text:
    MARIE A. SHOOK, Plaintiff-Appellant, v. RITA TINNY, Defendant (State Farm Fire & Casualty Co., Garnishee-Appellee).
    Third District
    No. 3—83—0482
    Opinion filed March 16, 1984.
    Charles G. Roth, Julia A. Schmidt, and David J. Dubicki, all of Kavanagh, Scully, Sudow, White and Frederick, P.C., of Peoria, for appellant.
    Robert H. Jennetten, of McConnell, Kennedy, Quinn & Johnston, of Peoria, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

After plaintiff Marie Shook obtained a judgment of $26,800 against defendant Rita Tinny for personal injuries, plaintiff filed a garnishment action against defendant’s insurer, State Farm Fire & Casualty Company. State Farm moved to dismiss the garnishment proceeding on the ground that coverage was excluded under the terms of its policy, and plaintiff has brought this appeal from the order of the circuit court of Peoria County, which granted the motion to dismiss.

Rita Tinny and her husband Chris Tinny owned a condominium in Peoria where they lived together until February 1, 1980, when Rita, who was a jewelry buyer for Montgomery Ward, accepted an employment opportunity in Chicago and moved to the Chicago area. Chris was a luggage salesman who traveled during the week and who was expecting a transfer to the Chicago area in April of 1980. The Tinnys had their condominium for sale and saw each other only on weekends. Rita was required to work on Saturday and Sunday, June 7 and 8, 1980, and she was not planning to come to Peoria for Chris’ birthday on Saturday. Chris told her that he had to stay in Peoria for the weekend because of an open house the realtor had scheduled for the condominium. Rita decided to surprise Chris by driving to Peoria after work Saturday accompanied by a friend who would drive her back to Chicago in time for work Sunday morning.

When Rita arrived at the condominium about 9:30 p.m., she was surprised to see a large party in progress around an outdoor grill. There was a keg of beer and a large number of people on the premises. Chris had invited all the residents of the building to a party. Chris met Rita in the parking lot when she first drove up, and they exchanged a few words. He then disappeared for the remainder of the evening. Rita entered the condominium in a rage. She announced that the party was over and ordered everyone to leave. She threw several potted plants on the floor and broke them; she threw a birthday cake across a room; she removed all the telephones, draperies, and some of her husband’s suits.

One of the guests was Marie Shook, a resident of the same building who had never previously met Chris Tinny. She testified she was outside when Rita arrived. She went into the kitchen to return the glass which she had been using when she encountered Rita. Rita told her to leave and then asked for the glass back. As she extended her arm to hand Rita the glass, some of the drink spilled onto Rita, and Rita struck her in the face. According to Rita, Rita put her hand out to defend herself and when her hand came in contact with Marie’s face, she gave a slight push. Marie, on the other hand, said she received a hard blow to the face with a fist or something hard which caused her to black out. When she regained consciousness, she was outside the apartment and bleeding profusely from her nose. She was treated at an emergency room for a fractured nose, and eventually had to have reconstructive surgery. There is permanent nasal damage. Both eyes were blackened, and Marie experienced a great deal of pain after the blow. At the time of the incident, Rita was 5 feet 2 inches tall and weighed 99 pounds.

Marie filed suit against Rita for damages. According to the record, after plaintiff filed an amended complaint alleging both negligence and wilful and wanton misconduct, defendant’s attorney asked for an extension of time to respond because the attorney had been retained by State Farm and the amended complaint created a conflict of interest. Thereafter, there was a substitution of attorneys for defendant, and for the remainder of the trial she was represented by her personal attorney.

The jury found total damages of $40,000; found Rita responsible for 70% of the damages; found Marie responsible for 30%; and fixed Rita’s portion at $26,800. The court entered judgment on the verdict.

Thereafter plaintiff filed a garnishment action against State Farm to collect the judgment under the Tinny’s homeowner’s policy which was in effect at the time of the incident. State Farm defended the garnishment action on the ground that this occurrence was excluded from coverage under a provision of the policy which excluded “bodily injury *** which is expected or intended by the insured.” At the trial before the court, both Rita and Marie testified, and the report of proceedings from the negligence trial was introduced into evidence along with several pictures depicting Marie’s injuries and the location of the incident. The trial court made written findings of fact, including a finding that Rita struck Marie a blow with her fist, that the blow “was delivered intentionally and with the expectation and intention to injure Marie,” that the injuries were not covered by the policy of insurance, and that State Farm is not indebted to Marie. The trial court found for the defendant, and plaintiff appeals. We affirm.

Plaintiff’s first contention is that State Farm was barred by the doctrine of collateral estoppel from denying coverage after the jury trial resulted in a finding of negligence liability against its insured, Rita Tinny. Plaintiff points out that under the terms of its policy, State Farm was required to defend a negligence action against its insured, that no reservation of rights was given to its insured, and that no appeal was taken from the judgment in the personal injury action. State Farm argues that plaintiff waived the defense of collateral estoppel in this proceeding because it was neither pleaded nor argued in the trial court. The record discloses that plaintiff did mention the defense of res judicata (of which collateral estoppel is one branch) in her argument before the trial court and in her post-trial motion in this garnishment proceeding. Accordingly, for purposes of this appeal, we believe the trial court and the parties had sufficient notice of the issue to preserve it for consideration by this court.

Plaintiff argues that State Farm defended without a reservation of rights. However, the record in this case is silent as to whether State Farm gave its insured a reservation of rights. What is clear is that State Farm recognized that there was a conflict between insurer and insured as a result of the allegations of the amended complaint, that State Farm expressed its intention to notify its insured of the conflict, and that thereafter defendant Rita Tinney was represented by her personal attorney and not the attorney previously retained by State Farm. These facts are similar to the situation in Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335, where the insurance policy in question excluded from coverage injuries caused by assault and battery. In a personal injury action brought against the insured, the complaint alleged both battery and negligence, and thereby created conflicting interests between the insured and the insurer. After the plaintiff and the defendant entered into an agreement that the plaintiff. would collect only from the insurance company, the defendant failed to defend, and a default judgment in favor of the plaintiff was entered. The plaintiff then filed a garnishment proceeding to collect the judgment from the insurer. The supreme court ruled that the insurer could assert noncoverage as a defense to the garnishment proceeding because of the conflict, and also ruled, inter alia, that the insurer was not required to provide a defense to the insured in such a conflict situation even though the allegations of the complaint established potential coverage.

In a case which preceded Thornton v. Paul (1978), 74 Ill. 2d 132, 384 N.E.2d 335, the same conclusion was reached. Discussing the dilemma of the insurer in a case where a tort claim is brought against the insured in negligence but investigation indicates that the act was intentional, the court in Cowan v. Insurance Co. of North America (1974), 22 Ill. App. 3d 883, 891, 318 N.E.2d 315, 322, stated:

“In instances where the insurer refuses to defend, the better-reasoned cases hold that the insurer is not bound by the prior adjudication on questions of policy coverage.”

The court in Cowan went on to explain that the binding effect of a judgment against the insured would not extend to matters outside the scope of the insurance contract. (The rule followed in Cowan and Thornton does not apply in cases where there is no conflict of interest between the insured and insurer.)

The insurance policy in Cowan contained an exclusionary clause identical to the one in the case before us. The underlying tort action was based on allegations of assault and battery, but the instructions to the jury were drafted in terms that permitted the jury to find either <<<*** ac£ua] or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others.’ ” (Cowan v. Insurance Co. of North America (1974), 22 Ill. App. 3d 883, 895, 318 N.E.2d 315, 325.) The reviewing court concluded that since the instruction was worded in the disjunctive, the jury did not necessarily decide the issue of intentional injury. The court stated:

“It is well-settled that in order for a previous adjudication to be conclusive, it must appear clearly and certainly that the identical and precise issue was decided in the former action.” 22 Ill. App. 3d 883, 895, 318 N.E.2d 315, 325.

We think the same situation exists in the case at bar. The jury was instructed that plaintiff claimed the defendant was negligent in that she swung her right arm and hand without sufficient control or that she swung her right arm and hand at a speed greater than was then and there reasonable and proper for the safety of others. Neither this nor any other instruction advised the jury to consider whether plaintiff’s injury was expected or intended by defendant, as the coverage exclusion in the policy provided. Thus, we think it clear that the jury made no finding as to intention and that there is no identity of issues between the personal injury action and the garnishment action. As a consequence, State Farm is not estopped from denying coverage in the latter proceeding.

Plaintiff next argues that the court erred in finding that the injury to defendant was intended by plaintiff. Plaintiff insists that a subjective standard must be applied to determine intent and that these injuries were the unintentional result from an intentional act. Considering defendant’s testimony denying any intention to cause injury, plaintiff claims that the subjective intention of defendant was a matter of record and binding on State Farm. We agree that the factual question is one of defendant’s intent. However, we do not agree that defendant’s own testimony must be considered conclusive on the issue under the circumstances of this case.

To fully respond we must examine the language of the policy provision which excludes coverage for “bodily injury *** which is expected or intended by the insured.” The Illinois Supreme Court has recently discussed an exclusionary clause identical to the one in this case, as follows:

“The terms ‘intended’ or ‘expected’ included in such clauses have not been treated as synonymous. Otherwise, no purpose would be served by including them within the clause. A greater degree of proof is required to establish intent than to establish expectation. [Citation.] Injuries which are of such a nature that they should have been reasonably anticipated by the insured are ‘expected’ injuries.” (Bay State Insurance Co. v. Wilson (1983), 96 Ill. 2d 487, 494, 451 N.E.2d 880, 882.)

It was obviously reasonable for the trial court in the case at bar to consider the nature and extent of the injuries to plaintiff’s face in determining that the defendant should have reasonably anticipated or expected injuries to result from the blow she inflicted. The trial court expressly rejected defendant’s version of the events, and the court was within its prerogative as finder of fact in so doing. Plaintiff insists that State Farm was bound by defendant’s uncontradicted testimony as to her intent, since State Farm called defendant as an adverse witness, but we cannot agree that the testimony was uncontradicted; the surrounding circumstances cast grave doubt upon defendant’s veracity. The court was not required to believe defendant in the face of circumstantial evidence to the contrary and in view of plaintiff’s testimony that she was struck by something hard, presumably a fist.

The classic statement of the fact-finding process is found in People v. Biella (1940), 374 Ill. 87, 89, 28 N.E.2d 111, 112, where the court said:

“The circumstances under which the act in question was done usually serve to manifest to a great degree the intent of the actor and may overcome his declaration as to his intention, but he has the right to testify to his intention and to have the circumstances surrounding the act considered in connection with his testimony.”

Here the trial court clearly considered the circumstances surrounding this incident. Defendant was enraged and was reacting violently to her real or imagined betrayal by her husband. She broke potted plants, threw the birthday cake, pulled down draperies, tore telephones from' the wall, and ordered her husband’s guests out of the house, all of this prior to her encounter with plaintiff. Although she described her contact with plaintiff as a slight push, it was sufficient to do extensive damage to plaintiff’s face. Plaintiff described the contact as with something hard, which caused a “pop” sound, and which knocked her unconscious. Considering the circumstances, we cannot say that the trial court erred in finding that the blow “was a very forceful one and was delivered intentionally and with the expectation and intention to injure Marie.”

Plaintiff pursues the same argument further by contending that the findings of the trial court were contrary to the manifest weight of the evidence. As our previous discussion of the evidence indicates, we disagree. Considering the totality of the circumstances, the decision of the trial court was not contrary to the manifest weight of the evidence.

Judgment affirmed.

HEIPLE and STOUDER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. FRED D. BRAASCH, Defendant-Appellee.
    Second District
    No. 83—1
    Opinion filed March 19, 1984.

      J. Michael Fitzsimmons, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, of counsel), for the People.
    John F. Donahue, of Oak Brook, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

The State brings this interlocutory appeal (87 Ill. 2d R. 604(a)(1)) from an order of the trial court which granted the motion of the defendant, Fred Braaseh, to suppress cannabis which an Illinois State police trooper discovered pursuant to an inventory search inside a paper bag in the trunk of the automobile which defendant was driving.

On appeal, the State contends that the trial court erred when it granted the defendant’s motion to suppress, because (1) cannabis was discovered pursuant to a valid inventory search of the vehicle; (2) the cannabis was admissible under the theory of evidence discovered incident to a lawful custodial arrest; and (3) the defendant did not have standing in the first place to seek suppression of the cannabis.

The defendant was charged with the unlawful possession of more than 30 grams but less than 500 grams of a substance containing cannabis. (Ill. Rev. Stat. 1981, ch. 56V2, par. 704(d).) Defendant filed a motion to suppress the evidence, a quantity of cannabis, which a State trooper seized from the automobile defendant was driving. The motion alleged that the warrantless search of the vehicle and seizure of the cannabis following his being stopped for a traffic violation constituted a violation of the defendant’s rights under the fourth amendment to the United States Constitution (U.S. Const., amend. IV) and article I, section 6 of the Illinois Constitution (Ill. Const. 1970, art. I, sec. 6).

At the suppression hearing the defendant testified that he was driving his mother’s vehicle on Interstate Highway 55 (1-55) near Cass Avenue at approximately 1:40 a.m. on January 26, 1982. At that time a State trooper stopped the defendant for failure to use a turn signal when changing lanes. According to the defendant, he had a beer bottle on the floor of the vehicle, and the trooper noticed it. The trooper asked the defendant whether he possessed a driver’s license, and the defendant responded in the negative. The trooper advised the defendant that he was being placed under arrest for driving under the influence of alcohol.

After the trooper handcuffed the defendant and placed him in the front seat of the squad car, he called in and determined the car was not stolen. Then he returned to the vehicle the defendant was driving, checked the inside of the car, removed the keys from the ignition, and opened the trunk of the automobile. The trooper searched the trunk and found a brown paper bag which contained marijuana. Defendant testified the top of the bag was “closed up,” or “wrapped down, not folded.” The defendant related further that the trooper did not display a search warrant for the car, did not have permission to remove the keys from the ignition, and did not inform the defendant that he was acting pursuant to an outstanding arrest warrant for an unrelated offense. Defendant stated he had placed a small quantity of marijuana in a bag into a tool box on the back floor which was still there when he recovered the car.

Ed Donath, an Illinois State police trooper, recounted that he was on patrol on 1-55 on the morning in question when he observed a vehicle driving in an erratic manner, weaving from lane to lane. After following that automobile for about one mile, Donath stopped the defendant who was alone in the car. Trooper Donath asked the defendant to explain why he was driving in such an erratic manner. At this time the officer noticed the odor of alcohol and realized that the defendant was not aware that he had been driving erratically. When Donath asked to see the defendant’s driver’s license, the defendant responded that he did not have one because it had been revoked. Trooper Donath also observed that the defendant’s speech appeared sluggish and somewhat slurred. In Donath’s opinion, the defendant was not physically able to drive. Then the witness arrested the defendant for driving under the influence of intoxicating liquor.

After arresting the defendant, the trooper placed the accused in the squad car and asked the defendant whether he would be able to have the car removed or be able to make bond, because he was going to transport the defendant to jail. The defendant replied that the car belonged to his mother, that he was unable to post bond, and that he had nobody to call to get him. According to Trooper Donath, the vehicle in question was located on the shoulder of 1-55, and it would have been illegal for the car to remain parked there because parking is only allowed on a controlled-access highway, such as 1-55, under emergency conditions. Donath related further that it is the policy of the Illinois State police to arrange to have all vehicles towed if a subject is arrested and to conduct an inventory search of all vehicles that are towed. Accordingly, the officer conducted an inventory search of the vehicle to ascertain what personal items were in the car.

Trooper Donath testified that he first examined the interior of the automobile, including the driver’s area and the backseat and floor but excluding the area under the seats, and then checked the trunk to see if there were any tools present. He opened the trunk with the defendant’s key and noticed a spare tire and a brown paper bag in the center of the trunk. The bag was not taped or stapled, and one end of the bag was open. He lifted up that end to look inside to determine the bag’s contents. He observed a clear plastic bag inside the brown bag which contained a green, leafy substance that he presumed was cannabis. He prepared an inventory sheet of all the items of personal property that were inside the car. He also stated that his sole purpose in conducting the search of the trunk was for inventory purposes.

At the suppression hearing the only theory which the State advanced before the trial court was that Trooper Donath conducted a valid inventory search of the trunk of the vehicle. Subsequently, the trial court granted the defendant’s motion to suppress, stating, among other things, that there was a lawful arrest for a violation of the motor vehicle law; that there was no evidence that the defendant was transporting or in possession of contraband prior to the time the trooper opened the trunk and brown paper bag; that the inventory search was pursuant to departmental policy; that the departmental policy to inventory a motor vehicle stopped on the highway was insufficient to justify an inventory search in this case; and that the contents of the brown bag were not open to view. Thereafter, the State filed a motion to reconsider, again arguing that this was a valid inventory search, which the trial court denied.

The State has contended in its appellate brief for the first time that the defendant lacked standing to raise the claim of a fourth amendment violation because the vehicle he was driving belonged to his mother. However, the State has waived its right to challenge the standing of the defendant, where the defendant has prevailed below on his motion to suppress, by failing to raise the argument in the trial court in either its argument on the motion to suppress or in the motion to reconsider the court’s ruling on the motion to suppress. People v. Holloway (1981), 86 Ill. 2d 78, 91-92, 426 N.E.2d 871; People v. Chianakas (1983), 114 Ill. App. 3d 496, 501-02, 448 N.E.2d 620.

In similar fashion, the State has for the first time, without citation of authority, asserted that the search was pursuant to a lawful custodial arrest. This argument is waived by failing to raise it in the court below (People v. Fuentes (1980), 91 Ill. App. 3d 71, 76-77, 414 N.E.2d 876; People v. Valdez (1980), 81 Ill. App. 3d 25, 27-28, 400 N.E.2d 1096), and by failing to cite any authority or present a reasoned argument in compliance with Supreme Court Rule 341(e) (87 Ill. 2d R. 341(e)). We choose not to ignore the waiver rule (see People v. Hoskins (1984), 101 Ill. 2d 209), as our resolution of the remaining issue determines the search issue.

The State’s principal argument on appeal is that the defendant having been arrested for driving while under the influence of alcohol and the vehicle he was driving having been subject to impoundment, • Trooper Donath was justified in conducting an inventory search of the automobile pursuant to departmental policy. While the trial court found there was a lawful arrest of defendant and the search of the automobile was made pursuant to departmental policy, it concluded that the departmental policy to inventory a motor vehicle stopped in the interstate roadway was insufficient to justify the inventory search in this case.

On a motion to suppress evidence, the defendant has the burden of proving that the search and seizure were unlawful. (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 12(b); People v. Hoskins (1984), 101 Ill. 2d 209.) A trial court’s determination on a motion to suppress evidence will not be overturned unless it is found to be clearly erroneous. People v. Clark (1982), 92 Ill. 2d 96, 99, 440 N.E.2d 869.

The controlling decision on the validity, under the fourth amendment to the Federal Constitution, of the inventory search of an impounded vehicle is that of the Supreme Court of the United States in South Dakota v. Opperman (1976), 428 U.S. 364, 49 L. Ed. 2d 1000, 96 S. Ct. 3092. The opinion in Opperman mentions three legitimate objectives for an inventory search of a car where authorities impound a vehicle and follow a routine practice of securing and inventorying the automobile’s contents: the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger. (428 U.S. 364, 369, 49 L. Ed. 2d 1000, 1005, 96 S. Ct. 3092, 3097.) In Illinois, our supreme court has followed the reasoning of Opperman in inventory search cases in People v. Clark (1976), 65 Ill. 2d 169, 357 N.E.2d 798. The inventory intrusion into a vehicle is tested for its constitutionality by an application of the fourth amendment reasonableness standard. People v. Boyles (1980), 82 Ill. 2d 128, 135, 411 N.E.2d 1346; People v. Hamilton (1979), 74 Ill. 2d 457, 465, 386 N.E.2d 53; see generally, 2 W. LaFave, Search & Seizure sec. 7.4, at 563 (1978).

On appeal defendant appears to contend that it may be inferred that Trooper Donath opened the trunk in order to search the vehicle without probable cause. He suggests that Trooper Donath’s failure to look under the seat area for articles of personal property evinces an intent to search the vehicle generally to see what he could find rather than a purpose to carefully examine the vehicle for an inventory of its contents. Defendant has not challenged the validity of the State police policy to inventory towed vehicles.

Where an inventory search is a pretext for concealing an investigatory motive, it will be deemed illegal and the evidence so found must be excluded. (People v. Reincke (1980), 84 Ill. App. 3d 222, 225-26, 405 N.E.2d 430; People v. Fox (1978), 62 Ill. App. 3d 854, 379 N.E.2d 917.) Also, the mere existence of a police regulation authorizing impoundment and search of all vehicles of arrested persons when the vehicle is not parked on the owner’s property cannot be used as a predicate to determine the reasonableness of an inventory search of a vehicle. People v. Schultz (1981), 93 Ill. App. 3d 1071, 1075-76, 418 N.E.2d 6.

The unrebutted testimony of Trooper Donath was that it was the policy of the Illinois State police that if a subject is arrested and taken from his vehicle, the vehicle must be towed and an inventory search of the vehicle conducted. He stated that the search of the interior and trunk of defendant’s vehicle was instituted solely for this purpose. He prepared an inventory sheet of the personal property found inside the vehicle. The trial court found that the inventory search was made pursuant to departmental policy. There is no hint whatever of any improper motive on the part of Trooper Donath, and we do not find the trial court’s finding in this regard to be erroneous. See People v. Clark (1976), 65 Ill. 2d 169, 175, 357 N.E.2d 798.

Also, in determining whether an inventory search is reasonable, the threshold question is whether the prior impoundment was proper since the need and justification for the inventory arises from the impoundment. (People v. Brown (1981), 100 Ill. App. 3d 57, 63-64, 426 N.E.2d 575; People v. Schultz (1981), 93 Ill. App. 3d 1071, 1075-76, 418 N.E.2d 6.) Defendant maintains that the vehicle defendant was driving was situated on the shoulder of the controlled-access highway because it was stopped there by Trooper Donath and, furthermore, that there was no evidence that the car created a danger to traffic on 1-55.

Trooper Donath testified that the vehicle was parked on the shoulder of 1-55, and it would have been illegal for the car to remain parked there because such parking is only allowed on a controlled-access highway under emergency situations. Section 11 — 1303(a)(l)(j) of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95%, par. 11— 1303(a)(l)(j)), provides, in pertinent part, that parking of a vehicle is prohibited “[o]n any controlled-access highway.” The shoulder of a highway is a part of the highway (Ill. Rev. Stat. 1981, ch. 95%, par. 1 — 126), and defendant’s parked vehicle thus fell within the proscription of section 11 — 1303(a)(l)(j). The fact that defendant was directed to pull over to the side of the road by Trooper Donath and subsequently arrested for an unlawful act, which led to the vehicle remaining on the shoulder of 1-55, cannot be construed as coming within the exception to the section 11 — 1303(a) prohibition which allows parking “in compliance with *** the directions of a police officer.” (Ill. Rev. Stat. 1981, ch. 95%, par. 11 — 1302(a).) Furthermore, section 11— 1302(c)(3) (Ill. Rev. Stat. 1981, ch. 95%, par. 11-1302(c)(3)) authorizes any police officer to remove or cause to be removed to the nearest garage or other place of safety any vehicle found upon a highway when the person driving is arrested for an alleged offense for which the officer is required by law to take the person arrested before a “magistrate” without unnecessary delay. No one else was with defendant who could remove the vehicle from the highway, and there is no evidence that defendant could contact someone to come to the location within a reasonable time to remove the vehicle. Defendant himself could not remove the vehicle to some other proper location as he was arrested for driving while under the influence of alcohol and did not have a valid license. Under these circumstances, the impoundment pursuant to departmental policy of the vehicle defendant was driving was proper.

Finally, although we conclude the inventory is lawful, we must also examine whether the scope of the vehicle inventory was permissible. Here, the intrusion for inventory purposes extended to the locked trunk of the vehicle and to a paper bag found within the trunk in which a quantity of marijuana was found. Examining initially the question of the reasonableness of the locked trunk inventory search, we are aware of no Illinois decision on this question and the authorities in other jurisdictions are divided. (See 2 W. LaFave, Search & Seizure sec. 7.4, at 579 (1978); State v. Prober (1980), 98 Wis. 2d 345, 353 n.5, 297 N.W.2d 1, 6 n.5; Annot., 48 A.L.R.Sd 37-38 (1983 Supp.).) In State v. Prober (1980), 98 Wis. 2d 345, 297 N.W.2d 1, the Wisconsin Supreme Court, in considering the question whether a locked automobile trunk is within the permissible scope of an otherwise valid inventory search, stated:

“We are aware that legal authority is to be found both approving and disapproving trunk inventory searches, but in view of the recognized purposes served by inventory searches, we conclude that the better-reasoned cases authorize police inventory searches of locked and unlocked automobile trunks, glove compartments, and other compartments of a vehicle in which the owner might reasonably be expected to put personal effects or items of value.
To exclude these kinds of compartments from the scope of inventory searches would clearly thwart the first stated objective of protecting the property itself while it is in custody. It is a meritless argument to say that the owner of the car was satisfied with the security offered by these compartments because the storage of a vehicle at a police storage yard for an indeterminate length of time was not likely to be the sort of circumstances the owner had in mind in storing valuables in the car. Even more clearly, the second purpose for these searches, protection of the police against claims of loss, is not served if police do not inventory the entire contents of the vehicle. Police cannot reasonably be expected to defend against claims of loss, whether legitimate or false, reasonable or unreasonable, if they are not permitted to catalog what they took into custody. Moreover, a car owner inclined to make a false claim could be expected to base the claim on property missing from an area the police were not permitted to search. Finally, the third purpose, protection of the police from potential danger, can only be served by allowing police to inventory the contents of automobile trunks and other compartments. Whether the potential danger is a weapon which, if stolen, could pose a serious safety threat, explosives or even a leaking spare gasoline container threatening to ignite the vehicle, it can be averted only by permitting police to discover these before the potential harm materializes. In sum, we agree with the supreme court of New Mexico in State v. Ruffino, 612 P.2d 1311, 1313, 94 N.M. 500 (1980), that to forbid valid inventory searches of automobile trunks, glove compartments, and the like would effectively frustrate the fundamental purposes of such searches.” 98 Wis. 2d 345, 353-55, 297 N.W.2d 1, 6-7.

Our supreme court in People v. Clark (1976), 65 Ill. 2d 169, 357 N.E.2d 798, held that an inventory search of the unlocked glove compartment of the defendant’s vehicle was a reasonable one. The circumstance that the defendant was present so that the arresting officer could have requested his consent does not satisfy the objectives for an inventory search of the car. (65 Ill. 2d 169, 174, 357 N.E.2d 798.) Although there is authority that sealing the trunk is a better alternative, it is unlikely that the United States Supreme Court would impose a sealing of the trunk requirement upon the police as a constitutional matter. (2 W. LaFave, Search & Seizure sec. 7.4, at 222-23 (1984 Supp.).) The situation here is not one where the trunk is forced open. (See Martinez v. State (Tex. App. 1982), 644 S.W.2d 104, 110.) On balance, we are persuaded by the reasoning, set forth above, of the Wisconsin Supreme Court in State v. Prober, and conclude that the entry by use of defendant’s key into the impounded vehicle he was driving for the purpose of an inventory of its contents pursuant to departmental policy was not unreasonable.

Once the trunk was opened, Trooper Donath observed a paper bag, in which a plastic bag containing marijuana was found. While there is some dispute in the record whether the paper bag was open at one end or closed, we do not regard that fact as determinative in view of the recent decision of Illinois v. LaFayette (1983), 462 U.S. 640, 77 L. Ed. 2d 65, 103 S. Ct. 2605. In LaFayette, the Supreme Court held that it was not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person at the station house, to search any container or article in his possession, in accordance with established inventory procedures. (462 U.S. 640, 648, 77 L. Ed. 2d 65, 73, 103 S. Ct. 2605, 2611.) While the defendant argues that LaFayette is limited in its scope to containers found on an arrested person searched at the station house, Professor LaFave states that the Supreme Court would reach the same conclusion as to containers within inventoried vehicles. (2 W. LaFave, Search & Seizure sec. 7.4, at 223 (1984 Supp.).) We note that in People v. Bayles (1980), 82 Ill. 2d 128, 411 N.E.2d 1346, our supreme court held that the procedure of inventorying the contents of a suitcase found in a lawfully impounded vehicle was, in the absence of exigent circumstances, unreasonable. (See also People v. Velleff (1981), 94 Ill. App. 3d 820, 419 N.E.2d 89.) The court, however, expressly observed that the United States Supreme Court had not yet ruled on whether inventories of closed containers can be reconciled with the fourth amendment guarantee. (People v. Bayles (1980), 82 Ill. 2d 128, 135, 411 N.E.2d 1346.) We believe the recent ruling in LaFayette now calls into question the result reached in Bayles, and, in particular, compels an opposite result under the facts here. Defendant has not contended that the State police policy to inventory the contents of the trunk was not a routine procedure. Accordingly, on this record we find the search of the trunk and its contents reasonable.

For the foregoing reasons, we conclude that the trial court’s granting of the motion to suppress evidence was clearly erroneous, and we reverse that judgment and remand for further proceedings consistent with this opinion.

Reversed and remanded.

VAN DEUSEN and HOPF, JJ., concur.


author: JUSTICE UNVERZAGT

text:
      In re ESTATE OF HAROLD L. BENNETT (Betty S. Bennett, Petitioner-Appellant, v. Harold L. Bennett, Respondent (Nola Bennett et al., Cross-Petitioners-Appellees)).
    Second District
    No. 83—190
    Opinion filed March 19, 1984.

      Walter P. Maksym, Jr., Aldo E. Botti, and Peter A. Monahan, all of Botti, Marinaccio & Maksym, Ltd., of Oak Brook, for appellant.
    Geister, Schnell, Richards & Brown, and Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir & Johnson, P.C., both of Elgin, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This appeal arises from certain orders entered in the circuit court of Kane County following a guardianship hearing held pursuant to the Probate Act of 1975. (Ill. Rev. Stat. 1981, ch. 110½, par. 11a — 1 et seq.) The February 1, 1983, orders provided that the respondent, Harold L. Bennett, was a disabled person in need of a limited guardian for his person and estate. Nola Bennett, Harold’s mother, and Marie Marler, Harold’s sister, were appointed as limited co-guardians. Harold’s wife, Betty S. Bennett, the initial petitioner in the proceedings, filed an appeal from the orders.

On April 16, 1981, Betty S. Bennett (petitioner) filed a petition for appointment of guardian for disabled person. She alleged that her husband, Harold L. Bennett (Harold or respondent), was a disabled person in need of a plenary guardian. The petitioner asked that she be appointed plenary guardian for Harold’s person and his estate.

On April 27, 1981, the court appointed Donald Hughes as guardian ad litem for the respondent. (Ill. Rev. Stat. 1981, ch. 110½, par. 1 la-10.) The guardian ad litem served a notice of petition and rights on the respondent. He also filed an answer and report to the petition for guardianship on July 29, 1981. A hearing was held at which the guardian ad litem presented his report.

The guardian ad litem stated in the report that he met with the respondent. He also spoke with the petitioner, Harold’s sister, brother and mother. The guardian ad litem was satisfied that the respondent was unable to manage his financial affairs and to care for himself and was in need of a plenary guardian.

Attorney Van Richards was appointed to represent the respondent during the proceedings.

On the court’s own motion, two physicians were appointed to conduct independent examinations of the respondent. The doctors, F. R Johnson, M.D., and Werner Tuteur, M.D., filed reports.

Nola Bennett and Marie Marler (cross-petitioners) filed an answer to petition and a cross-petition on December 16, 1981. Subsequently an amended answer and cross-petition were filed. The cross-petitioners requested that either one or both of them be appointed as limited guardians for Harold’s person and estate.

The guardianship hearing began on July 1, 1982, and it extended over several months on various dates. It was a bench hearing. The court had granted the respondent’s motion to be excused from the hearing during the time he was not testifying.

The incident which led to the guardianship proceeding was a stroke suffered by Harold on June 13, 1979. Harold underwent brain surgery about a month after the stroke. After the initial surgery, he was placed in the hospital again in order to have a shunt placed in his head. Harold was finally discharged from the hospital on November 16, 1979. At the time the hearing began he was 51 years old and was living with his mother.

From Harold’s own testimony it was evident that he had a speech impediment. However, he was well aware of his current situation. Harold could identify people, knew dates, understood his health problems, and could recall things in the past, although with some difficulty. He indicated an understanding of the questions posed to him. He showed an understanding of his financial affairs such as his income sources. He also had a fairly accurate understanding of the value of his estate. Although Harold seemed confused at times, some of the confusion was caused by a failure of those in the courtroom to understand him. He was also testifying for a long time.

Much of the testimony from the petitioner was irrelevant to Harold’s current condition. The petitioner had not had any close contact with Harold in over a year. Although the petitioner described the respondent’s physical and mental capacities during the time she cared for him as being quite limited, she said that Harold participated in the decision-making in certain financial matters involving personal property sales.

Testimony was heard from the cross-petitioners, Harold’s brother-in-law, and two people who resided in the house where Harold lived. There was also testimony from four expert witnesses.

The testimony showed that Harold could walk with the aid of a walker although he also used a wheelchair. At home he could walk with the help of railings installed in the house by his sister and brother-in-law. Harold could feed, shave, and bathe himself. He also went shopping every week with his mother. He received physical therapy.

The respondent took medication such as Valium to keep him calm. He was under a doctor’s care. Although Harold did not have a driver’s license, he drove a pickup truck in a nearby field. He was accompanied by someone when he drove, usually his brother.

Doctor Marvin Ziporyn, a psychiatrist, was called by the petitioner. The doctor performed a standard psychiatric examination of Harold. The doctor concluded that Harold had cortical damage and suffered from organic brain syndrome. The respondent suffered from a subdivision of organic brain syndrome, amnestic syndrome, which resulted in memory difficulties.

Because of Harold’s mental deterioration, the doctor said he was not fully capable of managing his estate or person. The respondent’s insight was poor, and his judgment, physical functioning, and ability to learn new tasks were impaired. Harold’s opinion as to who his guardian should be would be of no value to the court. The doctor recognized that Harold could handle fully perhaps 90% of what goes on. Overall, the doctor believed that Harold required a plenary guardian for his person and estate.

Harold was examined by two other psychiatrists, Dr. Werner Tuteur and Dr. Frank P. Johnson. A clinical psychologist, Dr. Martin W. Scripp, also conducted an examination. They were called to testify by the cross-petitioners. Their testimony indicated that Harold had residual findings of a stroke such as slurred speech, visual impairment and spastic gait. Certain tests were performed. Harold was found to be alert and coherent.

Generally, their testimony indicated that Harold was capable of managing his person and estate with assistance from someone. He had a problem communicating because of his speech but he was goal-directed and coherent. Due to a deficiency in conceptual abilities, Harold’s reasoning process could experience gaps. However, with support and assistance from a limited guardian, Harold could manage his estate and financial affairs. It was recommended that Harold’s opinion be considered in the selection of a guardian. The three doctors believed a limited guardianship for Harold’s person and estate was needed.

Following the hearing the court ordered that the respondent was in need of a limited guardian for his estate and person. The respondent’s mother and sister were appointed as his limited co-guardians. The petitioner filed a notice of appeal from the orders.

The petitioner has presented three issues for review: (1) whether the trial court failed to exercise its discretion in selecting a guardian for the respondent; (2) whether the finding that a limited guardian was needed was against the manifest weight of the evidence and whether the appointment of the cross-petitioners as guardians was an abuse of discretion; and (3) whether the order establishing the limited guardianship was vague.

In her first issue the petitioner claims that the trial court failed to exercise its discretion in selecting a guardian but instead merely acted upon the respondent’s preference. The parties stipulated during the hearing that Harold was a disabled person. The court indicated it would bifurcate the proceedings to determine whether a limited or plenary guardian was needed and then it would determine who it should be. The petitioner claims that the court failed to complete the last step and did not hear evidence on the selection of a guardian. She also cites to various statements made by the trial court to indicate that the court felt bound by the respondent’s choice.

Section 11a — 12(d) provides that the selection of a guardian is within the court’s discretion having given due consideration to the preference of the disabled person. (Ill. Rev. Stat. 1981, ch. 110½, par. 11a — 12(d).) The discretionary authority to select a guardian serves the best interest of the disabled person. While the court was required to consider the respondent’s preference, it was not bound by the preference. In re Estate of Mackey (1980), 85 Ill. App. 3d 235.

The statements relied upon by the petitioner have been reviewed as well as other statements made by the court which indicate an awareness of its discretionary authority. It is apparent that the court gave due consideration to the respondent’s preference, but the court used its discretionary authority in selecting a guardian. It did not act as though bound by the respondent’s choice.

There was sufficient evidence before the court to allow it to exercise its discretionary authority although there was an effort to bifurcate the proceeding. The petitioner and the cross-petitioners testified. The petitioner was allowed to cross-examine. The record contains evidence regarding the care the petitioner and the cross-petitioners gave the respondent. Considering the evidence before the court, the court exercised its discretion in selecting a guardian having given due consideration to the respondent’s preference.

Next, the petitioner argues that the manifest weight of the evidence supports a finding that a plenary guardianship was needed rather than a limited one. She states that the court erroneously disregarded Dr. Ziporyn’s testimony and that it should have been given greater weight. The court’s order indicates that Dr. Ziporyn’s testimony was considered. It based its determination upon the testimony of expert and lay witnesses. The conflicting testimony of the experts was determinable by the court as the trier of fact which was in a better position to assess credibility. Falkenbury v. Elder Cadillac, Inc. (1982), 109 Ill. App. 3d 11.

The petitioner also relies upon her testimony to support a claim for a plenary guardian. However, the petitioner’s testimony which was not favorable to the respondent, concerned the time the respondent lived with her. The petitioner had very little contact with the respondent since June 1981.

Based on the evidence presented at the hearing, the court’s finding that a limited guardianship was necessary was not against the manifest weight of the evidence. (In re Estate of Galvin (1983), 112 Ill. App. 3d 677.) A reviewing court may not substitute its judgment for the trial court’s unless the judgment was against the manifest weight of the evidence. (In re Estate of Malloy (1981), 96 Ill. App. 3d 1020.) Cf. In re Estate of Galvin (1983), 112 Ill. App. 3d 677, wherein the respondent was found not to be disabled although he suffered from some physical disability and mental “peculiarities.”

The petitioner argues that the selection of Marie Marler and Nola Bennett as co-guardians was an abuse of discretion. She claims-that based upon the small amount of testimony on the issue, the petitioner should have been appointed or a neutral guardian. The petitioner argues for a neutral guardian based on her joint interest in the property.

The evidence showed that the respondent was content with his mother and had improved since living with her. The mother and sister provided constant care and attention. The experts- generally agreed that the current living arrangement was satisfactory. The trial court did not abuse its discretion in appointing the cross-petitioners as limited co-guardians.

Part of the petitioner’s argument in support of all her issues on appeal is her concern for her interest in the property she owns jointly with the respondent. However, the primary concern in the selection of a guardian is the best interest and well being of the disabled person. See In re Estate of Vide (1979), 79 Ill. App. 3d 383; In re Conservatorship of Browne (1977), 54 Ill. App. 3d 556.

In her last issue, the petitioner argues that the order which found the respondent to be a disabled person in need of a limited guardianship was contradictory, vague and contrary to the provisions of the Probate Act of 1975 pertaining to guardianships. Because of its generality, the petitioner states that a plenary guardianship was established by the order. She is concerned with her joint interest in the respondent’s property.

The order determining that the respondent needs a limited guardianship is not contradictory and vague. It recognizes that the respondent can be disabled and lack some but not all of the capacity as specified in section 11a — 3. (Ill. Rev. Stat. 1981, ch. 110½, par. 11a — 12(c).) The respondent requires limited assistance due to his speech impediment and the physical difficulty he encounters with writing and walking. He also has some lapses of memory, but when he is provided with the necessary information, he is capable of reaching a responsible decision. The order conformed with the evidence adduced at the hearing. Although the respondent is a disabled person, he is not incapable of knowing what he wants to do. He merely needs assistance. The order is in keeping with the intent of the statute. Ill. Rev. Stat. 1981, ch. 110½, par. 11a — 3(b).

Nor does the order establish a plenary guardianship. Guardianship is to be used to encourage self-reliance and independence. (In re Estate of Mackey (1980), 85 Ill. App. 3d 235.) It should be utilized only to the extent necessary to promote the respondent’s well-being and to protect him from neglect, exploitation or abuse. (Ill. Rev. Stat. 1981, ch. 110½, par. 11a — 3(b).) The intention of the court herein was to provide the respondent with as much authority to guide his person and estate as possible in terms of his condition.

Based on the foregoing, the orders of the circuit court of Kane County are affirmed.

Affirmed.

LINDBERG and NASH, JJ., concur.


author: JUSTICE HOPF

text:
    DONNA L. COHN, a/k/a Donna L. Sumner, Petitioner-Appellee, v. STEWART A. COHN, Respondent-Appellant.
    Second District
    No. 83—430
    Opinion filed March 22, 1984.
    Philip C. Ruddy and John S. Noble, both of Ruddy, Myler, Ruddy & Fabian, of Aurora, for appellant.
    Fred M. Morelli, Jr., of Aurora, for appellee.
   JUSTICE HOPF

delivered the opinion of the court:

Respondent, Stewart A. Cohn, appeals from the denial of his petition for reduction of child support, filed pursuant to section 510(a) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1981, ch. 40, par. 510(a).) The basis of the petition was reduction in income due to the loss of respondent’s job as an air traffic controller. No brief has been filed by the petitioner-appellee. We therefore review this case in accordance with the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Respondent and petitioner were married in 1964 and divorced in 1976. At the time of the divorce, petitioner was given custody of the couple’s three minor children and respondent was ordered to pay $500 per month in child support. Respondent was at that time an air traffic controller for the Federal Aviation Administration (FAA). Both parties subsequently remarried.

In 1981, respondent’s child support payments were increased by court order to $750 per month ($250 per child). At that time, respondent was still employed as an air traffic controller and was earning $40,000 per year. Later, by agreement of the parties, custody of one of the children was transferred to respondent and by court order the child support was reduced to $500 per month.

Respondent commenced employment with the FAA in 1965 and obtained the status of air traffic controller in 1968. In 1968, he joined PATCO, the union representing controllers, as a rank and file member. Respondent testified that about 85% of all traffic controllers belonged to PATCO. Prior to his employment with the FAA, respondentx served four years in the military. He has no other substantial work experience, job skills or educational background.

At the hearing on his petition for reduction, respondent testified that between 1970 and 1980, he participated in a “sick out” and two to three work slow-downs which had been organized by PATCO in an effort to improve working conditions for the membership. The “sick out” involved air traffic controllers calling in sick and refusing to report for work. Each of these activities was successful in that working conditions and/or wages for the membership were improved.

During the summer of 1981, the FAA and PATCO began negotiations on a new contract. PATCO recommended a strike and called a meeting to take a strike vote. Being “unsure of things and scared of the situation,” respondent went to Canada to avoid the strike-vote meeting. The result of the vote was that an insufficient number of members voted to strike.

When respondent returned to work after the strike vote, he testified that three-quarters of the people would not talk to him nor would he get relieved on occasion. Respondent attributed this mistreatment by his fellow employees to his failure to attend the strike-vote meeting.

A second strike vote was held on August 2, 1981, and this time a sufficient number of votes to call a strike was obtained. Between the first and second strike votes respondent testified that he attended several PATCO meetings. After respondent learned that the requisite number of union members had voted for a strike and that the strike would indeed take place, he decided to go along with the majority. Respondent testified that he was motivated in this decision by his desire to improve his working conditions and increase his salary and, to some extent, bjrpeer pressure.

Respondent was aware that the President of the United States had ordered the controllers to return to work and that he could possibly Ipse his job for failing to do so. However, based upon his past experience respondent did not believe this would occur. Subsequently, on August 13, 1981, he received a letter from the FAA notifying him that his employment was being terminated, subject to his right to file an appeal. A second letter was then received advising respondent that in fact his employment was terminated effective August 31,1981.

Respondent testified that he made two attempts to return to work, once before the final termination letter and once after, but was unsuccessful both times. Subsequently, he appealed his termination but at the time of the hearing in the instant case no decision had yet been made.

After losing his job with the FAA, respondent sought other employment. He was able to find a job as a truck driver earning $181.11 per week ($778.77 per month) net at the time of the hearing in this case. His monthly expenses not including rent and child support were $759.20.

After the hearing, respondent’s petition for reduction in child-support payments was denied, the trial court finding that respondent’s termination of employment with the FAA was the result of a voluntary act by respondent done in conscious disregard for the rights of his children. Respondent therefore remains obligated to pay $500 per month in child support.

Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act provides that the provisions of any judgment respecting maintenance or support may be modified only upon a showing of a substantial change in circumstances. (Ill. Rev. Stat. 1981, ch. 40, par. 510(a).) Considerable discretion is placed in the trial court in support modification proceedings and generally the court’s order will not be disturbed on review unless an abuse of discretion is shown. (In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 837, 436 N.E.2d 561; In re Marriage of Roth (1981), 99 Ill. App. 3d 679, 683, 426 N.E.2d 246.) The courts have considered economic reversals resulting from employment or investments as proper areas of inquiry when determining whether child support should be reduced (Weinert v. Weinert (1982), 105 Ill. App. 3d 56, 58, 433 N.E.2d 1158; Elizer v. Elizer (1976), 36 Ill. App. 3d 552, 344 N.E.2d 493) with reservation, however, that such circumstances must be fortuitous and not the result of deliberate conduct on the part of the petitioning party (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785; Shellene v. Shellene (1977), 52 Ill. App. 3d 889, 890-91, 368 N.E.2d 153). In cases where the change in circumstances was deliberately brought about by the party seeking reduction, courts have not hesitated to refuse granting such reductions. Nevertheless it is also well established that a voluntary change in employment made in good faith and not prompted by a desire to evade responsibility may constitute a substantial change in circumstances warranting modification of a child support order. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785; In re Marriage of Ebert (1980), 81 Ill. App. 3d 44, 46-47, 400 N.E.2d 995; In re Marriage of Uphoff (1980), 80 Ill. App. 3d 145, 147, 398 N.E.2d 1243.) Finally, in Shellene v. Shellene (1977), 52 Ill. App. 3d 889, 891-92, 368 N.E.2d 153, dealing with a reduction in alimony, we noted that previous decisions can serve only as general guides since every set of circumstances is different and a given set of circumstances may change in time. (See also Barrow v. Barrow (1975), 33 Ill. App. 3d 654, 656, 342 N.E.2d 237.) We believe this applies with equal force to cases dealing with reductions in child support.

The trial judge here acknowledged that the circumstances of this case are especially unique in that participation in a strike and an alleged violation of a presidential order are involved. Given these circumstances, the court ruled that defendant’s termination of employment was voluntary because of his knowing participation in a strike with job loss as the foreseeable result of his action. The court further adopted a concept of “good faith” which included an obligation on a payor to avoid acting in conscious disregard of the rights of his or her children so as to jeopardize their interests. It therefore concluded that there was no showing of good faith here.

We think the trial court’s definition of “good faith” is too broad. In Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785, we stated that “[t]he crucial consideration in testing ‘good faith’ is whether the change in status was prompted by a desire to evade financial responsibility for supporting the children or to otherwise jeopardize their interests.” This requires an inquiry as to motive rather than results. We find no evidence in this record to support the conclusion that respondent’s participation in the strike was motivated by a desire to jeopardize his children’s interests or to evade financial responsibility for their support. To the contrary, respondent testified that his goal in participating in the strike was to increase his salary, better his working conditions and improve his standard of living, the same goals that prompted successful union action in the past. Based on past experience the respondent testified that he did not feel he would be permanently discharged, even though he was aware of the presidential order. We also note that respondent’s participation in the strike was merely of a rank-and-file nature as opposed to one of leadership. We also are cognizant of the peer pressure to which he was subjected. Under these circumstances, we conclude that respondent participated in the strike in “good faith” and was therefore entitled to a reduction in child support reflective of his present ability to pay. Upon remand, the trial court in its discretion will determine the effective date of the modification order. Brandt v. Brandt (1981), 99 Ill. App. 3d 1089, 1108-09, 425 N.E.2d 1251; In re Marriage of Junge (1979), 73 Ill. App. 3d 767, 771, 392 N.E.2d 313.

The order of the circuit court of Kane County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

LINDBERG and VAN DEUSEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN IRPINO, Defendant-Appellant.
    Second District
    No. 83—236
    Opinion filed March 22, 1984.

      Robert A. Novelle, of Serpico, Novelle, Dvorak & Navigato, Ltd., of Chicago, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (Thomas A. Briscoe, Assistant State’s Attorney, and Phyllis J. Perko and Martin P. Moltz, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

John Irpino, defendant, was convicted after a bench trial in Lake County of the offense of unlawful possession of more than 30 grams of a controlled substance (Ill. Rev. Stat. 1981, ch. 56½, par. 1402(a)(2)). He was sentenced to five years in the Department of Corrections. The defendant appeals from his conviction and sentence and raises two issues. First, he argues that the trial court erred in admitting into evidence People’s group exhibit No. 1, which consisted of a police department manilla envelope in which a sandwich-sized plastic bag containing a white powdery substance allegedly recovered from between his legs. He contends that the state failed to establish that the contents of this exhibit were actually recovered between his legs rather than the similar bag of alleged cocaine recovered later from the trunk of his car and suppressed on fourth amendment grounds prior to trial, and failed to establish a sufficient chain of custody to dispel the possibility that the contents of this exhibit were subject to contamination, tampering, or alteration. Second, defendant argues that the trial court’s imposition of a sentence of imprisonment violated his eighth amendment right to be protected against cruel and unusual punishment because he is a paraplegic requiring physical rehabilitative therapy unavailable in any Department of Corrections’ facility.

Deerfield police officers Webb and Meyer arrested the defendant at approximately 4:30 a.m. on June 20, 1981, after finding him passed out or asleep in the driver’s seat of a car stopped 40 feet north of a stop sign in the northbound lane of Apple Tree Lane where it intersects with Arbor Vitae. The car was in drive position with the motor running and the lights on; defendant’s foot was on the brake pedal. At that time, a sandwich-sized plastic bag containing a white powdery substance was recovered from between the defendant’s legs and was retained by Officer Webb who brought it to the police station and locked it in an empty gun locker.

Later, at the police station where the defendant and his car were brought, Officer Webb and Agent Ross found another similar bag containing a similar substance in the trunk of the defendant’s car. On the way to the records room with this second bag, Officer Webb retrieved the first bag which he had earlier recovered. He placed both of these bags on a desk in the records room. The bag found in the trunk of the defendant’s car was subsequently suppressed on motion of the defendant and with the State’s agreement for a reason not shown in this record. At trial, the defendant objected to the State’s attempt to introduce People’s group exhibit No. 1, the bag and substance allegedly recovered from between his legs, on the grounds that the State failed to establish sufficient foundation that the contents in this exhibit were indeed recovered from between his legs and not from the trunk of his car, and because of “mysterious” staples and tape on the top of the evidence envelope. Since the basis of the defendant’s argument concentrates on contradictions and “untruths” found in the record, the testimony of each officer must be detailed.

Officer Webb testified on direct examination about his recovery of the first bag and its placement and retention in the gun locker, that Agent Ross conducted a field test on the contents of this bag at around 6:40 a.m., that after this test, he relocked the bag in the gun locker and then talked to the defendant about the charges against him. Webb and Ross then searched the car, retrieved the first bag, took it to the records area, and began work on the report and on inventorying the evidence. The bag was inventoried on a form, marked, and placed inside a manilla envelope, which was then sealed and marked, identified at trial as People’s exhibit No. 1 for identification. He had written his initials and the date on this envelope. Agent Ross had written her initials and the police case number and exhibit number on it and placed an inventory sticker on the other side which she earlier had filled out. He noted that the envelope was different from when he had last seen it in that there was writing on the corner by someone else on the side where the sticker had been placed and that the top and bottom of the envelope were sealed with staples and tape. Officer Webb continued that the sealed envelope was then given to Sergeant Skarbala for transportation to the crime lab.

On cross-examination, Officer Webb noted that the envelope was marked police exhibit No. 2. He further stated that no markings were on the bag when it was recovered from the defendant’s lap and he could not recall whether he placed any marking on it at that time. At that point, defense counsel then asked him about the recovery of the second bag from the trunk of the defendant’s car. Officer Webb admitted that prior to inventorying and identifying the evidence, he was in simultaneous possession of both bags. Nothing in his inventory slip or police report specified where police exhibits Nos. 1 and 2 were recovered. People’s group exhibit No. 1 for identification was then opened in court and it was noted that the bag had some writing on it: the date of recovery, the policy case number, Officer Webb’s initials, agent Ross’ initials, and the notation that this was police exhibit No. 2. He then stated that both bags were before him at a time when neither had been marked.

On redirect examination, Officer Webb explained that after finding the second bag in the trunk in the garage, he held it in his left hand with a large amount of cash ($39,000) he had found and while proceeding to the records room, unlocked the gun locker, took out the first bag and held it in his right hand. In the records room, he placed the first bag on the right side of the desk and the second bag on the left side of the desk. Agent Ross began to write out the envelope labels and placed the bag on the left (second bag) into the first envelope, marked it exhibit No. 1 and sealed it. Then she placed the first bag recovered into another envelope and marked it exhibit No. 2. He identified at trial People’s group exhibit No. 2 for identification as police exhibit No. 1. He explained that this envelope was in substantially the same condition as when he had last seen it except that there were staples and tape sealing the bottom and top of the envelope and writing on one corner which he did not recognize. This envelope was opened in court and it was noted that the bag was marked with the police case number and exhibit number and his initials. It was further noted that Officer Meyer had also written on this bag but that Agent Ross had not. He concluded his redirect examination by stating that at all times he was aware of which bag was recovered from each location.

On re-cross-examination, Officer Webb admitted that although he earlier said that he had marked police exhibit No. 1, Ross had marked it. He explained that Officer Meyer was in the same room inventorying the $39,000 in cash recovered from the trunk of the defendant’s car. He further testified that police exhibit No. 2 (first bag) had been marked as being recovered at 6:45 a.m. and that police exhibit No. 1 was marked as being recovered at 4:27 a.m.

Finally, on re-direct examination, Officer Webb testified that the bags were closed and that nothing spilled out or into one another.

Agent Ross testified that she searched the defendant’s car with Officer Webb in the garage, that Webb took the plastic bag found in the trunk and on the way to the records room retrieved the first bag, which she had earlier field tested, brought both of the bags to the records room and placed them on a table. She then filled out a sticker with the pertinent information for the first bag recovered, stuck it on a manilla envelope, and, along with Officer Webb, marked the bag with the police case number and exhibit number, their initials, and the date. She then placed the bag in the envelope and sealed it with staples covered by tape on the top of the envelope. She did not write anything on this seal. She identified People’s group exhibit No. 1 for identification as this evidence. She wrote the time recovered based upon information received from Officer Webb. She then repeated the same process with the second plastic bag and identified People’s group exhibit No. 2 for identification as this evidence.

On cross-examination, she testified that the first bag recovered was on the right side of the desk and that Officer Webb had handed it to her, she did not reach for it. She explained that she marked it police exhibit No. 2 because she thought it was smaller than the other bag. She said that she made an error in writing the times when each bag was recovered. She testified that both bags were identical, but then when asked whether one of the bags had been in a double bag, she stated that she could not recall. People’s exhibit No. 2 for identification contained a plastic bag filled with a white powdery substance inside of another plastic bag.

Sergeant Skarbala testified, over defendant’s continuing objection, about testimony concerning the evidence that was suppressed, about his transportation of the two exhibits to the crime lab. He stated that the envelopes were sealed when he received them and that now they were stapled and taped and marked on the ends. He said that there were no staples on the exhibits when he received them from Officer Webb. He handed these envelopes to Irwin Haviland of the crime lab who wrote on the corners of the envelopes upon receipt.

Irvin Haviland did not testify at trial but Michael Johnson, the crime lab’s chief chemist, testified, over defendant’s continuing objection, that he removed the envelopes from the narcotics locked locker, that he tested the substances in each bag and determined that People’s group exhibit No. 1 contained 119.35 grams of cocaine and that People’s group exhibit No. 2 contained 119.18 grams of cocaine, then replaced the bags in the manilla envelopes and sealed the bottoms with staples, tape, and his writing. He testified that he did not put any staples on the top of the envelopes. People’s group exhibit No. 2 was in a double plastic bag when he removed it from the envelope. He further stated that there are two keys to the narcotics locker and that he keeps his key in the laboratory. The staples and tape on the top of the envelopes were present when he removed them from the narcotics locker.

The defendant objected to the introduction of these exhibits into evidence, but after argument, the court admitted both of them into evidence. Defendant then moved that the testimony concerning the analysis of the substances be stricken but the court took that question with the final question in the case. The State then rested and defendant moved for a directed finding which the court denied. The defense then rested. After argument, the trial judge stated that he was convinced beyond a reasonable doubt that People’s group exhibit No. 1 was the bag recovered from between the defendant’s legs and granted the defendant’s motion to strike the rest of the testimony concerning People’s group exhibit No. 2 because that evidence was not material. He then found defendant guilty beyond a reasonable doubt and entered judgment on that finding.

After the court entered judgment on its finding of defendant’s guilt, the defendant suffered an accident in which he dislocated the cervical spine producing a contusion to his spinal cord. He sought to persuade this court that a sentence of imprisonment would constitute cruel and unusual punishment in that his condition required special facilities which are unavailable in the Department of Corrections.

At oral argument, we were informed by the parties that the defendant has been granted executive clemency, which releases him from custody by excusing his incarceration. Therefore, the defendant’s arguments on the second issue became moot and need not be addressed.

As to the single remaining issue, Illinois law requires that before real evidence may be admitted at trial, an adequate foundation must be laid which establishes that the item sought to be introduced is the actual item involved in the alleged offense and that its condition is substantially unchanged. (People v. Cole (1975), 29 Ill. App. 3d 369, 379.) Where an item possesses unique and readily identifiable characteristics and its substance is relatively impervious to change, testimony at trial that the item sought to be admitted is the same one recovered and in substantially the same condition as when recovered suffices to establish an adequate foundation. However, if the item is not readily identifiable or if it is susceptible to alteration by tampering or contamination, its chain of custody must be established with sufficient completeness to render it improbable that the original item has either been exchanged, contaminated, or subjected to tampering. (People v. Winters (1981), 97 Ill. App. 3d 288, 289, cert, denied (1982), 455 U.S. 923, 71 L. Ed. 2d 465, 102 S. Ct. 1282; People v. Cole (1975), 29 Ill. App. 3d 369, 375.) Both methods of laying an adequate foundation need not be used at trial; the character of the item determines which method must be employed. (People v. Graves (1982), 107 Ill. App. 3d 449, 454; People v. Winters (1981), 97 Ill. App. 3d 288, 289.) Whether to admit physical evidence at trial lies within the discretion of the trial court whos decision will not be reversed on appeal absent an abuse of that discretion. 97 Ill. App. 3d 288, 289.

In the instant case, People’s group exhibit No. 1 contained a bag of cocaine which was not readily identifiable and could have easily been subject to tampering, contamination and alteration. Therefore, the State needed to establish a chain of custody sufficiently complete to demonstrate that the bag of cocaine sought to be introduced at trial and analyzed by the chemist was the bag found between the defendant’s legs and that it had not been contaminated, altered, or subjected to tampering. (97 Ill. App. 3d 288, 289.) Defendant first claims that the State failed to establish such a chain of custody in that it did not connect the substance analyzed by the crime lab chemist with the substance recovered between the defendant’s legs. In this regard, it should be remembered, that since the trial court struck from the record People’s group exhibit No. 2 and accompanying testimony concerning the contents of that exhibit, the fact that both bags recovered by police contained cocaine in approximately the same amount cannot be considered.

The defendant focuses upon the period of time in which Officer Webb had both bags in his possession before they were marked and placed in separate envelopes. He notes three contradictions or discrepancies in the record which, according to him, discredit the chain of custody. First, the defendant notes that the first bag recovered was marked police exhibit No. 2 and that the second bag was marked police exhibit No. 1. Based upon his opinion that the first bag recovered should have been marked police exhibit No. 1, the defendant suggests that People’s group exhibit No. 1 did not contain the bag found between his legs. However, Agent Ross explained that she marked the second bag recovered as police exhibit No. 1 because she believed that bag to be larger than the other one. While Officer Webb testified that Agent Ross inadvertently marked the bags in that manner, that testimony does not contradict Agent Ross’ explanation of her rationale since those facts would be within her personal knowledge, and not within Officer Webb’s knowledge. Furthermore, although the bag marked police exhibit No. 1 may have been in fact smaller than police exhibit No. 2, that error merely demonstrates that Agent Ross was incorrect in believing that police exhibit No. 1 was the smaller of the two bags; it does not mean that she falsely testified as to her rationale.

Second, defendant argues that marking the bag allegedly recovered from the trunk as being recovered at 4:27 a.m. and the bag allegedly recovered from the defendant’s lap as being recovered at 6:45 a.m. indicates a misidentification. While this discrepancy does lend credence to the defendant’s argument, Agent Ross testified that she had made a mistake when she so marked the bags. In finding that People’s group exhibit No. 1 was indeed the bag recovered from between defendant’s legs, the trial court must have believed this explanation.

Defendant's last observation focuses upon the fact that Officer Meyer, who was with Officer Webb when the defendant was arrested, placed marks on People’s group exhibit No. 2, the bag recovered from the trunk, but not the bag which he had recovered. Meyer was never called to testify to explain why he marked that bag. However, while one may assume that the officer recovering evidence should mark the evidence, the record does not set forth police procedure in this regard. Therefore, it would constitute mere speculation to conclude that Officer Meyer’s failure to initial the bag he recovered demonstrates a misidentification.

Next, defendant argues that there may have been alteration or tampering of People’s group exhibit No. 1. In this regard, he notes that no seal was placed on the plastic bags, no witness from the crime lab, especially Irwin Haviland, testified concerning the period of time from when Sergeant Skarabella delivered the evidence to the crime lab and its subsequent examination by Mr. Johnson, and the contradictions in the testimony concerning the presence of staples and tape on the top portion of the envelopes and the fact that one bag was in a double bag. Defendant’s argument, thus, focuses upon the period of time from when the crime lab received the bags to when Mr. Johnson analyzed their contents.

Although contradictions exist in the record concerning when the staples and tape were placed on the top portion of the envelopes sufficient evidence established that Agent Ross had so sealed the envelopes after the plastic bags were placed inside of them. Sergeant Skarbala’s testimony that no staples or tape were on the envelopes when he delivered them to the crime lab merely presented the trial court with a question of fact for its resolution. It is within the trial court’s function as the trier of fact to determine the credibility of witnesses and the weight to be given their testimony; discrepancies or conflicts in this testimony only affect the weight to be afforded the testimony. (See People v. Akis (1976), 63 Ill. 2d 296, 298-99.) Defendant’s statement that Johnson described the staples and tape on the top of the envelope as a “re sealing” belies the record. Indeed, Johnson testified that he did not know if somebody had opened and resealed the envelope.

The lack of testimony concerning the custody of the evidence after Sergeant Skarbala delivered it to the crime lab and of protective measures taken does not destroy the chain of custody. A sufficient chain of custody does not require every person involved in the chain to testify; nor must the State exclude all possibilities that the article may have been subject to tampering. (People v. Winters (1981), 97 Ill. App. 3d 288, 295, cert, denied (1982), 455 U.S. 923, 71 L. Ed. 2d 464, 102 S. Ct. 1282.) Where one link in the chain is missing but testimony describes the condition of the evidence when delivered which matches the description of the evidence when examined, the evidence suffices to establish a continuous chain of custody. (See People v. Gustowski (1981), 102 Ill. App. 3d 750, 753; People v. Tribett (1981), 98 Ill. App. 3d 663, 674; cf. People v. Maurice (1964), 31 Ill. 2d 456, 458.) The State’s burden only requires it to demonstrate a reasonable probability that the exhibit has not been changed in any important respect. (People v. Stevenson (1980), 90 Ill. App. 3d 903, 909; People v. Valentin (1978), 66 Ill. App. 3d 488, 492.) Here, the State demonstrated reasonable protective techniques in that the bags were closed and placed in manilla envelopes which were then sealed (see People v. Oswald (1979), 69 Ill. App. 3d 524, 526); while the bags were not sealed in such a manner that their opening would be detectable, the seal on the manilla envelopes served that function. Since no evidence established tampering, alteration, or substitution of the evidence in that the seal on the manilla envelopes had not been broken (the staples and tape placed on top by Agent Ross), a sufficient chain had been established. See People v. Tribett (1981), 98 Ill. App. 3d 663, 674; People v. Valentin (1978), 66 Ill. App. 3d 488, 492; see also People v. Grayson (1980), 89 Ill. App. 3d 766, 770.

The cases cited by defendant where reversible error existed (see People v. Maurice (1964), 31 Ill. 2d 456; People v. Resketo (1972), 3 Ill. App. 3d 633; People v. Woessner (1971), 132 Ill. App. 2d 58) are inapposite in that in each of those cases a complete breakdown in the chain of custody occurred, creating the clear possibility that the evidence sought to be introduced at trial was altered in some way. Here, on the other hand, only a factual question existed which the trial court resolved by finding that a sufficient chain existed. Therefore, since the trial court’s admission of this evidence at trial was not against the manifest weight of the evidence, no abuse of discretion exists and defendant’s conviction is affirmed.

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

Affirmed.

LINDBERG and NASH, JJ., concur.


author: JUSTICE BARRY

text:
      In re MARRIAGE OF LINDA ARNOLD, Plaintiff-Appellee, and ROBERT ARNOLD, Defendant-Appellant.
    Third District
    No. 3—82—0859
    Opinion filed March 30, 1984.

      Terry K. McClellan, of McClellan and Hirsh, of Romeoville, for appellant.
    Gary L. Brown, of Kankakee, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

Robert Arnold appeals from an order of the circuit court of Will County finding him in contempt of court for failure to pay his daughter’s extraordinary medical expenses and some bankruptcy attorney fees pursuant to a marriage dissolution decree entered in 1979.

At the time of the marriage dissolution, Linda Arnold was awarded custody of the couple’s only child, a daughter, and Robert was ordered to pay $35 per week child support, all extraordinary medical expenses, and the attorney fees due for a prior bankruptcy. In January of 1981 the daughter was discovered to be allergic to dust, mold and grass and to require weekly shots to treat the allergy. The shots cost $13.50 per week. In July of 1981 Linda filed a petition for a rule to show cause, alleging the expenses incurred as a result of her daughter’s allergy treatment and also alleging Robert’s wilful refusal to pay those expenses. Linda also sought modification of the support order because she was now unemployed. Prior to Linda’s petition, Robert had filed a petition for rule to show cause relating to visitation problems and had also requested a modification of visitation. As a result of the hearing on that petition, Linda was held to have been in contempt for denying visitation, but no penalty was imposed. Apparently no hearing was held on Linda’s 1981 petition, and in June of 1982 Linda again filed a petition for rule to show cause because of Robert’s allegedly wilful refusal to pay bankruptcy attorney fees and extraordinary medical expenses. Robert filed a counterpetition claiming that he had paid $215 in excess of the attorney fees owed. Both petitions were set for hearing on July 6, 1982, and a default judgment was entered in favor of Robert with findings by the court that Linda had made false statements, that Linda owed Robert $215, and that the rule to show cause should be dismissed with prejudice. This judgment was subsequently vacated upon motion of Linda’s attorney, who had been delayed because of car trouble and who arrived 15 minutes late on July 6, 1982, to find the hearing over, even though he had notified the clerk’s office that he was being delayed.

Finally a hearing was held on the petition in November 1982, and both Linda and Robert testified, as did Linda’s present husband and Robert’s mother. The dispute over the unpaid attorney fees will be discussed first. The bankruptcy attorney filed garnishment proceedings against Linda to collect the balance of the fees owing. According to Linda, $78 remained unpaid, and she paid that amount rather than be subjected to garnishment. She requested Robert to reimburse her, and he never did. Linda said that she did receive a check for $215 from Robert’s mother on December 19, 1979, but Linda explained that this was when she and Robert were attempting to reconcile, and the money was used to pay some bills and $75 was a birthday gift from Robert to her.

Robert testified that he had owed a total of $440 for the bankruptcy attorney fees plus $45 costs, and that he had paid a total of $592. Apparently certain checks and receipts were introduced into evidence as exhibits. However, none of the exhibits are a part of the record on appeal, so this court does not have the benefit of those items. According to the report of proceedings, Robert admitted on cross-examination that one document shows that he owed the attorney $660. We have also discovered in the record certain exhibits attached to Robert’s response to Linda’s petition for rule to show cause which indicate that in November of 1979 Robert owed the attorney $523, and that he paid $325 during that month. Robert stated on cross-examination that he “probably” mentioned a birthday gift to Linda on her birthday.

Robert’s mother testified that on December 19, 1979, she received a phone call from Linda who said that she needed $215 to pay the attorney fees. Robert’s mother said she wrote a check to Linda for that amount, and Robert later repaid her.

Concerning the allergy expenses, Linda testified that her daughter is four years old and has a serious allergy condition that requires weekly injections for the rest of her life. The injections cost $13.50 each, and have been paid thus far by Linda’s present husband. Robert testified that Linda’s husband had requested that he pay the medical bills, but Robert refused because he did not think $13.50 per week was an “extraordinary” amount.

At the conclusion of the hearing, the trial court held that the allergy expenses are extraordinary medical expenses, that Robert’s failure to pay those expenses totalling $734.50 was wilful contempt, that Robert was liable for Linda’s attorney fees in the amount of $400, that Robert was liable for the remaining $78.60 attorney fees for the bankruptcy, that Robert’s failure to pay that amount was also wilful contempt, and sentenced Robert to 30 days in jail. Release was conditioned upon payment of the amount owed or by operation of law. The court also made some modifications in visitation and vacations, none of which are relevant to this appeal. Robert immediately paid the amounts as ordered and thereby purged himself of contempt.

Robert appeals from the order of the circuit court, claiming that he should not have been liable for the medical expenses, that his nonpayment was not wilful, that Linda’s cause of action was barred, that he is not liable for the remaining attorney fee for the bankruptcy, and that he should not be required to pay his wife’s attorney fees. We affirm.

We first consider Robert’s contention that the allergy injections should not be found to be extraordinary medical expenses because they are small in amount ($13.50 per week) and because many children have allergies. We note that Robert did not introduce any evidence to show that his daughter’s allergy was a common occurrence among children, and we cannot say that the trial court erred in finding that this was “extraordinary.” Considering that Linda received $35 per week child support, a medical expense that amounts to more than one-third of the support funds can hardly be considered “small” or “ordinary.” Robert also attempts to argue that this allergy resulted from Linda’s move to a rural home with her new husband, but nothing in the record supports that conclusion. Apparently the child first saw a doctor shortly after the move to the country, but Linda testified without contradiction that the allergy symptoms were present earlier.

Robert next argues that the court erred in holding him in contempt for wilful refusal to pay the medical expenses when in fact he had a reasonable basis for withholding payment. A father’s failure to pay child support, as ordered by the court, is prima facie evidence of contempt, and the burden is upon him to prove that his failure was neither wilful nor contumacious and that he had a valid excuse for his failure to pay. (Cooper v. Cooper (1978), 59 Ill. App. 3d 457, 375 N.E.2d 925.) Lack of funds is, of course, a defense, but Robert did not assert such a defense, and in fact testified that he was employed during the time these bills were incurred. His only defense was that he did not believe the cost of the allergy treatment to be an “extraordinary” medical expense. Since the term extraordinary medical expense was not defined by the court order and has no commonly accepted meaning, we think a legitimate question arises as to whether these expenses come within the meaning of the phrase. In other words, we believe Robert had a valid excuse for refusing to pay until the trial court ruled that he should.

A similar question arose in the case of In re Marriage of Mayer (1981), 97 Ill. App. 3d 313, 422 N.E.2d 1154, where the father had failed to pay the medical bills relating to his daughter’s knee surgery. At the hearing on the mother’s rule to show cause, he claimed that the bills were not extraordinary. The trial court held that the expenses were extraordinary and that the father must pay them. The court then continued the matter for 45 days for a status report on the father’s compliance. At the hearing on status report, upon finding that the expenses were still unpaid, the court held the father in contempt. This procedure has much to commend it in situations like the one before us. Here, once the trial court determined that Robert was in fact liable for his daughter’s allergy treatment, Robert should have been allowed a reasonable time to pay the bill before being found in contempt. Consequently, the portion of the trial court’s order finding Robert to have been in contempt for failure to pay the $734 medical expenses is vacated.

Robert also argues that Linda should be barred from proceeding to collect these expenses on grounds of collateral estoppel and laches. Neither of these arguments was presented to the trial court, and it is well established that matters not presented to or ruled upon by the trial court may not be argued as error on appeal. (Gentile v. Gentile (1980), 87 Ill. App. 3d 311, 409 N.E.2d 52.) According, we do not consider these contentions.

Robert next insists that he has already paid more than he originally owed to the attorney for bankruptcy fees, and that the court erred in ordering him to pay another $78.60. As indicated in our statement of the facts, the evidence on this question was conflicting, and considering the record filed in this court, we cannot say that the trial court erred in its finding. Obviously the trial court chose to believe Linda rather than Robert and his mother, and we must assume that the documents introduced into evidence as exhibits support the court’s decision. Where the record on appeal is incomplete, it must be presumed that the evidence was sufficient. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237.) Robert did not meet his burden of demonstrating error.

Robert also contends that it was error to hold him in contempt for his failure to pay the $78.60. Since the record does not indicate that he had any reason for refusing to pay, other than his mistaken belief that he did not owe the sum, we cannot say that the court erred. The failure to pay what he had been ordered to pay was prima facie evidence of contempt, and the record before us does not provide any basis for concluding that Robert rebutted that presumption.

We note that Linda has, with leave of court, filed a reply brief to rebut the arguments contained in Robert’s reply brief. However, we have not considered those arguments since the rules of the supreme court governing appeals make no provision for appellees to file a reply brief (when no cross-appeal has been filed), and we see no compelling reason for such a brief to have been filed here. Linda does point out that Robert goes outside the record in his brief; however, she does not move to strike those portions of Robert’s briefs. Regardless, we do not, of course, rely upon matters not in the record before this court.

Robert’s final contention is that the court abused its discretion in ordering him to pay Linda’s attorney fees without a determination that she was unable to do so. The record indicates that Linda was unemployed and had no income other than the child support paid by Robert. The record also indicates that Robert did have income. We think the evidence was sufficient to justify the trial court’s order. There is no abuse of discretion shown.

The order of the trial court is vacated in part and affirmed in part.

Vacated in part; affirmed in part.

ALLOY and HEIPLE, JJ., concur.