author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEAMON JORDAN, Defendant-Appellant.
    Third District
    No. 82-23
    Opinion filed April 14, 1983.

      Robert Agostinelli and Pamela Peters, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Defendant Leamon Jordan was charged by information with felony murder, kidnaping, and, on the basis of accountability, murder and felony murder. After a bench trial, the circuit court of Will County found defendant guilty of the latter three offenses, vacated its murder conviction, and sentenced him to concurrent 14- and 60-year terms of imprisonment.

The foundations of the State’s case were defendant’s extrajudicial confessions. The first of these confessions was made on March 5, 1981. Defendant met with Will County Investigator Raymond Crompton and Cook County Investigator Claude Kaysen and stated that he would like to relate a “story” or “fable.” This was told by means of a role play in which he played himself, Crompton played “J.C.,” and Kaysen played “J.S.” Kaysen recalled the latter character as “Johnny S.”

The role playing opened with J.S. or Johnny S. telling defendant, at a party, that someone had stolen an ounce of his cocaine. J.S. later telephoned defendant and said, “Come to Hooker’s. We got to kill a bitch.” At Hooker’s Highway Lounge, defendant met with J.C. and J.S., and the latter said that Kathleen Jennings, the 17-year-old victim, had stolen his ounce, and that he would teach her a lesson. After the three had “snorted up three lines of ‘dust,’ ” J.S. approached Jennings at the bar and asked her to come outside and smoke some marijuana. Once outside, he pushed her into the rear of defendant’s brown Buick, which was parked next to his brown Cadillac. Defendant drove with J.C. in the front and Jennings and J.S. in the rear.

As they drove, Jennings denied taking the cocaine and told J.S. that she loved him. J.S. then told defendant to drive to “Joey’s house.” Upon the group’s arrival, Robert Meryfield approached the car and greeted defendant and J.C. When J.S. then entered “Joey’s trailer,” Jennings attempted to escape, and defendant slapped her and told her to remain in the car. Upon learning of the attempted escape after he returned, J.S. hit Jennings in the face with a beer bottle and asked, “Who’s going to kill the bitch? Who is going to kill her?” He then turned to the victim, put his hands on her throat, began to choke her, and asked, “Who’s going to kill this bitch? Who’s going to take care of her?” When J.S. let go, Jennings remained lying on the seat. All defendant heard from the victim was a “gargling sound.”

J.S. told defendant to drive down the street, then down a gravel road to what defendant termed a “barn looking house.” J.S. got out of the car, pulled Jennings out by the hair, threw her to the ground, and began kicking her. At no time did she move, scream, flinch, or cry out. J.S. threw up his arms and again asked, “Who’s going to kill her?” J.C. then removed defendant’s buck knife from the glove compartment and stabbed the victim in the stomach. When J.S. asked what they should do with her, J.C. suggested they “cut her up and throw her all over the place.”

The second confession was made on March 23, 1981. Defendant essentially repeated the events of the role play while identifying J.C. as John Cartalino, J.S. as John Siciliano, and Joey’s house or trailer as the Joseph Holtrup residence. He also continued his narrative.

After Cartalino had stabbed the victim, he picked her up and walked to the rear of a residence. Defendant and Siciliano entered the front of the residence, walked down a long hallway, and saw Jennings propped up against a wall, half in the hallway and half in a room. After discussions of what to do with the body, defendant drove Siciliano to a service station at the intersection of Illinois routes 83 and 171, where the latter telephoned his father. Sam Siciliano met the group at the Holtrup residence, berated his son, and struck him in the head and body. He then instructed defendant and his son to wait in his car. When he joined them, he said, “Johnny is going to take care of everything.”

Sam Siciliano then drove defendant and his son to a cocktail lounge and then to his residence. Defendant was instructed to exchange his bloodied trousers for a new pair. Eddie Migrant joined the group and drove defendant and Sam Siciliano to defendant’s Bridgeview apartment, where a neighbor greeted Siciliano. Siciliano purchased defendant’s car and told him to deliver it, with the title and keys, to a redheaded man named Art at the Cal Sag Junk Yard. Before doing so, defendant removed his knife from the seat. Facts beyond the two confessions will be introduced in conjunction with the issues to which they are germane.

The first of seven issues presented for our review is whether the admission of dental testimony concerning the cause of death denied defendant his right to confront and rebut the evidence against him in that the State’s alleged failure to either adequately photograph the victim’s jaw or prevent its cremation foreclosed any possibility of an independent examination of this evidence. Concerning the alleged failure to adequately photograph the jaw, defendant contends the nine photographs admitted into evidence did not accurately portray the color of the victim’s teeth. Concerning the jaw itself, defendant contends this evidence should have been preserved for his experts to examine.

Four forensic odontologists testified regarding the photographs and other matters to be later considered. Forensic odontology is a branch of dentistry dealing with dental evidence, usually involving an examination of dental remains for identification, injuries to the jaw or teeth, or bite marks for comparison with those of a suspect. (Thornton, Uses and Abuses of Forensic Science, 69 A.B.A.J. 288 (1983).) Drs. Lester Luntz and George Morgan testified on behalf of the State. Luntz thought that three of the photographs showed pink teeth and that the others were over or underexposed; and that a color patch was not necessary to accurately determine color from a photograph. Morgan, who had examined the jaw before the photographs were taken, thought the teeth were pinker than portrayed. He did not think the undermatting in the photographs that showed pink teeth appeared pink, and he selected three photographs he believed most accurately reflected the color he had observed. Drs. Donald Ore and Edward Pavlik testified on behalf of defendant. Ore found the color variation from photograph to photograph “remarkable” and discussed possible reasons for this. He thought that two photographs, also selected by Morgan, showed magenta or pinkish teeth but also thought the paper underneath those photographs appeared pink. Ore also found the Chicago Tribune on which the jaw was placed in another photograph appeared pink. He concluded that it was possible that none of the photographs accurately depicted the color and that, in any event, he could not make an accurate determination of color because the photographs lacked a balance or color chart. Pavlik thought that only the photograph with the Tribune, which he also thought appeared pink, showed pinkish teeth. He agreed with Ore that where an accurate determination of color is a concern, a color chart is routinely included in a photograph as a small patch inserted by the developer.

The admission of probative photographic evidence rests within the discretion of the trial court (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238), and a new trial is not required unless a defendant has been prejudiced (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203). While it is true that colored photographs may be excluded where they would mislead a jury because of the fact that colors are incorrectly portrayed (see 29 Am. Jr. 2d Evidence sec. 798 (1967)), we do not find the court abused its discretion in deciding otherwise. The judge not only saw the three photographs which Morgan said most accurately portrayed the color of the teeth, but also the entire set, which three experts agreed varied from pink to white.

Defendant’s second contention regarding this first issue is that the jaw should have been preserved for his experts to examine. He claims the failure to do so violated his right to due process of law. For there to have been a violation of the right to due process, it must be shown that the evidence was suppressed after a request for it by a defendant, that the evidence was favorable to the defendant, and that it was material. (People v. Nichols (1976), 63 Ill. 2d 443, 349 N.E.2d 40.) While not dispositive of this constitutional argument in this setting, we initially note that the jaw was not suppressed. The victim disappeared in December 1979. In March 1980, her head was found in a doghouse. After it was autopsied, examined, and photographed, her father requested her remains and they were cremated. At this time defendant was not even a suspect in this case, and his arrest came approximately a year later. The coroner’s action in releasing the remains under these circumstances was humanly decent and in harmony with the public policy of this State (see Ill. Rev. Stat. 1979, ch. 31, par. 10.7). These qualities do not, however, resolve the constitutional question. Assuming, arguendo, the jaw’s materiality, it remains necessary to establish the evidence was favorable to defendant. Defendant contends retention of the jaw would have given his experts the opportunity to observe it and perform certain tests. While this would have been unquestionably desirable, the record is devoid of any indication that such would have resulted in evidence favorable to defendant. This being the case, we find no constitutional violation in the State’s failure to retain the jaw.

The second issue is whether the trial court erred in holding that odontological testimony allegedly purporting to establish the cause of death had corroborated defendant’s extrajudicial confessions. Defendant contends the testimony was inadmissible as odontologists cannot competently analyze medical evidence or draw medical conclusions or, in the alternative, that the testimony should be given no weight as the expert’s conclusions were not supported by the evidence.

Concerning the alleged inadmissibility, defendant argues that the State’s forensic odonologists were incompetent to testify that the cause of the victim’s pink teeth was strangulation as they were incapable of analyzing medical evidence which was physiological in nature. Defendant based this argument on People v. Gilliam (1974), 16 Ill. App. 3d 659, 306 N.E.2d 352, which noted in dictum that only a qualified psychiatrist, not a psychologist, could give an opinion as to the sanity of a defendant. What defendant overlooks is that in that case the defense represented that the psychologist would testify that Gilliam had an I.Q. of 65, difficulty in understanding the motives of others, and difficulty in perceiving the consequences of behavior. As this did not form a basis for an opinion germane to criminal responsibility, the testimony was excluded on grounds of relevancy. In the case at bar, no relevancy argument is raised. Moreover, determining that an odonologist cannot testify as to teeth because a psychologist cannot testify as to sanity is not dictated by logical analysis. While the evidence was indeed physiological in nature, would such a nature prevent a dentist from testifying as to an abscess? We do not find, under Gilliam, that the court erred in admitting the testimony in question. Defendant additionally argues that the “pink teeth theory” did not have general acceptance in the dental community. We note that in this litigious environment, no expert disagreed with it, in theory. Cf. People v. Burns (1981), 97 Ill. App. 3d 858, 423 N.E.2d 980 (“red eye theory”).

Concerning defendant’s alternative contention that the testimony was not supported by the evidence, defendant argues that all possible causes of pink teeth, other than strangulation, were not eliminated. Eleven such causes were considered. Defendant concedes three, carbon monoxide, cyanide, and a direct blow to the head, were ruled out. The parties stipulated that Dr. John Spikes, who performed toxicological tests on samples of the victim’s brain tissue, found no presence or trace of barbituates, stimulants, or tranquilizers; three additional causes. Climatological data eliminated rapid heat decomposition and rapid freezing. Drowning followed by several days of immersion was ruled out as the victim’s skull showed no signs of excessive hydration. The experts disagreed as to extrinsic staining by tetracycline. Morgan and Luntz stated the stain would be brown, golden, grey or yellow. Ore and Pavlik disagreed and added other chemicals which would cause extrinsic staining; however, there was no evidence that tetracycline or these other chemicals had been ingested. Internal absorption through cellular destruction was considered a cause in live persons, but there was no testimony that it could be so after death. Given this evidence, we find the expert testimony in question to be supported by ample evidence.

The third issue presented for our review is whether defendant’s convictions should be reversed as the evidence at trial allegedly substantially contradicted his extrajudicial confessions. Defendant argues that the contradictions arise as the confessions were fabrications. He supports this position with reference to the evidence aliunde the confession, the fact that they were made after he learned of a $50,000 reward from the Jennings, and the fact that he had successfully sold fabricated information to the Federal Bureau of Investigation in the past.

We initially note that we are dealing with not one, but two confessions. Given over two weeks apart, the statements are entirely consistent with one another. Nonetheless, some contradictions with the evidence exist. John Garvey did not see defendant in the company of Siciliano and the victim at Hooker’s, but did see her enter Siciliano’s Cadillac without any sign of force. The State offered no evidence to refute this. Meryfield did not recall seeing defendant in December 1979, but did recall that Holtrup told him Siciliano had knocked on the latter’s door around 3 a.m. in early December. Holtrup acknowledged this, but did not remember seeing defendant; however, Siciliano had entered the residence alone. Charles and Pamela Sullivan testified that an individual matching the victim’s photograph was attending a loud party next door before she decided to disturb them at 3:30 or 4 a.m. Holtrup did not recall the party, but Pamela Sullivan was impeached by her prior inconsistent statement to Crompton that she had seen the victim between 9 and 11 p.m. on December 8. While not dealing with the crimes at bar, defendant also introduced evidence contradicting some details of what occurred after leaving the scene with Sam Siciliano.

It is axiomatic that in order for a conviction based on a confession to be sustained, the confession must be corroborated; and this requirement is satisfied by proof of the corpus delicti. (People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861.) As the Willingham court explained:

“Although various criteria have been set forth for what is necessary to establish the corpus delicti, we believe the most precise explanation was given in People v. Perfecto (1962), 26 Ill. 2d 228, 229 where this court stated:
‘ “The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. (People v. Borrelli, 392 Ill. 481.) The same evidence may be used to prove both the existence of the crime and the guilt of the defendant, the test being whether the whole evidence proves the facts that a crime was committed and that the accused committed it. People v. Brown, 279 Ill. 262.” People v. Gavurnik, 2 Ill. 2d 190, at 194.’ (Emphasis added.)
Thus, in establishing the corpus delicti, there must be some evidence, apart from the confession, demonstrating that a crime occurred. Once the required showing has been made, the circumstances along with the confession may be considered in determining whether the corpus delicti is sufficiently proved (as well as the guilt of the defendant). Accord, McCormick, Evidence § 158, at 346-47 (2d ed. 1972).” (People v. Willingham (1982), 89 Ill. 2d 352, 359-60, 432 N.E.2d 861, 864-65.)

Thus, in addition to the contradictions, we must consider the corroborating circumstances which tend to prove the corpus delicti.

Two such circumstances relate to the physical evidence which was considered. We have previously discussed the fact the victim’s pink teeth were consistent with her having been strangled. Forensic scientist Pat Hamby performed tests on the victim’s blouse and testified that there were nine areas that exhibited “cut-like damage” as opposed to tears. The cutting edge of the instrument used was single with a broad back, consistent with the blade of defendant’s knife. Other testimony was also corroboratory. Meryfield’s and Holtrup’s testimony establishes that Siciliano went to Holtrup’s residence around 3 a.m. in early December 1979. Sharon Beck testified that at approximately 1:30 a.m. on December 9, she had dropped the victim off at Hooker’s. Garvey saw her enter Siciliano’s car that morning. Crompton testified that there is a service station as indicated in the confessions, and that it is nearby Holtrup’s residence. The “barn-like house” was identified as the Diemer residence, located next to that of Holtrup. The latter’s stipulation indicated he constructed both, but defendant had never been to his home. A comparison of floor plans showed that there is a hallway in Holtrup’s but none in Diemer’s. This corroborated defendant’s detailed description of the interior of the home where the victim’s body had been placed, especially the long hallway. Parts of the victim’s dismembered body were found on the Holtrup property as well. Finally, no one was aware of the victim’s stab wounds until after defendant’s confessions. Given the totality of this evidence, and the explanations or refutation of most of the material contradictions, we find the confessions sufficiently corroborated and reversal unwarranted.

The fourth issue is whether defendant’s convictions for kidnaping and felony murder (accountability) must be reversed as allegedly inconsistent with the trial court’s acquittal of defendant of felony murder. After an excellent discussion of inconsistent verdicts in criminal bench trials, a standard was recently established:

“Legal inconsistency in the finding should not, on a per se basis, require reversal of the conviction. Inconsistency is only one element to consider in determining the existence of proof beyond a reasonable doubt. When, as in the present case, there is a rational explanation for the inconsistent finding other than confusion, the inconsistency will not contribute to a determination that defendant was not proved guilty beyond a reasonable doubt. Trial judges can assist appellate review by explaining their findings on the record. Cf. Harris v. Rivera (1981), _ U.S. _, _, 70 L. Ed. 2d 530, 534, 102 S. Ct. 460, 463.” (People v. O’Malley (1982), 108 Ill. App. 3d 823, 833, 439 N.E.2d 998, 1004, appeal denied (1982), 92 Ill. 2d_.)

Regarding the count of which defendant was acquitted, the court noted that he was charged with felony murder as a principal and explained that it “felt that the charges that most accurately reflected what had transpired were those contained in Counts 3 and 4,” the accountability counts. Rather than a display of confusion, this appears a display of fairness and lenity. While we specifically decline to address the issue, it appears that defendant might have been convicted based on his kidnaping conviction. Defendant argues that his sentence belies the existence of leniency; however, the court’s sentences for crimes that “most accurately reflected what had transpired” is not inconsistent with his acquittal of a crime which did not. Given this rational explanation, the convictions need not be reversed. Defendant should not be allowed to take advantage on appeal of the trial court’s exercise of lenity (see People v. O’Malley (1982), 108 Ill. App. 3d 823, 832-33, 439 N.E.2d 998, 1004-05) and fairness.

The fifth issue presented for our review is whether defendant’s kidnaping conviction must be reversed as his confessions were allegedly not corroborated by sufficient independent proof of the corpus delicti. Defendant contends the State failed to produce any independent evidence of defendant’s kidnaping the victim. We have previously discussed the general principles governing our determination in our consideration of the third issue in this cause.

In the cause at bar, defendant confessed that the victim was induced to leave Hooker’s by Siciliano suggesting they go outside to smoke some marijuana. Beck’s testimony establishes Jennings presence at the lounge, as did that of two other witnesses. Garvey saw her leave the establishment with Siciliano and enter what he believed was the latter’s brown Cadillac; however, given the hour and consumption of 10 drinks, a brown Cadillac and Buick could be confused. Defendant’s confessions then indicated the men took the victim to the vicinity of a “barn-looking house,” outside of which she was murdered. The house was photographically identified as the Diemer residence. On February 26, 1980, the Diemers located a human skull and some long bones approximately 60 feet from their home. The victim’s clothing and effects were discovered approximately 365 feet southeast of the residence and 310 feet south of the Holtrup residence.

Under the authority of People v. Willingham (1982), 89 Ill. 2d 352, 432 N.E.2d 861, we hold the confessions to kidnaping were sufficiently corroborated.

The sixth issue is whether defendant’s 60-year sentence for felony murder (accountability) was excessive as his allegedly passive participation in the crime mitigated the seriousness of his offense and as, given defendant’s youth and nonviolent history, the term does not serve the objective of restoring him to useful citizenship. The trial court found no factors in mitigation. In aggravation, it considered two convictions for battery and theft and one for burglary. The court found the offense was accompanied by extremely brutal or heinous behavior indicative of wanton cruelty, and that not one shred of mercy was shown to the victim. It noted the crime was an “absolutely gross example of one person’s inhumanity to another person,” and determined that the sentence must deter others from the same behavior. The trial court is normally the proper forum in which a suitable sentence is to be determined, and the court’s decisions in regard to sentencing are entitled to great deference and weight. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Absent an abuse of discretion, a sentence may not be altered upon review. (People v. Perruquet.) Given the totality of factors considered by the court, we fail to find such an abuse due to defendant’s age and the fact others in society may be more violent.

The seventh and final issue presented for our review is whether the trial court erred in imposing an extended-term sentence for kidnaping where that offense was not the most serious of which he was convicted. The supreme court addressed this issue in People v. Evans (1981), 87 Ill. 2d 77, 87-88, 429 N.E.2d 520, 524-25:

“Section 5 — 8—2(a) of the Unified Code of Corrections provides:
‘A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present.’ (Ill. Rev. Stat. 1979, ch. 38, par. 1005— 8 — 2(a).) (Emphasis added.)
When section 5 — 8—2(a) is read in conjunction with section 5— 5 — 3.2, it is clear from the plain language of the statutes that the most serious offense of which the offender is convicted must be accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. ***
We recognize that the present legislative scheme could lead to the anomalous result of insulating a defendant from receiving an extended sentence for an offense accompanied by wanton cruelty by virtue of his conviction of a more serious offense.”

Subsequent to Evans, the initial discussions of the issue at bar interpreted that decision in defendant’s favor. (See People v. Walsh (1981), 101 Ill. App. 3d 1146, 1148, 428 N.E.2d 937, 940; People v. Freeman (1982), 104 Ill. App. 3d 980, 985, 433 N.E.2d 974, 978; People v. Winston (1982), 106 Ill. App. 3d 673, 688-89, 435 N.E.2d 1327, 1339, appeal denied (1982), 91 Ill. 2d 580.) While the denial of leave to appeal in Winston appeared to sanction this interpretation, the court in People v. Mims (1982), 111 Ill. App. 3d 814, 444 N.E.2d 684, departed from its earlier holding in Walsh on the basis of People v. Williams (1982), 93 Ill. 2d 309. As the Mims court noted:

“In Williams I, the supreme court noted that the sentences of defendant to 60 year extended terms for the aggravated kidnaping convictions were in error because the offenses, Class I felonies, may not result in extended-term sentences of more than 30 years. (Ill. Rev. Stat. 1979, ch. 38, pars. 10 — 2, 1005— 8 — 2.) As to defendant’s claim there that the language of the extended term statute requires that both factors in aggravation be found before an extended term may be imposed, the supreme court first determined that the trial court finding of either factor was sufficient to permit the imposition of an extended term. The court went on to hold that the extended terms for rape were properly imposed and that the extended terms for aggravated kidnaping were also properly imposed but were required to be reduced to 30 years for the reasons earlier indicated. From the foregoing analysis, the clear implication is that extended-term sentences may be imposed in appropriate circumstances, for different classes of offenses, even in those situations where the offenses are not the most serious for which an offender is convicted.” People v. Mims (1982), 111 Ill. App. 3d 814, 821-22.

We agree with the Mims court’s conclusion that section 5 — 8— 2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 8—2(a)) does not limit the imposition of an extended term sentence to the most serious class of offense of which an accused is convicted. In our view, the provision rather limits the maximum sentence a defendant may receive in a multiple conviction situation to that of the class of the most serious offense of which he has been convicted unless a section 5 — 5—3.2(b) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 — 5—3.2(b)) factor in aggravation is present. As such a factor is here present, the court did not err in imposing the extended-term sentence for kidnaping.

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

Affirmed.

ALLOY and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE ALLOY

license: Public Domain

text:
    STEPHEN CLAIR OLSON, Petitioner-Appellant, v. NORMA JEAN OLSON, Respondent-Appellee.
    Third District
    No. 82—509
    Opinion filed April 11, 1983.
    Dwight L. Shoemaker, of Conway & Shoemaker, of Aledo, for appellant.
    Thomas R. Appleton, of Presney, Huffman, Kelly & Appleton, of Springfield, for appellee.
   JUSTICE ALLOY

delivered the opinion of the court:

The petitioner, Stephen Olson, petitioned the trial court to terminate his monthly payments to his ex-wife, Norma Jean Olson. The trial court characterized these payments as either a lump sum property settlement payable by installments or as alimony in gross and, therefore, not modifiable. Mr. Olson appeals, contending these payments are periodic maintenance payments and subject to modification by the court.

In January 1980, the parties received a dissolution of marriage. Under a settlement agreement, Mrs. Olson received custody of their sole minor child. Concerning property and maintenance, the settlement agreement stipulates, in relevant part:

“1. CASH. Effective as of the date of a Judgment of a Dissolution of Marriage herein, Husband shall pay to Wife, a lump sum of $6,000.00 which represents her interest in the marital property pursuant to Illinois Revised Statutes (1977), Chapter 40, Section 503(c).
8. MAINTENANCE. Pursuant to Illinois Revised Statutes (1977), Chapter 40, Section 504, Husband shall pay maintenance to Wife in a monthly amount of $400.00 for five (5) years, totalling $24,000.00. Petitioner shall make all such maintenance payments through the Clerk of Court of Mercer County, Illinois, commencing February 1, 1980, and each month thereafter until the maintenance obligation is satisfied.”

The parties also agreed that “*** Petitioner’s [Mr. Olson] obligation to pay maintenance shall not increase by any change in circumstances.”

This is the second time these parties have been before this court. In In re Marriage of Olson (1981), 98 Ill. App. 3d 316, 424 N.E.2d 386, this court upheld a trial court’s denial of Mr. Olson’s petition to change custody and modify maintenance. Mr. Olson contended that his ex-wife was engaged in a continuing, conjugal relationship with another man and that there was a sufficient change in Mrs. Olson’s financial circumstances (she had recently secured employment as a waitress) to justify a modification in maintenance. On the merits of these claims, this court found no continuing conjugal relationship nor any change in circumstances that would justify a modification of the maintenance award.

In January 1982, Mr. Olson again petitioned the court to terminate the maintenance payments, alleging that he is insolvent and unable to afford these payments. The trial court, upon Mrs. Olson’s motion to strike the petition, ruled that these payments were not maintenance payments, but a lump sum payable in installments. The trial court ruled that these payments are not modifiable. Mr. Olson appeals this order.

Mr. Olson argues that the doctrines of res judicata and collateral estoppel conclusively determine the issue of modification in his favor. Since the ability to modify the payments is a prerequisite to considering actual modification, Mr. Olson argues that this court implicitly ruled that the payments are modifiable maintenance payments. Mr. Olson also notes that Mrs. Olson did not raise the issue of nonmodifiability when she had an opportunity to do so, thus precluding her from raising this issue now. Mr. Olson further argues that, on the merits, the payments are a modifiable periodic maintenance award and that, as a matter of law, his obligation should be terminated.

This appeal is unusual, in that here a petitioner asks a court to invoke the doctrines of res judicata and collateral estoppel. In the usual case, a defendant or respondent will raise these claims to protect himself from subsequent claims by the same opposing party. In the case at bar, the party who lost once before now advances another position, relying in part upon the previous ruling against him. The fundamental principles underlying the issue preclusion doctrines will not change, regardless of which party raises them.

Mr. Olson presents strong arguments in favor of the application of res judicata and collateral estoppel, but his arguments are flawed. Res judicata will bar a subsequent action between the same parties when a court of competent jurisdiction renders a final judgment on the merits. (In re Marriage of Donnellan (1980), 90 Ill. App. 3d 1032, 414 N.E.2d 167.) Application of this doctrine requires the second suit to have the same parties (or their privies), the same cause of action, and the same subject matter as the prior litigation. (Donnellan.) Moreover, as Mr. Olson correctly notes, res judicata will bar any relitigation of any issue or claim that was raised or that could have been raised in the previous case. Consolidated Distilled Products, Inc. v. Allphin (1978), 73 Ill. 2d 19, 328 N.E.2d 217.

Although the present litigation involves the same parties and concerns the same subject matter, it does not involve the same cause of action. For purposes of res judicata, the causes of action are identical when the same evidence would sustain both actions. (LaGrange Federal Savings & Loan Association v. Rock River Corp. (1981), 97 Ill. App. 3d 712, 423 N.E.2d 496.) In the instant appeal, the evidence is quite different from that in the first appeal. Mr. Olson’s alleged insolvency requires proof that is far different from that required in the first hearing, in which Mr. Olson contended that his ex-wife was now working and able to support herself. Since the causes of action are different, Mr. Olson cannot use res judicata to preclude Mrs. Olson from raising the issue of modifiability of the monthly payments.

Similarly, Mr. Olson’s use of collateral estoppel is flawed. Although the doctrine of collateral estoppel requires the same parties or their privies and an identity of issues (Murphy v. Urso (1981), 88 Ill. 2d 444, 430 N.E.2d 1079), it does not require an identity between the causes of action. (Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1979), 69 Ill. App. 3d 972, 387 N.E.2d 785.) “Collateral estoppel concludes only those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.” (Cranwill v. Donahue (1981), 99 Ill. App. 3d 968, 970, 426 N.E.2d 337.) In the prior case, the parties did not litigate the character of the monthly payments. Therefore, collateral estoppel would not bar Mrs. Olson from raising this issue now.

On the merits of the argument, though, we find that these monthly payments are periodic maintenance payments subject to modification. Mrs. Olson, citing In re Support of Burks (1981), 100 Ill. App. 3d 700, 427 N.E.2d 353, argues that maintenance in gross or lump sum property settlements payable by installments exist under section 504 of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1981, ch. 40, par. 504.) Mr. Olson’s reliance upon In re Marriage of Christianson (1980), 89 Ill. App. 3d 167, 411 N.E.2d 519, for a contrary position is mistaken. In Christianson, this court specifically stated that the Act does not preclude an award of alimony in gross. This court merely noted that this concept was now merged in the new act’s statutory definition of “maintenance.”

The real issue here is whether the parties’ agreement created a periodic maintenance payment subject to modification. As Mrs. Olson correctly notes, the characterization of a financial settlement between two parties to a divorce does not necessarily depend upon the label they place on the settlement provisions. (Roberts v. Roberts (1967), 90 Ill. App. 2d 184, 234 N.E.2d 372.) As with any contract, it is the intent of the parties which must govern the interpretation of a settlement agreement. (In re Estate of Kite (1974), 19 Ill. App. 3d 932, 312 N.E.2d 366.) Unless the agreement is incomplete or ambiguous, the intent of the parties must be determined from the language of the settlement agreement itself. Sudler v. Sudler (1972), 6 Ill. App. 3d 546, 286 N.E.2d 113.

In the case at bar, the agreement plainly indicates that it is complete and unambiguous as to property and maintenance. The parties recognized their respective interests in marital property and maintenance and explicitly stated that they believed it was in their best interests to settle such financial matters without the aid of the court. In one section, Mrs. Olson specifically accepts a lump sum payment that represents her interest in marital property. In other sections of the agreement, Mrs. Olson specifically accepted monthly payments of $400 for five years as her maintenance allowance. The parties not only denominated these payments as maintenance, but also referred to section 504 of the Act, which provides for an award of maintenance. Additionally, the parties agreed to prohibit any increase in the payments, yet were silent as to a possible decrease. This indicates the parties considered potential modification of the payments and agreed to a partial restriction. If, as Mrs. Olson claims, these payments represented a property settlement or alimony in gross, the provision that restricts modification would be mere surplusage: Lump sum property settlements payable by installments and awards of maintenance in gross are already not modifiable. (In re Marriage of Workman (1980), 89 Ill. App. 3d 886.) Although the recitation of a “total” of $24,000 in monthly payments creates some confusion, it cannot stand as a basis for effectively nullifying one provision of an agreement. A court must construe an agreement so as to give effect to each of its provisions and avoid constructions which would render a provision superfluous. (Roosevelt University v. Mayfair Construction Co. (1975), 28 Ill. App. 3d 1045, 331 N.E.2d 835.) We find, therefore, the trial court erred when it ruled that these monthly payments are not modifiable maintenance payments.

Finally, Mr. Olson asks this court to rule that he is unable to meet the maintenance payments and that they should be terminated. Mr. Olson presented extensive evidence concerning his financial situation to the trial court. The trial court made an examination of the records and stated that it found no change in circumstances to justify a termination of maintenance. Since the trial court’s decision primarily relies upon its characterization of the payments, it is prudent to remand this case to the trial court, in order to allow it the benefit of a complete examination of Mr. Olson’s financial position. We express no opinion on the merits of Mr. Olson’s claim of a substantial change in circumstances that would justify modification of the maintenance award.

Accordingly, the judgment of the circuit court of Mercer County is reversed and the cause is remanded.

Reversed and remanded.

STOUDER, P.J., and SCOTT, J., concur.


author: JUSTICE JONES

text:
    MARION METAL & ROOFING CO., INC., Plaintiff-Appellee, v. MARK TWAIN MARINE INDUSTRIES, INC., et al., Defendant-Appellant.
    Fifth District
    No. 82—419
    Opinion filed April 5, 1983.
    John Drew, of Benton, for appellants.
    Winters, Brewster & Permar, of Marion, for appellee.
   JUSTICE JONES

delivered the opinion of the court;

Defendant, Mark Twain Marine Industries, Inc. (hereinafter referred to as Mark Twain), appeals from an order granting the motion of plaintiff, Marion Metal and Roofing Co., Inc. (hereafter referred to as Marion Metal), for summary judgment in an action to foreclose a mechanics’ lien against Mark Twain’s property. Mark Twain maintains that the granting of the motion for summary judgment was improper because of the existence of a genuine issue as to a material fact. We do not, however, reach the merits of the appeal because of a jurisdictional defect that we raise upon our own motion.

Plaintiff, a supplier of roofing materials, filed a complaint against Mark Twain and others, including defendant North Side Wholesale Co. (hereafter referred to as North Side), seeking a mechanics’ lien on certain real property owned by Mark Twain. According to the complaint, Judy Baldwin, d/b/a Above Roofing Co., had contracted with Mark Twain to provide Mark Twain with certain services and materials to be used on Mark Twain’s property. Marion Metal thereafter made several agreements with Judy Baldwin to provide her with roofing materials to be used on Mark Twain’s property. Although Mark Twain paid Judy Baldwin for the work completed, she failed to pay Marion Metal. As a result, Marion Metal claimed a mechanics’ lien on Mark Twain’s real property.

Mark Twain filed a two-count countercomplaint, directed against Marion Metal and North Side, in which Mark Twain alleged that the materials provided by Marion Metal and North Side were defective when delivered to Mark Twain. Marion Metal moved to dismiss count I of the countercomplaint, the count directed against it. In an order filed May 21, 1982, the trial court found that the countercomplaint failed to allege the existence of privity of contract between Mark Twain and Marion Metal and dismissed count I of the countercomplaint for failing to state a cause of action against Marion Metal. North Side likewise moved to dismiss count II of the countercomplaint, the count directed against it. On June 7, 1982, the trial court found that the counterclaim failed to allege the existence of privity of contract between Mark Twain and North Side and dismissed count II of the countercomplaint for failing to state a cause of action against North Side. Also on June 7, 1982, a judgment was filed granting Marion Metal’s motion for summary judgment with respect to the mechanics’ lien and the foreclosure thereof. In that judgment the trial court stated, “This is a final Order of this Court.”

Mark Twain filed a notice of appeal from “the Judgment Order entered June 7, 1982, granting Plaintiff’s Complaint in case #, 81— CH — 34. The relief sought and asked of the Illinois Appellate Court, Fifth Judicial District, is that the Judgment entered for the plaintiff on June 7, 1982, be set aside and that this Court remand to Franklin County Circuit Court for further proceedings.” Mark Twain seems to be appealing from the judgment providing for the foreclosure sale of its property in default of its payment of $11,904.91 to Marion Metal and $3,272.37 to North Side.

Mark Twain seeks to appeal from a judgment of foreclosure of a lien. However, as we said in King City Federal Savings & Loan Association v. Ison (1980), 80 Ill. App. 3d 900, 901-02, 400 N.E.2d 562, 563, which involved a judgment of foreclosure of a mortgage, “A judgment of foreclosure does not dispose of all the issues between the parties and it does not terminate the litigation.” Although a judgment of foreclosure is final as to the matters it adjudicates, a judgment foreclosing a mortgage, or a lien, determines fewer than all the rights and liabilities in issue because the trial court has still to enter a subsequent order approving the foreclosure sale and directing distribution. (See King City Federal.) Supreme Court Rule 304(a) (87 Ill. 2d R. 304(a)) provides for appeals from final judgments as to fewer than all of the parties or all of the claims but only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not appealable. In the case at bar, the judgment of foreclosure adjudicates fewer than all the rights and liabilities of the parties but does not include the requisite written finding that there is no just reason for delaying enforcement of appeal. Therefore, the judgment of foreclosure of the lien is not appealable.

Nor could Mark Twain have appealed from either of the two orders dismissing the two counts of its countercomplaint, for these are not final judgments by virtue of the fact that Mark Twain could, if it wished, file an amended countercomplaint. (See Lakatos v. Prudence Mutual Casualty Co. (1969), 113 Ill. App. 2d 310, 252 N.E.2d 123; Schoen v. Caterpillar Tractor Co. (1966), 77 Ill. App. 2d 315, 222 N.E.2d 332.) It should be carefully noted that the orders of May 21, 1982, and June 7, 1982, dismissed Mark Twain’s countercomplaints for failure to state a cause of action. If these orders had dismissed the cause of action (as distinguished from the complaint), then such orders would be considered final. Bates v. Ulrich (1976), 38 Ill. App. 3d 203, 347 N.E.2d 286; Kita v. YMCA (1964), 47 Ill. App. 2d 409, 198 N.E.2d 174; see Dahlen, Dismissal of a Complaint or Counts Thereof: A New Appellate and Jurisdictional Ramifications, 69 Ill. B. J. 160 (1980).

Even if the orders of May 21, 1982, and June 7, 1982, were, in fact, final, they would not be appealable, pursuant to Supreme Court Rule 304(a), because the requisite special finding that there is no just reason for delaying enforcement or appeal is absent.

There being no appealable order in the case, we lack jurisdiction to consider the appeal and, accordingly, dismiss it.

Appeal dismissed.

KASSERMAN and WELCH, JJ., concur.


author: JUSTICE WELCH

text:
    MADGE JACKSON et al., Plaintiffs-Appellees, v. GUY D. REED et al., Defendants-Appellants.
    Fifth District
    No. 82—466
    Opinion filed April 8, 1983.

      Elmer Jenkins, of Benton, for appellants Guy D. Reed, Mildred Harrison, and Mark Harrison.
    Terry R. Black and Mark J. Ballard, both of Campbell, Furnall, Moore and Jacobsen, P.C., of Mt. Vernon, for appellees Bill Ventress, Sheridan Ventress, and Chester E. Ventress.
    Bernard L. Minton, of McLeansboro, for other appellees.
   JUSTICE WELCH

delivered the opinion of the court:

The present appeal is taken from a judgment of the circuit court of Hamilton County quieting title to certain mineral interests in the plaintiffs. The land to which the mineral interests attach is approximately 80 acres legally described as “the East Half of the Northeast Quarter of Section Four, Township Six South, Range Five East of the Third Principal Meridian” in Hamilton County. The plaintiffs claim a three-fourths share in those mineral interests through descent or grant from persons who derived their interests, ultimately, from Cleora Jane Reed, who died intestate in 1912. The defendants assert ownership of all of the mineral interests by virtue of a tax deed issued in 1944 to D. H. Reed.

The plaintiffs’ complaint alleged that the tax deed was a cloud on their title to the mineral interests. They contended in count I that the tax deed did not pass title to the mineral interests, while in count II it was suggested that the deed was void as a matter of law for failing to give proper notice to the plaintiffs or their predecessors in interest. In count III, the plaintiffs averred that the defendants or their predecessors in interest did not perfect title to the minerals by instituting suit to recover possession or act to exercise dominion over the minerals within a year of the issuance of the tax deed. (Ill. Rev. Stat. 1939, ch. 120, pars. 736 through 738.) The plaintiffs asserted in count IV that any actions taken by the defendants or their predecessors in interest concerning the mineral interests could not have deprived the plaintiffs of those interests because the defendants or their predecessors in interest, concededly past or present owners of one-fourth of those interests, were co-tenants with the plaintiffs or their predecessors in interest and there was no ouster. The defendants answered by alleging the validity of the tax deed as to the mineral interests and by raising the affirmative defenses that the quiet title action was barred by laches or by the statute of limitations.

After a bench trial, the court issued an order in which it found the issues in favor of the plaintiffs, generally, and entered judgment accordingly. The defendants appeal and argue that (1) the evidence introduced at trial did not support the allegations of the complaint, and (2) the action should be considered barred by laches. We believe that the evidence introduced at trial supports the allegation that the tax deed did not pass title to the mineral interests, and thus we need not consider the remaining counts of the complaint. We also reject defendants’ argument that this action should be barred by laches.

Uncontradicted evidence presented at trial shows that in 1912, the entire tract of land, including mineral interests, was owned by Cleora Jane Reed. When she died intestate that year, she was survived by four children, John Emory Reed, Douglas H. Reed, Ada Reed, and Josephine Moss. The defendants’ interests are derived through Douglas H. Reed, also referred to as D. H. Reed, while the plaintiffs’ interests derive from the remaining siblings. In 1915, Emory Reed and his wife Rachel, Douglas Reed and his wife Ella, and Ada Reed, as yet unmarried, conveyed by deed, to Josephine and Emmett Moss, as joint tenants with right of survivorship, an undivided three-fourths interest in the premises, reserving unto the grantors all coal, oil and gas underlying the surface, with the right to mine and remove same. Josephine and Emmett Moss, in turn, conveyed the real estate to James and Mae Biggerstaff by warranty deed in 1920, reserving all coal, oil, gas and other minerals. The land was conveyed several other times in the 1920s, in all of which transfers the grantors reserved the mineral interests.

On September 15, 1941, Douglas Reed bought the tax certificate at a foreclosure sale. He paid $279.74, that amount representing the back taxes, penalties and interest assessed against the real estate. The county clerk of Hamilton County executed a tax deed to the real estate to Douglas Reed on May 9, 1944. This deed did not specifically mention the minerals underlying the premises.

James Adkisson, the current supervisor of assessments for Hamilton County, testified at trial. Upon his examination of the 1940 collector’s book for Flannigan Township, Hamilton County, in which township the real estate is located, he determined that there had been no separate mineral assessment on that land for that year. Adkisson explained that mineral interests were not assessed for tax purposes unless those interests were in production. In 1940, the mineral interests in six tracts in Section Four of Flannigan Township were assessed for tax purposes, but the premises in question were not among those tracts. The column in the collector’s book for the premises contains the notation “9/15/41 13.32 mineral D.H. Reed,” but this entry is in pencil, in contrast to the remaining entries on this page of the collector’s book.

The plaintiffs insist, as they did at trial, that the 1944 tax deed was insufficient to pass title to the mineral interests to the defendants or their predecessors in title. They correctly note that the 1915 and 1920 conveyances effectuated a severance of the mineral estate from the surface estate by the reservation of the mineral interests to the grantors, thus requiring the minerals to be assessed and taxed separately from the surface. (Ill. Rev. Stat. 1941, ch. 94, pars. 6, 7, now Ill. Rev. Stat. 1981, ch. 961/2, pars. 156, 157; Failoni v. Chicago & North Western Ry. Co. (1964), 30 Ill. 2d 258, 195 N.E.2d 619; Shell Oil Co. v. Moore (1943), 382 Ill. 556, 48 N.E.2d 400.) Section 7 of “An Act to revise the law in relation to mines” (Ill. Rev. Stat. 1981, ch. 96^2, par. 157) expressly states that when such a separation of the mineral estate from the surface estate occurs, “any sale of the land for any tax or assessment shall not include or affect such mining right.” This language means that even though the tax deed did not purport to exclude mineral rights from the transfer to D. H. Reed, it could not have transferred those interests because the taxes upon which the delinquency occurred pertained only to the surface, and not to the mineral estate. As we have observed, statutory law and assessment practices in Hamilton County required that, if taxes were levied on mineral rights, those rights would be assessed separately from the surface. In the case at bar, no separate assessment or taxation was made of the mineral interests in question prior to the sale of the property, and, as a result, the tax deed, issued for the unpaid taxes, cannot have transferred the mineral interests without contravening section 7 of “An Act to revise the law in relation to mines.”

Nor can the tax deed form the basis of a claim of adverse possession by D. H. Reed and his successors. Where the mineral estate has been severed from the surface estate prior to the execution of an instrument which is asserted as color of title, mere possession of the surface will not support a claim of adverse possession, even if that instrument purports to convey the entire estate. (Payne v. Williams (1980), 91 Ill. App. 3d 336, 414 N.E.2d 836; Jilek v. Chicago, Wilmington & Franklin Coal Co. (1943), 382 Ill. 241, 47 N.E.2d 96; Renfro v. Hanon (1921), 297 Ill. 353, 130 N.E. 740.) After the tax deed was issued, there has been no commercial production of oil, gas or coal on the land, and the only evidence suggesting that any use was made of the minerals was the testimony of defendant Guy Reed that in 1960 or 1961, he sold approximately five wagonloads of coal from a surface outcropping to a neighbor for $4 a load. He also said that he gave some of that coal to an employee of the farm upon which the outcropping was located. These acts fall short of “some act of dominion over the minerals themselves” (Pickens v. Adams (1955), 7 Ill. 2d 283, 294, 131 N.E.2d 38, 44) sufficient to establish adverse possession over those minerals. (Uphoff v. Trustees of Tufts College (1932), 351 Ill. 146, 184 N.E. 213.) Finding, then, that the tax deed did not pass title to the mineral interests, either directly or through adverse possession, we reject the contention that the trial court’s decision was contrary to the evidence introduced at trial. Having so found, we need not consider the evidence in support of the remaining three counts of the plaintiffs’ complaint.

The defendants’ final assignment of error is that the plaintiffs’ quiet title action should be deemed barred by laches, inasmuch as it was instituted in 1980, 36 years after the issuance of the tax deed to D. H. Reed. However, unlike in other cases in which challenges to tax deeds have been held to have been barred by laches (Bays v. Matthews (1982), 108 Ill. App. 3d 1112, 440 N.E.2d 142; Pyle v. Ferrell (1958), 12 Ill. 2d 547, 147 N.E.2d 341), nothing in the present record shows that the plaintiffs knew or should have known of any claim to their portion of the mineral estate, but failed to act. There was no evidence that any taxes were paid on the mineral interests, and, accordingly, an inspection of the public records would not have revealed that the defendants or their predecessors in interest were making any claim to the minerals. No commercial production of any minerals was undertaken on the property, so that if the plaintiffs or their predecessors had visited the premises after the issuance of the tax deed, they would have had no reason to doubt their ownership of the minerals. Plaintiff Delsie Lemmon testified that she first became aware of defendants’ claim in 1978 or 1979 during a discussion with defendant Guy Reed at a meeting of the Ewing-Northern Coal Association. Guy Reed did not contest that the first notification he had given any of the plaintiffs of his claim occurred either at that meeting or with the filing of a notice with the Association claiming ownership of the minerals under the entire 80-acre tract at approximately that time. Reed admitted that he did not record that notice in Hamilton County, and also conceded that in 1961, he sent a letter, a quitclaim deed covering the mineral interests and a $10 check to several of the plaintiffs or their predecessors in interest, requesting signature of the deeds. None of these persons cashed any of the cheeks or signed any of the deeds.

One element in establishing the existence of laches is “delay in asserting the complainant’s rights, the complainant having had notice or knowledge of defendant’s conduct and the opportunity to institute a suit.” (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 553, 147 N.E.2d 341, 344.) Contrary to the argument in defendants’ brief, we find nothing in the record to indicate that the plaintiffs should have been aware of the defendants’ claim to the whole mineral estate underlying the 80-acre tract before 1978. Under the facts of this case, a delay until 1980 in filing suit is not so unreasonable as to give rise to laches.

For the foregoing reasons, the judgment of the circuit court of Hamilton County quieting title in the plaintiffs is affirmed.

Affirmed.

EARNS and EASSERMAN, JJ„ concur.


text:
      In re ESTATE OF LOREN A. SWISHER, Deceased.—(Leon L. Swisher, Adm’r of the Estate of Loren A. Swisher, Plaintiff-Appellant, v. Norma Swisher, Guardian of the Estates of Bradley Swisher et al., Minors, Defendant-Appellee.)
    Fifth District
    No. 82—280
    Opinion filed March 21, 1983.
    Jeff Troutt, of Caldwell, Troutt, Alexander & Quindry, of Benton, for appellant.
    Gary J. Szczeblewski, of Sesser, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

This appeal presents the following question: is the statutory surviving child’s award under section 15 — 2 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. llOVa, par. 15 — 2) governed by the minimum amounts in effect at the date of death of the decedent or by the amounts in effect at the date such an award is ordered? The circuit court of Franklin County issued an order in which it felt bound by the latter amount. We agree with this position.

Loren Swisher died intestate on May 27, 1981. At that time, the Probate Act of 1975 provided that the children of a decedent who left no surviving spouse would be entitled to a minimum child’s award of $1,000 per child plus $5,000 to be divided equally among the children receiving the award. (Ill. Rev. Stat. 1979, ch. IIOV2, par. 15 — 2(b).) On August 26, 1981, Norma Swisher, guardian of the person and of the estate of the decedent’s two minor sons, petitioned the court for an appropriate child’s award under this provision, and, on October 20, 1981, the court granted the petition in the amount of the statutory minimum of $1,000 per child and $5,000 to be divided between the two sons.

Norma Swisher moved to vacate the award on November 16, 1981, alleging that the statutory minimum amounts had been increased by the General Assembly following Loren Swisher’s death. (Ill. Rev. Stat. 1981, ch. 110 V2, par. 15 — 2(b), as amended by Pub. Act 82 — 188, effective August 14, 1981.) On April 22, 1982, the court entered an order finding that section 15 — 2(b) of the Probate Act of 1975 “leaves no discretion” and instead fixes a minimum limit on the amounts awarded. Accordingly, an award was entered in the new statutory minimum amounts of $2,000 per child and $10,000 to be divided between the children. It is from this order that the administrator of the estate of Loren Swisher appeals.

The administrator first suggests an analogy to the statutory rules of descent. It is accepted that the survivors of a decedent who dies intestate share in his estate under the rules in effect at the date of the decedent’s death. • (Classen v. Heath (1945), 389 Ill. 183, 58 N.E.2d 889; McCormick v. Hall (1929), 337 Ill. 232, 168 N.E.900.) According to the administrator, it would promote consistency in the administration of estates if the child’s award were also to be ascertained with reference to the law in force at that time.

However, we do not believe it appropriate to reason by analogy from the statutory rules of descent. The stated purpose of those rules is simply to make an equitable distribution of the property owned by the decedent, and the application of those rules involves consideration of facts at least theoretically established at the date of death, namely the size of the estate and the identity of the heirs. It is consistent with this purpose to hold that rights acquired through the operation of these statutes vest at death. In re Estate of Tilliski (1944), 323 Ill. App. 490, 56 N.E.2d 481, aff’d (1945), 390 Ill. 273, 61 N.E.2d 24.

In contrast, the child’s award is, by the terms of the Probate Act of 1975, designed to support the dependent children of the decedent for nine months after his death. Of necessity, the court must look to the future needs of the children to determine if, in the exercise of its discretion, the court feels that an amount greater than the appropriate minimum should be awarded. (In re Estate of Lewis (1974), 18 Ill. App. 3d 748, 311 N.E.2d 694.) The child’s award is more accurately thought of as a provision for the future rather than the mere distribution of property accumulated in the past. Thus, those policies which dictate that intestate succession be vested no later than the date of the decedent’s death, and that the distribution be in accord with the law at that time, are not present in determining which law governs the child’s award.

The administrator responds that, even if the statutory rules of descent are of no guidance in this case, it has been held that the statutory widow’s award, which has a purpose similar to that of the child’s award, vests at the date of the decedent’s death. (In re Estate of Gersch (1963), 43 Ill. App. 2d 224, 193 N.E.2d 208; Molner v. United States (N.D. Ill. 1959), 175 F. Supp. 271; In re Estate of Dillman (1956), 8 Ill. App. 2d 239, 131 N.E.2d 634.) If the right to receive this award is determined at that time, he argues, then it must follow that the amount of that award should be controlled by the law in force at that time as well. He further asserts that this result should also be reached under the child’s award.

We do not accept that a necessary corollary to the vesting of the spouse’s award at the death of the decedent is that the amount of that award is governed by the law at that time. Certainly, in making its award to the spouse, the trial court is not limited to the projected needs of the spouse at that date, but should consider later circumstances affecting the needs of the spouse. (In re Estate of Gersch.) If the court is not bound by the facts as they appear at the death of the decedent, there seems to be no reason that it should be bound by a minimum amount in effect at that time. In re Estate of Dillman does not hold otherwise. That case held that a husband who survived his wife by only several hours obtained a vested interest in the minimum amount of the widow’s award, which interest was recoverable by his estate. An event which occurred subsequent to the wife’s death thus showed that the husband needed no more than that amount. Also, by the very nature of this case, there was no change in the minimum award between the wife’s death and the husband’s, nor was there any such change between the death of the parties and the court’s award.

Furthermore, even though the widow’s award is similar in purpose to the child’s award, it is only the statute governing the former which contains language which explicitly vests the award at the death of the decedent. Section 15 — 1(a) of the Probate Act of 1975 provides, “If the surviving spouse dies before the award for his support is paid in full, the amount unpaid shall be made to his estate. If the surviving spouse dies or abandons a child before the award for the support of a child is paid in full, the amount unpaid shall be paid for the benefit of the child to such person as the court directs.” (Ill. Rev. Stat. 1981, ch. 11072, par. 15 — 1(a).) But even without this direct language, the fact that section 15 — 4 of the Probate Act of 1975 allows the executor of the estate of a deceased surviving spouse to select between receiving an award in money or an award in property shows that the widow’s award must indeed vest at the decedent’s death. (Ill. Rev. Stat. 1981, ch. 11072, par. 15 — 4(a); Molner v. United States.) No such language is found in the provisions governing the child’s award, even though that statute makes reference to the children in existence at the date of the decedent’s death. The absence of this language indicates that we cannot analogize from the vesting of the widow’s award at the death of the decedent to the application of the minimum amount in effect at that time for a child’s award.

The administrator also argues that the amount of the child’s award is a “substantive” matter which should be governed by he law in force at the decedent’s death. Several authorities have recognized the rule that “[w]here substantive rights are affected, such as dower, descent, etc., it seems clear that the law in force at the decedent’s death governs.” (1 Horner, Probate Practice and Estates sec. 21 (4th ed. 1976).) The corresponding rule is of course that a purely “procedural” matter is controlled by the most recent version of the law. (See In re Estate of Lehman (1975), 29 Ill. App. 3d 321, 330 N.E.2d 594.) The guardian of the minor sons responds that the amount of the minimum child’s award is procedural in nature.

While the difference between a substantive and a procedural matter may be of assistance in interpreting some statutes, it should be remembered that the primary function served by rules of construction should be to ascertain the intent of the legislature ánd effectuate it. (Ill. Rev. Stat. 1981, ch. 1, par. 1002; Karlson v. Murphy (1944), 387 Ill. 436, 56 N.E.2d 839.) The characterization of a matter as substantive or procedural can easily be misleading, and we believe that it should not be done in a case such as this where the intent of the General Assembly is apparent from consideration of the purposes of section 15 — 2 of the Probate Act of 1975.

The statute governing the child’s award is to be liberally construed so as to furnish the surviving children with adequate support immediately after the decedent’s death. (Gillett v. Gillett (1904), 207 Ill. 136, 69 N.E. 942.) It is a fair inference from the General Assembly’s decision to raise the minimum amount of that award, effective August 14, 1981, that the earlier statutory minimum amounts would not be adequate to support children after that date. Were we to hold that the appropriate statutory minimum is that in effect on the date of death of the decedent, that decision would not be fully effectuated.

Instead of conditions specific to a particular claimant, arising after the decedent’s death and affecting the needs of the claimant, the change in the statute embodies a general condition, the economic climate, which affects all claimants. It would seem incongruous to say that only conditions affecting the particular claimant, and not the general rise in living costs, recognized by statute, can be considered by the court after the decedent’s death. It would also be anomalous for the court to be forced to use two different standards for child’s awards entered the same day, merely because a decedent may have died prior to the amendment of the minimum amount. The economic conditions applicable to awards entered the same day are obviously the same, and it would better implement the decision of the General Assembly if the standards which govern the child’s awards granted on the same day be uniform as well.

Our discussion of the purposes behind the statutory child’s award has indicated that the minimum amount governing that award is that in effect at the date of the award rather than the amount in effect at the date of the decedent’s death. We indicate no opinion on whether that award vests at the death of the decedent. Because the order of the circuit court of Franklin County applied the later minimum amount, it is accordingly affirmed.

Affirmed.

HARRISON, P.J., and EARNS, J., concur.


author: JUSTICE RIZZI

text:
      In re MARRIAGE OF RAYMELL SMITH, Petitioner and Counterrespondent-Appellee, and HARVEY SMITH, Respondent and Counterpetitioner-Appellant.
    First District (3rd Division)
    No. 81—1424
    Opinion filed March 30, 1983.
    Rehearing denied May 6, 1983.

      Samuel L. Patterson and Howard T. Savage, both of Chicago (Howard O. Edmonds, of counsel), for appellant.
    Jerome Marvin Kaplan, of Chicago, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

After the marriage of petitioner, Raymell Smith, and respondent, Harvey Smith, was dissolved, the trial court conducted several hearings in order to resolve the issues of custody, child support, maintenance, disposition of the marital property and attorney fees, and it entered a supplementary judgment in regard to these issues. Respondent appeals from those portions of the judgment relating to custody and division of the marital property. We affirm.

Respondent first argues that petitioner should not have been awarded custody of the two minor children. At the time of the custody hearing, one daughter was 17 years old and the other daughter was 11 years old. Since that time, the older girl has attained majority, and the issue of custody is therefore moot as to her. Contrary to respondent’s assertion, the fact that this daughter is in college does not mean that she is considered a minor for custody purposes.

In support of his argument that petitioner should not have been awarded custody of the younger child, respondent contends that the trial court overlooked petitioner’s poor health. Section 602(a)(5) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 602(a)(5)) requires that the trial court consider the physical health of the individuals involved when determining custody in accordance with the best interest of the child. (See In re Marriage of Ford (1980), 91 Ill. App. 3d 1066, 1069, 415 N.E.2d 546, 549.) The physical condition of both parents is necessarily a material issue in custody cases. (Marcus v. Marcus (1974), 24 Ill. App. 3d 401, 406, 320 N.E.2d 581, 584.) Here, the record shows that the trial court was cognizant of petitioner’s health problems. The court recognized, however, that despite her health problems, petitioner had been able to adequately care for the children during the 21h years the parties had been separated. Moreover, respondent testified as to his own severe health problems, and in his brief he states that his health “may not be appreciably better than petitioner’s.” We conclude that the trial court adequately considered petitioner’s poor health in deciding the custody issue.

Respondent also argues that the trial court disregarded the statutory requirement that the preferences of the children be considered in determining custody. (Ill. Rev. Stat. 1979, ch. 40, par. 602(a)(2).) According to respondent, the trial court was required to interview the children in order to ascertain their wishes.

Section 604(a) of the Act governs the use of interviews in custody cases, and it provides in part that “[t]he court may interview the child in chambers to ascertain the child’s wishes as to his custodian and as to visitation.” (Ill. Rev. Stat. 1979, ch. 40, par. 604(a).) The use of the word “may” in this section indicates that the choice of whether or not to conduct an interview is a matter within the trial court’s discretion. (In re Marriage of Padiak (1981), 101 Ill. App. 3d 306, 315, 427 N.E.2d 1372, 1378; DeYoung v. DeYoung (1978), 62 Ill. App. 3d 837, 841, 379 N.E.2d 396, 399.) The court is not bound to interview the child in every custody proceeding. (Ill. Ann. Stat., ch. 40, par. 604(a), Historical & Practice Notes, at 56 (Smith-Hurd 1980).) In the present case, the court had appointed a guardian ad litem to represent the children. When asked by the court for his opinion as to custody, the guardian ad litem stated that he had spoken with the children on four or five separate occasions over the past three years and that he had also spoken with the parties as well as the doctor who had examined them. In his opinion, it was paramount that the issue of custody be decided so that the children would have peace of mind. He recommended that petitioner be given permanent custody and that respondent be given substantial visitation. When asked by the trial court what the children’s wishes were, the guardian ad litem responded that they had made it clear that they wished to reside with their mother. The children felt that they could communicate better with their mother, and they were upset with their father for swearing at petitioner and degrading her in front of them.

We believe that the record demonstrates that the court was adequately apprised of the children’s wishes and gave them due consideration in determining custody. Section 602(a)(2) does not specify the manner in which the child’s preference is to be determined. Section 604(a) makes in chambers interviews discretionary rather than mandatory, and therefore alternate methods of determining the child’s wishes must be acceptable. Here, the hearing on the issue of custody did not occur until almost 2xk years after the judgment of dissolution had been entered and four years after this suit was filed. The children were not present. Petitioner’s attorney informed the court that the children had appeared at several prior hearings in order to testify; but the proceedings had always been postponed. Respondent also was not present for the hearing, and no explanation was given by his attorney for his absence. Under the circumstances, and in view of the statements made by the guardian ad litem, we believe that the trial court was adequately apprised of the children’s wishes and gave them due consideration.

Respondent also argues that the court erred in its division of the marital property. The major assets involved were a four-flat apartment building in which the parties resided and each party’s nonvested pension rights. The court determined the value of the building to be $38,000 and the value of petitioner’s pension to be $10,000, and it awarded this property to petitioner. The court awarded respondent his pension, which was valued at $20,000. The court found that respondent had dissipated $15,000 of the marital property, and it charged this amount to respondent in dividing the marital property. The court further ordered that petitioner pay respondent $7,500 in exchange for being awarded the real estate.

Respondent argues that the trial court erred in finding that he had dissipated marital assets totaling approximately $15,000 by withdrawing that money from his credit union and using it for nonmarital purposes. At the hearing, respondent testified that all funds in the credit union account came from his paycheck. He further testified that the money was used for a trip he took to Las Vegas, for the payment of taxes and attorney fees, and for the purchase of various household appliances and furniture for the apartment in which he lived after he ceased living with the family. According to respondent, from August 1, 1976, until August 1, 1977, he paid the mortgage on the parties’ apartment building in cash. Respondent claims that he kept the money he withdrew in a cache in the basement of the apartment building. Regarding a withdrawal of $5,850 that he had made from the credit union, respondent testified, “I kept it out. *** It has all been spent by myself.” As to a further withdrawal of $6,300, respondent stated, “I kept it in my possession, and of course, it was spent. That money was spent, and I have a record of the expenditure of these amounts.”

Dissipation of marital assets by one spouse in contemplation of dissolution of marriage is an unacceptable practice that will not be sanctioned. Under section 503(c)(1) of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(1), now redesignated as subdivision (d)(1) pursuant to Pub. Act 82 — 668, effective January 1, 1982), one of the relevant factors to be considered by the court in dividing marital property is the dissipation in value of the marital and nonmarital property. Dissipation may be found where a spouse uses marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage relationship is in serious jeopardy. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 462, 426 N.E.2d 1087, 1094; see Klingberg v. Klingberg (1979), 68 Ill. App. 3d 513, 517-18, 386 N.E.2d 517, 521.) It is not necessary to show that the dissipation occurred at the time the parties separated or after dissolution proceedings have been instituted, for such a requirement would be overly restrictive. In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 462, 426 N.E.2d 1087, 1094.

We believe that the trial court’s finding that respondent dissipated the $15,000 was not erroneous. Respondent’s testimony regarding his use of the funds was vague. The money spent on his trip to Las Yegas was obviously not money spent for a marital purpose. Respondent’s testimony that he used the credit union money to pay the mortgage for the year beginning one month prior to petitioner’s filing for dissolution presented a question of credibility to be resolved by the trial court, since the testimony showed that respondent continued to be employed during this period and there was conflicting evidence as to whether he was receiving rent from tenants in the apartment building at this time. In addition, respondent did not present the record of expenditures which he allegedly kept. We conclude that respondent’s assertion that the trial court “acted upon mere feeling, not upon evidence adduced at trial, in deciding this part of the case,” is without merit. The evidence adequately supports the trial court’s finding of dissipation

Respondent’s argument that the trial court abused its discretion by declining to consider an appraisal of the apartment building which respondent offered also is without merit. The court found that the property had a value of $38,000, which was the same amount as the appraisal figure originally suggested by respondent’s attorney. Despite the fact that several hearings regarding the division of marital property were held, respondent did not seek to introduce the appraisal, which allegedly would have shown that the property was worth $45,000, until after the court had decided the case. The court refused to reopen the case for the admission of this additional evidence.

Generally, the matter of allowing a case to be reopened for the introduction of further evidence rests in the sound discretion of the trial court, and courts of review will not interfere except where that discretion was abused (Buck v. Alton Memorial Hospital (1980), 86 Ill. App. 3d 347, 355, 407 N.E.2d 1067, 1073) and the failure to reopen the proofs resulted in substantial injustice. (Department of Public Works & Buildings v. First National Bank (1965), 61 Ill. App. 2d 78, 83, 209 N.E.2d 21, 23.) Here, respondent could have presented his appraisal on many timely occasions, yet he failed to do so. Moreover, the difference between respondent’s appraisal and the value given the property by the trial court was not so sizeable that failure to admit the appraisal resulted in substantial injustice to respondent. Accordingly, the trial court did not err in refusing to allow respondent to present the appraisal.

Finally, we also reject respondent’s argument that the division of marital property was unfair because the trial court lacked adequate information concerning the present value of respondent’s nonvested pension rights. The record shows that despite repeated requests made by the trial court to counsel to submit evidence regarding the value of the parties’ pension rights, the only information submitted by the parties was a letter from each of their employers showing what the value of the pension rights would be at various retirement ages. These letters are not included in the record on appeal. The court stated that while it was reluctant to order the parties to hire an actuary because of the expense they would incur, it would welcome any actuarial data they might wish to present.

In its original decision, the court stated that the fairest way to divide the pension in the absence of actuarial data would be to award each party a one-half interest in the other’s pension, based upon the portion of each pension attributable to the term of the marriage. The actual amount would be determined at the time the pension was received. Upon reconsideration, however, the court decided that it would be unfair to award petitioner one-half of respondent’s pension in addition to awarding her the real estate, since respondent’s pension would be substantially larger than petitioner’s pension. The court then valued respondent’s pension at $19,159. It reached this figure based upon the fact that respondent was 54 years old and if he stopped working immediately, at age 65 he would receive a pension of $421 per month. At age 65, respondent would have a life expectancy of approximately 11 years. The court then applied a double discount at 6V2% to reach the $19,159 figure. The court used a similar formula in determining that petitioner’s pension had a present value of $9,506.

This court recently discussed the problems inherent in placing a value on nonvested pension rights in In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300. There, we stated that:

“If a trial court deems it best to divide the pension interest prior to vesting, it must take the value of the pension as determined by actuarial evidence, discount this amount to an extent in consideration of the probability it will not vest, discount to present value, and then determine the marital portion of that amount. In some cases the trial court may be able to evaluate this risk in determining the value. (In re Marriage of Brown (1976), 15 Cal. 3d 838, 544 P.2d 561, 126 Cal. Rptr. 633.) However, generally it will require expert testimony regarding the discount factors and evidence to enable an evaluation of the probability the benefits will be enjoyed. (Robert C.S. v. Barbara J.S. (Del. 1981), 434 A.2d 383; Heatwole v. Heatwole (Wis. App. 1981), 103 Wis. 2d 613, 309 N.W.2d 380.) This method is best only where the pensioner is close to mandatory retirement age or retirement is otherwise imminent, and there are sufficient other marital assets to allow an offset to the nonpensioner spouse. Shill v. Shill (1979), 100 Idaho 433, 599 P.2d 1004.
Where this method proves impractical, the court may choose to postpone a decision on the ultimate method of apportionment of pension rights until the rights vest. This can be accomplished by the court simply awarding ‘each spouse an appropriate portion of each pension payment as it is paid.’ This method ‘will require the court to continue jurisdiction to supervise the payments of pension benefits.’ (In re Marriage of Brown (1976), 15 Cal. 3d 838, 848-49, 544 P.2d 561, 567, 126 Cal. Rptr. 633, 639; Holbrook v. Holbrook (1981), 103 Wis. 2d 327, 309 N.W.2d 343; [citations].)” (107 Ill. App. 3d 711, 717, 437 N.E.2d 1300, 1305.)

We believe that the record here shows that the court reasonably valued the pension plans and that the method it used was in line with the criteria set forth in Wisniewski.

Respondent does not argue that the court should have postponed a decision on the apportionment of the pension rights until the rights vested. Rather, he makes a general argument that “[t]he trial court lacked information about the present value of the respondent’s contingent pension ***,” and it “overlooked the requirement to obtain the present value of the respondent’s contingent pension ***.” This argument is untenable, however, because it is not the trial court’s obligation to obtain the value of the pension rights. Rather, the trial court must value the pension rights based upon the evidence presented by the parties. Here, the gist of respondent’s argument appears to be that the trial court lacked sufficient actuarial data. Respondent does not argue that actuarial data is mandatory, and in his brief he states that the court “demonstrated sound thinking in this matter by observing that it would not be economically feasible for the petitioner and respondent to retain an actuary to make the requisite computations; it refused to order them to incur the expense of hiring an actuary.” Moreover, respondent does not indicate what additional information he would present if the case were remanded, since it is clear that he does not wish to hire an actuary. The real tenor of respondent’s argument is that the court’s lack of adequate information to be used in valuing respondent’s pension rights is somehow attributable to the court. As we stated above, however, it was the parties’ responsibility to present the requisite data to the trial court, especially since the court repeatedly requested additional data. Under these circumstances, we believe that the court’s valuation of respondent’s pension rights was reasonable and that it would serve no useful purpose to remand this case for a redetermination of the present value of the pension rights.

We here opine that this case presents a situation which this court sees all too often in dissolution cases. Despite the fact that numerous hearings regarding the division of property were held and that only a limited amount of property was involved, neither party presented the trial court with solid evidence of the properties’ value so that the court could make the fairest possible division of the parties’ assets. We again emphasize that it is the parties’ obligation to present the court with sufficient evidence of the value of the property. Reviewing courts cannot continue to reverse and remand dissolution cases where the parties have had an adequate opportunity to introduce evidence but have failed to do so. Parties should not be allowed to benefit on review from their failure to introduce evidence at trial. (In re Marriage of Miller (1983), 112 Ill. App. 3d 203, 209; see In re Marriage of Melton (1981), 93 Ill. App. 3d 338, 341, 417 N.E.2d 220, 223.) Remanding cases such as the one before us would only protract the litigation and clog the trial courts with issues which should have been disposed of at the initial hearing. As the trial court here said after numerous hearings in this case, at some point we must “ring the curtain down.”

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA, P.J., and WHITE, J., concur.