author: Mr. JUSTICE O’CONNOR

text:
      In re MARRIAGE OF JOHN H. CARLSON, Petitioner-Appellant, and JANIS L. CARLSON, Respondent-Appellee.
    First District (1st Division)
    No. 80-1506
    Opinion filed November 9, 1981.

      Jerome A. DePalma, Richard J. Belmonte, and Scott B. Zolke, all of Chicago, for appellant.

      Jacobs, Camodeca & Timpone, of Chicago (William R. Jacobs, II, and Jerome Marvin Kaplan, of counsel), for appellee.
   Mr. JUSTICE O’CONNOR

delivered the opinion of the court:

Petitioner John H. Carlson appeals from a judgment partially vacating a judgment of dissolution of marriage pursuant to section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 72.) The judgment of dissolution incorporated a written separation agreement which provided for division of the parties’ property and award of custody of the parties’ two minor children to petitioner. The court modified the prior judgment by declaring null and void the marital settlement and entering a temporary order allowing for joint custody of the minor children and transferring physical custody of the children to respondent Janis L. Carlson.

On appeal, petitioner contends that (1) respondent was estopped to attack the validity of the separation agreement; (2) the trial court erred in determining that petitioner coerced, compelled and induced respondent to enter into the separation agreement because (a) the trial court’s finding of inducement and coercion was not supported by clear and convincing evidence, and (b) the separation agreement was not unconscionable; (3) petitioner’s counsel was improperly examined as a witness under section 60 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60); and (4) the trial court erred in ordering the transfer of the physical custody of the parties’ two minor children to respondent.

Petitioner and respondent were married on August 3, 1974. The parties’ first child was born on December 30,1975; the second, on June 21, 1977. For some time prior to May of 1979, the parties began experiencing a considerable amount of difficulty with their marriage. They ceased sleeping together as husband and wife on March 1,1979. In May of 1979, petitioner sought marriage counseling, in which respondent refused to take part.

Shortly thereafter petitioner employed a private detective firm. During the Memorial Day weekend, respondent left the marital residence located in South Holland, Illinois, and went to Bureau, Illinois. During that weekend, respondent engaged in sexual relations with the man she later married.

Upon respondent’s return to the marital home, she consulted an attorney. On June 12,1979, respondent executed a petition for dissolution of marriage. On or about June 15,1979, respondent informed petitioner of her meeting with the attorney. After being so informed, petitioner asked respondent not to file for marital dissolution.

On June 18, 1979, petitioner received a telephone call from respondent’s foster father, Reverend Ronald Brown. The Reverend Brown had been informed by Debbie Brown, his daughter, that respondent was having an affair with another man. During the telephone conversation petitioner revealed that he had employed detectives and had been advised that respondent was involved with another man.

On July 3,1979, respondent’s attorney filed on behalf of respondent an action for marital dissolution. Petitioner was served with summons on July 10, 1979. Respondent had discharged her attorney sometime in the early part of July, unaware that a case had been filed on her behalf. The case was subsequently dismissed on July 24, 1979.

On July 14, 1979, the parties met at the marital home with the Reverend and Mrs. Brown, and with petitioner’s father and brother. Reverend Brown testified that during that meeting both petitioner and petitioner’s father stated that, based upon the evidence they had against respondent, they could take the children from her and leave her with nothing. Respondent testified that at the meeting on July 14, 1979, petitioner told her that she did not deserve the children, that she was a tramp, that she had sinned against him, that she was a “lousy” mother, that he would take the children away from her no matter what he had to do, leave her with nothing and put her in the streets where she belonged. She testified that petitioner made continuous threats that he would take the children away from her and either put them in a foster home or take them to Sweden. She was told by her husband that his father’s relatives would be more than happy to raise the children in Sweden.

The following day, July 15, 1979, respondent stated that she was leaving to be with the man she subsequently married. Shortly thereafter petitioner retained attorney Jerome DePalma. On July 27,1979, petitioner and respondent went to DePalma’s office. Petitioner testified that he introduced respondent to DePalma and stated that the parties had come to an agreement and that they wanted to dissolve their marriage. He testified that respondent did not say very much and that she said nothing specific. Petitioner testified that DePalma inquired as to the nature of the property settlement they agreed upon. Petitioner testified that respondent had nothing to say relative to the agreement. Petitioner explained to DePalma that the parties had reached an agreement as to specifics with regard to their marital property. Respondent testified that prior to going to DePalma’s office the first time she did not have any settlement discussions with petitioner. She also stated that when she went to De-Palma’s office for the first time she had no recollection of any discussions which occurred in that office.

The parties returned to DePalma’s office on August 2,1979. DePalma presented to the parties a property settlement, a petition for dissolution, an answer and a quit-claim deed transferring respondent’s interest in the marital home to petitioner. As respondent read these documents, DePalma read aloud. After stating that she understood the terms of the pro se appearance, answer, property settlement and quit-claim deed, respondent signed each document. Respondent also executed a letter stating that DePalma was not her attorney, that she understood the importance of having counsel to protect her interest, but that she did not desire to retain her own attorney. Respondent was requested to and did read this letter, stating that she understood its contents. DePalma testified that he did not advise respondent that the division of marital property was not related to marital misconduct. Under the terms of the agreement, petitioner was to be awarded custody of the parties’ two children, the marital home and the parties’ 1975 Ford Torino automobile. Respondent was to be awarded certain household items and $55 per week for 16 weeks.

Respondent testified that while she was in DePalma’s office papers were handed to her and she was asked to read them. She stated that she was given only two minutes to look them over and handed them back. She was not aware that she was being charged with adultery. She testified that she had no recollection of signing a deed to the property at the time of the meeting. She stated that the total length of time in the office was not more than 20 minutes. She was not given nor did she take any documents with her when she left. She never received any mail from DePalma thereafter. Respondent also testified that in the summer of 1979 petitioner stated that the custody of the children would be returned to her after she set up housekeeping and obtained a job.

DePalma testified that he mailed a copy of the judgment of dissolution of marriage to respondent at the address in South Holland, Illinois. Respondent testified that she first saw a copy of the judgment of dissolution of marriage when it was given to her by petitioner in November of 1979.

Mildred Dugan testified that she had known respondent since birth. She had an opportunity to observe respondent in relation to the parties’ two children for a period of two years prior to the separation of the parties and stated she observed that the children always seemed to be well taken care of and were always well-dressed. They looked as though they were well nourished. When respondent came to visit her, she always brought well-prepared food for the children. When the children were small, she would bring juice and baby food and prepare the food in Dugan’s home. Dugan stated that in her opinion respondent was a good mother who was always thoughtful of her children, over-protective of them, and never neglected them. The Reverend Brown testified that respondent was not neglectful of the children. However, petitioner testified that respondent was not a fit and proper mother.

The trial court found that petitioner had coerced and induced respondent to enter into the separation agreement. The court also found that the agreement was unconscionable. The court modified the prior judgment by declaring null and void the marital settlement and entering a temporary order allowing for joint custody of the minor children and transferred physical custody of the children to respondent. Petitioner appeals.

Petitioner in his brief raises, for the first time in this cause, the contention that respondent is estopped by her subsequent remarriage to attack the validity of the separation agreement. However, estoppel is an affirmative defense which must be affirmatively pleaded (Ill. Rev. Stat. 1979, ch. 110, par. 43(4)) and is considered to be waived when not alleged. (Estes Co. v. Employers Mutual Casualty Co. (1980), 79 Ill. 2d 228, 402 N.E.2d 613; County of Cook v. Priester (1976), 62 Ill. 2d 357, 342 N.E.2d 41; Collins v. Collins (1958), 14 Ill. 2d 178, 151 N.E.2d 813.) We find that because the issue of estoppel was not presented to the lower court, it is waived.

Petitioner’s second contention is that the trial court erred in setting aside the parties’ separation agreement because (1) the trial court’s finding that petitioner induced and coerced respondent to enter into the agreement was not supported by clear and convincing evidence, and (2) the trial court erred in finding that the separation agreement was unconscionable.

A motion for relief under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72) is addressed to the equitable powers of the court. (Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 190 N.E.2d 348; Davis v. Chicago Transit Authority (1980), 82 Ill. App. 3d 987, 403 N.E.2d 615; Lammert v. Lammert Industries, Inc. (1977), 46 Ill. App. 3d 667, 360 N.E.2d 1355.) Whether the petition should be granted lies within the sound discretion of the court and depends upon the facts and equities presented. (Davis; Chase v. Cummingham (1978), 64 Ill. App. 3d 54, 381 N.E.2d 27; Lammert; Goldman v. Checker Taxi Co. (1967), 84 Ill. App. 2d 318, 228 N.E.2d 177.) However, a section 72 petition is not intended to relieve a party from the consequences of his own mistake or negligence. (Brockmeyer v. Duncan (1960), 18 Ill. 2d 502, 165 N.E.2d 294.) Furthermore, this court is justified in disturbing the judgment of the trial court only when it finds that the discretion vested in the trial court has been abused. Davis; Chase; Lammert; George F. Mueller & Sons, Inc. v. Ostrowski (1974), 19 Ill. App. 3d 973, 313 N.E.2d 684.

Section 502(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 502(b)) has changed Illinois law with respect to determining the validity of separation agreements. (In re Marriage of Miller (1981), 98 Ill. App. 3d 1084, 424 N.E.2d 1343.) Pursuant to section 502(b) the terms of a separation agreement, except those providing for the support, custody and visitation of children, are binding upon the court unless it finds that the agreement is unconscionable. However, this section does not eliminate many of the traditional grounds for setting aside settlement agreements, including fraud, coercion and violation of any rule of law, public policy or morals. (Ill. Ann. Stat., ch. .40, par. 502, Historical and Practice Notes (Smith-Hurd 1980).) Evidence that the agreement was entered into because of coercion, fraud or duress must be clear and convincing in order for courts to set aside the agreement. (In re Marriage of De Frates (1980), 91 Ill. App. 3d 607, 414 N.E.2d 1188; Beattie v. Beattie (1977), 53 Ill. App. 3d 501, 368 N.E.2d 178.) Furthermore, the propriety of a separation agreement must be determined in the light of the positions and needs of the individuals concerned, and not upon the circumstances presented and conclusions reached in another case. Horwich v. Horwich (1979), 68 Ill. App. 3d 518, 386 N.E.2d 620.

We find that the judgment incorporating the separation agreement was properly vacated because the agreement is unconscionable.

The Historical and Practice Notes to section 502(b) (Ill. Ann. Stat., ch. 40, par. 502, Historical and Practice Notes, at 401 (Smith-Hurd 1980)) state:

9 9 The standard [of unconscionability] as it relates to separation agreements includes ‘protection against overreaching, concealment of assets, and sharp dealing not consistent with the obligations of marital partners to deal fairly with each other.’ Uniform Marriage and Divorce Act (9A U.L.A.) §306, Commissioners’ Note at 137. The Commissioners’ Note further provides:
In order to determine whether the agreement is unconscionable, the court may look to the economic circumstances of the parties resulting from the agreement, and any other relevant evidence such as the conditions under which the agreement was made, including the knowledge of the other party. If the court finds the agreement not unconscionable, its terms respecting property division and maintenance may not be altered by the court. . . .
Uniform Marriage and Divorce Act (9A U.L.A.) §306, Commissioners’ Note at 137.”

An unconscionable bargain has been defined as one “which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other.” (Hume v. United States (1889), 132 U.S. 406, 410, 33 L. Ed. 393, 395.) The term “unconscionability” includes “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” (Williams v. Walker-Thomas Furniture Co. (D.C. Cir. 1965), 350 F.2d 445, 449.) A contract is unconscionable when it is improvident, totally one-sided or oppressive. Walter E. Heller & Co. v. Convalescent Home of the First Church of Deliverance (1977), 49 Ill. App. 3d 213, 365 N.E.2d 1285; Neal v. Lacob (1975), 31 Ill. App. 3d 137, 334 N.E.2d 435.

Under the terms of the agreement, petitioner was to be awarded custody of the parties’ two children, the marital home and the parties’ 1975 Ford Torino automobile. Respondent was to be awarded certain household items and $55 per week for 16 weeks. We find that the terms of the agreement were unreasonably favorable to petitioner and the circumstances surrounding the agreement’s execution indicate that respondent did not make a meaningful choice. Therefore, we conclude that the trial court correctly found the agreement to be unconscionable and properly set aside that portion of the judgment for dissolution which incorporated the separation agreement.

In view of this conclusion, we find it unnecessary and accordingly abstain from consideration of respondent’s contention that the agreement should be set aside because of clear and convincing evidence that respondent was induced and coerced to enter into the separation agreement.

Petitioner’s third contention is that the trial court erred when it permitted respondent to examine petitioner’s counsel as an adverse party under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1979, ch. 110, par. 60.) The trial court found that petitioner’s attorney was properly called as a witness pursuant to section 60 because under the facts here, in which he is charged with fraud, he would be regarded as defending the action. We find no error in the allowance of examination of petitioner’s counsel pursuant to section 60. Petitioner’s counsel testified as to the circumstances surrounding the execution of the agreement. We do not find it improper to call opposing counsel for examination as an adverse witness under section 60 where the examination does not extend to matters of privileged communication between attorney and client. See Club Aluminum Co. v. American Indemnity Co. (1936), 290 Ill. App. 487, 8 N.E.2d 526.

Petitioner’s final contention is that the trial court improperly ordered the custody of the parties’ two minor children transferred to respondent because at the hearing on the section 72 petition no evidence was presented as to whether petitioner’s or respondent’s custodial care would be in the best interest of the children. We note, however, that it is more accurate to state that the trial court’s order (1) vacated that portion of the prior judgment of dissolution incorporating the parties’ separation agreement which awarded custody of the parties’ children to petitioner, and (2) awarded temporary custody to the parties jointly and physical custody to respondent.

Respondent, relying on In re Marriage of Lentz (1980), 79 Ill. 2d 400, 403 N.E.2d 1036, contends that the portion of the trial court’s order awarding temporary custody to the parties jointly and physical custody to respondent is not appealable.

Supreme Court Rule 304(b)(3) makes a judgment granting any of the relief prayed for in a petition under section 72 final and therefore appeal-able without any specific finding. (Ill. Rev. Stat. 1979, ch. 110A, par. 304(b)(3).) We find that the award of temporary custody was part of the relief prayed for in the section 72 petition and is therefore a final and appealable order without any specific finding.

Turning now to the merits of the issue, we find that the trial court improperly awarded temporary custody to the parties jointly and physical custody to respondent. Pursuant to section 603(a) (Ill. Rev. Stat. 1979, ch. 40, par. 603(a)), a court may award temporary custody on the basis of affidavits or, after a hearing, under the best interest of the child standard set forth in section 602. Section 602 (Ill. Rev. Stat. 1979, ch. 40, par. 602) does not require the trial court to make findings; rather, the court is directed to consider “all relevant factors” including certain specified ones. (In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 402 N.E.2d 831.) Section 602 does, however, require that the record contain sufficient evidence concerning the specified factors, which include: (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; (5) the mental and physical health of all individuals involved; and (6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child. All six factors must be considered by the court, although written findings of fact or other recital of these factors are not required by this section to sustain a custody judgment. In re Marriage of Atkinson; In re Custody of Melear (1979), 76 Ill. App. 3d 706, 395 N.E.2d 208.

In In re Custody of Mayes (1980), 86 Ill. App. 3d 644, 409 N.E.2d 12, the court found that the trial court there properly applied the “best interest” factors of section 602(a) (Ill. Rev. Stat. 1979, ch. 40, par. 602(a)) where, after vacating a judgment agreed to by the parties as to the custody of the children, the court was faced with a de novo custody decision.

Here, after vacating that portion of the judgment of dissolution awarding custody of the parties’ two minor children to petitioner, the trial court was faced with making a de novo determination regarding custody of the children. We find that the evidence presented at the hearing relating to the section 602 factors was insufficient. The testimony did not include facts and information concerning each of the factors listed in section 602. Accordingly, we affirm that portion of the trial court’s order vacating that portion of the judgment for dissolution which incorporated the separation agreement and reverse that portion which awarded custody to the parties jointly and physical custody to respondent and remand the cause for further proceedings.

Affirmed in part; reversed in part and remanded.

CAMPBELL, P. J., and GOLDBERG, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ROBERT BISHOP, Plaintiff-Appellee, v. LEE CROWTHER, DefendantAppellee.—(MFA INSURANCE COMPANY, Garnishee Defendant-Appellant.)
    First District (1st Division)
    No. 80-2713
    Opinion filed November 9, 1981.

      John E. Guy, of Abramson & Fox, of Chicago, for appellant.
    Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Nat P. Ozmon and Curt N. Rodin, of counsel), for appellee Robert Bishop.
    Robson, Masters, Ryan, Brummund & Belom, of Joliet (Dario A. Garibaldi, of counsel), for appellee Lee Crowther.
   Mr. JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant MFA Insurance Company (MFA) appeals from a declaratory judgment finding that defendant Lee Crowther is entitled to full rights and benefits under the Homeowner’s Insurance Policy issued to him by MFA and from the garnishment judgment entered in favor of plaintiff Robert Bishop against MFA in the amount of $175,000, plus interest and costs.

The facts underlying this appeal are: In 1973, MFA issued its Homeowner’s Insurance Policy to Lee Crowther and his wife on their home in Joliet, Illinois. In the autumn of that year, Lee Crowther entered into a contract with Kofoid and Pilón to build a family-room addition to their single-family home. The roofing and gutter work on the addition was to be performed by Crowther, Inc., of which defendant Lee Crowther was a principal or shareholder and vice-president. Crowther, Inc., assigned plaintiff Robert Bishop, a loaned employee, to apply the shingles. While engaged in this work, he fell from a ladder and was injured. He brought suit under the Illinois Structural Work Act against Lee Crowther individually and Kofoid and Pilón. MFA defended the suit against Lee Crowther under a reservation of rights based on the business pursuits and workmen’s compensation benefits exclusions in the Homeowner’s policy. Before trial, plaintiff and Lee Crowther entered into the following agreement which was disclosed to all parties and to the court:

“The undersigned, for the mutual consideration herein contained, agree as follows:
1. Robert Bishop hereby agrees that in the event of verdict and judgment against Lee Crowther individually or Lee Crowther and Kofoid and Tilon, in case No. 74 L 19065, that he, Robert Bishop, will not execute said judgment against any personal assets of Lee Crowther, but rather will execute said judgment as it pertains to Lee Crowther only against the applicable proceeds of Lee Crowther’s policy of insurance through MFA Insurance Company.
2. Lee Crowther agrees that in the event of verdict and judgment against him and in favor of Robert Bishop in Case No. 74 L 19065 that he will fully cooperate with Robert Bishop and his attorneys only after verdict in endeavoring to collect said judgment from MFA Insurance Company whether by means of garnishment, declaratory judgment, or any other means of collection.”

After a jury trial, Kofoid and Pilón were found not liable and Lee Crowther liable to plaintiff Robert Bishop in the amount of $175,000. Lee Crowther appealed and this court affirmed the judgment against him. (Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 415 N.E.2d 599.) The supreme court denied leave to appeal. 85 Ill. 2d 555.

After the judgment in the trial court, plaintiff filed a garnishment proceeding against MFA upon the Homeowner’s Insurance Policy and MFA filed a declaratory judgment proceeding for a declaration that it was not liable under the policy exclusions relating to business pursuits and workmen’s compensation benefits. The court below found that the claimed exclusions did not apply and that the covenant not to execute did not relieve MFA from its obligation to pay the judgment against Lee Crowther. It entered a garnishment judgment for plaintiff and against MFA in the amount of the judgment recovered by plaintiff from Lee Crowther, plus interest and costs.

On appeal, MFA argues that the covenant not to execute bars plaintiff’s recovery, as do the business pursuits and workmen’s compensation benefits exclusions of the policy. We disagree.

The policy issued by MFA provides:

“COVERAGE E — PERSONAL LIABILITY. This Company agrees to pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury # * 0 caused by an occurrence.”

MFA argues that by the covenant not to execute, Crowther was no longer “obligated to pay” damages to Bishop and therefore MFA is relieved of its obligation to pay under its policy.

In plaintiff’s injury suit, the attorneys representing the insured there under MFA’s reservation of rights and who are the same attorneys who represent MFA in this appeal argued that because of the covenant not to execute plaintiff had failed to establish damages. This court affirmed the judgment in Bishop’s favor and rejected that argument, saying (92 Ill. App. 3d 1, 8-9):

“Plaintiff and defendant entered into a covenant providing that plaintiff would not seek to execute any judgment against any personal assets of defendant, but reserved the right to execute against assets relating to his insurance. Crowther asserts that a legal consequence of this covenant is that no damages are enforceable against him individually. He further maintains that plaintiff failed to establish an element of his cause of action: proof of damages. We disagree. Defendant’s argument fails to distinguish between such concepts as liability, damages, judgment and execution. Defendant’s liability and the amount of damages were both established by the judgment. The execution determines which of defendant’s assets will be used to satisfy the judgment. An agreement limiting execution to specific assets does not negate damages.
Thornton v. Paul (1977), 51 Ill. App. 3d 337, 366 N.E.2d 1048, aff'd in part, rev'd in part on other grounds (1978), 74 Ill. 2d 132, 384 N.E.2d 335, involved a similar covenant. Thornton concerned a tavern owner striking a patron with a club. The insurer refused to defend the civil suit because its policy excluded intentional torts. Plaintiff and defendant entered into an agreement in which plaintiff agreed to limit the source of collection of any judgment to defendant’s insurer. This agreement was not disclosed to either the court or the insurance company until after a default judgment was entered and garnishment proceedings instituted against the insurer. The insurer filed a section 72 petition to vacate the default based upon the undisclosed covenant. The appellate court denied the petition, stating (51 Ill. App. 3d 337, 341):
‘An agreement per se between the claimant and the insured where the carrier is denying coverage, stipulating that the plaintiff will not execute against property of the insured other than the limits of the insurance policy in the event of a recovery against defendants in the principal action, has been approved and is not contrary to public policy. Krutsinger v. Illinois Casualty Co. (1957), 10 Ill. 2d 518, 141 N.E.2d 16; Maryland Casualty Co. v. Peppers (1976), 64 Ill. 2d 187, 355 N.E.2d 24; Elas [(1976), 39 Ill. App. 3d 944, 352 N.E.2d 60].’
The court also noted that the covenant merely exempted from execution certain of defendant’s assets and was not relevant to the question of either liability or damages. Accordingly, we reject defendant’s argument that damages were not established.”

The supreme court denied leave to appeal. 85 Ill. 2d 555.

While it is true that in this court’s opinion affirming the judgment in favor of Bishop the argument that Crowther was not “legally obligated to pay” was directed to the existence of damages and here it is directed to the coverage of the policy, the arguments are essentially the same.

It seems apparent that if an agreement not to execute except as to insured’s insurance does not violate public policy, to deny it efficacy would be an exercise in empty rhetoric. We hold that the agreement does not per se relieve ME A of liability under its policy.

Defendant relies heavily on Childress v. State Farm Mutual Automobile Insurance Co. (1968), 97 Ill. App. 2d 112, 239 N.E.2d 492, appeal denied (1968), 39 Ill. 2d 627, in support of its argument that the covenant here precluded plaintiff’s recovery because Crowther was no longer “legally obligated to pay.” From a reading of the opinion, it does not appear that the court there considered the public policy aspect. In addition, in Elas v. State Farm Mutual Automobile Insurance Co. (1976), 39 Ill. App. 3d 944, 352 N.E.2d 60, appeal denied (1976), 63 Ill. 2d 556, the court stated (39 Ill. App. 3d 944, 948):

“Ample authority exists holding that when an insurer refuses to defend the suit against its insured, the insured may settle with other parties in the case and protect himself or herself against further liability without waiving the insured’s rights or the rights of the injured plaintiff to continue the proceedings against the insurer. De Luxe Motor Stages v. Hartford Accident & Indemnity (1st Dist. 1967), 88 Ill. App. 2d 188, 193, 232 N.E.2d 141; Krutsinger v. Illinois Casualty Co. (1956), 10 Ill. App. 2d 344, 135 N.E.2d 180, aff'd, 10 Ill. 2d 518, 527, 141 N.E.2d 16 (1957); 7A Appleman, §4690, at 492, and §4714, at 591-92.
Defendant cites Childress v. State Farm Mutual Automobile Insurance Co. (4th Dist. 1968), 97 Ill. App. 2d 112. 239 N.E.2d 492, as authority to the contrary. The rationale of that case may seem obscure, but the court there seems to rely principally on the asserted fact that there was no contractual relationship between the insured and the insurer. Be that as it may, there was clearly a contractual relationship in the case before us, and we do not believe that Childress is convincing authority in face of the general rule to which we have referred in this opinion.”

Thus, not only did Childress not consider the public policy aspect, but, as pointed out in Elas, it failed to recognize the general rule that even a settlement does not waive the rights of either the insured or of the injured plaintiff to continue the proceedings against the insurer. Consequently, we decline to follow Childress if the effect of that decision is as defendant contends.

In Navlyt v. State Farm Fire & Casualty Co. (1978), 62 Ill. App. 3d 387, 378 N.E.2d 1228, appeal denied (1978), 71 Ill. 2d 618, plaintiffs recovered a $125,000 wrongful death judgment against State Farm’s insured Kalinich. A co-insurer paid $25,000 and the insured personally paid $10,000. In consideration for a promise not to execute on the judgment, Kalinich assigned to plaintiff his rights under State Farm’s policy. In its opinion, the court said (62 Ill. App. 3d 387, 392-93):

“Finally, defendant argues that its liability, if any, is limited to $10,000, the amount paid by Kalinich to plaintiffs in exchange for their covenant not to execute on the judgment against him. Under the policy, defendant was obligated to pay ‘all sums which the insured shall become legally obligated to pay as damages.’ Defendant argues that since Kalinich paid $10,000 to plaintiffs, this sum was all that he was ‘legally obligated’ to pay according to the terms of the settlement agreement. Accordingly, defendant concludes that this sum is all that it should be required to pay plaintiffs as assignees of the policy.
# # O
As to defendant’s theory that liability is limited to the $10,000 Kalinich paid in partial satisfaction of the judgment, we cannot concur. The $10,000 payment arose out of a separate agreement between Kalinich and plaintiffs. It was in no way related to the legal obligation contemplated by his insurance policy with defendant and therefore, in no way limited defendant’s liability.”

So here, too, the agreement between Bishop and Lee Crowther cannot limit MFA’s liability.

Because, as we here hold, a nonexecution covenant reserving rights against an insurance carrier is not against public policy and therefore not ipso facto preclude recovery by an injured party, the controlling question is whether the injury comes within the coverage of the policy.

As stated, MFA argues that the exclusions relating to business pursuits and workmen’s compensation benefits apply to defeat coverage under the policy. We disagree.

As to the first mentioned exclusion, the policy provides:

“This policy does not apply:
Under Coverage E — Personal Liability and Coverage F — Medical Payments to Others:
* # #
d. to bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits.”

The policy does not define “business pursuits” but does contain the following: In the “DECLARATIONS” it is stated: “(b) no business pursuits are conducted on the described premises;” and under “DEFINITIONS” is the following:

“a. ‘Insured’ means [1] the Named Insured * 0 *.
b. ‘insured premises’ means
(1) the residence premises described in the Declarations of this policy;
0 # <*
c. ‘residence premises’ means
(1) a one or two family dwelling building, * * *; or
(2) * * •; provided that such premises is used as a private residence by the Named Insured or his spouse but excluding any portion of the premises used for business purposes.
d. ‘business’ means
(1) a trade, profession or occupation, including farming, and the use of any premises or portion of residence premises for any such purposes; and
(2) * *

From the provisions of the policy, it thus appears that the exclusion can be interpreted to apply only to injury or property damage arising from the operation of an insured’s business out of his home. Lee Crowther was not operating a business out of his home. Further, it is not clear that “business pursuits” includes the building by a homeowner of an addition to his home. Because the language employed by MFA is ambiguous, it is to be construed against MFA.

In Williams v. Herrera (N.M. App. 1972), 83 N.M. 680, 496 P.2d 740, Farmers Insurance Group issued to Herrera a policy covering medical payments. Herrera, the homeowner, was building his own home. Williams, a stone mason, while carrying a chimney flue liner up a ladder to the roof to make repairs, was injured when a rung broke and he fell to the ground. Williams sued Herrera and the insurance company. The trial court entered summary judgment for both defendants. On appeal, the court affirmed as to Herrera, but reversed as to the insurance company, saying (83 N.M. 680, 684-86, 496 P. 2d 740, 744-46):

“Farmers Insurance Group issued Herrera a policy of insurance with coverage for medical payments to others. Farmers concedes that Williams’ claim falls within this provision of the policy, but contends that Williams is denied medical coverage by reason of several exclusions set forth in the policy.
# #
Second, under Exclusions, Section 1(d) states:
This policy does not apply:
# # #
d. to bodily injury or property damage arising out of business pursuits of any insured except activities therein which are ordinarily incident to nonbusiness pursuits; * e °.
Two questions are involved. (1) Did Williams’ bodily injury arise out of business pursuits of Herrera? The policy does not define the term ‘business pursuits.’ What is a ‘business pursuit’? (2) After completion of the home, was Herrera engaged in a non-business pursuit?
Under General Condition 8(d) of the insurance policy, ‘ “business” means (1) trade, profession or occupation, including farming, and the use of any premises or portion of residence premises for any such purposes; # # ”.’
Fowler v. First National Life Insurance Co. of America, supra [378 P.2d 605 (1963)], was followed in Scott v. New Empire Insurance Company, 75 N. M. 81, 400 P.2d 953 (1965), where the court said:
We decline to adopt a strict technical or legalistic interpretation of the terms of the policy, when it was fully within the power of the insurance company to affirmatively specify some meaning other than that understood by the average individual.
The rule is now clear that ‘where there is ambiguity, the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean * * *’ and ‘the ambiguity is resolved against the insurer.’ Ivy Nelson Grain Co. v. Commercial Union Insurance Company, supra [453 P. 2d 587 (1969)].
(1) Before the accident occurred, Herrera was building his own home. Whether this should be considered a ‘business pursuit,’ it is difficult to say. We believe it is ambiguous terminology because the average layman could disagree that in its ordinary meaning, building a home is a business pursuit. We resolve the ambiguity against the insurer and hold it was not a business pursuit.”

The building of an addition to a home cannot be considered different in kind from the building of a home. The exclusion does not apply.

In addition, Lee Crowther’s liability was not derivative through Crowther, Inc., which had the roofing contract. Crowther, Inc. was not in the business of constructing room additions. As this court said in its opinion affirming plaintiff’s judgment (Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 12):

* 6 Defendant, however, is not insulated from liability because he owned stock in or was an officer of Crowther, Inc. Crowther’s liability was not derivative but direct, stemming from his own conduct and actions and not those of Crowther, Inc. Crowther testified that he was acting in his individual capacity in this venture. This testimony was corroborated by other witnesses. Defendant’s corporate position has no relevance in light of these admissions.”

Lee Crowther was not engaged in a “business pursuit” when he acted as his own general contractor in the construction of the family room addition to his home.

In addition, exclusion 1(d) itself contains an exclusion. It does not exclude “activities therein which are ordinarily incident to non-business pursuits.” (Economy Fire & Casualty Co. v. Second National Bank (1980), 91 Ill. App. 3d 406, 408, 414 N.E.2d 765, appeal denied (1981), 83 Ill. 2d 570.) “All that is excluded by this provision are injuries arising out of business pursuits. Not all that occurs on business premises are business pursuits.” Reis v. Aetna Casualty & Surety Co. (1978), 69 Ill. App. 3d 777, 786, 387 N.E.2d 700, appeal denied (1979), 79 Ill. 2d 617.

Further, the meaning of the exclusion to the exclusion is unclear and will be construed against the insurer. In State Farm Fire & Casualty Co. v. MacDonald (1967), 87 Ill. App. 2d 15, 20, 230 N.E.2d 513, the court said:

“It is beyond dispute that the meaning of the phrase, ‘other than activities therein which are ordinarily incident to non-business pursuits’ is unclear, ambiguous, and it has long been recognized that an insurance contract is unlike most contracts. In an insurance contract, absent statutory requirements, the company determines and drafts its policy provisions. The insured takes the contract as he finds it. Any lack of clearness in the meaning of such contract is the responsibility of the insurer. That construction of the policy will be adopted which favors the insured and resolves the uncertainty in his favor. Midwest Dairy Products Corp. v. Ohio Cas. Ins. Co. of Hamilton, Ohio, 356 Ill 389, 392, 393, 190 NE 702 (1934); Iowa Nat. Mut. Ins. Co. v. Fidelity & Casualty Co., 62 Ill App 2d 297, 303, 210 NE2d 622 (1965); Country Mut. Ins. Co. v. Bergman, 38 Ill App 2d 268, 277, 278, 185 NE2d 513 (1962).”

We hold that the addition of a family room is an activity “ordinarily incident to non-business pursuits” of a homeowner.

MEA also argues that the business pursuits exclusion applies because of Crowther’s “dual capacity” in charge both as a homeowner and because of his long specialized experience in roofing. If Lee Crowther was acting in a dual capacity, the accident occurred during the course of carrying out this dual role. Certainly, a homeowner as such is not a business capacity. It is therefore not excluded; if it were, the policy would be meaningless. Because at least one of his claimed “dual” capacities (a homeowner) is not excluded, the policy will be construed against the insurer so as to provide protection. See Crane v. State Farm Fire and Casualty Co. (1971), 5 Cal. 3d 112, 117, 485 P.2d 1129, 1131, 95 Cal. Rptr. 513, 515, discussing State Farm Fire & Casualty Co. v. MacDonald.

As to the workmen’s compensation benefits exclusion, the policy provides:

“The policy does not apply:
^ ft ft ft
2. Under Coverage E - Personal Liability
a. * * •
b. to bodily injury to any person, including a residence employee, if the insured has a policy providing workmen’s compensation or occupational disease benefits for such bodily injury or if benefits for such bodily injury are in whole or in part either payable or required to be provided by the insured under any workmen’s compensation or occupational disease law;
ft ft ft
3. Under Coverage F — Medical Payments to Others
a. to bodily injury to any person, including a residence employee, if any person or organization has a policy providing workmen’s compensation or occupational disease benefits for such bodily injury or if benefits for such bodily injury are in whole or in part either payable or required to be provided under any workmen’s compensation or occupational disease law;
J-j ft ft ft ”

A reading of this provision shows on its face that it has no application for the following reasons: (1) Lee Crowther did not carry workmen’s compensation insurance; Crowther, Inc. did; and plaintiff received those benefits; and (2) Lee Crowther was not required to provide that coverage. Only if plaintiff’s employer did not carry that insurance could there be any possible liability for workmen’s compensation benefits on the part . of Lee Crowther. (Ill. Rev. Stat. 1973, ch. 48, par. 138.1; see also Baker & Conrad, Inc. v. Chicago Heights Construction Co. (1936), 364 Ill. 386, 4 N.E.2d 953.) Such remote, and here inapplicable, contingent liability is not within the exclusion.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE DOWNING

text:
    ANTHONY R. MARTIN-TRIGONA, Plaintiff-Appellant, v. BLOOMINGTON FEDERAL SAVINGS & LOAN ASSOCIATION et al., Defendants.—(SCHIFF, HARDIN & WAITE et al., Defendants-Appellees.)
    First District (2nd Division)
    No. 80-1298
    Opinion filed November 10, 1981.

      Anthony R. Martin-Trigona, of Chicago, for appellant, pro se.

    Schiff, Hardin & Waite, of Chicago (Aaron J. Kramer, of counsel), for appellees, pro se.

   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Plaintiff Anthony R. Martin-Trigona filed a 21-count complaint in the Circuit Court of Cook County against nine defendants. Among those defendants were the Chicago law firm Schiff, Hardin & Waite (Schiff), and Barry Alberts (Alberts), a member of the Schiff firm. Schiff and Alberts filed a single motion to dismiss the complaint against them. The circuit court granted this motion and entered an order under Supreme Court Rule 304 (73 Ill. 2d R. 304) making the dismissal appealable immediately. Martin-Trigona thereafter instituted the present appeal.

Martin-Trigona has filed a confusing, inartfully drawn, ad hominem appellant’s brief with this court. In effect the brief asks this court to find (1) that the complaint properly alleged a breach of contract action against Schiff and Alberts, or (2) that the complaint alleged a cause of action against the same parties on the basis of fraud. Martin-Trigona therefore asserts that the circuit court’s order of dismissal was erroneous.

Since this appeal is taken from the grant of a motion to dismiss, the facts are taken from the complaint, especially count 14, and are viewed as admitted by Schiff and Alberts for these purposes to the extent that they are well-pleaded. Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 302, 390 N.E.2d 428.

The instant appeal has its genesis in a mortgage foreclosure action instituted by defendant Bloomington Federal Savings & Loan Association (Bloomington) against Martin-Trigona and others in the Circuit Court of Champaign County, Illinois, sometime in early 1978. Schiff, through Alberts, represented Bloomington in that case. Its merits are not relevant to this appeal.

Subsequent to the filing of the Champaign County action, but prior to Martin-Trigona’s appearance therein, Schiff, through Alberts, apparently entered into a discussion with Martin-Trigona and his attorney, Paul Bradley. Bradley advised Alberts that he believed Martin-Trigona had substantial claims against Bloomington but desired a “peaceful and peaceable settlement.”

Schiff, Alberts, and Martin-Trigona then allegedly entered into an agreement by which Schiff and Alberts would not proceed with the Champaign County case and Martin-Trigona would not pursue his claims while settlement negotiations went forward. As a result of the purported agreement, Martin-Trigona alleges that he failed to appear in the Champaign County case. Bloomington’s local attorney (not Schiff) allegedly proceeded to secure a default judgment against Martin-Trigona.

Martin-Trigona’s Cook County complaint further alleges he was unable to appeal entry of that default because of its interlocutory nature. He alleges that he suffered “substantial economic loss and legal fees” nonetheless, and seeks $500,000 actual damages and $1 million punitive damages due to Schiff’s and Alberts’ alleged breach of the “contract and agreement” with Martin-Trigona.

Other facts, made known through Schiff’s and Alberts’ motion, are that Martin-Trigona filed a timely motion to vacate the default judgment in Champaign County which made no mention of the purported agreement. This motion was denied. Subsequently, only after the present action had begun and Schiff had filed the motion to dismiss, MartinTrigona filed with the Champaign County court a motion to vacate the default judgment based upon the same theory as presented in count 14 of the Cook County complaint.

I

Martin-Trigona’s appeal arises from the circuit court’s grant of Schiff’s and Alberts’ motion to dismiss. The circuit court’s dismissal did not specify the grounds upon which the dismissal was based. Schiff and Alberts relied upon several theories in presenting their motion. In such circumstances, the reviewing court may affirm the dismissal upon any of the issues raised in the motion to dismiss. Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 298-99.

One of the bases of Schiff’s and Alberts’ motion was that MartinTrigona’s allegations did not show the existence of a duty owed by Schiff or Alberts to Martin-Trigona, did not allege conduct which would constitute a breach of contract, and did not allege consideration for the alleged agreement. Martin-Trigona apparently argues on appeal that the complaint did adequately allege a breach of contract action.

A proper and adequate complaint based upon breach of contract must allege the existence of the contract purportedly breached by the defendant, the plaintiff’s performance of all contractual conditions required of him, the facts of the defendant’s alleged breach, and the existence of damages as a consequence thereof. (Thilman & Co. v. Esposito (1980), 87 Ill. App. 3d 289, 296, 408 N.E.2d 1014.) Allegations demonstrating the existence of a contract must contain facts indicating an offer, acceptance, and consideration. (Kalkounos v. Four K’s, Inc. (1981), 94 Ill. App. 3d 1011, 1012-13, 419 N.E.2d 503; Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 301; Pollack v. Marathon Oil Co. (1976), 34 Ill. App. 3d 861, 864, 341 N.E.2d 101.) A general allegation that a contract exists, without supporting facts, is a legal conclusion which is not admitted as true by a motion to dismiss or strike. Pollack v. Marathon Oil Co.

After examining Martin-Trigona’s complaint, we find that MartinTrigona has failed to adequately plead a breach of contract action. First, his allegations as to offer and acceptance are contained in a paragraph which, in form, is essentially a legal conclusion. Since such legal conclusions are neither admitted as true by a motion to dismiss (Mid-Town Petroleum, Inc. v. Dine), nor adequate to serve as the essential elements of a complaint (Pollack), the circuit court could have correctly based its dismissal order on this theory.

Second, the paragraph just discussed alleges that Alberts (and by implication Schiff) was an agent of Bloomington in entering into the alleged agreement. It is well settled that, where an agent discloses his principal and the existence of an agency relationship therewith, that agent is not liable on a contract he enters into with another unless the agent agrees to become personally liable. The relationship of an attorney to his client is generally governed by such rules of agency. (McCorkle v. Weinstein (1977), 50 Ill. App. 3d 661, 663-64, 365 N.E.2d 953, appeal denied (1977), 66 Ill. 2d 639.) Martin-Trigona alleges in general language that Alberts and Schiff were independently bound by the alleged agreement. This allegation is, however, a conclusion of law. Nothing in the remaining allegations of the complaint serves to indicate that either Alberts or Schiff intended to be liable on the alleged agreement. Consequently, the complaint does not properly recite facts showing that either Alberts or Schiff could be personally liable for a breach of contract, even had Martin-Trigona properly alleged such cause of action.

We are cognizant of Martin-Trigona’s assertion that the complaint adequately alleges sufficient consideration to support a contract. (See footnote 3.) Certainly, the consideration alleged, mutual promises to forbear prosecution of actions which are reasonably believed meritorious by the parties, can support a contract. (See McMicken v. Safford (1902), 100 Ill. App. 102, 104, aff'd (1902), 197 Ill. 540, 64 N.E. 540; Morgan v. Park National Bank (1892), 44 Ill. App. 582, 584-85; see also Spalding v. White (1913), 184 Ill. App. 217, 221.) However, since Martin-Trigona’s complaint is otherwise fatally deficient in its breach of contract allegations, the circuit court could properly have dismissed the count against Schiff and Alberts despite the sufficiency of this facet of that pleading. We therefore find no error in that court’s decision.

II

A.

Alternatively, Martin-Trigona argues that Alberts (and presumably Schiff) is liable on the theory of fraud. This assertion is premised upon alleged fraudulent acts of Bloomington for which, Martin-Trigona argues, Alberts and Schiff should be liable as its attorneys.

Alberts and Schiff correctly respond that the complaint contains no adequate factual allegations setting forth the elements of an action for fraud. (See Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 194-95, 380 N.E.2d 1040.) Consequently, this argument has no merit.

B.

Martin-Trigona also argues that the circuit court’s dismissal order was entered “prematurely.” This contention is based upon the unsupportable assumptions that “clearly, one or the other [Bloomington or Schiff and Alberts] is liable for breach of the agreement,” and that “the breach of agreement and damages were beyond question.” No legal authority is cited in addition to these weightless assumptions to support this contention. We therefore reject it.

III

Schiff’s and Alberts’ brief presents several other grounds upon which the circuit court’s dismissal order may be affirmed. In light of our determinations recited above, we find it unnecessary to reach these arguments.

For the reasons stated herein, we affirm the Circuit Court of Cook County’s dismissal of Martin-Trigona’s cause of action against Schiff and Alberts.

Affirmed.

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

       Schiff and Alberts argued in their motion to dismiss that (1) the default action was still pending in Champaign County, and Martin-Trigona should raise the instant matter there; (2) Martin-Trigona’s failure to raise the matter in his motion to vacate the default constitutes an “estoppel” of the claim; (3) the Cook County action constitutes an impermissible collateral attack on the default judgment; (4) Martin-Trigona failed to allege injury from the breach of contract; and (5) Martin-Trigona failed to adequately allege the existence of a contract, as more fully described above.

       Schiff and Alberts begin their brief by claiming that the circuit court’s order should be summarily affirmed because Martin-Trigona has not rebutted the presumption that the court has acted properly, which arises where, as here, no report of proceedings is presented and the order recites that the court is fully advised in the premises. We choose instead to reach the merits of the appeal.

       Paragraph 89 of count 14 reads (relevantly):
      “Alberts 0 0 0 and plaintiff entered into an agreement not to press the BF case and not to press any claims of plaintiff unless and until a settlement could be reached or settlement could not be reached, and Alberts for BF and plaintiff ° ° ° agreed to withhold any actions pending this Series of ongoing negotiations.”

       Paragraph 93 of count 14 reads (relevantly):
      “Schiff ° ° ° and Alberts " ° ° were all equally bound by the agreements “ ° °.”

       In his brief, Martin-Trigona contends that Alberts did not have the authority to make the promise “he in fact made.” This contention contradicts the plain language of the complaint; consequently, we attach no weight to this claim.


author: Mr. JUSTICE GOLDBERG

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUBIN MALDONADO, Defendant-Appellant.
    First District (1st Division)
    No. 80-2024
    Opinion filed November 16, 1981.

      Nicholas A. Dejohn, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Kevin Sweeney, and Richard B. Levy, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

After a bench trial, Rubin Maldonado (defendant) was convicted of murder and sentenced to 22 years. Defendant appeals.

Rubin Barriga testified that on February 10, 1979, at approximately 1:50 a.m., he was standing with the deceased at a bus stop a few doors away from a tavern. The area was illuminated by a sign from the tavern. A person, whom Barriga identified as defendant, left a nearby tavern, the Los Palmos, and approached them. Defendant came within 1 or 2 feet of them. A few words were spoken between defendant and the deceased. Defendant pulled a gun from his waistband, shot the deceased twice and fled to a car a few feet away. Barriga stated approximately 8 minutes transpired from the time defendant left the Los Palmos tavern and the time he fled from the scene.

Milo Stijovic, bartender at the Los Palmos, testified defendant was in the bar from about 11 p.m. He did not notice what time defendant left. At approximately 1:45 a.m. he began to clear patrons from the tavern which closed at 2 a.m. About 5 to 10 minutes after he “threw the people out” he heard two shots fired.

I

Before trial, a hearing was held on defendant’s motion to quash his arrest and suppress evidence. The trial court held the arrest was unlawful and suppressed a lineup identification of defendant by Barriga which was made while defendant was in police custody. The trial court, however, refused to suppress Barriga’s photographic and in-court identifications of defendant. Defendant contends these identifications were tainted by the unlawful arrest and should have been suppressed. We disagree.

The standard to be employed regarding suppression of such evidence is set forth in United States v. Crews (1980), 445 U.S. 463, 63 L. Ed. 2d 537, 100 S. Ct. 1244. In Crews the Court reversed the suppression of an in-court identification despite an unlawful arrest and impermissible pretrial photographic and lineup identifications because “the witness’ courtroom identification rested on an independent recollection of her initial encounter with the assailant, uninfluenced by the trial identification ” ° “.In short, the victim’s capacity to identify her assailant in court neither resulted from nor was biased by the unlawful police conduct committed long after she had developed that capacity.” 445 U.S. 463, 473, 63 L. Ed. 2d 537, 547, 100 S. Ct. 1244, 1251.

In the case at bar, both the photographic and courtroom identifications of defendant by Barriga were based on a sufficient and independent recollection and were not fostered by police misconduct. The photographic identification was made at about the same time defendant was being arrested. Barriga made the identification to one officer while others were arresting defendant. The photograph of defendant used in the interrogation of Barriga was obtained in the course of an arrest of defendant some 5 months before on an unrelated charge. It is definite and certain that the photographic identification of defendant was not influenced in any way by defendant’s unlawful arrest but was based upon the independent recollection of the witness, precisely as in Crews.

The record establishes Barriga had ample basis for courtroom identification independent of the tainted lineup. The witness viewed the assailant for “a few” or “approximately eight” minutes, at a distance of between 1 and 2 feet in what the witness considered sufficient lighting. Furthermore, Barriga accurately identified the assailant to a police investigator before defendant was arrested. See People v. McTush (1980), 81 Ill. 2d 513, 521, 410 N.E.2d 861.

Defendant urges People v. Bean (1970), 121 Ill. App. 2d 332, 257 N.E.2d 562, requires reversal of the instant case. In Bean the court reversed a conviction holding “all subsequent identifications of defendant by the victim, including in-court identification, are directly traceable to the unlawful detention of defendant.” (121 Ill. App. 2d 332, 335.) However, we have recently held “the ‘but for’ test used in Bean ‘exceeds the mandate of the United States Supreme Court and the courts of this state.’ ” (People v. Dangerfield (1979), 78 Ill. App. 3d 1046, 1048, 398 N.E.2d 57, appeal denied (1980), 79 Ill. 2d 632, quoting from People v. Pettis (1973), 12 Ill. App. 3d 123, 126, 298 N.E.2d 372.) The correct test to be applied in the instant case is set forth in Crews. Furthermore, identification by photographs has been long approved by the courts of Illinois for practical reasons. In the case at bar there is no contention that the photographic identification was predicated upon impermissible suggestion. See People v. Allender (1977), 69 Ill. 2d 38, 370 N.E.2d 509, citing Simmons v. United States (1968), 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967.

II

Defendant argues the trial court improperly restricted the cross-examination of Barriga regarding the time factor of his opportunity to observe the man who shot the deceased. Barriga testified he observed the defendant for approximately 8 minutes. Later on cross-examination he stated “I’m only saying in a few minutes this happened.” Defendant was not allowed to ask the witness “what a few minutes to him would be.”

The scope of cross-examination “rests within the sound discretion of the trial court,” and its ruling will be reversed only if an abuse of discretion is shown. (People v. Blakes (1976), 63 Ill. 2d 354, 358, 348 N.E.2d 170.) We find no abuse of discretion here. Furthermore, we see no prejudice to defendant as a result of the rulings of the trial court. (See People v. Myers (1980), 92 Ill. App. 3d 229, 237, 415 N.E.2d 1108.) Actually, counsel for defendant asked the witness three times how long he viewed defendant and always received the same answer. To the last question the witness answered “about eight minutes.” The witness also said, “I’m only saying that in a few minutes this happened.” The trial court properly refused a fourth inquiry as to what the witness meant by “a few minutes.” Even a very restricted estimate of a few minutes would have offered the witness sufficient opportunity to observe the assailant. (Compare, e.g., In re Troutman (1978), 57 Ill. App. 3d 58, 60-61, 372 N.E.2d 1062.) We find no unreasonable curtailment of cross-examination by defendant.

III

Defendant contends the prosecutor made several misstatements of fact in final argument which prejudiced defendant. Those misstatements include there was “sufficient lighting” for the eyewitness to observe the assailant, there were streetlights near the scene of the shooting, the eyewitness observed the assailant for 5 to 8 to 10 minutes, the eyewitness was not impeached at trial, etc. It is important to note a prosecutor has great latitude in his closing argument. (People v. Dominique (1980), 86 Ill. App. 3d 794, 806, 408 N.E.2d 280, appeal denied (1980), 81 Ill. 2d 603.) The substance and style of closing argument is within the discretion of the trial court, and its finding will not be disturbed absent extreme error. People v. Bloodworth (1979), 68 Ill. App. 3d 341, 349-50, 385 N.E.2d 904.

We find that all the alleged misstatements complained of were at most nonmaterial and unintentional misstatements of fact which do not constitute reversible error. People v. Dykes (1978), 66 Ill. App. 3d 403, 408, 383 N.E.2d 1210, appeal denied (1979), 74 Ill. 2d 587.

IV

Finally, defendant argues he was not proved guilty beyond a reasonable doubt. Because we do not find the “evidence is so palpably contrary to the finding or so unreasonable, improbable or unsatisfactory as to cause reasonable doubt as to the guilt of the accused” we will not overturn the verdict of the trial court. (People v. Reese (1973), 54 Ill. 2d 51, 58, 294 N.E.2d 288.) It is important to note “ ‘where the identification of the accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made.’ ” People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513, quoting from People v. Stringer (1972), 52 Ill. 2d 564, 569, 289 N.E.2d 631.

In the case at bar, the eyewitness did observe the accused so as to permit a positive identification. At the least he observed the assailant for a few minutes at extremely close proximity. Furthermore, the witness’ testimony is supported by that of the bartender at the Los Palmos tavern who saw the defendant at the scene of the crime on the night in question. For the above reasons the judgment appealed from is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER SIBLEY, Defendant-Appellant.
    First District (4th Division)
    No. 80-1038
    Opinion filed November 19, 1981.
    James J. Doherty, Public Defender, of Chicago (Robert T. Badesch and Marc Fogelberg, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Sharon Eiseman, and Kim R. Kardas, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Following a jury trial, defendant, Walter Sibley, was found guilty of attempted murder (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4), aggravated battery (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 4), and armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A — 2). He was sentenced to 18 years in the Illinois Department of Corrections for attempted murder and 18 years for armed violence, said sentences to run concurrently. No sentence was imposed for the aggravated battery conviction.

On appeal, defendant raises the following issues for review: (1) whether the trial court erred in failing to instruct the jury on the lesser crime of reckless conduct; (2) whether defendant was denied a fair trial when the prosecutors, in closing arguments, distorted the ultimate issue in the case, voiced opinion as to a defense witness’ credibility and commented on facts not in evidence; and (3) whether defendant’s convictions for attempted murder and aggravated battery must be reversed where those convictions are based on the same conduct supporting the armed violence conviction.

We reverse.

At trial, Charles Rankin testified on November 22, 1978, he and his 8-year-old son, Martin, were at the Melody Lounge in Harvey, Illinois, where he saw defendant Sibley conversing with someone at the bar. The witness was defendant’s former employee. He saw defendant leave and return with a shotgun. Defendant pointed the shotgun at him and told him to “go outside.”

Rankin stated that once they were outside the lounge, Sibley asked, “Who broke in my joint? Where is my tools at? You better tell me before I blow your brains out.” The witness replied, “I swear to you, I don’t know nothing about your tools or anything.” Defendant pointed the shotgun at Rankin’s face. At that time, Martin was walking toward his father’s car. Rankin indicated that when defendant looked at Martin, he grabbed the barrel of the gun, they struggled, and defendant pulled the trigger. Martin was injured. Sibley told him to take Martin to the hospital. Rankin took his son to Ingalls Hospital. Rankin stated that he never touched defendant’s hand, which was on the gun during the struggle.

At the time of trial, Martin Rankin was 10 years old. Outside the presence of the jury, the trial judge conducted a competency hearing and found that Martin was competent to testify.

Martin Rankin testified that he watched Sibley point a shotgun at his father’s head. After he yelled, “Daddy, daddy,” defendant turned toward him. His father struggled with defendant, the shotgun discharged and he was struck in the right hip. Martin stated that defendant Sibley was the man who shot him. Over defense’s objection, Martin showed the jury his injuries.

Glendora Gray, Charles Rankin’s friend, testified that she was in a car with her husband in front of the Melody Lounge. She saw the struggle and saw Martin being shot. She was approximately 30 to 35 feet from Charles Rankin during the incident.

Coleman McCarthy testified that he is an investigator for the Harvey Police Department. After speaking with Mr. Rankin, he went to defendant’s home but no one was there. Thirty-five minutes later, he returned to defendant’s home, knocked on the door and saw movement in the house. When no one answered, he knocked the door down. Defendant, who was inside, offered no resistance and took the police to the area where the gun was recovered.

After a stipulation as to the treating physician’s testimony concerning Martin’s injuries, the State rested. Defendant’s motion for a directed verdict was denied.

The defense’s first witness was Mac Berry, defendant’s brother-in-law. Berry saw defendant pointing the gun at Rankin. He told Sibley that “he shouldn’t do this” because “he got a family.” Defendant said, “you’re right, brother” and lowered the gun. Thereafter, Rankin grabbed the gun and the two began to struggle. Berry indicated that he saw Martin fall after being shot.

Defendant Sibley, testifying in his own behalf, stated that he was self-employed, restoring custom and antique automobiles. On November 22,1978, he went to the Melody Lounge to have a beer before meeting his wife at the Illinois Central Railroad station. As he walked past Rankin, Rankin made a comment to him. Defendant went to the back of the tavern, saw a shotgun and picked it up, deciding he would “put a scare into Mr. Rankin.”. He had never seen the gun before and did not know how to use it. Defendant approached Rankin, showed him the gun and told him to step outside. Rankin admitted taking Sibley’s tools. Defendant did not threaten Rankin.

Sibley stated that once outside, Berry said to him, “It’s not worth it” and to consider his family. He lowered the weapon and Rankin grabbed the front of the gun, a struggle ensued and the gun discharged. Defendant explained that during the struggle there was a waving of the gun, backward, forward, down and around. He saw Martin had been shot and told Rankin to take his son to the hospital. Sibley stated that he never intended to shoot or harm Rankin; he only wanted to scare him. According to Sibley, he did not “pump” the gun to put a shell in the chamber. Later, at home, defendant was about to open his front door when the police kicked it down.

In rebuttal, the prosecution recalled Investigator McCarthy, who stated that he spoke with several persons at the Melody Lounge on the night of the shooting. McCarthy did not see Berry that evening.

Calvin Gray, husband of Glendora, testified that the gun was pointed at Rankin’s face and not at his stomach as stated by defendant. He did not see Berry that evening at the Melody Lounge.

During the instruction conference, the trial judge denied a defense request to instruct the jury on the charge of reckless conduct. After closing argument, the jury was instructed and deliberated. Defendant was found guilty on all counts. From this judgment, defendant appeals.

Defendant contends the trial court erred in failing to instruct the jury as to the lesser crime of reckless conduct. Thus, this error resulted in the denial of defendant’s right to a fair trial.

The specific issue for our determination is whether there is evidence in the record upon which the jury could have conceivably based a verdict of guilty of the lesser offense of reckless conduct. It is undisputed that a defendant is entitled to a tendered instruction as to a lesser included offense if there is any evidence fairly tending to bear upon it. (People v. Harris (1980), 90 Ill. App. 3d 703, 705, 413 N.E.2d 499, 501.) We have held that a gun is a deadly weapon capable of killing another, and that handling a gun improperly may be reckless conduct. People v. Perry (1974), 19 Ill. App. 3d 254, 258, 311 N.E.2d 341, 344.

Section 12 — 5 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 12 — 5) defines reckless conduct as follows:

“A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.”

Section 4 — 6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 4 — 6) defines the term, “recklessness” as follows:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.”

In the case at bar, the evidence established that defendant and Charles Rankin struggled over the gun and, during this struggle, the gun discharged injuring Martin. The testimony concerning the struggle, if believed by the jury, was sufficient to create an issue of fact as to whether defendant acted “recklessly.”

We believe the jury could have determined from the evidence that defendant’s conduct was such as could constitute a gross deviation from the standard of care which a reasonable person would exercise in the situation. In a jury trial, it is the province of the jury to determine the guilt or innocence of the accused, and also to determine whether the accused is guilty of aggravated battery or the lesser crime of reckless conduct if there is any evidence which tends to prove the lesser rather than the greater crime. (People v. Perry (1974), 19 Ill. App. 3d 254, 258, 311 N.E.2d 341, 345.) In the instant case, there was evidence which, if believed, tended to prove reckless conduct.

We conclude that the trial court erred in refusing the tendered instruction of the lesser included offense of reckless conduct.

Because the case must be reversed and remanded, we will not reach the other issues.

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

Reversed and remanded.

ROMITI, P. J., and JIGANTI, J., concur.


author: Mr. JUSTICE WHITE Mr. PRESIDING JUSTICE KASSERMAN,

text:
      In re MARRIAGE OF SALLY A. DUCEY, Petitioner-Appellee, and C. PATOUT DUCEY, Respondent-Appellant.
    Fifth District
    No. 80-581
    Opinion filed November 20, 1981.
    — Rehearing denied December 17, 1981.
    KASSERMAN, P. J., dissenting.
    Ducey, Feder & Ducey, Ltd., of Belleville (Cornelius Thomas Ducey, Jr., of counsel), for appellant.
    Jeanne Sathre and Jack Carey, both of Cohn, Carr, Korein, Kunin, Schlichter and Brennan, of East St. Louis, for appellee.
   Mr. JUSTICE WHITE

delivered the opinion of the court:

This is an appeal by the husband from a judgment awarding dissolution to both parties and providing for a division of the marital property, custody of the children of the parties, child support and other relief. The appellant raises the following issues on appeal:

1. The court erred in conducting a hearing on temporary support.

2. Petitioner failed to prove grounds.

3. The trial court erred in entering judgment for dissolution while reserving other issues for subsequent hearing.

4. The trial court erred in awarding child custody, child support, maintenance and marital property to the petitioner.

The evidence shows that the parties were married on June 27,1969, in Randolph County, Illinois. They were separated in January 1979. Two children were born to the marriage, both of whom were residing with the petitioner at the time of the hearing on the grounds held on December 13, 1979. The testimony regarding the grounds is as follows:

“MR. CAREY: All right. You’ve alleged in your petition, Mrs. Ducey, that the Respondent has been guilty of acts of extreme and repeated cruelty. Would you please specify these grounds to the Court at this time? Can you give us some specific details?
A Well, just continual arguing, and just unable to get along with him.
Q Has he caused you any emotional upset?
A Yes.
QI believe that you have acquired both real and personal property as a result of this marriage, is that correct?
MR. DUCEY: Wait. If that’s the grounds, then I think you better ask her about the physical effects of the acts if you’re going to set the grounds out.
MR. CAREY: I’m sorry?
MR. DUCEY: I would suggest that you ask her whether it had any physical effects upon her if you’re going to establish mental cruelty.
THE COURT: Proceed.
MR. CAREY: Mrs. Ducey, would you please tell the Court what the physical manifestations of this extreme mental cruelty were?
A He — Throughout our marriage he continually embarrassed me by calling me names using obscene language toward me in front of his family and in front of my family and in front of our children and friends. He always insisted that he was right about anything we discussed.
Q What kind of physical problems did that cause you, Mrs. Ducey? Did you lose sleep over it? Were you upset? Did you not eat? Were you unable to maintain employment? Please tell us physically what these problems caused.
A It caused me to be upset whenever it happened. It caused me great emotional stress. I often broke down and cried in front of his family. And I had asked him repeatedly not to embarrass me and call me names in front of anyone, but he did it anyway.
THE COURT: How did it affect your health, ma’am? Did you lose any weight or sleep or whatever?
THE WITNESS: No, I didn’t.
THE COURT: Mr. Carey.
MR. CAREY: I have nothing further, your Honor.
THE COURT: Mr. Ducey, proceed.
MR. DUCEY: No questions, your Honor.”

On December 13, 1979, an order pursuant to the testimony taken on that date was entered by the trial judge. The order stated, “The marriage between the parties hereto is hereby dissolved on the grounds of extreme and repeated mental cruelty and judgment of dissolution of marriage is granted to both parties.”

Subsequently a hearing was held by the court on the matters reserved. On November 13, 1980, a judgment of dissolution of marriage was entered by the trial court wherein the prior order was incorporated in the judgment order. The order made findings concerning custody, support, visitation and property rights.

Although the respondent has raised several issues in this appeal, we focus our attention on the grounds issue, particularly, the question of lack of proof on cause or provocation by the petitioner. Prior to 1967, the Divorce Act (Ill. Rev. Stat., ch. 40, par. 1 et seq.) permitted a divorce on the grounds of cruelty only in the event of physical cruelty. Although the word “provocation” was not used in the Divorce Act, as early as 1859 the supreme court in De La Hay v. De La Hay (1859), 21 Ill. 252, inferred that provocation was a necessary element of proof in cases alleging cruelty. In the case of Von Glahn v. Von Glahn (1867), 46 Ill. 134, 139, the court, in discussing instructions to the jury, held that it was error not to instruct the jury “whether the complainant had been guilty of like cruelty towards the defendant, or had given provocation to him by her own misconduct.”

In 1967, the Divorce Act was amended to read “has been guilty of extreme and repeated physical or mental cruelty”. In the case of Stanard v. Stanard (3d Dist. 1969), 108 Ill. App. 2d. 240, 246, 247 N.E.2d 438, the court made the following statement adopting provocation as a necessary element in mental cruelty: “This manner in which the statute was amended, as well as legal precedent and common sense, dictates that a party must show lack of provocation when a right to a divorce is based upon mental cruelty as well as when based upon physical cruelty: this is an essential element of the complaining party’s case.” The rule as enunciated in Stanard has been followed in Rosenbaum v. Rosenbaum (1st Dist. 1976), 38 Ill. App. 3d 1, 349 N.E.2d 73; Gregory v. Gregory (2d Dist. 1974), 24 Ill. App. 3d 436, 321 N.E.2d 122; Sharer v. Sharer (5th Dist. 1976), 39 Ill. App. 3d 818, 350 N.E.2d 779; McCarrel v. McCarrel, (4th Dist. 1974), 17 Ill. App. 3d 1034, 309 N.E.2d 252.

In Sharer, Justice Karns, speaking for this court, stated, “In addition plaintiff failed to prove adequately that plaintiff’s actions were not provoked. This is a necessary element of an action for divorce based on mental cruelty.” 39 Ill. App. 3d 818, 820.

On October 1,1977, the Illinois Marriage and Dissolution of Marriage Act became effective. (Ill. Rev. Stat. 1979, ch. 40, par. 101 etseq.) Section 401 of said act states: “Dissolution of Marriage. The Court shall enter a judgment of dissolution of marriage (formerly known as divorce) if:

(2) the court finds that, without cause or provocation by the petitioner: either party has been guilty of extreme and repeated physical or mental cruelty ® ® ® .”

Although provocation was not used in the prior act, the legislature made “without cause or provocation by the petitioner,” a necessary element of proof in the Marriage and Dissolution of Marriage Act. As stated in the early case of Birkby v. Solomon (1853), 15 Ill. 120, 122, “Where the offense charged is of a character which is provided for in the statute as a specific cause for a divorce, the degree of the offense must be measured by the statute, and where it does not come up to that standard, the courts have no right to say that an offense of the same character, but less in degree, shall be sufficient to dissolve the marriage contract.”

In In re Marriage of Visione (1981), 93 Ill. App. 3d 920, 921, 418 N.E.2d 191, the court, in discussing section 401(2) of the Marriage and Dissolution of Marriage Act, stated:

“Section 401(2) of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 401(2)) provides that the court shall enter a judgment of dissolution of marriage if the court finds that, without cause or provocation by the petitioner, the respondent has been guilty of extreme and repeated mental cruelty. Mental cruelty is a course of unprovoked, offensive conduct toward one’s spouse which causes embarrassment, humiliation and anguish so as to render the spouse’s life miserable and unendurable, and which actually affects the spouse’s physical or mental health. Christian v. Christian (1979), 69 Ill. App. 3d 450, 387 N.E.2d 1254.”

We hold that the trial court erred in granting a dissolution to the petitioner in this case where the record is absolutely void as to “cause or provocation.” As stated in Sharer, “While we recognize that the judgment of the trial court should not lightly be disturbed in divorce actions [citations], the public policy of this State to preserve the estate of marriage requires us to reverse the judgment of the trial court where sufficient proof of statutory grounds for divorce is lacking.” 39 Ill. App. 3d 818, 820.

Since petitioner failed to prove lack of provocation, the marriage should not have been dissolved; therefore, all other findings by the trial court are for naught.

We reverse.

JONES, J., concurs.

Mr. PRESIDING JUSTICE KASSERMAN,

dissenting:

I am unable to conclude that the judgment of the trial court should be reversed because petitioner has failed to establish lack of provocation for respondent’s alleged acts of mental cruelty; therefore, I respectfully dissent.

The record establishes that after a hearing concerning temporary custody and maintenance on September 5,1979, on December 13,1979, a hearing was held regarding petitioner’s grounds for dissolution of the marriage and an order was entered that date stating that the marriage between the parties was dissolved on the grounds of extreme and repeated mental cruelty and that judgment of dissolution of marriage was granted to both parties. Thereafter, in September 1980, a hearing was held regarding property disposition, custody, child support and maintenance; and on November 3, 1980, a judgment regarding dissolution of marriage, property division, custody, child support and maintenance was entered. Respondent’s brief on appeal was filed on April 20, 1981, in which, for the first time, respondent contends that petitioner has failed to prove lack of provocation for respondent’s alleged acts of mental cruelty. It .is upon this ground that the majority now reverses the order of the trial court.

The record indicates that respondent did not testify at the hearing regarding the grounds for dissolution of marriage and that thereafter respondent’s efforts were confined to questions of property distribution, child custody, support and maintenance. No motion, oral or written, for reconsideration of the finding of sufficiency of the grounds for dissolution appears of record. Further, at the close of the final hearing in this matter on September 22, 1980, the trial court inquired whether anyone had anything further to bring to the attention of the court. By way of answer, respondent’s counsel waived argument.

Based on the foregoing, it is my conclusion that respondent has waived the issue of sufficiency of proof of lack of provocation, an issue he raised for the first time on appeal when he filed his brief 16 months after the hearing on the grounds for dissolution of marriage. Moreover, after the finding of sufficiency of the grounds for dissolution, respondent concerned himself with only questions of property division, custody, support and maintenance. In that regard, this court has held in Sharer v. Sharer (1976), 39 Ill. App. 3d 818, 350 N.E.2d 779, that in the absence of a valid decree of dissolution, the trial court is without power to determine property interest of the parties.

The action of respondent and his counsel in the case at bar is comparable to those of defendant’s counsel in Hecht v. Hecht (1977), 49 Ill. App. 3d 334, 364 N.E.2d 330. In Hecht, the attorney for defendant was asked by the court whether he was interposing any objection or defense to the allegations made and in reply stated that he had no defense or objections. The instant case differs in that counsel for respondent made no such oral statement; however, the conduct of respondent and his counsel is comparable to the conduct of counsel in Hecht. In fact, respondent took no action indicative of his displeasure with the court’s ruling regarding the dissolution of marriage for a period of 16 months during which he litigated questions of property disposition, custody, support and maintenance which, according to Sharer, the court was without power to consider in the absence of a valid decree of dissolution.

I am of the opinion that the rationale of Hecht is dispositive of the instant appeal. After observing that at the hearing counsel for defendant stated that he had no objection to the evidence, the Hecht court concluded that the defendant had waived any objection, including that the evidence was insufficient. The court in Hecht then stated: “The time to raise the issue was at trial, not three months later on appeal. The defendant was entitled to a day in court. But having had his day in court, he is not entitled to change his mind and ask that the game be replayed under a different set of rules.” 49 Ill. App. 3d 334, 341, 364 N.E.2d 330, 334.

For the foregoing reasons, I would affirm the judgment of dissolution entered by the trial court.