author: PRESIDING JUSTICE STAMOS

text:
    SHIRLEY SCHLESSINGER et al., Plaintiffs-Appellants, v. SIDNEY R. OLSEN, Cook County Recorder of Deeds and Registrar of Titles, et al., Defendants-Appellees.
    First District (2nd Division)
    No. 79-1293
    Opinion filed June 8, 1982.

      Bilandic, Neistein, Richman, Hauslinger & Young, Ltd., of Chicago (Harry A. Young, Jr., of counsel), for appellants.
    Richard M. Daley, State’s Attorney, of Chicago (Paul P. Biebel, Jr., and James F. Henry, Assistant State’s Attorneys, of counsel), for appellees.
   PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

This cause is before the court on remand from the Illinois Supreme Court. In our earlier decision in this case (89 Ill. App. 3d 583, 411 N.E.2d 1239), we reversed the trial court’s dismissal of plaintiffs’ action and remanded the case for determination of the class certification issue prior to any judgment on the merits. The circuit court had originally granted plaintiffs’ motion for a preliminary injunction but subsequently granted defendants’ motion for reconsideration, vacated the preliminary injunction order, and dismissed the complaint. We believed that a judgment on the merits rendered prior to a decision as to certification of the class precluded appellate review on the merits. The basis for this belief was the uncertainty which would result regarding the scope of the decision, i.e., who would benefit from such a judgment on the merits. (See 89 Ill. App. 3d 583, 590.) The Illinois Supreme Court reversed, holding that in the interests of time and efficiency, a trial court may decide a motion to dismiss prior to resolution of the class certification issue. (86 Ill. 2d 314, 320, 427 N.E.2d 122.) The case was remanded to this court for consideration of the substantive issues presented by the appeal.

In 1978, plaintiffs Shirley Schlessinger and Portia Kern filed a six count complaint in the circuit court of Cook County challenging the constitutionality of the real estate transfer tax statute then in effect (Statute II). (Ill. Rev. Stat., 1978 Supp., ch. 120, par. 1003.) This statute permitted county recorders of deeds and registrars of titles to retain 50% of the tax collected by them as a “distribution of the tax.” Statute II was enacted in response to a similar, eventually successful, attack on the prior existing statute (Statute I). See Saltiel v. Olsen (1979), 77 Ill. 2d 23, 394 N.E.2d 1197; Ill. Rev. Stat. 1975, ch. 120, par. 1003.

The instant complaint was brought against Sidney R. Olsen, as the recorder of deeds and registrar of titles for Cook County, Edward J. Rosewell, as the Cook County treasurer, and the County of Cook, as a body politic. The two plaintiffs were acting both individually and as potential class representatives. Plaintiff Schlessinger resides in Cook County and during the short period of time when Statute II was in effect, paid real estate transfer taxes of $45.50. She paid these taxes under protest. Plaintiff Kern seeks standing as a class representative of all Illinois taxpayers. Kern did not allege she paid the tax under Statute II.

Counts I, III, and V of the complaint were brought by Schlessinger and asked that the action be certified as a class action on behalf of those parties who paid the real estate transfer tax imposed by Statute II. These counts requested that the monies collected under that statute be returned to the individual taxpayers. Counts II, IV, and VI of the complaint were brought by Schlessinger and Kern and sought certification as a class action on behalf of all Illinois taxpayers. These counts prayed that the appropriate county funds be disgorged to the State.

Count I alleged that the amendment to the original statute (Statute I) which produced Statute II violated the 1970 Illinois Constitution, article VIII, section 2. Statute II and this constitutional provision are set out below:

“A tax is imposed on the privilege of transferring title to real estate, as represented by the deed that is filed for recordation, at the rate of 50 cents for each $500 of value or fraction thereof stated in the declaration provided for in this Section. If, however, the real estate is transferred subject to a mortgage the amount of the mortgage remaining outstanding at the time of transfer shall not be included in the basis of computing the tax.
Such tax shall be collected by the recorder of deeds or registrar of titles of the several counties through the sale of revenue stamps whose design, denominations and form shall be prescribed by the Department. The revenue stamps shall be sold by the Department to such recorder of deeds or registrar of titles who shall cause them to be sold for the purposes prescribed. The Department shall charge at a rate of 25 cents per $500 of value in units of not less than $500. The proceeds from such sale by the Department shall be deposited in the General Revenue Fund of the State Treasury. The recorder of deeds or registrar of titles of the several counties shall sell the revenue stamps at a rate of 50 cents per $500 of value or fraction thereof. The net proceeds from such sale by the recorder of deeds or registrar of titles shall be treated as the distribution of the tax which is herein authorized to be charged and collected. The recorder of deeds or registrar of titles may use such proceeds for the purchase of revenue stamps from the Department. The county board shall appropriate a sufficient amount of money for the purchase of revenue stamps from the Department until such time as the fees of the recorder of deeds or registrar of titles under this Section are sufficient for such purpose. Payment of the tax shall be evidenced by revenue stamps in the amount required to show full payment of the tax imposed by this Section. Except as provided in Section 4 of this Act, no deed shall be accepted for filing by any Recorder of Deeds or Registrar of Titles unless revenue stamps in the required amount have been purchased from the Recorder of Deeds or Registrar of Titles of the county where the deed is being filed for recordation. Such revenue stamps shall be affixed to the deed by the Recorder of Deeds or the Registrar of Titles either before or after recording as requested by the grantee. A person using or affixing a revenue stamp shall cancel it and so deface it as to render it unfit for reuse by marking it with his initials and the day, month and year when the affixing occurs. Such marking shall be made by writing or stamping in indelible ink or by perforating with a machine or punch. However, the revenue stamp shall not be so defaced as to prevent ready determination of its denomination and genuineness.” (Emphasis added to reflect challenged portion.) (Ill. Rev. Stat, 1978 Supp., ch. 120, par. 1003.)
“SECTION 2. STATE FINANCE
(a) The Governor shall prepare and submit to the General Assembly, at a time prescribed by law, a State budget for the ensuing fiscal year. The budget shall set forth the estimated balance of funds available for appropriation at the beginning of the fiscal year, the estimated receipts, and a plan for expenditures and obligations during the fiscal year of every department, authority, public corporation and quasi-public corporation of the State, every State college and university, and every other public agency created by the State, but not of units of local government or school districts. The budget shall also set forth the indebtedness and contingent liabilities of the State and such other information as may be
required by law. Proposed expenditures shall not exceed funds estimated to be available for the fiscal year as shown in the budget.
(b) The General Assembly by law shall make appropriations for all expenditures of public funds by the State. Appropriations for a fiscal year shall not exceed funds estimated by the General Assembly to be available during that year. [This Section 2 of Article VIII shall become effective on January 1,1972. See Transition Schedule Section 1(c).]” (Emphasis added.) Ill. Const. 1970, art. VIII, sec. 2.

Count I alleged that the portion of Statute II which allowed the county to retain $.25 from every $.50 collected constituted a State expenditure of public funds without appropriation by the General Assembly. An expenditure without an appropriation is prohibited by the constitutional provision quoted above. Count II echoed count I except, as explained previously, it was brought by both Schlessinger and Kern, sought to have a broader class certified, and requested that the county funds be repaid to the State of Illinois.

Count III alleged that even if Statute II was a proper appropriation by the General Assembly, it was nevertheless constitutionally defective as violative of article IV, section 8(d), which provides:

“Appropriation bills shall be limited to the subject of appropriations.” (Ill. Const. 1970, art. IV, sec. 8(d).)

Since Statute II pertained to subjects other than appropriations, it would violate the above provision if it were deemed an appropriation. As with counts I and II, counts III and IV were identical except in the relief requested, the named plaintiffs and the class sought to be represented.

Count V alleged that Statute II should be struck down on the same basis that the prior real estate transfer tax statute was declared unconstitutional by the Illinois Supreme Court in the Saltiel case. Saltiel held that Statute I violated the constitutional prohibition against fee offices. (77 Ill. 2d 23, 29.) The relevant constitutional provision reads:

“Section 9. Salaries and Fees
(a) Compensation of officers and employees, and the office expenses of units of local government shall not be paid from fees collected. Fees may be collected as provided by law and by ordinance and shall be deposited upon receipt with the treasurer of the unit. Fees shall not be based upon funds disbursed or collected, nor upon the levy or extension of taxes.” (Emphasis added.) (Ill. Const. 1970, art. VII, sec. 9.)

Statute I provided, in relevant part:

“The net proceeds from such sale by the recorder of deeds or registrar of titles shall be treated as a fee of his office.” (Emphasis added.) (Ill. Rev. Stat. 1975, ch. 120, par. 1003.)

When the circuit court held this provision unconstitutional, the above italicized words were deleted and the statute was amended to read:

“The net proceeds from such sale by the recorder of deeds or registrar of titles shall be treated as the distribution of the tax which is herein authorized to be charged and collected.” (Emphasis added.) (Ill. Rev. Stat., 1978 Supp., ch. 120, par. 1003.)

Plaintiffs allege that this wás a change in semantics but not in substance. They contend the “distribution” in Statute II was in reality a fee paid to the county officer for the collection of the State tax. Once again, count VI mirrored count V with the exception of the relief sought, the named plaintiffs, and the class sought to be represented.

In general, each of the counts of the complaint sought class certification for the plaintiff(s) concerned, injunctive relief to restrain Olsen from accumulating the county fund and Rosewell from distributing the proceeds, an accounting and segregation of the total amounts of the county charges, and a declaration that Statute II violates one of the advanced provisions of the Illinois Constitution and was thus without legal effect. Attorney costs and fees were also requested.

Although section 3 of the Real Estate Transfer Tax has been amended since the challenge presented here, the instant case is governed by the language of the statute prior to the most recent alteration. Simply stated, plaintiffs allege alternatively that the “distribution” is in reality a retention of the “fee” struck down in Saltiel, an unauthorized appropriation without an enactment by the General Assembly, or an improper combination of appropriation and other legislative subjects in the same statutory provision. Defendants contend that it is not a fee but a distribution of the net proceeds of the tax similar to State-county revenue sharing. In response to plaintiff’s appropriation-witfaout-legislation argument, defendants argue that the funds were not “available for appropriation” since they were never received by the State Treasurer prior to distribution. Similarly, if Statute II does not provide for appropriations, it cannot violate the constitutional provision limiting appropriation bills to the subject of appropriations. In addition to the contentions relative to the constitutionality of the act, defendants challenge the standing of both plaintiffs to maintain a class action.

o 1 If neither plaintiff has at least arguable _ standing, then the action cannot be properly maintained and the trial court’s dismissal must be affirmed. The threshold question is therefore that of standing. In counts II, IV, and VI, plaintiffs purport to represent the class of all Illinois taxpayers. Inasmuch as not all Illinois taxpayers will pay the challenged tax at any time, that no allegation was made to establish Kern’s relationship to the payment of the tax, and that Kern’s interests as a non-transfer-tax taxpayer might be antagonistic to the interests of transfer-tax taxpayers (see generally Frank v. Teachers Insurance & Annuity Association of America (1978), 71 Ill. 2d 583,376 N.E.2d 1377), the class as defined in this manner may be stated too broadly. With the addition of Schlessinger, however, who paid the tax, there remains a small class of transfer tax taxpayers who may properly object to the withholding of the statutory 50%. The possible overstatement of the size of the class, while perhaps warranting consideration on remand, is not important to the instant proceeding. (Goldstein v. Rosewell (1976), 65 Ill. 2d 325, 326-27, 357 N.E.2d 1157.) It should be noted that in the Saltiel case, the taxpayer bringing the suit was situated similarly to plaintiff Kern here. Our supreme court specifically commented that the trial court had determined the class action maintainable and that the issue was not presented on appeal. Saltiel v. Olsen (1979), 77 Ill. 2d 23, 24-25.

Plaintiff Schlessinger raises the possible invalidity of the statute on three grounds. Although each of these bases has arguable merit, the most convincing claim is that which rendered the prior statute invalid — the constitutional prohibition against fee offices. See Saltiel v. Olsen (1979), 77 Ill. 2d 23, 394 N.E.2d 1197.

When the tax was first enacted in 1967 (1967 Ill. Laws 1716), the legislature authorized the recorder to retain the excess amounts over the costs incurred by his purchase of revenue stamps from the Department of Revenue as a fee of his office. This provision was challenged and struck down by our supreme court. The monies collected in the Saltiel case, as characterized by the parties there, is strikingly similar to the characterization of the monies collected in the instant litigation. The. Saltiel court noted:

“The plaintiff contends that the monies in question constitute fees collected by the recorder, while the defendants characterize them as a legislatively mandated distribution of collected State tax revenues.” (77 Ill. 2d 23, 26.)

As in Saltiel, the challenge presented in the case at bar is to the retention by the county recorder of deeds and registrar of titles of “fees based on funds collected” in violation of the last sentence of section 9(2) of the Illinois Constitution (set out above). Although the legislature amended Statute I in an attempt to correct the improper language, they did not so amend it as to alter the effect of the directive. Despite the semantic alteration of the legislation, we find that the langauge of the supreme court in Saltiel remains dispositive:

“Decisions of this court dealing with the matter make it clear, moreover, that the collection by one governmental entity of a tax due to a different entity has been regarded as a fee imposed by the former, rather than as a distribution of tax revenues after they have been collected. See Flynn v. Kucharski (1970), 45 Ill. 2d 211, 218-20; Goldstein v. Rosewell (1976), 65 Ill. 2d 325, 327-29.” Saltiel v. Olsen (1979), 77 Ill. 2d 23, 27.

Defendants have presented substantially the same arguments as in Saltiel with the additional presumption that an amendment to a statute is intended to change the law as it formerly existed rather than to reaffirm it. (See Saltiel v. Olsen (1979), 77 Ill. 2d 23, 29.) However, in view of the source of the amendatory legislation — a reaction to what resulted in a valid challenge to Statute I — and the superceding of Statute II by the enactment of Public Act 81-10 shortly thereafter, we believe that the effect of the intervening Statute II was to make cosmetic rather than the substantive changes necessary to avoid the constitutional prohibitions.

Accordingly, applying the reasoning of the court in Saltiel to the present challenge of Statute II mandates the finding that the retention of the funds by the county officer for his role in the collection of State monies is a violation of the constitutional prohibition against fee offices. Defendants’ arguments, essentially the same as those raised in Saltiel, fail to show that the changes made to Statute I in drafting Statute II amounted to anything more than a superficial attempt to correct the constitutional infirmities of the statute. The intent of the prohibition against fee offices is. clear: “to preclude counties from seeking, in any form, reimbursement from the various taxing bodies for county services rendered in the collection of taxes.” City of Joliet v. Bosworth (1976), 64 Ill. 2d 516, 356 N.E.2d 543, cited in Goldstein v. Rosewell (1976), 65 Ill. 2d 325, 330, 357 N.E.2d 1157.

With the above disposition, plaintiffs’ other challenges to the statute need not be addressed by this court. We nevertheless note that defendants’ position, claiming this “disbursement” is neither a fee based on funds collected as was struck down in Saltiel and Goldstein (see also Flynn v. Kucharski (1970), 45 Ill. 2d 211, 258 N.E.2d 329), nor public funds for which a legislative appropriation is required (cf. County of Cook v. Ogilvie (1972), 50 Ill. 2d 379, 280 N.E.2d 224 (under 1870 constitution, the requirement that public funds be appropriated is nondelegable)), is somewhat contradictory. As plaintiffs indicate, each of the cases cited by defendants in support of their contention that the funds in question were not “available for appropriation” is distinguishable. These cases involved either trust funds held by the State on behalf of the Federal Government (Antle v. Tuchbreiter (1953), 414 Ill. 571, 111 N.E.2d 836), fees paid to a nongovernmental entity such as the University of Illinois (Elliott v. University of Illinois (1936), 365 Ill. 338, 6 N.E.2d 647), or the propriety of “continuing” appropriations (People ex rel. Kirk v. Lindberg (1974), 59 Ill. 2d 38, 320 N.E.2d 17). The monies generated in the instant case are public funds for which an appropriation is constitutionally mandated even if we had decided that the monies do not fall within the prohibition against fee offices.

In conclusion, the propriety of class certification and, correspondingly, the relief to be granted dependent on the certification are matters for the trial court’s consideration on remand since factual allegations of standing and common questions of law or fact are involved. (See Ill. Rev. Stat., 1980 Supp., ch. 110, par. 57.2.) The decisions in Saltiel, Goldstein and City of Joliet are dispositive of this constitutional challenge to the scheme of tax collection condoned by the statute in issue.

The judgment of the trial court is reversed and the case remanded for a determination of the propriety of class certification and to sustain the illegality of the collections under Statute II.

Reversed and remanded with directions.

DOWNING and HARTMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE PERLIN

license: Public Domain

text:
      In re MARRIAGE OF JACK M. KUNDIT, Petitioner-Appellee, and LORRAINE KUNDIT, Respondent-Appellant.
    First District (2nd Division)
    No. 81-1393
    Opinion filed June 8, 1982.

      Paul R. Jenen, of Wheeling, for appellant.
    Robert F. Lisco, of Lisco & Field, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   JUSTICE PERLIN

delivered the opinion of the court:

On February 6, 1981, the marriage of Jack Kundit (Jack) and Lorraine Kundit (Lorraine) was dissolved and the marital property apportioned in the circuit court of Cook County. Respondent, Lorraine, appeals from that portion of the judgment disposing of the marital property and the award of maintenance. She presents the following issues for our review: (1) whether the trial court abused its discretion in its division of the marital property; (2) whether the trial court erred in denying her post-trial motion; (3) whether the trial court abused its discretion in its determination of maintenance; and (4) whether the trial court abused its discretion in denying her motion for a continuance at trial.

For the reasons which follow we affirm in part and reverse in part.

Jack and Lorraine were married on November 5, 1960. Their marriage produced two children: Michael Duke Kundit, who had reached the age of majority at the time of dissolution, and Jack, Jr., 15 years old. Their marriage was dissolved on the ground of Lorraine’s constructive desertion.

Jack was employed by United Airlines as a mechanic throughout the marriage. He had a high school diploma, and his net earnings fluctuated from approximately $1400 to $2000 per month depending on the amount of overtime. Lorraine worked for Bell and Howell for approximately 18 months during the marriage. She earned $155 per week net, and she left her job by mutual agreement between herself and her employer.

There is scant evidence in the record regarding the marital assets and their respective values. The marital residence was a four-bedroom house located in Lincolnwood, Illinois. The house had been purchased in 1971 for $33,000 and had an outstanding mortgage of approximately $12,000. The monthly payments on the mortgage were $179. Jack testified that the other marital assets included his credit union account of $200, two boats which were purchased for $1600 but which had a present value of $500, two outboard motors purchased used for a total of $275, 100 shares of Commonwealth Edison stock which he testified was “selling for around eighteen [or] nineteen dollars a share” at the time of the hearing and a used camper purchased for $200.

Lorraine testified that she had obtained a settlement of $4000 for a personal injury suffered in an automobile accident in 1979 and that she spent these proceeds on living expenses and her son’s education. Lorraine also claimed that the marital debts included $5750 that she had, over a period of time, borrowed from her stepfather, Casimir Mazur, and which she also had spent on living expenses. Although on January 8, 1981, she testified that she had not signed a note securing this loan, the record discloses that attached to her post-trial motion is a photocopy of a promissory note dated September 1, 1980. The note was apparently signed by Lorraine subsequent to her January 8, 1981, testimony and purports to evidence her debt to her stepfather. Other marital debts included a $350 doctor’s bill, $500 owed to Visa, $100 owed to J. C. Penney Co., $100 owed to Texaco, a $100 dental bill, and $201 for homeowner’s insurance.

The record reflects no evidence of the value of various marital assets: six life insurance policies on the family members, Jack’s pension fund rights and three automobiles, a 1971 Chevrolet and a 1973 Chevrolet, both of which were in the possession of Jack, and a 1976 Buick which was in the possession of Lorraine.

In apportioning the marital property, the trial court awarded to Jack and Lorraine equal shares of the marital residence with Lorraine to have exclusive possession until the minor child reached the age of majority. Although there is no evidence in the record to establish their value, the court awarded to Lorraine all of the household furnishings. She also received the two boats, the Buick and the proceeds of her personal injury settlement. She was granted $280 per month in child support and for one year only $70 per month in maintenance. The court placed a value of $9500 on the personal property awarded to Lorraine. Where there is no evidence in the record concerning the value of a particular asset, the trial court apparently based its valuation on the court’s own estimate.

Jack received the remainder of the personal property including the balance of his account with the credit union, the rights to his pension fund, the two Chevrolets, his tools, the camper and the Commonwealth Edison stock. The total value of these assets as determined by the trial court was $4500. The court also ruled that the parties were to share the marital debts equally.

I

Lorraine contends that the trial court abused its discretion by apportioning the marital property without first ascertaining the value of certain marital assets.

Initially Jack contends that by her failure to offer any evidence on the value of such assets, Lorraine has waived her right to appeal on this issue. In support of his contention Jack relies on In re Marriage of White (1981), 98 Ill. App. 3d 380, 424 N.E.2d 421, and In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006.

It is apparent from a reading of both White and Leon that rather than support Jack’s waiver argument, these cases oppose his position. White, which relied on Leon, dealt with the sufficiency of evidence needed to establish the value of a professional corporation. The court there rejected the husband’s argument that since the wife did not offer any evidence as to the value of the corporation, she failed to preserve this contention for review. The court stated that it could not “equate lack of sufficient evidence with waiver * # V’ (98 Ill. App. 3d 380, 383.) In accordance with White we hold that Lorraine’s failure to present evidence of the value of certain assets did Hot constitute a waiver of her contention that the evidence in fact presented to the trial court was insufficient to establish the value of those assets.

The Illinois Marriage and Dissolution of Marriage Act (Act) mandates that a trial court divide the marital property between the spouses “in just proportion” without regard to fault. (Ill. Rev. Stat. 1979, ch. 40, par. 503.) For a trial court to apportion marital assets under section 503, the proper value of such assets must be established. (In re Marriage of Donley (1980), 83 DI. App. 3d 367, 403 N.E.2d 1337.) Where the record lacks proper evidence of valuation, there is no basis upon which an appellate court can review the propriety of a trial court’s apportionment of marital property. In re Marriage of Boone (1980), 86 Ill. App. 3d 250, 408 N.E.2d 96; White; Leon.

The asset with which Lorraine is primarily concerned is Jack’s interest in his pension fund. She contends that there was insufficient evidence in the record to support the trial court’s valuation and apportionment of Jack’s pension fund. She argues that this cause must be remanded so that the trial court can receive evidence on its value and apportion it as marital property according to section 503.

We believe our supreme court’s recent opinion in In re Marriage of Evans (1981), 85 Ill. 2d 523, 426 N.E.2d 854, is dispositive of Lorraine’s contention regarding this asset. In Evans the trial court failed to apportion under section 503 the pension fund benefits that each spouse had earned. The appellate court reversed, holding that the trial court had erred in failing to classify and apportion the pension fund rights as marital property. In reversing the appellate court the supreme court, focusing on the sufficiency of the evidence of the value of the benefits, held: “Where a spouse has acquired a right to potential future benefits through his employment there is no way in which the other spouse may be awarded some defined interest in those benefits as marital property without a determination of the value they have to the employed spouse.” (85 Ill. 2d 523, 529.) The court then analyzed the evidence presented by the spouse seeking the apportionment and concluded that her evidence was insufficient to establish the present value of the pension plan. In such circumstance the supreme court ruled that the trial court did not err by failing to characterize the pension plan benefits as marital property nor by refusing to award a marital share in them. We note that in its summation the supreme court stated: “We intimate no opinion as to the circumstances, if any, in which a right to future payments of income should be treated as marital property.” 85 Ill. 2d 523, 534.

We interpret Evans to hold that absent sufficient evidence of the present value of future pension fund benefits, an award of an interest in such benefits is inappropriate under section 503. Since it is clear that in the case at bar the evidence presented to the trial court did not establish the value of the pension plan benefits, we hold that the trial court erred in apportioning to Jack the amount of his pension fund benefits under section 503. We also note that according to Evans Jack should retain his pension fund benefits as his “separate property” and that upon remand the trial court should discount such property in reconsidering the apportionment of the marital property.

With regard to the other items of personal property, it is manifest from the record before us that the parties presented no evidence upon which the trial court could base its valuation of the household furnishings, the life insurance policies or the three automobiles. The evidence of value which was presented appears to be the mere guesswork of the litigants. Given this lack of adequate evidence concerning the value of the marital assets, there is no basis upon which we can review the trial court’s apportionment of the marital property. Accordingly, this- cause requires remandment to the trial court for the purpose of receiving evidence concerning the marital assets and then to apportion them in “just proportion.”

Lorraine also argues that it was an abuse of the trial court’s discretion to apportion to her as marital property the $4,000 she received from the settlement of her personal injury claim since this money was spent on living expenses and therefore no longer existed as a marital asset. We agree.

Although it has been ruled that settlement proceeds received by a spouse are in fact marital assets, it would seem apparent that when such proceeds are expended by the spouse on living expenses it no longer exists as a marital asset and thus cannot be apportioned as marital property under section 503. See In re Marriage of Gan (1980), 83 Ill. App. 3d 265, 404 N.E.2d 306.

Under the Illinois Marriage and Dissolution of Marriage Act, maintenance and child support are directly related to the final property disposition since these awards are substantially dependent upon the financial resources of the parties, including marital property. (Ill. Rev. Stat. 1979, ch. 40, pars. 504(b)(1), 505(a)(2), 508(a).) Since it has been determined that this cause will be remanded for a reconsideration of the apportionment of the marital property, the maintenance and child support awards should likewise be reevaluated by the trial court so that it may properly consider any changes required in the disposition of such property. Therefore, Lorraine’s contention that the trial court abused its discretion in the determination of maintenance need not be addressed here.

II

Lorraine’s next contention is that the trial court erred in denying her post-trial motion. In this motion she sought to have the trial court rectify some discrepancies between its written order of judgment and its oral findings of fact.

As Lorraine correctly points out, the written judgment misstates the amount of indfebtedness of the Kundits in two instances. First, the written judgment states that each party must pay one-half of the $100 owed to Visa. The evidence showed, however, that the couple actually owes Visa $500. Secondly, the judgment understates the medical and dental bills by $100. Although Jack concedes that he is liable for one-half of the debts regardless of the misstatements, the judgment is ambiguous in that it requires each party to pay 50% of a specified indebtedness that is incorrectly stated. In the interest of accuracy and harmonious disposition of the debts, the trial court should conform its written order to the evidence presented at trial.

A more substantial dispute concerns the $5750 which Lorraine received from her stepfather. She argues that the trial court found that this sum was a loan to her and that in its oral finding the trial court indicated that Jack would be responsible for its repayment. The written judgment, however, makes no disposition of this money. Lorraine contends, therefore, that the written judgment is defective and that the trial court erred in refusing to rectify it.

Jack contends that the trial court found that this sum of money was a gift to Lorraine and as such it was not marital property and was, therefore, properly omitted from the trial court’s disposition of the marital property.

In its oral findings the trial court made these equivocal statements regarding the $5750 Lorraine received from her stepfather:

“The court questions and has no real evidence to indicate that there is a bona fide debt * * * [i]t could very well be construed as a gift. However [if it is] not a gift Mr. Kundit will be responsible for the payment.”

Faced with these ambiguous statements we must either remand to the trial court for a specific determination whether the transaction between Lorraine and her stepfather was a loan or a gift or indulge in the speculation that because the written judgment omits any reference to the transaction the trial court determined that it was indeed a gift and, therefore, properly omitted from the disposition of the marital property.

The amount of money involved here is so substantial relative to the balance of the marital estate that its disposition materially affects whether the marital property was justly apportioned under section 503. Thus this cause must be remanded for a specific finding by the trial court as to the character of the transaction between Lorraine and her stepfather.

Ill

Lorraine’s final contention is that the trial court abused its discretion in denying her motion for a continuance.

The record indicates that Lorraine received a number of continuanees and several warnings from the trial court that no further continuances would be allowed. Lorraine changed trial counsel four times, and each time the new attorney sought a continuance in order to prepare for trial. Finally, on November 10, 1980, Lorraine’s third attorney, Mr. Gruener, moved to withdraw as her counsel. The trial court refused him permission to do so unless new counsel for Lorraine appeared and was ready to proceed on December 10, 1980, the date set for trial. On December 10 Lorraine’s new attorney, Ms. Courtney, appeared and moved for a change of venue. When this motion was denied, she moved for a continuance on the grounds that she was unprepared for trial, she did not have the file with her and Lorraine’s father had died just two days before. The trial court denied this motion and ordered Mr. Gruener, who was present, to represent Lorraine. The record indicates that Ms. Courtney conducted the examination of the witnesses and made the oral argument on Lorraine’s behalf, but the judgment of dissolution is signed by both Mr. Gruener and Ms. Courtney.

The law is clear that the granting or denying of a continuance is within the discretion of the trial court, and a court of review will not disturb the court’s determination unless there has been an abuse of discretion. Rogala v. Silva (1973), 16 Ill. App. 3d 63, 305 N.E.2d 571.

Although it is understandable that Lorraine would be distressed by the recent death of her father, this circumstance would not necessarily require the trial court to grant her motion for a continuance. Moreover, her counsel’s failure to be prepared for trial or the fact that she neglected to bring her file with her does not indicate that the trial court abused its discretion by denying her a continuance. Consequently, on this issue, we affirm.

In summary, the trial court’s denial of Lorraine’s motion for a continuance is affirmed; the apportionment of the settlement proceeds and pension fund benefits is reversed; the apportionment of marital property for which there is inadequate evidence of value is reversed and remanded to the trial court with directions to establish such value; the trial court is directed to modify its written judgment to conform to the evidence; and the trial court is directed to render a finding with respect to the nature of the debt relationship between Lorraine and her stepfather.

Affirmed in part; reversed in part and remanded for further proceedings not inconsistent with this opinion.

STAMOS, P. J., and HARTMAN, J., concur.

       Although Lorraine’s counsel claimed on December 10 that Lorraine’s father had died just two days before, Lorraine testified that he had died on December 3, 1980, which was actually seven days prior to the hearing.


author: PRESIDING JUSTICE JOHNSON

text:
    THELMA SWARTZBERG, Plaintiff-Appellee and Cross-Appellant, v. RUTH DRESNER, Defendant-Appellant and Cross-Appellee.
    First District (4th Division)
    No. 81-304
    Opinion filed June 17, 1982.
    Rehearing denied July 14, 1982.
    Herman Chill and Getzoff & Getzoff, both of Chicago ( Max Chill, William Getzoff, and Steven R. Radtke, of counsel), for appellant.
    Richard A. Cowen, of Schuyler, Ballard & Cowen, of Chicago, for appellee.
   PRESIDING JUSTICE JOHNSON

delivered the opinion of the court:

This action was originally brought to recover losses sustained by plaintiff, Thelma Swartzberg, from investments made by defendant’s husband. Plaintiff sought to impose a constructive trust on the proceeds of the sale of defendant’s home based on defendant’s alleged promise to repay plaintiff. The trial judge entered judgment in favor of plaintiff on the issue of liability but denied the request for imposition of a constructive trust.

From this judgment, defendant appeals, presenting the following issues for review: (1) whether the trial court erred in finding that defendant agreed to pay plaintiff from the proceeds of the sale of defendant’s home, and (2) whether the trial court erred in finding that defendant’s alleged agreement to pay her husband’s debt was legally enforceable.

Plaintiff cross-appeals, raising the following issues: (1) whether the trial court erred in refusing to impose a constructive trust, and (2) whether the trial court erred in refusing to admit into evidence a letter written by defendant’s daughter.

We reverse.

On March 3, 1975, plaintiff, Thelma Swartzberg, formerly known as Thelma Benjamin, filed her complaint against Ruth Dresner, formerly known as Ruth Benjamin. Plaintiffs third amended complaint alleged that Mayer Benjamin owed a fiduciary duty to plaintiff; that Mayer disclosed to plaintiff that he had misappropriated her money; that he would put his home on the market and when it was sold he would pay her the money owed. Defendant, Ruth Benjamin Dresner, also promised plaintiff that when the home was sold plaintiff would be paid the amount due her. Relying on these promises, plaintiff took no legal action to enforce her claim until 1975. Plaintiff requested the imposition of a constructive trust upon the proceeds from the sale of defendant’s home or upon other assets into which the proceeds were converted. Plaintiff further alleged that defendant reaffirmed Mayer’s promise to pay her when the house was sold and, alternatively, defendant made a new promise to pay plaintiff the amount due when the property was sold. Defendant answered with a general denial of all the allegations.

The following testimony was adduced at trial. Plaintiff, Thelma Swartzberg, testified that she was married to Mayer’s brother, Sol. Sol and Mayer owned a wholesale produce company. After Sol’s death, Mayer told plaintiff that he would handle her money. Plaintiff turned over all of her money to Mayer — approximately $120,000. He gave plaintiff an allowance out of her monies. Mayer freely bought and sold stocks for her. When he sold the stocks, a check was issued to him and put into his personal account.

In October 1970, plaintiff, while living in Arizona, received a telephone call from defendant, Ruth, informing her that Mayer had suffered a heart attack and was in the hospital; there was no money. Plaintiff returned to Chicago and when she visited Mayer he said to her, “Temmie, I am so very sorry. I used your money. I know I should not have done this, but I did. And I have no way of paying it back until we sell the house.”

Plaintiff and Ruth went to Exchange National Bank in Chicago to examine Mayer’s safe deposit box where they found a manila envelope indicating the contents belonged to Thelma Benjamin. The envelope contained stocks. Ruth thanked plaintiff for not putting a lien on their home or suing Mayer. Ruth stated that the only way they could pay their bills would be through the sale of their home.

Plaintiff told defendant that when the house was sold, Mayer and defendant would not have much money left after paying their debts, so she was willing to accept 6% interest on the money owed her until Mayer could repay her. Ruth related this to Mayer; he said it was a good idea but he could not pay the interest at that time. Plaintiff discovered that Mayer was destitute.

Plaintiff did not consult a lawyer because she was promised repayment and trusted Mayer and Ruth. Mayer died in 1972. On May 3, 1974, plaintiff wrote defendant a letter, stating the following:

“Ruth, I do expect payment of the money due me when the house is sold. I know you agree that I have been patient and fair in this matter. Enough time has passed for you to come to conclusions about situations, so I would appreciate very much knowing your plans. My love to the girls and John. And, Ruth, dear, please be happy in your new life, and let’s always be good friends. With Love, Temmie.”

Ruth did not reply. Later in 1974, plaintiff called defendant and asked whether defendant had sent the money to her in the mail. Defendant responded in the negative and stated that she had not planned to pay plaintiff. Defendant said if things changed at all, there was a possibility of repayment, probably. Plaintiff again wrote defendant a letter on September 17,1974. She also learned that defendant had sold her home.

Plaintiff stated that Ruth did not handle the finances or participate in business discussions of the produce company. Around 1954 or 1955, plaintiff and Mayer operated a grocery store. In 1958, Mayer became a stock broker.

Plaintiff’s counsel introduced into evidence certain portions of the deposition of Jeffrey Rosen. Rosen was an attorney with an accounting background. He was married to Jill, defendant’s daughter. Rosen stated that defendant was concerned about the large sum of money owed to plaintiff and that she had to account for it. This occurred during the time Mayer was in the hospital. Defendant told Rosen that Mayer had supervised plaintiffs affairs and had used some of plaintiffs money to buy stock for himself. Ruth stated that she intended to sell the house and use the proceeds to pay plaintiff and the balance for living expenses. Specifically, defendant told Rosen that plaintiff would be paid out of the sale of the house. Defendant indicated that she was not in a hurry to sell the house because it had no mortgage payments and when she did sell she would have to pay plaintiff, leaving her with less capital.

The deposition of Ida Klein, the sister of Sol and Mayer Benjamin, was also introduced into evidence. She was approximately 72 years old and had a heart problem. Ida stated that defendant told her that as soon as defendant’s house was sold, everybody would be paid off. She did not know who was included in the term, “everybody.”

Jackie Hackner, defendant’s daughter, testified on behalf of defendant. She stated that she was not present when plaintiff talked with her mother about financial matters. In October 1970, plaintiff came to her house to collect some of her possessions. Hackner had found a ledger book that belonged to plaintiff, but she did not understand it. Plaintiff took the ledger book to her son-in-law so that he could look it over. There was a statement to the effect that Mayer owed plaintiff about $29,000.

After cross-examination, plaintiff’s counsel examined Jackie Hackner as her witness. The court would not declare Hackner a hostile witness. Plaintiff’s attorney was not allowed to read specific sections of a letter that Hackner had written to her Aunt Ida because of defense counsel’s objection. The letter was not admitted into evidence.

Jill Rosenstein, called as a witness on behalf of defendant, stated that she was previously married to Jeffrey Rosen. Mayer and Ruth Benjamin are her parents. Her father handled all finances. On October 6, 1970, her mother called, informing her that her father was ill. In the hospital, her father looked pathetic; his skin was pasty, grayish, and his eyes were blurry, not alive. His speech was garbled, thick-tongued. Her sister, Jackie, told her about her parents’ financial situation. They decided to allocate part of their salaries to sustain their parents.

On cross-examination, Jill stated that Jeff is not an honest person. In her deposition, she had stated that Jeff was honest. In the hospital, her father could speak and his voice was understandable.

Defendant, Ruth Dresner, testified that she was married to Mayer and they had two daughters, Jill and Jackie. Defendant was 21 years old and Mayer was 39 when they married. Mayer handled all of the household expenses. She did not know how much Mayer earned. She never discussed personal finances with Mayer. All checking accounts were in Mayer’s name. He gave her a weekly allowance. In 1952 or 1953, they purchased their home in Calumet City, Illinois. When plaintiff visited Mayer to discuss business, she did not participate in the discussion.

Ruth did not ever know how much Mayer earned annually on any of his jobs. She called plaintiff the night after Mayer became ill and told her of his heart attack. Plaintiff asked, “What should I do?” Ruth said, “Temmie, you know, make up your own mind what you want to do. I’m just telling you that Mayer is very ill.” Plaintiff responded, “All right. I will come in.”

Ruth discovered that Mayer did not have any money when she sought to write a check to pay a $40 electric bill. There was very little money in the checking account — under $10. She located two other checkbooks that had very low balances. She did not discuss their financial situation with Mayer while he was in the hospital.

Ruth did accompany plaintiff to the Exchange National Bank in Chicago to open a safe deposit box. After they left the bank, they talked about Mayer’s condition and nothing else. When plaintiff was at her home, they did not talk about financial matters. Ida, Mayer’s sister, loaned her $1,750 to help with expenses. Ray Barton loaned her $8,500 to pay off a bank loan owed by Mayer. She repaid them both prior to her remarriage in May 1974. Before Mayer’s death, she and Mayer did not discuss the financial relationship he had with plaintiff.

Between 1970-72, defendant stated that she put her house up for sale because she could not allow everyone to continue to support her. When the house did not sell, she took it off the market.

In May 1974, defendant received a letter from plaintiff. She did not respond. Later, plaintiff called and asked for her money. Defendant told plaintiff that she was not responsible for the payment of the money. Plaintiff then sent another letter. Ruth did not respond to that letter.

On cross-examination, defendant stated that during 1970-72, she did not know that Mayer owed plaintiff any money. She signed a contract on April 20,1974, for the sale of her home. She received a letter from plaintiff in May. She did not respond because she did not know anything about the money. She did not talk to anyone about the letter. She knew that Mayer ran Benjamin Brothers for plaintiff and that, later, he was handling plaintiff’s affairs. When Mayer was in the hospital, she was never there when plaintiff saw Mayer.

When defendant accompanied plaintiff to the Exchange National Bank, it was during the first week of Mayer’s illness. Mayer had to sign a card giving authorization to go into the safe deposit box. She never thanked plaintiff for being so understanding in not suing them.

Ruth testified that she paid a debt owed by Mayer to the bank for $8,500. When that debt was paid, the Reading Company stock was released. Jeffrey Rosen helped her transfer the shares of Reading stock. Rosen prepared her 1970 and 1971 income tax returns. After she sold her home, no one advised her not to pay plaintiff'

The trial court gave judgment on the issues of liability for plaintiff; plaintiff’s request for imposition of a constructive trust pursuant to count II was denied; judgment was entered in favor of plaintiff pursuant to count III for $29,109.86 plus interest at 6% from July 23, 1974, which amounted to $10,602.95, for a total of $39,712.81. From this judgment, defendant appeals and plaintiff cross-appeals.

Defendant contends there was no mutual assent to pay her husband’s debt. Defendant made no agreement to pay any amount to plaintiff from the proceeds of the sale of the home held in joint tenancy by defendant and her now deceased husband.

The determination of this case depends largely upon the facts to be found in the record. In such situations, the findings and judgment of the trial court in nonjury cases will not be disturbed by the reviewing court, if there is any evidence in the record to support such findings. (Brown v. Zimmerman (1959), 18 Ill. 2d 94, 102, 163 N.E.2d 518, 523.) In nonjury cases, the credibility of the witnesses and the weight afforded their testimony are questions to be determined by the trial court. (In re Estate of Stuhlfauth (1980), 88 Ill. App. 3d 974, 980, 410 N.E.2d 1063, 1067.) A reviewing court will not substitute its judgment as to credibility of witnesses unless the findings of the trial court are against the manifest weight of the evidence. Brown v. Zimmerman (1959), 18 Ill. 2d 94, 102.

In order to prove that an agreement was made by defendant to pay Mayer’s debt, plaintiff presented the following evidence: in his deposition, Jeffrey Rosen stated that defendant told him she would pay the debt owed to plaintiff after the sale of her home; plaintiff’s testimony also indicated that defendant stated the only way Mayer and defendant could pay their bills would be to sell their home. The only other evidence presented by plaintiff was a letter she wrote to defendant requesting payment. Defendant did not answer the letter.

We find that, without more, the above evidence is insufficient to constitute mutual assent by the parties or to establish that defendant agreed to assume Mayer’s debt. In reaching this decision, we note that any agreement to pay Mayer’s debt must come from defendant. Further, testimony by other parties does not constitute an agreement by defendant to pay plaintiff but is merely evidence that defendant may have made the agreement. Consequently, plaintiffs evidence was insufficient to establish that defendant agreed to assume Mayer’s debt.

Defendant also contends the trial court erred in finding that defendant made an agreement to pay the debt of her deceased husband upon the sale of the home, and the court erred in holding that such agreement was legally enforceable. Defendant asserts that if she had agreed to pay her husband’s debt, such agreement falls within the Statute of Frauds and is not enforceable since it was not embodied by a writing signed by defendant.

The principal question is whether the facts above bring this case within section 1 of “An Act to revise the law in relation to frauds and perjuries” (Ill. Rev. Stat. 1979, ch. 59, par. 1) (hereafter referred to as the Statute of Frauds) so as to relieve defendant of liability.

Section 1 of the Statute of Frauds provides, in pertinent part, as follows:

“[N]o action shall be brought whereby to charge * * * the defendant upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement made upon consideration of marriage, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”

It is well settled that this portion of the Statute of Frauds, relied upon by defendant, has reference only to collateral undertakings to answer for the debt of another. (Bonner & Marshall Co. v. Hansell (1914), 189 Ill. App. 474, 480-81.) Where the agreement is original and independent, it is not within the statute; if collateral, it is. (189 Ill. App. 474, 481.) Whether an undertaking is original or collateral merely, is to be determined, not from the particular words used, but from all the circumstances attending the transaction. (189 Ill. App. 474, 481-82.) The provisions of the statute apply to promises, the main purposes of which are to assume or guarantee the debt of another, and they do not apply to cases in which credit is extended to the promisor, or to cases in which the object or the promise is to promote some interest, purpose or advantage of the promisor. Duzenbery v. Nimmo (1923), 228 Ill. App. 448, 452.

In the case at bar, there was insufficient evidence to support the trial court’s ruling that defendant made a new promise to plaintiff. A search of the record reveals that there was no writing signed by defendant nor was there testimony by defendant that she agreed to pay her husband’s debt. Further, there was no testimony that some interest or advantage was received by defendant that would take the alleged oral promise out of section 1 of the Statute of Frauds. We find that, without proof of a writing, defendant’s alleged oral promise to assume her deceased husband’s debt is unenforceable because it is in contravention of the Statute of Frauds. Accordingly, the trial court erred by finding in favor of plaintiff on this issue.

In her cross-appeal, plaintiff contends the trial court erred by failing to impose a constructive trust on the proceeds of the sale of defendant’s home.

Plaintiff’s contention is foreclosed by our holding above that she cannot recover from defendant because there was no proof of a promise made by defendant to pay plaintiff.

Plaintiff, in her cross-appeal, also contends the trial court erred by refusing to admit a letter dated May 6, 1974, written by defendant’s daughter, Jackie Hackner. Plaintiff alleges that Jackie was acting as defendant’s agent when she wrote the letter.

The existence of an agency relationship is a question of fact to be decided by the court or jury. (Lazarus v. Pascucci (1979), 74 Ill. App. 3d 633, 639, 393 N.E.2d 1074, 1079.) The agent’s authority can come only from his principal. (Mills v. State National Bank (1975), 28 Ill. App. 3d 830, 834, 329 N.E.2d 255, 259.) The party alleging an agency relationship has the burden of proving it by a preponderance of the evidence. Lazarus v. Pascucci (1979), 74 Ill. App. 3d 633, 639-40.

In the case at bar, the record contains no evidence of an agency relationship. There is no evidence which indicated that defendant gave her daughter, Jackie, authority to write a letter on defendant’s behalf; and, moreover, Jackie never purported to be acting pursuant to any such authority. Consequently, since the record was devoid of such evidence, plaintiff failed to establish that an agency relationship existed between defendant and Jackie.

Further, we also find that plaintiff’s allegation that the letter should be admissible under res gestae is without merit. We note that the term, res gestae, is no longer used. There has emerged the principle that under certain conditions what has been characterized as “ ‘spontaneous declarations’ ” or “ ‘excited utterances’ ” are properly admissible as an exception to the hearsay rule. (People v. Poland (1961), 22 Ill. 2d 175, 180, 174 N.E.2d 804, 806-07.) Three factors are necessary to bring a statement within this exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. People v. Poland (1961), 22 Ill. 2d 175, 181.

Under the foregoing analysis, we find that Jackie Hackner’s letter would not be admissible because the letter was not a spontaneous and unreflecting statement. Most importantly, the requirement of a lack of sufficient time to allow an opportunity for reflection and invention was not present.

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

Reversed.

JIGANTI and LINN, JJ., concur.


author: JUSTICE KASSERMAN PRESIDING JUSTICE KARNS,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES C. ROYSE, Defendant-Appellant.
    Fifth District
    No. 81-41
    Opinion filed May 12, 1982.
    Rehearing denied July 9, 1982.

      KARNS, P. J., dissenting.
    Louis B. Garippo, of Louis B. Garippo, Ltd., of Chicago, for appellant.
    Randy Patchett, State’s Attorney, of Marion (Martin N. Ashley and Raymond F. Buckley, Jr., both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE KASSERMAN

delivered the opinion of the court:

After a jury trial in the circuit court of Williamson County, defendant, James C. Royse, was found guilty of delivery of more than 30 grams of a substance containing cocaine and was sentenced to six years’ imprisonment. In this appeal defendant contends that: (1) the information by which he was charged was fatally defective; (2) a new trial should have been granted due to the ineffective representation of his retained trial counsel; and (3) the minimum sentence imposed deprived him of due process of law.

Defendant was tried jointly with Kevin Young, who was tried in absentia under section 115 — 4.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 — 4.1). Defendant raised and argued a defense of entrapment, and the jury was instructed as to both accountability and entrapment.

The State’s evidence consisted primarily of the testimony of sheriff’s deputies Bruce Townsend and William Mehrtens, whose undercover operations resulted in the deputies’ purchase of cocaine on January 10,1980. at the house shared by defendant, Young, and Debbie Clinton. Townsend testified as to the following version of the events. He and Young planned the transaction in the kitchen of the house on January 9, 1980, while Mehrtens waited in the deputies’ car. Townsend obtained a small sample of cocaine on January 9, then left and tested the sample before returning to the house the same day. On Townsend’s return, he and Young further planned the transaction in the living room in the presence of defendant and Ms. Clinton. In defendant’s presence, Young suggested having defendant go get the cocaine when Townsend returned with the money. The next day, when Townsend returned, he asked Young and defendant whether it was “snowing,” that is, whether the cocaine had been obtained; both replied that it was snowing. Townsend insisted that the money be counted out in the car, where Mehrtens was waiting. Defendant went out and counted the money, then left in his own car. Upon defendant’s return, both deputies and all three residents of the house met in the kitchen, where defendant produced the cocaine from a jacket pocket. Townsend further testified that he had been in the house on about six occasions between December 19, 1979, and January 9,1980, and that on one occasion when Young was absent, he and defendant had discussed selling Townsend some LSD.

Deputy Mehrtens testimony regarding his own observations from the deputies’ car on January 9 was corroborative of Townsend’s account. He agreed with Townsend that on January 10 defendant came out to the car to count the money, then left in his own car, producing a packet of cocaine in the kitchen on his return. Mehrtens also testified that he was present in the house on December 11,1979, when he purchased LSD from Young, and on December 13, 1979, when he purchased LSD from defendant in Young’s absence.

Defendant testified in his own behalf that he had lived in the house for less than two months at the time of the offense. Defendant admitted his presence in the house on January 9 and 10 at the times the deputies had testified he was there; however, defendant stated that he did not realize that a drug transaction was in progress until, on January 10, Young asked defendant to go out to the car and count the money. Defendant refused. According to defendant, Townsend asked defendant whether he was a “narc” and called him “chicken shit.” Defendant related that Young told him to count the money or move out and that he (defendant), mindful that he owed Young money for rent and utilities, complied. Defendant testified that he told the deputies, however, that the deal was none of his business and that he did not want to get involved. Defendant further stated that he then returned to the house, where Young gave him the packet of cocaine and told him to drive around so that it would appear that the cocaine had not come from the house. Defendant further testified that when he returned, he threw the cocaine on Young’s scale, said he had nothing to do with it, and left the room. Defendant admitted that he did sell Mehrtens LSD on December 13,1979, and that he had known what it was; however, he testified that Mehrtens had told him the deal was already set up with Young and that Young would be angry if defendant blew it.

On cross-examination, defendant testified that he had not seen Ms. Clinton in three months and was unaware of her whereabouts. On recross-examination, he replied in the negative when asked whether he intended to call Ms. Clinton as a witness. The trial court informed the jury that Ms. Clinton had pleaded guilty to possession of less than 30 grams of cocaine but admonished the jury that this information was to be considered only to show why Ms. Clinton was not present at trial.

At the hearings on defendant’s post-trial motion, defendant was represented by new counsel who argued that defendant’s trial counsel had been so ineffective that defendant had been deprived of a fair trial. In denying the post-trial motion, the court commented that trial counsel had not handled the case as he would have. The court stated:

“I have seen cases where counsel has done a worse job than the Defense counsel in this case. Not a lot, but I have seen some in major cases. The problem is, and [sic] if this were appointed counsel I would have no hesitancy in deciding that his conduct was so incompetent that this Defendant should have a new trial.”

First, we consider defendant’s contention that the information was fatally defective because it alleged his unlawful delivery of “cocaine.” Defendant notes that the legislature recently deleted one reference to “cocaine” where it appeared in schedule II of the Illinois Controlled Substances Act (compare Ill. Rev. Stat. 1979, ch. 5½, par. 1206(b) (4), with Ill. Rev. Stat. 1975, ch. 56½, par. 1206(b)(4)), and argues that cocaine is therefore no longer a controlled substance. This contention was rejected in People v. Simon (1980), 91 Ill. App. 3d 667, 416 N.E.2d 285. We reject that contention for the additional reason that the instant defendant was charged with violation of section 401(a) (2) of the Controlled Substances Act, which specifically proscribes delivery of “30 grams or more of any substance containing cocaine.” (Ill. Rev. Stat. 1979, ch. 56½, par. 1401(a)(2).) We also note that Schedule II still lists “[c]oca leaves and any salt, compound, derivative, or preparation of coca leaves * * (Ill. Rev. Stat. 1979, ch. 56½, par. 1206(b)(4).) Cocaine is a “derivative” of coca leaves. (People v. McCarty (1981), 86 Ill. 2d 247, 427 N.E.2d 147; Webster’s Third New International Dictionary 434 (1971).) The legislature’s deletion of “cocaine” appears to have been intended to cure a redundancy in the language of that provision rather than to decriminalize cocaine.

Defendant also contends that the information was defective because it did not specify which form of cocaine defendant was charged with having delivered. This contention, too, was rejected in Simon. Further, we find neither evidence nor authority in support of defendant’s view that certain forms of cocaine are not controlled by the Act. In United States v. Orzechowski (7th Cir. 1977), 547 F.2d 978, cert. denied (1977), 431 U.S. 906, 52 L. Ed. 2d 391, 97 S. Ct. 1701, cited by defendant, the parties agreed and the court assumed that some forms of cocaine were not controlled. In United States v. Bockius (5th Cir. 1977), 564 F.2d 1193, cited by defendant, the court assumed, without deciding, that “L-cocaine” was the only illegal form of eight existing forms of cocaine. There the court specifically reserved the question of the validity of that construction of the applicable statute. (564 F.2d 1193,1194 n.1.) In the case at bar, the parties dispute whether some forms of cocaine are not proscribed. In the absence of evidence or authority to the contrary, we read the statute as it appears, i.e., it is unlawful to deliver 30 grams or more of “cocaine.” Ill. Rev. Stat. 1979, ch. 56½, par. 1401(a)(2).

Defendant also argues that the Act is fatally ambiguous because it does not define “cocaine.” When construing a statute the court is required to assign to the words used therein their plain and ordinary meaning. (People v. Moore (1978), 69 Ill. 2d 520, 372 N.E.2d 666.) “Cocaine” is defined as an alkaloid obtained from coca leaves and synthesized from ecgonine. (Webster’s Third New International Dictionary 434 (1971).) We believe the Act’s use of “cocaine” is sufficiently unambiguous in view of the general acceptance of this definition.

Next, we consider defendant’s contention that the incompetence of his trial counsel requires that the cause be remanded for a new trial. Defendant argues that reversal is mandated in view of the trial court’s comments indicating that trial counsel would have been found incompetent under the standard for appointed counsel. He urges that this court held in People v. Scott (1981), 94 Ill. App. 3d 159, 418 N.E.2d 805, filed after the hearings on the post-trial motion in this case, that a less rigid standard for determining competency of retained counsel as opposed to appointed counsel was impermissible because of the decision in Cuyler v. Sullivan (1980), 446 U.S. 335,64 L. Ed. 2d 333, 100 S. Ct. 1708. In Scott this court determined that the standard for retained counsel should be the same as the standard applied to appointed counsel. Under the rationale of People v. Scott, defendant is entitled to a new trial if counsel “ ‘was actually incompetent, as reflected in the performance of his duties as trial attorney, and if this incompetence produced substantial prejudice to the defendant without which the result of the trial would probably have been different.’ ” (People v. Scott (1981), 94 Ill. App. 3d 159, 163, 418 N.E.2d 805, 807; People v. Greer (1980), 79 Ill. 2d 103, 120-21, 402 N.E.2d 203, 211.) The State argues that, contrary to the comments of the trial court, counsel was sufficiently competent under the standard set forth in Scott and Greer. We are constrained to consider this argument because the judgment of a trial court must be sustained on any ground warranted in the record irrespective of whether the particular reasons given or specific findings of the trial court are correct. People v. Hamilton (1978), 56 Ill. App. 3d 196, 371 N.E.2d 1234, aff'd (1979), 74 Ill. 2d 457, 386 N.E.2d 53.

Defendant urges as showing counsel’s incompetence: counsel’s failure to move for a severance of trial from that of the absent Young; failure to argue at the preliminary hearing; failure to move for a directed verdict after the State’s case; failure to move for a mistrial after Deputy Townsend volunteered that defendant had been involved in unspecified other offenses; failure to follow up an attempted impeachment by use of a prior inconsistent statement by reading the prior statement from an available transcript; failure to object to the prosecutor’s inquiry, on cross-examination of defendant, as to whether defendant intended to call Debbie Clinton as a witness; failure to object to various leading questions and hearsay answers; failure to object to the deputies’ “summarizing” conversations with Young and defendant without specifying who was present and identifying who made the statements testified to; failure to object to testimony that defendant “understood and was agreeable” with the plan of the transaction; and failure to object to Mehrten’s summary of conversations which occurred outside Mehrtens’ presence.

Some of defendant’s contentions in this regard are well taken, and others are not; however, defendant’s assertions on appeal must be viewed in light of the fact that our supreme court has held that the failure to object may be deemed a mere tactical judgment designed to avoid emphasizing the objectionable matter. (People v. Greer.) As for counsel’s failure to argue at the preliminary hearing or to move for a directed verdict, the record discloses no grounds for a successful motion, and defendant does not now suggest any argument counsel could then have advanced. We do not fault defense counsel for failing to seek a severance from the trial of co-defendant Young because Young’s counsel did move for severance without success. Further, grounds for such a motion are not now urged and none appear.

The following colloquy between defendant’s counsel and Deputy Townsend deserves special mention. Defendant argues that defense counsel’s failure to move for a mistrial because of these comments by Townsend or at least ask that the jury be instructed to disregard them illustrates counsel’s “fatalistic acceptance of defendant’s guilt and careless or indifferent representation”:

“Q. But you talked to Kevin Young?
A. Yes, sir. He was home.
Q. And you asked him, I believe you said, about a large purchase of LSD?
A. We had been talking about the purchase of LSD; LSD had been purchased there before.
# # 6
Q. I believe you stated that when you came back and you were trying to make the details of the transaction, you stated that Kevin Young said that [defendant] would go get the stuff.
A. Mr. Young—
Q. [Defendant] didn’t say that. Mr. Young said that, isn’t that true?
A. Mr. Young, [defendant] and myself were engaged in a conversation, in the house. When I asked how the transaction would go the next day, Mr. Young stated that [defendant] would go to obtain the cocaine. There was no doubt in my mind but what [defendant] knew fully what was going on.
# t* #
Q. Isn’t it true, Mr. Townsend, that until the 10th of January, [defendant] wasn’t involved in this thing at all, other than being present in the house?
A. By ‘thing,’ I don’t understand what you’re—
Q. This whole negotiated sale of cocaine?
A. I had been advised by other Agents he was involved in separate transactions, which we have not discussed.”

The above questions called for yes or no answers. The answers received were unresponsive hearsay. Townsend never testified that he participated in or observed specific other transactions involving defendant or LSD. The witness’ answers cannot be said not to be damaging to any prospects defendant had for acquittal. In our view defense counsel’s failure to seek some ruling to alleviate the effects of this improper testimony supports the trial court’s expressions of misgivings as to the competency of defense counsel at trial. In so concluding, we need not, and do not, conclude that counsel was in fact incompetent. In this regard, the comments of the trial court concerning counsel’s competence are entitled to substantial deference by this court but are not conclusive.

Under the standard now applied to retained counsel as well as appointed counsel, it is not sufficient cause for a new trial that counsel was actually incompetent as reflected in the performance of his duties as trial attorney; rather, to require a new trial, defendant must show that without such incompetence the result of the trial would probably have been different. (People v. Scott, People v. Greer.) In the case at bar, defendant argues that counsel’s conduct deprived defendant of a fair consideration of his defenses of entrapment and lack of accountability. Defendant does not argue that a different theory of defense should have been pursued, nor does he suggest that other evidence more favorable to defendant was available and should have been brought forward. It has been held that a new trial is not warranted due to incompetence of counsel where the evidence of guilt was such that there could be little effective defense. People v. Wesley (1964), 30 Ill. 2d 131, 195 N.E.2d 708; see People v. Neeley (1980), 90 Ill. App. 3d 76, 412 N.E.2d 1010.

Regarding defendant’s contention that his two defenses were ineffectively presented, we find the admissible evidence adduced insufficient to raise an issue of fact as to whether defendant was entrapped. It has been recognized that there can be no entrapment when an accused was already engaged in an existing course of similar criminal conduct for the reason that he is not an “otherwise innocent person.” (United States v. Jones (7th Cir. 1962), 302 F.2d 46; People v. Kadlec (1974), 21 Ill. App. 3d 289, 313 N.E.2d 522.) Defendant admitted selling LSD on one prior occasion. His testimony also indicated as well his familiarity with LSD traffic and the going price of LSD. Moreover, defendant’s testimony concerning Townsend’s attempts to get defendant to count the money, if believed, fell far short of undue encouragement or, for that matter, coercion.

Additionally, we believe no question of fact was presented as to defendant’s guilt by accountability. Defendant admitted that he counted the money and participated in an artifice to create the impression that cocaine was not kept in the house and that he had the cocaine in his possession throughout that sham excursion. Therefore, defendant was at least guilty of aiding and abetting Young if he were not guilty as a principal. We conclude that defendant has not shown that the outcome of the trial would probably have been different had his counsel been more competent. We find the opposite conclusion apparent on the record.

We have also considered defendant’s contention that the trial court erred in trying defendant jointly with Young. Defendant urges that the State failed to prove compliance with section 113 — 4(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 113 — 4(d)). Defendant has neither alleged nor shown how he was prejudiced as a result of any such error. It appears, rather, that any prejudice in this regard would have accrued to Young, who was portrayed in his absence as the protagonist in the offense. Further, defense counsel was faced with the fact that Young’s motion for a severance had already been denied. Additionally, it cannot be disputed that defendant is in no position to question the propriety of a ruling which was made in response to a motion by, and which adversely affected only, his co-defendant. See People v. Montgomery (1974), 18 Ill. App. 3d 828, 310 N.E.2d 760.

Next, defendant argues that the trial court erred in prohibiting defendant from informing the jury that the minimum penalty for the offense charged was six years’ imprisonment. This order was not error. Where the jury has nothing to do with fixing the punishment, it is improper for either party to argue the punitive effect of the jury’s verdict. People v. Galloway (1963), 28 Ill. 2d 355, 192 N.E.2d 370, cert. denied (1964), 376 U.S. 910, 11 L. Ed. 2d 608, 84 S. Ct. 665.

Defendant next urges that the prosecutor was guilty of misconduct in asking defendant whether he was going to call Debbie Clinton as a witness. It is generally improper for the State to comment on defendant’s failure to call a witness where the comment suggests that the witness would have testified unfavorably to defendant and witness is as accessible to the State as to defendant. (People v. Olejniczak (1979), 73 Ill. App. 3d 112, 390 N.E.2d 1339.) However, we do not perceive any possible prejudice to defendant in view of his own testimony which established his guilt. Additionally, we note that the deputies’ testimony informed the jury that Ms. Clinton was present at the time of the offense and was involved to some extent. It is reasonable to conclude that the jury might have drawn a negative inference from defendant’s failure to call Ms. Clinton as a witness, even absent the prosecutor’s inquiry. (See Olejniczak.) We believe that the question was without practical effect. We reach the same conclusion with respect to defendant’s contention that the trial court should not have informed the jury that Ms. Clinton pleaded guilty to possession of cocaine. In this regard we note as well that the nature of defendant’s admitted involvement in the transaction was quite different from Ms. Clinton’s, suggesting that the two were not similarly situated with respect to possible defenses. Regarding defendant’s contention that he should have been permitted to show Ms. Clinton’s guilty plea negotiations, defendant has alleged no specific prejudice on appeal and none is suggested of record.

The last issue raised by defendant in this appeal is that the mandatory minimum sentence for the offense of which he was convicted results in an unconstitutional denial of due process of law. Defendant relies primarily upon People v. McCarty (1981), 93 Ill. App. 3d 898, 418 N.E.2d 26, in which the court held that cocaine was not a narcotic. Subsequent to the filing of defendant’s initial brief, our supreme court reviewed People v. McCarty on appeal and held that cocaine was properly classified with “true” narcotic substances for the purpose of penalty. (People v. McCarty (1981), 86 Ill. 2d 247, 257, 427 N.E.2d 147, 152.) It would needlessly prolong this opinion to recite the rationale of McCarty in which the supreme court upheld a similar penalty for delivery of less than 30 grams of cocaine. We believe that an equally strong argument exists in favor of the instant penalty which, while more severe than the penalty upheld in McCarty, is also contingent upon commission of a more serious offense. In our view McCarty is dispositive of this issue.

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

Affirmed.

HARRISON, J., concurs.

PRESIDING JUSTICE KARNS,

dissenting:

I agree with the trial court’s assessment of counsel’s representation of defendant at trial. Under our decision in People v. Scott (1981), 94 Ill. App. 3d 159, 418 N.E.2d 805, performance of retained counsel is to be judged by the same standard as appointed counsel, a standard required, we felt, under the Supreme Court’s decision in Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708. It seems to me that the trial court was in a better position to assess counsel’s performance. (People v. Callaham (1978), 60 Ill. App. 3d 1020, 1026, 377 N.E.2d 171, 177.) The majority opinion has detailed those shortcomings and they need not be repeated here.

I am also troubled by the manner in which this case was presented to the jury by the prosecution. It has been often stated that a defendant is not entitled to a perfect trial. He is, however, entitled to a fair trial conducted in accordance with the basic rules of criminal procedure, and the prosecution has a duty to present its case in accordance with these rules regardless of the performance of defense counsel and his failure to object to the introduction of incompetent and highly prejudicial evidence. This is particularly true here where defendant was tried with Young, who was tried in absentia, quite possibly improperly, and where the evidence of Young’s guilt was overwhelming.

I do not consider the evidence of defendant’s guilt so overwhelming as to pass these matters off as harmless error. Debbie Clinton, who the jury was improperly told had pleaded guilty to a related charge after the prosecution had improperly asked defendant on cross-examination if he planned to call her as a witness, was allowed to plead guilty to a reduced charge of possession and sentenced to a 30 months’ probation. Properly tried, defendant might well have been convicted of an offense which permitted probation as a possible penalty.

Here the prosecution introduced evidence in its case in chief which tended to show that defendant had committed several distinct and unrelated crimes. This evidence may have become competent in rebuttal as tending to prove defendant’s propensity to commit the crime charged if defendant later interposed the defense of entrapment (People v. Price (1974), 17 Ill. App. 3d 911, 309 N.E.2d 56); however, defendant may not have done so. He may have defended solely on his lack of accountability for Young’s conduct in arranging and selling the cocaine.

The record is replete with improper leading questions and the admission of improper hearsay evidence, which the prosecution witnesses recounted in narrative fashion. Several of these instances involved conversations between the prosecution witnesses and Young and Clinton when it was never established that defendant was present. The witnesses were asked questions which allowed them to give their impression as to defendant’s guilt.

One other matter must be noted. I consider it highly improper for a trained police officer, assigned to a special narcotics enforcement group, to respond to a question requiring only a yes or no answer, that he was advised by other agents that defendant was involved in other narcotics transactions “which we have not discussed.” Nothing defense counsel could have done could have removed the damaging effect of such improper testimony.


author: JUSTICE JONES

text:
    EDWARD E. MUELLER et al., Plaintiffs-Appellants, v. HELLRUNG CONSTRUCTION COMPANY et al., Defendants-Appellees.
    Fifth District
    No. 81-169
    Opinion filed June 10, 1982.
    George R. Ripplinger, Jr., of Ripplinger, Dixon & Hoffman, of Belleville, for appellants.
    Stephen J. Maassen and Al J. Pranaitis, both of Hoagland, Maucker, Bernard & Almeter, of Alton, for appellees Hellrung Construction Company, W. B. Wiggins, Jr., KSM Sheet Metal Co., Werner Brothers, Inc., and Kroger Company.
   JUSTICE JONES

delivered the opinion of the court:

This appeal again presents to the appellate court the question of whether Illinois recognizes an action by a minor child for the loss of parental society, companionship, love, affection and parental guidance.

In this action brought in part in negligence and in part under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.), plaintiff sought $6,000,000 in compensatory damages and $6,000,000 in punitive damages, plus costs of suit, for personal injuries suffered when he fell from the roof of a Kroger store then under construction in Alton, Illinois. He was an employee of Canham Sheet Metal Corporation, a subcontractor of one or more of the defendants named in the suit. In one count of the complaint his wife, plaintiff Geraldine Mueller, sought $4,000,000 for loss of consortium, and in another count his son, Michael Mueller, a minor, by his father and next friend, sought $2,000,000 for the loss of his father’s “society, companionship, love, affection, and parental guidance.” Separately the defendants moved to dismiss for failure to state a cause of action the count of the complaint wherein the minor sought to recover for the loss of parental companionship and society. Relying upon Koskela v. Martin (1980), 91 Ill. App. 3d 568,414 N.E.2d 1148, the trial court granted defendants’ motions to dismiss that count. On appeal the minor raises two issues: (1) whether that count of the complaint states a cause of action and (2) whether dismissal of the count denies him equal protection of the laws.

Of the several jurisdictions that have considered the question of whether a minor child may recover for the loss of a parent’s companionship and society, that is to say, for the loss of what has been termed “parental consortium,” nearly all, including Illinois in Koskela, have held that a minor child may not maintain such a cause of action. (See Annot., 69 A.L.R.3d 528 (1976).) Only Massachusetts (Ferriter v. Daniel O’Connell’s Sons, Inc. (1980),_Mass._, 413 N.E.2d 690), Michigan (Berger v. Weber (1981), 411 Mich. 1, 303 N.W.2d 424) and, apparently, Iowa (Weitl v. Moes (Iowa 1981), 311 N.W.2d 259) allow a child to maintain a cause of action for the loss of parental companionship and society resulting from injury caused by the tortious act of a third party.

In Koskela an autistic child sought to recover for the loss of her father’s services, companionship, society and affection after he was rendered unable, because of injury resulting from a collision with a garbage truck, to drive her to a special school, her mother being ill. Affirming the trial court’s dismissal for failure to state a cause of action, the court expressed the concern, which we share, that recognition of a child’s consortium action will result in increased litigation and multiple claims because each child has his or her own cause of action. As was said in Koskela,

“The possibility of multiple lawsuits may hinder settlement or increase the expense involved as such. Additionally, the social burden of providing damages for this loss will ultimately be borne by the public through increased insurance premiums or in the enhanced danger that accrues from the greater number of people who will choose to go without any insurance.” 91 Ill. App. 3d 568, 572, 414 N.E.2d 1148, 1151.

We agree with the court in Koskela that one of the consequences to be considered of allowing such a cause of action is the possibility of a defendant’s greatly expanded liability. The court there noted the difficulty of drawing a line to end litigation “if all members of the household, such as cousins, grandchildren, and foster children, could have potential claims for loss of consortium.” (91 Ill. App. 3d 568, 572, 414 N.E.2d 1148, 1151.) Furthermore, it might be possible to draw that line so as to exclude children who are no longer minors from advancing a claim for the loss of a parent’s companionship and society. As the dissent in Berger v. Weber pointed out,

“Parents often continue to provide their children with society, companionship, nurturance [sic] and guidance long after the children themselves become parents. Some children never leave their parents’ homes. Other children, whether married or single, become the devoted caretakers and companions of aged parents, whose society and companionship play a prominent role in their lives. The class of cases in which deprivation of parental consortium can be asserted is more extensive than might at first appear.” (411 Mich. 1, 31, 303 N.W.2d 424, 433-34.)

The dissent there also observed, we think correctly, that

“[w]hile the creation of other new causes of action may have affected only a handful of cases and thus generated marginal additional costs, recognizing a separate right of recovery in members of a tort victim’s family creates a potential for additional liability in a large number of cases. And a tort victim is likely to have more children than spouses.” 411 Mich. 1, 39, 303 N.W.2d 424, 437.

In the dissent’s analysis in Berger, if such a cause of action were allowed, given the place of both insurance and the automobile in our society, it is quite likely that those children suffering the greatest losses might well receive little or no compensation and that those suffering relatively slight losses would receive relatively greater compensation:

“Because few automobile drivers carry adequate liability insurance, most children who are deprived of a parent’s companionship will not be benefitted. Policy limits are likely to be exhausted in the full or partial satisfaction of the injured parent’s claim and the spouse’s loss of consortium claim, without regard to children’s claims for loss of parental consortium. Even fewer drivers have sufficient resources to satisfy such claims themselves. To be sure, some fortunate plaintiffs — for example, a child whose parent happens to be injured in a collision with a common carrier’s truck instead of an ordinary citizen’s automobile, or in an industrial accident where a third party is responsible, or by a major manufacturer’s product — will be able to recover against ‘deep-pocket’ defendants. But in the typical auto accident case, the less serious the parent’s injury, the more likely it is that money will be available to pay claims for loss of parental consortium. The benefits of recognizing the child’s cause of action will be unevenly and adventitiously distributed, more so than ordinarily.” (411 Mich. 1, 40, 303 N.W.2d 424, 438.)

All things considered, we think that the balance must be struck against the creation of a new cause of action for loss of parental companionship and society. Although we appreciate the loss sustained by the minor child in the instant case, the loss is not one that in Illinois is actionable.

The minor maintains that “it is a violation of equal protection of the laws to allow a minor child to recover for the loss of consortium, companionship, society and affection of its parents if the parent dies of negligently inflicted injuries but to deny that same child those rights and cause of action if the parent survives. Such a distinction does not promote any compelling state interest * * Plaintiff submits further that there is no rational basis for allowing one member of a family to maintain an action for loss of society, companionship, love and affection and denying that same cause of action to the remaining members of the family. Both of these arguments have been advanced unsuccessfully in other jurisdictions that do not recognize a child’s cause of action for the loss of a parent’s companionship and society. In Garza v. Kantor (1976), 54 Cal. App. 3d 1025, 127 Cal. Rptr. 164, one of the issues presented was whether, the constitutional mandate of equal protection compels recognition of this new tort. There the court reasoned,

“This mandate requires the law to treat alike those who are similarly situated. [Citation.] We do not regard the minor children in this case as situated similarly to the spouses to whom a cause of action for consortium is accorded. As we have just indicated, we view the relationships between spouses, on the one hand, and parent and child, on the other, as being essentially different. Secondly, although by statute (Code Civ. Proc., §377) California grants a cause of action to certain beneficiaries (including minor children) of one wrongfully killed, the situation of such children differs from the position of the children before us. Those children are members of a statutory class and there is but a single recovery on behalf of all beneficiaries. Moreover, surviving children are totally deprived of parental consortium while the children before us are merely partially deprived.” (54 Cal. App. 3d 1025,1028, 127 Cal. Rptr. 164, 166.)

In Russell v. Salem Transportation Co. (1972), 61 N.J. 502, 295 A.2d 862, the court found the equal protection argument without merit for two reasons:

“First, minor children of a deceased parent do not as such constitute the category of compensated parties under the wrongful death act. Rather does that category consist of the widow and next of kin of the decedent (‘persons entitled to take any intestate personal property of the decedent’), although where some of those persons are dependent on the decedent they are the sole participating beneficiaries whether or not they or any of them are minor children of the decedent. N.J.S.A. 2A:31-4.
Second, there is no arbitrariness of treatment of the classes of children, even as hypothesized under plaintiffs’ argument. A child is totally deprived of parental benefits when the parent is killed but not, except in unusual cases, when he survives.” 61 N.J. 502, 508, 295 A.2d 862, 865.

In Illinois the amount recovered under the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 2), with certain exceptions not applicable here, “shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person * e Thus, minor children of a deceased parent do not constitute the category of beneficiaries compensated under the Wrongful Death Act. The two classifications here disputed are not composed of similarly situated individuals. Nor do we think that spouses, who may bring a cause of action for loss of consortium, may be said to be similarly situated with minor children. Hence, it cannot be said that those who are similarly situated have been treated dissimilarly under the law. Contrary to his assertion, the minor is not denied equal protection of the laws by the failure to recognize a cause of action for the loss of parental companionship and society.

Affirmed.

KASSERMAN and HARRISON, JJ., concur.