author: Mr. JUSTICE ALLOY

text:
    BORG-WARNER CORPORATION, Plaintiff-Appellee, v. MICHAEL M. MAUZY, Director, Illinois Environmental Protection Agency, et al., Defendants-Appellants.
    Third District
    No. 81-13
    Opinion filed October 8,1981.

      Tyrone C. Fahner, Attorney General, of Chicago (Nancy J. Bennett, Assistant Attorney General, of counsel), for appellants.
    Johnnine Brown Hazard and James T. Harrington, both of Rooks, Pitts, Fullagar and Poust, of Chicago, and Michael T. Reagan, of Hupp, Irion and Reagan, of Ottawa, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by the Illinois Environmental Protection Agency (hereinafter the Illinois EPA) from the circuit court’s action in granting injunctive relief and entering declaratory judgment for Borg-Warner Corporation. The court ordered the Illinois EPA to grant Borg-Warner an adjudicatory hearing on its application for renewal of National Pollution Discharge Elimination System Permit (hereinafter NPDES). It entered a permanent injunction forbidding the EPA from enforcing the 1980 permit until after the EPA had provided Borg-Warner with an adjudicatory hearing, in accordance with the procedures for contested cases set forth in the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1977, ch. 127, par. 1001 et seq.). The Illinois EPA appeals from the circuit court’s actions, arguing that no adjudicatory hearing is required prior to its determination on the issuance of a NPDES permit. The EPA asserts the court erred in concluding that a hearing was required at that time, and it asserts that error was committed in the granting of summary judgment in the declaratory action and in the imposition of temporary and mandatory injunctions against the EPA.

The record discloses the following pertinent facts. In October 1974 Borg-Warner was issued a NPDES permit from the United States EPA for its Linmar plant. The Linmar plant makes plastic pellets. Water used in the production process is thereafter treated in an activated sludge treatment plant, prior to discharge into the Illinois River. In order to discharge the water into the river, Borg-Warner was required, by Federal legislation, to obtain an NPDES permit. The permit, issued in 1974, Set specified conditions concerning discharge points, quantities and concentrations of materials discharged, monitoring techniques, and reporting requirements. The permit was issued for a five-year period, with expiration set for October 31, 1979. It specified that application for reissuance would have to be made within 180 days preceding the date for expiration. Within the time limit for reapplication, as set in the original permit, Borg-Warner submitted its application for reissuance of the NPDES permit. The application, made on May 2, 1979, was submitted to the Illinois EPA, who by that time had been given authority to administer the NPDES permit system in Illinois. The Illinois EPA took over' administration of the NPDES program in Illinois on October 23, 1977, after approval of its procedures was given by the U.S. EPA and after appropriate filing with the Secretary of State’s office.

The Illinois EPA issued a permit to Borg-Warner on May 21, 1980, which by its terms was to become effective on June 21, 1980. Prior to issuance of the permit, the agency had submitted, via required public notice, three proposed draft permits. Borg-Warner had submitted objections and extensive comments to each of the proposed draft permits. The objections addressed certain changes in the conditions of the permit from the conditions attached to the original 1974 permit issued by the U.S. EPA. The changed conditions on the permit included new, different, and more stringent limitations on the quantity and concentration of certain materials discharged into the river. In addition to its objections filed in response to each submitted draft permit, Borg-Warner also each time requested an adjudicatory hearing, under provisions of the Illinois Administrative Procedure Act (Ill. Rev. Stat. 1977, ch. 127, par. 1016) (hereinafter APA), which they alleged to be applicable. No adjudicatory hearing was held by the Illinois EPA and the permit, with modified conditions, was issued, as indicated, on May 2, 1980.

Borg-Warner thereafter filed an appeal of the contested conditions of the permit with the Illinois Pollution Control Board, as provided for in the PCB’s Rules and Regulations. An adjudicatory hearing was scheduled by the PCB to review the contested permit conditions pertaining to the NPDES permit issued by the EPA. Borg-Warner also sought a stay of any enforcement of the contested conditions, pending resolution of this circuit court action, filed at the same time, which sought a determination of the issue as to whether Borg-Warner was entitled to an adjudicatory hearing, under the Illinois APA, prior to any EPA action on the permit application. Pursuant to the request for a stay of the enforcement of those conditions, the PCB stayed the enforcement and effectiveness of the contested permit conditions until resolution of the case before the circuit court.

The circuit court action, now before us on this appeal, sought a declaratory judgment that the Illinois EPA was required to give Borg-Warner an adjudicatory hearing before making its determination to issue another permit, with modified conditions. Borg-Warner also sought injunctive relief preventing any enforcement of the contested conditions of the permit until after the circuit court had decided the issues. The circuit court eventually entered declaratory judgment for Borg-Warner, declaring that the Illinois EPA was required to give Borg-Warner an adjudicatory hearing before imposing the modified conditions of the NPDES permit. The court entered summary judgment in the case and granted Borg-Warner its request for a permanent injunction against any enforcement of the contested conditions, until after the Illinois EPA had granted Borg-Warner the required adjudicatory hearing. From these decisions and judgments the Illinois EPA appeals.

Before focusing upon section 16 of the Illinois APA (Ill. Rev. Stat. 1977, ch. 127, par. 1016) which is at the center of the dispute in this case, a preliminary issue is raised concerning application of the provisions of the Illinois APA to the NPDES permit process. Section 2 of the APA (Ill. Rev. Stat. 1977, ch. 127, par. 1002) states:

“Applicability. This Act applies to every agency as defined herein. Beginning January 1, 1978 in case of conflict between the provisions of this Act and the Act creating or conferring power on an agency, this Act shall control. However if an agency has existing procedures on July 1, 1977 specifically for contested cases or licensing those existing provisions control, except that this exception respecting contested cases and licensing does not apply if the Act creating or conferring power on the agency adopts by express reference the provision of this Act * °

The Illinois EPA argues that it had existing procedures for NPDES licensing and for contested cases on July 1,1977, and therefore, under the above stated statutory exception, the APA’s provisions do not apply. Specifically, the EPA asserts that the PCB’s Rules and Regulations on Water Pollution, being Rules 901-916, provided for NPDES licensing and that they were applicable prior to July 1, 1977. We disagree.

While those rules, which govern the NPDES permit system, were adopted by the PCB in 1974, by their own terms they were not to become effective until “the date when the Board files with the Secretary of State a copy of the letter approving the Illinois NPDES program by the Administrator of the United States Environmental Protection Agency pursuant to Section 402(b) of the FWPCA.” It is undisputed that the letter of approval, predicatory to effectiveness of the Rules, was not filed with the Secretary of State until October 1977. Thus, as of July 1, 1977, the pertinent date for exceptions to the applicability of the APA, there were no existing procedures for NPDES licensing. Until October of 1977, the U.S. EPA, not the Illinois EPA, made NPDES permit decisions. Since there existed no effective Illinois procedures for handling NPDES permits as of July 1, 1977, the provisions of the Illinois APA are applicable.

The next issue, and the central one on this appeal, is whether section 16 of the APA (Ill. Rev. Stat. 1977, ch. 127, par. 1016) requires that the EPA provide Borg-Warner with an adjudicatory hearing prior to its issuance of a renewed NPDES permit which contains significant changes in the conditions imposed upon permittee Borg-Warner. Section 16 states:

“Licenses, (a) When any licensing is required by law to be preceded by notice and opportunity for hearing, the provisions of this Act concerning contested cases shall apply.
(b) When a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license shall continue in full force and effect until the final agency decision on the application has been made unless a later date is fixed by order of a reviewing court.
(c) No agency shall revoke, suspend, annul, withdraw, amend materially, or refuse to renew any valid license without first giving written notice to the licensee of the facts or conduct upon which the agency will rely to support its proposed action, and an opportunity for hearing in accordance with the provisions of this Act concerning contested cases. At any such hearing, the licensee shall have the right to show compliance with all lawful requirements for the retention, or continuation or renewal of the license. If, however, the agency finds that the public interest, safety or welfare imperatively requires emergency action, and if the agency incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action which proceedings shall be promptly instituted and determined.
Any application for renewal of a license which contains required and relevant information, data, material or circumstances which were not contained in an application for the existing license, shall be subject to the provisions of Section 16(a) of this Act.”

Borg-Warner argues, and the circuit court found, that a hearing was required under both section 16(a) and section 16(c) prior to EPA action on the NPDES permit. Under section 16(a), the predicate to application of the contested case provisions of the APA is a legal requirement that the licensing be preceded by notice and opportunity for a hearing. Section 16(a) does not, of itself, establish a right to a hearing. Rather, it directs that the contested case procedural requirements apply where such a hearing is otherwise legally required to be afforded an applicant before a decision on a license. As used in the APA, a legal requirement that action be preceded by notice and “opportunity for a hearing” indicates a situation wherein an applicant is entitled to be afforded a hearing, if he so desires it. The contested cases provisions are not implicated where the ultimate decision on whether to hold a hearing is left to the discretion of the agency.

In this case, the circuit court concluded that the legal requirement of a hearing prior to agency action was to be found in Section 402(a) of the Federal Water Pollution Control Act (33 U.S.C. § 1342(a) (1980)), in section 909 of the Water Rules and Regulations of the Illinois EPA, and in the due process clause of the State and Federal constitutions. It is to these asserted bases for application of section 16(a) that we now turn.

Water Rule 909(a), as adopted by the Illinois PCB and as is applicable to the NPDES permit application involved in this case, states:

“(1) The agency shall hold a public hearing on the issuance or denial of an NPDES Permit or group of permits whenever the Agency determines that there exists a significant degree of public interest in the proposed permit or group of permits (instances of doubt shall be resolved in favor of holding the hearing) to warrant the holding of such a hearing.
(2) Any person, including the applicant, may submit to the Agency a request for a public hearing or a request to be a party at such a hearing, to consider the proposed permit or group of permits. Any such request for public hearing shall be filed within the 30-day public comment period and shall indicate the interest of the party filing such a request and the reasons why a hearing is warranted.”

It is apparent from the language of this Rule that the decisions as to whether to hold a public hearing is to be made by the Agency, based upon its determination as to the existence of a significant degree of public interest in the permit or group of permits. It is a discretionary decision to be made by the Agency. Rule 909(a)(2) establishes that the party requesting a public hearing has the burden of showing why it is warranted. Certainly, agency action on a decision is reviewable, subject to an abuse of discretion standard, but the availability of review over the determination does not alter the essentially discretionary nature of the determination. Since the public hearing provided for in Rule 909(a) is discretionary with the EPA, that rule is not a basis for invoking the APA’s section 16(a). As noted, before application, through section 16(a), of the contested case provisions to licensing, it is necessary that a hearing be required by law to precede the licensing. Water Rule 909(a) does not require such a hearing.

Borg-Warner next argues that section 402 of the FWPCA legally requires a hearing before agency action on a NPDES permit application. Section 402(a)(1) states, in pertinent part, that the “Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant." (33 U.S.C. § 1342(a) (1980).) Section 402(b) of the FWPCA provides that the U.S. EPA may authorize a State to administer the NPDES program if the State program has authority, among other things, to provide opportunity for public hearing before ruling on such application. (33 U.S.C. § 1342(b) (1980).) Federal regulations put into effect the notice and hearing requirements of section 402(a) as applied on the Federal level. (40 CFR parts 124,125 (1981).) The Federal regulations set forth a regulatory scheme, with respect to opportunity for public hearing, substantially similar to that adopted by the PCB in Illinois.

Under the regulations, the EPA may issue a NPDES permit without first holding an adjudicatory hearing at the request of the applicant. The Federal regulations provide that notice must be sent out and published, and they also provide that if the Regional Administrator “finds a significant degree of public interest in a proposed permit” he is to hold a public meeting at which interested parties may submit oral or written statements and data. (40 CFR part 125.34 (1981).) Holding of a public hearing prior to action on a permit application is a discretionary decision left to the Regional Administrator. The only adjudicatory hearing requirement under Federal regulations comes after the EPA’s decision on a permit.

40 CFR part 125.36 (1981) gives any interested party 20 days, after a determination by the EPA on a permit, in which to request an “adjudicatory hearing” or a “legal decision” with respect to that EPA determination. If such a request is made, then the effectiveness of the permit is automatically stayed, until after such hearing has been held or decision rendered. (40 CFR part 125.35(d)(2) (1981).) The statutory scheme and the EPA’s implementing regulations have been upheld as valid and fully consistent with the legislative purpose in the FWPCA. (Costle v. Pacific Legal Foundation (1980), 445 U.S. 198, 63 L. Ed. 2d 329,100 S. Ct. 1095.) In Costle, the United States Supreme Court thus upheld an interpretation of Section 402(a)’s requirement for opportunity for hearing which (1) provides only for a discretionary public hearing before the issuance of a permit, and (2) provides for an adjudicatory hearing, before a different body, after issuance of a permit. The Illinois regulatory scheme over NPDES permits is substantially similar. Under it, as already noted, the EPA is given the power to hold a public hearing prior to its decision on a permit, when it determines that a significant degree of public interest warrants it. (Water Rule 909(a)(1).) If a hearing is held, the EPA decision is made after the hearing. If no hearing is held, the decision is rendered after the period for notice and comment has ended. In the instant case, prior to its determination, the EPA submitted three draft permits and received considerable comment and response from applicant Borg-Warner. Under the Illinois scheme, approved by the U.S. EPA, as required by Federal statute, after the Illinois EPA determination on a permit, the party seeking a permit may appeal the EPA decision to the Illinois PCB. (Water Rule 911; Procedural Rule 502(b), PCB’s Rules and Regulations.) Such an appeal to the PCB includes a right to an adjudicatory hearing before the PCB. That hearing is conducted under rules for adjudicatory cases, and the PCB may make a decision de novo on the permit application. In addition, the PCB may, under its procedural rules, stay enforcement of any permit decision by the EPA, pending its review over that action.

Such an appeal to the PCB was made by Borg-Warner in this case, and an adjudicatory hearing before the PCB is available to Borg-Warner, regardless of our decision with respect to the existence of a hearing requirement prior to the Illinois EPA’s decision on the permit application. We also note that the PCB granted a stay of the permit conditions that are contested, pending resolution of this circuit court action. As will be discussed more fully later on in this opinion, the effectiveness of the contested permit conditions would have to be stayed under section 16(b) of the APA in any event.

It is our conclusion that the Illinois regulations implementing section 402 of the FWPCA are valid and that they satisfy the hearing requirements of Section 402(a). There is no requirement in section 402(a) that an adjudicatory hearing be held prior to the time the EPA makes its determination on a permit application. (Costle v. Pacific Legal Foundation (1980), 445 U.S. 198, 63 L. Ed. 2d 329,100 S. Ct. 1095.) Borg-Warner relies upon two Federal cases in support of its claim that an adjudicatory hearing is required before action by the EPA. (United States Steel Corp. v. Train (7th Cir. 1977), 556 F.2d 822; Marathon Oil v. EPA (9th Cir. 1977), 564 F.2d 1253.) Both of these cases involved the Federal regulatory scheme which offers an adjudicatory hearing after an initial U.S. EPA determination on a permit application. Both cases held that certain procedural requirements of the Federal APA are applicable to that adjudicatory hearing, but neither case found that an adjudicatory hearing was required prior to EPA action determining the permit application. As noted, the regulatory scheme on the Federal level has been approved by the United States Supreme Court in Costle and, as to hearing requirements, that scheme has essentially been adopted in Illinois.

Borg-Warner’s next argument in support of the required adjudicatory hearing before any agency action on a permit is that such hearing is required by due process considerations. This issue has been decided by several Illinois Appellate Courts which have addressed the question. (United States Steel Corp. v. Pollution Control Board (1977), 52 Ill. App. 3d 1, 367 N.E.2d 327; Peabody Coal Co. v. Pollution Control Board (1976), 36 Ill. App. 3d 5, 344 N.E.2d 279.) Both cases held that the Illinois regulatory scheme for NPDES permits comports with due process requirements. As stated in United States Steel Corp.:

“Petitioner also contends that administrative procedural due process is satisfied only where ‘the requisite hearing is held before the final order becomes effective.’ [Citations.] Petitioner argues that the terms of the permit which make it effective prior to the opportunity for a due process hearing fail to satisfy the procedural due process requirement of Bell v. Burson (1971), 402 U.S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586.
Substantially, these very same arguments contesting the validity of Rule 909(h) were addressed by the Fifth District of this court in Peabody, 36 Ill. App. 3d 5,16-19. We are in accord with that court’s reasoning and holding as applies to this issue only. In Peabody, the court found Rule 909(h) was valid. The Peabody court further determined that:
‘The government’s interest in making permits effective when issued is great, as it allows the government to restrict the amount of pollutants being discharged into the waters of Illinois. This in turn promotes the State’s interest in protecting the public health and environment. Without this requirement permit applicants could postpone a permit’s effective date until all administrative and judicial appeals were completed, perhaps several years.’ [Citation.]
In addition, the court found that the procedural safeguards, which are also present in the instant case, were sufficient to protect petitioner’s due process rights. * * (52 Ill. App. 3d 1, 8.)

Borg-Warner argues that because it was issued an original license, and the current case involves a renewal of an originally issued license, that, therefore, due process requires a stay of the effectiveness of the renewal permit, until after its hearing before the PCB. It argues that because it had obtained the original license, greater due process requirements ought to be afforded it than where a party is applying for a permit for the first time. We need not reach the question of whether due process requires a stay of the effectiveness of a renewal permit until after the PCB’s decision following the hearing. Under applicable Illinois statutes, such a stay of the effectiveness of a renewal permit is required. Section 16(b) of the Illinois APA provides that “when a licensee has made timely and sufficient application for the renewal of a license or a new license with reference to any activity of a continuing nature, the existing license shall continue in full force and effect until the final agency decision on the application has been made unless a later date is fixed by order of a reviewing court.” (Ill. Rev. Stat. 1977, ch. 127, par. 1016.) In this case Borg-Warner made application for renewal of its NPDES permit, that application was timely and sufficient on the record before us, and therefore its original permit continues in effect until final action on the application by the administrative bodies charged with making the determination. A final decision, in the sense of a final and binding decision coming out of the administrative process before the administrative agencies with decision making power, will not be forthcoming in the instant case until the PCB rules on the permit application, after Borg-Warner has been given its adjudicatory hearing before the PCB. Thus, until that time, under section 16(b), the effectiveness of the renewed permit issued by the EPA is stayed.

In summary, we find no requirement, either in Federal law or State rules and regulations, that an adjudicatory hearing be held before a determination by the Illinois EPA on a NPDES permit application. As such, the prerequisite for applying the contested case provisions of the Illinois APA, under section 16(a), is not present.

Having determined that section 16(a) of the Illinois APA is not applicable to the NPDES permit process herein at issue, we turn next to section 16(c), set out previously in the opinion. The first paragraph begins by stating:

“No agency shall revoke, suspend, annul, withdraw, amend materially, or refuse to renew any valid license without first giving written notice to the licensee * * *, and an opportunity for hearing in accordance with the provisions of this Act concerning contested cases.”

The first part of this language obviously deals with situations wherein an agency has already granted a license and that license is still in effect. Having granted a license, no agency, during the effective period of that license, may revoke, suspend, annul, withdraw or materially amend the license, unless it first gives the licensee holding the valid license notice and opportunity for a hearing. Neither may an agency, under language of first paragraph of section 16(c), refuse to renew a license that would otherwise be routinely or perfunctorily renewed, unless it gives notice and opportunity for hearing to the licensee before such action. That the language with respect to renewals in the first paragraph of section 16(c) is meant to apply to situations wherein renewal is normally routine and perfunctory can be seen when the second paragraph of section 16(c) is examined.

It states:

“Any application for renewal of a license which contains required and relevant information, data, material or circumstances which were not contained in an application for the existing license, shall be subject to the provisions of Section 16(a) of this Act.”

This language has application to renewals which are not routine and perfunctory. It applies in those cases wherein application for renewal is required to be accompanied by information, data or material different from that contained in the application for the original license. Thus, if an applicant is required to submit additional or different data from that originally submitted, then section 16(a) applies. However, as already determined, section 16(a) requires as a predicate to its application of the uncontested case provisions that there be a legal requirement of a hearing before agency action.

In the instant case, Borg-Warner’s reapplication for the NPDES permit comes within the ambit of the second paragraph of section 16(c). Borg-Warner was applying for renewal of its permit, but it could not rely upon the information and data it had submitted in the 1974 application. This 1979 permit application required Borg-Warner to submit information and data concerning current discharges, current operation levels and methods, current abilities to comply with regulations, and current compliance record under the old permit. NPDES permits, so far as the record indicates, are not routinely renewed every five years, based upon material submitted in the original application. Thus, the renewal in such cases comes under second paragraph of section 16(c). Thereby, section 16(a) is brought into the process. However, as already determined, section 16(a) only requires the contested case procedural rules where a hearing is otherwise required by law to precede licensing. Section 16(a), as noted, creates no rights to a hearing by its own terms. Therefore, the next inquiry as to what is required under section 16(a) must be whether there is a separate legal requirement for a hearing preceding agency action. In our previous discussion of section 16(a)’s application we have already determined that no hearing is required, under either State or Federal law, prior to the time the EPA makes its determination of a permit. As such, section 16(a), as invoked through section 16(c), does not require an adjudicatory hearing prior to agency action on a NPDES renewal permit application.

The trial court erred in concluding that an adjudicatory hearing was required under section 16 of the APA, and its declaratory judgment setting forth that conclusion is reversed. The APA’s section 16 requires no adjudicatory hearing prior to EPA determination of Borg-Warner’s application for a renewed NPDES permit. Furthermore, since the basis for the grant of injunctive relief was the court’s conclusion that a hearing was required prior to the EPA determination, the orders of the circuit court granting such relief are hereby reversed as well. The cause will be remanded for further proceedings within the administrative context, specifically for the requested adjudicatory hearing before the PCB. As already discussed, the effectiveness of the 1979 permit issued.by the EPA is stayed under provision for such stay in section 16(b) of the Illinois APA. Ill. Rev. Stat. 1977, ch. 127, par. 1016(b).

We would note, in conclusion, that despite our reversal of the circuit court’s decision, Borg-Warner is nevertheless in essentially the same position it found itself in following that order. That is, it shall receive an adjudicatory hearing on its permit renewal application prior to the time that renewed permit becomes effective.

The decision of the Circuit Court of La Salle County is reversed, and the cause is remanded for further proceedings in accordance with the views expressed in this opinion.

Reversed and remanded with directions to proceed in accordance with views in this opinion.

SCOTT, P. J., and HEIPLE, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE HARRISON

license: Public Domain

text:
      In re MARRIAGE OF STEVEN WAYNE REED, Petitioner-Appellant, and BETTY JEAN REED, Respondent-Appellee.
    Fifth District
    No. 80-455
    Opinion filed September 25, 1981.

      Katherine J. Tillery, of Kassly, Bone, Becker, Dix & Tillery, P. C., of Belleville, and Steven P. Seymour, of Effingham, for appellant.
    F. Ronald Ealy, of the Law Offices of Ealy, Bower & Meyer, of Effingham, for appellee.
   Mr. JUSTICE HARRISON

delivered the opinion of the court:

On September 18,1979, petitioner Steven Reed brought an action for dissolution of marriage pursuant to section 401 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 401). He now appeals from that portion of the dissolution decree setting forth the property distribution, the rehabilitative maintenance, and the visitation. He raises the following issues for our consideration: First, whether the trial court erred in awarding respondent one-half of the marital property; second, whether the trial court erred in awarding respondent rehabilitative maintenance in the amount of $2400 per year for a period of two years; third, whether the trial court erred in finding that the interest earned on petitioner’s nonmarital property was marital property; fourth, whether the trial court erred in requiring petitioner to assume respondent’s indebtedness for certain real property; and fifth, whether the trial court erred in its visitation order. We affirm the trial court on all points.

The first issue is whether the trial court erred in awarding Mrs. Reed one-half of the marital property. Section 503(c) of the Act provides the court with guidance when it is faced with the complex task of dividing marital property. (Ill. Rev. Stat. 1979, ch. 40, par. 503(c).) It requires the trial court to consider all relevant factors including, but not limited to, the 10 factors thereafter listed. (In re Marriage of Fryer (1980), 88 Ill. App. 3d 454, 457, 410 N.E.2d 596.) An examination of the record reveals that the trial judge referred explicitly to many of these factors when deciding to award one-half of the marital estate to Mrs. Reed. If a property distribution results in substantially equal shares for both parties and it is apparent from the record that the court thoughtfully and carefully applied the rationale of the statute to the facts before it, then the court did not abuse its discretion and the award will not be disturbed on review. In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 1129, 403 N.E.2d 730.

Mrs. Reed made major contributions as a homemaker during the couple’s 34-year marriage. As a farmer’s wife, she did the gardening, canning, and packaging of the meat; this in addition to raising 14 children and managing the household. Though different in kind from the contributions of her former husband, they were no less significant. While an equal distribution of property is not always an equitable distribution, in this case the facts warranted it. In re Marriage of Stralow (1981), 95 Ill. App. 3d 235, 237, 419 N.E.2d 1227.

The argument that the respective one-half shares of each party should be offset in favor of the father because he received custody of the five minor children must be balanced with the argument that the mother is virtually unemployable and unable to support herself. Mr. Reed retained possession of the marital residence, the 100-acre farm, the livestock, the farm equipment and the machinery. These alone constitute ample means to provide a livelihood for himself and his children. In addition, he possesses skills as a carpenter and owns one-fourth interest in a construction business with three of his sons. He testified that should he decide to liquidate the partnership and devote himself full-time to farming, he would be able to make the farm even more profitable than it had been in the past. Taking into account his other assets, it is plain that he has sufficient resources to maintain a secure and productive style of life.

Mrs. Reed, on the other hand, has no marketable skills and has been employed outside the home only once since she was married (a brief stint as a factory worker). After moving from the marital home, she found a job as a waitress in a truck stop but lost that after the first month. She has been unable to locate any other work.

The judge undoubtedly considered the great discrepancies in their economic status. When dividing the marital estate, he decided that Mrs. Reed’s “just proportion” amounted to nearly one-half of the estate even though Mr. Reed had to support the five minor children. We agree with the trial court’s assessment.

Appellant’s suggestion that the mother should be required to contribute child support to the marital household is totally unrealistic in light of her age, lack of training, and poor income-earning potential. While we acknowledge generally that both parents should exercise responsibility for their children’s support, this obligation is not mandatory in all situations. (Tilmon v. Tilmon (1979), 74 Ill. App. 3d 111, 118, 391 N.E.2d 1086.) In Tilmon the court denied the father’s request for support from a noncustodial mother, noting that the children were close to the age of majority and that the mother had no foreseeable opportunity to earn money. (Tilmon, 74 Ill. App. 3d 111, 117.) In this case, five children will remain with the father, but two of them are near the age of majority and will probably no longer be dependent upon him for total support. We have already pointed out the relative ease with which Mr. Reed can earn a living as contrasted with Mrs. Reed’s inability to do so. We find the cases from other jurisdictions unpersuasive, and decline to set a precedent whereby support payments are imposed on the noncustodial parent regardless of that parent’s ability to pay and regardless of the needs of the children. We remind the parties that section 505 emphasizes that the amount of child support is to be determined by accommodating the needs of the children with the available means of the parties. (Ill. Rev. Stat. 1979, ch. 40, par. 505; accord, Dull v. Dull (1979), 73 Ill. App. 3d 1015, 1019, 392 N.E.2d 421.) The record demonstrates that these children’s needs will be adequately met by their father. Thus, child-support payments are unnecessary.

Appellant further challenges the part of the property distribution which orders Mr. Reed to assume his former wife’s indebtedness. As previously stated, the trial court awarded the entire farm to Mr. Reed, the spouse in whose custody the children had been placed. Recognizing that Mrs. Reed wished to remain in a home she recently purchased, the judge then offset her share in the marital residence by requiring Mr. Reed to take over her loan and make her house payments. This arrangement was sound and well within the trial court’s discretion. In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1085, 412 N.E.2d 1336.

Mr. Reed’s challenge of the two-year rehabilitative maintenance award is also without merit. Section 504 authorizes a maintenance order in situations where the recipient lacks sufficient property, is unable to support herself, or is otherwise without sufficient income. The court must balance all relevant factors in determining the amount and duration of the award, including the party’s needs and available resources. The trial court’s decision to grant the wife $2400 per year for two years was a reasonable approach. We doubt that the court anticipated Mrs. Reed would train or educate herself for a new career during the two-year interim. More than likely the trial court hoped to provide an economic cushion during that time between the commencement of the lump sum property settlement payments from Mr. Reed and the time their investment would begin producing a cash return. Assuming Mrs. Reed will eventually support herself on the interest and other investment proceeds derived from her share of the marital estate, the equitable approach was to provide her with a small temporary maintenance award for the years before that income-earning potential could be realized. Since the overall picture must be considered in disposing of marital property (In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 636, 397 N.E.2d 488), we believe the court displayed a remarkable degree of fairness and wisdom, and thus affirm the marital property award in its entirety.

Appellant next contends that the trial court erred in characterizing the interest earned on Mr. Reed’s nonmarital property as marital property. Although property acquired before marriage is nonmarital and its increase in value is likewise nonmarital, any income derived from such property during marriage is deemed marital. The legislature intended this rule to apply to premarital accounts drawing interest during marriage, as in the case before us. (Ill. Ann. Stat., ch. 40, par. 503(a)(6), Historical and Practice Notes, at 463 (Smith Hurd 1979); accord, Broussard v. Broussard (La. 1976), 340 So.2d 1309, where interest on premarital savings was held to be community property.) Thus, the decision that Mr. Reed’s certificate of deposit was nonmarital property but that the interest earned on the account was marital property is completely consistent with statutory language and legislative intent.

Finally, Mr. Reed argues that the trial court erred in its visitation order. We feel, however, that the arrangement reflects a considered and realistic approach to the problem. The order requiring Mr. Reed to assume responsibility for transporting his two youngest sons home on Sunday is fair and reasonable and does not constitute a hardship. Making it mandatory that the three older children participate in the trip once a month insures that a minimum of contact between the older children and their mother will occur. It is the most that could be hoped for, in light of the hostility expressed by the Reed children. The court is optimistic that this hostility will diminish and a sense of affection will be renewed. The present visitation schedule affords the members of the family the opportunity to communicate with each other, and will thus foster the atmosphere in which such a renewal may take place.

As with most issues on review, the trial court is accorded great deference in domestic matters. It makes its decision after hearing all the testimony and assigning weight to various factors. Absent a finding of an abuse of discretion, we will not overturn a fair and well-reasoned decision. The judgment of the trial court is hereby affirmed.

Affirmed.

KASSERMAN, P. J., and WELCH, J„ concur.


author: Mr. JUSTICE LINN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDRE LOUIS AGEE, Defendant-Appellant.
    First District (4th Division)
    No. 80-69
    Opinion filed September 24,1981.

      Frederick F. Cohn, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Marcia B. Orr, Mike Bradley, and Casimir J. Bartnik, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LINN

delivered the opinion of the court:

Following a bench trial, defendant was convicted of robbery and sentenced to a term of 5 years in the Illinois Department of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 18 — 1 and 1005 — 8—1(5)); the sentence was to run concurrently with another sentence previously imposed in an unrelated prosecution. The issues presented are (1) whether defendant’s arrest was unlawful, tainting the subsequent lineup identification of him and rendering it inadmissible; (2) whether the victim’s identification of defendant is insufficient to sustain a conviction; and (3) whether defendant was denied a fair suppression hearing by the trial court’s refusal to call the victim as a court’s witness.

We affirm.

Factual Background

The victim, Terrence Shields, was a cab driver. He was robbed on Sunday, August 6, 1978, at 1:30 a.m. in the area of Division and Noble in Chicago by his two passengers. The principal issue at trial was the accuracy of Shields’ identification of defendant as one of his assailants.

Shields testified that defendant and another man hailed his cab on Division Street between State and .Dearborn and directed him to drive to an address near Division and Noble. The trip took about 15 minutes, during which time Shields observed defendant, who was on the right hand side of the back seat, both by turning around to converse with him and by looking at his reflection in the rear view mirror. When Shields stopped at the requested destination, defendant put a stranglehold on him from the back seat. Defendant’s companion, who had previously gotten out of the taxi, reached through the open window next to Shields and took his watch, change pouch and the money out of his wallet and shirt pocket. Throughout the robbery the vehicle dome light was on and Shields again looked at both men. One of the men then said he had a gun, and_ he ordered Shields to drive away. Shields complied, and he observed the men walk away into a nearby housing area as he left.

On August 29, 1978, two police investigators showed Shields five photographs, and he made a positive identification of defendant as one of the robbers, but he requested that he be allowed to see defendant in person in order to be absolutely certain in his accusation. The next day Shields viewed a lineup at the police station, where he made a positive identification of defendant.

Defendant denied robbing Shields but did not recall his whereabouts on the night of August 5, or the morning of August 6, 1978. He admitted, however, that he was living with his grandmother at Burling and Division and often visited his mother, who lived at Milwaukee and Noble in Chicago.

At the suppression hearing, defendant argued that his arrest was illegal, tainting the resultant lineup identification; that he was held for the lineup without being taken before a judge in violation of section 109 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1977, ch. 38, par. 109 — 1); and that at the time of the lineup formal adversarial judicial proceedings had commenced against him and he therefore had, but was denied, his sixth amendment right to counsel (U.S. Const., amend VI). Following an evidentiary hearing, the trial court found that defendant was properly in police custody at the time of the lineup, that no formal proceedings had commenced and defendant had no right to counsel, and that securing a lineup identification of defendant as a robbery suspect prior to taking him before a judge did not violate the Code of Criminal Procedure of 1963.

The following events preceded the lineup and in substantial part form the basis of this appeal. On August 30,1978, defendant was on trial in the Maybrook courthouse for an unrelated criminal charge. Two Chicago Police Department investigators arrived at the courtroom to secure defendant’s presence at a lineup in conjunction with the Shields’ robbery. The jury was deliberating, and the prosecutor wanted to avoid anything that might have precipitated a mistrial, so he requested that the officers not take custody of defendant until after the verdict was announced. When the jury returned a guilty verdict, the presiding judge revoked defendant’s bond and remanded him to the custody of the Cook County sheriff for transport to Cook County jail pending the sentencing hearing. The deputy confined defendant in the Maybrook courthouse lockup while awaiting defendant’s transportation to Cook County jail. At that point, the Chicago police investigators received authorization from the Cook County sheriff’s supervisor to take defendant to Area 4 Headquarters for the lineup, with the understanding that the officers would subsequently personally transport defendant to the Cook County jail. Three Cook County deputies testified that they would not release anyone in their custody to the police without a supervisor’s authority, and a fourth deputy testified that he was ordered to turn defendant over to the investigators by his superior. At the time of the hearing the supervisor referred to was deceased. There was no specific regulation or statute authorizing the transfer of custody, only a general understanding that the sheriff’s office should cooperate with other police departments.

Opinion

Defendant’s argument is that the supervisor’s authorization to transfer custody of him to the Chicago police was in violation of the trial court’s order directing the Cook County sheriff to take custody of him and to transport him to Cook County jail. Defendant posits that the proper procedure would have been for the police officers to secure a custody order from the judge who presided at the trial. Defendant reasons that he then would have been at the lineup pursuant to court order and would have had a constitutional right to be represented by counsel.

We find no authority to substantiate defendant’s contention that the Cook County sheriff’s supervisor violated the trial court’s order or that the police investigators were required to obtain a custody order from the presiding judge. Nor do we agree that if the order had been issued by the trial judge that that would have constituted the initiation of an adversary judicial proceeding against defendant. Arrest warrants are, in fact, issued by judges, and the fact that a defendant is placed in a lineup after an arrest pursuant to a warrant does not alone institute a formal judicial proceeding.

The right to counsel does not attach until after the initiation of adversary judicial proceedings against an accused. The pre-indictment lineup was not a critical stage of a criminal prosecution, and defendant did not have a constitutional right to counsel at that time. (Kirby v. Illinois (1972), 406 U.S. 682, 690, 32 L. Ed. 2d 411, 92 S. Ct. 1877; People v. Burbank (1972), 53 Ill. 2d 261, 271-72, 291 N.E.2d 161.) Nor did such a right to counsel arise merely because at the time the lineup was held, defendant was in custody on an unrelated criminal matter. The lineup identification was not used in the earlier case, and the State had not initiated a formal prosecution against him in connection with the Shields’ robbery. United States v. Tyler (5th Cir. 1979), 592 F.2d 261, 263.

Similarly, defendant did not have a right to counsel merely because charges were subsequently brought against him. The police investigators clearly had probable cause to make a warrantless arrest of defendant based upon Shields’ positive photographic identification. (Ill. Rev. Stat. 1979, ch. 38, par. 107 — 2(c); People v. Richmond (1980), 84 Ill. App. 3d 1017, 1020, 406 N.E.2d 135; People v. McClinton (1978), 59 Ill. App. 3d 168, 175, 375 N.E.2d 1342; People v. Henderson (1974), 20 Ill. App. 3d 120, 123, 312 N.E.2d 655.) A warrantless arrest made on probable cause, even though defendant was subsequently charged, did not initiate adversary judicial proceedings giving rise to a right to counsel at the pre-indictment lineup. See Caver v. Alabama (5th Cir. 1978), 577 F.2d 1188, 1195.

Even assuming arguendo that the lineup identification should have been suppressed, that would not have affected the admissibility of Shields’ in-court identification of defendant. This court has established that Illinois has no per se rule of exclusion of identification evidence following a faulty arrest or lineup. (People v. Dangerfield (1979), 78 Ill. App. 3d 1046, 1048-49, 398 N.E.2d 57.) The test of admissibility is whether the in-court identification has an independent origin arising from other uninfluenced observations of the defendant. Dangerfield, at 1049-50; see People v. Faulisi (1977), 51 Ill. App. 3d 529, 533-34, 366 N.E.2d 1072; People v. Stinson (1976), 37 Ill. App. 3d 229, 235, 345 N.E.2d 751.

The Supreme Court in United States v. Crews (1980), 445 U.S. 463, 477, 63 L. Ed. 2d 537, 549-50, 100 S. Ct. 1244, 1252-53, recently held that an in-court identification does not necessarily have to be suppressed as the fruit of defendant’s unlawful arrest if the identity of the witnesses and their presence in the courtroom are not secured as a result of defendant’s unlawful arrest, and the witnesses had the ability to identify the defendant before the unlawful arrest; that is, the evidence or ability to identify defendant was in existence prior to any police misconduct. The court also stated, with respect to trial after an unlawful arrest, a defendant “cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution * * 445 U.S. 463, 474, 63 L. Ed. 2d 537, 547, 100 S. Ct. 1244, 1251.

In this case Shields observed defendant for over 15 minutes at close proximity from the front seat of his cab and in his rear view mirror and the dome light was on during the robbery. The trial court found that Shields had ample opportunity to observe defendant and make a correct identification. Further, it was the trial court’s impression that Shields’ in-court identification was without equivocation or hesitation. Hence, the in-court identification was made independently of the lineup identification and was admissible.

Defendant’s next argument is that Shields’ identification of him is insufficient to sustain a conviction because he testified that, after making the positive photographic identification of defendant, he requested the opportunity to see defendant in person to affirm his identification. As set forth above, the trial court found that Shields had ample opportunity to observe his assailants and he made an unequivocal identification of defendant. Therefore, Shields’ testimony is adequate to support the conviction. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. Jones (1980), 82 Ill. App. 3d 386, 401, 402 N.E.2d 746; People v. Bristow (1980), 80 Ill. App. 3d 535, 538, 400 N.E.2d 511.

Defendant also argues that Shields’ in-court identification of him is unreliable because prior to trial, defense counsel showed Shields a photograph of three black males and asked him to put an “X” over the one who looked like defendant. Shields testified that although he had doubt that any of them was defendant, at counsel’s behest he placed an “X” over the man who looked similar to defendant. Defendant claims that Shields’ uncertainty as to whether the person over whom he placed an “X” was defendant negates his identification testimony. We find this argument unpersuasive in view of the fact that none of the three men in the photograph was, in fact, defendant and Shields was told to select the man who looked like defendant.

Defendant’s final contention is that he was denied a fair hearing on his motion to suppress the lineup identification. Defendant called Shields as a witness and attempted to discredit his initial photographic identification by eliciting an admission that Shields erroneously identified defendant in the photograph pf the three black men shown him by the defense attorney. Shields’ testimony was that he said the man in the photograph looked like, but was not, defendant. Defendant moved to have Shields called as a court’s witness so he could cross-examine him. Defense counsel made an offer of proof that Shields initially identified defendant in the photograph and later said he only resembled defendant.

The court declined to call Shields as a court’s witness, but took note of the discrepancy. The trial court clearly considered the conflicting testimony in assessing Shields’.credibility as an identification witness. Determination of the credibility of the witnesses and the weight to be given their testimony is strictly within the purview of the trier of fact. On review, we will not substitute our judgment for that of the trial court who had the opportunity to observe the demeanor of the witnesses. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert, denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513; People v. Cazares (1980), 86 Ill. App. 3d 612, 615, 408 N.E.2d 258.

Accordingly, for the reasons noted, the judgment of the circuit court is affirmed.

Affirmed.

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


author: Mr. JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT JAMES, Defendant-Appellant.
    First District (4th Division)
    No. 80-1460
    Opinion filed September 24,1981.

      Steven Clark and Edwin R. McCullough, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Georgia A. Buglass and Kathleen M. McGury, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court;

After a jury trial, defendant, Robert James, was convicted of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1(a)(2), (a)(3)) and attempted armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4). He was sentenced to a term of 50 to 90 years for murder, and 5 to 15 years for attempted armed robbery, sentences to run concurrently.

On appeal, defendant presents the following issues for review: (1) whether the trial court erred by allowing testimony not contained in any discovery material; (2) whether the trial court erred by allowing testimony about other crimes; (3) whether the trial court erred by allowing testimony about defendant’s use of narcotics; (4) whether the trial court erred in permitting the prosecution to rehabilitate a witness by eliciting prior consistent statements made by the witness; and (5) whether the defendant was proved guilty beyond a reasonable doubt. We affirm.

The testimony at trial was as follows: Mary Broomfield testified that she is presently residing in the Dwight Correctional Facility for committing murder and attempted armed robbery of Rubin Carter on May 28,1974. The witness stated that she was in the company of Robert James and Robert Jones in the Top Hat Lounge at 10:30 a.m. on that date. The three of them went for a ride and then proceeded to the home of Robert James and his wife in the 4900 block of Quincy Street, Chicago. James’ wife was out of town. While there, they injected heroin into their arms. They left the apartment around 2 p.m. As they were leaving, they discussed robbing someone in front of a currency exchange. The plan was to go to the currency exchange, wait for someone who had cashed a check to come out, and “take them into the alley and stick them up.” They decided to drive to the currency exchange at Roosevelt and Western. There, James and Jones left the car, returning a few minutes later. According to the witness, they then drove to her sister’s house at 3400 Maypole, picked up her television set, drove to 14th Street and Ashland, and returned to her sister’s house.

Further testifying the witness stated that after leaving her sister’s home around 4 p.m., they proceeded to Cook County Hospital with the intention to rob the catering truck driver. They parked on Flournoy Street. James and the witness exited the car, walked over to Wood Street, and walked down the sidewalk nearest the parked catering truck. They walked to the corner, passing the truck in order to “check it out.” The driver was standing at the rear of the truck. Broomfield stated she stood approximately 12 feet from the catering truck as James pulled out a gun and told the driver that it was a robbery and to give him the money. The driver shook his head and backed away from James. James followed him up the stairs to the Cook County Children’s Hospital. The driver kicked at James; James hit the driver with the gun, the gun discharged, and the man fell to the ground. James ran down the stairs, grabbed the witness by her arm, and they both ran to the car. Thereafter, the witness, James and Jones went to James’ apartment on Quincy Street. Jones left 5 minutes later. The witness stated that she and James stayed there overnight. Jones came by the next morning and took the witness home.

On cross-examination, Broomfield stated she has also been known as Tina Harper. She began using drugs in 1965 and stopped in 1974. She indicated that she will lie when it is convenient for her. The witness stated that she was arrested on May 31, 1974. At that time, she told the officers she was a prostitute. They questioned her concerning her activities on May 28,1974. She did not inform them of the plan to rob someone in front of the currency exchange. She did not reveal any information concerning the murder and attempted robbery that took place on May 28,1974, until May 9, 1978. She stated that she hoped to receive some consideration for her testimony; the prosecutor said he may help her.'

Elijah Jones, Jr., testified that he is a mtechanic and was at Cook County Children’s Hospital on May 28,1974, visiting his daughter. He saw the catering truck driver get shot. He went to the catering truck to obtain a soft drink. A lady asked him for change and he replied that he had no change. He attempted to walk to the back of the truck but the woman prevented him from doing so. He heard feet shuffling at the back of the truck. When he finally reached the back of the truck, he saw a man with a gun. Elijah identified defendant as that man, but stated that he was not certain whether defendant was the man who actually shot the catering truck driver. The witness also identified Mary Broomfield as the woman who asked him for change and who left with defendant after the shooting.

Jimmy Soto testified that Rubin Garcia was his cousin. He saw Rubin on May 28, 1974, alive and working at the Triple A Company around 2 p.m. When he saw Rubin again, on May 28, 1974, he was at the Cook County Hospital emergency unit, dead. The last time he saw Rubin was at the county morgue.

Officer James Cornelison testified that he was assigned to the case and began his investigation on May 31, 1974. On October 7, he went to Memphis, Tennessee, to extradite the defendant. Subsequently, defendant was brought back to this jurisdiction.

Dr. Pascual Guíala, a pathologist, testified that he performed an autopsy on Rubin Garcia which indicated the cause of death was from gunshot wounds to the pancreas, stomach, and liver. The People then rested.

Investigator William Wendt was called as a witness on behalf of the defendant. On May 31, 1974, Wendt questioned Broomfield concerning the homicide of Garcia. The officer stated that Broomfield did not tell him she was defendant’s girlfriend; she told him she was living with Otis Blitzso. Broomfield informed him after the shooting, she and Robert James got into the car and Jones drove her home to 3334 Maypole; Jones and James then drove away.

On cross-examination, Investigator Wendt stated that Broomfield told him of the events relating to the attempted armed robbery and the murder. On redirect, the officer stated that the first time he talked with Broomfield she denied she had anything to do with the offense. She did not tell him anything about going to her sister’s home or planning to rob someone at the currency exchange.

After arguments, the jury deliberated and found defendant guilty as to both counts.

Defendant contends the trial court erred in allowing the prosecutor to question Mary Broomfield concerning oral statements made by defendant pertaining to the plan to rob someone at a currency exchange. Defendant asserts that this was error because (1) these statements were not contained in any discovery material tendered to defense and (2) it revealed evidence of crimes other than the one for which he was being tried.

It is clear that a defendant is entitled to have his guilt or innocence determined solely with reference to the crime foY which he is charged. (People v. Bailey (1980), 88 Ill. App. 3d 416, 420, 410 N.E.2d 545, 547; People v. Hartness (1977), 45 Ill. App. 3d 129, 138, 358 N.E.2d 954, 960.) Evidence which implies that the accused has engaged in other criminal activity is inadmissible where the only value of such evidence is to create an inference that defendant has a propensity to commit crimes (People v. Lehman (1955), 5 Ill. 2d 337, 342, 125 N.E.2d 506, 509; People v. McTush (1978), 61 Ill. App. 3d 214, 217, 377 N.E.2d 1148,1150). The mere fact that certain testimony could be interpreted as inferring that defendant was engaged in other criminal activity does not make the admission of that testimony per se erroneous. McTush, at 217; People v. Guyton (1972), 53 Ill. 2d 114, 119, 290 N.E.2d 209, 212.

The exception to the rule admits evidence of other offenses if relevant for any purpose other than to show propensity to commit a crime. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Evidence of other crimes which shows motive or intent, identity, absence of mistake or accident, or the existence of a common scheme or design may be admitted as independently relevant. (Lehman, at 343; Bailey, 420.) In deciding whether to admit evidence of another crime the defendant is alleged to have committed, the trial judge must balance the relevancy of the evidence offered against its tendency to inflame or prejudice the jury. (Bailey, at 420.) Thus, the issue of admissibility turns on whether, in light of the applicable exception, the trial court abused its discretion in allowing the testimony. People v. Martin (1979), 80 Ill. App. 3d 281, 294, 399 N.E.2d 265, 275.

In the case at bar, the trial court ruled that Broomfield’s testimony concerning the plan to rob someone at a currency exchange was admissible. The court found that this testimony was probative of a common design and motive. We disagree. The modus operandi is completely dissimilar. Moreover, while defendant knew Broomfield would testify, he was not aware of the statement. Additionally, the defendant was clearly entitled to the substance of this oral statement before trial, but failure to provide it does not in all instances necessitate a new trial. (People v. Greer (1980), 79 Ill. 2d 103, 119-20, 402 N.E.2d 203, 211.) Furthermore, noncompliance with discovery requirements does not require reversal absent a showing of prejudice. (Greer, at 120; People v. Ingram (1980), 91 Ill. App. 3d 1074, 1082, 415 N.E.2d 569, 576.) We do not believe that prejudice has been established because Broomfield’s testimony concerning the plan to rob the currency exchange was not essential to support defendant’s conviction. Ingram, at 1082-83.

Defendant contends the trial court erred in allowing the prosecution to elicit testimony from Broomfield concerning defendant’s use of narcotics, and that this motion for a mistrial should have been granted. According to defendant, the prejudicial error occurred during the direct examination of Broomfield by the prosecutor:

“Q: When you went inside, what did you do, Miss Broomfield?
A: We injected heroin into our arms.”

The prosecutor continued questioning the witness concerning her addiction to heroin. There was no objection by the defense attorney until the prosecutor-said:

“Q: At that time, among the three of you, who else used heroin? Mr. Boyd: Objection.
The Court: Objection overruled.
Mr. Boyd: May we go to the side, please?
[The judge granted a side bar, after which he changed his ruling.]
The Court: The objection to the last question was sustained. Pose another question.”

At that point, the prosecutor did not inquire further into the use of narcotics.

Evidence of a defendant’s use of or addiction to narcotics is inadmissible in a prosecution for an offense that does not involve narcotics. (People v. Dzambazovic (1978), 61 Ill. App. 3d 703, 716, 377 N.E.2d 1077, 1086; see also People v. Stadtman (1974), 59 Ill. 2d 229, 319 N.E.2d 813.) Where error is shown to exist, it will compel reversal unless the record affirmatively shows that the error was not prejudicial. Stadtman, at 232.

In the instant case, we believe the record demonstrates that defendant was not prejudiced by the fact that the jury heard Broomfield’s testimony that “We injected heroin into our arms.” Further, defense counsel’s failure to object to that answer waived any objection to this testimony (People v. Robinson (1974), 20 Ill. App. 3d 777, 782, 314 N.E.2d 585, 590), and requires us to conclude that this question and answer, standing alone, did not constitute error requiring reversal. (Cf. People v. Novak (1965), 63 Ill. App. 2d 433, 439, 211 N.E.2d 554, 560.) The final question presented by the prosecutor relating to heroin addiction was objected to by defense counsel and sustained by the trial court. Moreover, the record shows that the eyewitness testimony of Elijah Jones identified defendant as the man who held a gun to the catering truck driver. Furthermore, we find that Broomfield’s testimony did not deprive defendant of a fair trial by prejudicing the jury and tipping the scales against defendant (People v. Darby (1978), 58 Ill. App. 3d 294, 298, 374 N.E.2d 229, 232), particularly in view of the overwhelming evidence of defendant’s guilt. Dzambazovic, at 716.

Defendant contends the trial court erred in permitting the prosecution on the redirect examination of Investigator Wendt to attempt to rehabilitate Broomfield by eliciting her prior consistent statements.

The general rule is that the testimony of a witness cannot be bolstered or supported by showing that the witness has made similar statements out of court in harmony with his testimony on the witness stand. (People v. Buckley (1976), 43 Ill. App. 3d 53, 55, 356 N.E.2d 1113, 1114). There are exceptions to the general rule, none of which are applicable in the instant case. While it constitutes error to admit evidence of this nature, we do not regard it as reversible in this case. (People v. Strubberg (1978), 61 Ill. App. 3d 521, 378 N.E.2d 191.) The improper testimony was but cumulative and could not under the circumstances have contributed to the verdict of guilty. In light of the evidence presented at trial, we deem the testimony of Investigator Wendt concerning Broomfield’s prior consistent statements to constitute harmless error.

Finally, defendant contends he was not proved guilty beyond a reasonable doubt where the only basis for his conviction was the uncorroborated testimony of a convicted co-defendant whose credibility was impeached by her bias against the defendant, her interest in convicting the defendant in order to get her sentence reduced, her propensity to lie when convenient, and her prior inconsistent statements.

It is well settled in Illinois that a reviewing court will not set aside the jury’s verdict unless the evidence is so improbable as to justify a reasonable doubt of defendant’s guilt. (People v. Thomas (1979), 72 Ill. App. 3d 28, 33-34, 389 N.E.2d 1316, 1321; People v. McDonald (1975), 62 Ill. 2d 448, 456, 343 N.E.2d 489, 493.) The sufficiency of eyewitness identification, the credibility of the witnesses, and the weight to be given their testimony and the inferences to be drawn therefrom are matters within the province of the jury. (Thomas, at 34.) Although the testimony, of an accomplice is necessarily received with caution, such testimony, even if uncorroborated, is sufficient to warrant a conviction if it satisfies the trier of fact beyond a reasonable doubt. Thomas, at 34; People v. Walker (1974), 24 Ill. App. 3d 421, 426, 321 N.E.2d 114, 118.

In the case at bar, the jury properly considered the credibility of the witnesses and weighed any discrepancies in light of all of the evidence. Therefore, considering the testimony of Broomfield and Elijah Jones, in addition to other evidence presented at trial, we find the evidence clearly sufficient to justify the jury’s verdict.

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

Judgment affirmed.

ROMITI, P. J., and LINN, J., concur.


author: Mr. JUSTICE WHITE

text:
      In re ESTATE OF E. W. MORRISON, Deceased.—(GAITHER COLLIER, Indiv. and as Adm’r of the Estate of E. W. Morrison, Petitioner-Appellee, v. EDWARD ROSEWELL, Cook County Treasurer, et al., Resporidents-Appellants—(E. W. MORRISON, Respondent).)
    First District (3rd Division)
    No. 80-1948
    Opinion filed September 30,1981.

      Richard M. Daley, State’s Attorney, of Chicago (Jane Clark Casey, Peter S. Coorlas, Steven Pearlman, and James Babowice, Assistant State’s Attorneys, of counsel), for appellants.
    Stuart M. Weis & Associates, Ltd., of Chicago (Marsha F. Weis, of counsel), for appellee.
   Mr. JUSTICE WHITE

delivered the opinion of the court;

Edward J. Rosewell, as county treasurer of Cook County, and the County of Cook by Bernard Carey, State’s Attorney of Cook County, appeal from an order of the circuit court, probate division, finding E. W. Morrison to be presumed dead as of January 1,1937, and granting letters of administration to Gaither Collier. The petition for letters of administration upon the presumption of death alleged that E. W. Morrison’s last known residence was 145*2 East Iowa, Memphis, Tennessee, where he lived in 1929; that attempts were made to locate him there; that diligent inquiry had been made at his last known address and elsewhere without obtaining information indicating that he was alive; that since 1929 Morrison has not communicated with those with whom he would naturally communicate, if alive; and that he has not been seen or heard from since that time. The petition further alleged that E. W. Morrison inherited a share of the estate of one Nettie Stevenson who died on February 19,1971.

Stevenson left an estate which included a parcel of real estate and some cash. The cash Morrison was entitled to receive was deposited with the treasurer of Cook County “for the use and benefit of E. W. Morrison,” where it remains. The title to the real estate vested by operation of law in Morrison.

Appellants Rosewell and the County of Cook contend that the evidence presented to the trial court was insufficient to give rise to a presumption of death. Appellee’s evidence in the trial court consisted of the testimony of two witnesses, Gaither Collier and Leo Armstrong. Gaither Collier’s testimony follows. E. W. Morrison was the uncle of her deceased husband, Warner Collier, and more specifically, her husband’s mother’s brother. Warner and Gaither were married on February 29,1932, and she had known Warner approximately six or seven years before they were married. Warner died on August 2, 1972. To the best of the witness’ knowledge, Morrison’s only living relatives at the time of the marriage were her husband, a nephew; Adelia Bland, a sister; and Nettie Stevenson, Adelia’s daughter.

Gaither Collier only met with Morrison twice, and both meetings occurred in 1929. The first meeting was in the town where she lived, Earle, Arkansas. The second meeting occurred in June or July of 1929 at Morrison’s residence at 145}i East Iowa in Memphis, Tennessee. Memphis, Tennessee, is approximately 30 miles from Earle, Arkansas. She and Warner parked in front of his home, and Morrison came out and spoke with them. They did not enter the house. Morrison appeared to be ill, and when asked about his health, he said he had been ill. At the end of the day Gaither returned to her home. She never saw Morrison after this meeting.

Morrison never communicated with Gaither Collier subsequent to this last meeting, and she never tried to communicate with him after that time. Furthermore, she never saw or heard her husband communicate with Morrison after the second meeting. After that time, she never saw her husband write a letter to Morrison, and she never saw any letters from Morrison addressed to her husband. According to Gaither’s knowledge, Morrison never married and never had any children, natural or adopted.

Furthermore, to the best of Gaither Collier’s knowledge, neither Adelia Bland nor Nettie Stevenson heard from Morrison or anything about him after 1929. Gaither and Warner Collier had lived in Chicago in the same apartment as Nettie Stevenson from 1935 or 1936, until Stevenson’s death. Adelia Bland had lived in Earle, but she came to Chicago in 1946 or 1947 and resided with the Colliers and her daughter, Nettie. During the time Gaither resided with Bland and Stevenson, she never saw any letters from Morrison addressed to either of them come into the home, and she never heard a telephone conversation between either of them and Morrison. Morrison never came to visit at the apartment in Chicago, and neither Stevenson nor Bland ever spoke of taking a trip to visit Morrison.

Gaither Collier also testified that, as far as she knew, the first time after 1929 that her husband tried to locate Morrison was irr-i972. Stevenson had died, and her estate was in question. According to Gaither, Warner then made a trip to Memphis with one Leo Armstrong. Gaither did not go with them.

Gaither herself made attempts to locate Morrison in 1973. First, she asked her niece, Perlie Mae Gillum, who lived in Memphis, to go to the courthouse in Memphis to inquire about Morrison. Gillum subsequently informed Gaither that she was unable to obtain any information about Morrison. Gaither also wrote a letter addressed to the City of Memphis. In reply, she received a letter from Rev. Chester L. Berry hill, Jr., of the Memphis Community Relations Commission. This letter stated that all efforts to locate Morrison were unsuccessful, and that the Memphis Housing Authority, local radio stations and the Social Security office had been contacted. The Social Security office refused to reveal information because of confidentiality laws.

On cross-examination, Gaither Collier testified that she did not know how long Morrison had lived at the above-mentioned address in Memphis. She also testified that she made several trips to Memphis in 1931 and 1932, but did not attempt to visit Morrison. After her marriage in 1932 to Warner Collier, she continued to make trips to Memphis, usually accompanied by Warner; however, she never went to Morrison’s home with her husband, except for the 1929 visit in front of Morrison’s home. According to Gaither, Morrison was approximately 28 or 29 years old in 1929.

Leo Armstrong testified that he had been a friend of Warner Collier since childhood and that he had never met Morrison. In May or June of 1972, he traveled with Warner to Memphis. The sole purpose of the trip was to search for Morrison. Upon arrival, they first looked for a building address on East Iowa Street where Warner said thát Morrison had lived. They found a vacant lot. There was no building at that location. Then they went to the house of John Thomas, a mutual friend. Thomas suggested that they make an announcement on a radio station. They took his suggestion, and later that afternoon Armstrong heard an announcement which asked listeners with any information about Morrison to call the radio station or Thomas at numbers which were announced. The radio station never contacted any of them. Thomas later informed Armstrong that he had not received any response from the announcement. Armstrong could not remember the name of the radio station.

While in Memphis, Armstrong, Thomas and Warner Collier also went to the Goldcrest Brewery, where Morrison was supposed to have been employed. The brewery had burned down. Then they went to a cafe located approximately two blocks from the brewery. Thomas and Warner asked a few questions of two or three people at this cafe, but they were unable to obtain any information about Morrison.

On cross-examination, Armstrong testified that he did not know over what period of time the radio station broadcast the announcement and that he did not know how many times it was broadcast per day. Armstrong also stated that he and Warner were in Memphis for between five and seven days, and that he only heard the announcement once. Armstrong did not attempt to contact the former owners of the brewery regarding employment records. Further, no hospital in the vicinity of Morrison’s residence was contacted. On redirect, Armstrong was permitted to testify that Warner had told him that he had contacted the Missing Person’s Bureau, the Social Security office and the police department. No information was obtained as a result of these inquiries.

Appellants presented no evidence at the hearing. In concluding that there was sufficient evidence to establish a presumption of death, the trial court stated that relatives who probably would have heard from Morrison, if he was alive, had not heard from him since 1929. The sole question presented for review is whether the evidence was sufficient to raise a presumption of death after seven years absence.

In Illinois, the prerequisites for a presumption of death after seven years of continuous absence are well settled. First, the person must have disappeared from his last known abode, domicile or residence. Secondly, he must have neither returned thereto nor communicated with those with whom he would naturally communicate, if alive, during the ensuing period of seven years. Thirdly, diligent inquiry must have been made at his last known place of abode of the persons who would- naturally hear from him without obtaining information indicating that he is alive. If these prerequisites are proved, a rebuttable presumption of death arises which may be disproved by evidence that the party presumed to be dead is alive. (Presbyterian Church of Carlyle v. St. Louis Union Trust Co. (1974), 18 Ill. App. 3d 713, 720, 310 N.E.2d 412; Blodgett v. State Mutual Life Assurance Co. (1961), 32 Ill. App. 2d 155, 160, 177 N.E.2d 1; McNaghten v. Northwestern Mutual Life Insurance Co. (1943), 318 Ill. App. 390, 400, 48 N.E.2d 200; Carey v. Metropolitan Life Insurance Co. (1940), 305 Ill. App. 308, 312, 27 N.E.2d 634; Mueller v. John Hancock Mutual Life Insurance Co. (1935), 280 Ill. App. 519, 523; Piersol v. Massachusetts Mutual Life Insurance Co. (1931), 260 Ill. App. 578, 587.) This presumption of death is not conclusive, and the law cannot deprive an absentee of his estate if he is alive. Eddy v. Eddy (1922), 302 Ill. 446, 453,134 N.E. 801; Smith v. Harness (1943), 321 Ill. App. 22, 27, 52 N.E.2d 280.

The presumption of death need only be established by a preponderance of the evidence. (Kennedy v. Modern Woodmen of America (1910), 243 Ill. 560, 575, 90 N.E. 1084; Blodgett, 32 Ill. App. 2d 155, 159.) However, a judgment of the trial court will be set aside if it is contrary to the manifest weight of the evidence. (Blodgett, 32 Ill. App. 2d 155, 161; McNaghten, 318 Ill. App. 390, 400; Mueller, 280 Ill. App. 519, 523; Policemen & Benevolent Association v. Ryce (1904), 115 Ill. App. 95, 98, aff’d (1904), 213 Ill. 9.) We conclude that the judgment of the trial court in the instant case was against the manifest weight of the evidence, because the evidence was clearly insufficient to establish the prerequisites for a presumption of death after seven years absence.

The deficiency of petitioner-appellee’s proof permeates all three prerequisites. ' '

A presumption of death after seven years absence will not arise from long absence alone. Before the presumption can be raised, an absence of seven years or more from the established residence of the absentee must be shown. (Hitz v. Ahlgren (1897), 170 Ill. 60, 64, 48 N.E. 1068.) That court stated:

“We hold, therefore, that mere absence of a person from a place where his relatives reside, but which is not his own residence, and mere failure on the part of his relatives to receive letters from him for a period of seven years, are not of themselves sufficient to raise a presumption of death. The absence must be from his usual place of abode or resort.” 170 Ill. 60, 64.

Thus, appellee’s evidence must establish that Morrison disappeared from his last known abode, domicile or residence. Her evidence, however, fails to show a disappearance which would support the trial court’s finding that Morrison is presumed dead as of January 1, 1937. The evidence established that Morrison resided at a certain address in Memphis, Tennessee, in 1929 when he was visited by Warner and Gaither Collier. There is no evidence as to when thereafter he left. There is no evidence that he did not continue to live at this address up until and even after the time he was declared presumed dead by the trial court. When Warner Collier and Armstrong searched for Morrison in 1972, they found a vacant lot at this address. His mere absence from that address at that time cannot justify a presumption of death.

Moreover, even if we were to conclude that the evidence was sufficient to establish a disappearance by Morrison, we are of the opinion that appellee has failed to establish the second prerequisite of the presumption, that Morrison neither returned nor communicated with those with whom he would naturally communicate, if alive, during the ensuing period of seven years. The evidence establishes that Gaither and Warner Collier saw Morrison twice in 1929; but no practice, habit, custom, basis or reason for communication between Morrison and either Adelia Bland, Nettie Stevenson, Warner Collier or Gaither Collier was shown, although Morrison was related to the first three by blood and the last by marriage. Furthermore, the evidence does not show that Morrison had any other contacts with these relatives prior to 1929. Appellee failed to meet her burden of showing that these individuals were the people with whom Morrison would have been likely to communicate if he was alive. As one court has stated: “It is a common occurrence that communications between parties who never have occasion to see one another, and whose interests become increasingly dissimilar, dwindles [sic] and eventually terminates [sic] by mutual neglect.” In re Estate of Holmlund, (1962), 232 Or. 49, 64, 374 P.2d 393, 400.

Finally, the last prerequisite is that there be evidence of diligent inquiry at the absentee’s last place of residence, and among his relatives and any others who probably would have heard from him, if living. (Hitz, 170 Ill. 60, 63-64.) Under Illinois law, “[p]roof of such inquiry made both before and after the expiration of seven years of absence may be made, and proof of further inquiry made thereafter is not improper.” (McNaghten, 318 Ill. App. 390, 399; but see Annot., 99 A.L.R.2d 307, 324-25 (1965).) Obviously the time of a search for a missing person would greatly affect its probative value in presuming that the person is dead. In the instant case no search and inquiry was made for Morrison within seven years of his purported disappearance in 1929. We have grave doubts as to the sufficiency of the inquiry in the instant case, which was conducted some 43 years after the purported disappearance. We, however, express no opinion as to the adequacy of the inquiry, because we conclude that the other prerequisites for a presumption of death have not been satisfied.

Accordingly, the trial court’s order issuing letters of administration upon the presumption of death to appellee is reversed.

Reversed.

McNAMARA and McGILLICUDDY, JJ., concur.


author: Mr. JUSTICE McNAMARA

text:
    THE BOARD OF EDUCATION OF THE CITY OF CHICAGO, Plaintiff-Appellee, v. STATE BOARD OF EDUCATION, ILLINOIS OFFICE OF EDUCATION, et al., Defendants-Appellants.
    First District (3rd Division)
    No. 80-2697
    Opinion filed September 30,1981.

      Dejong, Poltrock & Giampietro, of Chicago (Lawrence Poltrock, Michael Radzilowsky, and Stephen Daday, of counsel), for appellants.
    Michael J. Murray, of Chicago (Patricia J. Whitten, of counsel), for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Board of Education of the City of Chicago, instituted dismissal proceedings against defendant Barry Isaac, a tenured elementary school teacher. A hearing officer appointed by defendant State Board of Education found that the evidence presented by plaintiff failed to support the charges and ordered that Isaac be reinstated. Plaintiff instituted proceedings in the trial court under the Administrative Review Act. (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) The trial court found that the decision of the hearing officer was contrary to the manifest weight of the evidence. Defendants appeal.

Plaintiffs complaint against Isaac, a teacher for ten years, set forth three grounds in support of the discharge: failure to maintain discipline within and outside the classroom, failure to provide adequate instruction, and administration of corporal punishment. In setting aside the hearing officer’s decision as to the corporal punishment charge, the trial court stated that on the basis of the evidence presented the hearing officer’s decision was preposterous.

Defendants initially maintain that the hearing officer’s decision was supported by the evidence. We are limited on appeal to the question whether the agency decision is against the manifest weight of the evidence. (Lowe v. Board of Education (1979), 76 Ill. App. 3d 348, 395 N.E.2d 59.) Such a determination requires an examination of all the testimony and circumstances shown in the record. (Viera v. Illinois Racing Board (1978), 65 Ill. App. 3d 94, 382 N.E.2d 462.) Where the agency decision is against the manifest weight of the evidence it is the reviewing court’s duty to reverse. Heng v. Foster (1978), 63 Ill. App. 3d 30, 379 N.E.2d 688; Middleton v. License Appeal Com. (1974), 20 Ill. App. 3d 534, 314 N.E.2d 596.

Relative to the corporal punishment charge, testimony concerning two incidents support the trial court’s finding that the agency decision was against the manifest weight of the evidence. Two fellow teachers testified about an occurrence between Isaac and a fourth grade child in the school hall on April 18, 1978. Mrs. Jeffries stated that she saw Isaac striking the boy’s head against the locker. She approached Isaac and took his arm in order to stop him. The child had an egg-sized bump on his forehead. Barbara Sims corroborated the fact that the incident occurred. She testified that she did not arrive at the scene until people were already standing around Isaac and the child. As she ascended the stairs, she saw Isaac shaking the child. She did not observe the bump on the boy’s head, explaining that she did not get a good look at the boy and did not examine him for injuries. Isaac testified that no such incident occurred. He did state that he touched pupils with a pointer and that he physically placed them in line.

A school security guard testified that in October or November 1978 he stopped a boy en route to Isaac’s class and detained the boy until the recitation of the pledge of allegiance was completed. He then released the boy and told Isaac that he had detained the student. A few moments later, the security guard heard a commotion outside Isaac’s room and saw Isaac with the boy against the locker “beating him on the head.” The security guard’s testimony was uncontroverted. Several parents and the principal of the school also testified that Isaac had administered corporal punishment upon other pupils. We agree, however, that the hearing officer properly excluded this hearsay evidence.

Despite the testimony regarding the two incidents, the hearing officer ruled that “at the very worst, Mr. Isaac could be cited for shaking children.” The hearing officer apparently discounted the testimony of Jeffries because she could not accurately recall the child’s name, and because Sims was unable to support the Jeffries’ testimony regarding the lump on the child’s forehead. The hearing officer similarly discounted the security guard’s testimony on the basis of a “contradiction” in his testimony. On direct examination the guard stated that the boy was “early” and therefore he detained the boy until after the pledge was recited; on cross-examination, he stated that the children should be in class before the pledge starts.

Like the trial court, we believe that, based on the foregoing testimony, it was preposterous for the hearing officer to determine that the evidence did not support the charge that Isaac administered corporal punishment warranting dismissal. The testimony of Jeffries and Sims was not inconsistent or contradictory, and the uncontroverted testimony of the security guard was not impeached or contradictory. The evidence overwhelmingly supports the corporal punishment charge, and the trial court properly so held.

Defendants also maintain that even if the hearing officer’s decision is against the manifest weight of the evidence, Isaac nevertheless is entitled to reinstatement since he was not given written notice as required by the statute in matters where the cause of dismissal is remediable. (Ill. Rev. Stat. 1977, ch. 122, par. 34 — 85.) Whether a specific cause for dismissal is remediable depends upon the facts of each case. The test for remediability is “whether damage has been done to the students, faculty or school, and whether the conduct resulting in that damage could have been corrected had the teacher’s superiors warned [him] * ° Grissom v. Board of Education (1979), 75 Ill. 2d 314, 331-32, 388 N.E.2d 398.

It is beyond dispute that when a student has been the victim of corporal punishment the damage to that student has been done. (Fender v. School District No. 25 (1976), 37 Ill. App. 3d 736, 347 N.E.2d 270.) The fact that the school’s rules expressly prohibit corporal punishment also militates heavily in favor of the conclusion that the teacher’s conduct would not have been corrected by a written warning. In the present case, the hearing officer stated that if the charges had been proved they were irremediable. He was correct. Under the circumstances, it is clear that the charge was irremediable and that written notice was not required prior to instituting formal charges against Isaac.

Defendants rely upon Grissom v. Board of Education (1979), 75 Ill. 2d 314, 388 N.E.2d 398. In that case, the school board authorized the use of corporal punishment through a publicized paddling policy. Moreover, the principal testified that the dismissed teacher had been sincere in his efforts. Under those facts, the court held that the charge of “use of unnecessary and unwarranted physical force” was remediable and required the statutory written notice. In contrast to Grissom, the present case involves the administration of corporal punishment in the face of a board rule absolutely prohibiting such conduct. The cause in the present case was clearly irremediable. Lowe v. Board of Education (1979), 76 Ill. App. 3d 348, 395 N.E.2d 59.

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

Judgment affirmed.

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