author: Mr. JUSTICE McNAMARA

text:
      In re MARRIAGE OF BETTY HELLWIG, Petitioner-Appellant and Cross-Appellee, and WERNER HELLWIG, Respondent-Appellee and Cross Appellant.
    First District (3rd Division)
    Nos. 80-182, 80-755 cons.
    Opinion filed September 16,1981.

      Thomas J. Karacid, Kenneth A. Helmin, T. Gregory Mieczynski, and Gregory P. Guth, all of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Bentley, DuCanto & Doss, Ltd., of Chicago (Owen L. Doss and Paul J. Bargiel, of counsel), for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Betty Hellwig, and respondent, Werner Hellwig, were married in 1942. Dissolution proceedings were instituted in 1977 and, on September 12, 1979, the trial court entered a judgment dissolving the parties’ marriage and disposing of contested matters of property, maintenance and attorney’s fees. The division of marital property was later modified by the court sua sponte. The court also appointed a sequestrator to collect assets, funds and property belonging to respondent. Petitioner appeals from certain portions of the property disposition, the award of rehabilitative maintenance and the denial of attorney’s fees. Respondent cross-appeals from other aspects of the property distribution, the maintenance award and the appointment of a sequestrator. In a separate action, respondent appeals from an order allowing petitioner prospective attorney’s fees for defense of the cross-appeal.

At the time of trial, petitioner was 55 years old and respondent was 60. The parties had two adult children. During most of the marriage, petitioner was a homemaker. She had no special skill, training or education, and is not currently employed. She recently underwent several surgeries. Respondent was a tool and die maker and a proprietor of such a business. In 1974 he entered semiretirement. Early in the marriage, respondent developed a sole proprietorship called Hollywood Tool & Gauge Company. In 1954 and 1956, respondent formed Hudson Tool & Die Corporation and Hollywood Perforator, Inc., respectively, and the sole proprietorship ended. Respondent was president of Hollywood until about eight years ago and presently acts as a consultant. He has always been Hudson’s president and continues to be so employed at a salary of $300 per week. Beginning in 1983, he will receive a monthly pension of $99.40 from Hudson. Petitioner played no active role in either company. Although the parties entered the marriage with limited assets, they steadily prospered and in later years enjoyed an affluent lifestyle. In the last few years, they spent $200,000 annually on living expenses, travel, gifts and items of personalty.

The trial court classified the principal marital assets as follows: a marital residence in Lincolnwood, owned in joint tenancy, having a fair market value of $255,000 and a mortgage of $12,000; household furniture, furnishings and fixtures, 6,750 shares of Hollywood, all but 100 of which were held in respondent’s name; 129% shares of Hudson, held in respondent’s name; respondent’s undivided one-half interest in property located in Rosemont, from which monthly rental income of $800 is derived; petitioner’s vacant lot in Hawaii purchased for $3,000; and various stocks, jewelry, furs and other items of personalty in their respectives names or possession.

The final judgment found that petitioner was entitled to one-half of the marital assets as her just proportion and that respondent had dissipated marital assets worth $415,545. The marital property was allocated as follows: Petitioner was awarded 3,375 shares of Hollywood; 64 3/4 shares of Hudson; sole and exclusive possession of the marital residence, free and clear of all encumbrances, until she attained age 65, remarried, or either party died, at which time the home would be sold and the net proceeds divided equally between the parties; the household furniture, furnishings and fixtures; one-half of respondent’s property in Rosemont; an automobile leased by Hollywood; the cash amount of $50,000; and the balance of the assets in her name or possession. Respondent was awarded the remaining 3,375 shares of Hollywood and 64 3/4 shares of Hudson; the remainder of his interest in the Rosemont property; and the balance of the assets held in his name or possession. The court did not ascribe a specific value to any item of marital property. Each party was held responsible for his or her own attorney’s fees. Concluding that petitioner was not then qualified to support herself and was entitled to reasonable maintenance, the court also awarded petitioner rehabilitative maintenance for five years in a sum equal to 40% of respondent’s net monthly income.

Two days later, the trial court sua sponte suspended the effect of, and scheduled a hearing to clarify, the provision awarding the marital residence to petitioner. At this hearing, the court sua sponte modified the provision. As modified, petitioner was required to pay the balance of the mortgage, utilities, ordinary maintenance, taxes, insurance and other obligations incident to possession of the marital residence. At the same hearing, the court also sua sponte modified the provision awarding 50 percent of the shares of Hollywood and Hudson. Under the modification, these shares were to be held as security for respondent’s payment to petitioner of 40 percent of the value of respondent’s ownership interest in Hollywood and Hudson; the value of respondent’s ownership interest was not set forth. Although this disposition represented a departure from the 50 percent division of stock contained in the court’s original pronouncement, memorandum of judgment and final judgment order, the court announced that giving the shares to petitioner only as security was always its intention. The parties then filed their respective notices of appeal.

Thereafter, respondent filed a petition to set an appeal bond and stay the enforcement of the judgment, and petitioner sought a change of venue. The trial judge recused himself and the cause was transferred to Judge Charles J. Fleck. Petitioner then requested and, after an evidentiary hearing, was granted $6,800 in attorney’s fees for defense of respondent’s cross-appeal. Respondent’s appeal from the allowance of such fees followed.

We initially consider the issues concerning the disposition of the parties’ marital property under the guidance of the relevant factors set out in section 503(c) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1979, ch. 40, par. 503(c).) The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. In re Marriage of Smith (1980), 90 Ill. App. 3d 168, 412 N.E.2d 985.

Petitioner first contends that the trial court abused its- discretion in modifying the final judgment so as to award her 50 percent of the shares of Hollywood and Hudson only as security for respondent’s payment of 40 percent of the value of his ownership interest in those corporations. She argues' further that the equal, in-kind division of the corporate stock originally ordered is the only distribution which is in just proportions. Clearly, a trial court has jurisdiction for 30 days after entry of a final judgment to modify the judgment sua sponte in order to do justice between the parties. (Welch v. Ro-Mark, Inc. (1979), 79 Ill. App. 3d 652, 398 N.E.2d 901.) Our examination of the record convinces us, however, that the modification in the present case was erroneous.

As even respondent acknowledges, the court erred in failing to determine the value of respondent’s ownership interest in the two corporations. Except where the parties are awarded percentage interests in a particular item, valuation of marital property is necessary to reach a just apportionment. (In re Marriage of Boone (1980), 86 Ill. App. 3d 250, 408 N.E.2d 96; In re Marriage of Donley (1980), 83 Ill. App. 3d 367, 403 N.E.2d 1337.) In the absence of evidence of such valuation, there is no basis upon which the reviewing court can determine the propriety of the directed property distribution. See In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488; see also In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006.

Here, two experts offered disparate estimates of the value of respondent’s shares of Hudson. One witness estimated the value of the stock at $800,000 while the other gave the value of $550,000. The court did not fix the value of respondent’s Hudson stock. Moreover, absolutely no evidence was adduced as to the value of the Hollywood stock. Consequently, there is no basis upon which to ascertain the amount owed to petitioner or to determine whether the property distribution was in just proportions.

Furthermore, awarding the stock merely as security for payment, where no amount, manner or time for payment is set forth is tantamount to an illusory division. (See In re Marriage of Gehret (1978), 41 Colo. App. 162, 580 P.2d 1275.) The efficacy of a property distribution results from placing in the hands of each party a definable or ascertainable portion of some attributes of ownership. (In re Marriage of Gehret.) In distributing property, courts should seek a high degree of finality so that parties can plan their future with certainty and are not encouraged to return repeatedly to the courts. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) Under the present order, respondent retained all the incidents of ownership while petitioner was left with only the vague expectation that at some time, in some manner, she would receive some unascertained amounts of money.

While we thus agree with petitioner’s contention that the modified disposition of the stock is erroneous and must be reversed, we are not in accord with her further position that an equal division of the stock itself is the only equitable distribution. Where property is not susceptible to division in kind or such division is inequitable, the court may, in its discretion, award the property to one spouse subject to an obligation to pay the nonacquiring spouse for the interest lost. Such repayment may be arranged by offsetting other marital property or by cash payments, either in a gross amount or installments. (In re Marriage of Lee.) Division of a business or close corporation would appear particularly disadvantageous where it would necessitate ongoing business association between the parties and where, as here, the evidence reflects animosity between the parties or an inability of the parties to cooperate on major business or financial matters. See generally In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730.

Arguing that the corporations accounted in large measure for the parties’ lavish lifestyle, petitioner urges that awarding her a cash amount instead of the stock itself would thwart the Act’s purpose of providing for post-marital support through property distribution rather than maintenance. (See Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 376 N.E.2d 1382.) The record reveals that although the corporations did not cover the parties’ basic living expenses, certain benefits did accompany ownership: Hollywood owns a condominium in Hawaii which the parties rented at a price of $2,400 per year; Hollywood leased automobiles for the parties’ use; the companies paid membership costs in several country clubs. While such benefits may be considered in compensating the nonacquiring spouse for his or her interest lost, we do not believe they, in themselves, compel an in-kind distribution.

From our review of the record, we cannot say that awarding the corporate stock to respondent subject to an obligation to pay petitioner an appropriate sum would constitute an inequitable division. Unlike petitioner, respondent is directly involved in these closely held corporations. This method of dividing the marital property would serve to disengage the parties’ financial affairs as well as reduce the likelihood of interference with one another or with the operations of the companies. We note further that after considering the evidence, the court found that petitioner was entitled to one-half of the marital property. The relevant factors amply support an equal apportionment of marital property. Without evidence of the value of the corporate stock, however, we are unable to determine whether a cash award of 40 percent of the value of respondent’s corporate ownership, together with the other property allocated to petitioner, is sufficient to accomplish the directed equal distribution of marital property.

Accordingly, the case must be remanded for a determination, at a minimum, of the value of respondent’s ownership interest in Hollywood and Hudson and the exact sum to be paid to petitioner. The court must also devise a feasible method of effecting payment to petitioner within a reasonable length of time. Upon remand, the court may, if necessary in light of additional evidence elicited, increase the 40 percent or redistribute other marital property so as to achieve an equal distribution between the parties. Since the division of marital property is among those factors to be considered in deciding whether to award maintenance, once it is found that a marital asset has been improperly valued, courts have deemed it desirable to remand to the trial court all interrelated issues of property and maintenance for a determination whether additional changes are warranted. (In re Marriage of Peshek (1980), 89 Ill. App. 3d 959, 412 N.E.2d 698.) We too deem it advisable to remand the cause for a reconsideration of issues of property and maintenance. We will, however, address those issues which may reemerge during such further proceedings. Where the issues cannot be resolved now, we will attempt to set some guidelines to assist the trial court in its determinations.

Petitioner charges that in awarding her exclusive possession of the marital home, the court abused its discretion in requiring her to pay those expenses relating to maintaining the home’s value, such as mortgage, taxes and insurance, while permitting respondent to share equally in the net proceeds upon sale. Since petitioner was awarded sole possession as well as the household furniture and furnishings, it is not inequitable to require her to pay such expenses. Respondent^ who must bear the cost of establishing a new residence, remains liable for one-half of extraordinary maintenance expenses. An equal property division should suffice to enable petitioner to pay these monthly expenses of approximately $700. Moreover, nothing prevents petitioner from selling the home immediately and realizing her share of the net proceeds.

Respondent contests the award to petitioner of one-half of his undivided one-half interest in the Rosemont property. He argues that such retention of common ownership of marital property constitutes an unjust division.

Hudson is the lessee of the subject property. Prior to dissolution, the sole owners of the property were respondent and James J. Coduti, who were also the principal shareholders of Hudson. Respondent suggests that allowing petitioner to have an interest in that property would perpetuate the parties’ conflicts and create a potential for interference with respondent and Hudson. The Act encourages property distributions which disentangle the parties’ financial affairs and eliminate potential interference with one another. Yet the record before us is devoid of evidence suggesting that petitioner’s ownership would require frequent or continuing business contact with respondent, or that her interest and role as a lessor might impede Hudson’s operations. We thus cannot say the court abused its discretion in dividing the property between the parties. On remand, however, the court may wish to hear additional testimony concerning potential or actual difficulties arising from this common ownership.

Respondent suggests further that since the court intended to divide the equity in the marital home equally between the parties, the logical way to achieve this result while avoiding common ownership is to award the home to petitioner and the Rosemont property to respondent, and offset the difference in equities by reducing respondent’s obligations to petitioner by $9,000. Even assuming the equities are comparable, such suggested division does not take into account that the Rosemont property, unlike the marital residence, produces significant rental income. Awarding one of these parcels to petitioner and the other to respondent, to be equitable, might thus require a major redistribution of the parties’ cash or property.

Both parties challenge the $50,000 cash awarded to petitioner. Petitioner charges that the amount is inadequate in light of the court’s finding that respondent dissipated marital assets worth $415,545. Respondent urges that the court’s finding of dissipation is contrary to law and to the manifest weight of the evidence.

Dissipation of marital assets by one spouse in contemplation of dissolution of marriage is not an acceptable practice. (In re Estate of Chandler (1980), 90 Ill. App. 3d 674, 413 N.E.2d 486.) Under section 503(c)(1) of the Marriage Act, the court may consider such conduct and compensate the disadvantaged spouse when apportioning the marital property. (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(1).) Dissipation may be found where the spouse uses marital property for his own benefit and for a purpose unrelated to the marriage at a time at which the marriage is undergoing an irreconcilable breakdown. (Klingberg v. Klingberg (1979), 68 Ill. App. 3d 513, 386 N.E.2d 517.) To show dissipation, it is not necessary that the marital property be sold or transferred at the time of separation or after dissolution proceedings are instituted. Such requirement is overly restrictive.

Petitioner testified that in 1973 or 1975 she consulted her attorney concerning her marital problems and that she informed respondent of her action. In 1977 she filed her petition for dissolution. Respondent testified to transfers of certain funds and real estate between 1975 and 1977. After considering the evidence, the trial court found that respondent, after becoming aware of the marital problems, embarked upon a course of action designed to conceal, manipulate or dissipate marital assets pursuant to which certain funds and real estate were transferred. Respondent argues that the challenged transactions involved either nonmarital property or the use of marital property for marital purposes. Because of our remand, we shall discuss the various transactions.

Respondent maintains that the bank funds purportedly dissipated constituted nonmarital property belonging to his son, Kurt Hellwig, or to Hollywood. Two of the bank accounts were joint tenancy accounts in the names of respondent and Kurt; the third was a corporate account for Hollywood. On October 28,1977, the day after the petition for dissolution was filed, these accounts were closed by withdrawals made by respondent. The amounts withdrawn were then paid to Kurt by checks totaling $40,005.39. Respondent testified that the funds belonged to Kurt, who had a substantial estate of his own; that Kurt had an absolute right to withdraw the funds; and that when the petition for dissolution was filed, he suggested that Kurt withdraw the funds so as to have them available later without any problems. As to the corporate account, respondent testified that the funds were paid to Kurt in his capacity as Hollywood’s president, but offered no explanation or corporate purpose for the transaction.

The accounts bearing respondent’s name, having been acquired after the marriage, are presumed to be marital property. (Ill. Rev. Stat. 1979, ch. 40, par. 503(b).) The presumption, of course, may be overcome. Resolution of this issue is a matter peculiarly within the province of the trial court, and it was entitled to disbelieve or reject respondent’s explanation of these transfers. Based upon the evidence of the timing and circumstances of respondent’s withdrawals, the court could have properly concluded that these funds were marital property transferred by respondent for no apparent marital purpose.

Respondent also claims that a certain parcel of Chicago realty was transferred to Kurt on January 17, 1977, for marital purposes. This property was valued at $65,000, and had an outstanding $15,000 mortgage. Respondent first testified that he assigned his beneficial interest in the property to Kurt as a gift, and then testified that the property was transferred as repayment of loans advanced by Kurt in the sum of $45,000. Respondent maintained that these loans were used for marital purposes, namely, meeting respondent’s margin calls for stocks used to sustain the parties’ lifestyle. Interest bearing notes evidencing loans of $26,000 and $40,000 in 1974 and 1975, respectively, and checks issued to Kurt by respondent for the repayment of interest on these loans were introduced. Kurt’s Federal income tax returns for 1976, 1977, and 1978 reflected adjusted gross incomes of $29,447, $39,200, and $39,672, respectively. They also showed interest income, while respondent’s returns showed a corresponding interest deduction. Petitioner testified that Kurt had no money to lend to respondent since, in 1973, Kurt was earning only $150 per week. After hearing the conflicting testimony, it was the prerogative of the court to determine the issue. Based upon the contradictions in respondent’s testimony as to whether the transfer was a gift or for value and the transfer’s proximity in time to the dissolution proceedings, we cannot say that the court erred in finding that respondent dissipated this marital asset.

Another challenged transaction involved the transfer of a parcel of realty located on Pacific Avenue seven months before dissolution proceedings commenced. This property had a fair market value of $90,000. Respondent asserts that the property was sold in the course of his normal business activities and that the proceeds were used for family expenses, not his sole benefit. Petitioner acknowledged that throughout the marriage respondent bought and sold real estate as part of his business activities. In view of respondent’s uncontroverted testimony and the lack of evidence suggesting the proceeds were used for respondent’s benefit alone, we believe the finding that the transfer of this property was a dissipation was contrary to the manifest weight of the evidence. Similarly, the record does not support the trial court’s finding that a transfer of a three-acre vacant lot in Elk Grove Village constituted a dissipation. In response to petitioner’s claim that respondent had an interest in this property which was transferred to Hollywood, respondent maintains that the property was nonmarital and always owned by Hollywood and Coduti. The testimony of respondent and Coduti was conflicting as to whether the purchase price was paid by Hollywood and Coduti, or respondent and Coduti. Nevertheless, the record reflects that respondent and Coduti executed a trust agreement in May 1973, and that in October 1973, respondent assigned his beneficial interest in this property to Hollywood. Even if respondent were deemed to have had an interest, such interest was merely transferred to Hollywood, another marital asset.

Finally, the court found that, in 1978, after dissolution proceedings had begun, respondent closed a brokerage account worth $180,000. Respondent’s uncontroverted testimony was that the stock was sold to finance the parties’ lifestyle. Petitioner’s accountant testified that the $180,000 was disbursed to respondent over a period of time spanning January 1975 to November 1977. The evidence was insufficient to support a finding of dissipation.

The trial court properly ruled that respondent had dissipated certain marital assets. Because of our further holding that the evidence did not support a dissipation finding as to other items, we believe the cash sum award of $50,000 was adequate and equitable. We also note that the Act does not mandate an award of cash or property equal to half of the amount dissipated.

We next address the parties’ respective objections to the maintenance award. Petitioner urges that the trial court erred in awarding her rehabilitative maintenance for a period of five years instead of permanent maintenance. Respondent objects to the amount of the award.

Once the trial court determines that maintenance is appropriate, a finding which is not challenged here, the amount and duration of the award shall be as the court deems just after considering the relevant factors mentioned in the Act. (Ill. Rev. Stat. 1979, ch. 40, par. 504(b)(1) through (6).) Rehabilitative or time limited maintenance is new to Illinois law. Underlying the concept of time limited maintenance is the sound policy that such awards may provide an incentive for the spouse receiving support to use diligence in procuring training or skills necessary to attain self-sufficiency. (Lindsay v. Lindsay (1977), 115 Ariz. 322, 565 P.2d 199.) This policy, however, must be balanced against a realistic appraisal of the likelihood that the spouse will be able to support herself in some reasonable approximation of the standard of living established during the marriage, especially where the marriage is of long duration and the spouse has had a long term absence from the labor market. (Lindsay v. Lindsay.) Although each case must be decided on its own facts, some general guidelines for determining whether to grant time limited or permanent maintenance have been approved by this court. (In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868.) Maintenance for a limited period is appropriate where the spouse is employable at an income not overly disproportionate from the standard of living established during the marriage. Conversely, where the spouse is not employable or is employable only at a low income as compared to her previous standard of living, then permanent maintenance would be appropriate.

In the present situation, petitioner’s lengthyj marriage, long absence from the labor market, lack of special vocational skills or training, age, and poor health would appear to militate against time limited maintenance. These combined factors render petitioner’s ability to support herself within five years on a level approximating the parties’ luxurious living standard uncertain. In limiting the duration of the maintenance award, the court apparently assumed that petitioner could attain self-sufficiency within five years. An award of maintenance for a limited time should be based upon circumstances disclosed by the evidence, not pure speculation. (In re Marriage of Pieper.) In view of the lack of evidence supporting the five-year limit set by the court, the duration of the award should be reexamined on remand. We cannot say, however, that the facts before us necessarily dictate an award of permanent maintenance.

Relying on In re Marriage of Parello (1980), 87 Ill. App. 3d 926, 409 N.E.2d 461, respondent argues that the court erred in basing the maintenance award upon his income, perquisites and retained assets, and that the award should be limited to a percentage of net income from employment only. Parello is distinguishable. There, this court held improper an award based upon a percentage of the spouse’s income from employment as well as his income from any other source. We observed that the language “other source” appeared to have been inserted to insure that the party seeking support would share any income her spouse received from other jobs undertaken after dissolution. To permit such award contravened the Act’s requirement that the amount of maintenance be based upon the standard of living established during the marriage. Here, in contrast, the parties made use of respondent’s employment income, perquisites, and retained assets in establishing their high standard of living during the marriage.

Respondent also urges that the 40 percent award is excessive and that he is being penalized for the extravagant lifestyle petitioner established prior to dissolution. Respondent testified that in 1974, he informed petitioner that their expenses exceeded his income and that they were depleting assets to maintain their high standard of living; petitioner denied being so advised. Apparently the court disbelieved respondent’s claim that the parties were living well beyond their means. While the 40 percent award does not appear excessive in view of the parties’ lifestyle and petitioner’s limited prospects for employment which would provide a comparable income, ^distribution of the property on remand may require an adjustment in the amount of maintenance.

We reject petitioner’s next contention that the trial court abused its discretion in requiring her to pay her own attorney’s fees without conducting a hearing to determine the relative financial abilities of the parties and the value of the services rendered. Where the court had evidence before it of the financial resources of both parties when ruling on the issue of attorney’s fees and no hearing had been requested, the trial court’s failure to conduct a hearing on the propriety of the award of attorney’s fees was not error. (See Scott v. Scott (1979), 72 Ill. App. 3d 117, 389 N.E.2d 1271.) The equal apportionment of the property between the parties has provided petitioner with sufficient funds to pay her attorney’s fees.

We next consider respondent’s argument that the trial court erred in awarding petitioner prospective attorney’s fees for defense of the cross-appeal.

We initially reject respondent’s contention that the Act does not authorize such award. Recently, in In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 419 N.E.2d 598, we construed section 508 of the Act (Ill. Rev. Stat. 1979, ch. 40, par. 508), and held that the trial court has jurisdiction to award attorney’s fees for the defense of pending appeals. Contra, In re Marriage of Wright (1980), 92 Ill. App. 3d 708, 415 N.E.2d 1196.

We also disagree with respondent’s assertion that petitioner failed to establish that the requested fees were necessarily incurred. The essence of respondent’s argument is that the cross-appeal focuses on the same substantive issues as the appeal. Even though, at times, the parties’ issues involved common statutory provisions, the court properly concluded that substantively different issues were raised on appeal and cross-appeal. In particular, the finding of dissipation and appointment of a sequestrator were challenged only on cross-appeal. —

Finally, respondent asserts that the award was against the manifest weight of the evidence because the evidentiary hearing failed to demonstrate that respondent had a greater ability than petitioner to pay the fees. Petitioner testified that she owned stock worth $1,500; had funds in bank accounts totaling $220; had no regular income from employment; was receiving $900 per month from respondent; and had to borrow money for her living expenses. An accountant testified that during 1979, respondent’s gross earnings from Hudson totaled $18,000, and that he had $24,041 available in cash prior to paying maintenance and had $13,241 available after paying maintenance. Considering the relative financial resources of the parties, the court did not abuse its discretion in ruling that respondent should pay petitioner attorney’s fees for defense of the cross-appeal.

Remaining for our consideration is respondent’s contention that the order appointing the sequestrator is contrary to law and against the manifest weight of the evidence.

Sequestration is an equitable remedy authorized by statute:

“When a defendant is defaulted, or upon hearing, the court may enter such order as may be just, and may enforce such order, either by sequestration of real and personal estate, * ° # or by ordering the demand of the plaintiff to be paid out of the effects or estate sequestered, or which are included in such order; and by the exercise of such other powers as may be necessary for the attainment of justice.” (Ill. Rev. Stat. 1979, ch. 110, par. 392.)

In Illinois, an order of sequestration is a proper equitable remedy for enforcement of a judgment or order, including a judgment of dissolution of marriage. In re Marriage of Rockford (1980), 91 Ill. App. 3d 769, 414 N.E.2d 1096; Victor v. Victor (1961), 31 Ill. App. 2d 60, 175 N.E.2d 655.

A brief recitation of the circumstances surrounding the order of sequestration is necessary at this point. On October 27, 1977, the day the petition for dissolution was filed, the trial court ex parte entered a temporary restraining order preventing respondent from selling, hypothecating, mortgaging, transferring, or encumbering marital assets. Later by agreement, the order was modified to create a mutual preliminary injunction and to permit marital property to be transferred or disposed of in the usual course of business or for necessities. On December 15,1977, in response to a petition, respondent was ordered to pay petitioner $2,000 within 10 days. An agreed order directed respondent to pay petitioner $200 per week as temporary maintenance, to pay $200 per month for charges made on various accounts, and to submit petitioner’s medical bills to respondent’s insurance carrier for reimbursement.

On July 27, 1979, after completion of testimony, petitioner filed an emergency petition for appointment of a sequestrator alleging that since 1973, respondent commenced and had continued a course of action to dissipate marital assets. Respondent’s answer denied the material allegations of the petition. On August 10, 1979, the court appointed a sequestrator. In its order, the court found that respondent concealed, manipulated or dissipated marital assets prior to and during the course of these proceedings; that he failed to comply with orders of the court; that appointment of a sequestrator was necessary to protect the parties’ assets, to effect an orderly and proper transfer of marital property to petitioner, and to ensure the payment of any maintenance ordered. That same day, the court orally restated its finding of dissipation and the need to remove marital assets from respondent pending distribution, and found further that respondent was in arrears on the temporary order of support, payments of charges, and medical bills. The court subsequently denied respondent’s motion to vacate the sequestration appointment order.

Respondent first maintains that the appointment of a sequestrator was erroneous because he had complied with all valid court orders and had not dissipated marital assets. We have already concluded that the evidence supported a finding of dissipation. In view of that dissipation, the court could properly have deemed sequestration a necessary and just measure to secure performance of its maintenance and other orders by preserving the remaining assets in respondent’s possession. (See Manning v. Mercantile Securities Co. (1909), 242 Ill. 584, 90 N.E. 238, aff’d sub nom. Rhodus v. Manning (1910), 217 U.S. 597, 54 L. Ed. 896, 30 S. Ct. 696.) The court also had petitioner’s testimony at trial that respondent was 11 wéeks in arrears on the temporary maintenance order although she did not recall which weeks.

Respondent’s contention that the order appointing a sequestrator is void because it is indefinite and attempts to order compliance by parties not subject to the court’s jurisdiction is without merit. The order directs the sequestrator to collect assets, funds and property belonging to or held in trust for respondent. This language is not fatally indefinite; it sufficiently directs the sequestrator to collect and set apart respondent’s entire personal estate. (See Victor v. Victor (1961), 31 Ill. App. 2d 60, 175 N.E.2d 655.) Nor does the sequestration order leave respondent “penniless” as he claims, but rather operates to place possession of the property in the court in order to enforce obedience to its order. (Victor v. Victor.) Respondent’s charge that the order reaches property held by persons not subject to the court’s jurisdiction is also unavailing inasmuch as sequestration runs against the property of a contumacious defendant and is a proceeding in rem. Manning v. Mercantile Securities Co.; Ryan v. Ryan (1978), 56 Ill. App. 3d 483, 371 N.E.2d 1199.

Finally we disagree with respondent’s contention that the sequestration order ceased to have any force and effect because the judgment of dissolution subsequently entered did not contain an appointment of a sequestrator. The judgment of dissolution did not terminate the sequestration since the articulated purpose of the remedy was to assure the payment of sums, or the transfer of property, directed by judgment during the pendency of the action or at its termination. Moreover, on the same day as entry of the judgment of dissolution, the trial court explicitly declined, by separate order, to vacate the sequestrator’s appointment.

For the foregoing reasons, the orders of the circuit court of Cook County are affirmed in part, reversed in part, and remanded for further proceedings consistent with the views expressed in this opinion.

Affirmed in part; reversed and remanded in part.

RIZZI, P. J., and McGILLICUDDY, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE WILSON

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL ROBERTS, Defendant-Appellant.
    First District (5th Division)
    No. 78-2091
    Opinion filed September 18,1981.

      Ralph Ruebner and Barbara Kamm, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, James S. Veldman, and Georgia A. Buglass, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE WILSON

delivered the opinion of the court:

Following a jury trial, defendant was found guilty of two counts of official misconduct and sentenced to three years probation and one year of periodic imprisonment. On appeal, he contends that: (1) he was denied due process where evidence of other acts of misconduct was admitted at his trial; (2) the prosecutor made improper opening and closing statements; (3) the trial court erred in allowing the jury to use his handwriting exemplars in its deliberations; and (4) he was not proven guilty beyond a reasonable doubt. We reverse and remand. The pertinent facts follow.

Defendant, who was president of the Central Area Park District in Maywood from 1968 to 1969 and from 1971 to June 3, 1975, was indicted for six counts of official misconduct. Two counts were nolle prossed prior to trial. Counts I and II alleged that he solicited and accepted a fee of $6,000 in his capacity as a public official from William Valkner on or about April 8, 1974. Counts IV and V alleged that he solicited and accepted a $2,000 fee from Valkner on or about May 2, 1974.

Prior to trial, defense counsel objected to the State’s motion requesting the court to order defendant to provide handwriting exemplars. The court granted the State’s request and reserved until later the question of whether this exemplar could be used in examination or entered before the jury.

In his opening statement, the prosecutor told the jury that Valkner operated a landscaping business and had to pay defendant in order to get the contract to do landscaping for the Central Area Park in Maywood. He indicated that defendant was thrown out of office. Defense counsel objected, but the State indicated the evidence would show this. The prosecutor continued his statement, telling the jurors that the evidence would show that Valkner was required to carpet defendant’s girlfriend’s house, to which the defense objected and was refused a sidebar.

The jury was also told that defendant told Valkner he would get paid after a tax referendum. The prosecutor indicated that defendant held a tax referendum to obtain more money to pay off contractors from whom he had been stealing. Defense objected but was overruled. The prosecutor further stated that the day the new president of the park district was elected, defendant hired people to take records out of the park district. Defense counsel’s objection to this statement was also overruled.

Lastly, the prosecutor indicated that defendant received $8,000 and services from Valkner so that Valkner could get paid from a public body. The defense .moved for a mistrial at the close of the State’s opening statement, indicating it contained inflammatory characterizations and statements beyond the evidence. The court reversed its earlier rulings, thus sustaining defense’s objections, but indicated that the evidence of the removal of the records would be admitted if the State could connect it up, and denied the defense motion for a mistrial.

Following defense’s opening statement, the court indicated that it was reversing its ruling on the admission of other work done because of its reading of applicable law and because the defense could have made a motion in limine to exclude this evidence. The court told the jury, upon their return to the courtroom, that the objections to the State’s opening statement were overruled, but not to consider it as evidence.

Valkner testified that he was president of the Abendale Landscaping Company until 1975 when it went out of business. He submitted a bid to the Central Area Park District in 1973 when he received the plans and bid specifications of the project. He met with Alan Caskey in the early or middle part of January 1974 at the park district offices. Defendant was also present at this meeting. Valkner told defendant that he could not pay the $6,000 that he had requested unless it was returned to him in salary, and, only if defendant would agree to pay the income taxes on that amount. Defendant agreed to pay $1,200 to Valkner to cover taxes. He received the written contract from defendant and was told that he would also have to decorate and furnish a park district office.

Valkner stated that he prepared a pay request for $22,000 and submitted it to defendant, who told him he would have to pay back the $6,000 previously agreed to. He told defendant that it would be difficult to justify his pay request because inside work was not allowed under HUD funding. He was told to redo the pay request to accommodate the $6,000. He then received a check from the park district in the amount of $28,000, of which he returned $6,000 to defendant.

Valkner met with defendant and Theodore Elders, the park district’s treasurer in April 1974. He was told there would have to be a second pay-off of $1,500 done in the same way as the first. After Elders left the office, defendant increased the amount to $2,000. He prepared another pay request for $23,700 and received payment from the park district, whereupon he met defendant at the home of Geraldine Broome on May 2, 1974, and returned $2,000 of these monies to him. He had been at Broome’s home on a prior occasion to remove a broken tree. Defendant requested him to relandscape his yard, for which the park district was billed. He was also requested to redecorate Broome’s basement and install carpeting in her bedroom and hallway. He did not redecorate the basement but he did install the carpeting and added this amount to his contract.

Valkner indicated that he submitted more pay requests under the contract as he completed all the work. In June 1974, defendant informed him that the park district was low on funds and there would be no money until the tax revenues came in. In October 1974 he received a $2,500 check from defendant. Defendant told him that once a tax referendum was passed he would get paid more money.

On cross-examination, Valkner stated that he recorded the $6,000 and the $2,000 payments to defendant on company books as an officer’s loan. He also admitted that he did not pay Federal or social security taxes for his employees, even though he filed sworn quarterly statements with the government, indicating these amounts were being deposited.

At the end of Valkner’s testimony, the State indicated it was going to call Broome to testify. The defense made a motion to exclude her as a witness as her testimony was not relevant. The State indicated that her testimony would in part corroborate Valkner, and this evidence was so entwined that the offense of putting in the carpeting would show the relationship between Valkner and defendant. The defense indicated that the common scheme or design exception did not apply as there was no evidence to indicate that Valkner was required to do the work in order to get paid. The court refused to allow Broome to testify, indicating there was no exception for admission of this evidence to show a relationship of the parties.

The State raised defendant’s subsequent indictment activity later, stating that it explained the reason and setting of payments, showing a scheme or design of defendant to use his position to enrich himself. The defense responded that defendant was not charged with the subsequent acts and moved for a mistrial based upon the State’s misrepresentation of the testimony. The court denied the motion for a mistrial and agreed to instruct the jury about the Broome matter at the time of the jury instructions.

Defense’s motion to dismiss based on improper testimony, and a motion for a directed verdict were denied.

Opinion

Defendant initially contends that he was denied due process and the right to a fair trial where evidence of other crimes or other acts of misconduct were admitted at his trial.

Our courts have followed the long-settled rule that the admission of other offenses is prejudicial error if used to show that defendant has a propensity to engage in criminal activity (People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200; People v. Satchell (1981), 94 Ill. App. 3d 422, 418 N.E.2d 1063); however, such evidence is admissible if it establishes identity, intent, absence of mistake, motive, design or knowledge. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) In determining whether to admit evidence of other crimes, our courts must consider whether the evidence of other crimes is so clearly connected with the main issue that it tends to prove the accused guilty of the crime for which he is being tried. (People v. Cross (1981), 96 Ill. App. 3d 268.) And we must balance the actual need for the evidence and its convincingness and strength against the degree of prejudice that will result from its admission. People v. Connors (1980), 82 Ill. App. 3d 312, 402 N.E.2d 773.

The defense contends that Valkner’s testimony regarding the use of HUD funds for remodeUing park district offices was irrelevant to the charge of payoffs. Additionally, there was no proof that this extra indictment offense occurred and that defendant actually committed or participated in it. Further, the State in its opening statement, over objection, told the jury that Valkner was required to do work at defendant’s mother’s house; that defendant held a tax referendum to raise money to pay off contractors from whom he received kickbacks and that he was thrown out of office. Moreover, at trial, Valkner testified that he installed carpeting at Broome’s house, relandscaped defendant’s lawn and included these items in his park district billing. The State, however, contends that this evidence was relevant to show the scheme employed by defendant to accomplish the crimes for which he was charged. The trial court gave the jury a general instruction that the jury was not to consider other crimes or improper conduct other than those charged in the indictment.

We think it significant that at the close of the State’s opening statement the court granted defense a sidebar on these matters that came to the jury’s attention. It denied the defense’s motion for a mistrial but sustained its objections to the other crimes evidence except the removal of records. However, at the close of the defense’s opening statement, the court again reversed its ruling. Later in the trial, the court reversed itself once again on these matters, determining that the evidence of other crimes should not come in; however, it was decided that it would be best to wait until the jury instructions to cure this error. We point out that the jury had already heard this evidence and we believe that this evidence of defendant’s other misconduct may have had the effect of “overpersuading the jury,” resulting in his conviction because they felt he was a “bad person deserving punishment.” People v. Lindgren, at 137.

We are not convinced that this evidence shows a continuing scheme employed by defendant as the State suggests. The State’s reliance on People v. Mitchell (1981), 95 Ill. App. 3d 779, 420 N.E.2d 415, which allows the admission of subsequent crimes if used to show modus operandi, is inapplicable in this instance. In Mitchell, defendant was charged with the murder of his former mother-in-law in Berwyn. The court admitted evidence of the crime of battery which defendant committed upon his former wife and father-in-law in Florida. The factors involved in this case which allowed the admission of subsequent crimes were the similarity of attack in Florida with the results in Berwyn and the close proximity of time involved in the assaults which brought this within the purview of modus operandi. In the instant case, Valkner’s testimony up to the time of the two payoffs, if believed, and the documentary evidence may have been sufficient to prove defendant’s guilt. We believe that the relandscaping of defendant’s lawn as well as the carpeting of Broome’s house, which all occurred subsequent to the crimes charged in the indictment, had the effect of bolstering the State’s case against defendant and are dissimilar to the charge in this case. Further, there was no evidence adduced that HUD prohibited the use of its funds in the manner employed by defendant, nor was there evidence that defendant was charged with misuse of Federal funds. The erroneous admission of other evidence may be so prejudicial as to influence an otherwise unbiased jury, so that reversal is necessitated. (People v. Lindgren.) We conclude that the admission of this evidence was not cured by the court’s general instruction to the jury to disregard other crimes or misconduct and was extremely prejudicial. As such, we believe defendant’s right to an unbiased jury was violated by the admission of these extraneous matters.

Defendant next contends that the prosecutor in his opening and closing statements made numerous comments on matters not in evidence and made inflammatory remarks against defense counsel. Specifically, as to the opening statements, defense counsel asserts that the State made references to a conversation between Caskey and Valkner; however, there was no evidence presented at trial to prove the State’s remark regarding the statements Caskey made to Valkner. The State also remarked that defendant was thrown out of office but offered no evidence to prove this. Further, the defense contends that the State offered no evidence to show that a tax referendum was held for any illegal purpose, although this was suggested in the opening statement, nor was there any proof that defendant hired people to remove Park District records in an effort to conceal his misconduct. The State concedes errors in the prosecution’s remarks concerning the tax referendum as well as the statement that defendant hired people to remove park district records. However, they maintain that any possible harm was cured by instructions to the jury that opening statements are not evidence, that statements not based on the evidence and allegations of other crimes should be disregarded.

It is well settled that the function of the opening statement is to apprise the jury as to what each party expects the evidence to prove in the course of a trial. In a criminal case, it is an outline of facts which the prosecution in good faith expects to prove and it is improper, with foreknowledge, to include matters in an opening statement which are not thereafter proved. (People v. Platter (1980), 89 Ill. App. 3d 803, 412 N.E.2d 181.) We do not believe the general instructions to the jury sufficiently cured these errors. We believe the prosecution was aware at the time of its opening statement that it lacked sufficient proof to sustain these allegations.

Similarly, the defense argues that the prosecution commented on matters not in evidence in his closing argument. Generally, a prosecutor is allowed wide latitude in closing arguments. On appeal, a verdict will not be set aside unless these remarks are clearly prejudicial, affecting the outcome of the case. People v. Cross.

In the pending matter, the prosecution commented that Valkner was not paid for the work he completed; that defendant certified the check to Valkner because he was greedy; and that Valkner had no motive to fabricate. These comments were not objected to at trial. We thus hold that the argument based upon these allegedly prejudicial remarks does not rise to the status of plain error and must be considered waived. People v. Platter.

As to the other closing remarks, the record does not establish that these arguments, individually or collectively, constitute error. People v. Parks (1977), 49 Ill. App. 3d 65, 363 N.E.2d 93.

Defendant next asserts that the prosecutor personally attacked defense counsel. In the closing argument the prosecution described the cross-examination of Valkner as a “smokescreen” and accused defense counsel of defaming and slandering Valkner by innuendo. He contends that this attack on defense counsel antagonized the jury.

The general rule in Illinois is that every defendant is entitled to a trial free from improper comments. The test of an improper comment is whether such constituted a material factor in defendant’s conviction or resulted in substantial prejudice to him. (People v. Nodal (1980), 89 Ill. App. 3d 538, 411 N.E.2d 1087; People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.) This type of reference has been held to be nonprejudicial. (People v. Robinson (1980), 91 Ill. App. 3d 1138, 415 N.E.2d 585.) We thus find no prejudicial error from these comments, nor do we believe these comments accuse defense counsel of fabricating a defense.

Thirdly, defendant contends that the trial court erred when it permitted the jurors to use his handwriting exemplars in its deliberations over objection. Specifically, defense counsel objected to defendant hand-printing the exemplar, which read:

° ° the money in dollars which Dick Sass received from Virginia McLawn was placed in her auto without any trouble. It was later covered by a slick cape and with luck would never be found, but a pussy jumped on the seat and killed the noxious trick,”

because it was highly prejudicial and irrelevant. The State argues that there is no evidence that the jurors were given these exemplars during deliberations even though they were admitted into evidence. In any event, these samples were presented in open court and defendant was allowed to cross-examine the expert witness. Defendant acknowledges that a jury in a criminal case can determine the genuineness of handwriting by comparison to other handwriting specimens. (Ill. Rev. Stat. 1977, ch. 51, par. 50.) Moreover, these specimens must be compared in open court and in defendant’s presence. People v. Hoover (1980), 87 Ill. App. 3d 743, 410 N.E.2d 195.

As an established rule, the court may permit jurors to take with them writings and tangible objects which have been duly admitted into evidence. In this instance, these exemplars had been duly admitted. (People v. Dixon (1978), 58 Ill. App. 3d 557, 374 N.E.2d 900.) Assuming the jury did have these exemplars during deliberations, absent showing of prejudice or an abuse of discretion, this is not reversible error. People v. Dixon; People v. Gonzales (1979), 79 Ill. App. 3d 498, 398 N.E.2d 647.

Lastly, defendant argues that he was not proven guilty beyond a reasonable doubt. We have examined the record and believe there is sufficient evidence to find defendant guilty; however, we believe this conviction must be reversed and remanded for a new trial in view of the cumulative errors, including the improper evidence of other crimes or misconduct and the improper opening statements which denied defendant a fair trial. People v. Sullivan (1978), 72 Ill. 2d 36, 377 N.E.2d 17.

Reversed and remanded.

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


author: Mr. JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANKLIN FREEMAN, Defendant-Appellant.
    Second District
    No. 80-454
    Opinion filed September 25, 1981.

      Mary Robinson, of State Appellate Defender’s Office, of Elgin, and Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Daniel Doyle, State’s Attorney, of Rockford (Phyllis J. Perko and Marshall Stevens, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   Mr. JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant was charged by information on February 5, 1980, in Winnebago County with the offenses of armed robbery and home invasion. (Ill. Rev. Stat. 1979, ch. 38, pars. 18 — 2 and 12 — 11(a)(1).) Both are Class X felonies. He was convicted by a jury and sentenced to the Department of Corrections for 12 years for each offense, the sentences to be served concurrently. He appeals, contending he was denied a fair trial (1) because the trial court restricted his cross-examination of two witnesses concerning their possible bias or motive for testifying, and (2) because the prosecutor made improper comments during rebuttal argument. We find the second contention has been waived due to the defendant’s failure to make timely objections at trial and to specify the error in his post-trial motion. (People v. Jedlicka (1980), 84 Ill. App. 3d 483.) As to the defendant’s first contention, we agree, and reverse and remand for a new trial.

Briefly, this is what occurred. On the evening of January 16, 1980, at approximately 8 p.m., Maurice Rigsby, Gladys Davis, Glenn Johnson, Willie McMillian, and Fred Smith were drinking alcoholic beverages and listening to music at Smith’s apartment in Rockford. Davis admitted she was smoking marijuana. There was a knock at the door to the building downstairs which Rigsby answered. Four masked, armed men forced their way into the building and shots were fired toward the door of the apartment at the top of the stairs, narrowly missing McMillian who was attempting to close that door. At approximately the same time, Smith grabbed his pistol and vacated the apartment via a window in a rear room. Davis and Johnson both bolted for the kitchen, McMillian for a closet. The four intruders entered the apartment, forced everyone to lie on the floor, and took $3 from Rigsby, $10 and a wallet from Johnson, and $68 from Davis’ purse. Davis and McMillian both testified the latter had a conversation with one of the masked individuals during which he identified himself to McMillian as “Frankie,” asked McMillian whose house it was, explaining he thought it was “D-man’s house,” and asking whether Davis was Smith’s “old lady.” Davis and McMillian both testified they recognized the masked man’s voice as that of the defendant, Franklin Freeman. McMillian also testified “Frankie” refused to take a wad of bills containing $700 which he had produced from his shirt pocket upon the exhortation of the intruder wielding a shotgun to produce any other money that was in the apartment. The four masked men then left the apartment and went downstairs and outside where two of them encountered Smith, who had left the apartment earlier. Smith shot at and killed one of the two men, and the other man fired three shots at Smith, but missed. During the trial, the court sustained the State’s objection of irrelevancy to evidence which defense counsel sought to elicit on cross-examination concerning 10 marijuana-filled manilla envelopes that were found on a table in the invaded apartment.

Immediately prior to trial, defense counsel informed the court in chambers that he planned to cross-examine two of the witnesses, Smith and McMillian, concerning charges that were instituted against them following the robbery in order to expose their possible bias or motive in testifying for the prosecution as a means of impeaching their credibility. He indicated to the court that one of the docket entries in Smith’s case shows his bond was reduced “[b]y agreement-AS A RG & Atty” from $75,000 to $5,000 and that bond was posted. An identical notation appears on McMillian’s docket sheet.

The State objected to the proposed cross-examination, arguing that before such cross-examination should be permitted, the defendant must establish that the State had made some kind of a deal with the witness, and that could be accomplished simply by asking the witness whether he had been promised anything in return for his testimony. The court instructed defense counsel to limit his inquiry to that question, and specifically prohibited him from inquiring into the matter of the bond reduction agreement. At trial, defense counsel did make that sole inquiry permitted by the court, and received “no” answers from both witnesses, thereby aborting any further explanation of any ulterior motives or expectations on the witnesses’ parts.

Defendant correctly asserts that he has the right to cross-examine government witnesses regarding pending criminal charges for the purpose of showing bias, interest, or motive to testify falsely. (People v. Mason (1963), 28 Ill. 2d 396; People v. Barr (1972), 51 Ill. 2d 50.) The right to cross-examine a witness stems from the defendant’s sixth amendment right “to be confronted with witnesses against him” (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8; Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105), and this right is applicable to State trials as well as to Federal (Pointer v. Texas (1965), 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065).

Additionally, defense counsel need not show beforehand that any promises of leniency have been made or any expectations of special favor exist in the mind of the witness. (People v. Baptiste (1976), 37 Ill. App. 3d 808.) Further, defense counsel is entitled to inquire into such promises or expectations whether based on fact or imaginary. People v. Dunivant (1981), 96 Ill. App. 3d 62; People v. Kellas (1979), 72 Ill. App. 3d 445.

The State argues that the restriction on cross-examination in this case is not error or, at most, harmless error where there are other factors tending to establish the credibility of the witness. It points out that Smith did not identify the defendant, but testified merely to the fact of the robbery. As such, it concludes Smith’s motives to testify falsely are unimportant with regard to this issue, and we agree. Thus, the focus narrows to a consideration of what prejudicial effect, if any, the limitation of cross-examination had with respect to the testimony of Willie “Mac” McMillian.

At this point, we note the defendant has correctly observed in his reply brief that the standard of review of a claimed error affecting a Federal constitutional right is not whether it was harmless but, rather, harmless beyond a reasonable doubt. (People v. Knippenberg (1977), 66 Ill. 2d 276; Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.) “The question is whether there is a reasonable possibility that the [error] complained of might have contributed to the conviction.” Chapman, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 827.

The State’s reliance on People v. Martin (1978), 59 Ill. App. 3d 785, People v. Snyder (1979), 72 Ill. App. 3d 82, and People v. Eddington (1979), 77 Ill. 2d 41, is misplaced in support of its position that no error occurred because defense counsel was allowed to ask the witnesses if they had been promised anything in return for their testimony. We find these cases distinguishable.

In Martin, the charge pending against the witness defense counsel sought to cross-examine was unrelated to the offense the defendant was charged with, and the witness testified in chambers that he had no expectation of leniency. In Snyder, the court’s position was that cross-examination would not tend to show bias or interest where there is no showing that a witness has any expectation of leniency as to pending charges. Also, in that case, the jury was informed that the witness, who had been the defendant’s accomplice in the commission of the offense charged, had been granted immunity as to that charge, but that no other promises or concessions had been offered. In Eddington, the court in chambers explored the issue of potential bias/motive by questioning the witness and prosecutor. It concluded no leniency was offered or expected. It also considered that the charge pending against the witness was in a different county, and it was not filed until after the witness had given a statement and previously testified regarding the instant offense.

In contrast, the court here had been specifically alerted to the fact of the Assistant State’s Attorney’s agreement to a substantial reduction in bond which enabled the witness to secure release. The court did not question the witness as to his expectations of leniency, nor was the jury in any manner made nware that the witness was charged with an offense or that his bond had been reduced by agreement with the Assistant State’s Attorney. Although the record reveals a one-page statement was given by McMillian shortly after the robbery and was being provided to the defendant as part of the State’s answer to discovery, the statement itself was not included in the record nor utilized at trial. Furthermore, despite the fact the docket sheet on McMillian’s case showed the charge pending against him was not filed until February 26, 1980 (after his alleged statement was given on January 17, 1980, and after he testified at the preliminary hearing on February 5, 1980), the record reveals the preliminary hearing was held to determine probable cause on the basis of a complaint signed by McMillian charging, inter alia, that the defendant had robbed him of “certain United States currency and cannibas [sic].” The State’s discovery answer also reveals McMillian signed a rights waiver 2M hours before he gave his statement regarding the incident. However, the court found no probable cause on the robbery complaint signed by McMillian, and the information subsequently filed by the State for the robbery of another of the victims, Glenn Johnson, is the one for which the defendant was convicted.

We conclude these facts reasonably warranted the conclusion that McMillian might have been leniency-motivated to testify against the defendant, and defense counsel should have been allowed to explore that possibility of cross-examination. Even though defense counsel was permitted to ask whether any promises had been made to the witness, he was prevented from making a record from which to argue why any promises might have been made. Given this stunted scope of cross-examination, the jury might well have thought defense counsel was simply making a baseless and inartful attack on the credibility of an already-wronged crime victim. See Davis v. Alaska (1974), 415 U.S. 308, 318, 39 L. Ed. 2d 347, 355, 94 S. Ct. 1105, 1111.

The State also argues the error, if any, was harmless because McMillian was not the only witness who identified the defendant, thus he was not a crucial identification witness. (People v. Eatherly (1979), 78 Ill. App. 3d 777.) The State points out that the Gladys Davis, Smith’s girlfriend, also testified she heard the following conversation between McMillian and “the dude [the defendant] that had him down [on the floor]”:

“A [Davis]: He said, ‘Mac, is that you?’ And at first Mac said no and then he asked Mac if it was Fred and Mac said yeah and Mac said, ‘That’s you, Frankie?’ He said yeah and he asked if I was Fred’s old lady. He said yeah.”

McMillian’s testimony indicated a similar conversation had taken place while he was standing near the closet door.

“A: [McMillian] Okay, well, I said the person that came to the stairs, you know, person that came to the stairs and called me out of the closet, that was the person that had my direct attention.
Q: [Mr. Gemignani, Assistant State’s Attorney] Who was that?
A: Well, it was Frankie.
Q: Frankie?
A: Yeah.
Q: Frankie who?
A: Frankie Freeman.
Q: The person you identified here earlier?
A: Yeah.
Q: How do you know that it was Frankie?
A: He said it was Frankie.
Q: Tell us what was — how that went down.
A: Anyway, when I came out of the closet, he asked me was I shot. I said no and he said whose house is this. He said I thought — he said I thought this was D-man’s house.
Q: D-man?
A: Yeah, D-man’s house. I said no, this is Fred’s house. Then, he said is that Fred’s woman there? I said yeah, but that time she just got hit, just got hit in the face, then.
Q: Okay, go on.
A: And then he said man, I didn’t know this was Fred’s house. I swear I didn’t know this was Fred’s house. He kept telling me he didn’t know it was Fred’s house. So, I just stayed there.
# e »
Q: Now, had there — had this man who was directing his attention to you asked you who you were?
A: Yeah.
Q: What did he say?
A: I said it was Mac.
Q: What did he say to you?
A: He said — would you ask the question again?
Q: What did he say to you, did he ask you who you were?
A: He asked me who I was. I told him I was Mac, you know, and he said I noticed this was your thing here. Then he said I’m sorry, man, you know.
Q: Did you ask him who he was?
A: No, he said who he was.
Q: What did he say?
A: He said this is Frankie, man, this is Frankie, don’t you know Frankie?”
We find Davis’ alleged “corroboration” is patently incredible, however. She answered these questions at trial on April 28,1980:
“Q: [Mr. Gemignani] Did you recognize the voice?
A: Yeah.
Q: Whose voice was it?
A: Frankie.
Q: Frankie who?
A: Freeman.
e * #
Q: How long have you known Frankie Freeman?
A: A little while.
Q: Well, is that a week, two weeks, a year?
A: More than two weeks.
Q: How many times have you sat down and talked with him?
A: I never talked to him.”

On the face of the record, Davis did not know the defendant until shortly before the trial. Even if the record may be construed to mean she knew him approximately two weeks before the robbery occurred, the extent of her knowledge does not ever include a conversation with him, yet she claimed she recognized his voice. Further, if she did know him, why did both she and McMillian testify that the defendant asked McMillian if “she was Fred’s lady”? Apparently the defendant did not know her. Her credibility must also be considered in light of the fact she admitted she was smoking marijuana that evening.

Under these circumstances, McMillian’s testimony became crucial since he was the only other witness whose testimony placed the defendant in the apartment that night. It is our conclusion that the trial court abused its discretion in limiting defense counsel’s cross-examination, particularly in view of the fact thé "limitation occurred before the trial actually commenced and before the court knew who would be testifying as to what. The court would have had no inkling at that time as to the potentially crucial nature of McMillian’s and/or Smith’s testimony. We do not believe this error may be construed to be harmless beyond a reasonable doubt. Consequently, the judgment of the circuit court of Winnebago County is reversed and the cause remanded for a new trial.

Reversed and remanded.

SEIDENFELD, P. J., and LINDBERG, J., concur.