author: JUSTICE LINN

text:
    WILLIAM MAAS, Plaintiff-Appellant, v. COHEN ASSOCIATES, INC., et al., Defendants-Appellees.
    First District (4th Division)
    No. 82—1486
    Opinion filed February 3, 1983.

      Richard E. Steck, of Chicago, for appellant.
    Cantwell, Smith & Van Daele, of Chicago (Stephen E. Smith and Andrew V. DePaul, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Plaintiff, William Maas, filed a complaint on May 13, 1982, in the chancery division of the circuit court of Cook County against defendants, David Cohen and Cohen & Associates, Inc., seeking injunctive and other equitable relief as well as damages. Maas then filed an emergency motion for the issuance of a temporary restraining order and a preliminary injunction, and Cohen responded by moving to strike the motion for an injunction. Following a hearing, the trial court granted Cohen’s motion to strike the request for injunctive relief, denied Maas’ motion for the issuance of an injunction, and granted Maas 28 days to amend his complaint. Maas instead perfected this appeal, claiming that the trial court erred by (1) granting defendants’ motion to strike and thereby denying his request for an injunction, and (2) refusing to hear testimony from witnesses to support the motion for an injunction.

We affirm the decision of the trial court.

Background

William Maas, an independent contractor, formerly worked for Cohen & Associates, Inc., a corporate real estate and business broker specializing in the sale of taverns, restaurants, and other businesses. In return for Maas’ services in procuring listings and finding buyers for various businesses, David Cohen, president and sole stockholder of Cohen & Associates, orally contracted to pay Maas a specified percentage of the commissions earned on consummated sales. Under a second oral contract, Maas was promised and received a separate percentage of all listing fees he generated for the corporation.

After Maas and Cohen had operated under these agreements for IV2 years, the corporation ceased doing business, and Cohen began working for another real estate and business broker. Although Maas subsequently received some of his share of the commissions from sales completed prior to the corporation’s closing, he did not receive commissions from two of his listings that resulted in sales after Cohen & Associates closed its office; further, Maas knew two other listings were expected to result in closings in the near future. Following an alleged report by Cohen to Maas’ wife falsely stating that negotiations on one of the future closings had ceased, Maas filed suit. In addition to the injunction, declaratory judgment, and accounting requested, the complaint prayed for an order directing Cohen to pay Maas not only the commissions due and owing but also damages and attorney fees.

One week later, Maas filed an emergency motion and affidavit asking the court to restrain Cohen from collecting or disbursing any money to be collected on the sales of Castle Wine & Spirits and Don’s Fishmarket, the two businesses for which Maas had obtained the listings and found buyers and which were to be sold imminently. Maas maintained he had an inadequate remedy at law and would suffer irreparable injury if the injunction did not issue immediately because he believed Cohen & Associates to be insolvent and Cohen himself so pressed by debts that he would spend Maas’ share of the commissions before Maas could claim them. Cohen responded by filing a general appearance and a motion to strike Maas’ motion for a preliminary injunction, apparently under the authority of section 45 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 45, now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615), although that statutory designation was not specifically mentioned before this appeal.

At the hearing on the motion to strike, Maas argued that Cohen’s repeated practice of retiring numerous personal debts by using personal and corporate funds interchangeably, the corporation’s apparent undercapitalization and failure to file its annual report, the sudden closing of the business offices, and Cohen’s alleged attempt to defraud Maas of his share of commissions all proved Cohen’s inability to respond in damages. Maas, therefore, claimed that he had no adequate remedy at law and would suffer irreparable injury. Maas concluded his argument by offering witnesses to substantiate further his allegations that Cohen had been dilatory in paying commissions in the past and that he had attempted to defraud Maas of commissions earned.

In response, Cohen argued that Maas had not satisfied any of the requirements for an injunction, namely, showing a protective property right, irreparable injury, inadequate remedy at law, and likelihood of success on the merits. Further, Cohen denied each of Maas’ allegations and pointed out that the facts set out in Maas’ affidavit were inadequate to establish any right to equitable relief.

At the conclusion of Cohen’s argument, the trial judge stated that although he was not reluctant to hear testimony from the witnesses, he was prevented from doing so because “the only time the Court is allowed to hear evidence is when the parties are at issue. The parties clearly are not at issue at this point.” The trial judge thereupon granted Cohen’s motion to strike and denied Maas’ motion for an injunction.

In addition, instead of following Cohen’s suggestion that because Maas’ claim amounted to only $14,000 the case should be transferred to the municipal department of the law division, the trial court declared that it would retain the case in chancery and granted Maas 28 days to amend his complaint. Instead, Maas appealed, claiming that he had been given leave to amend his complaint only to allege a higher monetary value, not to amend his motion or pleadings in general. Because “[a] purpose of the motion to strike is to point out defects in pleading which the pleader may correct” (Electric Supply Corp. v. Meyrick (1953), 349 Ill. App. 383, 385, 110 N.E.2d 525, 526), we do not agree with Maas’ interpretation of the trial court’s closing remarks. We therefore regard this appeal as expressing substantive disagreement with the trial court’s disposition of the case, not, as Maas apparently would have us believe, as a procedural appeal taken only because permission to amend the pleadings was not granted.

Opinion

I

It is clear to us from the outset that some of the controversy in this appeal arises not from conflict over legal issues but rather from the parties’ aberrant labeling of the various actions. Maas’ complaint as originally filed included a request for an injunction to prevent Cohen from collecting or disbursing commissions earned by the real estate brokerage corporation from the sales of two businesses, Castle Wine & Spirits and Don’s Fishmarket. One week later, Maas refiled the same request for an injunction, this time labeled a motion, and attached the requisite affidavit amplifying the facts previously set out in the original complaint. Although the motion more specifically alleged irreparable injury and inadequate remedy at law, the original complaint had included an assertion that because both Cohen and Cohen & Associates were insolvent, Maas’ loss of compensation was irreparable and his remedy at law inadequate.

When Cohen filed his motion to strike Maas’ motion, he was forcing the case into a posture unanticipated by the various provisions in the Civil Practice Act authorizing motions to strike or dismiss. (Ill. Rev. Stat. 1981, ch. 110, pars. 45, 48, now codified as Ill. Rev. Stat. 1981, ch. 110, pars. 2 — 615, 2 — 619.) Those motions are designated by statute as means to attack the sufficiency of the pleadings themselves and are intended to be distinct alternatives to an answering pleading. Maas’ extracting one portion from his original pleading, labeling it a motion, and then arguing that Cohen’s motion to strike or dismiss cannot be used to attack a motion constitute a clear attempt to use form to attack substance. Accordingly, we will follow the maxim that equity, which looks through form to substance, “does not look to the technical niceties of procedure but is concerned with ultimate consequences.” (Detroit Steel Products Co. v. Hudes (1958), 17 Ill. App. 2d 514, 521, 151 N.E.2d 136, 139.) We therefore will regard Cohen’s motion to strike to be a section 45 motion to strike or dismiss those portions of Maas’ original pleading that requested injunctive relief and simply were repeated in the subsequent emergency motion.

After reviewing the case as accurately realigned, it is clear to us that the trial court was correct in granting Cohen’s motion to strike and denying Maas’ request for an injunction because Maas has failed in two ways to meet the jurisdictional requirements of a court of equity. First, as stated in Cohen’s motion to strike, Maas has failed to state a cause of action upon which equitable relief could be granted. “To obtain a preliminary injunction, plaintiff must establish that (1) [he] possesses a protectible right; (2) there will be irreparable injury if the injunctive relief is not granted; (3) the remedy at law is inadequate; and (4) there is a likelihood that plaintiff will succeed on the merits. [Citation.] Injunctive relief is such an extraordinary remedy that plaintiff must plead facts which clearly establish that the remedy is necessary. [Citation.] Allegations of mere opinion, conclusion, or belief are not sufficient to show a need for injunctive relief.” (Allstate Amusement Co. of Illinois, Inc. v. Pasinato (1980), 96 Ill. App. 3d 306, 308, 421 N.E.2d 374, 375.) “ ‘It is indispensable to the right to temporary injunction that all material facts alleged be properly verified by affidavit.’ ” (Phelan v. Wright (1964), 54 Ill. App. 2d 178, 181, 203 N.E.2d 587, 589.) Although Maas corrected the lack of verification in the original complaint by filing an affidavit with the later motion, “ ‘allegations verified on information and belief are insufficient to support an injunction order.’ ” (Phelan v. Wright (1964), 54 Ill. App. 2d 178, 181, 203 N.E.2d 587, 589; Fox v. Fox Valley Trotting Club, Inc. (1953), 349 Ill. App. 132, 137, 110 N.E.2d 84, 86.) Maas’ affidavit, verified only on information and belief rather than personal knowledge, is therefore inadequate to support his request for injunctive relief.

Even if we ignore the affidavit’s deficiency, however, we find that Maas has failed to establish the necessity for an injunction. “[T]o establish a cause of action for injunctive relief plaintiffs must allege facts necessary to establish that their legal remedy is inadequate and that irreparable injury will result should injunctive relief not be granted.” (Larkin v. Howlett (1974), 19 Ill. App. 3d 343, 345, 311 N.E.2d 367, 369.) “Moreover, where money damages is an adequate remedy, injunctive relief is not proper.” (Allstate Amusement Co. of Illinois, Inc. v. Pasinato (1981), 96 Ill. App. 3d 306, 308, 421 N.E.2d 374, 375-76.) The only relief requested by Maas is monetary; his injury, therefore, may be adequately remedied at law in a suit for breach of contract.

Maas argues that even though the sole relief requested is monetary, the injunction requested is appropriate because he believes Cohen and Cohen & Associates to be insolvent and therefore unable to respond in damages. In support, Maas offers his opinion that Cohen & Associates was undercapitalized and his observations that Cohen had many debts and that the corporation both ceased doing business and failed to file its annual report. There is no positive allegation based on personal knowledge that defendants had any debts they could not pay. Further, the corporation’s annual report was filed prior to the hearing on the motion to strike. Finally, Maas’ conclusion that defendants were insolvent is unsupported by any specific facts and is thus legally insufficient to state a cause of action. Although Maas attempts to excuse the deficiency in his allegation of facts by stating that he lacked access to Cohen’s books and records, we note that he never requested discovery of documents pursuant to Supreme Court Rule 214 (73 Ill. 2d R. 214). Cohen’s past history of delayed or withheld payments to Maas and misrepresentation of the status of the negotiations concerning the sale of one restaurant may constitute valid complaints in a suit at law, but they do not qualify Maas for injunctive relief.

In a final attempt to overcome the jurisdictional deficiencies of his request for an injunction, Maas cites Western Auto Supply Co. v. Chalcraft (1958), 16 Ill. App. 2d 461, 148 N.E.2d 592, and Rosinia v. Gusmano (1980), 90 Ill. App. 3d 882, 414 N.E.2d 21, as support for his argument that an injunction may issue to prevent a defendant from collecting or receiving money equitably belonging to the plaintiff or dissipating property consisting mainly of money arguably belonging to plaintiff. We find his reliance to be misplaced. While it is true that Maas too wishes to enjoin defendants from collecting and disbursing money allegedly belonging to him, he does not have the same proprietary right to the funds as did the plaintiffs in the cited cases. In Western Auto Supply, the plaintiff sought to enjoin the defendant from reselling commercial paper he already had sold to the plaintiff and from converting to his own use amounts collected on the securities and held as trust receipts for the plaintiff. In Rosinia, the defendants were disbursing the property in an estate fraudulently transferred from the plaintiff. In contrast, Maas can demonstrate no right to a finite body of property; all he has is an arguable right to compensation pursuant to two oral contracts, a right he can pursue adequately in a court of law.

II

Maas’ second contention is that the trial judge improperly refused to hear testimony from Maas’ proffered witnesses under the mistaken impression that he had no discretion to do so. Had he heard the witnesses, Maas argues that the lack of supporting fact in his affidavit would have been corrected and the propriety of injunctive relief thereby established. We find that Maas is incorrect in his belief that the trial judge had discretion to hear witnesses and thus committed reversible error by refusing to exercise it under the mistaken belief that he lacked authority to do so. On the contrary, the trial judge correctly determined that he had no such discretion.

At a hearing on an application for a preliminary injunction, the trial court may rule on the application based on the pleading and any evidence heard. (O’Brien v. Matual (1957), 14 Ill. App. 2d 173, 144 N.E.2d 446.) However, the conduct at a hearing on a motion to dismiss is regulated partly by the designation of the particular motion at issue. Unlike a motion made under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48, now codified as Ill. Rev. Stat. 1981, ch. 110, par. 2 — 619), the determination of a section 45 motion to strike or dismiss (Ill. Rev. Stat. 1981, ch. 110, par. 45, now amended as Ill. Rev. Stat. 1981, ch. 110, par. 2 — 615) is made by considering only the facts alleged in the pleading. (30 Ill. L. & Prac. Pleading sec. 193 (1957).) Although affidavits and therefore witnesses may be considered under a section 48 motion to dismiss, “[i]t is error *** for a trial court to consider affidavits, depositions, or exhibits when considering a section 45 motion to [strike or] dismiss a complaint for failure to state a cause of action.” Johnson v. Nationwide Business Forms, Inc. (1976), 41 Ill. App. 3d 128, 131, 359 N.E.2d 171, 173.

For all the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

ROMITI, P.J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: JUSTICE MILLS

license: Public Domain

text:
    ORA RAUCH, Plaintiff-Appellee, v. FRANK RAUCH, Indiv. and as Ex’r of the Estate of Dicie B. Rauch, et al., Defendants-Appellants.
    Fourth District
    No. 4—82—0540
    Opinion filed February 8, 1983.
    Rehearing denied March 4, 1983.

      William A. Sunderman, of Anderson Law Offices, of Charleston, for appellants Frank Raugh and Edna Webb.
    Richard O. Erdmann, of Follmer, West & Erdmann, of Champaign, for appellant Opal Ledbetter.
    Paul L. Stone, of Stone & Stone, of Sullivan, for appellee.
   JUSTICE MILLS

delivered the opinion of the court:

When is a joint will a “joint and mutual will?”

Answer: this one.

The trial court so found.

We agree — and affirm.

In 1959, Julius and Dicie Rauch jointly executed a will, leaving their property first to each other and then, after the death of the survivor of them, to their four children: Frank Rauch, Edna Webb, Opal Ledbetter, and Earl Rauch.

In 1969, Julius Rauch died and the joint will was admitted to probate.

In 1978, one of the children, Earl Rauch, died leaving his entire estate to his wife.

In 1981, the surviving testator, Dicie Rauch, died. The joint will was again admitted to probate.

The widow of the deceased son filed a complaint for construction of the joint will. The trial court found that the will was a joint and mutual will and that on the death of Julius the rights of the four children became vested. The court also found that the vested interest of the deceased son passed on his death to his widow and she was therefore entitled to all of the interest which he took under his parents’ will.

The testators’ surviving children filed a motion for reconsideration which was denied. They then brought this appeal.

The surviving children argue that their parents’ joint will was not a “joint and mutual will.” They further argue that the interest of their deceased brother lapsed under the provisions of section 4 — 11 of the Probate Act of 1975 (Ill. Rev. Stat. 1981, ch. 110V2, par. 4 — 11) (the antilapse statute) when he predeceased his mother, Dicie Raugh. They argue that because their deceased brother’s interest lapsed, his widow did not take any interest under their mother’s will.

In reply, the widow argues that the joint will was a “joint and mutual will” and that the interest of her husband became vested on the death of his father, Julius, and therefore did not lapse when he predeceased his mother.

The first issue that we must decide is whether the joint will of Julius and Dicie Raugh is a “joint and mutual will.”

It is.

A “joint and mutual will” is a single testamentary instrument which contains the wills of two or more persons. It is executed jointly and disposes of property owned in severalty, in common, or jointly by the testators. (Bonczkowski v. Kucharski (1958), 13 Ill. 2d 443, 150 N.E .2d 144.) A joint and mutual will must be executed pursuant to a contract between the testators, requiring the survivor of them to dispose of the property as the will’s provisions instruct. (Peck v. Drennan (1951), 411 Ill. 31, 103 N.E.2d 63.) The joint and mutual will may, however, itself comprise the contract. (Helms v. Darmstatter (1966), 34 Ill. 2d 295, 215 N.E.2d 245.) As in any contract, some consideration between the parties is necessary. When the joint and mutual will is executed by husband and wife, the mutual love and respect which the testators have for each other is sufficient consideration. (Frazier v. Patterson (1909), 243 Ill. 80, 90 N.E. 216.) The contract embodied in a joint and mutual will becomes irrevocable after the death of one of the testators. (In re Estate of Edwards (1954), 3 Ill. 2d 116, 120 N.E.2d 10.) Thereafter, the survivor is estopped from disposing of the property other than as contemplated in the will and the contract between the testators may be enforced by the third-party beneficiaries. Bonczkowski.

The issue of whether a jointly executed will is in fact a “joint and mutual will” has been litigated in the courts for hundreds of years. The issue is important because jointly executed wills which are not also mutual are not subject to any of the requirements or burdened by any of the restrictions that we have outlined. Although each case must be viewed individually, there are five common characteristics of a “joint and mutual will” that have been repeatedly recognized by lilinois courts.

First, we look for the label the testators have assigned to the will — whether they refer to it as their joint and mutual will. Bonczkowski.

Second, we look for reciprocal provisions in the will — whether the testators made a disposition of his or her entire estate in favor of the other. Helms.

Third, we look for a pooling of the testators’ interests. In a joint and mutual will the testators pool all of their interests — whether owned jointly, in common, or severally — into one joint fund. Tontz v. Heath (1960), 20 Ill. 2d 286, 170 N.E.2d 153.

Fourth, we look for a common dispositive scheme under which the parties dispose of the common fund by bequeathing it to their heirs in approximately equal shares. Helms.

Fifth, we look for the use by the testators of common plural terms such as “we” and “our” as further evidence of the testators’ intent to make a joint and mutual will. Bonczkowski.

The will in the case at bar clearly contains all five common characteristics. First, in the will itself, Julius and Dicie Rauch refer to the will as their “joint and mutual last will and testament.” Second, the will contains reciprocal provisions. The second paragraph of the will states:

“*** [W]e give, devise and bequeath unto the survivor of us, all of the property, real, personal and mixed of which the one of us who dies first is seized or possessed, to be his or her absolute property.”

Third, the testators pooled their interests into a common fund. The will disposes of property owned solely, as tenants in common, and as joint tenants by the testators. Fourth, the common fund of assets is disposed of by a common dispositive scheme in which the testators’ heirs receive equal shares. Each of the couple’s four children receives an equal share of cash, and one-fourth of the real property. Fifth, the testators used the term “we” and “our” throughout the entire will. For example, “Our joint and mutual last will and testament”; “We give, devise and bequeath unto the survivor of us”; and “We hereby direct our executors ***.”

The presence of all five characteristics clearly indicates that Julius and Dicie Rauch intended their joint will to be a “joint and mutual will.”

The surviving children also argue that the phrase in the second paragraph of the will that “we give *** unto the survivor of us, all of the property *** of which the one of us who dies first is seized *** to be his or her absolute property” negates any possibility that this is a “joint and mutual will.” They argue that the word “absolute” means that the survivor had complete control over the property including the power to change the dispositive scheme. This exact argument was rejected by the Supreme Court of Illinois in Helms. The court .there refused to focus on the word “absolute” and to interpret it to mean that the survivor had absolute power over the property. The court said that where equal treatment for the family is provided in the will, it would be illogical to interpret the will as giving the survivor the power to upset that dispositive scheme.

Next, the surviving children argue that their brother’s interest under the will lapsed because he predeceased his mother. Under the antilapse statute, in the absence of an express provision to the contrary, a legacy to a descendant of a testator who predeceases the testator and leaves no descendants lapses and passes as part of the residue.

The antilapse statute, however, simply does not apply in the present case. Under a joint and mutual will, the death of the first testator determines whether the legacy lapses because the interest of the beneficiaries vest on the death of the first testator — not on the death of the surviving testator.

As we noted earlier, the contract contained within a “joint and mutual will” becomes irrevocable on the death of the first testator. At this time, a life estate is created in the surviving testator and the third-party beneficiaries receive a gift over. (First United Presbyterian Church v. Christenson (1976), 64 Ill. 2d 491, 356 N.E.2d 532.) Therefore, because the interest of the third-party beneficiaries comes into being on the death of the first testator (Tontz), it does not lapse when the beneficiary survives the first testator to die, even if he predeceases the surviving testator. In the case at bar, the deceased son survived the first testator to die (his father) and therefore his interest did not lapse when he predeceased his mother. Instead, because his interest was vested, it passed to his widow on his death.

For the above reasons, we hold that the court below correctly found that the deceased son’s widow was entitled to the interest bequeathed to her husband under the “joint and mutual will” of his father and mother.

Affirmed.

TRAPP and MILLER, JJ., concur.


author: JUSTICE MEJDA

text:
      In re MARRIAGE OF MARILYN MILLER, Petitioner-Appellee, and ALEX MILLER, Respondent-Appellant.
    First District (5th Division)
    No. 81—1806
    Opinion filed January 28, 1983.

      Thomas H. Stern, P.C., of Chicago (Joel S. Ostrow, of counsel), for appellant.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Miles N. Beermann and Howard A. London, of counsel), for appellee.
   JUSTICE MEJDA

delivered the opinion of the court:

Respondent Alex Miller appeals from that portion of a judgment for dissolution of marriage dividing marital property and from subsequent orders against him for failure to comply with such provisions. Petitioner has filed a motion to dismiss respondent’s appeal.

The issues here presented are: (1) whether the disposition of marital property was an abuse of discretion and contrary to law; (2) whether the orders relating to contempt are void for lack of jurisdiction; and (3) whether respondent’s appeal should be dismissed.

Marilyn (petitioner) and Alex Miller were married in 1963. They have two children, Nathan, born in 1965, and Elissa, born in 1970.

Petitioner completed one year of college and worked from the time of her marriage until Nathan was born. The parties stipulated that petitioner was a full-time homemaker during the period of the marriage. At the time of trial petitioner was employed part-time by a market research firm. In 1980, her gross income was approximately $2,500.

At the time of trial respondent was the president, sole employee and sole shareholder of the Argosy Marketing and Development Corporation (Argosy). He draws a salary of $2,000 per month and, in addition, the corporation pays his rent, provides him with an automobile, and pays for numerous personal living expenses.

On June 22, 1981, the court entered a judgment for dissolution of marriage which provided, in part, for a disposition of marital property as follows:

1. That respondent pay petitioner a sum equal to one-half of the total funds in Argosy, the total funds being not less than $75,000. Payment is to be made within 10 days from the date of entry of the judgment. Respondent is to pay all taxes due thereon.

2. That respondent pay petitioner a sum equal to one-half of the total dollar value of all assets contained in the Argosy Pension and Profit Sharing Trust. Payment is to be made within 10 days from the date of entry of the judgment. Respondent is to pay all taxes due thereon.

3. Petitioner is awarded exclusive use of the marital home until the younger of the parties’ children becomes of legal age or has completed her education, whichever occurs last. The property is to remain in joint tenancy. However, if respondent or petitioner dies during the minority of one or both of the children herein, a trust is impressed upon the surviving joint tenant to the extent of one-third of the value of the home, as then determined, “for the benefit of the minor child or children.”

At any time prior to the emancipation or completion of education of the younger of the parties’ children, whichever is the last to occur, petitioner may choose to sell the marital home or purchase respondent’s interest therein. The house must be sold or respondent’s interest purchased upon the last of the children’s reaching the legal age of emancipation or upon the completion of either child’s education, whichever occurs last. Upon sale of the home, the net proceeds shall be divided equally, giving petitioner credit for mortgage payments made.

4. The parties shall divide equally the entire proceeds, at maturity, of a savings certificate with a face amount of $23,000.

Respondent was also ordered to make child support payments. Both parties were barred from any further claim to maintenance.

The value of each party’s share of the assets is as follows:

Petitioner

50% equity in marital home $58,000

50% of certificate of deposit 11,500

Amount equal to 50% of funds in Argosy 37,50o

Amount equal to 50% of funds in Argosy

pension plan 70,000

Home furnishings 3,000

Savings account 3,500

Total $173,500

Respondent

50% equity in marital home 58,000

50% of certificate of deposit 11,500

Remaining 50% of funds in Argosy 37,500

Remaining 50% of pension funds 70,000

Checking account 1,800

Individual Retirement Account 5,000

Other corporate funds assigned to Alex 15,000

Total $198,800

Following respondent’s failure to produce the requisite funds, on July 6, 1981, the trial court issued a rule to show cause and a restraining order against him. On July 17, 1981, respondent timely filed a notice of appeal of the court’s June 22, 1981, judgment and July 6, 1981, order. Subsequently, on July 21, 1981, the trial court held him in contempt of court and stayed sanctions. This court on September 2, 1981, granted respondent's motion to stay enforcement of the judgment. Petitioner’s motion to dismiss the instant appeal, alleging that respondent accepted certain benefits of the judgment from which he appealed, was taken for ruling herein.

Opinion

The first issue raised by respondent is whether the disposition of property was an abuse of discretion and contrary to law. The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.) Such an abuse of discretion occurs only where no reasonable person would take the view adopted by the trial court. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.

In the instant case respondent argues not that petitioner received a disproportionate share of the marital assets but that the method of payment is erroneous in law and unworkable in practice. He first contends that the court abused its discretion by requiring him to pay petitioner from funds that do not exist. Respondent states that in order to comply with the order of the trial court, he would be forced either to borrow from Argosy’s pension plan or to invade corporate funds. He argues that borrowing from the pension plan is precluded because he is not vested in the plan and has no assets with which to collateralize a loan from the plan and that invasion of corporate funds would have “grave tax consequences.” He states that the order of such a large amount in one payment requires him to perform an impossible task and that the length of time allowed for the payment is unreasonable.

The judgment required respondent to pay petitioner $107,500 within ten days of the order. The evidence shows that respondent had access to assets in an amount sufficient to comply with the order. The order of the trial court did not require an invasion of corporate assets or an illegal use of the funds in the pension plan. We do not find that the amount of the payment ordered by the trial court or the time allowed therefor were unreasonable. Such matters are discretionary with the trial court; we find no abuse of that discretion.

An unfavorable tax result from a division of property is not sufficient evidence of an abuse of the court’s discretion. (In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730.) In the instant case respondent’s allegation that the trial court’s judgment may have “grave tax consequences” is not sufficient proof that the court has abused its discretion. We find no error in the trial court’s order.

Next, respondent argues that the court erred in purporting to divide the property equally while requiring respondent to bear unknown tax consequences. We note, initially, that there is no requirement that marital property be divided equally between the parties. (In re Marriage of McMahon; In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 401 N.E.2d 328.) The court is directed to divide the property “in just proportions considering all relevant factors.” (Ill. Rev. Stat. 1981, ch. 40, par. 503(c).) In the instant case respondent admits that the court complied with the statute. Second, as stated above, an unfavorable tax result is not evidence of an abuse of the court’s discretion. To the contrary, the court may choose which party is required to bear tax consequences. (In re Marriage of McCune (1980), 86 Ill. App. 3d 311, 408 N.E.2d 319.) We conclude that requiring one party to bear the tax consequences of a division of property, which requirement may result in an unequal division of property, does not constitute an abuse of discretion.

Respondent next argues that the judgment requires him to violate Federal and State law by invading his pension plan and, therefore, represents an abuse of discretion. We find no merit in such argument. The judgment of the trial court ordered respondent to pay “a sum equal to one-half (V2) of the total dollar value of all assets” contained in the Argosy pension plan (emphasis added). The judgment did not order respondent to transfer one-half of the plan’s assets and clearly did not mandate an invasion of the plan itself.

Respondent next contends that the judgment was entered without sufficient evidence being adduced. First, he states that the court divided the pension plan and the corporation without determining their value. He bases his assertion, in part, on one paragraph of the judgment for dissolution of marriage which requires him to submit to petitioner an affidavit prepared by a certified public accountant which sets forth the total value of all assets contained in the pension plan as of June 15,1981.

There is no requirement that the court place a specific value on each item of property (In re Marriage of Thompson (1979), 79 Ill. App. 3d 310, 398 N.E.2d 17), but only that there be competent evidence of value and that the court’s division of the property be supported by the evidence. (In re Marriage of Hyland (1981), 95 Ill. App. 3d 31, 419 N.E.2d 662.) The record in the instant case shows that the court had before it evidence of the value of the assets in the pension plan. The parties stipulated that the value of the pension plan was $136,000 plus earnings. Neither party introduced any evidence to the contrary. Parties will be bound by their stipulations unless such stipulations are shown to be unreasonable, the result of fraud or violative of public policy. (Hudson v. Safeway Insurance Co. (1982), 106 Ill. App. 3d 391, 435 N.E.2d 1255; In re Marriage of Sanborn (1979), 78 Ill. App 3d 146, 396 N.E.2d 1192.) After agreeing on the value of certain items and failing to introduce evidence to the contrary, respondent cannot argue now for the first time that there was no evidence of value. (Sanborn.) The affidavit showing the value of assets contained in the pension plan was required only in order to determine the exact amount to be awarded to petitioner. We conclude that there was sufficient evidence adduced regarding the value of the pension plan and, therefore, we find no abuse of discretion in the award of an amount equal to one-half of its value.

We reach a similar conclusion regarding the award to petitioner of one-half of the value of the assets contained in Argosy. As respondent stipulated to the identity and value of the assets of the corporation, he cannot now claim that there was no evidence of value. (Hudson; Sanborn.) Accordingly, we find no abuse of discretion.

Respondent also contends that insufficient evidence was adduced regarding the possible tax consequences of the judgment. Our review of the record in the instant case reveals that respondent had sufficient opportunity at trial to introduce evidence of the tax ramifications of the within judgment. Respondent cannot benefit now from his failure to introduce the evidence at trial. (In re Marriage of Melton (1981), 93 Ill. App. 3d 338, 417 N.E.2d 220.) We conclude that there was no abuse of the court’s discretion.

Respondent next argues that the court abused its discretion in providing for the creation of a trust for the benefit of the minor children, pursuant to section 503(d) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1981, ch. 40, par. 503(d).) In the instant case the judgment provides in part that the petitioner shall have exclusive use of the marital home until the younger of the parties’ children becomes of legal age or has completed her education, whichever occurs last, at which time the property must be sold or petitioner must purchase respondent’s interest. Until that time the property shall remain in joint tenancy. The judgment further provides that upon the death of either party during the minority of one or both children herein, “a trust is impressed upon the surviving joint tenant to the extent of one-third (Vs) of the value of the home, as then determined, for the benefit of the minor child or children.”

We disagree with respondent’s statement that because the trust would be automatically imposed even if the older child had reached adulthood it therefore requires an inter vivos gift to an adult child. A trust which requires an inter vivos gift to an adult child, thereby extending the parent’s obligation beyond majority, is invalid. (In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488.) The judgment in the instant case, however, does not create such a trust. Although it is possible that the trust would be imposed at a time when the older child had reached majority, the language of the judgment clearly limits the beneficiaries of the trust to “the minor child or children.” The trust does not require a gift to an adult child. In this regard, therefore, the court did not abuse its discretion.

A trial court, in determining that a trust should be created pursuant to section 503(d), must, however, initially consider whether such a trust is necessary to “protect and promote the best interests of the children” as required by the statute. (Ill. Rev. Stat. 1981, ch. 40, par. 503(d); In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 411 N.E.2d 988.) The imposition of a section 503(d) trust is inappropriate absent evidence of a need to protect the interests of the children and, therefore, inappropriately applied to a responsible parent. (Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465; Olsher.) We find no evidence in the record before us that either petitioner or respondent is irresponsible or likely to ignore the children’s financial needs in the future, nor any other necessity for imposition of a trust. We therefore conclude that the trial court exceeded the scope of its discretion in ordering the imposition of a trust under the circumstances described. That portion of the judgment must be reversed.

Respondent finally contends that the July 21 order adjudging him in contempt, having been entered after he filed his notice of appeal, is void for lack of jurisdiction in the trial court. However, respondent filed no notice of appeal from the instant order, entered on the return day of the July 6 rule to show cause. The July 21 order adjudged respondent in contempt and stayed sanctions without imposing punishment. This court is without jurisdiction to review the July 21 order in the absence of a notice of appeal therefrom. (See Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465.) Moreover, a reviewing court can only consider questions existing when the notice of appeal is filed and has no jurisdiction to consider subsequent proceedings. (Cygnar v. Martin-Trigona (1975), 26 Ill. App. 3d 291, 325 N.E.2d 76.) Furthermore, an order adjudging a person in contempt, but not imposing punishment, is not reviewable. (Valencia v. Valencia (1978), 71 Ill. 2d 220, 375 N.E.2d 98; Henry v. Waz (1976), 35 Ill. App. 3d 752, 342 N.E.2d 433.) We therefore do not reach the validity of the July 21 order which was entered after the notice of appeal had been filed and which order imposed no punishment. The appeal from said order must be dismissed.

Respondent’s notice of appeal sought reversal of the July 6 order which entered a rule to show cause against him. The trial court made a finding that there was no just reason to delay enforcement or appeal as provided in Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)). However, if the order is not final, such finding is not sufficient to confer appellate jurisdiction. (In re Marriage of Lentz (1980), 79 Ill. 2d 400, 403 N.E.2d 1036.) In the instant case the rule to show cause was made returnable on July 21 and did not operate to finally dispose of the rights of the parties. On the contrary, the contempt proceeding was set for further hearing on July 21 and left the merits thereof pending. Therefore, the July 6 order was not final when the notice of appeal was filed and is not here reviewable. The appeal therefrom must also be dismissed.

Petitioner has filed with this court a motion to dismiss the instant appeal. She states that respondent has disposed of all his stock in Argosy in exchange for a release from two promissory notes totaling $31,200. Petitioner argues that respondent has accepted the benefits of the judgment and that his actions place petitioner at a distinct disadvantage in the event of a reversal. (See In re Marriage of Lawver (1980), 82 Ill. App. 3d 198, 402 N.E.2d 430; Adams v. Adams (1976), 44 Ill. App. 3d 656, 358 N.E.2d 734.) Because we affirm the provisions of the judgment apportioning the marital property, we need not further consider the motion.

Accordingly, for the reasons stated above, the judgment is affirmed except as to the provisions thereof for a trust for the children which is reversed; respondent’s appeal of the July 6 and July 21 orders is dismissed.

Judgment affirmed in part and reversed in part; appeal dismissed in part.

SULLIVAN and LORENZ, JJ., concur.

       Argosy’s assets include approximately $75,000 in cash, accounts receivable of about $6,500 and a 1979 Cadillac. Petitioner is to receive a sum equal to one-half of the total funds in Argosy, which amount is at least $75,000. The figure here, therefore, represents the lowest possible award.


author: PRESIDING JUSTICE WILSON

text:
    THE BOARD OF EDUCATION OF NILES TOWNSHIP HIGH SCHOOL DISTRICT NO. 219 et al., Plaintiffs-Appellants, v. THE BOARD OF EDUCATION OF NORTHFIELD TOWNSHIP HIGH SCHOOL DISTRICT NO. 225, Defendant-Appellee.
    First District (5th Division)
    No. 82—2145
    Opinion filed January 28, 1983.

      R. Theodore Clark, Jr., and Fay Hartog-Rapp, both of Seyfarth, Shaw, Fairweather & Geraldson, and Russell M. Pelton and Craig A. Varga, both of Peterson, Ross, Schloerb & Seidel, both of Chicago, for appellants.
    Allyn J. Franke and George E. Riseborough, both of Brydges, Riseborough, Morris, Franke and Miller, of Chicago, for appellee.
   PRESIDING JUSTICE WILSON

delivered the opinion of the court:

During the pendency of administrative proceedings before the Regional Board of School Trustees of Cook County, Illinois (“Regional Board”), regarding a petition filed pursuant to the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 7 — 1) requesting that certain property be detached from Niles Township High School District No. 219, Cook County, Illinois, and attached to Northfield Township High School District No. 225, Cook County, Illinois, the Board of Education of District No. 225 (“defendant”) unilaterally adopted and executed a policy to accept students residing in the detachment area with the expressed intent to waive all tuition retroactive to the beginning of the 1982-83 school year if the detachment petition should be granted. In response to defendant’s policy, the Board of Education of District No. 219 and Wesley F. Gibbs (“plaintiff board” and “plaintiff taxpayer,” respectively, in the singular, or “plaintiffs,” collectively) filed a complaint requesting that a temporary restraining order, preliminary and permanent injunction be issued restraining defendant from carrying out said policy. Concurrently, parents of the detachment area students filed a petition to intervene in future proceedings. The court denied the temporary restraining order and the petition, but allowed petitioners five days within which to file an amended petition. Later that day, plaintiffs filed a notice of appeal. The following day, petitioners filed an amended petition and the trial court granted leave to intervene. As a result, plaintiffs filed an amended notice of appeal which incorporated the intervention issue. On appeal, plaintiffs present the following issues for review: (1) whether the trial court erred in denying plaintiffs’ motion for temporary restraining order and preliminary injunction; (2) whether intervenors are properly before the appellate court: (3) whether a school board has the authority to waive tuition for nonresident students; (4) whether the tender of nonnegotiable checks constitutes payment of tuition in accordance with the School Code; and (5) whether a school board has authority to accept in attendance students in a proposed detachment area during the pendency of administrative detachment proceedings. For the reasons that follow, we affirm.

In June 1982, pursuant to the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 7 — 1), residents of District 219 filed a petition with the Regional Board to detach certain territory from District 219 and attach it to District 225. On August 16, 1982, the Regional Board convened to hear the merits of the petition. After a preliminary discussion, the hearing was continued to October 4, 1982. On the day of the Regional Board’s meeting, defendant also met in open session and adopted a policy to accept students residing in the proposed detachment area for the 1982-83 school year. Said policy stated that each student must deposit a check or other equivalent security equal to a year’s tuition (approximately $3,700) which would be held in escrow by defendant. Defendant further decided that should the Regional Board grant detachment during the school year, residency of the detachment area students would be retroactive to the beginning of the school year and all tuition checks would be returned. The record reveals that the parents of five detachment area students deposited checks in the amount of $1,800 each (one-half of the year’s tuition), post-dated January 3,1983.

On August 30, 1982, the day classes convened in both District 219 and District 225, plaintiffs filed their verified complaint and motion for a temporary restraining order, preliminary and permanent injunction to restrain defendant from accepting nonresident students during pendency of administrative detachment proceedings. Plaintiffs alleged that defendant’s unilateral policy would irreparably harm plaintiffs because such action is illegal, contrary to law and constitutes the payment of public funds for a purpose unauthorized by law. In addition, plaintiff board alleged that it would suffer further irreparable harm by: (1) the loss of State aid which is based upon the number of students in actual daily attendance; and (2) the indirect influence defendant’s action will have on the Regional Board’s detachment decision. Lastly, plaintiffs alleged that they had no adequate remedy at law.

On August 31, 1982, a hearing was held on plaintiffs’ motion at which time defendant filed its answer as well as a motion to dismiss. The trial court correctly stated that once defendant filed its answer, it was precluded from filing a motion to dismiss, and, thus, denied the latter. Attorneys for the students residing in the detachment area also appeared that day in an attempt to intervene in the proceedings. Plaintiffs objected to the petition to intervene on the ground that it contained no legal authority. In their defense, petitioners stated that they had just heard about the pending suit that morning and had not had adequate time within which to prepare the petition. They then requested additional time within which to file an amended petition to intervene. After hearing further arguments, the trial court denied plaintiffs’ motion for a temporary restraining order on the ground that plaintiffs had not established irreparable harm. The trial court also denied petitioners’ leave to intervene, without prejudice, granting them five days within which to file an amended petition. Later that day, plaintiffs filed a notice of appeal.

The following day, the parties appeared in court on petitioners’ amended petition to intervene and their motion to dismiss. Plaintiffs argued that the petitioners had already been precluded from participating in the proceeding:

“If your order yesterday [denial of a temporary restaining order] was immediately appealable, and they were denied leave to intervene yesterday, then the order of yesterday in which they were not intervenors, is the one which we are appealing, so their intervention goes to the complaint for permanent injunction which I assume you are taking in another procedure.”

The trial court, however, indicated that it intended to grant the petition to intervene and asked plaintiffs how much time they needed to file their answer. Instead of responding directly to the question, plaintiffs focused on the trial court’s intention that plaintiffs had an immediate right to appeal the previous day’s order. In that regard, plaintiffs argued that the order had to be modified to include denial of a preliminary and permanent injunction. When the trial court agreed to modify the order, petitioners stated that they had to have an immediate ruling on their right to intervene or they would be “sandbagged out of the proceeding before the Appellate Court.” In response, plaintiffs argued against an immediate ruling and stated that they needed two weeks within which to respond to the petition. Expressing disapproval of plaintiffs’ obvious efforts to procedurally block the students’ interventiqn in future proceedings, the trial ccurt stated:

“THE COURT: No, no. If you are going to appeal immediately, which is your right, by giving two weeks I am barring [petitioner] from participating.
PLAINTIFF: I believe he is barred anyway.
THE COURT: You will have to get that ruling from the Appellate Court, you are not going to get it from me. I don’t agree with that.
PLAINTIFF: Your Honor-
THE COURT: I will give you 24 hours, Counsel, to answer this and I will rule on it Friday morning at 10:30.
PLAINTIFF: On which?
THE COURT: The petition to intervene.
PLAINTIFF: Can we get a modified order?
THE COURT: I have no objection.
INTERVENOR: Can we have that put over to Friday?
PLAINTIFF: This is an emergency from our point of view, and by precluding us from taking it up on an emergency basis from your order yesterday, putting it over to Friday.
THE COURT: You want on the one hand for me to stop you and on the other to move you. That is not fair, I am not going to stand for it.
I will deny it, I will amend your order right now, if that is what you want. I will give you leave to intervene right now without any answer. That solves all your problems.
PLAINTIFF: Without an opportunity to respond?
THE COURT: That’s right; if you want it done immediately, I will do it but he gets the same consideration you get, that you need your order immediately, and I will allow him to file immediately. If you want to wait until Friday, I will rule on Friday.
PLAINTIFF: Even though this is a modification of yesterday’s order?
THE COURT: You heard what I said. How do you want it?
PLAINTIFF: I would like your order to correctly reflect yesterday’s order.
THE COURT: Have you seen the order?
INTERVENOR: No.
PLAINTIFF: We have discussed it on the phone.
THE COURT: Look at the order. I will take up whatever objections you want and we will add to that order your leave to intervene is granted.”

Upon review of the order, plaintiffs requested that the order state that interveners had the right to participate in all proceedings, including any appeal, “from this day forward.” In support of their position, plaintiffs stated:

“It would be our position that you don’t have jurisdiction to retroactively grant the petition that yesterday you denied it, today you granted it, and today they have all rights, and it is your intention they should have all rights from this day forward, which is why you granted their petition over our objection for not having had a chance to adequately respond.”

Nevertheless, the trial court signed the order without the phrase “from this day forward” incorporated therein. Subsequently, plaintiffs filed an amended notice of appeal.

Opinion

The first issue to be considered is whether the trial court erred in denying plaintiffs’ motion for a temporary restraining order, preliminary and permanent injunction.

Under general principles of equity the party seeking preliminary injunctive relief must establish: (1) that he will be irreparably injured if the injunction is not granted; and (2) that he has no adequate remedy at law. (Oscar George Electric Co. v. Metropolitan Fair & Exposition Authority (1982), 104 Ill. App. 3d 957, 965, 433 N.E.2d 958.) Irreparable injury does not mean that the harm inflicted is beyond the possibility of repair or beyond compensation in damages or even that the injury is great. Rather, it denotes transgressions of a continuing nature, of such constant and frequent recurrence that redress cannot be had at law. (Sports Unlimited, Inc. v. Scotch & Sirloin of Woodfield, Inc. (1978), 58 Ill. App. 3d 579, 583, 374 N.E.2d 916.) Furthermore, for there to be an adequate remedy at law which will deprive equity of its power to grant injunctive relief, the remedy must be concise, complete, and provide the same practical and efficient resolution as the equitable remedy would provide. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 549, 370 N.E.2d 223.) When the issuance or denial of a preliminary injunction is appealed, the appellate court considers each substantive issue only insofar as is necessary to determine whether there has been an abuse of discretion (Oscar George Electric Co. v. Metropolitan Fair & Exposition Authority (1982), 104 Ill. App. 3d 957, 966, 433 N.E.2d 958), and whether the facts state with particularity the right to such an extraordinary remedy. (Mingare v. DeVito (1978), 67 Ill. App. 3d 371, 373, 385 N.E.2d 20.) The trial court’s findings will not be disturbed unless they are against the manifest weight of the evidence. Oscar George Electric Co. v. Metropolitan Fair & Exposition Authority (1982), 104 Ill. App. 3d 957, 966, 433 N.E.2d 958.

In the pending case, plaintiffs argue that injunctive relief should have issued because: (1) the trial court was limited to the verified pleadings, i.e., the complaint and answer, which presented no material issues of fact; (2) plaintiffs will be irreparably harmed because defendant’s action is illegal, contrary to law, and constitutes the payment of public funds; (3) State aid will be diminished and the Regional Board will be prejudiced against them; and (4) they have no adequate remedy at law. Defendant, on the other hand, maintains that this court is not limited to the verified pleadings, but, instead, has access to anything upon which the lower court relied in making its decision. In the alternative, defendant states that even if this court were limited to the pleadings as plaintiffs suggest, the trial court’s decision would still stand because plaintiffs did not establish the requisite elements for injunctive relief.

Our analysis of the question of injunctive relief need go no further than the pleadings. Thus, the question of which documents are properly before this court is irrelevant. Generally, we find plaintiffs’ allegations of irreparable harm to be either conclusory, speculative or of such infrequent a nature that redress could efficiently be had at law. Specifically, plaintiffs’ allegation that they will be harmed because defendant’s actions are illegal is nothing more than an ineffectual conclusion of law. While it is true that injunctive relief will lie to control the discretionary actions of public officials if fraud, corruption, oppression or gross injustice is shown (Rocke v. County of Cook (1978), 60 Ill. App. 3d 874, 875, 377 N.E.2d 287), a mere allegation of illegality such as plaintiffs’ does not rise to the level of necessary demonstrative proof. Second, plaintiffs’ allegation that defendant’s policy will prejudice the Regional Board is pure speculation and conjecture. As such, it provides no legal basis for injunctive relief. Lastly, plaintiffs’ allegation that they will be economically harmed through the loss of State aid is unsubstantiated and presents no real and immediate danger such as would warrant injunctive relief. Furthermore, plaintiffs have an adequate remedy at law available to them in the nature of a writ of mandamus which commands the officer or body to whom it is directed to perform some specific duty to which the petitioner is entitled by right. Although mandamus will not control discretionary performance by an official, it will lie to compel the performance of a duty purely ministerial in character. Holland v. Quinn (1978), 67 Ill. App. 3d 571, 573, 385 N.E.2d 92.

As support for their position that irreparable harm was established, plaintiffs rely on Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 370 N.E.2d 233, and Oscar George Electric Co. v. Metropolitan Fair & Exposition Authority (1982), 104 Ill. App. 3d 957, 433 N.E.2d 958. However, this reliance is clearly misplaced. In Bio-Medical, a Medicaid vendor filed suit to enjoin the Department of Public Aid from suspending the vendor from the Medicaid program. In affirming the trial court’s decision to grant a preliminary injunction, the appellate court stated that because 90% of vendor’s business involved Medicaid payments, “wrongful suspension from the Medicaid program, for any length of time, would cause damages of an uncertain magnitude.” (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 549.) In the instant case, there are only five students involved and plaintiffs have not shown that loss of State aid, if any, will either be felt immediately or have any noteworthy financial impact on plaintiffs. In Oscar George Electric Co., the court held that when a suit for injunctive relief is brought pursuant to express statutory authorization, there is no need to show either irreparable harm or lack of an adequate remedy at law. Plaintiffs, however, interpreted the holding to state that a showing of a violation of a statute by a public body obviates the need to prove irreparable harm in an action for injunctive relief. Because this is not the holding and because the School Code does not specifically authorize injunctive relief, Oscar George Electric Co. is of no persuasive value in the case at bar.

We next address the issue of whether interveners are properly before this court. In doing so, we will focus on two critical considerations: (1) whether the trial court retained jurisdiction over the issue of intervention after plaintiffs filed a notice of appeal; and (2) if so, whether the grant of intervention was proper, either as one of right or one of judicial discretion.

Regarding jurisdiction, plaintiffs argue that their notice of appeal filed on August 31, 1982, deprived the trial court of jurisdiction to enter any order affecting the appellate process. We disagree and find Cygnar v. Martin-Trigona (1975), 26 Ill. App. 3d 291, 325 N.E.2d 76, upon which plaintiffs mistakenly rely, to be dispositive of the issue. In Cygnar, defendant filed a motion for a preliminary and permanent injunction requesting that the judge of record be enjoined from participating in the case. The motion was denied and defendant then filed a notice of appeal. Before the appeal was heard, the cause proceeded and judgment was entered against the defendant. There was no notice of appeal filed from the judgment entered. Rather, the appeal concerned only the denial of injunctive relief. On appeal, defendant claimed that the notice of appeal divested the trial court of all jurisdiction in the case and the trial court incorrectly proceeded on the cause. In response, the appellate court stated:

“The defendant is in error in his belief that his filing of a notice of appeal on February 7, 1974, divested the trial court of all jurisdiction in this case. The filing of the notice of appeal vested jurisdiction in the appellate court and the appellate court can consider only questions existing when the notice was filed. We have no jurisdiction to consider subsequent proceedings. [Citation.] Of course, once the jurisdiction of the appellate court attaches by reason of the filing of a notice of appeal, the trial court is without jurisdiction to take any further action insofar as the notice of appeal affects the subject that the trial court might seek to act upon. [Citation.] The trial court retains jurisdiction, however, to hear and determine matters arising independent of and unrelated to that portion of the proceeding that pends on appeal. [Citation.] Thus, the filing of the notice of appeal vested jurisdiction in this court of a single issue-whether the trial court erroneously denied the motion for preliminary or permanent injunction. It had no effect whatsoever upon the merits of the case, did not bring those issues before this court, and we have no jurisdiction to consider them.” Cygnar v. Martin-Trigona (1975), 26 Ill. App. 3d 291, 293-94.

Similarly, in the pending case, on August 31, 1982, the trial court denied plaintiffs’ motion for a temporary restraining order and also denied the petition for leave to intervene filed by attorneys for the detachment area students, without prejudice, granting them five days within which to amend the petition. Plaintiffs filed a notice of appeal that afternoon. The notice stated, in pertinent part, that it is an “appeal from the Order of the Circuit Court of Cook County denying their Motion for a Temporary Restraining Order.” It did not address the issue of intervention. The following day, attorneys for the students appeared in court with an amended petition and leave to intervene was granted. Subsequently, plaintiffs filed an amended notice of appeal which included an appeal of the grant of intervention. As the facts clearly illustrate, the trial court’s denial of leave to intervene on August 31 was not a final determination which operated to fix and dispose of the petitioners’ rights. On the contrary, petitioners were expressly given leave to amend within five days. Therefore, because the denial of intervention was not final and appealable, jurisdiction regarding that issue remained with the trial court. Myers v. Myers (1977), 51 Ill. App. 3d 830, 837, 366 N.E.2d 1114.

Regarding the grant of intervention, the question of when a third party may intervene is governed by section 2 — 408 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 408, formerly Ill. Rev. Stat. 1981, ch. 110, par. 26.1), which provides, inter alia, that a party may intervene as a matter of right or by order of the court. The Code further provides that before a court grants discretionary intervention, “the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” Ill. Rev. Stat. 1981, ch. 110, par. 2 — 408(e).

In the case at bar, because the trial court neglected to state whether it was permitting intervention as of right or as a matter of discretion, we will address both situations. As a general principle, one who petitions to intervene must have an enforceable or recognizable right and more than a general interest in the subject matter of the proceedings. (Bishop v. Village of Brookfield (1981), 99 Ill. App. 3d 483, 487, 425 N.E.2d 1113.) We concede that the students residing in the detachment area have more than a general interest in the proceedings. However, after careful review of the School Code, we fail to find an enforceable right for nonresident students to attend out-of-district schools on a tuition-free or tuition-escrow basis. Defendant argues that if the petition for detachment is denied, the tuition checks currently held in escrow will be cashed and tuition will, in effect, have been paid. More importantly, however, is defendant’s stated position that if detachment is granted, residency will be retroactive to the beginning of the school year and the tuition checks will be returned. In our opinion, there is no authorization within the School Code for retroactive residency in a detachment situation. On the contrary, section 7 — 9 of the School Code (Ill. Rev. Stat. 1981, ch. 122, par. 7 — 9) expressly sets forth the effective date for residency changes when detachment is authorized. Therefore, because the right sought to be protected by intervenors is not provided by law, they have no legal interest, no enforceable or recognizable right which could be prejudiced by any judgment or order in the action in which they have petitioned to intervene. People ex rel. Byron v. Board of Trustees (1980), 90 Ill. App. 3d 88, 93-94, 412 N.E.2d 1188.

Furthermore, because the right to have students attend schools outside their district upon payment of nonresident tuition is discretionary with the individual school boards (Ill. Rev. Stat. 1981, ch. 122, par. 10 — 22.5), it, too, is not an absolute right of nonresident students. It is the discretionary right, within discriminatory limitations, of the individual school board. Thus, while we recognize that the students have a keen interest in this matter, that interest simply does not rise to the level of an enforceable right. The school board alone is the proper party before the court and, as the proceedings have thus far indicated, the board can adequately protect its rights and the students’ interests. Accordingly, we hold that intervention as of right is not warranted.

Having determined that the students do not have the requisite protectible interest to intervene as of right, we next consider whether the trial court abused its discretion in allowing intervention by leave of court. (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 408(b).) The purpose of intervention is to expedite litigation by disposing of the entire controversy in one action to prevent a multiplicity of actions. Consequently, the statutory intervention provisions are to be liberally construed. (Bishop v. Village of Brookfield (1981), 99 Ill. App. 3d 483, 487, 425 N.E.2d 1113.) It is our opinion that when the trial court granted petitioners the discretionary right to intervene, it did not unnecessarily delay the proceedings to the prejudice of plaintiffs. Instead, the court assured that all interested parties were given the opportunity to be heard in court. Therefore, we conclude that the trial court did not err or abuse its discretion when it granted the petition for leave to intervene.

Finally, it is important to note that this opinion addresses the sufficiency of the pleadings solely for the determination of injunctive relief, jurisdiction and leave to intervene. Because the substantive issues presented by plaintiffs have not been ruled upon by the trial court, we purposely refrain from expressing any opinion as to their merits. In re Marriage of Weiss (1980), 87 Ill. App. 3d 643, 650, 409 N.E.2d 329.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

LORENZ and MEJDA, JJ., concur.

      Defendant argues that plaintiff taxpayer has no standing to maintain this action because of an inherent conflict of interest resulting from his dual status as a taxpayer residing in District No. 225 and as Superintendent of District No. 219. Because this issue was not ruled upon by the trial court, it is not properly before this court and will not be addressed in this opinion. In re Marriage of Weiss (1980), 87 Ill. App. 3d 643. 650. 409 N.E.2d 329.

      Pursuant to the Revenue Act of 1939 (Ill. Rev. Stat. 1981, eh. 120, par. 482 et seq.), State school tax is assessed and collected on an annual basis (Ill. Rev. Stat. 1981, ch. 120, par. 635).


author: JUSTICE RIZZI

text:
    LUBAVITCH CHABAD HOUSE OF ILLINOIS, INC. et al., Plaintiffs-Appellees, v. THE CITY OF EVANSTON, Defendant-Appellant.—(Mary Clare Hendershot et al., Intervening Defendants-Appellants.)
    First District (3rd Division)
    No. 81—633
    Opinion filed December 30, 1982.
    Rehearing denied February 24, 1983.

      Jack M. Siegel, of Chicago, for appellant City of Evanston.
    Robert S. Atkins, of Chicago, for appellant Mary Clare Hendershot.
    Ash, Anos, Freedman & Logan, of Chicago (Joseph Ash, George J. Anos, and Lawrence M. Freedman, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

This is a declaratory judgment action brought by plaintiff, Lubavitch Chabad House of Illinois, Inc., an Illinois general not-for-profit corporation, against defendant, city of Evanston. Plaintiff sought a judgment declaring that Evanston should have allowed its application for a special use permit relating to certain property located in Evanston. Fourteen neighborhood property owners were permitted to intervene as defendants. The trial court found that plaintiff met all of the requirements for the issuance of a special use permit as set forth in Evanston’s zoning ordinance, and that the denial of plaintiff’s application for a special use permit constituted an impediment to the free exercise of religion as guaranteed by the first amendment to the United States Constitution. The trial court entered judgment in favor of plaintiff based upon its findings. We affirm.

Plaintiff is a religious body which observes, teaches and practices strict orthodox Judaism, including the observance of the rites and traditions of kashrut and the Sabbath as formulated in the Torah and Talmud. It owns a two-story building on property with a frontage of 40 feet and a depth of 220 feet at 2014 Orrington Avenue, in Evanston, Illinois. Plaintiff proposes to use the premises as a religious sanctuary. Primarily, plaintiff intends to serve Jewish students at Northwestern University, which is in close proximity and has, according to plaintiff’s witnesses, about 2,000 Jewish students.

Plaintiff’s services would include rabbinical counseling, group discussions and worship services on the Sabbath and Jewish holidays. Also', plaintiff would provide a limited number of sleep-in accommodations for Northwestern University students who do not reside within walking distance of the property. These sleep-in accommodations would be provided only on the Sabbath and Jewish holidays when all travel other than pedestrian travel is prohibited for strict orthodox Jews. There would not be a daily kitchen in operation on the premises, but kosher meals would be served to students participating in services on the Sabbath. Plaintiff would preclude more than 30 persons from taking part in worship services on the premises, which would be in accordance with an applicable provision of Evanston’s zoning ordinance.

Plaintiff was informed by Evanston’s Department of Inspections and Permits that its intended use of the property constituted a church as defined by the applicable zoning ordinance and, as such, it required a special use permit. A special use permit application was filed, and a full factual hearing was conducted by the zoning board of appeals. The zoning board of appeals found that plaintiff’s proposed use met the requirements of Evanston’s zoning ordinance, and it voted 4 to 1 in favor of granting plaintiff’s application for a special use permit. The zoning board of appeals’ recommendation was forwarded to the city council. The city council did not conduct a factual hearing, but it voted to overrule the recommendation of the zoning board of appeals by a vote of 12 to 6, and it denied plaintiff’s application for a special use permit. A motion to reconsider the denial was defeated by a vote of 10 to 9, with the vote of the mayor being used to break the tie vote of the aldermen.

A trial was had in the circuit court at which both sides introduced extensive testimony and exhibits. The evidence establishes that to the west of the subject property is a multifamily condominium building with 40 apartment units. On the adjacent south side of the property is Canterbury House, an Episcopalian facility. Approximately a block and a half north of the property is Lutheran House, a Lutheran facility. At 1935 Shermer Avenue, which is one block west and approximately one block south of the property, is Hillel House, a Jewish facility.

Canterbury House has year-round boarders. There was testimony that worship services are held and brunches are available for students of the Episcopalian faith. On occasion, large gatherings are held on the lawn. Lutheran House has weekly Sunday worship services, which are followed by a coffee hour and brunch. Other activities include Tuesday night study sessions, Wednesday night seminars and Sunday night dinners. Lutheran House is open from 9 a.m. to midnight. Hillel House, which operates under the auspices of the Hillel Foundation, conducts various social events and has some discussion group activities. It does not have a resident rabbi. Some worship services are conducted at Hillel House, but they are not the same strict orthodox worship services that are held by plaintiff.

Several months before plaintiff’s application for a special use permit was filed, Evanston approved a special use permit for the Hillel Foundation to operate a synagogue and rabbinical counseling facility at 2001 Orrington Avenue, which is across the street to the southeast of the subject property. However, the Hillel Foundation decided not to acquire the building, and the zoning board of appeals subsequently allowed the structure to be converted into two attached single-family dwellings. The Hillel Foundation’s activities are unlike plaintiff’s activities in that plaintiff observes, teaches and encourages strict orthodox observance of Hasidic rites, practices and customs, while the Hillel Foundation is association with the worship, practices, customs and social aspects of Judaism generally.

Except for evidence relating to plaintiff’s strict orthodox religious rites, practices and customs, the evidence at trial was typical of evidence that is found in zoning cases. This evidence included contradictory testimony as to the highest and best use of the property, the uses of property in the surrounding areas, the trend of development in the area, and the loss to plaintiff if the special use permit were denied as compared to the purported injury to the nearby properties if the permit were granted. This contradictory evidence is insufficient to demonstrate that the trial court’s finding that plaintiff’s application for a special use permit complied with Evanston’s zoning ordinance was improper. Where, as in this case, the testimony is contradictory, the weight to be accorded the testimony is a matter to be determined by the trier of fact, and the findings of the trier of fact are not to be disturbed unless they are against the manifest weight of the evidence. See City of Peru v. Nienaber (1981), 97 Ill. App. 3d 925, 927, 424 N.E.2d 85, 87; Stanek v. County of Lake (1978), 60 Ill. App. 3d 357, 361, 376 N.E.2d 743, 747; First National Bank v. County of Cook (1977), 46 Ill. App. 3d 677, 683, 360 N.E.2d 1377, 1382.

Under the circumstances, we conclude that the trial court’s finding that plaintiff met “all of the requirements for the issuance of a special use permit as set forth in the Zoning Ordinance of the City of Evanston” is not against the manifest weight of the evidence, and that the finding was proper and should not be disturbed.

We next address defendants’ contention that the judgment should be reversed because it is based on the trial court’s improper finding that the denial of plaintiff’s application for a special use permit constituted an impediment to the free exercise of religion. In support of this contention, defendants state that the “City’s sole interest [in denying plaintiff’s application] was to preserve the integrity of the Zoning Ordinance and the fine single-family character of the area in question.” Defendants also state that “[tjhis case is a simple zoning case in which the plaintiff happens to be a religious organization.” In effect, defendants argue that we should disregard the fact that the right which defendants seek to restrict is the free exercise of religion. However, we believe that we cannot overlook this fact because the standard of judicial review for this case is determined by the nature of the right assertedly threatened or violated rather than the power being exercised or the specific limitation being imposed. (Schad v. Borough of Mount Ephraim (1981), 452 U.S. 61, 68, 68 L. Ed. 2d 671, 680, 101 S. Ct. 2176, 2182.) In this regard, it is plain that the impact of Evanston’s refusal to grant plaintiff’s petition for a special use permit prevents plaintiff from the free practice of religion at this particular location, and so serves in some degree to limit the free exercise of religion. (See Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals (1962), 25 Ill. 2d 65, 71, 182 N.E.2d 722, 725.) Thus, defendants’ argument that we should ignore the fact that the right which defendants seek to restrict is the free exercise of religion is without merit.

Of course, the location of churches and other religious sanctuaries can be regulated by zoning ordinances in proper cases. (See South Side Move of God Church v. Zoning Board of Appeals (1977), 47 Ill. App. 3d 723, 365 N.E.2d 118; Coston Chapel A.M.E. Church v. Chaddick (1972), 9 Ill. App. 3d 321, 292 N.E.2d 215; St. James Temple of the A. O. H. Church of God, Inc. v. Board of Appeals (1968), 100 Ill. App. 2d 302, 241 N.E.2d 525.) However, in determining whether this is a proper case for such a restriction, we must take into account that the right of freedom of religion, and other first amendment freedoms, rise above mere property rights. In addition, first amendment rights and freedoms far outweigh considerations of public inconvenience, annoyance or unrest. Columbus Park Congregation of Jehovah’s Witnesses, Inc. v. Board of Appeals (1962), 25 Ill. 2d 65, 71, 182 N.E.2d 722, 725, citing Terminiello v. Chicago (1949), 337 U.S. 1, 4, 93 L. Ed. 1131, 1134, 69 S. Ct. 894, 896.

Here, the trial court specifically found that plaintiff’s proposed use meets all of the requirements for the issuance of a special use permit as set forth in Evanston’s zoning ordinance. Thus, based on this finding, there was no proper reason to deny plaintiff’s application for a special use permit. Yet, plaintiff’s application was denied. Under the circumstances, we cannot overlook the fact that there are other religious facilities in the immediate area offering services similar to those proposed by plaintiff. The only apparent difference between plaintiff’s proposed use and the uses made by the other religious associations is that plaintiff would use its facility to practice and teach strict orthodox observance of Hasidic practices and customs, and the other religious associations are using their facilities to practice and teach what the community may view as more palatable practices and customs. As the trial court stated in its memorandum opinion:

“The evidence clearly infers that the defendant City is not concerned with lot lines, requirements, side yard, front yard and rear yard sizes, off street parking, number of occupants and other land use restrictions applicable to real property regardless of ownership. Rather the evidence infers that the real fear of the defendant City and interveners is that the plaintiff will use its property to permit the plaintiffs to practice their ancient religion in the way they have conducted it for the past centuries, i.e. serving of kosher meals on high holidays to students at Northwestern, leaving those students stay overnight where their religious beliefs demand such and other practices.”

This discredits defendants’ statements that the “City’s sole interest [in denying plaintiff’s application] was to preserve the integrity of the zoning ordinance” and that “[t]his case is a simple zoning case in which the plaintiff happens to be a religious organization.” Moreover, after seeing and hearing all the witnesses and the evidence, the trial court specifically found that Evanston’s denial of plaintiff’s application “constitutes an impediment to the practice of Orthodox Jewish faith as practiced by members of Plaintiff and its followers ***,” in violation of their rights under the first amendment to the Constitution of the United States. For these reasons, we believe that there is no merit to defendants’ contention that the denial of a special use permit at this location was not an infringement of plaintiff’s right to freedom of religion.

Accordingly, we conclude that the findings of the trial court were proper, and we affirm the judgment in favor of plaintiff.

Affirmed.

McNAMARA and McGILLICUDDY, JJ., concur.