text:
      In re MARRIAGE OF DONNA WHITE SWEET, Petitioner-Appellee, and ROBERT A. WHITE, Respondent-Appellant.
    First District (2nd Division)
    No. 83—1307
    Opinion filed November 29, 1983.

      Robert H. Snow, Ltd., of Chicago, for appellant.
    Helen R. Rogan, of Chicago, for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

This case is before us for a second time following additional hearings mandated by our decision in In re Marriage of Sweet (1982), 104 Ill. App. 3d 738, 432 N.E.2d 1098, in which we directed that the June 23, 1981, custody order be vacated and necessary hearings conducted in order to establish a proper basis for a custodial award under section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1981, ch. 40, par. 610(b)).

The issues raised in the present appeal are whether the circuit court: made the required findings pursuant to section 610(b) of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 610(b)); made findings sufficiently supporting the order changing custody; and recognized a presumption in favor of the present custodian, the father, or exercised initial discretion in the modification proceedings which rendered the presumption nugatory.

The circumstances of this case are somewhat unique; a brief summary is required for a full understanding of its disposition. As revealed in In re Marriage of Sweet (1982), 104 Ill. App. 3d 738, 432 N.E.2d 1098, the mother, Donna, obtained a default divorce from Robert, the father, July 7, 1972, after four years of marriage. Sole custody of Bill, the only child of their marriage, then age 21/2, was awarded to Donna upon stipulation of the parties. No evidentiary hearings with respect to custody or fitness were then held. Each party remarried and other children were born to their new families.

In August 1977, Robert, then a career soldier in the United States Army, petitioned for custody of Bill upon the allegation that Donna and her present husband had no permanent place of residence; lived in a variety of different States and locations; interrupted Bill’s lifestyle and disrupted his school attendance. The Cook County Department of Supportive Services’ investigation report noted interviews with Robert, his present wife and his mother, set forth allegations of insufficient food, clothing, discipline, education and supervision while in Donna’s custody; concluded that Robert was a responsible person and found no economic or emotional limitations restricting him from having custody. The report noted that no direct information was available on either the custodial mother or her husband.

On December 15, 1977, without making findings with respect to section 610(b) of the Act, the circuit court awarded Robert custody and granted him the right and authority to take physical possession of Bill wherever he might be found. In February of 1978, Robert went to a South Carolina school which Bill attended, presented the principal with a copy of the court order, took Bill from school first to Fayet-teville, North Carolina, then to Ft. Sheridan, Illinois, and then to Karlsruhe, West Germany, where Robert was stationed.

Approximately one year later, in February of 1979, Donna filed what was then a section 72 petition (now section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1401)), and moved to vacate the December 15, 1977, order. The circuit court on August 27, 1979, pursuant to Donna’s motion, ordered Robert to bring Bill back to Chicago for visitation.

The Cook County Department of Supportive Services conducted a court-ordered medical and psychological examination of Bill on October 3, 1979. On that same day, the court interviewed him in camera. An evidentiary hearing on the section 72 petition was held on November 15, 1979, and the petition was denied by the circuit court. Bill’s visitation with Donna was. continued by order of court, however, until further notice. On February 22, 1980, Donna petitioned for a change of custody. Two evidentiary hearings were thereafter held, the first on March 12, 1981, on an amended petition, and the second on June 15, 1981.

A psychiatric report by Dr. June C. Frye, dated January 5, 1980, and filed with the circuit court on October 1, 1980, noted interviews with Donna and Bill. The report referred to a telephone conversation with a member of the Bremen Youth Commission from whom Bill was receiving psychotherapy. Dr. Frye concluded that Bill gave evidence of varied emotional disturbances and that his best interests would be served by allowing him to continue in his present situation with Donna. The report also noted that no interview was attainable with Robert and revealed inadequate information about both. Dr. Frye recommended that psychiatric evaluation of both parents be undertaken in order to determine in whose custody the boy’s interests will best be served. No followup psychiatric evaluation was made, however, and none appeared in the record.

On June 23, 1981, the order of December 15, 1977, was vacated and the provisions of the 1972 divorce decree were reinstated with respect to child custody. The circuit court asserted that it was considering the proceedings as a rehearing of the December 15, 1977, change of custody order. Again, no section 610(b) findings were then made. The first appeal proceeded from the June 23,1981, order.

After reversal and remand for purposes first above cited, a second circuit judge conducted the present hearings on Donna’s amended petition for change of custody. The hearings culminated in the order granting custody of Bill to Donna, entered May 6, 1983, from which the instant appeal is taken.

At the time of these hearings, Bill, now age 13, was living with his mother in Gilman, Illinois. He had lived with her for his entire life except for the 19-month period during which time he lived with his father during the latter’s period of Army service. A new Supportive Services investigation was ordered and a guardian ad litem and attorney was appointed for Bill by the circuit court. A social worker for the Department of Children and Family Services investigated Donna’s home in December 1982 and made two visits there. Donna’s eight-room house had a living room, dining room, kitchen, four bedrooms and a workshop. Bill’s bedroom was shared with his half brother. They slept in bunk beds. The furnishings were adequate.

The social worker observed that Bill and his half brother followed their mother’s directions, were appropriately dressed for their age, and were clean. Bill was well adjusted to the home, was part of the family, and was getting along with his siblings, his mother and stepfather. There was no sign of tension between them, but a lot of joking back and forth during which time Bill was polite, well-behaved and articulate for a child of his age. Disrupting his life at this age would be a serious matter, according to the social worker.

Through cross-examination, Robert’s attorney established that the social worker did not verify the employment history of Donna’s husband, but she stated it would have no effect on the report she filed. Before they moved to Gilman, Bill had trouble in a Posen, Illinois, school based upon a personality conflict with the teacher, relating to a racial integration problem in the school system there. He is doing well in the Gilman School which he now attends. The social worker found love prevalent in Donna’s home as far as the children and Bill were concerned. Since she did not investigate Robert’s home in North Carolina, she did not know whether there was lack of love in the father’s home for Bill nor anything about conditions there.

A similar study was made in North Carolina of Robert’s home; however, the North Carolina investigator did not testify.

Donna testified that she has two children by her present marriage, a boy and a girl who live at home with her and her present husband. A 27-year-old man also lives in the home. The latter has his own room, the girl has her own room and Bill and his half brother share a room by their own choosing. At the time of the present hearing, Bill had been living with her for almost three years. He was enrolled in a junior high school in seventh grade, where he was doing well. When Bill was brought back to her 19 months after Robert took custody, the child was skinny, his ribs were showing, he had a swollen belly, sores in his “hair” and scars on his back. At a clinic he was given medication for the sores. She was told that he was experiencing borderline malnutrition which required detailed feeding instructions so that he would not overeat.

Donna’s present husband was laid off from work in the past year and has worked only intermittently as a truck driver and at odd jobs. He now has the promise of a job as a truck driver. She sought and received approval for her husband and herself to be foster parents for mentally retarded adults and foster children. Although presently unemployed, she worked for a contractor for almost a year prior to the time Bill was returned to her from Germany. She decided not to work in order to take care of Bill and her other children. She is recovering from personal injuries she received in a recent accident. She presently derives her income from ADC plus food stamps which together amounts to over $700 per month. They rent the house for $100 per month and spend $400 for food, more or less. She is assisted in providing clothing for her children by her sisters; they trade clothes between them according to the needs of the individual children. The last time Bill visited Robert in North Carolina on Christmas, he came home crying about being beaten by his father. Bill told her many times that his father hit him.

Robert testified at the present hearing that he lives in Raeford, North Carolina, in a four-room house with his wife and three children. The house has two bedrooms. Bill would sleep in the living room if Robert were granted custody. Robert is studying auto body repair full-time. His present source of income is $114 per month for disability and $501 per month as Veterans Administration compensation while attending school. He received an honorable discharge from the Army and worked as a security guard from October 1980 to January 1981. If granted custody, Bill would sleep in the living room with his half brother. He and his wife occupy one bedroom and his two daughters occupy the second one. The half brother has bad case of asthma-bronchitis. If necessary, he and his wife would give up their bedroom for Bill and his half brother. The house is fairly crowded now. There is no furnace in the house and it is heated with a wood stove. They are seeking other, larger quarters. He last saw Bill on Christmas of 1981 and has not telephoned him. He has written to him but once and has not sent him greeting cards for Christmas or his birthday, and has sent him no presents. Robert denied ever having struck, kicked, slapped or threatened to kill Bill.

Bill testified that while living in Germany his father hit, slapped and kicked him. His paternal grandmother switched him with willow branches on his back and on his legs, which was confirmed by Robert’s testimony. His half brothers and sisters were also hit by his father and grandmother in the same manner. His step mother pulled his hair as she did the other children when she wanted something done. While in Germany he slept with his half brother Bobby who, almost every night, would either “poop or pee” in bed. Sheets would not be changed until the end of the week. When he visited his father in North Carolina in August of 1981, Robert struck, slapped and kicked him down 15 or 20 stairs, and again as he was lying on the floor, because he said that Bill had lied in court and that the next time he was there he would kill him. When he visited his father during Christmas vacation of that year, Robert kicked, hit and pushed him and again threatened to kill him. While visiting there, he did not have enough to eat. Although at the hearings following his return to the United States from Germany he stated that he wanted to live with his father in Germany, at the present hearings Bill expressed the desire to live with his mother Donna. He hated his father Robert.

Walter Soroka, court-appointed guardian ad litem and attorney for Bill, made a personal investigation of the circumstances surrounding the custodial issue presented here. He talked with Donna, Robert, and both grandmothers. He reviewed the reports of the Illinois Department of Children and Family Services and the North Carolina Department of Social Services and filed his own report with the court. Based upon 30 years of experience in legal practice of matrimonial law, he concluded that it would be detrimental to Bill’s psychological well-being to remove him from Donna’s custody. In talking with Bill at great length, he believed that although Robert is not totally inept, there were some indications of neglect, which included improper clothing and feeding. He also considered the antagonistic attitude Bill has toward Robert.

The physical surroundings of the father’s present home are totally wanting, humble, poor and crowded, according to Soroka. Based upon Bill’s testimony, there could be serious questions about his moral well-being if he lived with Robert. He knew of no evidence whereby Bill was told not to see his father or his paternal grandmother. Bill could have been influenced by his present environment or by things he observed while visiting his paternal grandmother during the same period of time in which the mother had custody. He asked Bill about abuse inflicted upon him by his father and paternal grandmother and saw a scar across Bill’s back which Bill said he received from a beating administered by his grandmother. Bill’s toes were curled up, which resulted from the fact that he had shoes which were too tight fitting and small during his stay in Germany.

The court in camera stated for the record that physical observation of Bill’s back revealed faded but noticeable marks and scars.

Following the hearing, the circuit court made observations and findings, including:

“2. That since the petition was filed prior to July 1, 1983, the governing law must be §610(b) prior to its [1982] amendment * * *
3. That *** Billy is presently in the possession and physical control of Donna White Sweet.
4. That the custodian, Robert White, has not agreed to the modification.
5. That although Billy has been integrated into the family of the petitioner, it was without the consent of the custodian.
6. That it would not be beneficial to Billy’s physical, mental, moral or emotional health to disrupt the child’s current living situation for the following reasons:
a) That he would be subjected to crowded living conditions in North Carolina.
b) That both Mr. White, and his mother admitted the switching of Billy as evidenced by the scars on Bill’s back.
c) That Billy expressed a strong desire to live with his mother.
d) That Billy is doing well in school and has made many friends near his present home.
7. That it is in the best interests of Billy that his custody be awarded to his natural mother, Donna White Sweet.”

By order, the court then awarded permanent care, custody, control and education of Billy to Donna, granting Robert reasonable ■ rights of visitation, and retaining jurisdiction for the purpose of enforcing the judgment.

I

At the threshold of our consideration of the issues here presented, it should be noted that section 610 of the Act was amended effective July 1, 1982. (Ill. Rev. Stat., 1982 Supp., ch. 40, par. 610(b).) That amendment changed the bases and required findings relative to modification of custody, principally by requiring findings to be based upon clear and convincing evidence and by eliminating the requirement that the child’s present environment be shown to “seriously endanger” his physical, mental, moral or emotional health. The effective date of the amendment thereby fell between the time the opinion in the first appeal herein was filed as modified, March 23, 1982, and the commencement of the first hearings in the circuit court on remand, which began July 30, 1982. Section 801(d) of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 801(d)) provides that “[i]n any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this Act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial and any subsequent trial ***.” Although section 801(d) is addressed to the Act itself, in our judgment it should be applied to amendments as well. No case has been cited or found which has applied the foregoing statutory provision to amendments, however an analysis of the policy underlying section 801(d) shows that the purpose of the provision, as suggested by the Commissioner’s Comments to the uniform law from which the provision was adopted, appears to be an effort to allow the correction on appeal or in a new trial of errors made in applying the law in effect at the time of the original hearing pursuant to that law and that changing the rules on appeal or at the new trial would be unfair to the party prejudiced by the error. 9A Uniform Laws Annotated sec. 502, at 219 (1979); see McArdle v. McArdle (1977), 55 Ill. App. 3d 829, 833, 370 N.E.2d 1309, cited with approval in West v. West (1979), 76 Ill. 2d 226, 233, 390 N.E.2d 880.

The mandate issued in the first appeal of the instant case required the circuit court to conduct necessary hearings in order to establish a proper basis for the custodial award under section 610(b) of the Act. In this instance, further “hearings” will be treated as equivalent to a new “trial” under section 801(d). (See Fulwider v. Fulwider (1972), 8 Ill. App. 3d 581, 583-84, 290 N.E.2d 264; Doran v. Doran (1972), 7 Ill. App. 3d 614, 616, 287 N.E.2d 731; Ready v. Ready (1961), 33 Ill. App. 2d 145, 159, 178 N.E.2d 650.) Accordingly, the statute to be applied to the facts and circumstances herein presented is section 610(b) as it existed prior to the July 1,1982, amendment.

II

Robert’s principal contentions in the present appeal are that the circuit court: failed to make necessary findings in order to change custody under section 610(b); neglected to give proper consideration to the presumption in favor of the “present” custodian that the legislature inferentially created in section 610(b) of the Act, citing In re Custody of Harne (1979), 77 Ill. 2d 414, 420-21, 396 N.E.2d 499; and vitiated the presumption by its treatment of the case as one involving an initial consideration of custody issues, rather than a modification thereof.

The unusual posture of this case reflects the difficulty with sustaining Robert’s position. Bill had been in custody of his mother for all his 13 years except for the 19 months during which he lived with his father in Germany. The extended visitation rights granted to the mother on September 30, 1979, culminating in the June 23, 1981, order restoring custody to Donna, and Bill’s continuing residence with Donna and her family during this four-year period of time to the present, demonstrates the futility of attempting to wring meaning from statutory language by applying it to circumstances which no longer exist, as in the instant case. Robert is not and has not been the actual “present” custodian for four years. Further, his having been named custodian in the December 15, 1977, change of custody order is under the same cloud of invalidity for lack of section 610(b) findings as the June 23, 1981, order restoring custody to Donna, from which he took the first appeal.

Exacerbating the situation is the fact that there never has been an evidentiary basis regarding Bill’s custody even in the original award resulting from the divorce granted on July 7, 1972, which was based solely upon stipulation of the parties rather than evidence. The circuit court in the present hearings well understood the complexity of the foregoing problems in treating the remandment as one which would both adhere to the requisites of section 610(b) and yet admit, of necessity, evidence generally relating to the best interests of Bill with respect to which findings never before had been made. None of the authorities relied upon by Robert addressed circumstances remotely resembling those detailed above, and provide little precedential guidance.

Examination of the evidence heard by the circuit court in the remandment proceedings and the court’s findings demonstrate that the policy of stability and continuity in the child’s custodial and environmental relationships were fulfilled (In re Custody of Harne (1979), 77 Ill. 2d 414, 421), through the order of May 6, 1983. The environment to which Bill would be subjected should custody be granted to Robert under the evidence considered by the circuit court on remandment shows that the court was concerned with much more than a mere preference for Donna as custodian or an effort to legitimize the orders of the prior trial judge as argued by Robert. First, Robert’s situation has changed significantly from what it was when custody was granted to him in 1977. For example, his occupation has changed; he is no longer living in Germany; he no longer earns the emoluments formerly available to him; he is a full-time student receiving government aid; and he maintains a considerable difference in living standards than those which existed at the time and prior to the 1977 change of custody order.

Second, although Robert appears to be arguing that the absence of the words “endangers seriously” from the written findings of the circuit court renders the balance of the findings a nullity, evidence of “serious endangerment” to Bill was indeed a factor considered during the court’s oral discourse and findings after rhetorically questioning “whether the court must find, collectively, danger to the child’s physical, mental, moral or emotional health, or any one of these singularly.” The court then found, in part, that “both *** [Robert and the paternal grandmother] admitted the grandmother's switching of Billy. In fact *** [Robert] testified that when one switch was broken he would go out and obtain another one. All of this [was] evidenced by the scars on Billy’s back.” Other instances of physical abuse are present in the record, although no findings were made specifically with respect to them. For example, Bill testified that he was struck, slapped and kicked down the stairs, and again as he was lying on the floor, after his return from Germany and while visiting Robert during the summer and again during Christmas vacation of 1981, about which Bill complained to Donna, although denied by Robert.

For the foregoing reasons, the judgment of the circuit court awarding custody to Donna with reasonable visitation rights to Robert must be affirmed. On oral argument, Robert’s counsel complained of the circuit court’s declination to establish a visitation schedule. The circuit court has retained jurisdiction to enforce its order and in the event the parties cannot agree to a reasonable visitation schedule between themselves, resort to further court intervention may become necessary.

Affirmed.

DOWNING, RJ., and PERLIN, J., concur.

      Although our original opinion cites section 610(b), the printed and published opinion mistakenly refers to section 619(b), which is nonexistent.

      Section 610(b) has again been amended by Public Act 82 — 1002, effective September 17, 1982, in a manner relating only to modification in cases of joint custody, an issue not involved in the instant case. Ill. Rev. Stat., 1982 Supp., ch. 40, par. 610(b).


source: Caselaw Access Project

author: JUSTICE McGLOON

license: Public Domain

text:
      In re MARRIAGE OF LINDA L. MOODY, Petitioner-Appellee, and JOHN MOODY, Respondent-Appellant.
    First District (1st Division)
    No. 82—2808
    Opinion filed December 5, 1983.

      Schaps & Goldberg, Ltd., of Chicago (Vincent F. Vitullo, of counsel), for appellant.
    Philip L. Mandell and Sigi M. Offenbach, both of Pitler and Mandell, of Chicago, for appellee.
   JUSTICE McGLOON

delivered the opinion of the court:

Respondent appeals from the judgment entered in a dissolution of marriage proceeding. On appeal, respondent contends that the trial court abused its discretion by (1) apportioning to him unexercised options to purchase stock; (2) classifying as marital property his contractual interest in real property; and (3) applying the criteria of section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(d)).

We affirm in part, reverse in part, and remand.

Petitioner and respondent were married on August 25, 1975. No children were born during the marriage. The parties separated in December 1979. Shortly thereafter, respondent was injured as a result of an automobile accident. Although respondent testified that his health was deteriorating as a result of the accident, he has not filed a personal injury or workers’ compensation claim to date.

In 1981, respondent earned $52,500 as a vice-president of Bally Manufacturing Corporation (Bally). Petitioner earned $11,500 from part-time employment as an optician.

On May 4, 1981, petitioner filed a petition for the dissolution of their marriage. The trial court entered an agreed order which awarded petitioner temporary support and divided the proceeds of a certain bank account equally between the parties. After a bifurcated hearing, a judgment dissolving their marriage was entered on August 26, 1982. In addition, the judgment classified the following assets as marital property and distributed them as follows: petitioner was awarded (1) the marital residence valued at $72,000, subject to a $33,500 mortgage; (2) a 1979 Oldsmobile automobile; (3) a Honda motorcycle; (4) a snowmobile; and (5) household furnishings. In addition to the above items, respondent was ordered to pay petitioner $30,000 in installments of $750 per month.

Respondent was awarded (1) all interest in stock options to purchase Bally’s stock below market value, valued at $25,700; (2) all rights to respondent’s profit-sharing account at Bally that had become vested, valued at $30,000; (3) the interest held by respondent in contract to purchase real estate located at 1812 Sprucewood, Lin-denhurst, Illinois (Sprucewood property), valued at $11,000; (4) a 1975 Ford automobile; (5) a Honda motorcycle; (6) a camper; (7) a boat and trailer; (8) various items of personal property; and (9) any and all rights that may arise out of a cause of action involving personal injuries sustained by respondent in the 1980 automobile accident.

First, respondent contends that it is inequitable to distribute to him unexercised options to purchase 3,000 shares of Bally common stock which the court valued at $25,700. Arguing that the trial court’s valuation is erroneous in that the options have no value until such time as they are exercised, he further contends that the trial court should retain jurisdiction over the case until the options are exercised or expire. We agree.

Respondent was the recipient of two stock options. The stock option agreements are contained in the record. One agreement, dated August 16, 1978, provides that respondent shall have the right to acquire 2,000 shares of Bally common stock at a price of $21.47 per share. The second agreement, dated March 27, 1980, grants respondent the right to purchase an additional 1,000 shares at $20.25 per share. The agreements, by their terms, limit respondent’s right to exercise the option to a specific percentage of the aggregate number of shares. This percentage increases by 20% each year until the option is fully vested four years and six months after the date of issuance. Both agreements provide that the options are nontransferable and expire five years and one month after issuance. Finally, the agreements provide that if respondent’s employment terminates, the options expire after a three-month period.

In valuing respondent’s right to exercise his option to purchase Bally stock, the trial court subtracted the cost of 3,000 shares, at the reduced option prices, from the price it would have cost respondent to acquire the same number of shares on the New York Stock Exchange. The court determined the latter price by taking judicial notice of the closing price ($29.20) at which Bally stock was traded on the market on June 6, 1982 (the day before the hearing), and multiplying that price by the aggregate number of shares subject to both agreements. The calculations performed determined the profit that respondent would realize if he were able to purchase 3,000 shares of Bally’s common stock at the price fixed by the company’s nonqualified stock option plan and sell them at the market value on June 6,1982.

The judgment for dissolution of marriage states that the option to purchase Bally stock below market value was property accumulated by the parties during the marriage. The court then allocated to respondent the various marital property listed above, including all interest and rights granted respondent pursuant to the stock option agreements.

The issue of whether potential future benefits arising out of one’s employment should be treated as marital property has been addressed by this court in several cases. (See In re Marriage of Evans (1981), 85 Ill. 2d 523, 426 N.E.2d 854, and the cases cited therein.) Our research has disclosed no cases which deal specifically with options to purchase stock granted to an employee as compensation for services he performed during the marriage. However, in Evans, the trial court awarded petitioner a one-half share in 527 “vested” shares of stock held by respondent in the employee’s investment program established by the employer-company. Respondent was awarded ownership of the other half of the 527 shares. The trial court refused to treat the additional stock in respondent’s investment account as marital property since the respondent’s receipt of those shares was contingent upon his continued employment. All rights to these “unvested” shares of stock were, nevertheless, awarded to respondent.

In reversing the trial court, a majority of the appellate court held that the shares of stock held in respondent’s investment program account represented “nonvested” rights susceptible to valuation and should have been classified as marital property for the purposes of a property division in a marriage dissolution proceeding. Justice Barry disagreed with the majority’s classification of the nonvested shares of stock as marital property. He reasoned that the respondent had no withdrawal rights in the stock and that receipt of said stock was contingent upon respondent’s continued employment. Although the non-vested shares of stock were admittedly a resource, Justice Barry concluded that they were contingent and speculative and therefore neither property nor marital property. He believed, however, that non-vested employee benefits should be treated as anticipated income and considered by the trial court in deciding whether to award maintenance.

The Illinois Supreme Court reversed the appellate court. The court initially considered the question of whether a contractual right to future income is “property” to be divided under section 503(c) of the Act. (Ill. Rev. Stat. 1979, ch. 40, par. 503(c).) In considering this question, the court commented on the problems associated with allocation of these rights:

“[T]he personal right of an employee to receive future payments from his employer is not susceptible to being divided in the same sense that real estate or personal property may be. Again, if the payment of benefits is contingent upon future events, such as the continuation of employment, a present award based on the discounted value of future payments to the employed spouse will prove excessive if the amount of benefits which he actually receives is less than the amount which was assumed.” (85 Ill. 2d 523, 528, 426 N.E.2d 854, 857.)

However, the case was ultimately disposed of on the grounds that the spouse seeking the apportionment failed to present sufficient evidence as to the value of the nonvested shares thereby making it impossible for the trial court to enlarge the award to petitioner. In so holding, the court stated:

“Where one spouse has acquired a right to potential future benefits through his employment there is no way in which the other spouse may be awarded some defined interest in those benefits as marital property without a determination of the value they have to the employed spouse.” 85 Ill. 2d 523, 529, 426 N.E .2d 854, 857.

This court has interpreted Evans as holding that an award of an interest in future benefits derived from one’s employment is inappropriate under section 503 (Ill. Rev. Stat. 1981, ch. 40, par. 503) where the evidence presented does not establish the present value of the benefits.

In this case, we note initially that it was improper for the trial court to take judicial notice of the price at which Bally stock was traded on June 6, 1982. (In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006.) Also, there is insufficient evidence to support the trial court’s valuation without reference to petitioner’s attorney’s opening statement, wherein the closing price of the stock on the New York Stock Exchange was .mentioned because petitioner failed to present sufficient other evidence.

Furthermore, the following factors actually make it impossible to value the options until such time as they are exercised. First, under the terms of the option agreements, the stock options are nontransferable and thus respondent is unable to realize any profit from a sale or an assignment of his interest under the agreements. Respondent, therefore, would have to exercise the options in order to realize any profit. If they expire without ever being exercised, they have no value whatsoever. Second, on the date of the hearing, only 1,600, rather than 3,000, shares were exercisable under the restrictions expressed in the agreements. Third, respondent presented evidence that his deteriorating health and lack of liquid capítol make it impossible for him to exercise the options without obtaining a loan. Respondent would be required to raise a total of $33,864 in order to exercise his rights under the agreements as of June 6, 1982. Finally, the margin requirements imposed by law restrict respondent from borrowing more than 50% of the full purchase price. Even if respondent were able to obtain a loan for that amount, he would have to raise almost $17,000 from his own sources. Given the above scenario, it is possible, if not probable, that respondent might never be able to exercise the options prior to the expiration dates of the purchase agreements.

Under the circumstances of the present case, we find that the stock options do not constitute property under section 503 until such time as they are exercised. The trial court erred in apportioning to respondent all interest and rights to the stock option agreements valued at $25,700. Respondent should retain his interests in the stock option agreements as his “separate property.” In re Marriage of Kund.it (1982), 107 Ill. App. 3d 310, 437 N.E.2d 777.

Accordingly, we remand this case to the trial court for reconsideration and apportionment of the marital property. We also direct the trial court to retain jurisdiction until such time as the options are exercised or expire. If and when the options are exercised, the trial court may at its discretion allocate an appropriate share of any profit realized from the transaction to each spouse.

Second, respondent contends the record does not support the trial court’s valuation of the Sprucewood property at $11,000. He further contends that it was an abuse of the trial court’s discretion to apportion to him as marital property his contractual interest in the property. We disagree.

On May 26, 1981, the parties entered into an agreed order which divided the proceeds of a certain bank account equally between them. Each party received approximately $6,000. Respondent testified that a portion of the proceeds was used to pay part of the initial down payment of $11,200. The total purchase price was $56,000. The initial closing occurred on October 2, 1981. The contract balance of $44,800 is payable in monthly installments of $471.85. Respondent testified that the property is rental property and that he receives rental payments of $471.85 which he applies to the contract balance.

We find that the record contains competent evidence to support the trial court’s valuation of the Sprucewood property. In re Marriage of Hyland (1981), 95 Ill. App. 3d 31, 419 N.E.2d 662.

We further find that the trial court did not err in classifying respondent’s interest in the Sprucewood property as marital property. Section 503(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(b)) provides that all property acquired by either spouse “after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed to be marital property.” The presumption is rebutted only where the evidence establishes that the entire property was acquired exclusively by one of the methods listed in the exception section of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(a)). (In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239.) In the instant case, respondent failed to rebut this presumption. We conclude that the trial court correctly classified respondent’s initial interest in the Sprucewood property valued at $11,000 as marital property.

In view of our disposition of the case, we need not address respondent’s final contention.

Judgment affirmed in part, reversed in part; cause remanded.

GOLDBERG and CAMPBELL, JJ., concur.


author: JUSTICE MEJDA

text:
    THE PEOPLE ex rel. NEIL F. HARTIGAN, Attorney General, Plaintiff-Appellant, v. MACLEAN HUNTER PUBLISHING CORPORATION et al., Defendants-Appellees.
    First District (5th Division)
    No. 83—456
    Opinion filed November 28, 1983.

      Neil F. Hartigan, Attorney General, of Springfield (Clifford L. Meacham and Peter W. Snyder, Assistant Attorneys General, of counsel), for appellant.
    Donald J. Duffy, Steven J. Harper, and Mark A. Orloff, all of Kirkland & Ellis, of Chicago, for appellees.
   JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, the People of the State of Illinois ex rel. Neil E Hartigan, Attorney General, appeals from the judgment of the circuit court dismissing with prejudice the amended complaint for failing to state a cause of action under the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121½, par. 261 et seq.). The issues presented for review are whether the circuit court erred in dismissing both counts of the amended complaint and whether the first amendment precludes the instant action. For the reasons which follow, we reverse the judgment of the circuit court.

Because the judgment was entered on the allowance of the motion to dismiss filed by defendants, Maclean Hunter Publishing Corporation and National Market Reports, Inc., all facts properly pleaded in the amended complaint must be taken as true for purposes of review. (See Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 187, 380 N.E.2d 790.) The standard of review of the allowance of a motion to dismiss is that “a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover.” (72 Ill. 2d 179, 187, 380 N.E.2d 790.) The amended complaint was in two counts. Count I alleged that defendants had violated the Illinois Consumer Fraud and Deceptive Business Practices Act by publishing, compiling and distributing a manual of vehicle pricing information entitled “Red Book.” The amended complaint contended that defendants have violated the act by falsely advertising that “Red Book” contains “official used car valuations,” that the information contained in “Red Book” is “complete,” “current,” “dependable,” “impartial,” “accurate,” and “reliable” and that “Red Book” provides “average finance,” “average wholesale,” and “average retail” values. The amended complaint also alleged that “Red Book” purports to be accurate for Illinois as well as 17 other States, but in fact reports inaccurate, unrealistically low, and misleading values when used by Illinois consumers. The amended complaint alleged additional violations of the act in the failure to base valuations on thorough studies of the relevant used car market, the failure to inform subscribers and the public that “Red Book” does not report actual market values, the failure to inform subscribers and the public that valuations reported in “Red Book” are merely subjective estimates, and the failure to compile and utilize sufficient information from which accurate vehicle valuation data can be derived. Count I concluded with a prayer for an injunction against the publication of “Red Book” and for other relief.

Count II charged defendants with violations of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1981, ch. 121½, par 311 et seq.), as incorporated by reference into the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1981, ch. 121½, par. 262). The asserted factual basis for the allegations of count II was the same conduct alleged in count I.

Section 2 of the Consumer Fraud and Deceptive Business Practices Act provides that:

“Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, or the use or employment of any practice described in Section 2 of the ‘Uniform Deceptive Trade Practices Act,’ *** in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby. In construing this section consideration shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act.” (Ill. Rev. Stat. 1981, ch. 121½, par. 262.)

Section 2 of the Uniform Deceptive Trade Practices Act provides in pertinent part that:

“A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he: * * *
(2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;
(3) causes likelihood of confusion or of misunderstanding as to affiliation, connection or association with or certification by another;
(4) uses deceptive representations or designations of geographic origin in connection with goods or services;
(5) represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have ***; * * *
(12) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
In order to prevail in an action under this Act, a plaintiff need not prove competition between the parties or actual confusion or misunderstanding.” (Ill. Rev. Stat. 1981, ch. 121½, par. 312.)

In granting the motion to dismiss the amended complaint, the circuit court held that the defendants are not in the used car trade and therefore their conduct does not violate the statute. The circuit court also stated that, if allowed to proceed, the instant action would raise “First Amendment implications.”

Opinion

The first issue for review is whether the complaint states a cause of action under the Consumer Fraud and Deceptive Business Practices Act (the Act). The threshold question in our analysis is whether the statute applies to the case sub judice. Defendants contend that the circuit court correctly held that defendants’ alleged misrepresentations are not acts in the conduct of their trade or commerce as publishers because “Red Book” does not advertise the sale of any particular cars. This analysis is not persuasive. Section 2 prohibits unfair and deceptive practices “in the conduct of any trade or commerce.” (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 121½, par. 262.) Section 1(f) defines “trade or commerce” as “the advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this State.” (Ill. Rev. Stat. 1981, ch. 121½, par. 261(f).) As our supreme court has indicated, “[t]his broad language evidences an intent that the Act have correspondingly broad applicability.” (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 284, 430 N.E.2d 1012.) We conclude that the business of publishing “Red Book” is a trade or commerce within the meaning of the Act because defendants advertise, sell and distribute “Red Book.” Defendants’ argument would have us focus on the used-car trade, in which defendants are not alleged to engage. However, the deceptions which plaintiff has averred pertain to defendants’ conduct in the business of publishing, advertising and distributing “Red Book.” Defendants’ argument is therefore inapposite to the instant inquiry.

Defendants rely on Scientific Manufacturing Co. v. FTC (3d Cir. 1941), 124 E2d 640, for the proposition that “the publication, sale and distribution of matter concerning an article of trade by a person not engaged or financially interested in commerce in that trade is not an unfair or deceptive act or practice ***.” (124 F.2d 640, 644.) Because of the importance which the trial court placed upon this case we will discuss it in detail.

“The Scientific Mfg. Co., which was in fact the alter ego of one Force, was engaged in the publication and sale of pamphlets. Force, a chemist and pharmacist, held unorthodox beliefs about the dangers inherent in the use of aluminium cooking utensils. In fact, he attributed to the use of aluminum utensils practically all the ills which beset mankind. These ideas he incorporated into pamphlets which were sold in interstate commerce. While the pamphlets were sold generally to the public, certain manufacturers and distributors of non-aluminum cooking utensils displayed an especial interest in Force’s theories. About 20% of these pamphlets came into the hands of these manufacturers and distributors who made use of the pamphlets to stimulate sales of their products. The Commission found that the representations made in the pamphlets were false, misleading and disparaging, and that through their sale Force was supplying an instrumentality by means of which uninformed and unscrupulous manufacturers and distributors were able to deceive members of the public, thereby inducing them to purchase non-aluminum utensils. The Commission concluded that the sale of Force’s pamphlets constituted unfair and deceptive acts and practices in commerce, and a cease and desist order was issued. Upon petition for review, this court set aside the order of the Commission, holding such order to be beyond the powers granted it under the Act.” (Globe Cardboard Novelty Co. v. FTC (3d Cir. 1951), 192 F.2d 444, 447.)

The court in Globe Cardboard found the Scientific case distinguishable in that “Force was in the business of disseminating ideas. His ideas, while unorthodox and no doubt false, were sincerely held by him. *** The use of the pamphlet for the sale of merchandise was a clear perversion of its primary function.” (192 F.2d 444, 447.) In the instant case, defendants’ advertising is not designed to promote ideas qua ideas, but rather is intended to further sales of “Red Book” by inducing prospective purchasers to believe that the information which “Red Book” contains is based on extensive market research of actual transactions. Thus, unlike the petitioner in Scientific defendants here derive a direct financial benefit from their allegedly deceptive advertising. Where the dissemination of ideas is so invested with a financial interest, the promulgation of those ideas may constitute an unfair or deceptive trade practice. For example, false representations concerning the authorship of various encyclopedia entries were held to be properly forbidden in FTC v. Standard Education Society (1937), 302 U.S. 112, 82 L. Ed. 141, 58 S. Ct. 113. The issue there, as here, was not the truth or falsity of the publication’s contents, but the truth or falsity of the publisher’s statements promoting those contents. Similarly, in FTC v. National Commission on Egg Nutrition (7th Cir. 1975), 517 F.2d 485, representations by a trade association calculated to allay fears concerning the high cholesterol content of eggs and thereby encourage the consumption of eggs, were held to be enjoin-able since the trade association was “organized for the profit of the egg industry, even though it pursues that profit indirectly.” (517 F.2d 485, 488.) We conclude that defendants’ advertisements of “Red Book” are not merely the expressions of ideas but are representations concerning the qualities of a product and promoting its use, and are consequently within the ambit of the Act. See 517 F.2d 485, 488.

Defendants next rely on section 10b of the Act, which provides in relevant part:

“Nothing in this Act shall apply to: * * *
(3) Acts done by the publisher, owner, agent, or employee of a newspaper, periodical or radio or television station in the publication or dissemination of an advertisement, when the owner, agent or employee did not have knowledge of the false, misleading or deceptive character of the advertisement, did not prepare the advertisement, or did not have a direct financial interest in the sale or distribution of the advertised product or service ***.” (Ill. Rev. Stat. 1981, ch. 121½, par. 270b (3).)

This exception appears intended to exempt from the application of the Act the transmission by the specified communications media of advertisements prepared by third parties. Moreover, by its own terms, the section does not apply to defendants because they clearly have a direct financial interest in the sale of “Red Book.”

The next issue for review is whether count I of the amended complaint states a cause of action under the Consumer Fraud and Deceptive Business Practices Act, without reference to the Uniform Deceptive Trade Practices Act.

“The Consumer Fraud Act provides an even broader consumer protection than does the common law action of fraud or negligent misrepresentation since the Act also prohibits any ‘deception’ or ‘false promise.’ [Citations.] It has been stated that there is a clear mandate from the legislature to the courts to use the Consumer Fraud Act to the utmost degree to eradicate all forms of deception and unfair business practices.” (Buzzard v. Bolger (1983), 117 Ill. App. 3d 887, 893, 453 N.E.2d 1129.)

Section 2 of the Consumer Fraud and Deceptive Business Practices Act declares unfair methods of competition and unfair or deceptive acts or practices to be unlawful. (Ill. Rev. Stat. 1981, ch. 121½, par. 262.) It is important to distinguish between the proscription against unfair competition (which has been held to codify the common law of unfair competition, see Brooks v. Midas-International Corp. (1977), 47 Ill. App. 3d 266, 361 N.E.2d 815) and the prohibition against unfair or deceptive acts or practices (which has been held to provide greater protection than the common law actions (see Buzzard v. Bolger (1983), 117 Ill. App. 3d 887, 893, 453 N.E.2d 1129)). The allegations in the instant case concern the latter type of conduct.

The acts which plaintiff alleges to violate the Act may be classified into two categories: allegations concerning the advertising of “Red Book” and allegations concerning the contents of “Red Book.” These two categories will be discussed in turn.

The amended complaint alleged that the following statements promulgated by defendants on behalf of “Red Book” are false: that “Red Book” contains “official used car valuations” which are “com-píete,” “dependable,” “impartial,” “accurate,” and “current”; that “Red Book” is the “recognized authority for car dealers, banks, finance companies and insurance companies”; and that “Red Book” provides “average” finance, wholesale and retail values. Our supreme court has indicated that

“the phrases ‘unfair methods of competition’ and ‘unfair *** acts or practices *** in the conduct of any trade or commerce,’ *** [have] a venerable history of interpretation and definition by the Federal courts, and now can be said to have a well-settled meaning in Federal trade-regulation law. ***
The terms ‘unfair practice’ and ‘unfair methods of competition’ are inherently insusceptible of precise definition. As we recognized when the issue of the vagueness of section 2 was first before us, effective regulation requires that the concept be flexible, defined on a case-by-case basis, ‘in view of the futility of attempting to anticipate and enumerate all the [unfair] methods’ and practices that fertile minds might devise.” (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 290, 430 N.E.2d 1012.)

The Act provides for reference to Federal decisions under the Federal Trade Commission Act (15 U.S.C. sec. 45 (1973)) (Ill. Rev. Stat. 1981, ch. 121½, par. 262) and the appellate court has applied the same standard utilized by the Federal courts to determine whether advertising is deceptive.

“Under section 5(a) [of the Federal Trade Commission Act (15 U.S.C. sec. 45 (1973))], an advertisement has been held to be deceptive on its face if it ‘creates the likelihood of deception or [has] the capacity to deceive.’ (Montgomery Ward & Co. v. Federal Trade Com. (7th Cir. 1967), 379 F.2d 666, 670.) ***
‘It is well established that the test to be used in interpreting advertising is the net impression that it is likely to make on the general populace. [Citations.] It is immaterial that a given phrase considered technically may be construed so as not to constitute a misrepresentation or that a deception is accomplished by innuendo rather than by affirmative misstatement. ***’ ” Williams v. Bruno Appliance & Furniture Mart, Inc. (1978), 62 Ill. App. 3d 219, 222, 379 N.E.2d 52 (“bait and switch” advertising held to violate section 2 of the Act).

In Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 429 N.E.2d 1267, allegations of false representations made by a realtor concerning the value of property placed for sale were held to state a cause of action under the Act. In Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill. 2d 179, 380 N.E.2d 790, a title insurance company’s alleged failure to disclose to purchasers of title insurance policies the payment of rebates to financial institutions was held to state a cause of action under the Act. In American Buyers Club of Mt. Vernon, Illinois, Inc. v. Honecker (1977), 46 Ill. App. 3d 252, 361 N.E.2d 1370, the court held that false representations that members of a buyers’ club could purchase a specified brand of sewing machine for a substantial discount were actionable under the Act. The thrust of these cases is that a cause of action is stated under the Act by an allegation of any false promise or deception, not limited to existing facts and without regard to the good or bad faith of the defendant in making the false statements (Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 494, 429 N.E.2d 1267); the focus of our inquiry is therefore the deceptive capacity of the statements at issue.

In the instant case, the defendants’ representations that “Red Book” is an “official” and “recognized authority,” if shown to be false, would constitute a deception within the meaning of the Act because these statements could mislead the public by creating a false impression of authority or expertise. (See Goodman v. FTC (9th Cir. 1957), 244 E2d 584, 594-95, and cases cited therein (use of word “guild” prohibited because of false impression that plaintiff was a “national” organization); National Hearing Aid Society v. Kentucky ex rel. Hancock (Ky. App. 1977), 551 S.W.2d 247 (“certified” held to be deceptive where course of study did not lead to state certification); see also In re Glacier Publishing International, Inc. (1963), 63 F.T.C. 432 (consent order) (“official” used to describe car buying guide found to be deceptive).) Similarly, defendants’ statements that the prices reported in “Red Book” are complete, dependable, impartial, accurate, and current, if proven false, violate the Act because of their capacity to deceive the public.

Defendants seek refuge in their characterization of these statements as mere puffing. But while

“ '*** [i]t is true that a bare and naked statement as to value is ordinarily deemed the opinion of the party making the representation. *** [SJuch statement may be a positive affirmation of a fact, intended as such by the party making it, and reasonably regarded as such by the party to whom it is made. When it is such, it is like any other representation of fact.’ ” Duhl v. Nash Realty Inc. (1981), 102 Ill. App. 3d 483, 489, 429 N.E.2d 1267, quoting Yeoman v. Sherry (1935), 10 Cal. App. 2d 567, 572, 52 P.2d 555, 557.

As our supreme court has indicated, “[statements of value are common examples, and where made in pursuance of a scheme on the part of the defendant to induce plaintiff to trade with him such statements constitute fraud and deceit.” (Buttitta v. Lawrence (1931), 346 Ill. 164, 173, 178 N.E. 390; see also In re Glacier Publishing International, Inc. (1963), 63 F.T.C. 432 (prices reported on basis of nonexistent surveys and tests characterized as deceptive).) Statements that reported prices are “average” values imply more than an assertion of opinion and purport to be statements of fact based on data from actual transactions. These statements, if shown to be false, are therefore deceptive and prohibited by the Act.

Assuming for the purposes of review that the allegations of the complaint are true, the failure to inform subscribers, users, and the public that “Red Book” does not report actual market values but rather reports subjective estimates of prices for automobiles is also deceptive because the actual nature of the reported prices is not otherwise apparent. We conclude that these allegations are sufficient to state a cause of action.

The second group of statements (which we have characterized as pertaining to the contents of “Red Book” rather than to the advertising thereof) presents a different analysis. The Attorney General asserts that the publication of inaccurate, undependable and unreliable valuations and the failure to base valuations on thorough studies of the used car market constitute violations of the Act. We cannot agree. If clearly labeled as an opinion a qualitative evaluation of worth is not a violation of the Act. The Act prohibits deception rather than error. Thus, the prices allegedly contained in “Red Book” are not in themselves deceptive, but become so only in light of defendants’ characterization of them as “official,” “average,” and “accurate,” etc. It follows therefrom that the publication of “Red Book” does not violate the Act. Accordingly, we agree with the circuit court that subparagraphs 24(d) and 24(e) of count I (relating to the alleged inaccuracy of reported prices) do not state a cause of action under the Act. However, the other allegations of count I, as indicated above, are sufficient to state a cause of action under the Act as to the advertising of “Red Book” and the characterization, in advertising and in the book itself, of prices as “average” values. We conclude therefore that the circuit court erred in dismissing count I of the amended complaint.

The next issue for review is whether count II of the amended complaint states a cause of action under the Consumer Fraud and Deceptive Business Practices Act when read in conjunction with the Uniform Deceptive Trade Practices Act (the “uniform act”) (Ill. Rev. Stat. 1981, ch. 121½, par. 311 et seq.). (See Ill. Rev. Stat. 1981, ch. 121½, par. 262.) Section 2 of the uniform act provides specifically that a person commits a deceptive trade practice when he causes likelihood of confusion or misunderstanding as to source, sponsorship, approval, certification of goods or services (Ill. Rev. Stat. 1981, ch. 121½, par. 312(2)), affiliation, connection, or association with other parties (Ill. Rev. Stat. 1981, ch. 121½, par. 312(3)). The allegation that defendants falsely advertise “Red Book” to be “official” and “recognized” authority is sufficient to state a cause of action under these subsections. Subsection 2(5) of the uniform act declares that a representation that goods or services have characteristics, benefits or uses, inter alia, that they do not have, is a deceptive trade practice. (Ill. Rev. Stat. 1981, ch. 121½, par. 312(5).) The allegations that defendants falsely characterized “Red Book’s” car evaluations as complete, current, impartial, accurate, dependable and average values are sufficient to state a cause of action under this subsection. We need not determine whether this subsection also prohibits the defendants’ alleged failure to inform the public and subscribers that “Red Book” does not report actual market values but only reports subjective estimates of value as we find this allegation to state a cause of action under subsection 12, which prohibits “other conduct which similarly creates a likelihood of confusion or of misunderstanding.” (Ill. Rev. Stat. 1981, ch. 121½, par. 312(12).) “ ' * * * Under this section, courts are free to enjoin any conduct which creates a likelihood of confusion or of misunderstanding, even though the conduct in question is not explicitly covered by the other sections of the act.’ ” (American Buyers Club of Mt. Vernon, Illinois, Inc. v. Honecker (1977), 46 Ill. App. 3d 252, 258, 361 N.E.2d 1370, quoting Ill. Ann. Stat., ch. 121½, par. 312, Illinois Notes (Smith-Hurd Supp. 1976-77).) Our conclusion that the prices and values contained in “Red Book” are not deceptive in themselves mandates the conclusion that subparagraphs 24(d) and (e) of count I (incorporated by reference into count II) do not state a cause of action under the uniform act. As indicated, however, the other allegations are sufficient to state a cause of action under the uniform act and we accordingly reverse the circuit court’s dismissal of count II of the amended complaint.

The final issue for our review is whether our interpretation of the relevant statutes is inconsistent with the first amendment. The supreme court has stated that “[i]n recent years it has been recognized that even ‘purely commercial’ speech is entitled to a limited degree of first amendment protection. (Bigelow v. Virginia (1975), 421 U.S. 809, 44 L. Ed. 2d 600, 95 S. Ct. 2222; Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817.) However, the Supreme Court has repeatedly recognized that the first amendment is not a bar to State regulation prohibiting false, misleading or deceptive commercial speech.” (Scott v. Association for Childbirth at Home, International (1981), 88 Ill. 2d 279, 287, 430 N.E.2d 1012.) As we have already noted, it is only the false and misleading statements of defendants which the statutes prohibit. We accordingly find no first amendment impediment to the instant action.

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

Reversed.

LORENZ and SULLIVAN, JJ., concur.

      We recognize that consent orders are not as authoritative as adjudications, but they are not without precedential value. (See FTC v. Mandel Brothers, Inc. (1959), 359 U.S. 385. 391. 3 L. Ed. 2d 893, 898, 79 S. Ct. 818, 823.


author: JUSTICE REINHARD

text:
      In re MARRIAGE OF HAROLD PICK, Petitioner-Appellee, and DOLORES PICK, Respondent-Appellant.
    Second District
    No. 82—1029
    Opinion filed December 7, 1983.

      Roger A. White & Associates, Ltd., of Lake Bluff, for appellant.
    Berle L. Schwartz and Andi C. Goldine, both of Highland Park, and Jerome Marvin Kaplan and Linda S. Kagan, both of Chicago, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

Respondent, Dolores Pick (Dolores), appeals from a trial court order, which dismissed her two petitions seeking rules to show cause why petitioner, Harold Pick (Harold), should not be held in contempt of court. She also appeals from the trial court’s entry of a judgment for $100 against her, in Harold’s favor, for wrongful filing of these petitions.

The petitions alleged that Harold had violated an ex parte temporary restraining order (TRO). This TRO prohibited Harold from withdrawing funds from a certain bank and from a certain cash management fund. In its order of dismissal, the trial court found that Harold’s alleged violations of the TRO occurred more than 10 days after the issuance of the TRO. The trial court, therefore, found that the TRO had expired as a matter of law before the time of the alleged violations.

No final judgment has been entered in the dissolution of marriage proceeding. This appeal is only from the dismissal of the petitions for rules to show cause in the contempt action, which was collateral to the dissolution proceeding.

Dolores raises the following issues on appeal: (1) whether the 10-day time limit for a TRO issued without notice required by section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 101) applies to a TRO issued without notice under section 501 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 501), and (2) if the 10-day limit does not apply, whether the judgment for $100 entered against her should be reversed.

On July 8, 1982, Harold filed a petition seeking a dissolution of the parties’ marriage. On July 14, 1982, Dolores filed a petition for a TRO seeking, inter alia, to restrain Harold from withdrawing any funds from an E.F. Hutton cash management fund and from cashing a Capital Bank of Chicago certificate of deposit. On that same day, the trial court issued a TRO restraining Harold from withdrawing or using these funds. The parties do not dispute that this TRO was issued without notice being given to Harold. On August 5, 1982, the trial court entered an order in which it stated, inter alia, that “the previous restraining order is still in full force and effect.”

On October 26, 1982, Dolores filed a petition for a rule to show cause against Harold alleging that on July 26, 1982, he obtained release of funds from the E.F. Hutton account in violation of the TRO. On November 1, 1982, Dolores filed a second petition for a rule to show cause against Harold alleging that he withdrew money on July 13, 1982, and on July 27, 1982, from the Madison Bank & Trust Company. No explanation is provided for the inconsistency between the TRO’s language restraining withdrawal of funds from the Capital Bank and Dolores’ petition, based on the TRO, concerning funds withdrawn from the Madison Bank. The parties do not discuss this inconsistency in their briefs.

On November 17, 1982, Dolores was allowed to amend the second petition on its face by changing the dates of the alleged withdrawals to July 15, 1982, and July 21, 1982. Dolores withdrew these amendments on November 18, 1982, and returned to the original dates of July 13, 1982, and July 27, 1982. No argument is presented by the parties on appeal concerning the fact that the first withdrawal is alleged to have occurred before the date that the TRO was issued.

On November 8, 1982, Harold filed a response to Dolores’ petition for a rule to show cause. In argument on the petition, Harold maintained that the alleged violations occurred more than 10 days after the issuance of the TRO and, therefore, that it had expired prior to the alleged violations. In its order dismissing the two petitions for rules to show cause the trial court found that the TRO had expired 10 days after issuance, that the transfers complained of from the two accounts had occurred more than 10 days after the issuance of the TRO, and that no application to extend the TRO had been made prior to the acts complained of. The court also entered judgment against Dolores for $100 for the wrongful filing of the two petitions. The order further provided that there was no just reason to deny or delay enforcement or appeal of the order.

Dolores contends on appeal that a TRO issued without notice in a dissolution of marriage proceeding is not subject to the 10-day limitation on TROs issued without notice imposed by section 11 — 101 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 101.) She maintains that section 501 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 501) is the sole statute governing the issuance of TROs in dissolution cases. She argues that the legislature intended that a TRO issued without notice in a dissolution proceeding would be controlled by section 501 and would be in effect until final judgment, unless dissolved upon the motion of the party restrained. Thus, she contends that section 11 — 101 is inapplicable to a TRO issued without notice in a dissolution case.

This court held in Melvin v. Melvin (1968), 94 Ill. App. 2d 403, 236 N.E.2d 913 (abstract of opinion), that the Injunction Act (which included the predecessor of section 11 — 101) applied to divorce cases in the same manner that it applied to other civil cases. Although the Divorce Act did not contain a provision allowing the issuance of a TRO to prohibit a spouse from transferring property during the pendency of the action, and although the Divorce Act has now been superceded by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 101 et seq.), we are not persuaded that the legislature intended to exempt TROs issued without notice in dissolution proceedings from the time limitations of the old Injunction Act, which are not contained in section 11 — 101.

As the Historical and Practice Notes to section 501 of the Illinois Marriage and Dissolution of Marriage Act state, this section “*** is derived from section 304 of the Uniform Marriage and Divorce Act, but its provisions in general reflect prior law as it was codified in the former Divorce Act ***. It also represents a codification of case law on temporary relief arising in other contexts.” (Ill. Ann. Stat., ch. 40, par. 501, Historical and Practice Notes, at 376 (Smith-Hurd 1980).) The notes further comment that “[a] temporary restraining order issued without notice expires within a period not to exceed ten days after issuance unless it is extended by the court. Ill. Rev. Stat. ch. 69, par. 3 — 1. See also section 410 [of the Illinois Marriage and Dissolution of Marriage Act].” (Ill. Ann. Stat., ch. 40, par. 501, Historical and Practice Notes, at 377 (Smith-Hurd 1980).) Thus, as the Historical and Practice Notes reflect, it is apparent that a TRO issued without notice in a dissolution of marriage proceeding is subject to the time limitation provisions of section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 101) in the same manner as TROs issued without notice in other types of cases are subject to those provisions. See Melvin v. Melvin (1968), 94 Ill. App. 2d 403, 236 N.E.2d 913 (abstract).

Dolores maintains, however, that section 11 — 101 does not apply here because it is in conflict with section 501. She contends that because section 501 deals specifically with TROs in dissolution cases, that it controls over section 11 — 101, which applies generally to the issuance of TROs.

While it is true that a specific statutory provision controls over a general provision on the same matter (Sierra Club v. Kenney (1981), 88 Ill. 2d 110, 126, 429 N.E.2d 1214; McCann v. Lisle-Woodridge Fire Protection District (1983), 115 Ill. App. 3d 702, 711, 450 N.E.2d 1311), it is likewise true that when two statutes relate to the same subject matter they should be construed harmoniously where possible. (Jackson v. H. Frank Olds, Inc. (1978), 65 Ill. App. 3d 571, 578, 382 N.E.2d 550.) Section 501 provides, in part, that:

“In all proceedings under this Act, temporary relief shall be as follows:
(a) Either party may move for:
* * *
(2) a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:
(i) restraining any person from transferring, encumbering, concealing or otherwise disposing of any property except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party and his attorney of any proposed extraordinary expenditures made after the order is issued; * * *
(b) the court may issue a temporary restraining order without requiring notice to the other party only if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury will result to the moving party if no order is issued until the time for responding has elapsed.” (Ill. Rev. Stat. 1981, ch. 40, par. 501.)

Section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 101) provides, inter alia, that:

“Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk’s office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period.”

The term “temporary restraining order” was written into the Injunction Act by the legislature in a new section 3 — 1 in 1967. (Stocker Hinge Manufacturing Co. v. Darnel Industries, Inc. (1983), 94 Ill. 2d 535, 541, 447 N.E.2d 288.) Prior to that time, the terms “restraining order,” “preliminary injunction,” “temporary injunction,” “interlocutory injunction,” and “interlocutory order” had been used interchangeably. (94 Ill. 2d 535, 541, 447 N.E.2d 288.) Thus, the legislature applied the term “temporary restraining order” to a specific type of relief, the purpose of which is to allow the trial court to preserve the status quo pending a hearing to determine whether it should grant a preliminary injunction. (94 Ill. 2d 535, 541, 447 N.E.2d 288.) Section 3 — 1 of the Injunction Act was the predecessor of section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11— 101).

The legislature specifically chose to use the term “temporary restraining order” in section 501 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 501). We conclude, therefore, that section 11 — 101 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 11 — 101) and section 501 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 501), when they use the term “temporary restraining order,” are describing the same type of relief.

“Statutes which relate to the same thing or to the same subject or object are in pari materia, and should be construed together as though they were one statute, even though enacted at different times.” (Spring Hill Cemetery v. Ryan (1960), 20 Ill. 2d 608, 615, 170 N.E.2d 619; see also Doran v. Department of Labor (1983), 116 Ill. App. 3d 471, 475, 452 N.E.2d 118.) Because they relate to the same type of relief, section 11 — 101 and section 501 are in pari materia.

Where two acts in pari materia are construed together and one of them contains provisions omitted from the other, the omitted provisions will be applied in a proceeding under the act not containing such provisions, where not inconsistent with the purposes of the act. (People ex rel. Killeen v. Kankakee School District No. 11 (1971), 48 Ill. 2d 419, 422-23, 270 N.E.2d 36.) Here, section 11 — 101 contains specific language limiting a TRO without notice to 10 days duration. Section 501 does not contain this specific language. Reading the two statutes in pari materia, the 10-day limit will apply to TROs entered under section 501 unless such an application would be inconsistent with the purposes of the Illinois Marriage and Dissolution of Marriage Act.

The purposes of the Illinois Marriage and Dissolution of Marriage Act are set out in section 102 of that act. (Ill. Rev. Stat. 1981, ch. 40, par. 102.) One of the professed purposes of that act is to “mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.” (Ill. Rev. Stat. 1981, ch. 40, par. 102(4).) The issuance of a TRO without notice is not favored as it is a drastic remedy, which is only appropriate under the most extreme circumstances. (Geesbreght v. Geesbreght (1978), 63 Ill. App. 3d 37, 42, 379 N.E.2d 738; cf. Board of Education v. Parlor (1981), 85 Ill. 2d 397, 401, 424 N.E.2d 1152.) Because this is a drastic remedy, with potential harm to the party restrained, it is consistent with the purpose of mitigating harm to the spouses to have the statutory safeguard of the 10-day limit apply to a TRO issued without notice under section 501. Thus, the 10-day limit for a TRO issued without notice imposed by section 11 — 101 applies to a TRO issued without notice under section 501, because section 11 — 101 and section 501 are in pari materia and because the 10-day limit is not inconsistent with the purposes of the Illinois Marriage and Dissolution of Marriage Act. See People ex rel. Killeen v. Kankakee School District No. 11 (1971), 48 Ill. 2d 419, 422-23, 270 N.E.2d 36.

Dolores also argues that section 501(c) evinces a legislative intent not to subject a TRO issued without notice under section 501 to the 10-day limitation. Section 501(c) provides that:

“A response hereunder may be filed within 21 days after service of notice of motion or at the time specified in the temporary restraining order.” (Ill. Rev. Stat. 1981, ch. 40, par. 501(c).)

Dolores maintains that if a TRO expires within 10 days then this provision is illogical because there would be nothing to respond to at the end of 21 days. Thus, she concludes that the legislature intended a TRO to be in effect until final judgment unless dissolved on motion of the party restrained. She contends that this motion to dissolve must be made within 21 days unless the court specifies some other time in the TRO.

Dolores’ reliance on the section 501(c) provision that a response may be filed within a 21-day period after service of notice of motion is misplaced. The plain meaning of the words “after service of notice of motion” in section 501(c) requires that “notice of motion” be served in order for this response period to apply. No “notice of motion” is served when a TRO without notice is obtained. The party restrained is served with the TRO, not with notice that a motion for a TRO has been filed. Thus, the language Dolores relies on has no application to TROs issued without notice, and therefore, cannot be construed to demonstrate a legislative intent to make such TROs unlimited in duration.

When a TRO is issued without notice in a dissolution case, the court may specify a time to respond to the TRO in the TRO itself. (See Ill. Rev. Stat. 1981, ch. 40, par. 501(c).) This time would naturally be within 10 days since the TRO would have expired on its own after 10 days unless it had been extended by the court under the requirements of section 11 — 101. We believe this was the intent of the legislature when it provided in section 501(c) that “[a] response hereunder may be filed *** at the time specified in the temporary restraining order.” Had the legislature intended TROs without notice to extend beyond 10 days in contravention of section 11 — 101 and established case law, it could have expressly so provided.

Dolores additionally argues that the fact that the litigants in a dissolution proceeding are husband and wife supports a legislative intent not to apply a time limitation to a TRO issued without notice in a dissolution action. While this fact may be a basis on which the legislature could make such a distinction, nothing in section 501 indicates that the legislature did make such a distinction. Rather, as noted above, section 501 and section 11 — 101 are in pari materia and the limitations of section 11 — 101 apply to TROs issued without notice in dissolution cases.

Dolores further contends in her brief that certain differences in language in section 501 and section 11 — 101 demonstrate that the legislature intended it to be more difficult to obtain a TRO under section 11 — 101 than in dissolution cases under section 501. She maintains that this supports her claim that the 10-day limit does not apply to TROs issued without notice in dissolution cases.

While it is true that the two statutes use somewhat different language to describe the necessary requirements in the affidavit to justify issuance of a TRO without notice, the language is substantially similar. Further, even if these changes in language were intended to alter the standard for granting a TRO without notice, they do not affect the in pari materia reading of section 11 — 101 and section 501 since both statutes cover the same subject. (See Spring Hill Cemetery v. Ryan (1960), 20 Ill. 2d 608, 615, 170 N.E.2d 619.) As noted above, such a reading results in the application of the 10-day limit to TRO issued without notice in a dissolution case. Nothing in section 501 indicates an intention to alter this 10-day requirement.

The trial court dismissed Dolores’ petitions for rules to show cause because the alleged violations of the TRO occurred more than 10 days after its issuance. The trial court found that its order of August 5, 1982, which purported to affirm that the TRO was still in effect, was without force since the TRO had expired prior to August 5, 1982. Since we hold that a TRO issued without notice in a dissolution case is subject to the 10-day limit required by section 11 — 101, we affirm the trial court’s order dismissing the petitions because the TRO had expired prior to the alleged violations.

Dolores also argues in her appellate brief that if this court were to hold that the TRO had not expired at the time of the alleged violations, that we should consider whether the judgment for $100 entered against her for wrongful filing of the petitions for rules to show cause was proper. Dolores concedes in her brief that the judgment would be proper if the TRO had expired. Since we hold that the TRO had expired, we need not further address the propriety of the judgment.

For the foregoing reasons, the order and judgment of the circuit court of Lake County are affirmed.

Affirmed.

NASH and LINDBERG, JJ., concur.