author: JUSTICE McGLOON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELIJAH FRAZIER, Defendant-Appellant.
    First District (1st Division)
    No. 81-426
    Opinion filed July 12, 1982.

      Edward M. Genson and Marvin Bloom, both of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat and Paula Cartensen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McGLOON

delivered the opinion of the court:

A jury found Elijah Frazier (defendant) guilty of rape. The trial court sentenced him to six years in prison. Defendant appeals his conviction.

On appeal, defendant argues that (1) he was denied a fair trial by a prosecutor’s inquiry into an argument relating to defendant’s failure to inform police officers in his post-arrest statements that complainant had asked for money during the sex act; (2) he was unduly prejudiced by the State’s introduction of evidence regarding defendant’s alleged offer of $1,000 to complainant to drop charges against him; (3) defendant was denied a fair trial due to ineffective assistance of counsel; and (4) the State’s closing argument was so highly prejudicial that defendant was denied his right to a fair and impartial trial.

We reverse and remand.

On the evening of October 7, 1979, complainant attended a party in her building at the apartment of her friend Sam Johnson. Johnson called his friend Elijah Frazier (defendant) to invite him to the party. While the two were conversing, complainant picked up the telephone and invited defendant to come over and join the party. Defendant accepted the invitation.

Johnson corroborated defendant’s testimony that he (defendant) and complainant spent several hours that evening talking, dancing, kissing and fondling. Complainant claimed that she danced with defendant only once and that when defendant kissed her, she did not kiss him back.

Complainant left the party at 9 p.m. and returned a short while later. In the course of the next several hours, the others in attendance at the party gradually began to leave. Johnson and his girl friend Mary Kirk left to go to Kirk’s apartment, leaving defendant and complainant alone in Johnson’s apartment. Complainant testified that when she began to leave, defendant grabbed her and said “I want you, I got to have you.” She claimed that a struggle ensued and defendant forced her to engage in intercourse. Defendant testified that after Johnson left the apartment, he and complainant exchanged passionate words, disrobed and engaged in consensual intercourse.

Complainant testified that after the rape, while defendant was straightening up the apartment and pulling out the bed, she ran from the apartment to Mary Kirk’s apartment. The time was approximately 3:30 a.m. and complainant was clad in a long blouse and bra. Complainant told Kirk she had been raped. She called the police and was taken to the hospital. Hospital reports showed that complainant had sustained bruises on her hand and elbows and a scratch across her collar bone.

Defendant was apprehended early the following morning and taken to police headquarters. Officer David Dioguardi testified that he saw defendant at police headquarters and noticed a red mark on defendant’s left hand which showed the indentation of teethmarks. Defendant explained that complainant had become extremely upset for no apparent reason after they had had intercourse and had bitten him on the hand. Defendant testified at trial that after he and complainant had engaged in intercourse, complainant asked him for some money and that when he refused to pay, she left the apartment wearing only a blouse.

Two weeks after the alleged rape, Johnson came to complainant’s apartment and asked her to go with him and defendant to a currency exchange. Complainant agreed. She testified that defendant requested that she sign an agreement to drop charges against him in exchange for $1,000. After they arrived at the currency exchange, defendant attempted but was unable to get the $1,000. Complainant telephoned her father from the currency exchange. Her father told her that if defendant “didn’t have the grand then we press charges.” Complainant stated that she did not sign the papers or accept any money. She also testified that she would have dropped the charges if defendant had come up with the money. Complainant pressed charges. After a jury trial, defendant was found guilty of rape. He now appeals.

First, defendant argues that he was denied a fair trial by the State’s inquiry into an argument relating to defendant’s failure to inform police officers in his post-arrest statements that complainant had asked him for money during the sex act. After his arrest, defendant told the police that complainant had consented to sexual intercourse. He also told police that she had become upset after having sex and claimed that he did not know what had caused her to become upset. At trial, defendant testified that complainant had asked for money in exchange for sex and had become angry when he refused to pay. The State maintains that it was proper for the prosecutor to cross-examine defendant in regard to the inconsistencies between his post-arrest statement to the police and his trial testimony and that it was proper to point out the inconsistencies during closing argument.

In Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, the United States Supreme Court established a constitutional bar to the use of a defendant’s post-arrest silence for purposes of impeachment. Such impeachment is fundamentally unfair because Miranda warnings inform a defendant that his silence will not be used against him. (426 U.S. 610, 618, 49 L. Ed. 2d 91, 422, 96 S. Ct. 2240, 2245.) Doyle involved two defendants who made no post-arrest statements about their involvement in the crime. The Doyle rule does not apply to cross-examination that inquires into prior inconsistent statements. Anderson v. Charles (1980), 447 U.S. 404, 408, 65 L. Ed. 2d 222, 226, 100 S. Ct. 2180, 2182.

In the present case, defendant voluntarily made a statement after receiving Miranda warnings. He stated that he did not know what had caused complainant to become upset. His testimony at trial that complainant had become upset because he refused to give her money was inconsistent with his post-arrest statement. It was proper, therefore, for the prosecutor to question defendant concerning the prior inconsistent statement and to remark on the inconsistency during closing argument. In so doing, the State did not violate defendant’s due process rights.

Second, defendant argues that he was unduly prejudiced by the State’s introduction of evidence regarding defendant’s offer of $1,000 to complainant to drop charges against him. The State maintains that such evidence was relevant to defendant’s consciousness of guilt and therefore admissible. The trial testimony given by complainant, defendant, and Sam Johnson provides us with only a skeletal outline of the facts relating to this issue. They are as follows.

Approximately two weeks after the .alleged rape, Johnson and defendant went over to complainant’s apartment at 1 a.m. Defendant waited in the lobby of the apartment building while Johnson went to speak with complainant in her apartment. Complainant dressed and went with the two to a currency exchange. Defendant had had some papers prepared by an attorney. An agreement was reached whereunder complainant would drop charges against defendant in exchange for $1,000. Defendant was unable to come up with the $1,000 at the currency exchange. Complainant telephoned her father from the exchange. Her father said “If [defendant doesn’t] have the money then we press charges.” Complainant neither signed the papers nor accepted any money.

Neither defendant nor the State has mentioned a fact which we consider crucial to the disposition of this issue. While defendant was being cross-examined, he testified that it was complainant who suggested the payment of $1,000. Although complainant testified that “he was going to give me his bond money,” she did not contradict defendant’s testimony that she contrived the scheme. In fact, at one point, she stated that the idea was her father’s.

The State correctly states the rule applicable to the admissibility of evidence of attempts to intimidate witnesses. Evidence of any attempt to intimidate a witness in a criminal case is properly attributable to a consciousness of guilt and therefore relevant. (See People v. Gambony (1948), 402 Ill. 74, 83 N.E.2d 321; People v. Jones (1980), 82 Ill. App. 3d 386, 402 N.E.2d 746.) Here, there is no evidence that defendant attempted to bribe complainant to drop charges or that he intimidated her in any way. Rather, the evidence shows an attempted “shake down” of defendant by complainant and/or her father. Defendant’s actions do not tend to show a “consciousness of guilt” and the evidence, therefore, was not admissible on this basis.

It is true that defendant’s involvement in the scheme may constitute another offense. As a general rule, however, evidence that a defendant has committed an offense separate and distinct from the offense for which he is being tried is not admissible because of its prejudicial effect. (People v. Turner (1979), 78 Ill. App. 3d 82, 92, 396 N.E.2d 1139.) Such evidence may be admissible under certain circumstances. (See 78 Ill. App. 3d 82, 92.) None of these, however, is present in this case. We believe that defendant was severely prejudiced by the admission of this evidence and by certain prosecutorial references to his involvement in the scheme. During the State’s opening statement, the prosecutor informed the jury that “° 9 * there was a conversation in which the defendant, Elijah Frazier, offers [complainant] a thousand dollars not to testify against him.” During closing argument, the prosecutor remarked “What about defendant’s obstruction of justice? Should he be buying off witnesses on his rape case?” In its jury instructions, the trial court told the jury that opening and closing arguments were not to be considered as evidence. Nevertheless, we believe the admission of this evidence and references to it severely prejudiced defendant and that a reversal is required.

Third, defendant urges that he was denied a fair trial due to ineffective assistance of counsel. Defendant cites several instances where defense counsel should have proffered objections but failed to do so. For example, defense counsel failed to object during the State’s closing and rebuttal arguments when: the prosecutor offered his personal belief that defendant was guilty; the prosecutor improperly commented about the reasonable doubt standard; the prosecutor told the jurors that they will have sisters, wives, and daughters who are sitting beside someone on a bus someday, and “you don’t want them to be raped by that person”; the prosecutor made a personal attack on the integrity of defense counsel; and the prosecutor remarked that the defense witnesses were lying because they were bribed to testify for defendant. Additionally, defendant complains that defense counsel failed to object to improper questions during the State’s examination of witnesses. He suggests that counsel’s failure to object was attributable to his inexperience. In a post-trial hearing, it was learned that defense counsel had never tried a criminal case before or even assisted another practitioner in the trial of a criminal case.

A defendant has received ineffective assistance if defense counsel was actually incompetent and caused such substantial prejudice to defendant that the outcome of the case probably was changed. (People v. Talley (1981), 97 Ill. App. 3d 439, 443, 422 N.E.2d 1084.) Clearly, counsel’s failure to object in several instances was due to his inexperience. We cannot say with any degree of certainty, however, that the outcome of this case was changed only because of the quality of assistance given by counsel. We already have determined that defendant is entitled to a new trial and believe that it is appropriate at this point to comment on several prosecutorial remarks made during the State’s closing argument, to which defense counsel failed to object.

The prosecutorial remarks to which defendant claims his attorney should have objected are as follows:

“* * * there is nothing magical about finding someone guilty beyond a reasonable doubt. It is done every day in courts all over the country.”
“People sitting next to each other on buses — If you have sisters, wives, daughters, you know they will at some point in their life — They are going to be sitting next to somebody and you don’t want them raped by that person.”
“<* o o Qr Myers (expert witness) * " * is licensed to practice medicine — Not lie as [defense counsel].”
“Mary Kirk told Officer Herr one thing on October 8, 1979. Now she certainly testified to something different at this time. Why has she changed? Think about that. We know that [complainant] did not take any extra money. So there is a little extra money around here.”
“Why did Sam and Mary [defense witnesses] lie? We know that the defendant is not above offering money to somebody not to testify against him. I think that leaves the inference that since [complainant] did not take anything, the next best thing is the witnesses.”

The prosecutor’s comment on the reasonable doubt standard was improper. Such a comment had the effect of lessening the importance of the State’s burden of proof by implying that reasonable doubt is merely a pro forma or a minor detail. People v. Martinez (1979), 76 Ill. App. 3d 280, 285, 395 N.E.2d 86.

Equally improper was the prosecutor’s “sisters, wives, daughters” remark. A similar remark was made by the prosecutor in People v. Crossno (1981), 93 Ill. App. 3d 808, 417 N.E.2d 827. The court in Crossno held that the remark was improper but not grounds for reversal. (93 Ill. App. 3d 808, 824.) Similarly, we hold that this inflammatory appeal to the fears of the jury was improper. The remark should be avoided on the retrial of this matter.

Defendant also objects to the implication that the defense attorney was “licensed to lie.” Generally, such a comment is highly improper. Although improper, we have reviewed the record and find that in this case the comment was invited by defense counsel’s misstatement of the evidence during closing argument.

Finally, defendant contends that the prosecutor improperly implied that the defense witnesses were lying because they were bribed by defendant. The prosecutor had no testimonial basis for the statement that the $1,000 earmarked but never given to complainant was instead given to the defense witnesses to lie at trial. This statement too should be avoided on retrial.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for a new trial.

Judgment reversed; cause remanded.

CAMPBELL, P. J., and O’CONNOR, J., concur.


source: Caselaw Access Project

author: JUSTICE WILSON

license: Public Domain

text:
      In re MARRIAGE OF MARY EILEEN YAKIN, Petitioner-Appellee, and PAUL M. YAKIN, Respondent-Appellant.
    First District (5th Division)
    Nos. 81-0823, 81-1266 cons.
    Opinion filed May 7, 1982.
    Rehearing denied June 22, 1982.

      Genaro Lara, of Chicago, for appellant.
    Michael W. Kalcheim and llene E. Shapiro, both of Kalcheim & Kalcheim, Ltd., of Chicago, for appellee.
   JUSTICE WILSON

delivered the opinion of the court:

Respondent appeals from a judgment of dissolution entered in favor of petitioner. The court found that respondent was guilty of extreme and repeated acts of mental cruelty, extreme and repeated physical cruelty, and constructive desertion. The court further awarded custody of two minor children to the petitioner, awarded the marital residence to the petitioner subject to a lien of $5,000 in favor of respondent and assessed attorney fees in favor of petitioner’s attorney in the amount of $12,000.

Respondent contends that (1) the judgment of the court granting the divorce was against the manifest weight of the evidence; (2) the court erred in permitting the trial to proceed while respondent was absent; (3) the court erred in awarding custody of the minor children to petitioner and (4) the court erred in awarding attorney fees to petitioner’s attorney in the amount of $12,000. No issue is raised on appeal concerning the award of the marital residence to petitioner. For the reasons hereinafter stated we affirm the trial court as to the granting of petitioner’s petition on grounds of mental cruelty, physical cruelty, and constructive desertion but reduce the court’s award of attorney fees. The relevant facts on the contested grounds of the petition follow.

Petitioner, Mary Eileen Yakin, filed her petition for dissolution of marriage on January 5, 1979. During the following 1/2 years several preliminary motions and petitions were brought on behalf of both parties and discovery was conducted. On April 27, 1979, pursuant to petition of respondent, Paul M. Yakin, an agreed order was entered by the court requiring both parties to submit to a mental examination by a court-appointed psychiatrist and reserving the issue of submitting the children for a mental examination. Ese Judas, M.D., was suggested by the court because she was a specialist in the field of child psychiatry. She was approved by both parties and during late May and early June, she interviewed each of the parties and the two minor children. She conferred with petitioner on two occasions totalling 1 hour and 55 minutes. She also saw respondent on two separate occasions, totalling 2 hours and 10 minutes. At another session, she observed the whole family interact together and spoke to each of the children individually for approximately 30 minutes each. Upon completing her examination, on June 5 she prepared a written report recommending that petitioner be awarded the permanent custody of the parties’ two minor children. This report was submitted to the attorneys for both parties but was not filed with the court. On September 20, 1980, the attorney for respondent deposed Dr. Judas pursuant to order of the court and subpoena. On June 29, 1979, pursuant to petition of respondent for a supportive services investigation, the court entered an agreed order authorizing an investigation by the Department of Supportive Services. Sharon Zingery was the caseworker assigned to conduct the investigation. She visited with each of the parties in their respective homes and observed the parties’ interaction with the two minor children. On December 10,1979, she prepared a written report which was sent to the attorneys for both parties. In that report she recommended that permanent custody of the two minor children be awarded to petitioner.

On December 11, 1979, the first phase of the trial proceeded as a contested trial as to the grounds for dissolution of marriage. After petitioner began to testify in her own behalf, the court conducted conferences with counsel and the parties in chambers. Respondent and his attorney stated at these conferences that respondent was opposed to a divorce and wished to participate in marriage counselling with petitioner. The trial then was suspended and, on January 28,1980, the parties entered into a written stipulation, which was filed on February 1, 1980. The stipulation contained, among other things, the following provisions: (1) the parties would participate in counselling by Melvin N. Seglin, M.D., a court-appointed psychiatrist; (2) Dr. Seglin would render an opinion as to whether the parties’ marriage was nonviable and whether their differences were irreconcilable; (3) the parties agreed to be bound by the recommendations of Dr. Seglin as to these issues; (4) in the event that Dr. Seglin found that the marriage was nonviable, or that there existed irreconcilable differences, the parties agreed that the document would serve as a stipulation to prove up the case as if it were an uncontested default matter, with the grounds being willful and constructive desertion on the part of respondent, without any cause for provocation on the part of the petitioner, and that the permanent custody of the parties’ two minor children would be awarded to petitioner; and (5) in the event that Dr. Seglin found the marriage nonviable, or that there existed irreconcilable differences, respondent would not put on a defense as to ground or custody. Both parties testified in open court as to the terms of the written stipulation and as to their voluntariness in entering into it without coercion from any party or the court.

Both parties were seen by Dr. Seglin on a weekly basis in a series of psychiatric interviews from approximately February 11, 1980, through May 1, 1980. Dr. Seglin prepared a written psychiatric summary which was tendered to counsel for both parties and to the court. He stated in the summary:

“It appears that the situation has gone beyond ‘the point of no return’ and an attempt at reconciliation at this time would be fruitless. I will offer one further recommendation in the event that the divorce is decreed. I see no reason why custody of the children should not be granted to Mrs. Yakin.”

After receipt of Dr. Seglin’s report, petitioner filed a petition requesting a prove-up date to allow the case to proceed pursuant to the parties’ written stipulation. In response thereto respondent filed a petition requesting that the parties’ written stipulation be withdrawn, based on public policy and various constitutional arguments. The trial court, on August 13, 1980, entered an order which provided that the stipulation heretofore entered would be rescinded, provided that respondent pay petitioner for the attorney fees that were specifically incurred in connection with the stipulation.

The trial on the grounds of dissolution was reset, continued from time to time and eventually recommenced on January 21, 1981.

This opinion will not be unduly extended at this point by cataloguing each of the instances identified by petitioner in support of her petition for dissolution; when appropriate, the operative facts supporting the grounds for dissolution will be detailed. The record supports the conclusions that respondent privately and publicly insulted his wife, was guilty of physical cruelty, physical abuse, psychological harassment toward plaintiff and also humiliated her before family, friends and strangers. Following the testimony of witnesses called on behalf of both parties, the court entered a judgment of dissolution based on respondent’s mental cruelty, physical cruelty and constructive desertion. The court’s ruling was issued on January 23, 1981. Following the court’s ruling a trial date on custody and financial issues was set for February 24, 1981. One week prior to the scheduled trial date on custody and financial issues, respondent filed a motion for substitution of attorneys and Attorney Genaro Lara substituted for respondent’s former counsel. After hearing testimony of witnesses, the court found that petitioner was entitled to the permanent care, custody and control of the parties’ two minor children. She was awarded the marital residence, subject to a lien in favor of respondent in the amount of $5,000. The judgment of dissolution of marriage was entered on March 13, 1981, and the issue of attorney fees was taken up in a separate hearing. Hearing commenced on the issue of attorney fees on April 29, 1981, and on May 6, 1981, an order was entered assessing attorney fees in favor of petitioner’s attorneys in the amount of $12,000.

Respondent filed his notice of appeal from the judgment of dissolution of marriage on April 2,1981, and the notice of appeal was amended on April 15, 1981. On May 20,1981, respondent filed notice of appeal on the order of attorney fees. Case No. 81-823 concerning the judgment for dissolution of marriage and No. 81-1266 on the issue of attorney fees were consolidated on July 10,1981, by order of this court.

Opinion

I

Respondent-appellant argues that the acts of which petitioner complains did not comprise a course of conduct sufficient to rise to the level of extreme and repeated mental cruelty; that petitioner’s proofs failed to establish that these facts resulted in an adverse effect upon her physical or mental health; that petitioner’s case lacked the requisite proof demonstrating an absence of provocation on petitioner’s part with respect to the acts in question; that petitioner’s proofs failed to establish extreme and repeated cruelty; that petitioner’s proofs failed to establish constructive desertion and that petitioner failed to prove lack of provocation on her part in regard to extreme and repeated cruelty and constructive desertion. We disagree. The record reveals the following:

Petitioner testified that respondent accused her of trapping him and forcing him into the marriage. He told her that he never loved her and that he no longer wished to be married to her. He accused her of destroying his life and of strapping him down with responsibilities and obligations; he accused her of intentionally becoming pregnant, in order to force him to stay in the marriage; and he called her a bitch and told her that the most important thing in his life was his work; that she and the child were mere “clutter.” She further testified that when she became pregnant and went into labor with her first child he complained about driving her to the hospital and after her delivery, refused to visit her in the hospital. On numerous occasions he told her that he considered her ugly or vaguely attractive only when she wore makeup; that she looked like a little girl and that he found her repulsive. He also frequently told her that she was immature, strange, abnormal and neurotic. Although 'she prepared meals on a daily basis, he told her that he refused to be obligated to her time schedule for meals and that he refused to sit down and eat meals with her and the children. Instead he would eat alone in a separate room of their apartment. Despite her protests he would spend very little time with her and the children; he spent the majority of his time on his studies and on lawsuits he planned to file against his former psychiatrist and against his former graduate school. He told her that he needed to achieve his revenge by filing these lawsuits, in order to assert his manhood. Once he pushed her and slapped her face in a public courtroom. When she attended various parties with him and his school or business associates, he criticized her for talking too much, being too spontaneous, revealing too much about herself, behaving immaturely, showing neuroticism, revealing her stupidity and ignorance and behaving too seductively toward other men. He also accused her of being a whore, having sexual relations with her psychiatrist, a man who is 78 years of age, and of getting his professional services in exchange for sexual favors.

He told her that her psychiatrist was making her sicker. Petitioner further testified that she found a “stream of consciousness” diary written by her husband, in which he stated that he enjoyed hurting her and seeing her cry, and that it gave him a great sense of power. In April of 1977 she consulted with an attorney regarding a divorce. When she advised respondent of this he slapped her in the face and called her a bitch and a whore. Also, he threatened to destroy her and the children and said that she was going to die as his wife. In May of 1978 she asked him for time off from sexual relations. In response to this request, he pushed a washing machine against her hip, bruising her and then threatened to rape her. He went into another room and began throwing furniture. She separated from him after this incident but later reconciled. After reconciling she went, at his request, to a psychiatrist selected by him for marriage counselling. During a joint counselling session he stated to the psychiatrist that she was the sickest person he had ever met and that she was incredibly hard to live with.

She further testified that there had been moments of affection during the marriage, but that those moments were rare. In addition, she testified that after the altercations aforementioned, he would refuse to talk to her, and there would be periods of silence, sometimes as long as two days. Further, she said that on repeated occasions, when she would ask him to sit down and discuss the marriage in order to work things out, he would refuse to answer. During the month of December 1978 there was no communication between the parties and in late December or early January 1979, she left the marital home with the two minor children and filed the dissolution proceedings.

Finally, petitioner testified that as a result of the respondent’s conduct, she suffered crying spells, shaking, extreme nervousness, heart palpitations, insomnia, restlessness, shock, alternating nausea and constipation, headaches, dizziness, feelings of frustration, bewilderment, humiliation, hopelessness and deep hurt. She also testified that on the occasions that respondent struck her, pushed her and pushed the washing machine into her, she suffered from pain, bruises and red marks.

Dr. James Alexander, psychoanalytic psychiatrist, testified on behalf of petitioner. He testified that he had seen petitioner professionally on a regular basis from 1975 through 1980. He had discussed her marriage with her on a number of occasions and summarized his conclusions by stating:

“Well, she was, she was very unhappy, under continuous emotional distress; and that was evident by obsessive worry about it, preoccupation with it, tears, despairing feelings, often feeling hopeless to cope with the stress of the marriage, the conflict.”

He further testified that petitioner told him that respondent had a depreciating, high tempered and contemptuous attitude toward her. Dr. Alexander also testified that he thought that petitioner’s physical health was sound, although the emotional stress caused her to often feel exhausted and agitated. He had observed her emotional condition to be anxious, worried and distressed. He further observed that she cried a lot and felt trapped and hopeless. In his opinion, petitioner’s emotional problems were largely situational and related to her husband’s attitude toward her and treatment of her. He also testified that three days prior to the trial, he had received a threatening telephone call from respondent who accused him of ruining his marriage and going against his wishes by continuing to treat his wife.

On cross-examination, Dr. Alexander testified that respondent had been his patient prior to petitioner becoming his patient and he had seen respondent individually for six months on a weekly basis; that respondent was very disturbed because he was on the verge of being expelled from the graduate school’s doctoral program and because of litigation he had brought against his previous psychiatrist; that respondent had discussed his wife’s emotional problems and attributed them to her relationship with her family. When Dr. Alexander was asked by petitioner’s attorney as to the reason that he had treated petitioner free of charge for many years, he responded that if he had not treated her she would have regressed, collapsed in such despair that she would have “taken her life.”

On redirect examination Dr. Alexander testified that he had observed the parties during joint sessions and noticed that respondent treated petitioner in an ill-tempered manner. Further, he observed that petitioner resented this type of treatment but that she would behave submissively. In his opinion, respondent is an angry, vengeful, and litigious man with some paranoidal tendencies.

After Dr. Alexander finished his testimony the petitioner rested her case and respondent made a motion for a directed finding which was denied by the court. Petitioner then moved to amend her complaint to add desertion and physical cruelty as grounds in addition to the originally pleaded grounds of mental cruelty. The motion was allowed.

Respondent took the stand and testified in his own behalf. Respondent testified that he never struck petitioner and that he never used foul language. He denied that his conduct forced petitioner to leave home and testified that his wife showed evidence of emotional problems stemming from mistreatment by her family and from her experience as a nun. Further, he stated that during the first two years of their marriage, when his wife became upset, she would take as many as four sleeping pills.

On cross-examination, respondent testified that he never took petitioner to the hospital after the incidents when she took three or four sleeping pills.

In Morris v. Morris (1979), 70 Ill. App. 3d 125, 388 N.E.2d 129, this court upheld a finding of mental cruelty in a case closely.paralleling the facts of the pending case. In Morris the record revealed that on two occasions defendant physically struck plaintiff, knocking her down. He often shouted abusively at her, sometimes in the presence of others; he told her that he wished he weren’t married to her and didn’t love her; and he related intimate details of their marriage on the telephone to an unidentified listener. Further, he refused to help her maintain the household when she was ill and verbally abused her for asking him for aid because he believed she was “faking illness.” He demanded that she turn over to him all of the money or other assets she possessed, for his control and use, or else he would declare “war” upon her, sue her for divorce and cause her to expend all of her funds on attorney fees and cost of litigation. Such conduct caused her to experience shock, fear, nervousness, depression, anxiety, loss of weight, crying, nausea, and feelings of abandonment and despair. The Morris court held that defendant’s behavior was causally connected to plaintiff’s symptoms and affirmed the trial court’s granting of the divorce. (See McCarrel v. McCarrel (1977), 48 Ill. App. 3d 666, 363 N.E.2d 198; Rosenbaum v. Rosenbaum (1976), 38 Ill. App. 3d 1, 349 N.E.2d 73; Christian v. Christian (1979), 69 Ill. App. 3d 450, 387 N.E.2d 1254.) In Christian, we held that to constitute cruelty grounds, respondent’s conduct must have caused the petitioner embarrassment, humiliation and anguish which rendered her life miserable and unendurable. Moreover, in Rosenbaum, this court found that the ultimate test is whether the conduct complained of had the required adverse effect upon the physical or mental health of the complaining party.

Applying these principles to the case at bar, we conclude that the evidence adduced at the trial of this case amply supports the judgment dissolving the marriage on the grounds of respondent’s mental cruelty.

Respondent urges, however, that petitioner failed to prove her lack of provocation, and he seeks reversal upon this contention. Proof of lack of provocation is an essential part of plaintiff’s case and respondent is not required to plead or prove it as an affirmative defense. (Hecht v.Hecht (1977), 49 Ill. App. 3d 334, 364 N.E.2d 330.) In Hecht, however, the court clarifies this issue as follows (49 Ill. App. 3d 334, 340):

“While the burden of proving lack of provocation remains at all times with the complaining party, the burden of going forward shifts to the defending party once there has been a denial, explicit or implicit * 0 * that the actions were provoked. This is true even if the defending party has denied in the answer that the actions were not provoked.”

Applying this principle to the facts before us, we find that petitioner denied that she provoked respondent’s conduct and the burden of introducing contrary evidence shifted to him. Further, throughout petitioner’s testimony there is a sense of her shock, anger and incomprehension in the face of defendant’s behavior toward her. Her sense of bewilderment suggests that she had given respondent no cause of provocation for committing the acts that he committed. See Moynihan v. Moynihan (1972), 9 Ill. App. 3d 520, 292 N.E.2d 105.

Respondent’s reliance on Stanard v. Stanard (1969), 108 Ill. App. 2d 240, 247 N.E.2d 438, is misplaced because in that case there was positive evidence of petitioner’s provocation. In the pending case, however, evidence of provocation is only conflicting; the trier of fact resolved it in favor of petitioner. Respondent also seeks support from Gregory v. Gregory (1974), 24 Ill. App. 3d 436, 321 N.E.2d 122; however, in that case the court noted a total absence of evidence in regard to lack of provocation, unlike the situation in the present case.

Respondent also argues that petitioner’s testimony was not corroborated by other evidence, and consequently the grounds for dissolution were not sufficiently proved. This position is without merit. There is no rule requiring corroboration in a case such as this, and if her testimony is sufficiently credible in the light of opposing evidence, the court may accept it along with other credible evidence and enter a judgment. (Surratt v. Surratt (1957), 12 Ill. 2d 21, 145 N.E.2d 594; Morris v. Morris (1979), 70 Ill. App. 3d 125, 388 N.E.2d 129.) Here, her testimony concerning mental cruelty is sufficiently credible in the light of all of the evidence to warrant acceptance by a reasonable person.

Furthermore, we conclude that there was sufficient evidence to prove the grounds of extreme and repeated physical cruelty as well as constructive desertion.

II

Respondent next posits that the trial court committed an abuse of discretion in commencing trial in respondent’s absence, which was due to medical reasons. Specifically, respondent maintains that commencement of the February 24,1981, hearing in his absence was an infringement of his due process rights. Also he claims that this action by the trial court was indicative of the court’s prejudicial attitude against him. We are not persuaded by this argument.

The denial of a motion for a continuance does not constitute a deprivation of due process, even if such denial is erroneous. As the supreme court pointed out in Benton v. Marr (1936), 364 Ill. 628, 5 N.E.2d 466:

“If errors are committed or erroneous and unjust decisions are rendered they may be corrected in the manner provided by law for the correction of such errors, but mere error in a judgment or decree does not deprive the losing party of the benefit of due process of law.
The sole question relating to the denial of the motion for a continuance is whether or not the trial court erred in its exercise of judicial discretion. Due process is in nowise involved.” (364 Ill. 628, 629-30, 5 N.E.2d 466, 467.)

See also Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382; Acme Secret Service, Ltd. v. Alexander (1968), 100 Ill. App. 2d 360, 241 N.E.2d 636 (abstract).

The record indicates that the court denied the motion for the continuance because of its reasonable impression that respondent was attempting to utilize dilatory tactics in order to postpone the proceedings. After the parties entered into the written stipulation to seek the professional psychiatric services and opinions of Dr. Melvin Seglin, as to whether the marriage was viable, that stipulation was proved up on the record. Respondent testified that he agreed to be bound by the stipulation and that if Dr. Seglin found that the marriage was not salvageable, he would give petitioner an uncontested divorce on the grounds of constructive desertion. Further, he would give up custody of the parties’ two minor children. After Dr. Seglin rendered his opinion that the marriage was unsalvageable and any attempt at reconciliation would be fruitless, respondent reneged on his stipulated agreement and raised public policy and constitutional arguments to block the prove-up of the stipulation. This caused the court to enter an order vacating and rescinding the stipulation. The trial then was not resumed until January 21, 1981. When the court, on January 23, 1981, rendered its decision on grounds, it set a trial date on custody and financial issues for February 24, 1981, at 2 p.m. Respondent thus had one month’s advance notice of the trial on custody and financial issues. One week prior to the scheduled trial date, respondent filed a motion for substitution of attorneys, and then respondent’s new attorney made oral motions for continuances on the basis of the change in counsel. The court properly denied these motions because substitution of attorneys on the commencement of trial is not good cause for granting of a continuance. (Roberts v. McDaniel (1959), 22 Ill. App. 2d 485, 161 N.E.2d 47; Leathers v. Leathers (1958), 13 Ill. 2d 348, 148 N.E.2d 773.) Furthermore, the actions of respondent suggested an effort to impede trial. On February 24, respondent’s counsel appeared in court without his client and announced that he had just received a telephone call from his client informing him that respondent was receiving emergency medical treatment in the emergency room of a hospital and would be unable to proceed with trial. The court indicated that, if it were later established that respondent had, in fact, been medically unable to attend the hearing, the court would vacate the evidentiary hearing and grant respondent a trial de novo on the issue of custody. The court told counsel:

“Now, I have a suspicion he may not be ill. And he may be doing this simply to obtain a postponement. If that is so, why what he is doing is improper, and the hearings that we have this afternoon will stand. And we will go on tomorrow etc. I would expect that by tomorrow you are going to have a doctor in here testifying as to what the facts are with respect to his physical condition, if they are as he has represented them to you. I have strong suspicions that they may not be so.”

Dr. Ilse Judas, the court-appointed psychiatrist, was the only witness who testified on February 24, 1981. Dr. Judas had prepared a written report in June of 1979 incorporating her findings, observations, theories and recommendations. Dr. Judas’ testimony at the February 24 hearing was founded on the written report. Moreover, in September of 1980, the discovery deposition of Dr. Judas was taken by respondent’s former attorneys. Thus, respondent’s attorney had both Dr. Judas’ written report and the transcript of Dr. Judas’ discovery deposition available long before trial. Respondent, therefore, cannot claim that his attorney was taken by surprise at trial or that his own physical presence at the hearing would have made a difference to his attorney’s ability to cross-examine Dr. Judas. Accordingly, we find no prejudice resulting from respondent’s absence during the hearing on February 24.

On February 25, respondent presented himself in court. He testified as to his absence from court on the 24th and on cross-examination testified that he drove himself to work at approximately 8:30 a.m. and then drove himself to the hospital at approximately 11:30 a.m. Despite the court’s specific instruction to counsel for respondent, no medical expert witness was called to explain the alleged medical reason behind respondent’s absence. Respondent did offer a copy of a report from Billings Hospital as an exhibit. He identified the signature appearing on the exhibit as his signature, but the court ruled that the exhibit was not admissible under the best evidence rule, as it was secondary evidence, a copy, not the original. Further, the custodian of the business record was not produced and therefore the copy could not be identified as a true and accurate copy of the business record under his custody and control. In view of respondent’s failure to produce competent medical testimony or other evidence showing a legitimate medical reason for his absence on February 24, and considering his testimony that he drove himself both to work and to the hospital on that date, we conclude that the court properly refused to vacate the evidentiary hearing. It appears that the court did not err in finding that this was a tactic deliberately employed by respondent in bad faith in order to impede the trial. Moreover, even if the court had erred in proceeding with the trial in respondent’s absence, it was harmless error because the court in announcing its decision to award petitioner custody of the minor children stated that Dr. Judas’ testimony was not a controlling factor in arriving at the same. Thus, the decision would have been the same without Dr. Judas’ testimony.

In any case, respondent’s absence from court that one day cannot be characterized as a due process violation. Respondent cites Kopplin v. Kopplin (1946), 330 Ill. App. 211, 71 N.E.2d 180, as support for his position. Kopplin, however, is distinguishable on its facts; there defendant’s rights were violated because he was actually expelled from the courtroom after one outburst, and the facts indicate that defendant was subsequently prejudiced by his counsel’s failure to cross-examine three important plaintiff’s witnesses. In the present case, respondent chose to be absent from the February 24 proceedings. The court was in no way responsible for his absence. In addition, respondent had an opportunity to prove his medical disability and thus obtain a vacatur of that part of the trial that proceeded in his absence; he failed to do so. Accordingly, we find no abuse of discretion in the court’s refusal to grant a continuance. See Acme Secret Service, Ltd. v. Alexander (1968), 100 Ill. App. 360 (abstract); Moore v. McDaniel (1977), 48 Ill. App. 3d 152, 362 N.E.2d 382.

III

Respondent next contends that the court abused its discretion in awarding custody of the minor children to the petitioner. Again, we cannot agree. Section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Sat. 1977, ch. 40, par. 602) contains the relevant considerations for a determination of child custody.

“(a) The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community; and
(5) the mental and physical health of all individuals involved.
(b) The court shall not consider conduct of a present or proposed custodian that does not affect his relationship to the child.”

The record amply reveals that the court thoroughly considered all of the above factors in determining custody. The testimony of Dr. Judas emphasized the extremely close relationship between mother and children. She recommended that permanent care, custody and control of the two minor children be awarded to petitioner. She believed that given the present developmental level of each child, petitioner would better help them in terms of further progress and development. Further, she stated that she viewed the entire family interact together, she noted that respondent appeared “clinging” and needy of the children. She emphasized that a child ought not live with his or her parents because the parent is needy of the child. She interpreted respondent’s behavior as a self-centered concern to keep his wife rather than a concern for the welfare of the children.

Sharon Zingery, caseworker from the Cook County Department of Supportive Services, conducted a social service investigation of the parties’ household and also recommended that permanent custody of the parties’ two minor children be awarded to petitioner. She testified that her impression of respondent was that his primary concern was preserving the marriage. Instead of discussing the needs of the children, respondent seemed more interested in discussing his relationship with his wife. In contrast, Sharon Zingery stated that her impression of petitioner was that she had oriented her life more toward planning for the needs of the children, and that she had been actively involved and interested in her children’s progress in school.

Petitioner testified that she had virtually sole responsibility for performing household chores and raising the children, without assistance from respondent. She stated that respondent was largely an absentee father and that during 1978 he always arrived home in the evening after the children had gone to bed. The only day he spent with the family was Sunday and despite his wife’s requests, he refused to participate in family activities and holiday celebrations. Thus, the testimony revealed that petitioner had more contact with the children and could provide a more secure and stable home. The trial court’s custody decision, therefore, was proper. (See In re Marriage of Kennedy (1981), 94 Ill. App. 3d 537, 418 N.E.2d 947.) In Kennedy, the court held (94 Ill. App. 3d 537, 545):

“The custodial decision rests on temperaments, personalities and capabilities, and the trial judge is in the best position to evaluate these factors. (Marcus v. Marcus (1974), 24 Ill. App. 3d 401, 407, 320 N.E.2d 581, 585.) Only where the award is contrary to the manifest weight of the evidence will it be reversed. Soldner v. Soldner (1979), 69 Ill. App. 3d 97, 103, 386 N.E.2d 1153, 1158.”

Furthermore, this court in In re Marriage of Ramer (1980), 84 Ill. App. 3d 213, 217-18, 405 N.E.2d 401, opined:

“Custody matters are within the sound discretion of the trial court, because it is in the best position to hear and evaluate the evidence. A judge has not abused his discretion unless his judgment is ‘palpably erroneous, contrary to the manifest weight of the evidence or manifestly unjust.’ (In re Marriage of Poston (1979), 77 Ill. App. 3d 689, 396 N.E.2d 576, 579.)”

Here there was no abuse of discretion.

IV

Finally, respondent claims that the court committed error in ordering him to pay petitioner’s attorney fees of $12,000. He asserts the fee award was improperly entered because the court failed to consider his financial inability to pay the award and petitioner’s ability to do so. Also, respondent argues that the fees are excessive.

In March 1981, petitioner’s attorneys filed a petition for the entry of an order for attorney fees and costs. The petition alleged that 163/2 hours were expended in providing petitioner with legal services from January 1979 to March 1981. The petition further alleged respondent’s ability to pay attorney fees and court costs and petitioner’s inability to pay based on her lack of “sufficient financial resources. * # *”

Respondent filed a response to the petition, denying that petitioner was unable to pay and requesting that she be ordered to pay “all or substantially most of her attorney fees over a period of years” because the dissolution of marriage had been for her benefit and that her assets had greatly increased as a result of real estate ordered conveyed to her.

On April 29, an evidentiary hearing commenced. Petitioner offered the testimony of an expert witness, Joseph Du Canto, to substantiate her position on the value of legal fees rendered to her by her attorneys, Kalcheim & Kalcheim, Ltd.

Joseph Du Canto is recognized as an authority, both academically and practically, in the matrimonial field. He testified that Michael Kalcheim, attorney for petitioner, is a specialist in matrimonial litigation and has a reputation in the community as being an excellent attorney. He further testified that presentation of contested cases on the grounds of mental cruelty require a high degree of skill on the part of the lawyer and extensive client preparations. Further, he stated in response to a hypothetical question asked by the court that where a case involved a stipulation where the parties agreed to go to a psychiatrist for help in connection with a possible reconciliation, and if the psychiatrist recommended that the marriage was no longer viable and could not be salvaged, the divorce would proceed as a noncontested case, and the psychiatrist, after many conferences, made such a determination, and one of the parties withdrew from that stipulation, the presentation of such a case as a contested case would be a “complicated matter.” In addition, he testified that in his opinion, the usual and customary hourly charge for the time and services rendered in such cases was between $100 and $125 per hour.

Following the evidentiary hearing, the court ordered respondent to pay $12,000 in attorney fees with $6,000 to be paid within 30 days and the remaining $6,000 to be paid at the rate of $1,000 per month for six months. If an installment is not paid by the 15th of the month, the entire sum becomes due.

The allowance of attorney fees is within the sound discretion of the trial court and such an award will not be reversed unless the trial court has clearly abused its discretion. (Canady v. Canady (1964), 30 Ill. 2d 440, 197 N.E.2d 42; Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 373 N.E.2d 576.) To justify an allowance of attorney fees, the party seeking this relief must show financial inability to pay; financial needs within the context of the couple’s prior standard of living; and the ability of the other spouse to pay the attorney fees. Gasperini v. Gasperini; Kenly v. Kenly (1977), 47 Ill. App. 3d 694, 365 N.E.2d 379.

Respondent does not claim that he is unable to pay. Instead he argues that because petitioner benefitted directly from the legal services of her attorneys it would be “grossly unfair” for him to pay all of petitioner’s legal fees. We find this argument unconvincing.

It is not necessary for a party to be destitute in order for a trial court to award attorney fees. (Gilmore v. Gilmore (1979), 74 Ill. App. 3d 831, 393 N.E.2d 33.) Rather, as the Gasperini court observed:

“It is sufficient to support an award of fees that disbursement of the wife’s funds would exhaust her own estate, or strip her of her means of support and undermine her economic stability.” 57 Ill. App. 3d 578, 582.

Based upon these principles, courts have sustained a trial court’s award of fees where the party seeking the award had a regular income or salary (Gilmore v. Gilmore; Gasperini v. Gasperini); a savings account (Kaufman v. Kaufman (1974), 22 Ill. App. 3d 1045, 318 N.E.2d 282); stocks, securities or other liquid assets (Kenly v. Kenly (1977), 47 Ill. App. 3d 694, 365 N.E.2d 379); substantial securities and other assets (Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56); or real estate (Gasperini v. Gasperini).

In the present case, the record reflects evidence of the parties’ respective incomes. Specifically, petitioner had a gross income of approximately $8,863 as compared to respondent’s gross income of approximately $29,000 — “plus” gross income. Thus, her income was not even one-third of his. Additionally, she had been out of the job market during the entire 8-year duration of the marriage and is the custodian of two minor children. In contrast, respondent is a licensed clinical psychologist who has begun a private practice and recently purchased a 1981 Cadillac Seville sedan for a price of $16,000. Furthermore, petitioner had no assets other than the marital home, granted her by the court, which has a fair market value of $47,000, subject to a lien of $5,000 payable to respondent. In addition, there is an outstanding mortgage of about $20,000 on the property, payable by petitioner. Consequently, the court properly found that respondent had a financial ability superior to that of petitioner, and the determination that petitioner could not pay her attorney fees was not an abuse of discretion.

Respondent finally asserts that the fees awarded to petitioner’s attorneys were excessive. We take notice that there have been numerous recent Illinois decisions considering the question of attorney fees in matrimonial cases. This court in In re Marriage of Janetzke (1981), 97 Ill. App. 3d 418, 422 N.E.2d 914, analyzed the cases and pointed out the applicable standards relating to the awarding of attorney fees. The court stated the factors to be considered as follows:

“[T]he nature of the controversy; the questions at issue; the significance or importance of the subject matter; the degree of the responsibility involved; the standing or skill of the person employed; the time and labor involved; and the relative financial positions of the parties. (In re Marriage of Scott (1980), 85 Ill. App. 3d 773, 407 N.E.2d 1045; Canham v. Saisi (1978), 65 Ill. App. 3d 686, 382 N.E.2d 654; Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 373 N.E.2d 576; Green v. Green (1976), 41 Ill. App. 3d 154, 354 N.E.2d 661; Greenbaum v. Greenbaum (1973), 14 Ill. App. 3d 217, 302 N.E.2d 165.) In addition, it has been held that the time charged must have been necessary for the proper handling of the matters involved. (Gasperini v. Gasperini; Moreau v. Moreau (1973), 9 Ill. App. 3d 1008, 293 N.E.2d 680); that the fees must be fair and just to all parties involved (Canham v. Saisi; Green v. Green), that the time expended and the work done must be itemized (see In re Marriage of Raidbard (1980), 87 Ill. App. 3d 158, 408 N.E.2d 1021; In re Sharp (1978), 65 Ill. App. 3d 945, 382 N.E.2d 1279); and that as stated in In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 277, 411 N.E.2d 947, 950:
‘[I]t is not sufficient to merely multiply the number of hours expended by counsel, even as shown by detailed records, by whatever hourly rate is determined to be reasonable without consideration of the other factors 0 * ” 97 Ill. App. 3d 418, 423-24, 422 N.E.2d 914, 919.

Moreover, it has been held that generally fees are granted in divorce cases upon the basis of a separate hourly rate for court time and office time (e.g., Christian v. Christian (1979), 69 Ill. App. 3d 450, 387 N.E.2d 1254); and that the court time rate is higher in recognition of the greater skill required, but courts will not hesitate, however, to reduce the total number of court time hours billed if, in fact, such skill was not reflected. Gasperini v. Gasperini.

Application of the foregoing principles indicates that the award of fees in this case must be reduced. Although we find that the grounds issue was seriously contested through the trial, and that skilled counsel for both parties have been engaged in persistent and contentious litigation, we do not believe that the record demonstrates such complexity of issues as would justify an award of $12,000. Also, even though the issue of custody was contested, that did not make the case unusually difficult. See In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 420 N.E.2d 555; In re Marriage of Kruse (1980), 92 Ill. App. 3d 335, 416 N.E.2d 40.

While petitioner’s attorneys claim 163% hours were spent representing petitioner both in and out of court, something more must be shown to justify an award of fees than merely a compilation of an hourly rate. In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 651, 420 N.E.2d 555, 566.

In perusing petitioner’s time records, we find that approximately 79 hours charged represents telephone conferences and other conferences with petitioner and witnesses. This represents almost one-half the total time spent by petitioner’s attorneys on this case. Further, petitioner’s attorney stated that even if a phone call lasted less than a quarter hour he would bill for a quarter of an hour. This practice necessarily would result in an inflated billing figure for telephone conferences. As to the conferences with petitioner and other persons, there was little explanation as to the particular business covered in each of these conferences and why this amount of time was necessary. (Gasperini v. Gasperini.) We do not think that in all fairness respondent should be charged with a greater amount of time than was necessary for these conferences.

Moreover, considering the total hours allowable in this case, we note that although petitioner’s attorneys, in their petition, differentiated between office time and court time, the ultimate aggregation of total hours spent on the case in calculating the fee ignores this distinction. Since court time is billed at a higher rate, the fact that no distinction is made results in charging the same rate for office work as is charged for court work, an improper result. See Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56.

The trial court’s award of $12,000 presumably compensated petitioner’s attorney, Michael Kalcheim, at a rate of approximately $82 per hour for 142M hours, which was the amount of time rendered strictly by him. In recent cases in which attorney fees were incurred, this court has sanctioned significantly lower hourly rates than was here awarded to petitioner. (Christian v. Christian ($75 court time, $35 office time); Tippet v. Tippet (1978), 65 Ill. App. 3d 1018, 383 N.E.2d 13 (overall hourly rate of $50 reversed); Davis v. Davis (1978), 63 Ill. App. 3d 465, 380 N.E.2d 415 ($40 allowed); Gasperini v. Gasperini ($40 allowed); Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56 (hourly rate of approximately $74 per hour).) In light thereof and considering the requirements placed upon the trial court by the cases cited above in determining attorney fees, we find that the record does not support the award of attorney fees here. Consequently, we reduce the aggregate attorney fees to $9,000 and find this amount to be fair and reasonable for the service rendered to petitioner. Respondent shall pay $6,000 within 30 days and the balance of $3,000 to be paid at the rate of $1,000 per month for the following three months. The entire amount is to be paid within four months. In making this determination, we do not disturb the court’s other

conditions pertaining to installment payments of the sum due and the interest allowable.

In summary, the order granting petitioner dissolution of the marriage on the grounds of extreme and repeated mental cruelty, physical cruelty and constructive desertion is affirmed; the order granting permanent custody of the minor children to petitioner is affirmed; the order awarding a fee of $12,000 to petitioner’s attorneys is reduced to the amount of $9,000.

Judgment affirmed as modified.

LORENZ and MEJDA, JJ., concur.

       The court had allowed the stipulation to be withdrawn on condition that $2,812.50 in legal fees in connection therewith be paid. This amount was paid and the stipulation withdrawn. These hours were not included in the final petition for fees.

       The total number of hours reflected on the attorney fee affidavit was 163½ hours. Mr. Kalcheim’s associate rendered services of time amounting to 20 3/4 hours. Mr. Kalcheim indicated he was not charging for his associate’s services because she had only been in a minor role in the case.


text:
    RUBY HOWARD, Plaintiff-Appellant, v. JEFFREY C. MILLER et al., Defendants-Appellees.
    First District (5th Division)
    No. 81 — 330
    Opinion filed July 16, 1982.

      Ruby Howard, of Chicago, for appellant, pro se.

    Tyrone C. Fahner, Attorney General, of Chicago (Henryk S. Boreeki, Assistant Attorney General, of counsel), for appellees.
   JUSTICE WILSON

delivered the opinion of the court:

Plaintiff, Ruby Howard, brought this administrative review action pro se to challenge a decision by the Illinois Department of Public Aid (IDEA) to terminate benefits she had been receiving pursuant to the federally created Work Incentive Program (WIN). As a result of the agency’s action, her total public assistance benefits from Aid to Families with Dependent Children (AFDC) was reduced by $136 per month. The circuit court affirmed the IDPA’s decision and plaintiff brought this appeal. She makes several allegations against defendants, but the dispositive issue of this appeal involves- the validity of her registration in the WIN program.

In 1971 Congress amended title IV of the Social Security Act to strengthen existing welfare programs which provided for job training and placement of recipients. (See Part A: Aid to Families with Dependent Children, 42 U.S.C. secs. 601 through 610 (1976); Part C: Work Incentive Program for Recipients of Aid Under Part A, 42 U.S.C. secs. 630 through 644 (1976).) These amendments provided for mandatory registration of employable adult welfare recipients and focused on immediate job placement of recipients. (Act of Dec. 28, 1971, Pub. L. No. 92 — 223, 85 Stat. 802.) To implement the program, Congress authorized the U.S. Secretary of Labor to establish the WIN program in cooperation with the States, which would provide for training, placement and participation of recipients in public or private employment. (42 U.S.C. sec. 632 (1976).) As a part of the benefit eligibility requirement, employable adults are required to register with the WIN program (42 U.S.C. sec. 602(a)(19)(A) (1976)), and an unexcused failure to participate in the program results in the denial of AFDC benefits. (42 U.S.C. sec. 602(a)(19)(F) (1976).) Although the adult recipient who refuses to participate is denied AFDC benefits, the children of the household continue to receive assistance. 42 U.S.C. sec. 602(a)(19)(F)(i) (1976).

In Illinois, the WIN program is administered by two separate agencies, the Illinois Department of Public Aid and the Illinois Department of Labor. (See 45 C.F.R. secs. 224.0 through 244.77; Ill. Rev. Stat. 1979, ch. 23, pars. 4 — 1.8, 11 — 20.) The Department of Public Aid determines whether an AFDC recipient must register with WIN. Generally, a person is required to register if he or she is currently unemployed, over 16 years old, not physically or mentally handicapped, and not a mother of children who are under 6 years old. See Ill. Rev. Stat. 1979, ch. 23, pars. 11-20(1), (2), (5).

When IDPA determines that an AFDC recipient meets the registration criteria, the Department sends him or her a form notice apprising the person of the WIN status determination, the duty to register with the program, and the consequences of a failure to register.

The Department of Labor is responsible for actually administering the WIN program. After a public aid recipient registers by completing the form at a local office, the Department of Labor processes the registrant through the various steps in the WIN program, such as evaluation, training, and job placement. As an ongoing eligibility requirement, after registration, the recipient must continue to participate in the WIN program. (Rule PO-470(3), IDEA AFDC Manual (Oct. 1979).) Failure to participate in the program, without good cause, is grounds for the Department of Labor to “deregister” the recipient, resulting in a loss or reduction of benefits. In addition, if a WIN recipient obtains employment, he may become ineligible for all or part of his previous public assistance grant.

The facts of the present controversy may be summarized briefly. On September 10, 1979, the Illinois Department of Public Aid mailed a notice to plaintiff which directed her to register with a local WIN office. Plaintiff telephoned her caseworker and stated that she was already registered with the WIN program and she did not understand why she had to register again. Subsequently, the caseworker checked the files of various WIN offices but was unable to find a copy of plaintiff’s WIN registration form. The caseworker then sent a second notice to register to plaintiff but it was returned as undeliverable.

Plaintiff’s local WIN office next mailed a notice to plaintiff that informed her that as a result of her failure to register, the financial assistance to her household would be reduced by $136 to $214 per month. This reduction represented her allotment of the total AFDC grant, the children’s proportion to remain intact. At plaintiff’s request, a hearing on the proposed agency action was held on February 6, 1980. At the hearing, plaintiff produced a copy of her WIN registration form dated February 6, 1976. She further attempted to describe a course of conduct by certain agency employees that had allegedly deprived her of her right to hearings on two other separate appeals that she had requested in 1978. The hearing officer told plaintiff that other appeals were not relevant to the one in issue. Defendants produced a copy of records which indicated that as of June 30, 1979, plaintiff was a potential WIN participant who was not registered with the program.

In the final administrative decision the acting director of IDEA adopted the hearing officer’s findings and affirmed the local department’s action in reducing plaintiff’s assistance grant to $214, beginning December 1979. He stated that although the evidence showed that plaintiff had registered in 1976, “this information was over three years old and the local office was correct to require [her] to register with WIN again ***.” He further held that plaintiff was wrongfully denied her food stamp benefits and directed that they be restored.

Plaintiff subsequently filed her complaint in the circuit court for administrative review. After a hearing the trial court affirmed the director’s decision, entered judgment in favor of defendants, and dismissed plaintiffs complaint. She then brought this appeal.

Opinion

Initially, we reject plaintiff’s assertion that requiring her to rere-gister in the WIN program was a violation of her civil rights. To simply fill out a second registration form seems to be a minor inconvenience at most. Nevertheless, under the circumstances of this case we do not believe plaintiff’s benefits should have been curtailed. Our examination of the record results in our belief that plaintiff’s refusal to reregister was not motivated by a recalcitrant attitude but apparently was influenced by her frustration over continuous problems she had faced in prior dealings with Department personnel. Specifically, she alleges that she had never received a fair hearing on the merits of an earlier appeal involving a different matter and that certain employees of the county department had falsified some documents in her case file and otherwise engaged in a fraud or coverup. We will not set out the full details of these prior occurrences because we agree with the trial court that the jurisdictional time period for seeking judicial review of the prior appeals is past. Those prior occurrences may be tangentially relevant to the present appeal but our primary concern is the narrow question before us: Was the agency’s decision that plaintiff’s 1976 WIN registration was invalid contrary to the manifest weight of the evidence? We hold that it was.

At issue in this case is not plaintiff’s refusal to participate in the WIN program; she does not contend that she is exempt from the eligibility requirements for mandatory registration. Her position, simply stated, is that she registered in February 1976, has never been dere-gistered from the program and has participated in the program by attempting to obtain job training and employment. Therefore, the denial of her benefits was erroneous. Defendants respond that the agency’s action was proper on the basis of IDEA records which indicated that she was not registered as of June 30, 1979. Those records, in conjunction with her failure to reregister upon notice from her local office, justified the agency’s action.

The scope of our inquiry in reviewing factual issues is limited to determining whether the agency’s findings are against the manifest weight of the evidence. (King v. City of Chicago (1978), 60 Ill. App. 3d 504, 377 N.E.2d 102.) In addition, an agency’s construction of a statute or rule is considered persuasive, but not binding. (Olin Corp. v. Pollution Control Board (1977), 54 Ill. App. 3d 40, 370 N.E.2d 3.) At the hearing before IDEA the main issue was whether plaintiff had registered in the WIN program, which is a condition of eligibility. We believe that when she produced evidence of her 1976 registration the burden shifted to defendants to establish that she had been deregistered subsequent to that time. Defendants’ only evidence was a computer printout that listed plaintiff as a potential WIN participant who was unregistered as of June 30, 1979. A representative from the Department admitted upon questioning by the hearing officer that she did not know if reregistration was required periodically and that she did not have actual verification of a cancellation of plaintiff’s case. Moreover, defendants’ brief contains a copy of the form that is sent to recipients who are to be deregistered from the WIN program, which described the sanctions to be imposed (3 to 6 months’ loss of benefits) for failure to participate in the WIN program without good cause. Since the Department preferred no copy of such a form sent to plaintiff or other indication of an actual deregistration decision in her case, we conclude that her 1976 registration remained in effect.

Defendants take the position, however, that the burden of maintaining a “current” registration is on the WIN participant and since plaintiff’s initial registration was more than three years old at the time of the hearing, it was not current. Defendants cite a section of the Illinois Public Code which provides that eligible welfare recipients “shall maintain a current registration for employment ***.” (Ill. Rev. Stat. 1979, ch. 23, par. 11-20(1).) Also, Rule PO-470(2) of the IDPA Manual (Dec. 1979), provides that if an individual is deregistered in error, “the eligibility requirement concerning WIN registration is no longer satisfied and the individual is to be immediately re-referred for WIN registration.”

We believe that these general provisions simply reinforce the mandatory registration requirement as a precondition to obtaining public aid. Hence, a nonexempt individual, once notified of his or her WIN status, must comply with the statute and register with the program. Furthermore, if one is erroneously deregistered, the Department must re-refer him for registration. Presumably, in the “usual” case, the recipient would then reregister and the error would thus be corrected.

The pending ease, however, involves unusual circumstances. At the time plaintiff received notice to register in 1979, she had, with limited success, been seeking resolution of other matters connected to the WIN program. She knew she had already registered, as she told her caseworker upon receipt of the notice, and had never been deregistered from the program. Nor had her public aid benefits ever been reduced, which indicates that she had not been deregistered at any previous time. At the hearing she produced verification of her 1976 registration. For defendants to now assert, on appeal, that she should have known that she must reregister to remain “current” ignores the clear indication from the transcript that no one from the Department knew what the policy was on “current” registration. Moreover, they could not produce any evidence of plaintiff’s actual deregistration or cancellation. The computer printout list, therefore, had limited evidentiary value.

Defendants’ argument on appeal is further weakened by the inclusion in their brief of a certain decision by the Department of Labor’s Board of Review, which they use as “proof” that plaintiff was dere-gistered several times for refusal to participate in the program. The registrant in that appeal is named Rubella Howard, which apparently explains their belief that the Board’s decision involved plaintiff. The decision is not a part of the record, but defendants include it in their brief “for information purposes” to show “plaintiff’s latest refusal to participate in the WIN program.” What defendants inexplicably failed to realize, however, is that the decision involved someone other than plaintiff and is totally irrelevant. Our check of the record reveals that the Rubella Howard in that case lives in a different city than does plaintiff and has a different social security number. Such an oversight by the brief’s authors, the Attorney General’s Office, can only reinforce plaintiff’s belief that her case has been mishandled, deliberately or otherwise, from the beginning.

In that regard we note that the pleadings, transcript, and other papers in the record are inconclusive as to plaintiff’s allegations of fraud and forgery. The trial court dismissed the portion of the complaint involving these allegations because they arose out of plaintiff’s earlier appeals (Nos. 78 — 6584 and 79 — 3015) which were disposed of by final administrative orders on the basis of a lack of jurisdiction. Plaintiff failed to appeal those orders in the circuit court within the jurisdictional 35 days, which bars judicial review. (Ill. Rev. Stat. 1979, ch. 110, par. 267; Chin v. Department of Public Aid (1979), 78 Ill. App. 3d 1137, 398 N.E.2d 135.) The final administrative decision in case No. 78 — 6584 was issued on December 4, 1978, and the final decision in No. 79 — 3015 was issued on June 28, 1979. Plaintiff’s complaint for administrative review of the present matter was filed on April 3, 1980, well past the 35-day time limit for those appeals. Although the prior appeals are not judicially reviewable, we note that the office of the Director of IDPA, responding to plaintiff’s written request, did informally review the history of her case and concluded that her appeals had been heard and disposed of properly. Therefore, we cannot conclude that plaintiff has been denied due process with respect to any of her claims.

As a final issue, plaintiff’s complaint requests money damages, presumably on her claim of fraud. Since we have found that the trial court properly dismissed that count for lack of jurisdiction it follows that her damages request also fails. The relief that plaintiff is entitled to is the restoration of the public aid payments that she was denied as a sanction for failing to register.

In summary, we reverse that portion of the trial court’s judgment that affirmed the agency’s decision to reduce plaintiff’s benefits by $136 per month. We affirm the court’s dismissal of the remainder of plaintiff’s complaint and remand the cause for the calculation of plaintiff’s lost benefits.

Affirmed in part; reversed in part; and remanded for further proceedings.

LORENZ and MEJDA, JJ., concur.

      Plaintiff cannot be faulted for her persistence in raising the matters involved in her prior attempts to obtain relief from the agency. Indeed, despite her lack of legal expertise, plaintiff’s handwritten pleadings and brief reflect her intelligence and sincerity.

      The Director’s letter, dated October 15, 1979, further thanks plaintiff for calling attention to certain improper actions taken by the Department’s appeal coordinator and assured her that disciplinary measures had been taken. Although this reference to impropriety on the part of Department personnel does not prove plaintiff’s allegations of fraud and forgery, it does indicate that plaintiff’s previous disputes with the Department might have contributed to her failure to reregister in the WIN program.


author: JUSTICE HOPF JUSTICE REINHARD,

text:
    GERARD KLOSS, Plaintiff-Appellee, v. THE BOARD OF FIRE AND POLICE COMMISSIONERS OF THE VILLAGE OF MUNDELEIN et al., Defendants-Appellants.
    Second District
    No. 81 — 827
    Opinion filed July 21, 1982.

      REINHARD, J., concurring in part and dissenting in part.
    Charles F. Marino, of Chicago, and Rosing, Carlson and Magee, Ltd., of Waukegan, for appellants.
    Robert W. Brown, Jr., of Dunlap and Boyd, Ltd., of Libertyville, for ap-pellee. ^
   JUSTICE HOPF

delivered the opinion of the court:

The Mundelejn Board of Fire and Police Commissioners, as well •-§§,_the village Mundelein and its chief of police, appeal from the Lake"6u'urity circuit court’s reversal of the Board’s decision to discharge Gerard Kloss from the Mundelein Police Department. After a hearing, the commissioners of the Board found that Kloss should be discharged because he had violated certain provisions of the Board of Fire and Police Commissioners’ rules. Kloss appealed to the circuit court contending that the Board’s decision was against the manifest weight of the evidence. After reviewing the record and findings of the Board the circuit court reversed the Board’s decision, ordered Kloss reinstated, and awarded him back pay for the time he was off. The Board, the chief of police and the village of Mundelein appeal.

Kloss was charged with violating the Board’s rules. The substance of those charges was that on October 9, 1978, Kloss, while off duty, and in his apartment, yelled, kicked, screamed profanities and, most importantly, threatened to kill a police officer while aiming a gun at him.

The record reveals very little conflicting evidence about Kloss’ conduct. Kloss had been on the force since 1969, except for a period of time he was on disability for an on-the-job injury.

On the evening of the incident Kloss was at home in his apartment. His next door neighbor, Raymond Newman, was also a Munde-lein police officer and was also at home. When he heard a noise in the hallway Newman opened the door and recognized Kloss’ fiancee standing in the doorway. She was quite distraught and upset. After she calmed down she told Newman that Kloss might shoot himself. They returned to Kloss’ apartment but were unable to get in the door because Kloss shut the door on them. Kloss repeatedly asked to be left alone. During the times when the door was open Kloss appeared to Newman to be rational one moment and the next moment he would be screaming and swearing.

The police were called, and several police officers and paramedics quickly arrived on the scene. Sergeant Sindles testified that he attempted to open the door to the apartment but Kloss shut the door o»f him. Nonetheless the sergeant pushed the door open again and &aid he wanted to talk to Kloss. He saw Kloss holding one of his daughters in his left arm, wearing a bathrobe. Kloss repeatedly screamed at the sergeant, saying he should get out of his house or he would kill him. The sergeant kept approaching him. Kloss pulled a gun from the right hand pocket of his bathrobe and pointed it at the sergeant and again told him to get out of his apartment or he would kill hrai. The sergeant told Kloss he was going to talk to him and kepi' walking towards him when Kloss’ other daughter came running towards Kloss. Kloss put the gun back in his right hand pocket, picked up his daughter and, while holding both girls in his arms, turned, fils right"side to the sergeant and told him to take the gun. The :..ey-gc;>-c t'^k the gurx and handed it to someone behind him. "

After this incident Kloss’ moods continued to alternate between rational and violent. Ultimately he agreed to be taken to the hospital.

A number of other officers and paramedics who had been on the scene testified at trial. Of these, only the sergeant recalled Kloss’ threats to the sergeant, although other parts of that conversation were overheard.

Gerard Kloss testified that on the day of the incident he had been visited by his ex-wife in the early afternoon and had an argument with her about visitation and child custody. After she left, he and his fiancee obtained a baby sitter for the children and went out to price liquor for their upcoming wedding. They stopped at a number of taverns and Kloss remembered drinking about five beers.

It was the first time in two years that he had anything of an alcoholic nature to drink. His doctor had prescribed medication for his bleeding ulcers, and he testified he had taken that medication earlier in the day, prior to drinking. Kloss remembered very little of the evening in question but could remember waking up in the hospital. He indicated the combination of the prescription drugs and the beer made him ill.

As indicated, the Board found cause to discharge, but the circuit court reversed the Board’s decision and ordered Kloss reinstated with back pay and other benefits.

On appeal the Board of Fire and Police Commissioners and the other appellants contend that the trial court did not have jurisdiction to reverse the findings of the Board. The Board contends that the trial court did not have jurisdiction because the complaint and summons, as it was originally issued, was a mandamus action and the actual administrative review, summons and amended complaint for administrative review were not filed until long after 35 days from the date that the decision was served on Kloss.

The Administrative Review Act (hereinafter the Act) (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) applies to actions for judicial review of agency decisions and provides that judicial review must be sought within 35 days from the date that a copy of the decision is served on the party affected by the decision. Ill. Rev. Stat. 1977, ch. 110, par. 267.

In the case at bar, the decision of the Board was presented to Kloss on December 11, 1978. Kloss then filed his first complaint, 28 days later, on January 8, 1979. Personal service, rather than by registered mail, was made by the sheriff on both the police chief and the village clerk. The police chief was served on January 10 and the clerk served on January 19. Subsequently Kloss had the proper administrative review summons issued by the clerk. Contrary to the Board’s contention, we believe Kloss did exercise reasonable diligence to obtain service as required by Supreme Court Rule 103(b) (73 Ill. 2d R. 103(b)).

The Board contends that because the Kloss complaint did not specifically request judicial review of the Board’s decision and instead requested that Kloss be reinstated, it was, in effect, a writ of mandamus. This contention was also in the Board’s motion to dismiss the complaint. Having characterized the complaint as a writ of mandamus, the Board contends that no complaint for administrative review was filed within the 35-day period. An amended complaint for administrative review was filed by a new attorney on October 14,1980.

While the Act does set forth certain requirements for a complaint (Ill. Rev. Stat. 1977, ch. 110, par. 272(a)), there is no specific request for relief that must be made. The Act does not require that the specific words “administrative review” be included.

The Kloss complaint alleged that the Board’s decision was against the manifest weight of the evidence, was arbitrary and capricious and was without finding in fact or in law. It further requested that the court cause Kloss to be reinstated as patrolman. The complaint, however, makes no specific request for a mandamus.

The Board contends that the case of Klaren v. Board of Fire & Police Commissioners (1968), 99 Ill. App. 2d 356, 240 N.E.2d 535, is controlling and requires that this cause be dismissed for want of jurisdiction. Klaren, however, differs from the situation here. In Klaren, the Board entered a reviewable order and the affected party requested a second hearing from the Board. Only after the second hearing, and more than 35 days after entry of the first order, did the affected party petition for administrative review. Similarly, the case at bar is unlike Norris v. City of Aurora (1978), 64 Ill. App. 3d 748, 381 N.E.2d 996, where the 35-day requirement was held to be no bar to the addition of parties by an amended complaint.

The Administrative Review Act requires that the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.), including its provisions for appeal, be made applicable to proceedings under the Administrative Review Act. The Civil Practice Act allows a pleading to be changed at any time before a final judgment in order to enable the plaintiff to sustain the claim it intended to bring. (Ill. Rev. Stat. 1977, ch. 110, par. 33.) In sum, we believe that the pleadings were sufficient to preserve the question for review and that the trial court did have jurisdiction.

Having established that the trial court had jurisdiction, we address the Board’s contention that the trial court erred in finding that their decision was against the manifest weight of the evidence.

In Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 426 N.E.2d 885, a two-step procedure for review of an administrative agency’s decision was set forth. First it must be determined if the agency’s decision was contrary to the manifest weight of the evidence. In this regard it should be kept in mind that the findings and conclusions of the Board on questions of fact must be considered prima facie, true and correct. (Ill. Rev. Stat. 1977, ch. 110, par. 274.) On the other hand, if the record does not disclose evidence supporting the Board’s determination, a reviewing court must not hesitate to grant relief. (Basketfield v. Police Board (1974), 56 Ill. 2d 351, 359, 307 N.E.2d 371, 375.) In the case before us the testimony of Sergeant Sindles was sufficient evidence to sustain a finding that Kloss had threatened him with his weapon. Therefore, the Board’s findings of fact were not against the manifest weight of the evidence. Contrary to the trial court’s findings, we do not think there was conflicting evidence as to whether the sergeant was threatened with a weapon.

The second step in this analysis requires that the court determine if the findings of fact provide a sufficient basis for the agency’s conclusion that cause for discharge does or does not exist. (Ill. Rev. Stat. 1977, ch. 24, 10 — 2.1—17.) “Cause” has been defined as a

“ ‘substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.’ ” Kreiser v. Police Board (1977), 69 Ill. 2d 27, 30, 370 N.E.2d 511, 513.

The determination of whether or not “cause” for discharge was present is generally for the agency to determine. However, the agency’s determination may be overturned if the decision was unrelated to the requirements of service. (Department of Mental Health & Developmental Disabilities v. Civil Service Com. (1981), 85 Ill. 2d 547, 552, 426 N.E.2d 885.) We are of the opinion that Officer Kloss’ misconduct was unrelated to the requirements of service. Therefore, it did not constitute cause for discharge. We reach this conclusion after careful review of the circumstances of this case and the case law that discusses cause for discharge.

The cases which discuss police misconduct virtually all involve a public display of force. For example, in Flynn v. Board of Fire & Police Commissioners (1975), 33 Ill. App. 3d 394, 342 N.E.2d 298, an officer on a public street broke a car window of his ex-girlfriend while off duty and threatened her life. Similarly, in Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App. 3d 864, 278 N.E.2d 212, an off-duty patrolman knocked a man down outside of a tavern. Although it has been held that there is little distinction between an off-duty and an on-duty misconduct by a police officer (Davenport), the fact that an officer was off duty at the time of an infraction can be a factor in determining whether or not the conduct was related to the requirements of the service so that it constitutes statutory cause for dismissal. Tinner v. Police Board (1978), 62 Ill. App. 3d 204, 209, 378 N.E.2d 1166.

A recent First District case, Walsh v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 635, 431 N.E.2d 1099, involved an off-duty sergeant who was discharged from the force under circumstances similar to those in the case at bar. Walsh, while on a medical disability and under psychiatric care, called a friend and coworker, Sergeant Smith, and told him he was going to do himself in. Smith went to Walsh’s home and talked with him and Walsh’s wife. Ultimately, Walsh shot him in the face. After hearings Walsh was discharged from the force.

On appeal, the First District held that the maximum sanction of discharge was unwarranted. They found that Walsh’s conduct was a manifestation of the psychological problems for which he was on disability supervision. (Walsh v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 635, 639, 431 N.E.2d 1099.) Walsh’s case was remanded to the Commission for consideration of an alternative sanction to discharge. Although Kloss, in the case before us, was not on a disability pension at the time of his misconduct, Walsh is analogous to the situation before us.

The final contention posed is that the trial court erred in ordering Kloss reinstated and awarding him back pay subject to any just set-offs. All parties are in agreement that the trial court lacked the authority to order Kloss reinstated and award him back pay. The Administrative Review-Act (Ill. Rev. Stat. 1979, ch. 110, par. 274) sets forth the powers of the trial court. While the court can affirm or reverse a Board decision, we can find no authority for the trial court to order reinstatement without a Board hearing. Further, because the record contains no evidence regarding salary, back pay, benefits or set-offs, the court was without authority to enter an order in that regard. (Sola v. Clifford (1975), 29 Ill. App. 3d 233, 329 N.E.2d 869; Dorner v. Illinois Civil Service Com. (1980), 85 Ill. App. 3d 957, 407 N.E.2d 750.) The trial court lacked jurisdiction to order Kloss reinstated or to award him back wages.

As stated earlier, our review of the record indicates that Kloss’ misconduct was unrelated to the requirements of service and therefore did not constitute sufficient cause for discharge. It should be noted that this incident mars an otherwise unblemished career, and occurred while Kloss was off duty in his home reacting to family problems. Further, it is likely he was suffering the effects of a combination of alcohol and prescription drugs.

This matter is remanded with direction that the trial court remand the case to the Board for appropriate disciplinary action short of discharge.

Reversed and remanded, with instructions.

NASH, J., concurs.

JUSTICE REINHARD,

concurring in part and dissenting in part:

While I agree with the majority that the jurisdictional issues raised are without merit and that the decision of the Board of Fire and Police Commissioners of the village of Mundelein that plaintiff, Gerard Kloss, violated certain provisions of the Board’s rules was not against the manifest weight of the evidence, I dissent from that portion of the opinion which holds that Kloss’ misconduct did not constitute sufficient cause for discharge. Recently, our supreme court in Sutton v. Civil Service Com. (1982), 91 Ill. 2d 404, considered the role of the court when reviewing a decision of an administrative agency which found cause for discharge. In Sutton, the court stated:

“The question, though, is not whether this court would decide upon a more lenient sanction than discharge were it to determine initially what discipline would be appropriate. Nor is it whether this court would conclude in view of the mitigating circumstances suggested by Sutton that a different penalty would be more appropriate. The question is whether, in view of the circumstances presented, this court can say that the Civil Service Commission, in opting for discharge, acted unreasonably or arbitrarily or selected a type of discipline unrelated to the needs of the service.” (91 Ill. 2d 404, 411.)

From my review of the record, I am unable to conclude that the Board in discharging Kloss acted “unreasonably or arbitrarily or selected á type of discipline unrelated to the needs of the service.”

The Board found Kloss guilty of pointing a gun at Sergeant Sin-dles and threatening to kill him, and found him guilty of other serious misconduct, including kicking doors, fighting with police officers, and yelling and screaming profanities at police officers and others. Although Kloss was off-duty at the time of this incident, a police officer must exercise sound judgment and realize his responsibility to the department and the public at all times. (Davenport v. Board of Fire & Police Commissioners (1972), 2 Ill. App. 3d 864, 278 N.E.2d 212.) I consider Kloss’ display of a gun toward a superior officer and his fighting and resisting other officers under the circumstances a substantial shortcoming which constitutes sufficient cause for discharge. The majority finds Walsh v. Board of Fire & Police Commissioners (1981), 103 Ill. App. 3d 635, 431 N.E.2d 1099, appeal allowed (Docket No. 56217, May 28, 1982), 91 Ill. 2d 566, analogous. With all due respect, I find Walsh, which involved an officer who was on medical disability suspension at the time of the incident at issue, distinguishable factually and unpersuasive legally. In that case Walsh’s conduct was found by the appellate court to be a manifestation of the very psychological problems for which he was on disability suspension. Here Kloss was not on suspension, but merely off-duty. Moreover, the court in Walsh was without the benefit of our supreme court’s recent decision in Sutton v. Civil Service Com., which requires that substantial deference be given to the administrative agency’s decision to discharge. Kloss’ conduct was not an insubstantial instance of misconduct which has been held not to warrant discharge (see Kreiser v. Police Board (1977), 69 Ill. 2d 27, 370 N.E.2d 511; Fantozzi v. Board of Fire & Police Commissioners. (1963), 27 Ill. 2d 357, 189 N.E.2d 275; Humbles v. Board of Fire & Police Commissioners (1977), 53 Ill. App. 3d 731, 368 N.E.2d 1049), but constituted á serious incident involving physical and abusive conduct toward his fellow officers, a superior officer, and use of a weapon which all relate to his proper performance as a police officer. (See Jenkins v. University Civil Service Merit Board (1982), 106 Ill. App. 3d 215, 435 N.E.2d 804.) I would affirm the entire decision of the Board.