text:
      In re MARRIAGE OF DONALD A. BURROWS, Petitioner-Appellee, and PHILOMENA D. BURROWS, Respondent-Appellant.
    First District (1st Division)
    No. 83—1834
    Opinion filed July 30, 1984.

      Lois Solomon, of Solomon & Behrendt, and Charlotte Adelman, both of Chicago, for appellant.
    Jack F. Kuhlman, of Collis, Kuhlman & Scott, Ltd., of Hinsdale, for ap-pellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Respondent, Philomena D. Burrows, appeals from a judgment granting petitioner Donald A. Burrows’ petition for dissolution of marriage and denying her counterpetition for legal separation. Respondent raises the following issues on appeal: (1) whether petitioner proved grounds for dissolution of marriage pursuant to section 401(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 401(2)); (2) whether the trial court erred in merging an arrearage in unallocated child support payments into the judgment for dissolution; (3) whether the division of marital property was in “just proportions” pursuant to section 503(c) of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)); and (4) whether the award of attorney fees was reasonable.

The record discloses that the parties were married on March 3, 1962, in Chicago. Three children were born to the marriage. On October 14, 1982, the time of the hearing, 9-year-old Quentin was residing with respondent, and Jennifer and Charles, 19 and 17 years of age respectively, were attending college out of town. Petitioner holds a bachelor of arts degree from the University of Chicago and a master of arts degree from the Art Institute of Chicago. At the time of the trial, petitioner was employed full-time with the Harrington Institute of Interior Design, with a net income of approximately $39,300. Prior to the hearing, petitioner also held a full-time position as assistant professor of humanities at the City College of Chicago. Respondent has the equivalent of a high school education, although she does not have a high school diploma. During the marriage she held jobs as a day-care assistant, a cleaning lady and a baby-sitter and at the time of the trial she was cleaning homes. Petitioner testified that respondent had also worked as a nurse’s aid, in retail sales and in an office during the marriage.

The record further discloses that in 1976 petitioner left the marital residence for a 9- to 10-month period during which time he filed a suit for divorce which was subsequently dismissed. On March 29, 1981, petitioner again left his family and in August 1981 he filed the instant petition for dissolution of marriage alleging mental cruelty as grounds. Respondent then filed a counterpetition for legal separation based upon mental cruelty by petitioner. Respondent also filed a petition for the temporary care, custody and control of the parties’ children, and requested an award of maintenance during the pendency of the matter. The respondent’s petition was granted and petitioner was ordered to pay respondent $2,000 a month as unallocated temporary child support and maintenance, commencing on November 4,1981.

The trial took place on four separate dates between October 14, 1982, and February 24, 1983. Extensive testimony was presented and a brief summary is presented here.

Petitioner testified that respondent constantly nagged and criticized him; that she was guilty of verbal abuse in front of the children; that the parties’ constant arguing made the home “almost like a combat zone”; that she accused him of child abuse; that she would often not speak to him; that there were no sexual relations for five years; that she accused him of being a homosexual; and that she was critical of his education and art background. Petitioner asserted that he was not the cause of respondent’s conduct, that he did not provoke her actions, that he appealed to her with kindness and understanding to stop nagging him, and that he tried conscientiously to be a good husband and a good father. Petitioner’s testimony regarding respondent’s conduct was corroborated in part by the testimony of the parties’ eldest son, Charles.

Respondent testified that she received an allowance from petitioner but that petitioner’s refusal to give her more money was a constant cause of marital discord. In particular, respondent noted petitioner’s refusal to give her money to go to her father’s funeral, as well as his failure to provide sufficient money for the children’s needs. Respondent also testified that petitioner told her on numerous occasions that he wanted a divorce and that he urged her to abort their youngest child during her pregnancy. According to respondent, petitioner verbally abused her with regard to her ethnic and educational backgrounds. Respondent further testified that petitioner was a manic-depressive and that during these periods of depression he drank heavily, threatened to abandon the family and threatened to commit suicide. Petitioner admitted that he suffered from depression, nervousness and headaches and that he drank to excess, but he claimed the problems stemmed from the unhappy atmosphere at home. Respondent’s testimony regarding the petitioner’s behavior was corroborated in part by the parties’ eldest daughter, Jennifer.

On June 29, 1983, the trial court entered a judgment of dissolution of marriage which provided for the following property division: $400 to both parties from the net proceeds of the sale of rental property; $8,513 to respondent and $12,769 to petitioner from petitioner’s Illinois retirement fund; $1,120 to respondent and $6,352 to petitioner from a tax refund; $1,200 to respondent and $1,800 to petitioner from petitioner’s American Benefit Plan. Respondent was awarded the family’s 1980 Chrysler automobile and exclusive use of the marital home until Quentin, the youngest son, is 18 years old. At that time, the home is to be sold and respondent is to receive 75% of the sale proceeds. Respondent was given sole responsibility for the mortgage payments until the home is sold. Additionally, upon petitioner’s retirement, respondent will participate in petitioner’s Harrington Institute pension based upon a formula set out in the decree. The parties were also each awarded “those items of household furniture and furnishings and personal belongings now in each other’s possession,” and other property listed on a property schedule agreed upon by the parties. Respondent was further awarded $1,200 per month in unallocated support for herself and the minor child and the parties are required to each pay the college expenses of the parties’ children “to the best of his or her financial ability.” Lastly, the court ordered petitioner to pay $5,000 of the respondent’s $14,751.75 attorney fees.

Respondent first contends that petitioner failed to prove the statutory grounds of mental cruelty as required by section 401(2) of the Act and thus the trial court erred in granting the dissolution. Before a petition for dissolution on grounds of mental cruelty can be granted, the Act requires petitioner to show that he has not provoked the conduct constituting mental cruelty. (Ill. Rev. Stat. 1981, ch. 40, par. 401(2); In re Marriage of Ducey (1981), 101 Ill. App. 3d 957, 428 N.E.2d 1165.) Respondent claims that although she and petitioner testified to a troubled marriage with frequent arguments, any objectionable conduct by respondent was clearly provoked by the petitioner’s behavior. As such, the statutory element of lack of provocation by petitioner was not satisfied and the dissolution was improperly granted. Respondent further argues that petitioner failed to satisfy the requirement of showing that the alleged mental cruelty has affected the petitioner’s physical or mental health. (In re Marriage of Rittmeyer (1982), 107 Ill. App. 3d 892, 438 N.E.2d 237.) Therefore, according to the respondent the dissolution should not have been granted.

Section 401(2) of the Act provides that:

“The Court shall enter a judgment of dissolution of marriage *** |£.
* * *
(2) the court finds that, without cause or provocation by the petitioner: either party *** has been guilty of extreme and repeated physical or mental cruelty ***.” (Ill. Rev. Stat. 1981, ch. 40, par. 401(2).)

It is clear from the language of section 401(2) that the mental cruelty must be “without cause or provocation by the petitioner” in order for a dissolution of marriage to be granted. Mental cruelty has been defined by this court as a course of unprovoked conduct toward one’s spouse which cases embarrassment, humiliation and anguish so as to render the spouse’s life miserable and unendurable. (In re Marriage of Ducey (1981), 101 Ill. App. 3d 957, 428 N.E.2d 1165.) Therefore, to prove a case entitling a spouse to a dissolution on the grounds of mental cruelty, the evidence must show that the conduct of the offending spouse is unprovoked and constitutes a course of abusive and humiliating treatment that makes the life of the complaining spouse miserable.

Here, in support of his allegation of mental cruelty, petitioner testified to the absence of any conduct on his part which would cause respondent to behave as she did. This testimony was sharply disputed, but nevertheless, the finding of lack of provocation was a matter for the trial judge to determine and we will not disturb that finding unless contrary to the manifest weight of the evidence. Moreover, petitioner’s testimony that he suffered from headaches, nervousness, tenseness and depression was corroborated by respondent and supported the court’s determination that petitioner proved his allegation of mental cruelty. Accordingly, we find no error in the trial court’s judgment granting petitioner a dissolution of marriage based upon mental cruelty.

Respondent next contends that the trial court erred in merging the petitioner’s arrearage in unallocated temporary child support and maintenance payments into the judgment for dissolution. The trial court’s November 20, 1981, order required petitioner to pay respondent $2,000 a month as temporary support during the pendency of the matter. Although petitioner’s request for reduction in the temporary support payments was denied, petitioner reduced the payments to $1,000 a month for the period from May 1981 to October 1982. In October 1982 respondent filed a petition for rule to show cause why petitioner should not be held in contempt of court for failure to make the temporary support payments. The petition alleged an accumulated arrearage of $4,902.18. An October 7, 1982, order reduced support to $1,000 a month and stated that the issue of an arrearage would be taken under advisement. On December 15, 1982, the court again ruled that the arrearage issue would be taken under advisement. Finally, in the judgment for dissolution, the trial court provided that any arrearage was merged into the judgment for dissolution. Respondent claims that her right to the payments vested at the time that each payment became due and therefore the trial court could not retroactively modify the payments.

It is well established that past-due installments of support are a vested right and the court has no power to modify the award retroactively. (In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 436 N.E.2d 228; Collins v. Collins (1977), 47 Ill. App. 3d 258, 361 N.E.2d 787.) In the instant case, there was no finding by the trial court that an arrearage existed. When questioned about the arrearage by respondent’s attorney, the trial judge stated that he thought the arrear-age had been “squared away” by the concessions made in dividing marital property. Because respondent would have a vested right to any past-due temporary support payments, a finding that petitioner was in default with regard to those payments was imperative to a determination regarding the satisfaction of the arrearage. Accordingly, we remand this cause of action for a specific hearing on the issue of an arrearage.

Respondent also argues that the trial court erred in awarding petitioner almost double the marital property awarded to respondent. The trial court’s division of marital property will be reversed only where “no reasonable man would take the view adopted by the trial court.” (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.) Furthermore, it is well established that section 503(c) of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 503(c)) does not require that marital property be divided in equal shares. (In re Marriage of McDonald (1983), 113 Ill. App. 3d 116, 446 N.E.2d 559; In re Marriage of Cleveland (1981), 99 Ill. App. 3d 293, 425 N.E.2d 475.) In dividing marital property, if the court has considered all the factors set out in section 503, its discretion will not be reversed. (In re Marriage of McDonald (1983), 113 Ill. App. 3d 116, 446 N.E.2d 559.) Based upon this record, we are not convinced that the trial court’s division of marital property was so unreasonable as to constitute an abuse of the court’s discretion.

Respondent’s final contention is that the trial court’s award of attorney fees was unreasonable. Respondent’s petition for attorney fees itemized 188.49 hours spent by her attorney in this matter at a cost of approximately $14,000. At the hearing on fees, the court noted that a major portion of the items on the time statement was for telephone calls. In ruling that he would only allow fees for the time spent in court, the trial judge determined that an award which included fees for the numerous phone calls would be unreasonable. On that basis, the court awarded respondent $5,000 in attorney fees which petitioner was ordered to pay. Respondent argues she is entitled to the total attorney fees claimed on the grounds that the fees are reasonable and that petitioner is financially better able to pay the fees.

The allowance of attorney fees is within the sound discretion of the trial court, and such an award will not be disturbed in the absence of a clear abuse of that discretion by the court. (Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56.) The fee allowance should provide for fair compensation but only for those services which were both reasonable and necessary to the action. (Donnelley v. Donnelley (1980), 80 Ill. App. 3d 597, 400 N.E.2d 56; Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 373 N.E.2d 576.) Although this was a contested matter, because the issues presented were not unusually complicated, and because a major portion of the requested fees was for phone calls, we see no abuse of discretion in the trial court’s ruling that respondent’s fee request was unreasonable. Accordingly, we will not disturb the trial court’s award of attorney fees.

For the reasons stated above, that part of the circuit court’s judgment which merged the unallocated temporary support arrearage into the judgment of dissolution is reversed and remanded for a specific hearing on the issue of an arrearage. In all other respects, the judgment of the circuit court is affirmed.

Judgment affirmed in part and reversed and remanded in part.

McGLOON and GOLDBERG, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    PETERSON WELDING SUPPLY COMPANY, INC., Plaintiff-Appellant, v. CRYOGAS PRODUCTS, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 83—526
    Opinion filed August 6, 1984.

      Edward V. Donovan, Jr., James J. McManus, and Saulius V. Kuprys, all of Henehan, Donovan & Isaacson, Ltd., of Chicago, for appellant.
    James H. Wolf and Francis K. Tennant, both of Hedberg, Tobin, Corri-gan & Wolf, of Chicago, for appellee Edmund M. Tobin.
    Earl B. Lichten and Christopher J. Horvay, both of Berger, Newmark & Fenchel, of Chicago, for other appellees.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff, Peterson Welding Supply Corporation, appeals from a judgment which was entered in favor of defendants, Cryogas Products, Inc., Savant Welding Supply Company, Edmund M. Tobin, Marcella Savant and Edward Savant, which denied plaintiff’s claim for relief from the alleged loss of a corporate opportunity. Plaintiff raises the following issues on appeal: (1) whether there was a breach of fiduciary duty by corporate personnel with regard to the acquisition of a going concern; (2) whether plaintiff’s attorney breached his fiduciary duty to plaintiff by engaging in activities affecting plaintiffs alleged corporate opportunity; (3) whether the trial court’s finding in favor of defendant was against the manifest weight of the evidence; (4) whether the trial court abused its discretion in finding plaintiff guilty of laches-, and (5) whether the trial court erred in its rulings regarding the admission of certain testimony during the course of the trial.

The record discloses that plaintiff filed a 60-page second amended complaint consisting of 14 counts. The complaint, which contained four counts each against Cryogas, Savant Welding and Tobin, and one count each against Marcella and Edward Savant, alleged in general that defendants were guilty of misappropriation of business opportunities and of self-dealing. Specifically, the allegations against Edmund M. Tobin attacked Tobin’s participation in the formation of Cryogas Products, Inc., as a conflict of interest in his capacity as plaintiff’s counsel. Plaintiff also alleged that Tobin’s improper conduct resulted in a profit of $20,000 to Tobin at plaintiff’s expense.

Prior to trial, defendants waived the Dead Man’s Act (Ill. Rev. Stat. 1981, ch. 110, par. 8 — 201), thereby permitting James O’Donnell, president of plaintiff corporation, to testify as to any statements made by either Erman C. Savant (Savant) or Clifford D. McGuinn, who were both deceased at the time of trial and who were both principals in the alleged self-dealing.

At the close of plaintiff’s case, all of the defendants except attorney Edmund M. Tobin rested their cases without offering any evidence. Tobin offered evidence to counter plaintiff’s allegation that he was plaintiff’s general counsel. Tobin noted that he performed services for plaintiff on an “as-requested” basis. He also asserted that since he was paid only when services were rendered, there was no evidence that a retainer relationship existed between plaintiff and himself. Tobin then rested his case. Thereafter, the trial court made extensive findings of facts which will be summarized here. The court found that plaintiff, a retail distributor of industrial gases and equipment of the Chemetron Corporation, was owned by James O’Donnell and Savant, who together also constituted a majority of plaintiff’s board of directors. Savant was also plaintiff’s chief operating officer. In 1971, Chemetron, a wholesale distributor of industrial gases, decided to divest itself of its wholesale bulk liquid business and retail cylinder business. Plaintiff, by its board of directors, contemplated an expansion of plaintiff’s business and authorized its corporate officers to take steps towards the acquisition of Chemetron’s distributorship. McGuinn, a former president of Chemetron, was then hired by plaintiff to aid in acquiring the distributorship, and he and Savant located premises suitable for the proposed expansion. A lease of the premises was then executed on behalf of Savant and Cryogas with an option to purchase the premises in favor of Savant. Cryogas was incorporated on January 11, 1974, with Savant, McGuinn and Tobin constituting the corporation’s shareholders and board of directors. Cryogas then executed a sublease of 50% of the premises to plaintiff which was signed by Savant on behalf of plaintiff. Cryogas and plaintiff then operated out of the same premises and shared the expenses of the building operation.

In 1974, Chemetron selected Cryogas as the company to acquire its wholesale master distributorship. According to Chemetron personnel, Chicago area retail distributors would not do business with a combined wholesale-retail operation and therefore plaintiff, being a retailer, was not a feasible selection for the wholesale distributorship. It was further asserted that plaintiff had only been considered by Che-metron as a possible distributor because Savant had at one time been employed by Chemetron.

At trial, O’Donnell testified that Savant had asked him to become an investor in Cryogas; however, O’Donnell refused the offer, saying, “You know I don’t buy into anything I don’t control.” Further testimony revealed that O’Donnell knew that Cryogas was a separate corporation from plaintiff and that O’Donnell abided by a request from Savant that O’Donnell not discuss his objection to Cryogas’ being a separate corporation in front of Tobin. O’Donnell asserted, however, that he insisted on numerous occasions that Cryogas become part of plaintiff corporation.

The record further discloses that in September 1976, following the death of Savant, O’Donnell entered into an agreement with Marcella Savant, who succeeded to the ownership of plaintiff’s shares upon the death of Savant, to amend the terms of the lease between Cryogas and plaintiff. Marcella also agreed to sell her shares in plaintiff corporation to O’Donnell. No further evidence was introduced by plaintiff against Marcella, and no evidence was introduced against defendant, Edward Savant and Savant Welding Supply Company. The suit in this case was filed in October 1977, one year after the agreement between O’Donnell and Marcella.

Initially we note that although plaintiff has raised numerous issues on appeal, we believe that the threshold issue to be addressed in this case is whether the trial court erred in finding that defendants had not breached their fiduciary duty to plaintiff by acquiring the wholesale distributorship where no corporate opportunity existed for plaintiff. Plaintiff’s other contentions, that Tobin breached his fiduciary duty to plaintiff, and that the trial court’s finding in favor of defendants was against the manifest weight of the evidence, will be considered in addressing the threshold question.

We now address the issue whether the trial court erred in not finding a breach of fiduciary duty by defendants in acquiring the wholesale distributorship. Plaintiff argues that defendants breached their fiduciary duty by usurping plaintiff’s corporate opportunity and by acquiring an interest adverse to plaintiff’s interest. Plaintiff notes that Savant was responsible for presenting the idea of the potential wholesale distributorship to plaintiff and that Savant, as plaintiff’s chief executive officer, was thereby commissioned to obtain the opportunity for plaintiff. According to plaintiff, Savant falsely represented to O’Donnell and Chemetron that he was attempting to obtain the opportunity for plaintiff and instead succeeded in garnering the opportunity for himself, McGuinn and Tobin. Plaintiff argues that Savant, McGuinn and Tobin owed a fiduciary duty to plaintiff and breached that duty by incorporating Cryogas in order to obtain the opportunity. Plaintiff finds support for its allegations in the testimony of Lauren Sage, a vice-president of Chemetron, who testified that Chemetron had selected plaintiff to be its wholesale distributor; however, upon the urging of Savant, Chemetron named Cryogas as its distributor. On cross-examination, Sage explained that it would not have been feasible for plaintiff to engage in both the retail and wholesale markets and that there would have been a conflict had Chemetron accepted plaintiff as a wholesaler. John S. Crabbe, the regional manager of distributor sales for Chemetron, also stated that plaintiff was the corporation chosen by Chemetron to acquire the distributorship. On cross-examination, however, Crabbe clarified that the decision as to which corporation would receive the distributorship had not been determined at the time he left his employment with Chemetron. Plaintiff concludes that because defendants failed in their duty to take all steps necessary to obtain the opportunity for plaintiff, they breached their fiduciary duty to plaintiff.

Defendants argue that a corporate opportunity was not available to plaintiff and therefore the trial court was correct in finding that defendants did not breach their fiduciary duty to plaintiff. Defendants claim that the wholesale distributorship was not available to plaintiff because plaintiff was a retailer and the dealers in the Chicago market would not do business with a combined retail-wholesale distributor. Defendants assert the evidence established that Chemetron was considering plaintiff as its wholesaler by virtue of Chemetron’s association with Savant and O’Donnell; however, following a feasibility study, Chemetron determined that the Chicago market mandated that a separate entity be selected as the wholesaler. Defendants cite several cases wherein the court found no breach of a fiduciary duty by corporation officers and directors accused of usurping a corporate opportunity where the alleged opportunity did not exist for the corporation to obtain and utilize. See, e.g., Paulman v. Kritzer (1966), 74 Ill. App 2d 284, 219 N.E.2d 541, aff’d (1967), 38 Ill. 2d 101, 230 N.E.2d 262; Northwestern Terra Cotta Corp. v. Wilson (1966), 74 Ill. App. 2d 38, 219 N.E.2d 860.

A corporate opportunity exists when a proposed activity is reasonably incident to the corporation’s present or prospective business and is one in which the corporation has the capacity to engage. (Kerrigan v. Unity Savings Association (1974), 58 Ill. 2d 20, 317 N.E.2d 39.) Moreover, an opportunity must have been in line with the corporation’s business and of practical advantage to it. (Paulman v. Kritzer (1966), 74 Ill. App. 2d 284, 219 N.E.2d 541, aff’d (1967), 38 Ill. 2d 101, 230 N.E.2d 262.) To make this determination, the court looks to the facts presented as well as the nature of the business of the corporation. (Paulman v. Kritzer (1966), 74 Ill. App. 2d 284, 219 N.E.2d 541.) Although such determination by the trial court is always subject to review, this court will not disturb the trial court’s finding unless it is against the manifest weight of the evidence. Schulenburg v. Signatrol, Inc. (1967), 37 Ill. 2d 352, 226 N.E.2d 624.

In the instant case, although attorney Tobin was the only defendant to offer any evidence at trial, the trial court found that there was a total failure by plaintiff to present evidence to support its numerous allegations, including the allegation that Tobin profited by $20,000 at plaintiff’s expense. The trial court had the opportunity to hear the testimony of six disinterested Chemetron employees along with the testimony of 15 other witnesses as well as to examine the extensive documentation presented at trial. Based on this evidence, the court found that in the Chicago area a wholesaler and a retailer could not be the same entity due to the resistance of dealers in the market to do business with a combined entity. The court also found that it would have been contrary to Chemetron’s marketing plan to allow plaintiff to operate the wholesale distributorship. Finally, the court found that plaintiff could not have taken advantage of the alleged corporate opportunity in light of market conditions and therefore defendants did not breach their fiduciary duty in forming Cryogas Products, Inc., and acquiring the wholesale distributorship. It should also be noted that the record reveals that plaintiff had access to all the business records of Cryogas Products and that defendants demonstrated a strong desire to disclose any and all facts to plaintiff. Therefore, based on this record, we are not convinced that the trial court’s findings were against the manifest weight of the evidence.

Plaintiff also contends the trial court erred in finding the corporation guilty of laches for failure to timely file this suit. Plaintiff claims that O’Donnell did not become aware of breaches of duty until after Savant’s death, and the instant suit was filed one year later. Plaintiff also maintains that defendants failed to show that they were prejudiced by the delay and therefore are not entitled to assert the defense of laches. DeBruyn v. Elrod (1981), 84 Ill. 2d 128, 418 N.E.2d 413.

Laches will operate to bar equitable relief where the failure to assert a right, along with a lapse of time and other circumstances, cause prejudice to the adverse party. (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 147 N.E.2d 341; Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.) In Pyle, the supreme court considered several factors in determining the applicability of the laches defense. The factors included the delay in asserting the complainant’s rights while the complainant had knowledge of the right and the opportunity to institute a lawsuit, the lack of knowledge on the part of defendant that complainant would assert the right, and the prejudice to defendant in the event the suit was not barred. (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 553, 147 N.E.2d 341, 344.) Under the circumstances of this case and after reviewing the trial court’s specific findings, we believe the aforementioned requirements were met, thereby establishing the defense of laches, which bars plaintiff’s action in this case.

The trial court specifically found that plaintiff, through its agent, James O’Donnell, had full knowledge of the following facts and performed the following acts: O’Donnell knew of the existence of Cryogas and the nature of its business in 1974 and thereafter; he knew in June 1975 that Cryogas was a separate corporation from plaintiff; he insisted on numerous occasions that Cryogas be made a part of plaintiff corporation from 1974 and thereafter; he knew that Savant suffered from a series of heart attacks and had been hospitalized; and he entered into an agreement with Marcella following Savant’s death to amend the terms to the lease between Cryogas and plaintiff and to purchase her stock in plaintiff corporation more than a year prior to filing the instant suit. The trial court concluded that Marcella made the agreement without knowledge of any possible claims against her individually or regarding her interest in Cryogas and thereby caused a major change in her position. It is well established that laches is an equitable doctrine to be invoked or rejected in the trial court’s discretion. (Finley v. Finley (1980), 81 Ill. 2d 317, 410 N.E.2d 12.) Having found no abuse of this discretion by the trial court, we reject plaintiff’s argument concerning the laches defense.

We finally address plaintiff’s contention that certain rulings by the trial court prevented the corporation from fully presenting its case. Plaintiff complains in particular of the court’s restriction of the testimony of expert witness, William Henderson; of the trial court's refusal to allow the evidence deposition of J. D. Thor, a former Chemetron employee; of the court’s quashing of plaintiff’s notice to produce documents during the trial; and of the trial court’s inconsistent rulings with regard to the laches defense and with regard to the relevant geographic area. The decision to allow or exclude certain testimony is a matter within the sound discretion of the trial court. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill. 2d 180, 226 N.E.2d 6.) Upon our examination of the record, we note that plaintiff called 18 witnesses at trial on its behalf, that the trial took place after at least 21 discovery depositions had been taken, and that the parties had fully exchanged business documents which were admitted in large part by stipulation. We are convinced, based on these facts, that plaintiff was given the opportunity to fully present its case.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McGLOON and GOLDBERG, JJ., concur.


author: JUSTICE LORENZ

text:
      In re MARRIAGE OF MELANIE T. ROSEN, Petitioner-Appellant, and JACK M. ROSEN, Respondent-Appellee.
    First District (5th Division)
    No. 83—1062
    Opinion filed July 27, 1984.

      Joel S. Ostrow, of Chicago, for appellant.
    Jeffrey Cole and Andrew T. Staes, both of Chicago (Jeffrey Neal Cole, Ltd., Sanford Kirsh, and Kirsh & Berman, Ltd., of counsel), for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

Petitioner appeals from the denial of her motion to modify or vacate the final judgment in this dissolution of marriage action. She challenges the classification, valuation and apportionment of property; the trial court’s failure to award maintenance; the adequacy of child support; and the failure to provide for college education. For reasons set forth below, we affirm in part, reverse in part and remand this cause to the circuit court for further proceedings.

The parties were married April 8, 1960, and had four children, of whom two were minors at the time judgment was entered. Grounds for dissolution, custody and visitation were uncontested; the financial aspects of the dissolution were tried in the circuit court of Cook County during June of 1982. The preponderance of trial testimony addressed the nature and value of a voting trust agreement which represented 14,373 shares of stock in Furst & Furst Corporation, a collection company. The parties stipulated that in 1961, petitioner’s father, Louis Lewis, transformed his then sole proprietorship into a corporation and issued 10,000 shares of stock. Of the original issue, petitioner’s name appeared on 2,000 shares; these shares split in 1967 and became 14,373 shares, the marital or nonmarital nature and the value of which were subjects of dispute. Additional shares of Furst & Furst, given in the mid-1970’s, were stipulated to be the nonmarital property of petitioner.

Stipulations were also entered concerning: the $150,000 value of the marital residence in Lincolnwood; marital accounts at the time of petition totalling $119,000; the equity value in respondent’s Morton Grove residence purchased with $30,000 from the marital accounts; jewelry, fine art and silver at the Lincolnwood residence valued in an insurance policy at $74,129; and the terms of certain trusts for the benefit of the children. Tax returns, insurance policies, stock alienation and other agreements were stipulated for admission into evidence, subject to cross-examination of witnesses. The parties stipulated to a letter, dated June 1, 1982, from American National Bank, stating that records from 1961 through 1970 no longer existed.

Respondent testified that he owned and operated Continental Collections, Incorporated, a collection company formed by him in 1976. He stated that the only funds he received from the company were repayments of loans, about $11,000 in the preceding year, and reimbursements of business expenses. Concerning the Furst & Furst stock, respondent testified that he and petitioner had discussed a purchase with petitioner’s father in 1961 or 1962, and respondent recalled handing a check to petitioner’s father in exchange for the stock. He stated that the check was drawn on the American National Bank from funds received as wedding gifts and deposited in joint checking and savings accounts. Respondent said that he could not recall who wrote the check or the amount of the check.

Petitioner testified that she had a bachelor’s degree in education and was certified to teach, but that she had not taught for over 11 years. She stated that her current part-time employment at Furst & Furst paid about $75 weekly. As to the family standard of living, she testified that the family owned horses, employed domestic help, purchased clothing at Marshall Field’s, Saks’ and Bonwit’s, and vacationed at Hilton Head, La Costa and Scottsdale. Respondent stated that two of the children had had extraordinary medical expenses in the last few years.

Concerning the Furst & Furst stock, petitioner testified that her father gave her the stock as a gift in 1961. She stated that she received $24,000 in dividends from Furst & Furst in 1981, and $8,000 in 1982. On cross-examination, petitioner admitted that when she was deposed, she stated that she had purchased the stock from her father using “bank books” from the American National Bank. Petitioner also was questioned at length concerning withdrawals from the marital accounts in the amount of $60,000 and withdrawals from the trust accounts of the children during the period from filing of the petition for dissolution until the trial. On redirect, petitioner explained the difference between her trial and deposition testimony as resulting from a conversation with her father shortly after the deposition.

Petitioner’s father, Louis Lewis, testified that in 1961 he gave 2.000 shares of Furst & Furst stock to his daughter and a like amount to his then 15-year-old son. He stated that he was surprised to hear that his daughter had testified differently in her deposition. Lewis testified that as chairman of Furst & Furst, he knew that the 107.000 outstanding shares were owned by 16 shareholders, and that a block of 15,000 shares had recently been sold at $13 per share. In addition, he produced original promissory notes in the amount of $60,000 which he said represented recent loans to his daughter.

During cross-examination, Lewis admitted that he filed Federal gift tax returns for the years 1956, 1960 and 1973 through 1979, but he did not file a gift tax return in 1961. He admitted that the recent seller of Furst & Furst stock, a former employee of the corporation, had been paid on a lower basis than was provided in the repurchase agreement, but he explained that exercise of the agreement was optional with the company. He denied that the seller had been forced from employment. Lewis stated that prior to the recent loans, he “gave” his daughter whatever she needed.

Each party called an expert to value the disputed interest in Furst & Furst; both experts testified to the book value of the corporation. Respondent’s expert, a certified public accountant, related three methods for the valuation of a closely-held corporation. He opined that the “discounted good will” method, recommended by the American Institute of Certified Public Accountants, was the most accurate. This method would yield a market value of $26.48 per share. The second method, based on the repurchase agreement, would yield a value of $44.61 per share, and the third, based on capitalization of earnings, $12.64 per share.

Petitioner’s expert, a business appraiser, testified that direct appraisal of the minority interest in the company, as presented by the voting trust agreement, was the best method of valuation. He stated that his appraisal accounted for three factors: the recent transaction of a comparable block of shares, the book value reduced by a factor acceptable to the Internal Revenue Service, and the dividend capacity of the stock. Independently, these factors generated values of $13, $12.36 and $15 per share, respectively. According to petitioner’s expert, the average of these figures represented an accurate value for the stock at $13.45 per share.

Petitioner was recalled to the stand to testify that during the trial, she had found bank records in the crawl space of the Lincoln-wood residence. The records consisted of partial check registers for accounts at American National Bank, Bank of Lincoln wood and the Northern Trust covering limited periods in the years 1960 through 1962. She stated that her review of the records revealed no checks written to Louis Lewis or Furst & Furst.

The trial court made an explicit finding that the testimony of petitioner and her father was impeached and was not believed. The court found respondent’s testimony to be believable. The trial court determined that 14,373 shares of stock in Furst & Furst were marital property, and valued the stock at $19.31 per share.

The trial court set apart nonmarital stock worth $84,453 to petitioner, and it assigned to respondent his nonmarital trust paying $34,000 annually. Account balances held by petitioner totalled $17,116 and those of respondent, $54,200; these accounts were awarded each to its holder, but the extent to which the accounts were or were not included in the $119,000 figure representing marital accounts at the time of petition does not appear. The trial court stated thát respondent would be responsible for $16,500 in debts incurred by him, and that petitioner would be responsible for the “alleged” indebtedness to Louis Lewis.

The apportionment of marital property may be summarized as follows:

Petitioner
Property Value
Furst & Furst stock ($277,000 less $75,000 payment to respondent) $202,000
Lincolnwood residence ($150,000 less $75,000 payment to respondent) 75,000
Jewelry, fine art and silver 74,000
Received from marital accounts from date of petition 64,000
$415,000
Respondent
Property
Payment from petitioner for interest in Furst & Furst $75,000
Payment from petitioner for interest in Lincolnwood residence 75,000
Received from marital accounts from date of petition 58,000
$208,000

The trial court found each party capable of providing for needs from marital and nonmarital property being awarded, and found each party capable of self-support by employment. The court awarded $250 per child per month to be paid by respondent to petitioner for support of the minor children. The court found that son Edward, 21 years old, was entitled to receive trust assets of $49,000 and had received $39,000 from trust accounts in the two years preceding judgment, and found further that David, Kenneth and Mitchell each had trust accounts. The decree recites that Edward will be responsible for his own educational expenses, that David has the ability to pay his college expenses, and that payment of future college expenses for Kenneth and Mitchell would be governed by section 513 of the Illinois Marriage and Dissolution of Marriage Act.

Petitioner filed her motion to modify or vacate the decree on October 6, 1982, alleging inter alia that the discovery of new evidence warranted modification. The new evidence consisted of an affidavit by a manager at the American National Bank stating that a further search of bank records indicated the parties’ joint account was opened in April of 1962 and neither party had any account in 1961. The trial court denied petitioner’s motion on all grounds and ruled that petitioner failed to exercise due diligence in discovering the new evidence; the court added that the evidence was not of such a conclusive nature as to affect the court’s rulings. Petitioner filed a notice of appeal on May 2,1983.

Opinion

Petitioner first contends that the trial court’s classification of Furst & Furst stock as marital property was contrary to the manifest weight of the evidence. She argues that the parent-child transaction gave rise to a presumption of gift which could be overcome only by clear and convincing evidence. Because respondent’s testimony was not clear and convincing, and because all of the documentary evidence supported petitioner’s version of events, she concludes that the manifest weight of the evidence established the nonmarital nature of the stock.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1981, ch. 40, par. 503) governs the classification of property. Our supreme court has interpreted the Act as creating a rebuttable presumption that property acquired after the marriage is marital; the party seeking the benefit of an exception, including the exception of property acquired by gift, bears the burden of proof. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 216, 446 N.E.2d 499; see also In re Marriage of Smith (1981), 86 Ill. 2d 518, 529-30, 427 N.E.2d 1239.) In Illinois, a transfer from parent to child is presumed to be a gift (see O’Donnell v. O’Donnell (1922), 303 Ill. 31, 37, 135 N.E.28) and the gift presumption may be overcome only by clear and convincing evidence to the contrary. (Varap v. Varap (1966), 76 Ill. App. 2d 402, 413, 222 N.E.2d 77.) In the instant case, therefore, the transaction was subject to conflicting presumptions.

We believe that the presumptions operated only to fulfill both parties’ prima facie obligations, and left the trial free to resolve the issue on the facts. Our view is supported by Illinois case law. Generally, a presumption serves to shift to the party against whom it operates the burden of going forward and introducing evidence to meet it; the presumption ceases to operate once contrary evidence is introduced. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 448 N.E.2d 872; E. Cleary & M. Graham, Illinois Evidence sec. 302.5, at 81-82 (4th ed. 1984).) Specifically with respect to conflicting presumptions, Illinois courts have treated such presumptions as though they cancelled. In Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 446 N.E.2d 499, the supreme court considered arguments over a parent-to-child gift in the context of the Act’s classification provision. Reversing the appellate court and sustaining the trial court’s classification, the supreme court concluded that “the trial court’s determination was supported by credible evidence, and we are not free to disturb it in light of the statutory presumption.” (94 Ill. 2d 205, 216, 446 N.E.2d 499.) Similarly, in In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 440 N.E.2d 1028, the parties gave conflicting testimony concerning a transfer of title into joint tenancy. The Wojcicki court recognized that such a transfer gives rise to a presumption of gift which may be rebutted only by clear and convincing evidence, but also noted that “the trial court’s determination as to credibility was central to its adjudication of the issue.” (109 Ill. App. 3d 569, 573-74, 440 N.E.2d 1028.) The court employed a manifest weight of the evidence standard and sustained the trial court’s finding despite the applicable presumption. (See also In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 785-86, 450 N.E.2d 1385.) We conclude that notwithstanding the presumption of gift, the trial court’s classification of property should not be disturbed unless contrary to the manifest weight of the evidence.

Judged by this standard, we find that the trial court’s determination is supported by the evidence. Respondent testified that in 1961, or perhaps early 1962, he and petitioner had conversations with Lewis during which Lewis said that the couple would gain by the purchase of Furst & Furst shares, perhaps $60,000 per year. Respondent recalled that Lewis came to the couple’s Skokie apartment on a weekend afternoon and requested a check which he said would represent the stock purchase. Respondent stated that Lewis was in the living room and petitioner was in the bedroom; respondent went to the bedroom, then returned with a check which he handed to Lewis. This 20-year-old recollection of events contained some degree of detail, and was corroborated to some extent by petitioner’s deposition testimony. More important, the trial court believed the testimony.

In contrast, the record reveals ample impeachment of the testimony of petitioner and her father. Petitioner recalled at her deposition that she had purchased the Furst & Furst stock with nonmarital funds from an account at American National Bank; at trial she remembered that the stock was a gift. Lewis’ credibility was undermined generally by his statements that he “gave” his daughter whatever she wanted before proceedings in this case, but that he “loaned” large sums of money to her after the commencement of the action. His testimony to the gift itself suffered from his failure to file a gift tax return covering the transaction and his failure to note any such gift on later returns.

Petitioner’s attempt to impeach respondent was less successful. She produced check registers containing months-long gaps and indicating that many unrecorded checks had been issued. Even if we considered the affidavit submitted post-trial, which stated that the parties’ account at American National Bank was opened in April of 1962, we would not be compelled to conclude that respondent was substantially impeached. It appears that the couple had several accounts in the relevant time-frame, which included early 1962. Thus, respondent’s testimony may be read as consistent with the affidavit, and if inconsistent, only incidentally so.

These facts we glean from the transcript. Of course, the trial judge viewed the demeanor of the witnesses on the stand, and was therefore in a better position to assess their credibility and to resolve conflicts in their testimony. The trial court’s classification of Furst & Furst stock as marital property was not against the manifest weight of the evidence.

Petitioner next contends that the trial court erred in denying her post-trial motion to modify or vacate, brought under section 2 — 1203 of the Code of Civil Procedure, based on newly discovered evidence. A manager at American National Bank stated by affidavit that a search in September 1982 revealed a service charge report which indicated that the parties’ joint account was not opened until April of 1962. One of petitioner’s attorneys, Errol Zavett, submitted an affidavit in which he stated:

“During and prior to the trial of this case, evidence was adduced concerning the checking account at American National Bank, which I believe negated the need for further proof of the opening of said checking account.
* * *
During September, 1982, after the ruling in this case, I became aware that American National Bank had discovered a record of the disputed account.”

Also attached to the motion was a letter on bank stationery addressed to “Mr. L. H. Lewis, Furst & Furst,” referring to a conversation on September 2, 1982, noting enclosure of the service charge report and summarizing its content.

Section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 1203) derives without substantive change from section 68.3 of the Civil Practice Act. (See Ill. Ann. Stat., ch. 110, par. 2 — 1203, Historical & Practice Notes, at 364 (Smith-Hurd 1983).) The motion is committed to the trial court’s discretion (In re Marriage of Hopkins (1982), 106 Ill. App. 3d 135, 137, 435 N.E.2d 897), and where based on newly discovered evidence, it must appear that due diligence was used to discover the evidence for trial and that the evidence is so conclusive that it would probably change the result. In re Marriage of Sanborn (1979), 78 Ill. App. 3d 146, 150-51, 396 N.E.2d 1192.

Aside from the possibility that the bank breached its depositors’ confidence (see Suburban Trust Co. v. Waller (1979), 44 Md. App. 335, 408 A.2d 758, and authority cited therein), the record in this case fails to show how Lewis caused the service charge report to be discovered. Absent any indication of the method actually used to discover the evidence, the trial court would have been hard pressed to find that petitioner exercised due diligence. On the contrary, the record actively indicates that the evidence was available throughout the pendency of the action and that the evidence was not discovered earlier because the attorneys accepted an incomplete response from the bank. On petitioner’s part, the bank’s initial response was accepted because petitioner’s attorney determined as a matter of trial strategy that further evidence would be unnecessary. “It cannot be the practice of courts to allow important matters to go to trial, and because one party is not satisfied with the results of it, let [that party] go out and try to get facts which will enable him [or her] to do better at another trial, and rely upon such after-ascertained matters as a basis for a new trial.” Chicago & Alton R.R. Co. v. Raidy (1903), 203 Ill. 310, 317, 67 N.E. 783.

We believe that the trial court properly denied petitioner’s motion on the ground that petitioner failed to exercise due diligence to discover the evidence for trial. In addition, we find that the trial court was justified in denying the motion on the alternative ground that the evidence was not of such a conclusive character as to change the result. Respondent testified that the transaction occurred in 1961 or early 1962; whether the testimony is construed as consistent with the service charge report or is construed as mistaken concerning the time of transaction or location of account, petitioner’s new evidence raises no irreconcilable conflict. Accordingly, we sustain the trial court’s refusal to reopen the case and hear new evidence concerning the classification of Furst & Furst stock.

Petitioner next contends that the trial court’s valuation of Furst & Furst stock at $19.31 per share was contrary to the manifest weight of the evidence. This court has repeatedly recognized that the valuation of a closely held corporation is subject to no hard and fast rules, but that all relevant facts should be considered, and the trial court’s judgment should be sustained so long as the record supports the valuation. (See e.g., In re Marriage of Mullins (1984), 121 Ill. App. 3d 86, 89, 458 N.E.2d 1360; In re Marriage of Mitchell (1981), 103 Ill. App. 3d 242, 248, 430 N.E.2d 716.) Here, the trial court heard lengthy testimony from two experts: one valued Furst & Furst at $26.48 per share; the other, $13.45. The $19.31 per share value placed on the stock by the trial court represented book value, and was well within the range of testimony. We conclude that the trial court’s valuation of Furst & Furst shares was not contrary to the manifest weight of the evidence.

Petitioner next contends that the trial court abused its discretion in apportioning the marital property. Section 503(c) of the Act requires that marital property be divided in “just proportions” considering, inter alia,

“(1) the contribution or dissipation of each party *** including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
* * *
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in lieu of or in addition to maintenance; and
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.” (Ill. Rev. Stat. 1981, ch. 40, par. 503(c).)

The trial court in its discretion may make whatever distribution it deems equitable under the circumstances, and review is limited to determining whether the trial court fairly considered the evidence in the context of the factors set forth in section 503(c); distribution will not be disturbed unless no reasonable person would adopt the trial court’s view. In re Marriage of Sheber (1984), 121 Ill. App. 3d 328, 337-38, 459 N.E.2d 1056.

We have disregarded the questionable mathematical demonstrations contained in petitioner’s brief and substituted our own calculations, set out in the facts, which show that petitioner shall receive approximately $415,000 in assets and respondent shall receive approximately $208,000. Given petitioner’s continuing custody and responsibility for the minor children, and given respondent’s superior opportunity for future acquisition of assets, a division favoring petitioner seems fair. Petitioner’s contention that this division constitutes an injustice to her depends in large part upon her assertion that the trial court set apart to respondent his nonmarital trust worth $500,000.

The trial court found: ‘ ‘That respondent is the life beneficiary of a trust established by his father which is paying him the sum of approximately $34,000.00 per year in income, and that said trust is a non-marital asset.” Respondent testified that his father had mentioned that the corpus of the trust was $500,000. Respondent also stated that he had petitioned the trustee for a disbursement from principal, but that the petition had been denied. Although reference was made to the terms of the trust, no document concerning it was entered in evidence, and the foregoing represents the full extent of testimony and findings concerning the trust.

We believe that the trial court abused its discretion in two respects concerning the apportionment of marital property. First, the court’s finding that the trust was a nonmarital “asset” valued at its $34,000 per year “income” was clearly erroneous. “Assets” and “income” are separate if not mutually exclusive concepts (see Black’s Law Dictionary 108 and 687 (5th ed. 1979)), and the confusion of the two, in this decree at least, significantly prejudiced petitioner. For example, present value is the measure of worth for “assets,” but no attempt was made to determine the present value of the trust; the income derived from the trust during the marriage should almost certainly have been characterized as marital, yet the trial court seems to have assumed the opposite without any finding to that effect. The value of the nonmarital' assets is an important consideration in the apportionment of marital property (see Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(2)), and the failure of a trial court to determine the value of substantial assets can justify reversal. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 458-59, 426 N.E.2d 1087; In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 635-36, 397 N.E. 2d 488.) Here, the complete dearth of evidence or findings concerning the terms and value of the trust, the nature of the proceeds therefrom, and the effects of these determinations upon other interests related to the dissolution rendered the property division arbitrary.

In addition, we believe that the manner in which the property was divided, namely, the award of tangible assets to petitioner and the attendant cash payments of $150,000 from petitioner to respondent, amounted to an abuse of discretion. On this record, it appears that petitioner will be required to sell or impair assets in order to make such payments, whereas respondent possesses more than adequate liquidity to maintain and improve his standard of living for the foreseeable future. We note that where it has been necessary to award large assets to one spouse, the trial court is in a position to fashion offsetting payments flexibly. See, e.g., In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 387, 399 N.E.2d 1006 (installment payments for interests in business); In re Marriage of Thompson (1979), 79 Ill. App. 3d 310, 317, 398 N.E.2d 17 (payment from ultimate sale proceeds for interest in home).

In view of the hotly contested nature of proceedings concerning the Furst & Furst stock, the absence of a clear focus on the more general issues of apportionment is understandable. However, we believe that the statutory mandate to divide property in “just proportions” requires the court to consider all aspects of the couple’s economic circumstances, despite the narrow contentions of the parties. On remand, the trial court should determine the nature and value of respondent’s interest in the trust, and review its findings affected thereby. The division of marital property should be made in a manner which indicates that initial proportions will remain just when the division is carried out. Because maintenance and child support depend upon apportionment of property (see In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1083, 412 N.E.2d 1336) these issues are also remanded for further consideration as necessary The trial court’s findings with respect to the ability of the older children to pay for college are supported by the record, and so we affirm that portion of its decision.

In sum, we affirm the trial court’s classification and valuation of Furst & Furst stock as well as its judgment respecting provisions for college education. We reverse and remand the judgment dividing the property and the dependent judgments concerning maintenance and child support; the trial court should take evidence on the nature and value of all substantial assets, except the Furst & Furst stock, and all sources and potential sources of income at the time of the hearing on remand. The trial court should then fashion a division which is practical and just in light of all relevant economic circumstances, providing for maintenance or adjusting child support as necessary.

For the foregoing reasons, the judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

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

MEJDA, P.J., and SULLIVAN, J., concur.


author: PRESIDING JUSTICE MILLS JUSTICE TRAPP,

text:
    CAROL ANN CLARK, Ex’x of the Estate of Ronald Hartzler, Plaintiff-Appellant, v. BROKAW HOSPITAL et al., Defendants (Dr. John J. Schetz et al., Respondents-Appellees; Dr. Robert A. Kooker, et al., Respondents).
    Fourth District
    No. 4—83—0849
    Opinion filed August 15, 1984.

      TRAPP, J., concurring in part and dissenting in part.
    Lester Berry Smith, Ltd., of Peoria (M. Michael Waters, of counsel), for appellant.
    Bane, Allison, Saint & Ehlers, P.C., of Bloomington (John R. Bailen, of counsel), for appellees.
   PRESIDING JUSTICE MILLS

delivered the opinion of the court:

A matter of procedure.

The adding of respondents in discovery as defendants to the lawsuit.

Carol Ann Clark, as executrix of the estate of Ronald Hartzler, filed a complaint against Brokaw Hospital on February 3, 1983. Doctors John Schetz and Douglas Bey were named as respondents in discovery to this complaint. The single count of the complaint alleged that the failure of the hospital to admit Hartzler for psychiatric care on January 27, 1981, was the proximate cause of his suicide on February 4, 1981.

A first amended complaint was filed on May 19, 1983, and a second amended complaint was filed on July 22, 1983. As in the original complaint, both the first and second amended complaints named Schetz and Bey as respondents in discovery.

On July 28, 1983, plaintiff filed a motion for leave to file a third amended complaint. This complaint added three counts which respectively alleged acts of medical malpractice against Drs. Schetz, Bey, and J. Arber, all three doctors being named as defendants. (Dr. Ar-ber is not a party to this appeal.) Notice of a hearing on the motion for July 29, 1983, was mailed to respondents’ attorney on July 26 and an amended notice was hand delivered to respondents’ attorney on July 28. Neither respondents nor their attorney appeared at the hearing. The trial court granted plaintiff’s motion to file a third amended complaint and the amended complaint — naming respondents as defendants — was filed on July 29,1983.

Respondents then filed a motion on September 2, 1983, requesting their dismissal from the lawsuit. The motion alleged that plaintiff failed to comply with provisions of section 2 — 402 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 402), governing the addition of respondents in discovery as defendants. After a hearing on the motion, the trial court determined that plaintiff’s notices of the hearing of July 29 were not timely and on October 26, 1983, vacated the order of July 29,1983.

A new hearing was held on plaintiff’s motion to file a third amended complaint naming respondents as defendants. The trial court denied the motion and allowed respondents’ motion to dismiss on the grounds that plaintiff failed to secure leave of court to add respondents as defendants within six months after they were named as respondents in discovery. This order was entered on December 1, 1983.

Plaintiff’s notice of appeal, filed on December 21, 1983, seeks reversal of both the order of October 26, 1983, and the order of December 1,1983.

I

Neither party has raised the issue of whether the order of October 26, 1983, is an appealable order. We have no jurisdiction over nonappealable orders and, therefore, must raise the issue on our own motion. (See Salyers v. Board of Governors (1979), 69 Ill. App. 3d 356, 387 N.E.2d 1129.) The order is not appealable for three reasons. First, it is questionable whether the motion to vacate was a “final judgment” under Supreme Court Rules 303(a) and 304(a) (87 Ill. 2d Rules 303(a), 304(a)). An order is only appealable if it is final. (In re Estate of Semeniw (1979), 78 Ill. App. 3d 570, 397 N.E.2d 64.) Second, if the order was final, it was final as to fewer than all of the parties and thus required an express written finding that there was no just reason for delaying enforcement or appeal. (87 Ill. 2d R. 304(a); Goodrich v. City National Bank & Trust Co. (1969), 113 Ill. App. 2d 471, 251 N.E.2d 548.) No such finding was made. Third, plaintiff’s notice of appeal was filed more than 30 days after the order was entered. The timely filing of a notice of appeal is jurisdictional. Herman v. Hamblet (1980), 81 Ill. App. 3d 1050, 401 N.E.2d 973; see 87 Ill. 2d R. 303(a).

Plaintiff’s appeal from the order of October 26, 1983, is dismissed.

II

The appeal from the order of December 1, 1988, denying plaintiff’s motion for leave to file a third amended complaint and allowing respondents’ motion to dismiss, is properly before us. The trial court found that plaintiff failed to comply with section 2 — 402 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 402) in that she did not secure leave of court to add respondents as defendants within six months after they were named as respondents in discovery. Section 2 — 402 provides:

“Persons *** named as respondents in discovery shall be required to respond to discovery by the plaintiff in the same manner as are defendants and may, on motion of the plaintiff, be added as defendants if the evidence discloses the existence of probable cause for such action.
* * *
A person named as a respondent in discovery in any civil action may be made a defendant in the same action at any time within 6 months after being named as a respondent in discovery, even though the time during which an action may otherwise be initiated against him or her may have expired during such 6 month period.”

According to this section, a respondent in discovery is made a defendant “on motion of the plaintiff,” and this must occur within six months after the person is first named as a respondent in discovery. Drs. Schetz and Bey were first named as respondents in discovery in the complaint filed on February 3, 1983. Consequently, plaintiff had until August 3, 1983, to add them as defendants. (Plaintiff does not dispute that the two-year limitation period of section 13— 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 13 — 212) expired no later than February 4, 1983.) Plaintiff’s motion for leave to file a third amended complaint was filed July 28, 1983— within the six-month period. Although the motion does not state on its face that its purpose was to add respondents as defendants, it does indicate that the third amended complaint was appended. The third amended complaint clearly named Drs. Schetz and Bey as defendants in the caption and in separate counts.

Technically, the respondent in discovery cannot be made a party defendant until the plaintiff obtains leave of court. (Torley v. Foster G. McGaw Hospital (1983), 116 Ill. App. 3d 19, 452 N.E.2d 7; Pe-trella v. Leisky (1981), 92 Ill. App. 3d 880, 417 N.E.2d 134.) However, leave of court will usually be obtained only after a hearing and ruling on the plaintiff’s motion to add the respondent in discovery as a defendant. Since the plaintiff cannot assure that his motion will be immediately heard and ruled on, the time required for a hearing and a ruling on the motion is not chargeable to him. Therefore, if the plaintiff files the appropriate motion within the six-month period, and the motion is subsequently allowed, the respondent in discovery will be made a defendant under section 2 — 402, even though the motion was not heard and ruled on until after the six-month period. To require that a hearing be held or that leave of court be secured within the six-month period would undermine the purpose of the statute.

The legislative history of section 2 — 402 indicates that its purpose was to provide plaintiff’s attorneys with a means of filing medical malpractice suits without naming everyone in sight as a defendant. It was believed that the label of “defendant” in a medical malpractice suit contributed to the spiraling cost of medical malpractice insurance. See transcript of proceedings, House of Representatives, June 10,1976, at 32-33.

The procedures of section 2 — 402 are not mandatory, and the plaintiff’s attorney still has the option to name persons as defendants, rather than respondents in discovery, at the outset. It is unlikely that plaintiff’s attorneys would avail themselves of this section if they were required to not only file a motion to add respondents as defendants within the six-month period but also possess the good fortune of having the hearing scheduled and the motion ruled on within that time period. The cost of losing such a gamble would be not only the dismissal of a potential defendant from the lawsuit but also the potential liability of a legal malpractice action.

We hold, therefore, that a respondent in discovery may be made a defendant under section 2 — 402 pursuant to a motion by the plaintiff for leave to file an amended complaint where the motion is filed within six months after the respondent is first named in the complaint as a respondent in discovery and either (1) the motion indicates on its face that the purpose of the amendment is to add the respondent in discovery as a defendant or (2) the amended complaint naming the respondent as a defendant is presented or filed with the motion. The addition of the defendant as a party, of course, will only occur if the motion is allowed.

Our holding is consistent with Torley v. Foster G. McGaw Hospital (1983), 116 Ill. App. 3d 19, 452 N.E.2d 7. In Torley, the plaintiff filed a complaint which named Drs. Sullivan and Samra as respondents in discovery. Six months later, the plaintiff filed an amended complaint which named the two doctors as defendants. The record on appeal did not contain a motion seeking leave to file the amended complaint or an order of the court authorizing the filing of the amended complaint. The appellate court held that “[plaintiffs’ failure to secure leave of court to add Drs. Sullivan and Samra as defendants in compliance with section 21.1 [now section 2 — 402] deprives the circuit court of jurisdiction over them and denies the plaintiffs the right to proceed against them as defendants since the time within which they could properly have done so has elapsed.” 116 Ill. App. 3d 19, 23, 452 N.E.2d 7, 10.

Torley held that the mere filing of an amended complaint within the six-month period was insufficient where the plaintiff failed to obtain leave of court to add respondents in discovery as defendants. We agree. If plaintiff had only filed her third amended complaint within the six-month period, and did nothing else, respondents would not have been added as defendants. However, plaintiff here moved for leave of court to file the third amended complaint within the six-month period. This was the essential step omitted by the plaintiff in Torley.

Respondents have moved to strike from the record on appeal evidence depositions of Drs. Bey, Schetz, and Arber. The motion is allowed for the reason that the depositions were not before the trial court at the time the order appealed from was entered.

Respondents’ motion to strike is allowed.

Plaintiff’s appeal from the order of October 26, 1983, is dismissed.

Reversed and remanded.

MILLER, J., concurs.

JUSTICE TRAPP,

concurring in part and dissenting in part:

I concur in the dismissal of the appeal of the trial court order dated October 26,1983.

I dissent from the portion of the opinion which reverses the order of the trial court dated December 21, 1983, wherein plaintiff’s motion to add count II and count III to the amended complaint was denied and the motion to dismiss filed by Schetz and Bey, respondents in discovery, was granted as to them.

The latter order of the trial court includes the specific finding:

“That Plaintiff herein failed to secure leave of Court to add John J. Schetz and Douglas R. Bey as Defendants within the time above described.”

Within the context of the language in Torley v. Foster G. McGaw Hospital (1983), 116 Ill. App. 3d 19, 452 N.E.2d 7, this finding should control upon the facts in issue here. In that opinion, it is said:

“Under section 21.1 (now section 2 — 402 of the Code of Civil Procedure), the only authority plaintiff is given to add respondents in discovery as defendants is on motion. As in other cases, it is the court which may allow or deny leave to do so. The further requirement for adding such defendants is that the evidence disclose the existence of probable cause for such action. *** It would be equally absurd to construe this provision as permitting plaintiff to make the unilateral judgment that such probable cause does indeed exist without court authorization. The statute must reasonably be read as requiring the court to which the motion is addressed to make such a finding on whatever evidence may be presented and to grant or deny leave to add respondents in discovery as parties defendant.” 116 Ill. App. 3d 19, 22-23, 452 N.E.2d 7, 9-10.

The opinion here rests upon the fact that a third amended complaint adding the defendants was filed on July 29, 1983. The handwritten order of that date does not show Schetz and Bey present in person or by counsel, but notes the objection of an original defendant in the action. Moreover, this opinion does not grapple with the fact that at a hearing upon the motion of Schetz and Bey to dismiss the third amended complaint, the trial court on October 26, 1983, vacated the order of July 29 which granted leave to file the third amended complaint and add Schetz and Bey as defendants for the reason that the motion for leave “[w]as not served timely,” and

“ORDERED that this Court’s Order of July 29, 1983, granting Plaintiff leave to file its Third Amended Complaint is hereby set aside and is of no force or effect with regard to Respondents, JOHN J. SCHETZ and DOUGLAS R. BEY.”

The record supports the conclusion of the trial court that plaintiff failed to comply with the Uniform Rules of Practice adopted throughout the circuit, and to hold otherwise would recognize such rules as a ruin of meaningless desuetude. Upon such facts, the filing of a motion to dismiss and obtaining a ruling thereon was a rational procedure to produce a rational result. I would affirm the trial court.


author: JUSTICE KASSERMAN

text:
    GEORGE R. WEERS, SR., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Pestl Painting and Decorating, Appellee).
    Third District (Industrial Commission Division)
    No. 3—84—0122WC
    Opinion filed June 28, 1984.
    Joseph E Bartley III, of Bartley, Fraser, Parkhurst & Hession, of Peoria, for appellant.
    Joseph E. Winne, of Prusak & Winne, of Peoria, for appellee.
   JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, George R. Weers, suffered a heart attack on August 23, 1980, while working for respondent, Pestl Painting and Decorating Company (Pestl). Petitioner filed an application for adjustment of his claim for compensation, and an arbitrator awarded benefits for temporary total disability in the amount of $331.62 per week, for a period of 162/v weeks, under section 19(b) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.19(b)). In addition, petitioner was awarded the sum of $29,459.23 for necessary medical expenses pursuant to section 8(a) of the Workers’ Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.8(a)). The Industrial Commission reversed the arbitrator’s decision and found that petitioner had failed to prove that he sustained an injury arising out of and in the course of his employment. The circuit court of Peoria County confirmed the decision of the Industrial Commission, and petitioner has perfected this appeal.

On August 23, 1980, petitioner was 54 years old and was employed by Pestl as a painter. While he was painting on a stepladder in front of the Holiday Inn in Peoria, petitioner experienced chest pains and was unable to continue his work. Petitioner was taken to the hospital, where it was determined that he had suffered a heart attack.

Petitioner testified that on the day of the incident he was doing average work of the type he was accustomed to. He said that on September 15, 1980, he signed a statement at the hospital which stated: “On the day of the heart attack I was not doing anything unusual.” Petitioner stated that prior to his heart attack on August 23, 1980, he had never experienced any chest pains nor had he been treated for heart disease. Letters from petitioner’s physicians, Dr. Carlos Almeida and Dr. E. Salamone, corroborated petitioner’s testimony regarding the absence of prior heart ailments. Petitioner further testified that he had worked 11 or 12 hours the day before his heart attack and that on August 23, 1980, the weather was unusually “hot and mucky.”

Arnold Pestl, president of Pestl, testified that petitioner’s wife told him that petitioner was tired and not feeling well on the morning of August 23, 1980, and that prior to petitioner’s heart attack she felt that something was wrong with petitioner because he would favor his arm and rub it.

Charles Remley, who was working with petitioner on August 23, 1980, testified that on the day of petitioner’s heart attack Pestl’s workers were not performing any work that was any more strenuous than the type of work they were normally accustomed to doing.

Petitioner’s wife testified that she told Mr. Pestl that her husband was not feeling well the morning of August 23, 1980, and that he had been extremely exhausted for a couple of months prior to his heart attack. Mrs. Weers also stated that prior to August 1980 petitioner experienced numbness in his arms and hands.

The medical report of Dr. David G. Best, the cardiologist who treated petitioner during his initial hospitalization, stated that petitioner suffered a myocardial infarction while painting. Dr. Best’s report further stated: “As to the questions of the cause of the heart attack, most myocardial infarctions are the result of atherosclerotic heart disease. Most likely, [petitioner] had significant coronary artery disease prior to his attack.”

Petitioner was again hospitalized in October 1980 under the care and treatment of Dr. Robert C. Gomez,.a cardiovascular surgeon. During this subsequent hospitalization he underwent triple coronary artery bypass surgery. The medical report of Dr. Gomez concluded that the coronary disease which necessitated petitioner’s surgery was present prior to his myocardial infarction. Dr. Gomez issued another report, dated April 9, 1981, and in this report he stated:

“I feel that the patients [sic] findings at catheterization revealed evidence of severe atherosclerotic coronary disease involving the left anterior descending, circumflex and right coronary artery. The coronary atherosclerotic disease antedated his myocardial infarction and in itself was the underlying cause for him developing an anterior wall myocardial infarction. Based on the above information it is my opinion that Mr. Weers [sic] myocardial infarction was caused from coronary artery disease. Assuming that on August 23rd 1980 Mr. Weers was doing his normal duties and not doing any extraordinary work or stress I can’t directly implicate the work as causative in development of his myocardial infarction. The infarction could have occurred at any time, even during periods of inactivity while not on the job as well as while on the job. So primary etiologic basis of his condition is the atherosclerosis and not necessarily the work.”

Petitioner contends that the evidence establishes either that he was subjected to a greater degree of stress than usual or that his job-related stress constituted a contributing factor which accelerated his heart attack. Petitioner concludes that, as a consequence, he had met his burden of proof that he suffered an injury arising out of and in the course of his employment.

Pestl maintains that the arbitrator’s award of temporary total disability was based on mere speculation, since there was no medical evidence to support petitioner's claim that he suffered an injury arising out of and in the course of employment. We agree.

A claimant seeking workers’ compensation for a heart attack has the burden of establishing that it arose out of and in the course of employment. (Pontiac Chair Co. v. Industrial Com. (1974), 59 Ill. 2d 261, 265-66, 320 N.E.2d 7, 10.) The issue of causation is implicit in the issue of whether the injury arose out of and m the course of employment. (Steiner v. Industrial Com. (1984), 101 Ill. 2d 257, 261.) Proof of the fact that an employee suffers a heart attack while at work is insufficient to justify awarding compensation in the absence of the additional proof of a causal connection between the employment and the disability or death. (Johns-Manville Corp. v. Industrial Com. (1975), 60 Ill. 2d 221, 225-26, 326 N.E.2d 389, 391; Orr v. Industrial Com. (1970), 47 Ill. 2d 242, 243, 265 N.E.2d 109, 109-10; City of Chicago v. Industrial Com. (1970), 45 Ill. 2d 350, 352, 259 N.E.2d 5, 7.) Whether the causative factor has been established is a factual determination within the purview of the Industrial Commission, and its decision will not be set aside unless it is contrary to the manifest weight of the evidence. Johns-Manville Corp. v. Industrial Com. (1975), 60 Ill. 2d 221, 326 N.E.2d 389; Orr v. Industrial Com. (1970), 47 Ill. 2d 242, 265 N.E.2d 109.

Petitioner’s argument that he has met his burden of proof in the case at bar appears premised on the fact that petitioner had worked overtime the day prior to his heart attack, that he had no history of heart problems prior to August 23, 1980, and that he was working on a “hot and mucky” day. All the medical evidence, however, contradicts petitioner’s claim that his heart condition was work-related. In our view, the evidence taken as a whole supports the Industrial Commission’s determination that petitioner has failed to establish that his injury arose out of and in the course of his employment. In any event, it cannot be said that such determination by the Industrial Commission was against the manifest weight of the evidence presented in the instant case.

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

Affirmed.

SEIDENFELD, P.J., and BARRY, McNAMARA, and WEBBER, JJ., concur.


author: JUSTICE GREEN

text:
    STEVEN MONICAL et al., Plaintiffs-Appellants, v. NCR CORPORATION, Defendant-Appellee.
    Fourth District
    No. 4—84—0149
    Opinion filed August 13, 1984.
    Walter L. Stodd, of Pontiac, for appellants.
    Gery R. Gasick and Charles S. Watson, both of McConnell, Kennedy, Quinn & Johnston, Chartered, of Peoria, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Plaintiffs, Steven Monical and Pontiac Services, Inc., filed a complaint for damages June 29, 1983, in the circuit court of Livingston County. Plaintiffs alleged that defendant, NCR Corporation (NCR), acted fraudulently in inducing plaintiffs to purchase a computer system and maintenance agreement in November 1976. On defendant’s motion, the original complaint was dismissed, plaintiffs filed an amended complaint, and defendant filed an application to compel arbitration. The trial court allowed NCR’s application, specifically finding that the parties had an agreement to arbitrate and further ordering that the civil action be stayed. It is from this order that plaintiffs appeal.

The maintenance agreement in question provided that any dispute concerning the agreement be settled by arbitration. The agreement states as follows:

“19. Disputes. Any controversy or claim, including any claim of misrepresentation, arising out of or related to this Agreement and/or any contract hereafter entered into between NCR and Customer, or the breach thereof, or the furnishing of any equipment or service by NCR to Customer, shall be settled by arbitration.” (Emphasis added.)

Plaintiffs argue that, because of NCR’s alleged fraud in the inducement of the contract, plaintiffs had the option of rescinding the contract, which they have chosen to do. Thus, plaintiffs maintain, since the contract is void, they are not bound by the arbitration agreement. They further maintain the arbitration clause provided for claims of misrepresentation and not for claims of fraud. We disagree. The clause clearly states, “any controversy or claim” shall be settled by arbitration, including, but not limited to, claims of misrepresentation. We conclude that the arbitration clause was broad enough to encompass claims of fraud in the inducement of the contract.

No Illinois case is directly on point. However, the United States Supreme Court has ruled on a similar question under a similar statute concerning arbitration. (9 U.S.C. secs. 1 through 14 (1970).) That court held that a claim of fraud in the inducement of the contract generally — as opposed to the arbitration clause itself — is to be resolved by the arbitrators and is not an issue for the courts. (Prima Paint Corp. v. Flood & Conklin Manufacturing Co. (1967), 388 U.S. 395, 400, 18 L. Ed. 2d 1270, 1275, 87 S. Ct. 1801, 1804.) The court noted that the clear congressional purpose is that the arbitration procedure, when selected by the parties to a contract, be speedy and not subject to delay and obstruction in the courts. Here, no claim was made that fraud was directed to the arbitration clause itself, and thus, we hold the broad language of the arbitration clause to encompass arbitration of the claim that the contract as a whole was induced by fraud.

Our decision is supported by dictum in Bloom v. Landy (1979), 72 Ill. App. 3d 383, 389 N.E.2d 1286. There, the appellate court noted that the majority approach favors submitting the fraud issue to the arbitrator where no claim is made that fraud was directed to the arbitration clause itself. We agree. Although plaintiffs claim they have rescinded the contract, they do not request rescission in their complaint. Plaintiffs have requested damages on the contract. Thus, the issue is whether defendant fraudulently induced plaintiffs to contract generally, and that is a question for the arbitrator.

In addition, it is before the court in this case that plaintiffs filed an application to compel arbitration on December 29, 1982, prior to filing their complaint for damages on June 29, 1983. An arbitration hearing had been scheduled for June 6, 1983, but the hearing was indefinitely postponed at plaintiffs’ request. Defendant claims that, since plaintiffs initially requested arbitration, they are bound by the arbitration clause in the contract and have waived any right to a civil action.

Although plaintiffs are now taking an inconsistent position with regard to the agreement to arbitrate, we need not decide if they are bound by their initial request. The trial court found that the parties had executed a valid agreement to arbitrate any disputes related to the purchase agreement and ordered the parties to begin arbitration. We find the trial court acted properly in so ordering.

For the reasons stated, the decision of the circuit court of Livingston County is affirmed.

Affirmed.

MILLS, P.J., and MILLER, J., concur.