author: JUSTICE SULLIVAN

text:
      In re MARRIAGE OF DAGMAR ANN WEINBERG, Petitioner-Appellee and Cross-Appellant, and PETER E. WEINBERG, Respondent-Appellant and Cross-Appellee.
    First District (5th Division)
    No. 83—624
    Opinion filed February 24, 1984.
    Rehearing denied July 11, 1984.

      Rinella & Rinella, Ltd., of Chicago (Barry Schatz and Joel Ostrow, of counsel), for appellant.
    Beermann, Swerdlove, Woloshin, Barezky & Berkson, of Chicago (Miles N. Beermann and Howard A. London, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from an amended judgment for dissolution of marriage. Respondent contends that (1) the trial court’s valuation of certain marital property was contrary to the manifest weight of the evidence; and (2) the trial court abused its discretion in (a) unfairly apportioning the marital assets and liabilities, (b) awarding permanent maintenance to petitioner, and (c) ordering him to pay excessive attorney fees.

Judgment for dissolution was entered on April 16, 1982, and subsequently amended on February 7, 1983. No issues pertaining to the orders dissolving the marriage and awarding custody of the children to petitioner, are raised in this appeal. Testimony and evidence introduced at protracted evidentiary hearings established that the parties were married in December 1962 and adopted three children: Bruno, born in 1965; Elsa, born in 1967; and Alexander, born in 1976. During the first two years of the marriage, petitioner worked part-time as a model and receptionist while respondent completed his resident training in radiology, but throughout the remainder of the marriage petitioner was an unemployed homemaker. After serving two years in the Army, respondent worked as a radiologist, completed a fellowship in neuroradiology, and commenced working as a neuroradiologist at Northwestern Hospital in Chicago. He was employed by the Northwestern Radiology Group, S.C. (Group), a professional corporation in which he was one of 13 partners, and also had his own professional consulting firm, Peter E. Weinberg, M.D.S.C. (M.D.S.C.), of which he was the sole shareholder. In 1972, the couple purchased a cooperative apartment for $43,000, spent an additional $50,000 for its rehabilitation and redecoration, and hired household help to assist petitioner in its upkeep. For several years, the family traveled extensively, but when they lost the services of a babysitter who usually accompanied them, they rented a house in South Hampton, New York, for family vacations, and in the fall of 1978 they purchased a home there for $448,000. In November 1979 respondent moved out of the marital residence, and in February 1980 petitioner filed a petition for legal separation. Respondent thereafter counterpetitioned for dissolution, and in March 1981, petitioner filed an amended petition also seeking dissolution. The evidence presented on the issues relating to property disposition, maintenance, and child support is voluminous, and we shall set forth only those portions and the trial court’s findings thereon as are relevant to the issues as they are discussed.

In the amended judgment for dissolution of marriage, the following valuation and distribution or property was made:

Assets Petitioner Respondent

Marital resident (co-op) $390,000

Furnishings (co-op) 25,000

Art objects 25,000 $129,625

Proceeds from sale of South Hampton vacation home 885,000

Cash 13,455

M.D.S.C. stock 5,610

M.D.S.C. profit sharing plan 17,818

M.D.S.C. pension plan (value disputed) 103,828

Northwestern Radiology Group stock 6,000

Northwestern Radiology Group profit sharing plan 39,838

Northwestern Radiology Group pension plan — valued in excess of $207,613 50% of net 50% of net portion accrued portion accrued during marriage during marriage

$440,000* $1,201,174*

*Excluding value of Group pension plan

Liabilities Petitioner Respondent

Third party loans for acquisition of South Hampton property $375,000

Real estate commissions for purchase and sale of South Hampton property 52,700

Loans from retirement plans 217,46.6

Taxes due on South Hampton property 110,085

Miscellaneous loans 85,700

Income tax deficiency for disallowed deductions during 1976-1979 $200,000-

250,000*

*The precise amount of this debt was unknown at the time of judgment but was itemized by respondent in his brief as $200,000.

-0- $1,040,951

Net award......................... $440,000 $ 160,223

Opinion

Before examining the merits of this case, we considered petitioner’s motion to dismiss wherein she asserts that respondent did not comply with Supreme Court Rule 303(a) which requires that a notice of appeal be filed within 30 days after entry “of the final judgment appealed from.” (87 Ill. 2d R. 303(a).) She maintains that the amended judgment for dissolution appealed from was not a final order because it left unresolved a substantial controversy concerning the division of certain artwork.

The amended judgment, entered February 15, 1983, provided in paragraph seven an award to petitioner of all the household furnishings “except for certain personal effects of respondent and items of fine art which are to be agreed upon by the parties. If the petitioner and respondent cannot agree as to the personal effects and items of fine art, the Court shall decide which items shall be awarded to the respondent. The Court reserves jurisdiction for this purpose.” In paragraph eight, it was stated that “[t]he parties have presented to the Court a list of items of fine art having a total value of $154,625. Petitioner shall select and shall have as her sole and separate property items from this list having a value of $25,000. The Court reserves jurisdiction to determine values if the parties are unable to do so.”

On March 4, 1983, respondent filed a “Motion to Clarify and Other Relief” in which he sought the trial court’s intervention because the parties had been unable to reach agreement as to the physical division of the artwork. On March 11, 1983, he filed this appeal from the amended judgment, and on April 25, 1983, the trial court entered an order directing petitioner to select her share of the artwork within 30 days.

It is well settled that “[a] decree is final if it determines the ultimate rights of the parties with respect to distinct matters which have no bearing on other matters left for future consideration or if the matters left for future determination are merely incidental to the ultimate rights which have been adjudicated by the decree.” (Barnhart v. Barnhart (1953), 415 Ill. 303, 309, 114 N.E.2d 378, 381; People ex rel. Valle v. Valle (1983), 113 Ill. App. 3d 682, 447 N.E.2d 945.) In the instant case, the trial court placed a value on the total collection of artwork and then awarded a specific monetary portion thereof to each party, reserving jurisdiction to divide the collection if the parties were unable to do so. It appears to us that the physical division was incidental to the ultimate rights adjudicated and, being so, it had no bearing on the finality of the order appealed from. (See Intaglio Service Corp. v. J. L. Williams & Co. (1983), 112 Ill. App. 3d 824, 445 N.E.2d 1200.) Thus, the amended judgment for dissolution being a final order from which respondent filed a timely notice of appeal, we deny petitioner’s motion to dismiss.

We will first consider respondent’s contention that the trial court’s valuation of the marital residence was contrary to the manifest weight of the evidence. We have often held that conflicts in testimony concerning the valuation of assets in an action for dissolution of marriage are matters to be resolved by the trier of fact (In re Marriage of Ayers (1980), 82 Ill. App. 3d 164, 402 N.E.2d 401), and respondent concedes that so long as the valuation of the court was within the range testified to by the expert witnesses, it ordinarily will not be disturbed on appeal (In re Marriage of Evans (1980), 85 Ill. App. 3d 260, 406 N.E.2d 916, rev’d on other grounds (1981), 85 Ill. 2d 523, 426 N.E.2d 854); nevertheless, he argues that the trial court erred in accepting the “rock bottom” estimate of a witness for petitioner whose unfamiliarity with the apartment and failure to allow for market conditions beyond the day of her testimony destroyed her credibility and, hence, her valuation of the property. Specifically, he maintains that the witness, Mrs. Beliard, upon whose valuation the trial court relied, understated the size of the apartment by 100 square feet and mistakenly described the kitchen as “old” when, in fact, it had been remodeled in 1972; and that her estimate, which was based on the then-depressed housing market and which she admitted was a conservative figure, assumed an imminent sacrifice sale under the most dismal circumstances, and thus was unrealistically low.

Initially, we note that Mrs. Beliard’s evaluation of “$370,000 to $390,000” allowed a $20,000 margin of error; therefore whatever slight miscalculations she may have made in the size of the apartment or in the age of kitchen furnishings do not appear to significantly undermine the overall estimate. Moreover, on cross-examination, she stated that the square footage was not a conclusive factor in her evaluation, but only one of many which she considered. Similarly, she said that regardless of its age, the kitchen required remodeling, and this was corroborated in part by respondent’s appraiser who described the kitchen as “slightly detrimental” to the saleability of the apartment. With respect to the state of the housing market, the record reveals that the trial court noted that due to the $2,000-per-month assessments on the apartment, petitioner might be forced to sell, and therefore acceptance of the current value amount was not inappropriate. Furthermore, after hearing the testimony of both real estate experts, the trial court explained the basis for its valuation, noting Mrs. Beliard’s credentials and experience in real estate and, in particular, her “intimate knowledge” of the building in which the Weinbergs’ apartment was situated, and her firm's involvement in the recent sales of two other units in that same building which she had used as the com-parables for her evaluation. Conversely, after noting that the “comparables” used as the basis for the valuation made by respondent’s appraiser were not of units in the same building, and in fact were apartments of an “entirely different character” from that of the Weinbergs, the trial court stated, “I weighed together the testimony of the two appraisers. There was no question in my mind that Mrs. Beliard had a far more clearly-based and soundly-based opinion. *** [B]ecause of her intimate knowledge of the building and the apartment, I basically accepted her testimony and I find the value *** is $390,000.” Under these circumstances, we do not believe that finding was contrary to the manifest weight of the evidence.

Respondent also contends that the trial court’s valuation of the M.D.S.C. pension plan fund at over $103,000 was unsupported by the evidence. He maintains that the only witness who testified to the value of the plan stated that his benefits thereunder were only 60% vested and had a current value of about $12,000, but that even if respondent, as sole trustee of the plan, elected to amend the vesting schedule to cause an immediate 100% vesting, the present cash value would increase to only $20,000.

This witness, however, also testified that according to an accountant’s audit, the assets of the plan as of October 1980 totaled about $103,000, which included a $2,000 bank deposit, the cash surrender value of a life insurance policy, an $85,849 note receivable and $11,605 interest due thereon, the last two figures representing the amount respondent borrowed from the plan, which the court ordered to be repaid from the proceeds of the sale of the South Hampton property in order to restore the plan to a fully-funded status. Respondent posits that notwithstanding this repayment and his ability to become 100% vested, the plan benefits were only 60.3% accrued, entitling him to withdraw no more than $61,000, which would then be taxable at ordinary income rates, resulting in a net value of only $51,000.

Petitioner responds to this argument by directing our attention to title 29, section 1344, of the United States Code, which governs the allocation of assets upon termination of a retirement plan. That paragraph provides, in pertinent part:

“(a) *** In the case of the termination of a defined benefit plan, the plan administrator shall allocate the assets of the plan (available to provide benefits) among the participants and beneficiaries of the plan in the following order:
(1) First, to that portion of each individual’s accrued benefit which is derived from the participant’s contributions to the plan which were not mandatory contributions.
(2) Second, to that portion of each individual’s accrued benefit which is derived from the participant’s mandatory contributions.
* * *
(d) *** (1) Any residual assets of a single employer plan may be distributed to the employer if—
(A) all liabilities of the plan to participants and their beneficiaries have been satisfied ***.” (29 U.S.C. sec. 1344 (1976).)

It appears, therefore, that even upon premature termination of the plan, respondent, in his dual capacity as sole participant in the plan as well as sole shareholder in the corporation, will be entitled to receive the full amount of assets therein. Apparently cognizant of this distribution procedure, the trial court stated:

“I think you have to look reality in the face. The reality is that when the dust settles, there is going to be an excess of $100,000 in the M.D.S.C. Pension Plan. Dr. Weinberg is the sole employee of that corporation. He is the sole beneficiary of the plan. With a stroke of the pen he can go from 60 percent vested to 100 percent vested. *** [W]hen you have $100,000 in a plan and Dr. Weinberg is the sole beneficiary of [it] and has it in his power to control the benefits that are to be paid under [it], it is impossible for me to conclude that I should value the plan at $12,000 or *** $20,000. The inescapable conclusion is that the plan is worth at least $103,000 shown in the accountant’s report of October, 1980. *** So, I value the M.D.S.C. Pension Plan at $103,828.”

Our review of the record reveals that the trial court reached this conclusion only after hearing extensive testimony and arguments and after reviewing all of the relevant financial documents. The credibility of witnesses and the weight to be given their testimony is a matter for the trier of fact (Department of Revenue v. Marion Sopko, Inc. (1980), 84 Ill. App. 3d 953, 406 N.E.2d 188), and we see no reason here to disturb the trial court’s determination as to the valuation of the plan.

Similarly, with respect to the contingent tax consequences of a distribution of benefits under this plan, as well as those under the Group pension plan, the record indicates that the trial court considered the projections submitted by respondent’s counsel but rejected them as overstated and further noted that in the event the benefits were taxed, at some future date, at the highest possible rate, respondent could then request a modification of the maintenance payments on the basis of a change in his financial circumstances. Thus, we cannot say that the trial court abused its discretion in refusing to value the pension plan at less than the evidence established the assets therein were currently worth or to reduce its value by an incalculable future tax liability.

Respondent also contends that the trial court’s division of marital assets and liabilities was inequitable. The focal point of his lengthy argument on this issue is that the outright award of the cooperative apartment, the principal marital asset, to petitioner, in conjunction with the assignment of all of the marital liabilities to him, constituted an abuse of discretion by the trial court.

Section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)) requires that the trial court divide the property in “just proportions.” In so doing, the court is not bound to make an equal division (In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 401 N.E.2d 328); rather, after considering all relevant factors, it may, in its discretion, distribute the property in whatever proportions it deems equitable (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126) subject to reversal only where there was an abuse of discretion resulting in substantial injustice (In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866).

Among the relevant factors to be considered by the court in its division of the marital property are those enumerated under section 503(c), the most pertinent of which, for purposes of this case, include: the contribution or dissipation of each party in the acquisition and preservation of the marital property (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(1)); the duration of the marriage (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(3)); the relevant economic circumstances of each spouse when the property division is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods to the spouse having custody of the children (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(4)); the age, health, occupation, amounts and sources of income, skills, employability, estate, liabilities and needs of each party (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(7)); whether the apportionment is in lieu of or in addition to maintenance (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(9)); and the reasonable opportunity of each spouse for future acquisition of capital assets and income (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(10)).

In the instant case, the trial court conducted hearings preceding the entry of both the original and amended judgments wherein it summarized the voluminous evidence and delineated its findings thereon, correlating them to the factors set forth above. The court found that respondent had been “the dominant factor for acquiring the wealth,” and contrary to petitioner’s allegations, specifically noted that respondent’s financial ventures which resulted in substantial liabilities, though ill-advised, did not constitute dissipation; that this was an 18-year marriage during most of which petitioner was unemployed; that petitioner, then 41 years old and custodian of the two minor children, was in somewhat poor health and, while not unemployable, had an exceedingly limited earning capacity compared to that of respondent, a 46-year-old neuroradiologist whose gross income was about $200,000 annually. Thereafter, the court, expressing its intent to achieve an apportionment of 55% to petitioner and 45% to respondent, ordered an immediate distribution of property totaling $440,000, which included the marital residence, to petitioner and awarded to respondent assets valued at $1,201,174, out of which he was to pay $1,040,951 in marital liabilities, leaving him with a net award of $160,223 — which resulted in a 73/27% immediate division in favor of petitioner. In addition, however, the court ordered an in-kind division of that portion of the Group pension benefits accruing during the marriage, which was valued at a minimum of $207,613, and while the inclusion of these benefits does not alter the above percentages, the court’s concomitant order of future repayment therefrom by petitioner to respondent of up to 50% of the current $200,000 tax liability will eventually reduce her one-half share of whatever amount to which the current accrued benefit of $207,613 has appreciated, and will correspondingly increase respondent’s share by the same amount. To illustrate, assuming that respondent remains in the plan until age 60, petitioner’s entitlement will be no less than $168,000 (one-half of the actual distribution of $336,000 as computed by respondent’s expert witness and accepted by the court as a minimum value), out of which she will then repay her portion of the tax obligation. She will then have received a total award of about $508,000 ($440,000 + $168,000 - $100,000). Respondent will also receive at least $168,000 from the portion of the plan accrued during the marriage, but his award will be further augmented by the $100,000 payment from petitioner — resulting in a total award to him of about $428,223 ($160,223 + $168,000 + $100,000). Consequently, out of the aggregate marital estate of more than $900,000, it appears that petitioner and respondent will ultimately receive approximately 55% and 45% of the assets, respectively — the disposition envisioned by the trial court.

Of course, the actual dollar amounts herein calculated are subject to modification because of such variables as the number of years respondent remains a participant in the plan and the rate of interest paid thereon; however, since the accrued benefits were already valued in excess of $200,000 as of December 1980, the rate of interest which was applied for purposes of computation was a conservative SVz%, and because testimony established that a recent surge in interest rates had caused the entire plan to be about $1,200,000 over-funded at the time of trial, it is our view that the amounts ultimately received by the parties will be less than those estimated; indeed, we believe, as did the trial court, that the actual distribution will be greater than herein estimated. Moreover, regardless of the precise amount each party will eventually receive, the proportionate decrease in petitioner’s share and the increase in respondent’s share due to repayment of the tax debt will remain the same.

Having determined that the trial court properly considered all relevant factors before deciding on a 55/45% apportionment, and because it appears that the distribution method set forth in the judgment will ultimately accomplish its intended division, we find no abuse of discretion by the trial court in its resolution of the property distribution.

Nevertheless, we have also considered and find some merit in respondent’s argument, premised on his assertion that the marital residence was undervalued, that the outright award thereof will result in an inequitable division of property if it is sold for an amount higher than the value ascribed to it by the trial court. In the light of our findings that the equity of the judgment was based in part on the $390,000 valuation of the apartment, which we have already determined was supported by the evidence, it appears to us that in order to maintain that equity, respondent should be awarded an interest in the home which corresponds to his interest in the entire marital estate. (See In re Marriage of Cabaj (1983), 118 Ill. App. 3d 789, 455 N.E.2d 822.) Accordingly, we modify the judgment to provide that if the cooperative apartment is sold during respondent’s lifetime, he shall be allowed a lien of 45% upon the net proceeds of any amount over $390,000 that is realized from the sale. We believe that this order will best serve the interests of all concerned. Petitioner will be free to remain in the apartment for as long as she chooses, and the minor child who still lives there with her will be afforded the maximum degree of continuity in his environment as is possible under the circumstances (see In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, 419 N.E.2d 400); however, if she determines, for whatever reason, that it would be more advisable for her to sell it, she will not be at the mercy of whatever housing market conditions exist at the time (as she would be under the forced-sale order respondent urges us to issue) but would be able to assess the market conditions and hopefully make a well-reasoned decision as to the timing of the sale, which would inure to the benefit of both parties.

Respondent next contends that the trial court abused its discretion in ordering him to pay $5,000 per month permanent, unallocated maintenance and child support, arguing that the award is excessive in both amount and duration.

Section 504 of the Act provides that the trial court may issue a maintenance order only if it finds that the spouse seeking it lacks sufficient property to provide for her reasonable needs, and is either unable to support herself through appropriate employment or is otherwise without sufficient income. (Ill. Rev. Stat. 1981, ch. 40, par. 504(a).) The Act further provides that the amount and duration of an appropriate maintenance award shall be “as the court deems just” after consideration of all relevant factors including the financial resources of the party seeking maintenance and her ability to meet her needs independently (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(1)); the time necessary to acquire sufficient education or training to enable her to find suitable employment (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(2)); the standard of living established during the marriage (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(3)); the duration of the marriage (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(4)); the age, physical and emotional condition of both parties (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(5)); the ability of the spouse from whom maintenance is sought to meet his needs while yet meeting those of the recipient spouse (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(6)); and the tax consequences of the property division (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(7)). The propriety of a maintenance award, as well as the amount and duration thereof, are matters which lie within the discretion of the trial court, for whose judgment we will not substitute our own absent an abuse of that discretion which occurs “only where no reasonable man would take the view adopted by the trial court.” (In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 508, 436 N.E.2d 228, 232.) Although the trial court is not required to make express findings of fact in support of its determination that maintenance is appropriate (In re Support of McGrew (1980), 90 Ill. App. 3d 27, 412 N.E.2d 996), here, the trial court specifically found that petitioner did not possess sufficient liquid assets or marketable skills to provide for her and the childrens’ needs, the amount of which respondent did not challenge; that respondent’s earnings were adequate to meet the expenses of both parties; that petitioner’s de-. teriorating health, another matter which was unchallenged by respondent prior to this appeal, her child-rearing responsibilities, limited education, and long absence from the job market were all factors which militated against her being able to support herself, either now or in the future, at a level consistent with or even a reasonable approximation of the standard of living established during the marriage, and stated, “[T]his is clearly a case for permanent maintenance.”

Although respondent concedes that petitioner is entitled to some maintenance and that he has the ability to pay a “just amount,” he nevertheless asserts that the current award is excessive because it is based on unreasonable needs and that the trial court erroneously failed to require petitioner to “adjust her situation to make some provision for her own support at some future time.” Once again, we note that respondent made no objection to the list of expenses — totaling $4,850 per month — submitted by petitioner at trial, and in fact had suggested $4,500 per month at a hearing held a few months before entry of the amended judgment when the trial court was considering his petition to reduce maintenance from the previously awarded $7,000 per month. He explained in arguments before us that this suggestion was predicated on his expectation of a more equitable property distribution and coupled with a specific request that petitioner be required to contribute $5,000 per year toward the $15,000 annual educational expenses of the children which he had been ordered to pay; however, our review of the record reveals no such request, and in view of the fact that respondent suggested $4,500 and that the award was thereafter reduced from $7,000 to $5,000 per month, we do not believe that the trial court acted arbitrarily. Furthermore, we note that the support award is unallocated; thus, the payment of $5,000 per month is deductible from respondent’s adjusted gross income and taxable to petitioner. It is apparent, then, that while he will receive a tax benefit from the structure of this award, petitioner will experience a deficit each month (the difference between her unobjected-to expenses of $4,850 and her net after taxes on the $5,000 maintenance award).

In any event, respondent acknowledges that the principal aspects of his argument are: that the expenses attendant to petitioner’s remaining in the marital residence are unaffordable now that the parties are maintaining two households; that there is no necessity for her to remain there; that it is in the best interests of all that the sale of the apartment be ordered, if not now then no later than upon emancipation of the youngest child; and that upon such sale, the proceeds should be equitably divided, thereby balancing the overall property distribution and providing petitioner with sufficient capital with which to purchase a more affordable residence and an additional source of income from the surplus, as well as drastically reducing the monthly expenses of both parties.

Having previously outlined our views on the inadvisability of a forced sale of the apartment in our discussion and modification of the property division, we need not belabor the points made therein; however, we additionally note that although the issues of property division and maintenance are interrelated (In re Marriage of Amato (1980), 80 Ill. App. 3d 395, 399 N.E.2d 1018), and while the trial court must consider the financial resources of the spouse seeking maintenance in determining her ability to meet her needs independently (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(1)), it is well settled that she is not required to sell her assets or impair her capital in order to generate income from which she can support herself in the manner enjoyed during the marriage (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336). Furthermore, respondent’s repeated assertion that petitioner could easily find a suitable replacement residence for $100,000 is unpersuasive in that it is based on pure speculation and is unsupported by any evidence. Thus, we find no abuse of discretion in the trial court’s award of $5,000 per month permanent, unallocated maintenance and child support.

Moreover, given the generally agreed likelihood that petitioner will eventually sell the apartment, we note that there is nothing which would bar respondent from then petitioning the court for a reduction of the maintenance award based on a decrease in petitioner’s expenses, or on any other substantial change in the respective financial circumstances of the parties (Ill. Rev. Stat. 1981, ch. 40, par. 510(a); In re Marriage of Lukas (1980), 83 Ill. App. 3d 606, 404 N.E.2d 545), including the fruition of the previously discussed tax liabilities or the emancipation of the two minor children. Thus, unlike the order pertaining to the division of property, the issue of maintenance is one which may be reconsidered if and when circumstances warrant modification.

Respondent’s final contention is that the trial court abused its discretion in ordering him to pay $60,000 for petitioner’s attorney fees. He argues that the fees were excessive because they involved duplicative and unreasonable charges; that the trial court acted arbitrarily in failing to recite a basis for its award; and that the petitioner did not establish her inability to pay a portion thereof.

Under section 508 of the Act, the trial court may, after considering the financial resources of the parties “order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse ***.” (Ill. Rev. Stat. 1981, ch. 40, par. 508(a).) The propriety of an award of fees is dependent upon a showing by the party seeking them of an inability to pay and a demonstration of the ability of the other spouse to do so (In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866); however, it is not necessary for the spouse seeking the fees to divest her capital assets (In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 427 N.E.2d 1262), deplete her means of support, or undermine her economic stability (In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336) in order to pay them. Once an award of fees is deemed appropriate, the trial court must then determine what amount is reasonable by considering the skill and standing of the attorneys employed, the nature and complexity of the issues involved, the time and labor required, the usual and customary charge in the community; and the benefits of the results achieved. (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.) Furthermore, the allowance of fees and the amount thereof are matters within the discretion of the trial court, and as with any discretionary matter under the Act, its decision will not be reversed unless there is a clear abuse thereof. In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308.

First, with respect to the issue of the financial resources of the parties, we note that the trial court’s determination that petitioner was financially unable to pay her counsel and that respondent did have the ability to do so was predicated upon the same findings which served as the basis for its award of maintenance and do not bear repeating in detail here. Suffice it to say, that petitioner’s only source of income — the $5,000 per month maintenance and child-support allowance — out of which she must pay taxes as well as her undenied itemized monthly living expenses, is inadequate to also cover the costs and fees incurred during this litigation. Conversely, respondent’s gross income of about $200,000 per year, while significantly reduced by maintenance payments, other family support obligations, and contributions to his pension plan, appears to be sufficient to absorb these costs.

In regard to respondent’s assertion that because petitioner was represented by two attorneys from different law firms, it logically follows that the total award contains duplicative and thus unreasonable charges, we note that the trial court conducted a comprehensive hearing on the issue of attorney fees, wherein both of petitioner’s attorneys testified and were cross-examined as to the bases for the amounts of fees sought in their petitions — which totaled more than $95,000. After reviewing those petitions and considering the testimony, the court then discussed the factors set forth under section 508 and determined that the attorneys were both highly qualified in their field; that the issues involved in the case were fairly complex; and that their rates were not unusually high. The court acknowledged, however, that there may have been some duplication of work between petitioner’s attorneys and subsequently disallowed approximately $35,000 of the total fee requests. Absent evidence by respondent of specific instances of additional duplication or unreasonable expenditures of time by the attorneys involved, which he did not provide, or a request for a specific allocation of those fees, which he did not make, we cannot say that the trial court’s award constituted an abuse of discretion.

For the foregoing reasons, the order of the trial court is affirmed as modified.

Affirmed as modified.

MEJDA, P.J., and LORENZ, J., concur.

      Testimony established that the value of the contributions already made to the plan at the time of trial would be $336,000 when distributed. That amount was then discounted by 3'/2% a year to arrive at the $207,613 present value. Since the entire $207,613 had accrued during the marriage, the figures provided in petitioner’s brief, which are based on application of the formula to be used at the time of distribution to more precisely separate the marital benefits from those which accrued after dissolution, are incorrect.


source: Caselaw Access Project

license: Public Domain

text:
    COMET CASUALTY COMPANY, Plaintiff-Appellee, v. HENRY JACKSON, Defendant-Appellant.
    First District (5th Division)
    No. 83—1695
    Opinion filed March 9, 1984.
    Rehearing denied July 11, 1984.
    Arthur H. Levinson, of Michael D. Spinak & Associates, of Chicago, for appellant.
    Orner, Wasserman & Moore, Ltd., of Chicago (Norton Wasserman, Esther Joy Schwartz, and Loretta M. Griffin, of counsel), for appellee.
   JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant appeals from a summary judgment for plaintiff in its action seeking a declaration of the rights and liabilities of the parties under an automobile liability insurance policy issued to defendant by plaintiff. The sole issue on appeal is the propriety of the summary judgment.

It appears that defendant, while trying to prevent his automobile from being stolen, was struck by the car as the unknown thief drove it away. Defendant made a claim under the uninsured motorist provision of his policy for damages because of his injuries. Plaintiff denied coverage under that provision, and then brought this action seeking a declaratory judgment that it owed no coverage to defendant because the vehicle striking him (his own car) was not an uninsured automobile since it was covered by plaintiff’s policy issued to defendant. In his answer to plaintiff’s complaint, defendant admitted that he was the owner of the vehicle involved and that it was covered by plaintiff’s liability policy issued to him.

Plaintiff’s motion for summary judgment was granted by the trial court which found, in effect, that plaintiff was not required to pay damages under the uninsured motorist provision of its policy because the vehicle striking him was an insured automobile for which there was no coverage. This appeal followed.

Opinion

It is the position of defendant that summary judgment was improper because he, the named insured, is precluded from recovering under the liability provision of his policy and thus his otherwise-insured automobile becomes uninsured as to him for the purposes of the uninsured motorist coverage.

Initially, we note that summary judgment should be granted only when the moving party is entitled to it as a matter of law (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1005(c)), and in the instant case, we are to determine whether the trial court correctly found as a matter of law that defendant’s vehicle was an insured automobile for which there was no coverage under the uninsured motorist provision of plaintiff’s policy.

Defendant argues that while his automobile may have been insured as to all other persons, since he could not recover under the liability provision of his policy — and obviously could not recover from the unknown thief who was operating his car when he was struck by it— the policy definition of “uninsured automobile” as applied here is unduly restrictive. In support of his argument, defendant relies principally upon the reasoning in Barnes v. Powell (1971), 49 Ill. 2d 449, 275 N.E.2d 377, and the line of authority evolving therefrom. In Barnes, plaintiff was injured while riding in an automobile of which she was a co-owner and on which there was a liability insurance policy. Due to a policy exclusion, she was precluded from recovering under the liability provision, and the uninsured motorist provision specifically prescribed that “uninsured automobile” shall not include “an insured automobile.” The trial court held that there was no coverage for plaintiff under the uninsured motorist provision, and this court affirmed. The supreme court, in reversing, first examined section 143(a) of the Illinois Insurance Code (the Code) (Ill. Rev. Stat. 1981, ch. 73, par. 755a), which requires insurers to include uninsured motorist coverage in all motor vehicle liability policies issued in Illinois, and, citing previous decisions in which that section was interpreted, the court stated:

“[T]he intent of the legislature was that the uninsured motorist coverage would protect an insured generally against injuries caused by motorists who are uninsured.” (Barnes v. Powell (1971), 49 Ill. 2d 449, 454, 275 N.E.2d 377, 379.)

The court then went on to find that notwithstanding the fact that plaintiff’s vehicle may have been insured as to all others, it was not insured as to her, since she was not afforded coverage under the liability provisions of her policy, and thus “her uninsured motorist coverage necessarily became effective in light of the legislative mandate.” A virtually identical factual situation and issue was presented in Madison County Automobile Insurance Co. v. Goodpasture (1971), 49 Ill. 2d 555, 276 N.E.2d 289, which followed the holding in Barnes.

Similarly, in Samack v. Travelers Insurance Co. (1982), 111 Ill. App. 3d 61, 443 N.E.2d 765, plaintiff, an Illinois resident, was barred from recovering from the driver of the car with which she collided in a two-car accident in Florida because of that State’s no-fault insurance statute. In an action for damages under the uninsured motorist provision of her own policy, we held that although the vehicle that struck her was insured for certain purposes, as to plaintiff it was uninsured, thereby entitling her to pursue her claim under the uninsured motorist coverage of her own policy.

Kerouac v. Kerouac (1981), 99 Ill. App. 3d 254, 425 N.E.2d 543, appeal denied (1981), 85 Ill. 2d 577, involved an appeal from a finding that there was no coverage under the uninsured motorist provision of a family auto liability policy issued to the father of the minor plaintiff who was injured while riding in the family car driven by his brother. Family members were precluded from recovering under the liability provision of the policy. Applying the reasoning in Barnes, the court concluded (a) that since liability coverage was unavailable to the plaintiff, the vehicle was uninsured as to him, and (b) he was entitled to coverage under the uninsured motorist provision.

Although plaintiff cites no contrasting legal authority on this issue, it argues that Barnes and the other cited cases are factually distinguishable from the case at bar. Specifically, plaintiff argues that, unlike the policies at issue in those cases, its policy does not expressly exclude the named insured from recovering under the liability provision, and it points out that defendant had not been denied coverage thereunder. We note, however, that the liability clause in plaintiff’s policy states that it will “pay on behalf of the insured all sums which he shall become legally obligated to pay,” and it includes as persons insured:

“(1) the named insured and ***
(2) any other person using the automobile to whom the named insured has given permission ***.” (Emphasis added.)

Thus, while it is true that there is no express exclusion of recovery to defendant under the liability provision of plaintiff’s policy and that plaintiff has not as yet denied coverage under that provision, defendant’s inability to recover thereunder is clear because the thief-driver, not having permission to use the automobile, would not be included as an insured. Moreover, considering the comprehensive discussion and expansive interpretation of section 143a in Barnes, we do not believe its holding turned the narrow question as to whether the claimant was expressly or, as here, implicitly denied liability coverage. Rather, it is our view that the decision was intended to be an expression of the legislative objective to provide extensive uninsured motorist coverage for those insured under a valid automobile liability policy. Thus, in accordance with the foregoing authorities and under the facts presented here, we find that defendant’s automobile was uninsured as to him for purposes of pursuing a claim under the uninsured motorist coverage.

For the reasons stated, the order of the trial court granting summary judgment to plaintiff is reversed, and the cause is remanded for further proceedings consistent with the view expressed herein.

Reversed and remanded for further proceedings.

LORENZ and WILSON, JJ., concur.


author: PRESIDING JUSTICE MEJDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CEDRIC WEBB, a/k/a Little Gage, Defendant-Appellant.
    First District (5th Division)
    No. 83—0067
    Opinion filed March 30, 1984.
    Rehearing denied May 29, 1984.

      Howard T. Savage, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Thomas Gearen, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MEJDA

delivered the opinion of the court:

A jury found defendant, Cedric Webb, guilty of the offense of murder. The trial court entered judgment on the verdict, denied defendant’s post-trial motion, and sentenced defendant to a term of 50 years in the custody of the Department of Corrections. Defendant appeals, raising four issues for review. First, defendant asserts that the trial court erred in admitting certain statements of the murder victim, John Griffis, concerning the identity of his assailant. Second, defendant contends that he was denied his constitutionally protected rights to due process of law and to confront the witnesses against him. Third, defendant argues that he was not proved guilty of murder beyond a reasonable doubt. Fourth, defendant raises another due process argument. For the reasons which follow, we affirm the judgment of the circuit court.

The nature of the defendant’s contentions requires a rather extensive factual recitation. Before trial defendant made a motion in limine seeking to preclude the prosecution from introducing extrajudicial statements made by the victim. A hearing on the motion was conducted over several days and various witnesses testified. The testimony pertinent to our decision is recounted here.

Michael Magliano, a Chicago police officer, testified that he talked with Griffis several times in the emergency room of the hospital where Griffis had been taken after he was discovered in an alley with numerous bullet wounds. Magliano testified that he spoke with Dr. Parsis, who told him that “it didn’t look good for John” and that he was being prepared for surgery. Magliano told Griffis that it didn’t look good for him and that he had about a “50-50” chance of survival. Magliano stated that although Griffis did not know his assailant’s real name, he did identify him as “Little Gage.” At Griffis’ instance, the police brought a friend of Griffis’ to the hospital. Griffis, according to Magliano, told that person, “Chris, man, help them. Little Gage did me [sic] in.”

Dolores Griffis testified that she is the victim’s sister. She visited him at the hospital on May 21, 1982, which was two days after the shooting. Griffis could not talk at that time but could communicate by hand signals and nods. About 11 a.m. the witness and Griffis’ estranged wife were trying to talk with him when he began to gesture with his hands. The witness stated that he looked as though he were pulling the trigger of a gun, inasmuch as his index finger was straight out and his thumb was up. The trial court struck the witness’ interpretation of the gestures but allowed the description to stand. The witness indicated that Griffis gestured three times, each time turning his head on the pillow and closing his eyes. His wife asked him whether he felt he was going to die, and Griffis nodded his head affirmatively and began to cry.

Daniel Swick testified that he is a detective with the Chicago police department. He visited Griffis about 5 p.m. at the hospital on May 21, 1982. The witness asked Griffis whether the latter was able to talk and Griffis replied with a negative shake of the head. Swick asked whether Griffis could answer “yes” or “no” and Griffis nodded affirmatively. Swick had five photographs with him and showed three of them to Griffis.

John Ryan, a detective with the Chicago police department, testified that he was with Swick at the hospital and that Griffis nodded his head up and down when he was shown the third photograph. Ryan asked whether he was positive that it was the man who shot him and Griffis nodded his head up and down.

The trial court allowed the defendant’s motion in limine with respect to one specified statement and denied the motion otherwise.

The evidence at trial established that on May 19, 1982, at about 11:15 p.m. John Griffis was shot six times in the back and side in an alley behind 132 West 103rd Place in the city of Chicago. Ronald Redmond testified that he was on a nearby sidewalk at the time and heard five or six gunshots in rapid succession. He observed the defendant, whom he knew only as “Gage,” walk out of the alley, where he was met by a grey and black automobile driven by another man whom the witness knew only as “Jungle Bunny.” Upon entering the vehicle, the defendant bent down so that he could no longer be seen. The vehicle then drove away. On cross-examination Redmond testified that the area was well illuminated by street lights. He admitted that he did not report any of his observations to the police until the next night, when the police came to question him about the shooting. On redirect examination Redmond stated that he was appearing pursuant to a subpoena and in exchange for an airplane ticket to Los Angeles.

Stan Salabura testified that he is a patrolman with the Chicago police department and was on duty at 11:15 p.m. on May 19, 1982. He indicated that along with Officers Magliano and Van Dixon, he responded to a call concerning the shooting. When Salabura arrived at the scene, an elderly man motioned to him to show where the injured man could be found. Salabura discovered Griffis in the alley. He was bleeding and moaning and calling for help. In answer to the officer’s inquiry, the victim stated that his name was John. The policeman asked him “John, do you know who shot you?” Salabura testified that the man responded, “Little Gage.” After an ambulance arrived, Sala-bura once again asked who had shot him and again received the reply, “Little Gage.” In an unsuccessful search for the murder weapon, Sa-labura discovered seven spent .380 shells and one spent bullet.

Officer Michael Magliano testified that he went to the alley and observed two blood stains on the pavement and several expended .380 casings. He and Officer Salabura went to the Roseland Community Hospital emergency room and spoke to Griffis. He was conscious at the time but was bandaged and attached to IV’s. Salabura was not present for the entire conversation "with Griffis but did ask Griffis who had shot him and was told “Little Gage.” He asked Griffis why he had been shot and Griffis replied that Little Gage had tricked him in the alley and that it had something to do with Griffis’ girlfriend. Magliano asked whether there was anyone who could help the police to find Little Gage and Griffis referred them to Chris Taylor. Mag-liano found Taylor and brought him to the emergency room. There Magliano talked with a doctor and informed Griffis that he had about a “50-50” chance of survival and that “[it] doesn’t look good for you.” At this point, Magliano testified, Griffis raised himself up on the gurney and said to Taylor, “Chris, Little Gage did me, man, help him out. Help me get him.” Taylor took two officers to Cedric Webb’s house, but Webb was not there. Magliano testified that he arrested Webb at the courtroom located in the police headquarters building the following day and identified defendant in the instant trial as the man he arrested.

On cross-examination defense counsel asked Magliano whether he thought that it was odd that a person who shot someone not 12 hours previously would appear at a police headquarters. Magliano indicated that he did not. On redirect examination, Magliano stated that the reason that defendant was arrested at the courtroom at police headquarters was that defendant had accompanied “Jungle Bunny” to his court date. Magliano identified “Jungle Bunny” as James Jenkins.

John Burt testified that he lives in the same neighborhood as Grif-fis and defendant and that he knew defendant as “Little Gage” and did not know his real name. On cross-examination, he stated that he knows some people by their real names, some people by nicknames, and some by both.

Dr. Tae An testified that he is a pathologist and the parties stipulated that he is an expert in that field. He testified that on May 28, 1982, he performed an autopsy on John Griffis and determined that death was caused by various bullet wounds to the chest and abdomen, lacerating vital organs.

Dolores Griffis testified that John Griffis was her younger brother. She and Griffis’ estranged wife LaVerne visited him in intensive care at the hospital on May 21, 1982, at about 11 a.m. Griffis was in bed and various machines, IV’s and tubes were connected to his body. He was conscious and his eyes were open. LaVerne asked him who had shot him but he was unable to speak or write an answer. He did make a sign with one hand, indicating a gun, with his thumb up and his index finger out. LaVerne asked whether he thought that he was going to die and Griffis nodded his head to indicate “yes,” and then began to cry. On cross-examination, she stated that Griffis had not been administered any sedatives.

Charlene Hines testified that she was Griffis’ girlfriend and lives just off of the alley where Griffis was found. Her bedroom and living room overlook the alley. On May 19, 1982, she heard several sounds like gunshots coming from the alley. She waited a few seconds and then called the police. She testified that she recognized Griffis’ voice, hollering that he had been shot. A “little bit” later the police arrived. She thereafter exited her home and observed two milk crates stacked under her bedroom window.

Daniel Swick testified that he is a detective with the Chicago police department. On May 21, 1982, he and Detective John Ryan took five photographs, including that of defendant, to Roseland Hospital to show to Griffis. Swick testified that he informed Griffis that he was a police officer and asked Whether Griffis could talk. Griffis shook his head to indicate that he could not. Swick testified that he showed Griffis'the photographs and asked whether Griffis could identify the man who had shot him. Griffis nodded “no” to the first two photographs but nodded “yes” to the third. Swick stated that defendant is the same man as depicted in the photograph which Griffis picked out. On cross-examination Swick denied telling Griffis that the picture was supposed to, be “Little Gage” and stated that he had never heard that nickname in his conversations with other police officers.

Michael Bosco testified that he is a Chicago police department detective. On May 22, 1982, at 11 a.m., he and his partner, Detective Huffman, were at the Area 2 police offices. Bosco stated that he advised defendant of his Miranda rights and that defendant indicated that he understood them and agreed to answer questions. Bosco testified that defendant asked the detectives whether they had gone to the crime scene and whether they had seen the milk crates. Bosco stated that defendant indicated on a diagram where the milk crates were located and that this corresponded to the location where Griffis was found. Defendant’s only explanation for this knowledge was, according to Bosco’s testimony, that “I just know.” Defendant’s explanation for Griffis’ accusation of defendant was that Griffis was supposedly involved in the homicide of Reginald McGee, a close friend of defendant. Defendant stated that “everyone knew” that when defendant returned to the neighborhood he would avenge the death of his friend. Bosco stated that he had investigated the relevant police reports and that they supported defendant’s assertion that a Reginald McGee had been a homicide victim. Bosco was later recalled for further direct testimony and stated that Reginald McGee is actually alive, and though he had been shot in the head he recovered from his wounds.

The prosecution then rested its case. After the trial court denied defendant’s motion for a directed verdict of acquittal, the defense presented its testimony.

Margaret Webb testified that she is defendant’s mother. On May 19, 1982, she was home with five of her six children. Defendant left the home about 8 p.m. and returned close to 10 p.m. and then left again. He called about 1 a.m. and said that he would be out late. The police arrived about 15 minutes later and asked about someone named “Gage.” The witness testified that she does not know anyone with that name and that the only nickname for defendant of which she is aware is “Renegade.” On cross-examination, Mrs. Webb stated that defendant knows James Jenkins.

Yvette Martin was an alibi witness for defendant. She stated that on May 19, 1982, defendant spent the evening with her on her front porch. He was there from 10 p.m. until about 21k hours later and did not leave at any time. She did not see him with any kind of weapon. On cross-examination, she admitted that she did not tell anyone except defendant’s mother that he was with her at the time of the murder after she learned that he had been arrested. On redirect examination, she stated that defendant’s attorney had advised her not to talk with anyone about the case.

James Jenkins testified that he has known defendant for 10 to 12 years. Jenkins stated that he himself has been known by the nickname of “Jungle Bunny” but has not been called that for at least 12 years. On May 20, 1982, Jenkins had to appear in a courtroom at police headquarters. He was accompanied by defendant because Jenkins wanted someone to take his car if he, Jenkins, was incarcerated. Defendant was arrested as he left the court. On cross-examination, Jenkins identified defendant in the photograph which Griffis had designated as that of his attacker. He also admitted that he drives a grey and black Mercury.

Detective Bosco was called to testify and stated that on May 20 and 21, 1982, he was told that Griffis was sedated and was lapsing in and out of consciousness. On rebuttal for the prosecution Bosco testified that defendant gave the police the following account of his whereabouts on May 19, 1982: he spent most of the day with Jenkins, then went home around 5 p.m. He was in and out of the house the rest of the evening and came home about 11 p.m. and stayed for about 20 minutes before going to Alonso Bennett’s house. Jenkins picked him up there and he spent the night in a high rise building near 52d and State streets.

After being instructed by the court, the jury returned a verdict finding defendant guilty of murder. The defendant’s post-trial motion was denied on December 11, 1982, and defendant was sentenced to 50 years’ imprisonment. This appeal followed.

Opinion

Defendant first asserts that the trial court erred in admitting into evidence certain hearsay statements made by John Griffis to the police and to other people. The first of these statements occurred in the alley about 11:15 p.m. just after Griffis had been shot. A police officer asked Griffis, “John, do you know who shot you?” and Griffis replied “Little Gage.” “ ‘Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ ” (People v. Carpenter (1963), 28 Ill. 2d 116, 121, 190 N.E.2d 738, quoting McCormick, Evidence sec. 225, at 460.) Griffis’ statement is hearsay under this definition as it was offered to prove that which was asserted, i.e., that “Little Gage” had shot him. The statement therefore is not admissible unless it meets one of the myriad exceptions to the hearsay rule.

The State asserts that the statement is admissible under the “spontaneous declaration” or “excited utterance” exception to the hearsay rule.

“ ‘When a declaration is made under the immediate influence of the occurrence to which it relates and so near in time as to negative any probability of fabrication, said declaration is admissible.’ [Citation.]
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, 174 N.E.2d 804.

The supreme court has held that there must be “some evidence of the existence of an occurrence sufficiently startling to produce a spontaneous and unreflecting statement ***.” (People v. Leonard (1980), 83 Ill. 2d 411, 418, 415 N.E.2d 358.) This requirement is satisfied by the testimony from Officer Salabura concerning Griffis’ condition when discovered in the alley. Further, it has been held that a gunshot wound is sufficiently startling to produce an unreflective response. (People v. Kelley (1963), 29 Ill. 2d 53, 60, 193 N.E.2d 21.) The police officer’s question, “John, do you know who shot you?” does not destroy the spontaneity of Griffis’ statement. (People v. Damen (1963), 28 Ill. 2d 464, 472, 193 N.E.2d 25; People v. Sanchez (1982), 105 Ill. App. 3d 488, 491, 434 N.E.2d 395; compare People v. Taylor (1971), 48 Ill. 2d 91, 96-97, 268 N.E.2d 865 (persistent questioning by fireman held sufficient to destroy spontaneity).) The second element, absence of time to fabricate, is satisfied by our review of the evidence, which indicates that Officer Salabura arrived on the scene within a few minutes of the shooting. In light of Griffis’ being shot six times, a few minutes seems to us insufficient to allow an opportunity for reflection and invention. (See People v. Robinson (1978), 73 Ill. 2d 192, 199, 383 N.E.2d 164.) Finally, the statement clearly relates to the circumstances of the startling occurrence. Whether a statement is sufficiently spontaneous to qualify for admission into evidence under this exception to the hearsay rule is a preliminary question for the trial court (People v. Grover (1983), 116 Ill. App. 3d 116, 120, 451 N.E.2d 587), and in light of the foregoing circumstances we cannot say that its determination was error.

Whether Griffis’ statements identifying “Little Gage” as his assailant made after the ambulance arrived in the alley and those made in the hospital emergency room qualify as “excited utterances” independently need not be determined, as these were merely cumulative of the statement already admitted, and we find them harmless beyond a reasonable doubt. (People v. Sanchez (1982), 105 Ill. App. 3d 488, 492, 434 N.E.2d 395; People v. Vinson (1977), 49 Ill. App. 3d 602, 607, 364 N.E.2d 364.) However, the photographic identification presents a different problem because the admission of Griffis’ identification of defendant’s photograph cannot be said to be merely cumulative of admissible evidence. The State argues that this identification is admissible under the “dying declaration” exception to the hearsay rule.

As stated in People v. Tilley (1950), 406 Ill. 398, 403-04, 94 N.E.2d 328:

“The law with respect to dying declarations has been firmly established in this State. They are defined as statements of fact by the victim, concerning the cause and circumstances of a homicide ***. To make them admissible into evidence as dying declarations, and as an exception to the rule against hearsay evidence, it must appear that they are made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance, when he has despaired of life and looks to death as inevitable and at hand. [Citations.] In People v. Corder, 306 Ill. 264, the fact that the declarant did not die until four days after making the statement, was held not to change the rule. It is the state of mind of the deceased and not that of any other person, which determines admissibility. [Citations.] The declarant must be in possession of his mental faculties sufficiently to understand what he is doing and to be able to give a true and correct account of the facts to which the statement relates. [Citation.] *** Courts will look to all the facts existing and surrounding the party giving the dying declaration at the time, before and after the declarations are made forming the res gestae and tending to show his true state of mind. [Citation.] Finally, the court, upon a preliminary hearing outside the presence of the jury, must first be convinced beyond all reasonable doubt that all the elements of a true dying declaration are present, before such statements may be heard and considered by the jury.”

The trial court’s determination of whether a particular statement constitutes a dying declaration will not be reversed on appeal unless its findings are palpably contrary to the manifest weight of the evidence. (People v. Rhoads (1982), 110 Ill. App. 3d 1107, 1120, 443 N.E.2d 673.) The People argue that the evidence was sufficient to allow the trial court to conclude that John Griffis was under the fixed belief and moral conviction that death was impending and inevitable.

As Tilley indicates, a court will look to all the facts and circumstances surrounding the supposed dying declaration, including those at the time of its making as well as before and after. In People v. Broughton (1976), 35 Ill. App. 3d 619, 624-25, 342 N.E.2d 100, the victim’s statement that “I am in pain, I am in pain, I am dying,” which was made at her home, was held sufficient foundation for the introduction" of a statement implicating the defendant which was made later at the hospital. In the instant case, Dolores Griffis’ testified that at 11 a.m. on May 21, 1982, John Griffis indicated his belief that he was going to die. Between 5 p.m. and 6 p.m. Griffis picked defendant’s photograph out of a photographic array. Defendant contends first that Griffis’ nod is an insufficient basis for the court to have concluded that he was aware of his eminent demise, citing People v. Odum (1963), 27 Ill. 2d 237, 188 N.E.2d 720. As the court noted in that case, however, the wounded man never gave any positive indication that he was aware of the seriousness of his condition. In the instant case, the defendant indicated positively that he believed that he was dying. “ ‘Any adequate method of communication, whether by words or by signs or otherwise, will suffice, provided the indication is positive and definite, and seems to proceed from an intelligence of its meaning ***.’” (People v. Scott (1972), 52 Ill. 2d 432, 438, 288 N.E.2d 478, cert, denied (1973), 410 U.S. 941, 35 L. Ed. 2d 607, 93 S. Ct. 1406, quoting 5 Wigmore on Evidence sec. 1445, at 245 (3d ed. 1940).) That Griffis’ gestures were calculated communication was established by the context in which they were made: his wife inquired whether he thought that he would die and he nodded his head affirmatively and began to cry. Thus, the trial court could properly have concluded that Griffis positively manifested his state of mind and that Griffis was aware of the content of his communication. But this was not the only circumstance which could justify the trial court’s ruling. In looking at all of the facts and circumstances, it has been held proper to consider the grievous nature of the declarant’s wounds as justifying the conclusion that he must have known of the seriousness of his condition. (People v. Selknes (1923), 309 Ill. 113, 119, 140 N.E. 852; People v. Barnes (1983), 117 Ill. App. 3d 965, 970, 453 N.E.2d 1371 (declarant shot at close range with a shotgun); People v. Rhoads (1982), 110 Ill. App. 3d 1107, 1119, 443 N.E .2d 673 (declarant doused with gasoline and set afire).) In People v. Thomas (1977), 49 Ill. App. 3d 961, 971, 364 N.E.2d 641, the court apparently recognized this rule but nonetheless held that the absence of some direct evidence that the declarant considered himself to be in extremis precluded the court from concluding that he was aware of his condition. In the instant case, there was direct evidence of declarant’s state of mind, which was that he indicated that he thought that he was going to die. Thus, the trial court could properly have considered Griffis’ six gunshot wounds in determining whether Griffis was aware of his impending death. Further, we believe that in light of all of these circumstances the trial court was justified in concluding that Griffis was aware of his impending death at 11 a.m. on May 21, 1982. Contrast the instant case with Westbrook v. People (1888), 126 Ill. 81, 90-91, 18 N.E. 304, where all of the circumstances did not necessarily mandate the conclusion that the declarant must have been aware of his impending demise: the wound was not necessarily fatal, declarant did not avail himself of the opportunity to take care of business affairs, and his condition was relatively stable at the time of making his statement.

Defendant asserts that while Griffis may have been aware at 11 a.m. on May 21, 1982, that he was on the brink of death, there is no indication that this state of mind persisted until 6 p.m. when he picked defendant’s photograph out of the array. Whether a declarant’s expression of resignation to his fate must coincide with the declaration in question has not been directly addressed, so far as we have been able to determine, by the courts of this State; however, it is well established that declarant must possess the requisite state of mind simultaneously with his statement. (People v. Selknes (1923), 309 Ill. 113, 119, 140 N.E. 852.) The rule among the several States is not uniform. (See Annot., 53 A.L.R.3d 785, 819-20 (1973).) Illustrative of one line of authority is State v. Sadler (1899), 51 La. Ann. 1397, 1426, 26 So. 390, 401, in which a dying declaration made 24 hours previously was held to be an insufficient foundation for establishing the declarant’s belief of his imminent death so as to qualify an identification of the defendant as a dying declaration. This line of authority has been criticized by an eminent authority as “narrow and over-cautious.” (5 Wigmore on Evidence sec. 1442, at 298-300 (Chadbourne rev. 1974).) Another approach was taken in Mathews v. State (1924), 111 Neb. 593, 197 N.W. 602, where an oral statement implicating the defendant but failing to indicate knowledge of impending death was made three days after a valid written declaration. The court held the subsequent statement to be admissible as made with the requisite awareness of impending death because it was “so closely connected with the dying declaration, in point of time and substance, that it may properly be said to be a continuance thereof.” (Ill Neb. 593, 603, 197 N.W. 602, 606.) This view proves unsatisfactory as well, however, since it provides no meaningful analytical framework with which to determine the declarant’s state of mind at the time of the statement. In our view, no special rule need be formulated for cases such as this where the identification of defendant is not made contemporaneously with the declarant’s expression of his state of mind. Instead, this fact is merely one circumstance for the trial court to consider in its determination that such a state of mind did in fact exist at the time the statement was rendered. (See People v. Broughton (1976), 35 Ill. App. 3d 619, 624-25, 342 N.E.2d 100.) In the instant case, these circumstances include the grievous nature of declarant’s wounds (see, e.g., People v. Barnes (1983), 117 Ill. App. 3d 965, 970, 453 N.E.2d 1371), the lack of any evidence that his condition had improved in the interim (see People v. Selknes (1923), 309 Ill. 113, 119, 140 N.E. 852; compare Westbrook v. People (1888), 126 Ill. 81, 90-91, 18 N.E. 304; Batten v. Commonwealth (1949), 190 Va. 235, 56 S.E.2d 231), and the short period which elapsed between the expression of his belief in his imminent death and the subsequent photographic identification. We conclude that these circumstances are sufficient for the trial court to have concluded that declarant was in fact aware of his impending demise at the time that he identified defendant’s photograph as that of his attacker.

The next requirement is that declarant be in possession of his mental faculties sufficiently to understand what he is doing and to be able to give a true account of the facts. (People v. Tilley (1950), 406 Ill. 398, 403, 94 N.E.2d 328.) The evidence at trial indicated that declarant understood the questions of the detective and that he was able to communicate intelligible answers. Additionally, the trial court could well have concluded that declarant was not under the influence of drugs, although the evidence was in conflict on this point, and that he was sufficiently in possession of his faculties to attempt to pantomime shooting a gun and dying. These facts provide an ample basis for the trial court’s implicit finding that declarant was able to understand what he was doing and to render an accurate account. We conclude that the trial court, which was in a better position to determine this question than is a court of review, properly admitted declarant’s identification of defendant’s photograph as a dying declaration.

Defendant next contends that he was not proven guilty beyond a reasonable doubt. This contention is without merit. In addition to the dying declarations of the victim, which, with the testimony establishing “Little Gage” as defendant’s nickname, implicated defendant as the murderer, circumstantial evidence also points unswervingly to the defendant. Ronald Redmond testified that he heard several shots, saw defendant walk out of the alley and get into a grey and black vehicle driven by the man later identified as James Jenkins. Jenkins testified that he drives a grey and black automobile and that he and defendant are friends. Detective Bosco’s testimony, if believed, would seriously have undermined the alibi defense. On appeal, a court of review will consider the evidence in its aspect most favorable to the party prevailing below and will not reverse a conviction in a criminal case unless the evidence is so improbable as to justify a reasonable doubt of the accused’s guilt. (People v. Waters (1976), 47 Ill. App. 3d 948, 953, 362 N.E.2d 1157.) The State’s evidence was not inherently improbable, and we believe from our review of all of the evidence adduced at trial that defendant was proved guilty beyond a reasonable doubt.

Defendant’s constitutional arguments are similarly without merit. He contends that his conviction, procured by the evidence admitted pursuant to the dying declaration rule, violates his sixth amendment right to confront the witnesses against him. This question has been settled to the contrary. See Pointer v. Texas (1965), 380 U.S. 400, 406-07, 13 L. Ed. 2d 923, 928, 85 S. Ct. 1065, 1069.

Defendant’s final due process argument is likewise based on his assertion that the admission of Griffis’ dying declarations violates his right to confront the witnesses against him. As indicated already, defendant’s confrontation rights have not been violated.

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

Affirmed.

LORENZ and SULLIVAN, JJ., concur.