaluating the legal relationship between guardian and ward and after giving due consideration to the need for protecting a ward from possible abuses of her funds.” The court allowed the appellants $1,000 compensation apiece, and it is from that order that the present appeal is taken.

The parties concede that there is no case law in Illinois purporting to decide whether plenary guardians may be compensated for services rendered solely in relation to the emotional needs of the disabled ward. There is no question that these activities would not be compensable if the appellants were only guardians of the estate of Florence Donnelly, for the duties of the guardian of the estate of a disabled adult do not encompass such activities. (Ill. Rev. Stat. 1981, ch. 1101/2, par. 11a—18(a); see also Poling v. City Bank & Trust Co. (Fla. App. 1966), 189 So. 2d 176.) Thus, if the appellants are entitled to compensation for these services, they may be entitled to it only in their capacity as personal guardians.

Section 27—1 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 1101/2, par. 27—1) provides in general terms that “[a] representative is entitled to reasonable compensation for his services.” This provision, which has been applied to fees sought by the conservator of the estate of an incompetent (In re Estate of Rumoro (1980), 90 Ill. App. 3d 383, 413 N.E.2d 70; In re Estate of Weber (1978), 59 Ill. App. 3d 274, 375 N.E.2d 569), is broadly worded so as to indicate that it applies to reimbursement sought by a personal guardian as well.

The appellants argue that since no limitation is placed on the term “services” by section 27 — 1, the trial court’s distinction between services related to the emotional needs of the ward and other activities undertaken on behalf of the ward is unwarranted by the terms of that provision. They further contend that since the personal guardian of a disabled adult is required to “assist the ward in the development of maximum self-reliance and independence” (Ill. Rev. Stat. 1981, ch. 1101/2, par. 11a — 17(a)) and to file reports informing the court of, inter alia, “the current mental, physical and social condition of the ward” and “the guardian’s visits with and activities on behalf of the ward” (Ill. Rev. Stat. 1981, ch. 110V2, pars. 11a — 17(b)(1), (4)), it is incongruous to deny the guardian compensation for these mandatory activities.

We agree with this position. We find nothing to indicate that the term “services” in section 27 — 1 was intended to include all services rendered by a representative except those which further the emotional well-being of the ward, and the fact that the personal guardian is entrusted with the physical and mental development of the ward is additional evidence that that section should not be so limited. It would be unfair to require the personal guardian to attend to the adult’s emotional needs while, at the same time, denying him any compensation for his activities in furtherance of those ends. Moreover, many of the tasks performed by the personal guardian serve multiple purposes, and we can foresee great administrative difficulties in attempting to differentiate between noncompensable services “performed exclusively in relation to the emotional needs of the ward” and other, compensable, services.

A statute which is unambiguously worded should be enforced according to the plain and ordinary meaning of that language. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189, 381 N.E.2d 222; People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 357 N.E.2d 1180.) Therefore, we hold that the word “services” in section 27 — 1 of the Probate Act of 1975 includes all services performed for the benefit of the ward, and does not exclude those services which only further the ward’s emotional development. Courts in other jurisdictions have also allowed personal guardians of incompetent adults to receive compensation for activities which related only to the emotional needs of the ward (Metcalfe v. Nichol (1955), 225 Ark. 661, 283 S.W.2d 853; Lake v. Hope (1914), 116 Va. 687, 82 S.E. 738; May v. May (1872), 109 Mass. 252), and our construction of section 27 — 1 is in conformity with these decisions.

Finally, the guardian ad litem asserts, and the trial court agreed, that to allow compensation for such services would increase the possible abuses of an incompetent’s estate by encouraging self-dealing and the claiming of excessive fees by the personal guardians. This argument proves too much. The dangers of excessive charges are present in the administration of all types of estates, and byguardians of the person and of the estate. The possibilities of such an abuse do not provide a rationale to allow compensation for managing the estate, or meeting the physical needs of the ward, but to deny any compensation for services to further the ward’s emotional development. It should be remembered that all representatives’ fees are within the strict control of the probate court (In re Estate of Rumoro (1980), 90 Ill. App. 3d 383), and, even if the potential for abuse could be said to furnish a logical justification to draw the distinction made at trial, we must presume that the control of the trial court would effectively eliminate those abuses.

In conclusion, we hold that sections 11a — 17 and 27 — 1 of the Probate Act of 1975 must be read together to permit the probate court to consider services performed exclusively for the emotional benefit of the disabled adult in setting compensation for the adult’s personal guardians. Because, in determining appellants’ fees, the trial court expressly declined to consider those services, we must reverse the order granting fees to the appellants and remand this cause to the circuit court of Madison County to redetermine the appropriate fee award. We express no opinion as to a suitable amount for those fees.

Reversed and remanded.

EARNS, J., concurring.

JUSTICE JONES,

dissenting:

I would affirm the trial court. The allowance of fees to the guardians for services performed exclusively for the emotional benefit of the ward represents a radical departure from pertaining norms and is wholly unwarranted. The statute relied upon by the majority is anything but express, and it is not amenable for use in this case. Furthermore, the cases from other jurisdictions do not furnish a precedent for the result reached by the majority.

The trial court entered an order which reflects that it gave full consideration to the guardians’ claims and rejected them. The order recited in part,

“The court finds that services related only to the emotional needs of the ward should not be compensable to the Guardians. The Court reaches this conclusion after evaluating the legal relationship between guardian and ward and after giving due consideration to the need for protecting a ward from possible abuses of her funds.”

This language plainly shows the concern of the court that the situation was replete with conflict of interest and that to allow the claim as advanced would open the ward’s estate to abuse. The court also noted that activities and companionship were available to the ward as inherent in the atmosphere of the nursing home where the ward now resides. The court ordered repayment of the cost of gifts to the guardians from the ward in excess of $100 each, provided limitations for future expenditures on behalf of the ward, and denied any future compensation for services and companionship exclusively for the emotional needs of the ward. The court’s order is well reasoned and correctly assesses the intrinsic danger in permitting claims for services exclusively for the emotional needs of a ward. In my opinion, it should be affirmed.

This case presents to Illinois a new manner of seeking recompense for the extension of friendship and kindness to aged persons who are suffering from the lack thereof. A multitude of previous cases have dealt with rewards for friendship in the form of deeds, wills, joint accounts in banks and savings and loan institutions, and gifts of personal property. The judicial view of these types of cases reflects an abiding suspicion that the amount and duration of the attention, friendship and services conferred by the actors are directly proportional to the extent and duration of the estate of the befriended one. It is no wonder at all that the statutes denoting the types of services and acts for which guardians may be compensated from the ward’s estate omit any mention of supplying a ward’s emotional needs. As a general rule, fees are allowed to guardians only for such services and actions as produce a result that is cognizable in terms and concepts far more finite than “emotional needs.” Almost any activity, any service, could be said to be to supply an “emotional need” of a ward. This is especially so where a nonprofessional person decides what services are necessary and whether they are beneficial to the recipient.

It is the duty of guardians to protect the estates of their wards. If the customary rules and guidelines are altered to permit the payment of fees and compensation for untrained, nonprofessional people to attend to and supply the emotional needs of wards, all wards’ estates would be in jeopardy.

To allow fees and expenses to guardians for services performed exclusively for the emotional needs of the ward will open the estates of wards to gross abuse and waste. Spurious claims and spurious assumption of beneficial consequences will be a natural result. No better example could be found than that supplied by this very case. The guardians bought a ring for the ward costing $266. They bought her a $135 chain for her birthday. They purchased a gold watch, a garnet and a diamond ring as “gifts” for the ward at a cost of $672. They purchased “gifts” from the ward to themselves at a cost of $435. All of these “gifts” were at the expense of the estate of the ward, an estate which the guardians in the exercise of their traditional role are bound to protect. Beyond the “gifts,” the guardians seek compensation because they have devoted time to having fun with the ward, helping her to laugh again, go shopping, etc., etc. During these times of fun and laughter presumably the guardians were also enjoying themselves, so arguably the ward’s estate should be granted an offset for the reciprocating fun and laughter enjoyed by the guardians.

It may be granted as true that friendship, companionship, visitation, meal-sharing, gift-giving, and so forth, shared with a ward, would naturally work a benefit to that ward, just as such pursuits are known to benefit all people everywhere. The allowance of compensation for such services as are shown in this case would open the estates of wards to situations replete with conflicts of interest. The services rendered the ward exclusively for the emotional benefit of the ward were not in pursuance of the advice of a physician, psychiatrist, psychologist or other trained professional. Professional help was neither sought nor received. Rather, it was the guardians, acting on their own, who determined the need for an extent of their services. They then proceeded to supply the services, assess the net effect of their work and pay themselves therefor.

None of this is to say that a guardian would be unable to supply a perceived need of a ward for companionship, association, psychological support, etc., and to seek professional advice and help to obtain it. The furnishing of professional help is within established guidelines and furnishes both support for the ward and protection for the estate.

The majority places reliance upon a segment of the statute governing the duties of a personal guardian. The segment is found in section 11a — 17(a) of the Probate Act of 1975 and reads: “The guardian will assist the ward in the development of maximum self-reliance and independence.” When this sentence is considered in the context of the entirety of section 11a — 17(a), it is apparent that it is an admonition to a personal guardian to seek education and training for his ward to the extent that it may be assimilated to make the life of the ward as fruitful as possible. Happiness, companionship, meal-sharing and the receiving and giving of gifts can be said to bear no relation to the “development of self-reliance and independence.” Many among us are unhappy, dour loners who are nonetheless self-reliant and independent. But even if it be granted that the segment of section 11a — 17(a) were applicable in this case, its purpose has been thwarted by the guardians. Prior to her encounter with the guardians the ward was living alone and supporting herself from her estate. Although her circumstances were less than desirable, she was, nevertheless both “independent and self-reliant.” After the encounter with the guardians, the ward lost her independence and self-reliance by becoming a resident of a nursing home, subjecting herself to the care of others with the limitations implicit in her situation. While the ward is undoubtedly better off now, both physically and mentally, the point is made to show the inapplicability of the statutory segment to the ward’s case.

The majority relies on a 1914 Virginia case, Lake v. Hope. It is factually inapposite, for it involved a committee (guardian) that was and had been the ward’s physician. Furthermore, the court considered the services rendered to be of a professional nature and the compensation was limited to $100 per month from a sizeable estate. The majority also relies on a 1955 Arkansas case, Metcalfe v. Nichol, to support their decision. The case cannot stand as authority for the majority decision because the ward in that case stood in loco parentis to the guardian and the guardian stood in locofiliae to the ward.

If these guardians can recover fees for services related to the emotional needs of their wards, then others may do so as well. If, in reliance upon the majority opinion, it be thought that such services constitute a necessity, then those who furnish to a ward such services as those described in this case can seek recovery from the ward’s estate in a quasi-contract action. Furthermore, guardians can now contract with their friends and relatives to furnish companionship, friendship and society to their wards and compensate them from the ward’s estate for services rendered.