IN RE ESTATE OF MICHALAK

to be filed was in response to a motion for judgment on the pleadings filed on the day of trial, with no prior notice. Krych, 66 Ill. App. 3d at 471, 384 N.E.2d at 54. Thus, good cause was shown. Here, the Kaletas made no such showing.

Further, section 1-4 of the Probate Act provides: "On the court's own motion or on motion of any interested person, before or during any hearing, any person who desires to oppose the entry of an order or judgment shall file, as directed by the court, a pleading disclosing the grounds of opposition." (Emphasis added.) 755 ILCS 5/1-4 (West 2008).

Additionally, we perceive that the court below may have statutory authority to enter an order without the requirement of a response or further discovery. Section 11a-18(f) provides:

"Upon petition by any interested person (including the standby or short-term guardian), with such notice to interested persons as the court directs and a finding by the court that it is in the best interest of the disabled person, the court may terminate or limit the authority of a standby or short-term guardian or may enter such other orders as the court deems necessary to provide for the best interest of the disabled person." (Emphasis added.) 755 ILCS 5/11a-18(f) (West 2008).

The Kaletas also contend that they were denied the "right to cross-examine" Horan, citing only one authority, Alford v. United States, 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 218 (1931), a criminal case. To the extent the Kaletas are referring to the sixth amendment confrontation clause, we find such argument misplaced, as the guarantee is a protection afforded to criminal defendants. The sixth amendment of the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him." U.S. Const. amend. VI. This valuable safeguard protects a criminal defendant's right of cross-examination. People v. Alcala, 248 Ill. App. 3d 411, 422, 618 N.E.2d 497, 505 (1993), citing Davis v. Alaska, 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 353, 94 S. Ct. 1105, 1110 (1974). The constitutional right to confront witnesses and the common law right are separate. People v. Averhart, 311 Ill. App. 3d 492, 497, 724 N.E.2d 154, 159 (1999).

This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). Davis, 415 U.S. at 315, 39 L. Ed. 2d at 353, 94 S. Ct. at 1110.

Although the Kaletas initially argue that they were denied a fair trial because the trial court denied their right to cross-examine, it is apparent from the remainder of their argument and the record that their complaint actually addresses the scope of the examination. The Kaletas assert that the trial court should have allowed them to cross-examine Horan regarding her place of work and residence, her language skills, and an unidentified "competent and probative question submitted to her." Yet, the Kaletas offer no insight as to how barring such questions resulted in any prejudice to them. Given the paucity of argument and authority on this point, we have no difficulty in finding they have forfeited addressing the merits of same.

Further, even were we to reach the issue, the scope and extent of cross-examination are within the discretion of the trial court. Adams v. Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 998, 874 N.E.2d 100, 109 (2007). When a party challenges a trial court's evidentiary rulings, the standard of review is abuse of discretion. Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 92, 658 N.E.2d 450, 454-55 (1995). It is only in a case of clear abuse of such discretion, resulting in manifest prejudice to the defendant, that a reviewing court will interfere. Adams, 369 Ill. App. 3d at 998, 874 N.E.2d at 109. Even errors of a constitutional dimension, such as the right of confrontation, may be harmless. In re Marriage of De Bates, 212 Ill. 2d 489, 515, 819 N.E.2d 714, 728 (2004). As the Kaletas make no showing of manifest prejudice to them, there was no abuse of discretion in the trial court's rulings circumscribing cross-examination.

Moreover, in addressing the Kaletas' evidentiary arguments, we perceive that hearings concerning issues implicating the welfare and best interests of a disabled person are not in the nature of an adversarial proceeding, as other civil proceedings are. See In re Estate of Wellman, 174 Ill. 2d 335, 347-48, 673 N.E.2d 272, 278 (1996) ("guardianship proceedings are not, strictly speaking, adversarial"). "A guardian ad litem functions as the `eyes and ears of the court' and not as the ward's attorney." In re Mark W., 228 Ill. 2d 365, 374, 888 N.E.2d 15, 20 (2008), quoting In re Guardianship of Mabry, 281 Ill. App. 3d at 88, 666 N.E.2d at 24, citing In re Marriage of Wycoff, 266 Ill. App. 3d 408, 415-16, 639 N.E.2d 897, 904 (1994). "The [guardian ad litem] does not represent the ward in a normal attorney-client relationship; in fact, the [guardian ad litem] need not even be an attorney." In re Guardianship of Mabry, 281 Ill. App. 3d at 89, 666 N.E.2d at 24, citing 755 ILCS 5/11a-10(a) (West 1994).

Further, a guardian ad litem is an officer of the court; "[g]uardians only act as the hand of the court and are at all times subject to its direction in the manner in which they provide for the care and support of the disabled person." In re Estate of Nelson, 250 Ill. App. 3d 282, 287, 621 N.E.2d 81, 85 (1993), appeal denied, 152 Ill. 2d 560, 622 N.E.2d 1207 (1993), citing In re Estate of Peterson, 103 Ill. App. 3d 481, 485-86, 431 N.E.2d 748, 752 (1982). "Once a person is adjudicated disabled, that person remains under the jurisdiction of the court, even when a plenary guardian of the person has been appointed." In re Mark W., 228 Ill. 2d at 375, 888 N.E.2d at 21, citing In re Estate of Nelson, 250 Ill. App. 3d at 286-87, 621 N.E.2d at 84-85. Moreover, a disabled person is viewed as "`a favored person in the eyes of the law'" and is entitled to vigilant protection. In re Mark W., 228 Ill. 2d at 374-75, 888 N.E.2d at 20, quoting Wellman, 174 Ill. 2d at 348, 673 N.E.2d at 278. The Kaletas acknowledge In re Mark W., but offer no substantive response, other than repeating their own circular argument. The legislature has specifically delineated the nature and conduct of these proceedings in the myriad provisions we have recited, and we find no impropriety in the conduct of the proceedings below.

The Kaletas further maintain that the court should not have allowed the admission of certain hearsay statements appearing in Horan's report and that the court should not have considered these statements in ruling on the petition. The Kaletas particularly challenge Horan's February 13, 2008, "Gifting Report" as the most problematic, containing statements of the ward, Robert Kaleta, attorney John Kuranty, police officer Jane Fudacz, a bank employee, a family services employee, and Michalak's friends Ann Beres and Jean Kinsinger. Although the admission of evidence is ordinarily within the sound discretion of the trial court, the initial determination that a particular statement constitutes hearsay is a legal issue, which does not require any exercise of discretion, fact finding or evaluation of credibility. Halleck v. Coastal Building Maintenance Co., 269 Ill. App. 3d 887, 891, 647 N.E.2d 618, 623 (1995). Thus, a trial court's determination as to the hearsay nature of a particular statement is subject to a de novo standard of review. Halleck, 269 Ill. App. 3d at 891, 647 N.E.2d at 623.

At the outset, we note that the Kaletas fail to identify the statements they find problematic (see In re Marriage of De Bates, 212 Ill. 2d at 517, 819 N.E.2d at 729 (argument that a report was improperly admitted where it was "riddled with hearsay," was forfeited where respondent did not identify the purported hearsay statements and did not describe any prejudicial effect resulting from the report's admission)). However, the Kaletas do refer to the parties who made such statements, including police officers and Michalak's neighbors, and they do claim prejudicial effect, thereby sufficiently preserving the issue for our review.

Hearsay is "`testimony in court or written evidence, of a statement made out of court, * * * offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.'" People v. Carpenter, 28 Ill. 2d 116, 121, 190 N.E.2d 738, 741 (1963), quoting McCormick on Evidence § 225, at 460 (1954). Generally, hearsay is inadmissible unless it falls within a recognized exception. In re A.J., 296 Ill. App. 3d 903, 916, 695 N.E.2d 551, 560 (1998). We recognize that hearsay statements have been excluded in a proceeding to terminate parental rights. See In re A.J., 296 Ill. App. 3d at 917, 695 N.E.2d at 560 (reversing judgment of circuit court which had allowed admission of hearsay of caseworkers that respondent had positive drug tests). However, we find no authority in Illinois mandating the exclusion of relevant information in a guardian ad litem's report concerning issues regarding a ward being investigated by a court. On the contrary, it appears that hearsay is considered in making such investigations and determinations. See In re Estate of Nelson, 250 Ill. App. 3d at 287-88, 621 N.E.2d at 85 (when court was presented with hearsay information indicating that ward might be neglected, prudent course was to investigate adult ward's living conditions to verify such information). See also In re Estate of Steinfeld, 158 Ill. 2d 1, 12, 630 N.E.2d 801, 806 (1994) (court rejected a contention that reliance on hearsay statements, the absence of a medical report, and the disregard of several other statutory requirements violated constitutional rights and rendered a disability and guardianship order void).

Nevertheless, we are mindful that the Code of Civil Procedure ( 735 ILCS 5/1-101 et seq. (West 2008)) applies, with certain exceptions, to all proceedings under the Probate Act. 755 ILCS 5/1-6 (West 2008); In re Estate of Barth, 181 Ill. App. 3d 279, 282, 536 N.E.2d 973, 975 (1989). The Code provides: "As to all matters not regulated by statute or rule of court, the practice at common law prevails." (Emphasis added.) 735 ILCS 5/1-108(c) (West 2008). Notably, according to section 11a-10 ( 755 ILCS 5/11a-10(a) (West 2008)) of the Probate Act, "[t]he guardian ad litem shall appear at the hearing and testify as to any issues presented in his or her report." (Emphasis added.) In re Estate of Doyle, 362 Ill. App. 3d 293, 301, 838 N.E.2d 355, 362 (2005). However, the probate court does not have a provision in derogation of the common law rule proscribing hearsay testimony.

Although the Kaletas acknowledge the breadth of section 11a-10(a), they stridently maintain that there is nothing in the Probate Act, including section 11(a)-10(a), that immunizes the contents of the report or the testimony of the guardian ad litem from the rules of evidence. Noting the lack of definitive Illinois precedent addressing this issue, the Kaletas seek reliance on Joyce S. v. Frank S., 6 Neb. App. 23, 571 N.W.2d 801 (1997), where the Nebraska Court of Appeals observed:

"[T]he primary function of the guardian ad litem's report is for the guardian to demonstrate to the judge that the guardian has performed his or her duty. Frequently, when a guardian ad litem's report does not contain objectionable hearsay, it is an efficient means of communicating the facts that the guardian has learned to the parties and to the judge, if properly admitted into evidence, but a report is not somehow made admissible because it was prepared by a guardian ad litem appointed by a court pursuant to a statute. Hearsay within such reports remains hearsay. The guardian's report and the documents attached to it will not be considered in our de novo review." Joyce S., 6 Neb. App. at 33, 571 N.W.2d at 809.

An identical result obtained in In re Guardianship of R.S., 162 Wis. 2d 197, 470 N.W.2d 260 (1991), where the circuit court admitted the hearsay report of a licensed psychologist as evidence of her diagnosis of the proposed ward's incompetence. Although the Wisconsin Supreme Court recognized that by statute the psychologist's report could be furnished to the court, it rejected the contention that the legislature intended that the substance of the report could be admitted into evidence at trial. In re Guardianship of R.S., 162 Wis. 2d at 207, 470 N.W.2d at 264. Similarly, in Florida, although the law mandated that the guardian ad litem file a written report with the court, that requirement did not serve to admit the contents as proof of the matters asserted. Scaringe v. Herrick, 711 So. 2d 204 (Fla. App. 1998). As the Florida court of appeals reasoned:

"By necessity, the report will usually contain hearsay. The act of filing the report does not place the report in evidence. Hearsay rules contained in the Florida Evidence Code apply to section 61.403. Accordingly, when a guardian attempts to testify to hearsay statements and a valid hearsay objection is raised, that objection should be sustained." Scaringe, 711 So. 2d at 204-05.

Likewise, in Tennessee although a guardian ad litem's report is not admissible evidence, such reports may be reviewed by the trial court to provide an overview of the evidence and to allow the court to determine which of the issues are contested. Toms v. Toms, 98 S.W.3d 140 (Tenn. 2003). However, a guardian may not testify as to statements made by witnesses who were interviewed in the course of the guardian's investigation, unless the statement does not meet the definition of hearsay or a hearsay exception governs the testimony. Toms, 98 S.W.3d at 144.

In the case sub judice the trial court did not squarely address the Kaletas' hearsay objection, instead ruling that it could take judicial notice "of any pleading in the case * * * or any report that's been filed." The court then proceeded to admit the report as evidence and considered its entirety and the statements therein in making its ruling. However, the court did find that some of the extrajudicial statements in the report were not offered to show the truth of the matter asserted therein.

The doctrine of judicial notice is a substitute for proof and is based on convenience and necessity. Taking judicial notice of a fact is merely another way of saying that the usual forms of evidence will be dispensed with if the fact is one which is commonly known or readily verifiable from sources of indisputable accuracy. J. Corkery, Illinois Civil Criminal Evidence § 201.101 (2000), citing People v. Speight, 222 Ill. App. 3d 766, 771, 584 N.E.2d 392, 395-96 (1991). Although a court may take judicial notice of matters of record in its own proceeding, this cannot result in admitting hearsay evidence where it would otherwise be prohibited. In re A.B., 308 Ill. App. 3d 227, 237, 719 N.E.2d 348, 356 (1999).

Our de novo review offers some support for the trial court's findings. Out-of-court statements offered for some independent purpose, rather than the truth of the matter asserted, are not hearsay. Lauman v. Vandalia Bus Lines, Inc., 288 Ill. App. 3d 1063, 1072, 681 N.E.2d 1055, 1062 (1997); Halleck, 269 Ill. App. 3d at 891, 647 N.E.2d at 623. See In re Estate of Berry, 277 Ill. App. 3d 1088, 1093, 661 N.E.2d 1150, 1154 (1996) (averments of affidavit that defendant knowingly provided false information to decedent to induce her to change her will were not offered for their truth, but rather for their falsity); People v. Quick, 236 Ill. App. 3d 446, 452, 603 N.E.2d 53, 58 (1992) (hearsay exception permits out-of-court statements to prove a declarant's state of mind, emotions or sensation when state of mind is at issue). The rationale for this exception is based on need, particularly when a declarant has died or become mentally incompetent and the declarant's statement is the only direct evidence of his intent. 4 C. Fishman, Jones on Evidence § 29:24 (7th ed. 2000).

In her so-called "Gifting Report," Horan first identifies the issues under consideration, namely: (1) whether the ward understood the documents she signed on November 6, 2006; (2) whether the ward had the mental capacity to gift her residence; and (3) whether the ward was unduly influenced by the recipient so as to invalidate the gift. Horan next reviews the statements attributed to the various persons interviewed. Police officer Fudacz, who met with Michalak on January 30, 2007, reported Michalak's confusion regarding the power of attorney she purportedly had signed. Similarly, Bernadette Baran's statements highlighted Michalak's confusion when she attempted to add Bonnie Huff as a beneficiary on her Prospect Bank accounts in May 2007. Tracey Fondren, the social worker who visited Michalak on February 9, 2007, one month after the ward was told of Huffs efforts to withdraw funds from her accounts noted Michalak nonetheless was unaware of anyone making such attempts. Additionally, Jean Kin-singer informed Horan that in June or July 2007, the ward was confused and could not remember what she had said a couple of minutes earlier. We discern that none of these statements were offered to prove the truth of the matters asserted, but rather Michalak's mental capacity to gift her residence to the Kaletas. Conversely, we find other declarations were indeed offered for a hearsay purpose. For example, Michalak's statements to Horan that Robert was the one signing all the papers because he thought he was going to get the home, but instead she wanted it to go to Zagorski. Likewise, statements attributed to John Kuranty that Michalak told him that neighbors who wanted her to sign her house over to them were falsely calling themselves cousins were offered to prove the truth of the assertion.

Further, even if one were to disagree and find that the third-party statements in Horan's report were hearsay, the erroneous admission of hearsay is not grounds for reversal where there is sufficient competent evidence to support the decision. Blount v. Stroud, 395 Ill. App. 3d 8, 37, 915 N.E.2d 925, 951 (2009). Although the Kaletas assert that the entirety of Horan's report consisted of hearsay, that notion is dispelled by our review of the report. Here, apart from the recitals of the report, the trial court relied on the testimony of both guardians, notwithstanding the adverse testimony offered by the Kaletas and attorney Kuranty. See, e.g., Anderson v. Alberto-Culver USA, Inc., 337 Ill. App. 3d 643, 668, 789 N.E.2d 304, 323 (2003) (although report prepared by the National Transportation Safety Board was improperly admitted into evidence, the error was harmless where there was ample other evidence in the record to support the jury's verdict).

We next address the Kaletas' contention that the trial court's findings that (a) it was able to ascertain the present desires of the ward, and (b) the ward desired to substitute the guardian in lieu of the Kaletas as the successor trustee and beneficiary were against the manifest weight of the evidence. Although the Kaletas maintain that Zagorski was required to establish her proof by clear and convincing evidence, we find the authorities relied upon are inapposite. In re Estate of Greenspan, 137 Ill. 2d 1, 24, 558 N.E.2d 1194, 1205 (1990), cited by the Kaletas, held that the guardian's right to discontinue artificial feeding and hydration required clear and convincing evidence of the ward's intent. In re Estate of Austwick, 275 Ill. App. 3d 769, 775, 656 N.E.2d 779, 784 (1995), involved a ward's desire to receive anticonvulsive therapy under a statute that expressly stated the burden to be clear and convincing evidence. As we are not presented here with any decisions to withdraw life-sustaining treatment or to invoke extraordinary mental health measures, a clear and convincing standard of proof would be inappropriate. Instead, we conclude that Zagorski had the burden of establishing the allegations of her petition by a preponderance of the evidence. Northwestern University v. McLoraine, 108 Ill. App. 3d 310, 321, 438 N.E.2d 1369, 1376 (1982).

Moreover, our precedent instructs that we review the trial court's judgment under the manifest weight of the evidence standard. See In re Estate of Vail, 309 Ill. App. 3d 435, 438, 722 N.E.2d 248, 251 (1999) ("In reviewing a probate court's determination, all reasonable presumptions are made in favor of the trial court, the appellant has the burden to affirmatively show the errors alleged, and the judgment will not be reversed unless the findings are clearly and palpably contrary to the manifest weight of the evidence"). A trial court's ruling is against the manifest weight of the evidence only if it is unreasonable, arbitrary and not based on the evidence, or when the opposite conclusion is clearly evident from the record. In re Estate of Savio, 388 Ill. App. 3d 242, 247, 902 N.E.2d 1113, 1118 (2009), citing Smith v. Marvin, 377 Ill. App. 3d 562, 569, 880 N.E.2d 1023, 1030 (2007). Under the manifest weight standard, we give deference to the trial court as the finder of fact because it is in the best position to observe the conduct and demeanor of the parties and the witnesses. In re D.F., 201 Ill. 2d 476, 498-99, 777 N.E.2d 930, 943 (2002). "A reviewing court, therefore, must not substitute its judgment for that of the trial court regarding the credibility of witnesses, the weight to given to the evidence, or the inferences to be drawn." In re D.F., 201 Ill. 2d at 499, 777 N.E.2d at 943.

As noted, Horan's report assumed the issues to be addressed in the hearing on Zagorski's petition were whether Michalak, on November 6, 2006, had the mental capacity to make a gift and execute legal documents and whether Michalak was unduly influenced by the recipients so as to invalidate the gift. Yet, the trial court rejected Horan's assumptions, "that is not what we are here to determine," and instead focused on the guardian's request to amend the trust:

"We are here to determine whether or not the guardian now has the authority to request of this court, and the court thinks there is a reason for changing certain conditions or terms of the trust. Number one being who is the successor trustee. Also number two, who takes upon the death."

Recognizing that Zagorski's petition was presented pursuant to section 11(a)-18(a-5) of the Act (755 ILCS 5/11(a)-18(a-5) (West 2008)), the court correctly observed that even though a guardian is in place, the ward may retain decisionable capacity and has the basic right to offer preferences to which the court is required to give substantial weight. The court recognized that the section vested the guardian with the right to amend a trust, with the proviso that the "guardian shall also indicate in the petition any planned disposition is consistent with the intention of the ward insofar as they can be ascertained."

Based essentially on the testimony of Zagorski and Horan, the court determined that Michalak did not want the Kaletas to get her home. While observing that Zagorski had had limited contact with her aunt over the years, the court nonetheless found her testimony to be credible. The court noted Zagorski's response to the bank when questions arose concerning Michalak's account and that upon finding Michalak's house to be in disarray in May 2007 she acted appropriately by bringing her aunt to her home. The court further credited statements attributed to the ward in Horan's report that she did not want her house to go to Robert "no more," that he was "a little crook," and instead wanted her house to go to her niece and her husband, Jackie and Ken Zagorski. In assessing the Kaletas' testimony, the court found questionable the assertion that they continued to visit Michalak three to four times a week after moving in 2003. The court also found "unusual" Jolanta Kaleta's denial that Michalak drove, given Kuranty's testimony that Michalak had presented a driver's license at their meeting. Although the court referred to other individuals mentioned in Horan's report, those references did not address Michalak's dispositive wishes concerning her trust.

The Kaletas nonetheless assert that the trial judge overlooked contrary evidence supporting Michalak's original intention to gift her home to them. The Kaletas maintain that the only evidence introduced at trial indicated that they had been "exceedingly good to Ms. Michalak." In challenging the statement attributed to Michalak that Robert Kaleta was a "little crook," they argue that no fact finder should have taken the ward's comment at face value given the testimony that the ward was then struggling to even remember Robert Kaleta. The Kaletas likewise submit that no testimony was presented suggesting that Robert warranted that description. Additionally, while recognizing that the trial court's ruling was prefaced on the notion that an adjudicated ward can still offer a dispositional preference, the court ignored evidence that as of June 15, 2007, prior to any inquiry from Horan, Dr. Ibrahimi found Michalak to be totally "incapable of making personal or financial decisions."

Notwithstanding the foregoing observations, we find that the trial court conducted a meaningful review of the evidence and made appropriate determinations regarding the credibility of the witnesses, the weight to be given to the evidence and the inferences to be drawn therefrom. Although the court did rely in part on hearsay present in various reports, there was sufficient competent evidence to support the decision rendered. We therefore conclude that the court's findings and judgment were not against the manifest weight of the evidence.

Lastly, the Kaletas maintain that the circuit court erred in entering an order approving a reverse mortgage on Michalak's property in trust, arguing that once notice of appeal was filed the circuit court was divested of jurisdiction to enter the order. In support of the proposition that upon the filing of a notice of appeal, a circuit court is divested of jurisdiction to enter any orders involving a matter of substance and retains jurisdiction only for matters independent of and collateral to a judgment, the Kaletas cite to Wierzbicki v. Gleason, 388 Ill. App. 3d 921, 906 N.E.2d 7 (2009). In Wierzbicki, we held that the circuit court lost jurisdiction after defendants filed a notice of appeal from the court's order reinstating the case after a dismissal for want of prosecution and all proceedings were stayed pending the resolution of that appeal. However, due to the conduct of plaintiffs counsel in asking the clerk of the circuit court to delete an order, the court subsequently entered an order dismissing the plaintiffs case. The plaintiff filed a notice of appeal challenging that ruling as well. We held that the later order of the circuit court was void and ordered it vacated. Wierzbicki, 388 Ill. App. 3d at 931, 906 N.E.2d at 17.

Without further argument or citation, the Kaletas assert that the encumbrance of the property is not independent of or collateral to the judgment entered here. Zagorski argues the subsequent order granting a reverse mortgage addresses Michalak's own use of her beneficial interest in the property, which was not the issue decided in this case. Both parties further make references to purported facts without citation to the record in contravention of Supreme Court Rule 341(e)(6) (188 Ill. 2d R. 341(e)(6)) and to procedural matters not of record before us occurring after the notice of appeal has been filed, without seeking our leave to supplement the record upon motion supported by affidavit under Supreme Court Rule 362 (155 Ill. 2d Rs. 362(a), (b)). We point out to both parties that "the rules promulgated by the supreme court are, in fact, rules, and not advisory suggestions for conduct of the lower courts and the bar." Roberson v. Liu, 198 Ill. App. 3d 332, 335, 555 N.E.2d 999, 1001 (1990) citing People v. Wilk, 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221 (1988).

Supreme Court Rule 305(b) provides that a circuit court "may" stay the enforcement of a nonmoney judgment. 210 Ill. 2d R. 305(b). The power to grant stays is discretionary. Horvath v. Loesch, 87 Ill. App. 3d 615, 620, 410 N.E.2d 154, 158 (1980), citing City of Chicago v. Cosmopolitan National Bank, 77 Ill. App. 3d 212, 220, 395 N.E.2d 1070, 1075 (1979). Orders entered by a trial court after the filing of a notice of appeal are valid if substantive issues on appeal are not affected and if the nature of the appeal is not altered. Homeowners Organized to Protect the Environment, Inc. v. First National Bank of Barrington, 167 Ill. App. 3d 714, 720, 521 N.E.2d 1202, 1206 (1988). Here, the judgment below determined the status of the Kaletas' prior interest, where they were merely successor beneficiaries as remaindermen of Michalak's trust. Michalak remained the primary beneficiary of her trust, and any action taken with respect to her interest does not affect the Kaletas' issues on appeal. Thus, the trial court did not abuse its discretion in denying the stay.

CONCLUSION

For the foregoing reasons, we affirm the order of the circuit court amending Bozena Michalak's revocable trust and denying the stay of the court's judgment.

Affirmed.

HOWSE and LAVIN, JJ, concur.