author: JUSTICE WILSON

text:
      In re ESTATE OF SARAH M. WILKENING, Deceased.-(Robert F. Bohne, Ex’r of the Estate of Sarah M. Wilkening, Deceased, Plaintiff-Appellant, v. Thord C. Nicholson, Defendant-Appellee.)
    First District (5th Division)
    No. 81—0746
    Opinion filed October 15, 1982.

      Lawrence A. Kerns and Associates, of Chicago, for appellant.
    Edward W. Barrett and Charles W. Siragusa, both of Chicago (Crowley, Barrett & Karaba, of counsel), for appellee.
   JUSTICE WILSON

delivered the opinion of the court;

This is a consolidated appeal arising out of the creation of joint tenancy accounts (Ill. Rev Stat. 1981, ch. 76, par. 2) at two separate Illinois banking institutions. Plaintiff, executor of the estate of Sarah M. Wilkening, appeals from judgments entered against it upon motions for judgment filed in each separate action by defendant, Thord C. Nicholson, pursuant to section 2 — 1110 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1110, formerly Ill. Rev. Stat. 1981, ch. 110, par. 64(3)). In each case, the trial court held that a fiduciary relationship did exist between Sarah and Nicholson; however, the existence of a fiduciary relationship between joint tenants did not in itself serve to rebut the presumption of donative intent and shift the burden of proof to the surviving joint tenant. Instead, it was incumbent upon the estate to prove that the relationship had been abused or that a confidence of decedent had been betrayed.

On appeal, the estate contends that: (1) proof of a fiduciary relationship between joint tenants rebuts the presumption of donative intent and shifts the burden to the surviving joint tenant to prove good faith and fair dealing; (2) the presumption of donative intent is overcome by the fact that Sarah held the disputed funds in trust and thus could not have had the requisite donative intent at the time the accounts were created; and (3) the accounts were created as convenience accounts for Sarah’s benefit with no intent to make a gift to Nicholson. For the reasons that follow we affirm the trial court’s judgment.

Sarah Wilkening, an elderly spinster, owned and resided on a 105-acre farm in Schaumburg, Illinois, as tenant in common with her unmarried brother, Walter. Sarah and Walter did not have a close brother-sister relationship and neither was socially active with friends or relatives.

In 1951, Thord Nicholson and his family purchased the farm adjacent to the Wilkening farm and lived there until 1974' at which time Nicholson sold his farm and moved to a nearby suburb. During the period from 1951 to 1974 Sarah and the Nicholsons developed a close friendship which continued until Sarah’s death. Sarah relied regularly on Nicholson to drive her places and she also discussed various personal business matters with him. In addition to helping Sarah, the Nicholsons visited her socially at least once a week and on a daily basis when she was hospitalized in January 1979. At no time did the Nicholsons receive any monetary compensation for their services.

In 1974, Sarah and Walter decided to sell their farm, and, in that regard, asked Nicholson to recommend an attorney. Nicholson recommended Francis Sweet, who had negotiated the sale of his farm earlier that year. Sarah asked Sweet to keep Nicholson informed of all correspondence regarding the real estate transaction. When asked to do so, Nicholson would explain certain aspects of the sale to Sarah and offer his advice. The record indicates, however, that Sarah fully understood the nature of the negotiations and merely sought Nicholson’s advice as a friend who had recently engaged in a similar real estate transaction. Nicholson received no compensation for the advisory services. Furthermore, although Sweet also drew up Sarah’s will and handled other business matters for Sarah, Nicholson was not privy to the particulars of those matters.

On December 3, 1977, Sarah asked Nicholson to drive her to Palatine Savings and Loan Association (PS&L), Palatine, Illinois, where she closed out one savings account and opened a joint account with Nicholson. During the same visit Sarah transferred an existing certificate of deposit to joint tenancy with Nicholson.

Subsequently, on December 19, 1977, Sarah and Walter executed a real estate sale contract with Thomas Origer, at which time Origer issued separate earnest money checks to Sarah and Walter, each in the amount of $50,000. The following day Sarah asked Nicholson to drive her to the PS&L where she opened another savings account as joint tenant with Nicholson, with right of survivorship, and not as tenants in common. The record indicates that Sarah understood the nature of joint tenancy accounts and completed the transaction without the aid or advice of Nicholson. Sarah deposited $40,000 of the $50,000 she had received from Origer into the savings account and received a cashier’s check for the remaining $10,000.

Sarah then asked Nicholson to drive her to Palatine National Bank (PNB) where she opened a checking account in her name only and another savings account as joint tenant with Nicholson, with right of survivorship, not as tenants in common. Sarah deposited $1,000 into the checking account and $9,000 into the joint tenancy savings account. The record indicates that the accounts at both PS&L and PNB were opened pursuant to written agreement in full compliance with statutory law.

On November 8, 1978, the Wilkenings and Origer entered into an agreement to extend the closing date of the sale of the farm. As consideration for the extension, Origer again issued separate checks to Sarah and Walter, each in the amount of $50,000. A few days later, Sarah asked Nicholson to drive her to PNB where she purchased a $50,000 certificate of deposit as joint tenant with Nicholson, pursuant to written agreement, with right of survivorship, not as tenants in common. The record indicates that Sarah understood the nature of the transaction and that Nicholson offered no advice or direction.

In January 1979, Sarah, age 82, suffered a stroke whereby she lost all ability to communicate. She was immediately hospitalized and died in the hospital on February 25, 1979, without ever having regained any communicative abilities. While Sarah was hospitalized, Walter located the joint account passbooks and gave them to Nicholson. Nicholson paid Sarah’s hospital bills from one of the accounts, made a deposit on a nursing home, and paid Sarah’s burial expenses. Approximately one month after Sarah’s death, Walter died of natural causes. At that time, Nicholson paid Walter’s property insurance premiums, his estate insurance and all his burial expenses with funds from one of the joint accounts.

Sarah’s will was admitted to probate on March 26, 1979. Nicholson was not a beneficiary under the will; however, he was designated successor executor. As surviving joint tenant, Nicholson filed suits against PNB, PS&L and Schaumburg State Bank seeking the funds in the joint accounts he owned with Sarah.

Opinion

The first issue presented for review is whether proof of a fiduciary relationship between joint tenants rebuts the presumption of do-native intent and shifts the burden to the surviving joint tenant to prove good faith and fair dealing.

The presumption of donative intent and the degree of proof necessary to rebut that presumption was set forth in Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 202 N.E.2d 470. In Murgic, the court held that an instrument creating a joint account pursuant to the statutes is presumed to speak the whole truth. One claiming adversely thereto cannot go behind the terms of the agreement unless it has been shown by clear and convincing evidence that a gift was not intended. The Murgic court was unequivocal in its holding that the burden does not shift to the party claiming under the agreement.

In the case at bar, the estate acknowledges Murgic as the first Illinois case to firmly endorse the prima facie presumption of donative intent. The estate argues, however, that the policy considerations of convenience and stability of ownership underlying the Murgic decision serve to undermine the concept of basic fairness when applied to a fiduciary relationship. Thus, the estate contends, the only equitable solution is to place the burden on the fiduciary to prove that all transactions were fair and in good faith.

In support of its position, the estate cites In re Estate of Trampenau (1980), 88 Ill. App. 3d 690, 410 N.E.2d 918 and several cases from out-of-state jurisdictions. The estate’s reliance on Trampenau, however, is clearly misplaced as it is factually distinguishable on a very critical point. The Trampenau case concerned a joint tenancy stock brokerage account in the name of decedent and respondent for which the decedent had executed neither an agreement to establish a joint tenancy nor signed a common signature card. The court found that the transaction had been unilaterally initiated and carried out by the respondent. Because of the unilateral circumstances surrounding the creation of the account, the court held that the burden was upon respondent to show by clear and convincing evidence that the purported gift was not the product of fraud or overreaching. In our case, the parties have stipulated that the joint tenancy accounts were created in compliance with Illinois statutory law and that written agreements were executed for each account. Furthermore, the record indicates that Sarah opened the accounts in person, of her volition, and without any advice or direction from Nicholson.

Factually similar to the case at bar are In re Estate of Foster (1969), 104 Ill. App. 2d 447, and In re Estate of Copp (1971), 132 Ill. App. 2d 974, which the estate attempts to dismiss as “misguided.” Both Foster and Copp addressed the interrelationship between the fiduciary and joint tenancy presumptions and discarded the fiduciary rule in favor of the presumption of donative intent.

In Foster, the surviving joint tenant, decedent’s grandnephew, dominated and clearly controlled the affairs of the decedent, an 85-year-old man in poor physical health. The court, however, held that evidence of the decedent’s overwhelming reliance on the grandnephew did not overcome the presumption of donative intent. In arriving at its decision, the Foster court stated:

“The mere fact that a fiduciary relationship may exist is not sufficient to rebut the presumption of donative intent inherent in joint tenancy accounts. A breach of that relationship must be shown so that it will be clear and convincing that a gift was not intended.
To hold that the existence of a fiduciary relationship changes the effect of the ruling in Murgic would be contrary to the reasoning on which that decision is based.” 104 Ill. App. 2d 447, 453.

In Copp, decedent, while hospitalized, asked her niece to obtain signature cards for her current checking and savings accounts so that she could convert them to joint tenancy accounts with the niece. At the time decedent signed the card, she made an oral statement to her niece in the presence of witnesses that she wanted her niece to have the funds which were in the accounts. She then gave the savings account book to her niece. Upon release from the hospital, decedent, age 90, lived in a nursing home until her death a short time later. Throughout decedent’s confinement, the niece visited her regularly and paid her bills from the joint checking account. After decedent’s death, the executrix brought a citation proceeding to bring the proceeds of the savings account into the estate. The checking account was not at issue. The question was whether the estate or the niece had the burden of proof regarding the issue of donative intent since the surviving joint tenant was in a fiduciary relationship with the decedent.

The Copp court focused on In re Estate of Dawson (1968), 103 Ill. App. 2d 362, 243 N.E.2d 1, In re Estate of Schneider (1955), 6 Ill. 2d 180, 127 N.E.2d 445, Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 202 N.E.2d 470, and In re Estate of Foster (1969), 104 Ill. App. 2d 447, and concluded that the existence of a fiduciary relationship between joint tenants did not in itself serve to rebut the presumption of donative intent and shift the burden of proof to the surviving joint tenant. The Copp court further stated that absent evidence of abuse or betrayal of confidence, the finding of a fiduciary relationship between the joint tenants does not rebut the presumption.

Similarly, in the case at bar, the estate has failed to establish a breach of the fiduciary relationship which existed between Sarah and Nicholson. Thus, without such proof and without persuasive policy arguments by the estate as to why this court should ignore other Illinois appellate court decision and transpose the recognized priority of presumptions, we hold that proof of a fiduciary relationship does not rebut the presumption of donative intent without evidence of abuse of that relationship or betrayal of a confidence.

The second issue for review is whether Sarah held the disputed funds in an express trust and thus could not have formulated the requisite donative intent at the time the accounts were created. The estate claims that Sarah and Origer (purchaser) intended that the earnest money payments be held in an express trust and thus Sarah could not have intended those payments to be a gift to Nicholson. Furthermore, the estate argues that Sarah, as trustee, did not have the grant of authority necessary to make a gift of trust funds. City of Jacksonville v. Bankers Life Co. (7th Cir. 1937), 90 F.2d 141.

The requirements of a valid express trust are: (1) intent of the parties to create a trust, which may be shown by a declaration of trust by the settlor or by circumstances which show that the settlor intended to create a trust; (2) a definite subject matter or trust property; (3) ascertainable beneficiaries; (4) a trustee; (5) specifications of a trust purpose and how the trust is to be performed; and (6) delivery of the trust property to the trustee. (Price v. State (1979), 79 Ill. App. 3d 143, 148, 398 N.E.2d 365.) If any of the necessary elements of a trust are not described with certainty, no trust is created. (Marble v. Marble (1922), 304 Ill. 229, 235, 136 N.E. 589.) An oral express trust of personal property is valid. However, one seeking to establish an express trust by parol evidence bears the burden of proving the trust by clear and convincing evidence. (Strilky v. Levy (1961), 33 Ill. App. 2d 91, 99, 178 N.E.2d 694.) Evidence to establish a trust must be unequivocal both as to its existence and to its terms and conditions. (Clemens v. Sandee Manufacturing Co. (1969), 114 Ill. App. 2d 322, 337, 252 N.E.2d 897.) In other words, the acts or words relied upon must be so unequivocal as to lead but to one conclusion, and if the evidence is doubtful or capable of reasonable explanation upon any other theory, it is not sufficient to establish an oral express trust. (Samuel v. Northern Trust Co. (1975), 34 Ill. App. 3d 500, 505.) In order to determine whether the parties intended to create an express or technical trust, we may look to their acts in the management and payment of the funds as well as to the receipt which was issued. (Schaack v. Reiter (1939), 372 Ill. 328, 332, 23 N.E.2d 714.) The findings of the trial court as to the existence of a trust will not be disturbed on review unless such findings are against the manifest weight of the evidence. Gossett v. Levy (1963), 39 Ill. App. 2d 447,188 N.E.2d 894.

In the pending case, the trial court found that the requisite element of intent to create a trust had not been established. In its effort to demonstrate intent, the estate relies on pertinent provisions of the sales contract and extension agreement executed by the Wilkenings and Origer to show that Origer expected the Wilkenings “to hold the earnest money in trust pending the final closing or any intervening termination of the contract.” The record reveals, however, that there were no discussions between the parties concerning any restrictions whatsoever on Sarah’s and Walter’s use of the earnest money which would substantiate the estate’s contention. In fact, Origer’s issuance of separate checks to Sarah and Walter is more indicative of an intent that the payments be under the individual control of Sarah and Walter, than an intent that the payments be restricted trust property. Furthermore, if Origer had intended that the earnest money be held in trust, he had ample opportunity during the contract negotiations to insist that a trust account be established by either the Wilkenings or their attorney.

Moreover, Illinois law clearly states that the intent to create an express trust must be evidenced by all parties to the transaction. (Price v. State (1979), 79 Ill. App. 3d 143, 398 N.E.2d 365; Samuel v. Northern Trust Co. (1975), 34 Ill. App. 3d 500.) Thus, evidence of Origer’s intent is not enough; Sarah must also have demonstrated the same requisite state of mind. The facts, however, do not establish the necessary state of mind. On the contrary, Sarah’s deposit of the funds into various joint tenancy accounts, including a certificate of deposit with early withdrawal penalties, were acts consistent with an intent to exercise her absolute control over the funds and not to hold them inviolate. In that same regard, Sarah’s decision to open new accounts into which only the earnest money funds were deposited is not conclusive evidence of an intent to segregate the funds and create a trust. Such an act can readily be construed as evidence of an intent to gift Nicholson with funds which he was instrumental in procuring. Lastly, the fact that Sarah did not withdraw any of the funds from the accounts in the short time before her death is indicative of nothing more than Sarah’s ability to meet her expenses from other financial sources.

In summary, the estate’s allegation that an express trust was created is not supported by the record before us. The alleged acts or words of intent to create an express trust are not unequivocal, and, in fact, readily admit of an interpretation that Sarah intended to make a gift to Nicholson. For these reasons, we find that the estate failed to establish by clear and convincing evidence the existence of an express trust.

As an alternative argument, the estate contends that if the real estate contract of sale and the extension agreement did not fulfill all of the legal requirements of an express trust, it is appropriate for this court to impose a resulting trust on the earnest money funds. This argument, however, was not timely raised. It is a well-established rule in Illinois that a matter raised for the first time on appeal will not be considered. (Snow v. Dixon (1977), 66 Ill. 2d 443, 362 N.E.2d 1052, cert. denied sub nom. Smith v. Snow (1977), 434 U.S. 939, 54 L. Ed. 2d 298, 98 S. Ct. 429; Marynczak v. D&L Transport Co. (1981), 94 Ill. App. 3d 381, 418 N.E.2d 972; Sorenson v. Fio Rito (1980), 90 Ill. App. 3d 368, 413 N.E.2d 47.) Because the estate failed to present this argument in the trial court, it cannot be raised in this appeal. However, assuming arguendo that the issue had been timely raised, it would still fail. By definition, a resulting trust is imposed by operation of law to effectuate the intent of the parties. (In re Estate of Wilson (1980), 81 Ill. 2d 349, 410 N.E.2d 23; Suwalski v. Suwalski (1968), 40 Ill. 2d 492, 240 N.E.2d 677.) As previously discussed, the estate did not establish the requisite intent necessary to create an express trust. Obviously, without the established intent, the court cannot impose a trust that operates to effectuate that intent. For these reasons, a resulting trust will not be imposed.

Finally, the estate argues that the presumption of donative intent is successfully rebutted by the fact that the joint tenancy accounts were established solely for the convenience of the donor. (In re Estate of Guzak (1979), 69 Ill. App. 3d 552.) In addressing this argument, we recognize that each case involving a joint tenancy account must be evaluated on its own facts and circumstances. A fact or circumstance having great significance in one case may have very little in another. In re Estate of Hayes (1971), 131 Ill. App. 2d 563, 268 N.E.2d 501.

As support for its position, the estate cites, inter alia, Dixon National Bank v. Morris (1965), 33 Ill. 2d 156, and In re Estate of Guzak (1979), 69 Ill. App. 3d 552. These cases, as well as the other cases cited in the estate’s brief, are readily distinguishable from the case at bar and do not lend credence to the estate’s argument.

In Dixon, the decedent sold her farm and deposited the proceeds into a joint account. At the time she opened the account, the decedent “was 73 years old, had poor eyesight, and could not read fine print.” In her deposition, the surviving joint tenant (appellant) stated that she had advised the decedent to add her name to the account so that if anything happened to the decedent, appellant could pay the bills. Further evidence of a convenience account was appellant’s statement to the executor’s attorney after decedent’s death that the joint account had been opened so that her mother’s bills could be paid if she were incapacitated. Based primarily on appellant’s statements, the Dixon court held that the presumption of donative intent had been rebutted by clear and convincing evidence that a convenience account had been established.

In the pending case, the record is silent as to any declarations by Sarah regarding the purpose for creating the joint tenancy accounts with the exception that she thought Nicholson was a kind man. In addition, the record reveals that Sarah was mentally competent and apparently read and understood all documents which she executed. Sarah never requested that Nicholson pay her hospital bills from the joint accounts. The estate, in its own argument, concurs that Nicholson received no direction from Sarah to use the funds in the joint accounts for her care. Paradoxically, the estate later argues that the accounts were established as convenience accounts for Nicholson “to carry out her [Sarah’s] affairs in the event of her illness.” Obviously, these are mutually exclusive allegations, and the estate’s argument fails for lack of clear and convincing evidence.

The court in In re Estate of Guzak (1979), 69 Ill. App. 3d 552, reached the same result on facts similar to those in Dixon. In Guzak, the surviving joint tenant testified repeatedly that the account at issue belonged to the decedent. Coupled with this declaration was the inequitable distribution of decedent’s assets that would result if the surviving joint tenant were entitled to the proceeds in the joint tenancy account. In the case at bar, Nicholson has consistently claimed ownership of the joint accounts. For example, when Walter died in March, approximately one month after Sarah’s death, Nicholson paid Walter’s property insurance premiums, his estate insurance and his burial expenses with funds withdrawn from one of the joint accounts. These withdrawals clearly demonstrate Nicholson’s belief that the funds were his to use as he deemed appropriate. Furthermore, upon Sarah’s death, Nicholson, as surviving joint tenant, would receive a mere one-quarter of the amount bequeathed to each of the primary beneficiaries under Sarah’s will. Two of the beneficiaries were sisters, one a nephew, and one the son of friends of Sarah. The fact that Nicholson was not included in the will is not conclusive of a lack of do-native intent by Sarah. Sarah may have decided that the balance in the joint accounts was sufficient to show her appreciation to Nicholson. In addition, no evidence was adduced at trial to warrant that Sarah’s entire estate be distributed to individuals with whom she had little or no contact in her later years, and that the only loyal and devoted friend she had be totally forgotten.

Based on its factual similarities to the case at bar, we find In re Estate of Hayes (1971), 131 Ill. App. 2d 563, 268 N.E.2d 501, to be persuasive of the argument that the accounts at issue were not established as convenience accounts. In Hayes, decedent, shortly before her death at age 60, transferred several savings accounts from her name only to joint tenancy with her longtime friend, Anna Blake. There was no evidence that the transfer was made in expectation of death. Until her death, decedent retained the passbooks. At no time did Anna make any deposits in the accounts. No withdrawals were made by either party. The joint tenancy agreements signed by decedent and Anna complied with relevant statutory law.

In an action to recover the funds in the joint tenancy accounts, the administrator alleged that the accounts were created solely for the convenience of the decedent and the funds were not intended as gifts to Anna.

The Hayes court held that the administrator had failed to present the clear and convincing evidence necessary to overcome the presumption of donative intent. In arriving at its decision, the court stated:

“Anna Blake’s statement that she considered the money in the joint accounts as Florence Hayes’ is not inconsistent with a gift having been made to her. The money had been accumulated by Florence and, although the joint account gave Anna the legal right to withdraw the money for her own purposes, it was both natural and righteous to view the money as Florence’s, to be kept and used by her as long as she had need of it.
Likewise, the fact that Anna did not inquire as to the amount in the accounts, did not obtain possession of the bankbooks and made no effort to withdraw the money from the accounts after Florence’s death, is not inconsistent with her belief that a gift had been made to her. She was neither prying nor grasping and cannot be censored for her restraint. Florence and Anna could not have manual possession of the bankbooks at the same time and possession by either was for the benefit of both.
*** [T]he donor was knowledgeable about joint accounts. *** The joint account was created at her request. Her relatives were not close to her; her friend, Anna, was. She placed her money, her care and her burial in Anna’s hands.” 131 Ill. App. 2d 563, 568-69.

We concur with the Hayes rationale. In the case at bar, evidence that Sarah retained control of both the savings account passbooks and certificate of deposit receipt and that she made all deposits into the accounts does not effectively rebut the presumption of donative intent. Testimony revealed that Sarah understood the effects of a joint tenancy account and that she opened all accounts voluntarily. Nicholson exercised no influence over her to include him as joint tenant. Sarah made no specific request that Nicholson use the funds to take care of her and pay her bills. Furthermore, Sarah was closer to Nicholson than she was to her own relatives and relied on him extensively during the negotiations for the sale of her farm. The facts presented demonstrate a degree of friendship between Sarah and Nicholson that would clearly warrant a gift of the joint tenancy funds as a final gesture of Sarah’s appreciation. We find that the trial court’s decision is supported by evidence and see no basis to find it was against the manifest weight of the evidence.

For the foregoing reasons we affirm the trial court’s judgment.

Affirmed.

SULLIVAN, P.J., and LORENZ, J., concur.

       On April 1, 1980, defendant, surviving joint tenant, filed separate complaints against Palatine National Bank, 80 L 7587, and Palatine Savings and Loan Association, 80 L 7586, seeking the balance in each of the accounts. Upon defendant’s motion, the suits were transferred to the probate division for hearing in conjunction with the pending probate of the estate of Sarah M. Wilkening. Thereafter, the estate was granted leave to intervene in each of the suits as counterclaimant against defendant and the respective banks.

       The closed savings account was a joint account with Charlotte and Monroe Meyer, neighbors that had recently moved out of state. Similarly, the original certificate of deposit had been owned by Sarah in joint tenancy with the Meyers.

       The funds on deposit in the Schaumburg State Bank are not made a subject of this appeal.

       The pertinent provisions of the contract and extension agreement are as follows:
      (contract) “3. Purchaser has paid $100,000 as earnest money to be applied on the purchase price — at the time of closing ***
      * ** **
      7. The earnest money shall be held by Walter Wilkening in the amount of $50,000 and Sarah Wilkening in the amount of $50,000 for the mutual benefit of the parties.
      RIDER 5 - If this contract is terminated without Purchaser’s fault the earnest money shall be returned to the Purchaser, but if the termination is caused by the Purchaser’s fault, then the earnest money shall be forfeited to the Seller.”

        (extension “2. Purchaser, upon the execution of this agreement will pay and deliver agreement) to Seller an additional $100,000 as earnest money ***
      * ** **
      Except as changed by the aforesaid paragraphs, all of the provisions of the contract between the parties executed under date of December 19,1977, shall continue to remain in full force and effect.”


source: Caselaw Access Project

author: JUSTICE WEBBER

license: Public Domain

text:
    BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES, Plaintiff-Appellant, v. ILLINOIS HUMAN RIGHTS COMMISSION et al., Defendants-Appellees.—(John Price et al., Defendants.)
    Fourth District
    No. 4—82—0224
    Opinion filed October 18, 1982.

      Kenneth G. Kombrink, of Dunn, Brady, Goebel, Ulbrich, Morel, Kombrink & Hundman, of Bloomington, for appellant.
    Tyrone C. Fahner, Attorney General, of Springfield (Jane Lynk, Assistant Attorney General, of counsel), for appellees.
   JUSTICE WEBBER

delivered the opinion of the court:

Plaintiff, Board of Governors of State Colleges and Universities (Board), filed in the circuit court of Sangamon County a petition for a writ of prohibition, seeking to prevent the defendants, Illinois Human Rights Commission (Commission) and certain of its administrative law judges, from proceeding with charges alleging unfair employment practices which had been filed by several employees of the Board. The circuit court denied the petition and this appeal followed. We affirm the denial.

The proceedings prior to entry into the circuit court straddled a change in the law and this adds some complexity to the case. Therefore, a brief explanation is in order. The Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, pars. 851 through 867) remained in effect until July 1, 1980, when the Human Rights Act (Ill. Rev. Stat. 1981, ch. 68, par. 1 — 101 et seq.) replaced it and several other laws not involved in this case. The former Fair Employment Practices Commission (FEPC), the Department of Equal Employment Opportunity, and the Human Relations Commission were supplanted by two new agencies, the Department of Human Rights (DHR) and the Human Rights Commission (HRC). Any matter pending before the former agencies was to be “assumed by the Department or Commission, as provided in this Act, at the same stage, or a parallel stage, of proceeding to which it had progressed prior to the effective date of this Act.” Ill. Rev. Stat. 1981, ch. 68, par. 9 — 102(A).

The events prior to the circuit court proceedings were submitted on a stipulation of facts. From it, it appears that defendant Price filed an unfair employment practice charge with the FEPC on November 9, 1979. An investigator conducted a fact-finding conference and wrote a report recommending that the charge be dismissed for lack of substantial evidence. FEPC sent Price a notice of dismissal of his charge on June 6, 1980. Under FEPC rules he was entitled to reconsideration and he made such a request on June 16, 1980. This request was pending when the Human Rights Act became effective on July 1, 1980. HRC treated it as a request for review as such step is known under the Human Rights Act.

The review process is outlined by statutory provisions and by rules promulgated by HRC. The statutes provide:

“Sec. 8 — 102. Powers and duties. In addition to other powers and duties prescribed in this Act, the Commission shall have the following powers:
* * *
(G) Decisions. Through a panel of three members designated by the Chairperson on a random basis, to hear and decide by majority vote requests for review and complaints filed in conformity with this Act and to approve proposed settlements.
* *
“Sec. 8 — 103. Request for Review. (A) Jurisdiction. The Commission, through a panel of three members, shall have jurisdiction to hear and determine requests for review of (1) decisions of the Department to dismiss a charge; and (2) notices of default issued by the Department.
In each instance, the Department shall be the respondent.
(B) Review. When a request for review is properly filed, the Commission may consider the Department’s report, any argument and supplemental evidence timely submitted, and the results of any additional investigation conducted by the Department in response to the request. In its discretion, the Commission may designate a hearing officer to conduct a hearing into the factual basis of the matter at issue.” Ill. Rev. Stat. 1981, ch. 68, pars. 8 — 102, 8 — 103.

The pertinent portion of the rules of HRC relating to review is:

“Section 4.1. Filing with Commission — & party may request review by the Commission of a decision by the Department to dismiss or default, by filing a request therefor with the Commission at its Chicago office within thirty (30) days of receipt of the Department’s notice of its decision. Such request may be accompanied by argument and supporting materials.
Section 4.2. Notice by Commission — The Commission shall notify the Department and other parties to the charge of the filing of a timely request for review. Notice to the Department shall be accompanied by a copy of the request. Only the Department and the party requesting review shall participate in any proceedings under this Article.
Section 4.3. Response by Department — Within thirty (30) days of receipt of the Commission’s notice of the filing of a request for review, the Department shall file a response with the Commission, serving a copy at the same time on the party filing the request. If the Department opposes the request, its response shall consist of a copy of the charge and any amendments thereto, the Department’s investigation report, the results of any additional investigation conducted by the Department and a statement of the Department’s position, including proposed findings to support the dismissal. If the Department does not oppose the request, its response may consist only of a statement of its position.
Section 4.4 Reply to New Matter— Whenever the Department’s response relies upon investigative findings or legal reasoning not contained in the original investigation report, the party filing the request may, within fifteen (15) days of service of the response, file a reply with the Commission, with service on the Department at the same time. Only replies which are limited to addressing such new matter will be considered by the Commission.”

In accordance with these procedures a lawyer for DHR filed a response on August 27, 1980, setting forth the Department’s view that the dismissal was erroneous and that the charge should be reinstated. A three-member panel of the Commission voted to vacate the dismissal on September 3, 1980, and issued an order to that effect, a copy of which was sent to Price and to the Board. DHR then issued a complaint against the Board and scheduled a hearing before an administrative law judge who denied the Board’s motion to dismiss the action.

The case of defendant Paden followed substantially the same course. Defendant Prueske has dismissed her charge. Paden filed with FEPC on March 28, 1979; it was dismissed for lack of substantial evidence on February 5, 1980; she requested reconsideration on March 10, 1980; after July 1, 1980, it was treated as a request for review; the Department’s response was submitted October 21, 1980, stating that the dismissal was erroneous; three days later an executive assistant of HRC issued an order vacating the dismissal; a copy of the order was sent to Paden and the Board; the Department then issued a complaint and the case was assigned to an administrative law judge.

It was further stipulated that the Board did not receive copies or notices of the investigator’s reports, the notices of dismissal, the requests for reconsideration, nor DHR’s responses. It was also stipulated that neither the former nor present statutes, nor the rules of the former nor present agencies required that the Board receive such copies or notices.

As previously indicated, the trial court denied the prayer of the petition and refused a writ of prohibition. On appeal the Board makes two principal points: (1) that both the FEPC and the HRC exceeded their statutory authority in promulgating rules for rehearing of dismissals, and (2) that the Board has been denied due process of law in being prevented from participating in the proceedings leading to the vacatur of the dismissals.

The FEPC rule under which the defendant employees requested reconsideration provided:

“Dismissal After Investigation — If after investigation of a charge, the investigative findings indicate that the charge is not supported by substantial evidence or that the Commission lacks jurisdiction of the charge, and this indication is concurred in by the Commission’s Executive Director or his designee, the Executive Director shall thereupon cause to be served upon the complainant a Notice of Dismissal. The Notice of Dismissal shall advise the complainant that the charge is recommended for dismissal, and shall be accompanied by a copy of the written investigation report. The Notice shall further advise that the complainant may object to dismissal of the charge and obtain consideration of the matter by the full Commission, by serving a demand therefor upon the Commission within thirty (30) days of the date of the Notice. If no such timely demand is served by the complainant upon the Commission, the charge shall be deemed dismissed as of the expiration of said thirty-day period, and the parties shall be so notified. In the event the complainant files a timely demand for reconsideration as herein provided, the matter shall be reevaluated by the Commission’s staff and submitted to the full Commission for determination. A complainant’s timely demand for reconsideration under this Section may be accompanied by such statement and/or evidence as the complainant may feel supports the charge.”

This was FEPC Rule 4.5, which has been supplanted by HRC Rule 4.1 et seq., which are set out above.

The Board’s argument is that the Fair Employment Practices Act •did not provide for any such procedure but provided only that the agency’s decisions were to be governed by the Administrative Review Act. Ill. Rev. Stat. 1979, ch. 48, par. 860.

The Board relies primarily on People ex rel. Olin Corp. v. Department of Labor (1981), 95 Ill. App. 3d 1108, 420 N.E.2d 1043, and Aliperto v. Department of Registration & Education (1980), 90 Ill. App. 3d 985, 414 N.E.2d 117, which say that an administrative agency may not review or reconsider its final decisions unless the enabling legislation provides that. As the court said in Pearce Hospital Foundation v. Illinois Public Aid Com. (1958), 15 Ill. 2d 301, 307, 154 N.E.2d 691, 695:

“[I]t has been consistently held that an administrative agency may allow a rehearing, or modify or alter its decision, only where authorized to do so by statute. [Citations.]”

In each of these three cases the administrative agency rendered a final decision and then reconsidered or was asked to reconsider it. This was not prescribed by the enabling legislation.

A primary focus of inquiry must be whether the reconsideration under FEPC Rule 4.5 is a final, or interlocutory, order. In our opinion it is interlocutory. The rule appears to be carefully drafted to avoid any appearance of finality; it is replete with references to recommendations for dismissal. It does not provide for dismissal itself unless a timely demand for reconsideration is made by the complainant. Dismissal when no demand for reconsideration has been made would, of course, be a final order, but it would be in favor of the employer who would have no cause for complaint under those circumstances. Until the FEPC, or its successor DHR, in fact issues a complaint against an employer, the entire matter remains in an investigatory stage; a final order, apart from the dismissal in the absence of request for reconsideration, could arise only out of an adjudication of the merits. To reconsider that order would require statutory authorization. (Pearce Hospital.) Anything prior to that stage lies within the competency of the agency.

Administrative agencies must be left free to devise their own procedures for the handling of their business. (See Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc. (1978), 435 U.S. 519, 55 L. Ed. 2d 460, 98 S. Ct. 1197.) Stofer v. Motor Vehicle Casualty Co. (1977), 68 Ill. 2d 361, 369 N.E.2d 875, dealt with a rule promulgated by the Director of Insurance prescribing uniform policies for fire and lightning insurance; the insureds challenged the provision in the standard form that all actions on a policy be brought within one year of the loss. The court first held that the legislature may constitutionally delegate authority to the Director of Insurance to prescribe uniform policies. The court then discussed whether the Director had interpreted that authority too broadly and held that he had not; rejecting the distinction between legislative acts and administrative acts for limning an agency’s rule-making power, the court said:

“Many of our early cases adhere to the notion that administrative rule making basically is interstitial, interpolating among the standards set by the legislature to fill in details and create a comprehensive regulatory scheme. [Citations.] Subsequent experience, however, with the administrative regulation of highly complex and technical subjects leads us to conclude that the administrative task necessarily differs substantially from the traditional model. *** In most cases, therefore, the administrator’s task is not merely to interpolate among broadly stated legislative prohibitions, but, rather, to extrapolate from the broad language of his enabling statute, and, using the regulatory tools given him by the legislature, to deal with the problems which the legislature sought to address.” (68 Ill. 2d 361, 370, 369 N.E.2d 875, 878.)

Stofer concluded that a delegation of authority must sufficiently identify the persons and activities subject to regulation, the harm to be prevented, and the means available to the agency to prevent the harm.

We conclude that FEPC Rule 4.5, and the successor HRC Rules 4.1 through 4.4, do not create any new remedy nor expand the agency’s jurisdiction and therefore are within the agency’s general rule-making power.

The Board has also raised questions of compliance with the rules, assuming arguendo that the rules are valid. We have examined each objection and find no merit in any of them.

First, it is claimed that the full FEPC did not act on the requests as provided in Rule 4.5. At the appropriate time Rule 4.5 was no longer in existence but had been superseded by the HRC Rules which require only a panel of three to act upon such requests.

Second, it is claimed that Paden’s request was not timely. The notice given to her provided a return date of March 11, 1980, and her request for reconsideration was filed March 10, 1980. While the method of calculating the return date is unclear from the record, it is that date which must govern.

Third, it is claimed that FEPC Rule 4.5 makes no provision for consideration of “responses” and therefore DHR’s responses to the requests of Price and Paden should not have been considered. As with the first objection above, Rule 4.5 does not govern, but rather HRC Rule 4.3 which was effective at the time. It makes specific provision for a response by DHR. The Board apparently feels that the responses here — agreement with the complainants — were inadequate; even if this be true, as pointed out above it is not an adjudication on the merits, only an investigatory step.

Fourth, it is claimed that in Paden’s case an order of an executive assistant rather than a panel of the HRC was improper. HRC Rule 4.6 provides in substance that if DHR does not oppose the request for review, the executive assistant is specifically authorized to enter the order and is admonished to do so promptly.

The Board’s second principal contention is that it was denied due process when it was excluded from the dismissal review process. It is admitted that the Board did not receive copies of the investigators’ reports, the notices of dismissal, the requests for reconsideration, or DHR’s responses; it did not participate in the reconsideration reviews and was notified only that the charges had been reinstated.

The Board does not make precisely clear just what type of participation it believes it should have had. It admits that full adversary safeguards are not necessary, but insists that the review of dismissals is part of the adjudicatory function and therefore it should share in the proceedings. We have already stated our opinion that until a complaint is in fact issued by DHR, the proceedings are investigatory and not adjudicatory.

This distinction is well settled in the law. Investigation is not to prove a charge but to determine whether one should be lodged; adjudication determines whether the charge has been proved. The distinction was well summed up in Genuine Parts Co. v. Federal Trade Com. (5th Cir. 1971), 445 F.2d 1382, 1388:

“An investigation discovers and produces evidence; an adjudication tests such evidence upon a record in an adversary proceeding before an independent hearing examiner to determine whether it sustains whatever charges are based upon it. A party under investigation may not contest the discovery and production of evidence in the same manner he may contest the use of that evidence in an adjudication by proper objection, by the introduction of other evidence, and the other safeguards traditional to an adversary proceeding under our system. An investigation does not determine guilt or innocence; that is done at the adjudication, and thus it is there the whole plethora of due process rights designed to insure the fairness of such a determination come to bear.”

The Human Rights Act carefully preserved this distinction by creating two agencies: the DHR, which is investigatory, and the HRC, which is adjudicatory. DHR’s duties begin when a charge is filed and end when it files a complaint with HRC. HRC’s duties begin when the complaint is. filed by DHR and assigned to a hearing officer, and end when it issues its order. The request for review presents one of the few instances when DHR and HRC work on the same matter at the same time, but it involves only the agencies; neither the complainant nor the employer take part in the process, except that the complainant may submit supplemental evidence. There is no disposition of the underlying charge and hence no adjudication. It is somewhat analogous to a circuit court’s dismissal of an information for lack of probable cause. Nothing prevents the State’s Attorney from seeking an indictment from a grand jury on the same essential facts. Neither the information nor the indictment adjudicate the underlying charge.

As the Fifth Circuit remarked, due process attaches at the adjudicatory stage. The disappointment of the employer over the reinstatement of charges is understandable, but nothing prevents a vigorous defense at the administrative hearing, and the final safeguard is judicial review pursuant to section 8 — 111. Ill. Rev. Stat. 1981, ch. 68, par. 8 — 111.

The order of the circuit court of Sangamon County is affirmed.

Affirmed.

GREEN, P. J, and LEWIS, J., concur.


author: JUSTICE UNVERZAGT

text:
    HONEYWELL, INC., d/b/a Micro Switch, et al., Plaintiffs-Appellants, v. AMERICAN MOTORISTS INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 82—32
    Opinion filed October 5, 1982.
    James R. Shoemaker, of Turner & Shoemaker, of Rockford, for appellants.
    Mark W. Boswell, of Reno, Zahm, Folgate, Lindberg & Powell, of Rockford, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is a controversy between two insurance companies. Hartford Accident and Indemnity Company insured Micro Switch — a division of Honeywell, Inc. (hereinafter Honeywell) under a comprehensive general liability policy. American Motorists Insurance Company (hereinafter AMIC) insured a food vending company by the name of Ogden Corporation (hereinafter Ogden) under another comprehensive general liability policy. The Hartford policy was for $1,000,000 and by its terms specifically acknowledged that it was primary insurance,

“except when stated to apply in excess of or contingent upon the absence of other insurance. When this insurance is primary and the insured has other insurance which is stated to be applicable to the loss on an excess or contingent basis, the amount of the company’s liability under this policy shall not be reduced by the existence of such other insurance.”

The AMIC policy provided as follows with regard to other insurance:

“The insurance afforded by the policy is primary insurance, except that when this insurance and any other valid and collectible insurance apply to the loss on the same basis, this insurance shall be excess of such other insurance and shall not contribute with such other insurance.”

(While there is further language in the two policies under their respective “other insurance” clauses, we believe the language quoted above from the two policies is controlling.)

In October 1967, Ogden and Honeywell entered into a contract whereby Honeywell gave Ogden the right to install and maintain automatic food vending devices on Honeywell’s premises at Freeport, Illinois. In 1972, a separate paragraph of this agreement was added which provided that Ogden would make Honeywell an additional insured under Ogden’s AMIC policy, with minimum limits for bodily injury of $50,000 for each person and $100,000 for each accident. The agreement did not specify that such insurance adding Honeywell as an additional insured should be primary as to Honeywell’s already existing Hartford policy or that the Hartford policy would be excess under the provisions of this contract. In accordance with this additional requirement, Ogden’s liability insurer, AMIC, issued an endorsement to the AMIC policy (which was issued in October 1975), stating that Honeywell is included as an additional insured under the AMIC policy covering Ogden and showing the term of the AMIC policy as July 5, 1972, to July 5, 1975. This certificate shows the limit of liability of the AMIC policy as $1,000,000, although the agreement only required limits up to $50,000.

On February 2, 1973, Thomas Dowling, an employee of Ogden, was properly on the premises of Honeywell servicing the vending machines Ogden had installed on the Honeywell premises when he slipped and fell on some steel plates near the “slop” sink which had been left near the sink by certain Honeywell employees. Dowling claimed injury as a result of the fall and sued Honeywell. Honeywell tendered the defense of the suit to AMIC, insurer of Ogden, but that company declined to defend. Honeywell then contended that under the indemnity clause of the 1967 contract between Honeywell and Ogden, the claim should be arbitrated as between Ogden and Honeywell. The arbitrator in the arbitration proceedings held that the indemnity agreement between the parties did not relieve Honeywell from the consequences of its own negligence and since he found Honeywell to be negligent, arbitration was denied.

The case then proceeded to trial and Honeywell was found negligent and judgment was awarded to Dowling in the amount of $74,220 against Honeywell. Hartford paid this judgment under its policy insuring Honeywell and then sued AMIC under its subrogation rights to recover the amount of the judgment. Hartford’s theory is that the certificate of insurance issued by AMIC, including Honeywell as an additional insured, made AMIC the primary carrier, rather than Hartford. The trial court held that because of the wording of the “other insurance” clauses in the respective policies, Hartford’s policy was primary, and it granted AMIC’s motion for summary judgment against Hartford and denied Hartford’s motion for summary judgment.

In this appeal, Hartford contends that the trial court’s approach to the problem as between the two policies was over-simplistic and that the court should have concentrated on the 1967 agreement between Ogden and Honeywell, which showed an intention between the parties for Ogden to insure Honeywell against any and all claims which might arise out of Ogden’s operations on Honeywell’s premises. Hartford says that even conceding that the language of the two policies makes Hartford the primary carrier and AMIC only an excess carrier, inasmuch as the insurance certificate issued by AMIC on behalf of Ogden showed an intention to make Ogden primarily liable for any injury arising out of the food vending operations, AMIC, Ogden’s insurance carrier, should assume the loss as the primary insurer. Hartford invokes the recent decision of this court in Truck Insurance Exchange v. Liberty Mutual Insurance Co. (1981), 102 Ill. App. 3d 24, in support of this contention. In that case, Brown Truck Leasing Corporation leased a truck to Viking Pump Company. The lease agreement provided that Brown Truck Leasing was to furnish liability insurance to protect Viking Pump in the amount of $500,000. The lease also provided that Viking would indemnify and save Brown harmless from any claim in excess of $500,000. Truckmen’s policy contained a clause stating its insurance was excess as to loss covered by any other insurance. Viking had its own policy with Liberty Mutual, which provided as to “other insurance” that “ ‘this insurance shall be excess insurance over any other valid and collectible insurance available to the insured.’ ” (102 Ill. App. 3d 24, 26.) An accident occurred and claim was made against Viking Pump. The trial court held that Brown Truck Leasing Corporation’s liability carrier was primarily liable. Brown’s carrier, Truck Insurance Exchange, sought a declaratory judgment that Viking Pump’s carrier, Liberty Mutual, was either the primary carrier or at least should contribute on a pro rata basis.

The trial court held that the two excess clauses were incompatible but that the intention of the lease agreement was clear and that the intent was for Brown’s insurance carrier to provide primary coverage; therefore, the trial court held that Truck Insurance Exchange’s policy should assume the loss.

In the present case, Hartford contends that the intention of the parties should govern, as it did in the Truck Insurance Exchange case, and that the language of the two “other insurance” clauses should not control over that intention.

We reject this argument. In the first place, the Truck Insurance Exchange case is not apposite to the present case because in that case the two “other insurance” clauses were incompatible with each other. Giving effect to both of them would have left the insured without coverage under either policy. In such a case, if there is no other clue by which to decide whether one company or the other is primarily liable, the courts usually have held the companies liable on a pro rata basis according to the respective policy’s limits or according to the amount of premium paid by each. (Annot., 69 A.L.R. 2d 1122-24 (1960).) Otherwise, the policies share liability on an equal basis. See Continental Casualty Co. v. Travelers Insurance Co. (1967), 84 Ill. App. 2d 200.

However, our case is not controlled by Truck Insurance Exchange because the two “other insurance” clauses are not incompatible. If read together the two clauses simply show that the Hartford policy is primary and the AMIC policy is excess. Therefore, ■ it is not necessary to disregard the “other insurance” clauses and to resort to the intent of the underlying agreement between the two insured parties to determine whose carrier is primary. Nor can we disregard the two “other insurance” clauses and simply apply a pro rata apportionment. In Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71, the Illinois Supreme Court discussed several theories as to what should be done when there are “excess” or “escape” clauses in each of two policies. The court noted, for example, that the policy issued earliest is held under one theory to be primary or, under other theories, that the policy issued to the primary tort feasor or the policy of the insurer which more specifically covered the risk involved should be held to be primary. Our supreme court in Putnam disregarded all these theories and resolved the case on the basis of the actual language of the two “other insurance” clauses of the respective policies. The Putnam court specifically rejected the theory that where there are two “other insurance” clauses the two policies should be pro rated (the “Oregon” rule) and resolved the case on the basis of the language of the Hartford policy’s “other insurance” clause making it primary in view of the “excess” provisions of the policy of New Amsterdam Casualty Co.

Adopting this theory, as seems to us proper in view of the majority opinion in Putnam, it is clear that in this case the Hartford policy should be held primary, in accordance with the trial court’s decision. While Hartford contends that “intention” as shown by the underlying agreement between the two insured parties should govern and that such an approach would clearly show an intent as between Ogden and Honeywell that Ogden’s insurer should be primarily liable in the fact situation at hand, we are not at all sure that the “intent” theory, if adopted, would produce a different result than the trial court arrived at in this case. It seems to us that it was probably not the intent of Ogden to furnish insurance relieving Honeywell of its tort liability for an injury to-an Ogden employee which occurred on Honeywell premises by reason of the negligence of Honeywell employees. That Honeywell was culpably negligent and Dowling, Ogden’s employee, not contributorily negligent, has been established by the previous litigation. Had Dowling been negligent and caused injury to a third party by his negligent conduct in the course of his food vending or maintenance operations on Honeywell’s premises, clearly it was the intent under such circumstances for Ogden’s policy to protect, rather than Honeywell’s policy doing so, but that is not what happened. An Ogden employee was injured by Honeywell’s negligence on Honeywell premises, and there does not seem to be any rationale for excusing Honeywell from liability.

We think the present case is clearly distinguishable from Truck Insurance Exchange v. Liberty Mutual Insurance Co. (1981), 102 Ill. App. 3d 24, and comes within the principles announced in Putnam v. New Amsterdam Casualty Co. (1970), 48 Ill. 2d 71. Accordingly, we affirm the judgment of the circuit court of Winnebago County.

Judgment affirmed.

HOPF and VAN DEUSEN, JJ., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOSEPH SUNDAY, Defendant-Appellee.
    Second District
    No. 81—802
    Opinion filed October 18, 1982.
    Fred L. Foreman, State’s Attorney, of Waukegan (Phyllis J. Perko, of State’s Attorneys Appellate Service Commission, of counsel), for the People.
    Steven B. Lunardi, of Lunardi, Roux & Svehla, of Waukegan, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

This is an interlocutory appeal taken by the State pursuant to Supreme Court Rule 604(a) (85 Ill. 2d R. 604(a)) from a pretrial order granting, in part, defendant’s motion to quash a search warrant and suppress evidence seized thereunder. The only issue before us on appeal is whether the trial court erred when it found the search warrant was improperly executed.

The defendant, Joseph Sunday, was charged in a three-count information with unlawful possession of more than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1979, ch. 56½, par. 704(e)), unlawful possession with intent to deliver more than 500 grams of a substance containing cannabis (Ill. Rev. Stat. 1979, ch. 56½, par. 705(e)), and unlawful possession of a firearm without having a firearm owner’s identification card (Ill. Rev. Stat. 1979, ch. 38, par. 83 — 2). On June 4, 1981, defendant filed a motion to quash search warrant and to suppress evidence illegally seized which essentially alleged there was no probable cause for the issuance of the search warrant and the search warrant was insufficient on its face. On September 10, 1981, defendant filed a second motion to quash search warrant and to suppress evidence illegally seized together with three affidavits which alleged improper execution of the search warrant and intentional misrepresentations in the complaint for search warrant. An evidentiary hearing was held on these motions on September 18, 1981, at which the following testimony relevant to the issue before us on appeal was adduced.

At 1:40 a.m. on January 17, 1981, a warrant was issued, based on the complaint for search warrant of Officer Robert Smith, a police officer of the Chicago Police Department assigned to the narcotics section of the organized crime division, commanding the search of both the person of the defendant, Joseph Sunday, and his residence, and to seize any marijuana and narcotics discovered as a result of its execution. At approximately 3:30 or 4 a.m. that same day Officer Smith and four other officers went to the defendant’s residence, located at 26140 W. Park View in Antioch, to execute the warrant. At that time the defendant, his common-law wife, Maxine Gambony, and her 12-year-old daughter, Kimberly Gambony, were asleep in the home which they rented. According to Maxine Gambony, one of the officers, who was in uniform and was holding a gun at his side, rang the doorbell and informed her, when she opened the door, that someone had just broken into the van which was located in front of the residence and perhaps had stolen something from it. The officer told her to get the man of the house and have him come outside to determine whether the purported thief had stolen anything from the vehicle. After she relayed the message to the defendant, he went to the front door, where he encountered an officer, who had his pistol drawn at his side. The officer informed him that an individual had broken into the van and asked the defendant to accompany him to the vehicle.

Maxine Gambony further stated that after the defendant spoke with the officer, the defendant got dressed, while the officer remained outside by the door. After the defendant departed the residence, she closed the door, without locking it, awakened her daughter, and looked out the window but was unable to see anything. The door remained closed for about five minutes before it was reopened. After the five-minute hiatus, three officers, two of whom were in uniform, walked into her home without knocking and told her to get her daughter and sit on the couch. She did not recall whether they had their weapons drawn or whether they told her anything about a search warrant. However, on cross-examination, she admitted that it was possible that they did mention the search warrant.

The defendant testified that as he was walking toward the van, the officer who was accompanying him twisted his arm, threw him against the van, spread his legs, and searched him. When he arrived at the van, the defendant noticed that Officer Robert Smith was standing against the vehicle with his arms and legs spread. Another officer had a gun drawn. The defendant also observed three or four other individuals at the van, two of whom were not dressed in uniform. After they searched him, the officers grabbed each of the defendant’s arms and brought him into the house. Upon arriving there, the defendant noticed that a couple of officers were inside the residence but stated that he had not seen them enter the house. According to the defendant, he was not advised at any time — not at the door, not outside by the van, and not in the house after the search— that the officers had a search warrant for him or his house. During cross-examination, however, the defendant acknowledged that, given the fact that he was still sleepy and not fully aware of what was transpiring during the early morning incident, it was possible that the officers had told him that they had a warrant to search the house. He also related that the officers were “right with” him when the officers entered the house; that when they entered the residence after having been outside, the door was ajar; and that the officers just pushed it open and walked in.

Officer Robert Smith testified that when the two uniformed officers went to the defendant’s house to tell him that someone had been caught breaking into the van, he (Smith) remained outside with his back toward the house and his hands and feet on the van in a spread-eagle position, because he was supposed to be a prisoner (apparently representing the person whom the police allegedly caught breaking into the van). Although he had his back to the house which was about 20 to 25 feet away, the officer occasionally looked over his shoulder. On those occasions he noticed that the officer at the door did not enter the residence but rather waited outside; that the officer did not have his gun drawn at the door; and that the officer did not draw his weapon during the walk to the van, at least not during the first one-third of the distance, which was the only part of the journey the witness observed.

According to Smith, when the defendant was approximately three feet from him, the officer turned around, produced the search warrant, showed the defendant his badge, and informed the defendant that he was a policeman with a warrant to search the defendant and his house. He then “patted down” the defendant; did not otherwise search him; and neither he nor any of the other officers placed the defendant against the van. The officers and the defendant proceeded to the defendant’s residence. Smith, who was accompanied by the defendant, was the first officer to enter the house, and the others followed him inside. The door of the house was open three-quarters of the way. Once inside the house, Smith gave the defendant the warrant, told him to read it so he fully understood it. Although the defendant looked at the warrant, the officer did not know whether the defendant read it.

Officer Smith further testified that normally he would knock on the door and then break it down with a sledge hammer if he received no answer. He did not follow normal procedure in this case because it was 3:50 in the morning, he was aware that a child lived in the house, and he did not want anyone to get hurt. None of the other officers testified at the hearing.

The trial court denied the motions to quash the search warrant on all grounds alleged except paragraphs three and four of the second motion which was directed to the execution of the search warrant and the failure of the officers to “knock and announce” and the absence of exigent circumstances to forego this requirement. The trial court in orally stating his decision made factual determinations that exigent circumstances were not shown; that the officers created a subterfuge to get defendant outside the house; that the officer directly and unequivocally announced he was a police officer, said that he was there for the purpose of a search, and produced the search warrant; that there was no force used in entry into the house; that there was force used to physically secure the defendant outside the house; that the officer “patted down” the defendant rather than searched him; and that the door to the house “may well have been” somewhat open. The court then granted the defendant’s motion on the apparent basis that the force used to secure the defendant was equivalent to force used to enter a house which, otherwise, may not be employed without the officers first knocking and announcing their purpose.

The State’s sole contention on appeal is that the police substantially complied with the “knock and announce” rule prior to executing the search warrant and, hence, the subsequent search of the defendant’s premises was a reasonable one under the fourth amendment to the United States Constitution (U.S. Const., amend. IV), given the particular facts and circumstances of the present case. More specifically, the State asserts that the police lawfully lured the defendant from his house and into their presence to facilitate execution of a search warrant directed against his person; that the police were justified in using a reasonable amount of force to restrain and search or “pat down” the defendant outside the residence; and that the police were not obligated to knock on the door again before entering the residence with the defendant or to repeat the announcement of their authority and purpose to the defendant’s common-law wife and her daughter before entering the defendant’s home. The defendant argues that the trial court correctly found there was force used in the execution of the warrant and has not asserted on appeal any other basis for quashing of the search warrant as was urged below in its motion.

Illinois has no statutory requirement that an officer must announce his authority and purpose before entering a building to conduct a search pursuant to a search warrant. Section 108 — 8 of the Code of Criminal Procedure of 1963 provides that “[a]ll necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant.” (Ill. Rev. Stat. 1979, ch. 38, par. 108 — 8.) The State, however, does not challenge the existence of the “knock and announce” rule in Illinois as set forth in People v. Ouellette (1979), 78 Ill. 2d 511, 401 N.E.2d 507; see also People v. Conner (1979), 78 Ill. 2d 525, 401 N.E.2d 513. The purpose of this rule is to notify the person inside of the presence of police and of the impending intrusion, give that person time to respond, avoid violence, and protect privacy as much as possible. (People v. Ouellette (1979), 78 Ill. 2d 511, 518, 401 N.E.2d 507; People v. Seybold (1981), 98 Ill. App. 3d 236, 239, 423 N.E.2d 1132.) An exception to the “knock and announce” rule has been created when exigent circumstances exist. (See People v. Ouellette; People v. Conner.) However, we are not here concerned with that exception as the court below found no exigent circumstances and the State does not seek to justify its action on that basis.

Instead, we must determine whether the subterfuge used to cause the defendant to come to the door and exit the premises coupled with the subsequent announcement of the officers’ purpose and authority while the defendant was forcibly detained, is in compliance with the rule. Case law in Illinois under a similar factual situation is sparse. In People v. Bargo (1978), 64 Ill. App. 3d 1011, 382 N.E.2d 83, a police officer dressed as a postman gained entry into a home after ringing the doorbell and informing the defendant he had a package for her. The trial court found that only after entry was gained did the officer then announce his office. In reversing the trial court which had suppressed the evidence on the basis of the manner of execution of the search warrant, the appellate court held that absent the use of force, the employment of a subterfuge to gain entry to a home to execute a search warrant is not prohibited by section 108 — 8 and other decisions of the courts of this State. (64 Ill. App. 3d 1011, 1013, 382 N.E.2d 83.) Similarly, the use of deception to lure a defendant from his home in order to effectuate an arrest "without a warrant has been held not to violate fundamental fairness. See People v. Moore (1981), 105 Ill. App. 3d 264, 434 N.E.2d 300.

In decisions of other States, an entry obtained by some form of ruse without the use of force has been held to be reasonable and not to infringe upon the fourth amendment’s prohibition against unreasonable searches and seizures. (State v. Iverson (Iowa 1978), 272 N.W.2d 1; State v. Williams (Mo. App. 1976), 539 S.W.2d 530; State v. Valentine (1972), 264 Or. 54, 504 P.2d 84, cert. denied (1973), 412 U.S. 948, 37 L. Ed. 2d 1000, 93 S. Ct. 3001; People v. Veloz (1971), 22 Cal. App. 3d 499, 99 Cal. Rptr. 519; see also 2 W. LaFave, Search and Seizure sec. 4.8(b), at 127-28 (1978).) The majority of Federal circuits which have discussed the issue have held that an entry by ruse does not breach the Federal statute. (See United States v. Hutchinson (8th Cir. 1973), 488 F.2d 484; United States v. Beale (5th Cir. 1971), 445 F.2d 977; see also State v. Iverson (Iowa 1978), 272 N.W.2d 1 (Federal cases listed therein).) The fact that the person is just outside the dwelling at the time the officers identify themselves and read him the warrant is immaterial, and substantial compliance with the “knock and announce” rule is found. State v. Koberstein (1972), 8 Or. App. 307, 493 P.2d 176; Beckers v. Superior Court (1970), 9 Cal. App. 3d 953, 88 Cal. Rptr. 602; see also Mills v. State (Okla. Crim. App. 1979), 594 P.2d 374.

In the case at bar, the trial court stated that he found the officer announced his office, stated their purpose, and produced a search warrant. There was no forced entry into the dwelling, no violence occurred during the entry into the dwelling, and there was no damage to property. The trial court also stated that the door to the dwelling “may well have been” somewhat open. It is evident too that the other occupants of the house besides defendant were aware that the officers were outside the house and might return once their investigation, albeit a ruse unknown to the occupants, was completed. Under these circumstances, the purposes of the “knock and announce” rule are satisfied, and the entry by ruse here is clearly less intrusive than the typical breaking situation. While there is evidence from the defendant and Maxine Gambony that one of the officers had a weapon drawn at his side when he first knocked at the door, we do not regard this fact under all the circumstances present as being a show of force by which entry was gained. This evidence was contradicted by Officer Smith. Even if the weapon was drawn, entry was not gained as a result of the presence of the weapon but its display would only have been a part of the ruse used to deceive the defendant into believing a crime was being investigated outside the dwelling. Furthermore, we will not impose any requirement under these facts that the officers “knock and announce” their purpose a second time to the occupants after having already informed the defendant who was the male head of the household of their office and purpose. (See Beckers v. Superior Court (1970), 9 Cal. App. 3d 953, 88 Cal. Rptr. 602.) Thus, we conclude that the purposes of the “knock and announce” rule were satisfied under the particular facts here and the subterfuge used to get the defendant out of the premises does not offend the fourth amendment.

Finally, we must also determine whether the method by which defendant was detained and searched or “patted down” outside the dwelling employed such force as to itself violate one of the very purposes of the rule which is to avoid violence. The trial court stated that “there was an amount of force used to physically secure the person of the defendant.” However, the court did not specifically find whether it believed defendant’s version that his arm was twisted and he was thrown up against the van and held, his legs spread apart, and searched while one officer had his gun drawn, or Officer Smith’s testimony that no weapons were drawn, no force used, and the defendant was only “patted down.” Given the trial court’s comments and defendant’s burden to establish that the search and seizure was unlawful in a motion to suppress a search warrant (Ill. Rev. Stat. 1979, ch. 38, par. 114 — 12(b)), we conclude from the evidence that the defendant here who was named as the person to be searched in the search warrant was reasonably detained and searched or “patted down.” A person authorized to be searched pursuant to a search warrant must necessarily be reasonably restrained in order for police officers to execute the search of his person as authorized by the search warrant. (People v. Wolski (1980), 83 Ill. App. 3d 17, 25, 403 N.E.2d 528, cert. denied (1981), 450 U.S. 915, 67 L. Ed. 2d 339, 101 S. Ct. 1356.) Moreover, it has been held constitutionally permissible to detain an occupant of the premises who was found on the steps of a house described in a search warrant to be searched for contraband. (See Michigan v. Summers (1981), 452 U.S. 692, 69 L. Ed. 2d 340, 101 S. Ct. 2587.) Thus, there is clear authority to reasonably detain the defendant here. Having previously established probable grounds for a search warrant to search defendant’s person, the officers have a concomitant right to initially or contemporaneously with the search “pat down” the person named in the warrant for weapons.

Even were we to accept defendant’s version that his arm was twisted and he was thrown up against the van to be searched, this circumstance, although not to be condoned, cannot be construed as a violent occurrence. Nor is it directly associated with an unannounced entry into a house which is one of the bases of the “knock and announce” rule. While we do not find the force used to detain and search or “pat down” the defendant unreasonable here, each case must be taken on an individual basis considering the subterfuge employed and the reasonableness of the method of entry in light of the purposes of the “knock and announce” rule.

For the foregoing reasons, the order of the circuit court is reversed and the cause remanded for trial.

Reversed and remanded.

SEIDENFELD, P.J., and HOPF, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
      In re MARRIAGE OF JOAN BENTIVENGA, Petitioner and Counterrespondent-Appellant, and VINCENT BENTIVENGA, JR., Respondent and Counterpetitioner-Appellee.
    Second District
    No. 81—673
    Opinion filed September 16, 1982.

      J. Scott Bonner, of Neumark and Bonner, and Arthur M. Berman, of Kirsh and Berman, Ltd., both of Chicago, for appellant.
    William D. Serpico and David M. Zerante, both of Serpico, Novelle, Dvorak and Navigato, of Chicago, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Joan Bentivenga appeals from a judgment dissolving her marriage to Vincent Bentivenga, Jr. She challenges the classification and distribution of property, the award of attorney’s fees, denial of maintenance, and denial of support for a child who would be living at home while attending college.

The parties were married January 28, 1961. They have two children, Mark (age 20 at the time of trial) and Scott (age 19 at the time of trial).

The husband, an attorney, began work as an Assistant State’s Attorney in Cook County shortly after the marriage. He held the position for 12 years, after which he worked for the Cook County Sheriff’s Office for five years. He was elected a Circuit Court Judge of Cook County in 1976 and occupied that position at the time of trial. At the time of trial he was 44 years old and in good health. His annual gross salary was $42,500 in 1977 and 1978, and $50,500 in 1979 and 1980; his take-home pay at the time of trial was $2,445 per month.

The wife worked as a secretary for a real estate appraiser before the marriage and for about seven months thereafter. In 1975 she started working part-time as a legal secretary, becoming a full-time legal secretary about three months before the trial. She has some college credits but no degree. Her 1980 earned income was $9,966.92, and her estimated gross income for 1981 was $14,000. She was 45 and in good health at the time of trial. During the marriage she was primarily responsible for doing household chores and taking care of the children.

The parties disagreed over the extent to which the wife and her now-deceased father helped the husband obtain his job as Assistant State’s Attorney, the extent of her assistance with his campaign for the bench, and the amount of time they spent entertaining “business guests” at home.

The marital home was purchased in August 1968 at a price of $45,000. The husband made a downpayment of $15,000 from his own funds and obtained loans of $15,000 each from his aunt and father; the loans were combined into one mortgage instrument. At the time of trial, $9,600 remained due on the amount owing to his aunt; after he made one or two monthly payments of $103 to his father, they agreed that rather than repay the remainder the husband would deposit the money into a savings account to finance his children’s education.

At the time of trial, the wife and the two children lived in the family home; the husband had been living in a rented condominium since late 1980.

The wife inherited $13,000 from her father during the marriage. She gave $8,000 to her husband, who deposited the money into a savings account, and spent the rest on furniture and household improvements.

At the time of trial Mark was attending Loyola University in Chicago and living at home with the wife. Scott graduated from high school in June 1981 and attends Notre Dame University.

The wife filed her petition for dissolution, and -the husband counterpetitioned for dissolution. A judgment for dissolution was entered August 4, 1981.

I. Property Division

The wife contends that the marital home and the furniture are overvalued, and that she receives $112,905 as against the husband’s $135,273. She argues that her share is insufficient for her future financial needs, and awarding her less than one-half of the marital property is inequitable because of her relatively low earning potential and opportunity for acquisition of capital assets, considering the length of the marriage and her contribution as a homemaker.

The trial court has broad discretion under the statute (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)) to apportion marital property in “just proportions.” (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37.) An abuse of discretion occurs only when no reasonable man would take the view adopted by the trial court. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127.

We find no abuse of discretion here. While the award does not appear generous, the decision is justified under the statute in view of the husband’s greater contribution to the marital estate, the wife’s greater share of property immediately capable of producing income, and the substantial value of the property awarded to the wife. By her own calculation the wife received $112,905 worth of marital property, or 42% of the total, contrasted with the husband’s 53%. By the court’s calculation she received 46%, her husband 49%. Most of this property is in the form of cash, and invested at a return reflecting the fair earning power of money (see In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 1130) would produce over $10,000 per year, which, combined with the wife’s gross salary of $14,000 per year, would give her a gross annual income of over $24,000. This does not appear plainly inadequate for her support.

Concluding that the husband deserved a greater share of the marital property because of his greater contribution towards its acquisition, the court could properly take into account that all of the interest in the pension fund resulted from the husband’s salaries, the savings accounts were built up largely through his earnings, and he made a down payment of $15,000 on the marital home from nonmarital funds. While the wife contributed a part of her inheritance to the marriage, substantially contributed as a homemaker, contributed to the extent to which she advanced the husband’s career, which was disputed, and contributed the earnings from her employment, the court could properly conclude that the husband’s contribution was greater and that this justified his greater share in the distribution.

The wife places considerable reliance on In re Marriage of Smith (1979), 77 Ill. App. 3d 858. There the court reversed an even split of the proceeds from the sale of the marital home with a net worth of $55,000-$70,000, where the husband had been earning $50,000 a year before his voluntary retirement and later $200 a day, whereas the wife had earned little money during the marriage, and had little more than a high school education. Smith is distinguishable in that the wife there received far less marital property in absolute terms than here and had less earning potential and, furthermore, there was apparently no great disparity in the parties’ contributions to the marital property which consisted primarily of the home. While each case must rest on its facts, there is no requirement that the property distribution be even, where one of the spouses contributes a greater amount to the marital assets. In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 1130; In re Marriage of Woodward (1980), 83 Ill. App. 3d 253; In re Marriage of Borg (1981), 96 Ill. App. 3d 282; In re Marriage of Swanson (1981), 100 Ill. App. 3d 824.

II. Interest on Nonmarital Property

The wife next argues that the classification of the interest on the husband’s nonmarital First Federal of Chicago savings account amounting to $7,801 as nonmarital property was in error. We agree. We conclude that interest earned during the marriage on a spouse’s nonmarital savings account is marital property. The intent of the Marriage and Dissolution of Marriage Act is to classify income from property acquired before the marriage as marital property. (Ill. Ann. Stat., ch. 40, pars. 503(a)(5), (a)(6), Historical and Practice Notes, at 462-63 (Smith-Hurd 1980); In re Marriage of Reed (1981), 100 Ill. App. 3d 873, 877.) Under the circumstances there should be an equal distribution. The wife would then be credited with an additional $3,900.50 for interest earned during the marriage from the nonmarital account.

III. Maintenance

The wife next argues that the trial court erred in refusing to require the husband to pay her maintenance. Section 504 of the Marriage and Dissolution of Marriage Act provides, as material, that if the spouse lacks sufficient property to provide for reasonable needs, is unable to support himself through appropriate employment or is otherwise without sufficient income, maintenance may be awarded. (Ill. Rev. Stat. 1979, ch. 40, pars. 504(a)(1), (2) and (3).) The necessity for maintenance is a decision within the sound discretion of the trial court which will not be reversed unless contrary to the manifest weight of the evidence. (In re Marriage of Lovejoy (1980), 84 Ill. App. 3d 53, 59.) As we have noted, it is reasonable to assume an annual gross income of $24,000 for the wife. We thus conclude that the denial of maintenance was not an abuse of discretion in the light of the wife’s fairly substantial anticipated gross income. In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, relied on by the wife, is distinguishable. In Brenner, the wife received an insubstantial amount of income producing marital property, virtually her sole source of income was her job which provided an inadequate amount per month. Similarly in In re Marriage of Smith (1979), 77 Ill. App. 3d 858, the wife received relatively little income producing property, was not employed at the time of the trial and had last worked part-time at $2.50 per hour. In a case somewhat similar to this on the facts, In re Marriage of Edelstein (1980), 82 Ill. App. 3d 574, 577, the court upheld the denial of maintenance to a wife who earned $17,500 per year, had $1,700 in a savings account and had been self-supporting since the parties’ separation. Overall, the denial of maintenance in this case was not shown to be an abuse of discretion.

IV. Child Support

The wife argues that the trial court abused its discretion in not ordering the husband to provide her with child support to cover Mark’s living expenses for the time he will be living at home in Chicago while attending college in that city.

The record is not absolutely clear as to the scope of the trial court’s order insofar as payment for college expenses is concerned. The original explanation of the judgment by the trial court does not define “college education” nor does the decree itself. The decree does deny the wife’s request for support for the children during their college education; in her petition for reconsideration she maintained that the decree does not provide for Mark’s living expenses while he attends college.

The decision to award money for the education of a child attending college is within the trial court’s discretion and for abuse to be found the record must indicate that the financial resources of both parents, the standard of living during the marriage, and the child’s financial resources were such as to require a party to provide the education. (In re Marriage of Gardner (1980), 85 Ill. App. 3d 1004, 1006.) However, we are not sure from the record how the court ruled on the wife’s petition for reconsideration in which she contended that the decree did not provide for Mark’s living expenses while he was attending college. While the court denied the petition, it may well have been on the basis that the decree took this into account as college expenses and that child support as such was denied.

The other child is living away at college and his living expenses are paid under the decree. Whether the obligation on the part of the husband “to pay all expenses incident to said college education” entitles the wife to reimbursement for the educational expenses of Mark while he is living at home and going to school in Chicago is not clear. As a matter of fairness, it would appear that the fact that Mark chose a probably less expensive way to go to school should require that some reimbursement be made for the expense of his living at home. In In re Marriage of Pauley (1982), 104 Ill. App. 3d 100, the trial court ordered the husband to pay for the college expenses of two children, one of whom was living at home while attending college. The court noted that the mother was entitled to reimbursement for the educational expenses of her children and held that these expenses included reasonable living expenses for both children. We therefore remand this question to the trial court since the record contains insufficient evidence of Mark’s living expenses.

V. Pension

The wife argues that the trial court’s evaluation of the husband’s interest in his pension funds (Illinois Judges Retirement System (IJRS) and the Cook County pension fund (CCF)) was against the manifest weight of the evidence. The basis of the dispute is the testimony of the wife’s expert "witness' Arthur Tepfer, who testified that the husband could substantially increase the present value of his interest in the IJRS by transferring his years of service under the CCF.

Tepfer testified that although the present value of the husband’s interest in the CCF was $26,357 and that of the interest in the IJRS was $41,671, the husband could raise the latter’s value to $88,641 by withdrawing $16,904 from the CCF and transferring it to the IJRS. Tepfer stated that he relied on the provisions of the Judges Retirement System (Ill. Rev. Stat. 1979, ch. 108½, par. 18 — 101 et seq.), and the Retirement Systems Reciprocal Act (Ill. Rev. Stat. 1979, ch. 108½, par. 20 — 101 et seq.)

Tepfer did not specify the particular provision he relied upon to value the conversion option. While section 20 — 122.1 of the Reciprocal Act formerly provided for a conversion option similar to the one described by Tepfer (see Ill. Rev. Stat. 1973, ch. 108½, par. 20 — 121), this was amended in 1975 by Public Act 79 — 782 (1975 Ill. Laws 2434 — 36), effective September 5, 1975, and nothing else now in the Retirement Systems Reciprocal Act contains a similar provision. (Ill. Rev. Stat. 1979, ch. 108½, par. 20 — 101 et seq.) The present act provides for the continuity and preservation of pension credits between specified pension plans (par. 20 — 101), generally provides a scheme for continuing the adjusted time credits under the various plans, effective on retirement (par. 20 — 117), and provides for the nonduplication of pension credits (par. 20 — 120). Thus, a judge upon retirement receives no more than the 85% that he is entitled to under the IJRS (par. 20— 124), with a refund of contribution to another fund whose credits are not used (par. 20 — 120). We find no basis for raising the present value of the IJRS pension by reference to so-called conversion rights.

Here, the trial court properly accepted the testimony as to the present value of the CCF and the IJRS, and properly rejected the calculation of conversion factors which were without proper foundation.

VI. Attorney fees

The wife argues that the trial court abused its discretion in not requiring the husband to contribute more than $5,000 towards her attorney fees and costs in addition to the $500 he had already paid. She argues that the award leaves her with an outstanding obligation of about $5,600, and that the husband’s greater ability to pay requires that he pay a larger share of her fees and costs.

An award of attorney fees is justified where the spouse seeking relief demonstrates financial inability to pay and the ability of the other spouse to do so. Financial inability exists where payment would strip the person of the means of her support and undermine her economic stability. The trial court’s decision with regard to attorney fees will not be disturbed absent a clear abuse of discretion. In re Marriage of Sanborn (1979), 78 Ill. App. 3d 146, 152.

The wife’s assets are substantial, and it does not appear that requiring her to pay her outstanding obligations will strip her of her means of support or undermine her economic stability. In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, relied on by the wife, is inapposite as the wife there received relatively little marital support and the husband was originally ordered to pay only $500 of her $6,627.50 in fees and costs. Here the parties’ incomes are substantially unequal, but the wife has received more marital property capable of producing income in the near future. The husband was required to pay a substantial part of the wife’s fees, and the trial court decision is not an abuse of discretion. See In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 618-19.

We therefore affirm the judgment in respect to the apportionment of the property, denial of maintenance, award of attorney fees and the valuation of the pension funds. We reverse the judgment insofar as it classified the interest on the nonmarital savings account as nonmarital property. The cause is remanded to the trial court to credit one-half of the interest on the nonmarital savings account in the First Federal Savings and Loan of Chicago to the wife. Insofar as the wife claims that the trial court erred in not ordering the husband to provide her with child support to cover Mark’s living expenses for the time he will be living at home while attending college we affirm the trial court; however, as the record is not clear as to the portion of the amount requested which is incident to the college education provisions in the decree, we remand this question to the trial court with directions to determine the issue in accordance with this opinion.

Affirmed in part, reversed in part and remanded.

NASH and HOPF, JJ., concur.

       The other 5% is the $13,977 set aside for the children’s college education.