115 B.R. 849 (1990)
In re METRO COMMUNICATIONS, INC., t/a Metrosports, Debtor.
METRO COMMUNICATIONS, INC., Plaintiff,
v.
PACIFIC-10 CONFERENCE, a/k/a PAC-10, Defendant.
Bankruptcy No. 85-0552, Adv. No. 89-0302.
United States Bankruptcy Court, W.D. Pennsylvania.
June 25, 1990.
*850 *851 Phillip S. Simon, Simon & Simon, Pittsburgh, Pa., for Committee of Unsecured Creditors.
Charles J. Vollmer, Pollard, Walker & Vollmer, Pittsburgh, Pa., for defendant/PAC-10.
Stephen J. Laidhold, Sable, Makoroff & Libenson, Pittsburgh, Pa., for debtor.
Stephen I. Goldring, Office of U.S. Trustee, Pittsburgh, Pa.

MEMORANDUM OPINION
BERNARD MARKOVITZ, Bankruptcy Judge.
Metro Communications, Inc. ("Debtor"), acting by and through its court-authorized Unsecured Creditors Committee, has brought this adversary action pursuant to 11 U.S.C. § 547(b), in which it seeks to avoid certain payments to Defendant Pacific-10 Conference ("PAC-10") arising out of an agreement concerning telecasting rights for the 1984 college football season.
Debtor alleges that the payments, made pursuant to letters of credit, constituted preferential transfers and seeks to avoid and recover them for the benefit of its bankruptcy estate.
PAC-10 denies that the payments in question were preferential and additionally asserts that the payments were part of a contemporaneous exchange for new value given; consequently, Defendant avers they are not subject to avoidance under 11 U.S.C. § 547(c)(1).
*852 Judgment will be entered for PAC-10 and against Debtor for reasons set forth below.

FACTS
Debtor was a syndicator of broadcast rights and had been involved in the televising of collegiate sporting events.
PAC-10 is a nonprofit association of various universities which conducts and promotes interscholastic sporting events.
On May 7, 1984, Debtor and PAC-10 executed an agreement whereby Debtor was granted the right to televise fifteen (15) exposures of PAC-10 football games for each of the 1984, 1985, and 1986 football seasons. Debtor was to pay PAC-10 $5,100,000.00 in "guaranteed minimum aggregate rights fees" for the 1984 season ($340,000.00 per game payable sixty (60) days after the game was played) and was to pay $6,150,000.00 and $6,750,000.00 for the 1985 and 1986 seasons, respectively.
The agreement further provided that by September 1, 1984, August 1, 1985, and August 1, 1986, respectively, Debtor was to pay PAC-10, in advance, the equivalent of one-fifteenth (1/15th) of the guaranteed minimum aggregate rights fee to which PAC-10 was entitled for that particular season. This payment was to be applied towards the total payments due for that season. Debtor was also to furnish PAC-10, by these same dates, with irrevocable standby letters of credit in the amount of the balance of the guaranteed minimum aggregate rights fees for that particular season.
Sometime prior to August 13, 1984, Debtor and PAC-10 entered into negotiations concerning a "new agreement" for the 1984 football season. As a result of an acknowledged economic change in the industry, Debtor had informed PAC-10 that it could not and would not perform under the terms of the agreement of May 7, 1984. PAC-10, after weighing its legal and economic alternatives, decided not to exercise its legal options and instead elected to void the prior contract and enter into a "new agreement" with Debtor.
Debtor and PAC-10 formally executed another agreement dated August 13, 1984, which applied only to the 1984 football season. This second agreement granted Debtor the right to televise twelve (12) exposures of PAC-10 football games, with a guaranteed minimum aggregate rights fee reduced to $3,000,000.00, or $250,000.00 per exposure. As was the case with the previous agreement, this fee was payable "within 60 days after the date on which such game is played".
The subsequent agreement further provided that, by September 1, 1984, Debtor was to pay PAC-10, in advance, the equivalent of one-twelfth (1/12th) of the guaranteed minimum aggregate rights fees to which PAC-10 was entitled for the 1984 season. This payment was to be applied towards the total payment due for the season. On August 30, 1984, Debtor paid the required $250,000.00 to PAC-10.
The agreement also specified that Debtor was to furnish PAC-10 with three (3) irrevocable standby letters of credit in the amount of the balance of the guaranteed minimum aggregate rights fee due for the 1984 season. These letters of credit were to be delivered to PAC-10 on the following dates and were to be in the following amounts:

        Date                Amount
  September 4, 1984     $1,000,000.00
  September 28, 1984     1,250,000.00
  October 26, 1984         500,000.00

The first letter of credit was to serve as security for payment of fees for games televised during the month of September. The second and third letters of credit were to serve as security for payment of fees for games televised during the months of October and November, respectively.
Debtor exercised its right to televise twelve (12) PAC-10 football games as contemplated by the agreement of August 13, 1984. The first game was televised on September 8, 1984. The remaining eleven (11) games were televised on the following ten (10) Saturdays.
On September 7, 1984, Mellon Bank ("Mellon") issued the first irrevocable standby letter of credit called for under the agreement dated August 13, 1984 in the amount of $1,000,000.00. It issued a second *853 letter of credit in the amount of $1,250,000.00 on September 28, 1984. The third letter of credit called for under the agreement was never issued.
On December 13, 1984, PAC-10 demanded payment from Mellon in the amount of $1,000,000.00 under the first letter of credit for games televised by Debtor during September of 1984. That same day, PAC-10 also demanded from Mellon payment in the amount of $750,000.00 under the second letter of credit for games televised on October 6, 1984 and October 13, 1984.
On December 18, 1984, Mellon made payments to PAC-10 totaling $1,750,000.00 under the letters of credit pursuant to PAC-10's two (2) demands on December 13, 1984.
Also on December 18, 1984, Debtor executed and delivered to Mellon a promissory note in the amount of $1,750,00.00. This amount was credited to Debtor's account at Mellon that same day. The funds were immediately deducted from the account in connection with the payments by Mellon to PAC-10 that same day under the letters of credit.
On December 20, 1984, PAC-10 demanded payment from Mellon in the amount of $250,000.00 under the second letter of credit for the game televised on October 20, 1984.
On December 24th or 26th of 1984, Mellon paid PAC-10 $250,000.00 under the second letter of credit pursuant to PAC-10's demand of October 20, 1984.
On December 27, 1984, PAC-10 demanded payment from Mellon in the amount of $250,000.00 under the second letter of credit for the game televised on October 27, 1984.
On January 2, 1985, Mellon paid PAC-10 $250,000.00 under the second letter of credit pursuant to PAC-10's demand of December 27, 1984.
Finally, on March 15, 1985, Debtor filed a voluntary petition under Chapter 11 of the Bankruptcy Code.

ANALYSIS
Debtor seeks to avoid the above payments to PAC-10 pursuant to the agreement dated August 13, 1984 as preferential transfers under 11 U.S.C. § 547(b). Debtor can avoid the above payments to PAC-10 under § 547(b) only if it can establish the following:
(1) that a transfer of Debtor's property occurred;
(2) to or for the benefit of a creditor;
(3) for or on account of an antecedent debt owed by Debtor before the transfer was made;
(4) made while Debtor was insolvent;
(5) made on or within 90 days before the date of the filing of the petition, or between ninety (90) days and one (1) year before the date of the filing of the petition if the creditor is an insider; and
(6) the transfer enables the creditor to receive more than such creditor would receive if:
(i) the case were brought under Chapter 7 of the Bankruptcy Code;
(ii) the transfer had not been made; and
(iii) such creditor received payment of such debt to the extent provided by the Bankruptcy Code.
See In re Hartley, 825 F.2d 1067, 1069 (6th Cir.1987).
Section 547(b) is intended, among other things, to facilitate equality of distribution among creditors and to deter a "race of diligence" by creditors to dismember a debtor prior to bankruptcy. See H.R.Rep. No. 595, 95th Cong., 1st Sess. (1977), reprinted in 1978 U.S.Code Cong. & Admin. News 5787, 6138.
Debtor has the burden of proving the avoidability of a transfer under § 547(b). See 11 U.S.C. § 547(g). It is presumed that Debtor was insolvent during the 90-day period immediately preceding the filing of its bankruptcy petition. See 11 U.S.C. § 547(f).

A. Transfer of Debtor's Property

Debtor has failed to establish that any property belonging to it was transferred in connection with the above payments to PAC-10. To the contrary, the evidence presented affirmatively establishes that no *854 transfer involving Debtor's property took place. The payments to PAC-10 were not made with funds in which Debtor had a property interest. Rather, PAC-10 was paid pursuant to the letters of credit issued by Mellon on September 7th and 24th of 1984, with funds belonging to Mellon. A letter of credit and the proceeds derived therefrom are not property of a debtor's estate for purposes of § 541 and 547(b). When the issuer of a letter of credit honors a proper draft under it, the issuer does so from its own funds, not from the assets of the customer who caused the letter of credit to be issued. In re W.L. Mead, Inc., 42 B.R. 57, 60 (Bankr.S.D.Ohio 1984); In re M.J. Sales & Distributing Co., Inc., 25 B.R. 608, 614 (Bankr.S.D.N.Y.1982).
The determination that there was no direct transfer to PAC-10 of property in which Debtor had an interest is not the end of the matter. It remains to be determined whether there was an "indirect transfer" to PAC-10 of property in which Debtor had an interest.
A transfer need not be made directly from a debtor to a creditor in order for it to be preferential:
If the bankrupt has made a transfer of his property, the effect of which is to enable one of his creditors to obtain a greater percentage of his debt than another creditor of the same class, circuity of arrangement will not avail to save it. (Emphasis added.)
National Bank of Newport v. National Herkimer County Bank, 225 U.S. 178, 184, 32 S.Ct. 633, 635, 56 L.Ed. 1042 (1912).
Federal courts, in endeavoring to prevent such circuity, have broken certain singular transactions into two conceptually distinct transfers, one direct and one indirect. A direct transfer by a debtor to a third party who in turn satisfies a debt belonging to the debtor may withstand a preference attack against the immediate transferee. The indirect transfer arising therefrom, even though it arises from the same transaction by the debtor, may constitute a voidable preference as to the creditor who indirectly benefitted from the direct transfer to the third party. Matter of Compton Corp., 831 F.2d 586, 592 (5th Cir.1987), modified on other grounds, 835 F.2d 584 (5th Cir.1988).
The expansive definition of "transfer" set forth in the Bankruptcy Code implicitly embraces this distinction. Id. "Transfer" includes:
. . . every mode, direct or indirect, . . . of disposing of or parting with property or with an interest in property . . . (Emphasis added.)
11 U.S.C. § 101(50).
When a debtor pledges any of its assets to a third party as collateral in exchange for issuance by the third party of a letter of credit for the benefit of debtor's creditor, an in direct transfer of debtor's property for the benefit of a creditor is deemed to have occurred for purposes of § 547(b). Although the letter of credit and the payments made therefrom may not be property of the debtor, the collateral pledged by the debtor as security for the letter of credit is estate property. Matter of Compton Corp., 831 F.2d at 590-91. If Debtor granted a valid security interest in its property to Mellon in exchange for the issuance of the letters of credit, then payment thereon could be an indirect transfer and a preference to the PAC-10.
It is undisputed that Mellon issued two (2) letters of credit for the benefit of PAC-10. Debtor failed to offer any evidence in this case that it transferred any of its property to Mellon as security for Mellon's issuing the letters of credit. Specifically, Debtor has failed to show that it executed any security agreement in connection with the letters of credit whereby it granted Mellon a security interest in Debtor's property.
Debtor obviously is relying on findings previously made by this Court in Mellon Bank, N.A. v. Metro Communications, Inc. and The Pacific-10 Conference v. The Committee of Unsecured Creditors (In re Metro Communications, Inc.), 95 B.R. 921 (Bankr.W.D.Pa.1989) (hereinafter "Metro I").
The Court found in Metro I that:
(a) Debtor had executed a line of credit agreement with Mellon on April 6, 1984, for which Debtor pledged all of *855 its present and future assets as security;
(b) Debtor and Mellon had executed a letter of credit agreement to finance Debtor's purchase of football broadcast rights for PAC-10 for the 1984 season;
(c) draws upon these letters of credit created a demand loan between Mellon and Debtor; and
(d) this loan was also secured by the security agreement previously executed on April 6, 1984.
Metro I, 95 B.R. at 924.
These prior determinations are binding and may be asserted by Debtor as against PAC-10 in the present case. PAC-10 is collaterally estopped from denying these determinations.
Under the doctrine of collateral estoppel, a court's decision on an issue of fact or law necessary to its judgment may preclude re-litigation of that same issue in a suit on a different cause of action involving a party to the prior case. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980).
The following requirements must be satisfied in order for collateral estoppel to apply in a case:
(1) an issue decided in prior litigation is identical to the issue in a subsequent proceeding;
(2) the prior litigation resulted in a final judgment on the merits;
(3) the party against whom the estoppel is asserted was a party, or was in privity to the prior proceeding; and
(4) the opportunity to present the claim in the prior proceedings was full and fair.
Amalgamated Cotton Garment v. J.B.C. Co. of Madera, 608 F.Supp. 158, 162-63 (W.D.Pa.1984) (citing Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3rd Cir.1974).
All of these requirements have been satisfied in this instance. The issue as to whether Debtor had granted Mellon a security interest in its property in connection with the letters of credit was raised in Metro I. This Court's determination as to this issue was essential to the final judgment rendered therein. In addition, PAC-10 was a named party to Metro I and had full and fair opportunity to litigate the issue.
These prior findings of fact and law, as well as the final determination, rather than supporting Debtor's claim against PAC-10, indicate that its claim must fail. They compel the conclusion that there was no transfer of Debtor's property to Mellon in connection with the issuance of the letters of credit.
It was also determined in Metro I that:
(a) on April 5, 1984, Mellon filed UCC-1 financing statements in the appropriate state and local offices in Maryland (at that time the location of Debtor's chief executive office), 95 B.R. at 924;
(b) at some time prior to October of 1984 (most probably by late-August of 1984) Debtor had moved its chief executive office from Rockville, Maryland, to Pittsburgh, Pennsylvania, 95 B.R. at 929;
(c) Mellon filed the required financing statements in Pennsylvania on February 1, 4, and 5 of 1984, Id.;

(d) said filings at best re-perfected its security interest, Id.;

(e) Mellon's re-perfection, since it constituted a transfer of Debtor's property within 90 days of the filing of Debtor's bankruptcy petition, was avoided, 95 B.R. at 923-30; and
(f) Mellon consequently did not have a valid security interest in Debtor's property, 95 B.R. at 934.
Debtor is judicially (as opposed to collaterally) estopped from denying these determinations. In particular, Debtor is judicially estopped from denying in this case that the security interest it had granted to Mellon in connection with the letters of credit constituted a preference and, hence, was invalid.
The doctrine of judicial estoppel serves to preclude a party from assuming a position in a legal proceeding which is inconsistent with one previously assumed by *856 it. Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3rd Cir.), cert. denied, 488 U.S. 967, 109 S.Ct. 495, 102 L.Ed.2d 532 (1988). In essence, the doctrine of judicial estoppel provides that a party who has asserted a position may not later on be heard to contradict himself in order to establish an inconsistent position. National Union Electric Corp. v. Matsushita Electric Industrial, 498 F.Supp. 991, 1012 (E.D.Pa.1980). That party may be precluded (or estopped) from asserting the inconsistent position in the later proceeding. Erie Telecommunications, Inc. v. City of Erie, 659 F.Supp. 580, 588 (W.D.Pa. 1987); Wade v. Woodings-Verona Tool Works, Inc., 469 F.Supp. 465, 476 (W.D.Pa. 1979).
Judicial estoppel is designed to prevent a party from playing "fast and loose" with the judiciary. Lawrence v. United States of America, I.C.C., 629 F.Supp. 819, 822 (E.D.Pa.1985). It is meant to protect the judiciary, as an institution, from perversion of its process. Edward v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.1982).
A party who has gained an advantage by characterizing the law or the facts in a case will not be permitted later on to contradict that characterization in order to gain further advantage. U.S. v. Kepner, 843 F.2d 755, 760 (3rd Cir.1988) (citing Scarano v. Central R.R., 203 F.2d 510, 513 (3rd Cir.1953)).
The doctrine of judicial estoppel applies only where a party has successfully asserted an inconsistent position in a prior proceeding. City of Kingsport v. Steel & Roof Structures, Inc., 500 F.2d 617, 620 (6th Cir.1974). That party must have been successful in persuading the court to accept its position in the prior proceeding. "Acceptance" in this context requires only that the court have adopted that position, either as a preliminary matter or as part of a final disposition. Edward, 690 F.2d at 599, n. 5.
Judicial estoppel also serves to preclude a party from abandoning a position taken previously by it. If a party prevails in Suit # 1 by representing that proposition A is true, that party is stuck with proposition A in any later litigation involving proposition A. Eagle Foundation, Inc. v. Dole, 813 F.2d 798, 810 (7th Cir.1987).
Judicial estoppel applies to Debtor in the present case with respect to whether or not Mellon had a valid security interest in Debtor's property in connection with the letters of credit. Debtor successfully urged upon this Court in Metro I the proposition that Mellon's security interest was avoidable because it constituted a preferential transfer. Judgment was entered in Debtor's favor on this basis. Were Debtor to maintain in this case that Mellon did have a valid security interest after all, this would contradict its earlier successful position and would amount to playing "fast and loose" with the judicial process. Debtor cannot have both its cake and eat it in this regard. Consequently, it is judicially estopped from denying in this case that Mellon's security interest was invalid.
Since Mellon had no valid security interest in Debtor's property as the result of the security agreement dated April 6, 1984, it follows as a conclusion of law that no "indirect transfer" of Debtor's property thereby took place in connection with Mellon's issuing the letters of credit to PAC-10. A voided security interest is equivalent to no security interest at all.
Although there is no express statutory requirement that there occur a diminution of the bankruptcy estate in order for there to be an avoidable preference, such a requirement nonetheless is implicit. Palmer v. RCA, 453 F.2d 1133, 1135 (5th Cir.1971). It is an essential element of a voidable preference that ". . . it depletes the bankrupt's estate available to remaining creditors". Virginia National Bank v. Woodson, 329 F.2d 836, 839 (4th Cir.1964).
There being no transfer of Debtor's property to Mellon in connection with the issuing of the letters of credit, there was no diminution of Debtor's bankruptcy estate and, hence, no voidable preference.

B. Transfer Within Ninety Days of Bankruptcy Filing

As has been indicated, Debtor filed a voluntary Chapter 11 petition on March 15, 1985. Debtor is a corporation. PAC-10 *857 does not qualify as an insider of Debtor. See 11 U.S.C. § 101(30)(B). Therefore, even assuming that Debtor transferred any of its property to Mellon in connection with the letters of credit, said transfer must have occurred on or within ninety (90) days of the filing of the bankruptcy petition  i.e. by no later than December 15, 1984  in order for a preference to have taken place.
Any transfer of Debtor's property that might have taken place in connection with the letters of credit occurred prior to December 15, 1984.
Debtor apparently relies on the fact that the payments by Mellon to PAC-10, in accordance with the letters of credit, were made on December 18, 1984 ($1,750,000.00), December 24th or 26th of 1984 ($250,000.00), and January 2, 1985 ($250,000.00), all of which payments were made within the required 90-day period. Its reliance upon these dates and transfers is misplaced. These payments were made by Mellon, not by Debtor. Such transfers were made from Mellon's, not Debtor's, assets. W.L. Mead, Inc., 42 B.R. at 60; In re M.J. Sales & Distributing Co., Inc., 25 B.R. at 614. In a letter of credit transaction, the transfer of debtor's property occurs when the letter of credit is issued and received by the beneficiary, not when the issuer pays on the letter of credit. Matter of Compton, 831 F.2d at 591 (citations omitted). Thus, the fact that payments to PAC-10 were made within ninety (90) days of the filing of the petition is irrelevant.
The letters of credit were issued by Mellon on September 7, 1984, and September 28, 1984, and presumably were received by PAC-10 shortly thereafter. These events occurred almost 180 days prior to the filing of the bankruptcy petition, well beyond the required 90-day period.
PAC-10 has raised other matters in defending against Debtor's claim. For instance, PAC-10 argues that the payments to it were part of a contemporaneous exchange for new value and, pursuant to 11 U.S.C. § 547(c)(1), are not subject to avoidance. It will not be necessary for the Court to address this contention in light of the determination that Debtor has failed to establish that a transfer of its property for the benefit of PAC-10 ever took place and that any transfer which might have taken place occurred within ninety (90) days of the filing of the bankruptcy petition.
An appropriate Order will be issued.


                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1

                United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                               Submitted November 12, 2014*
                                Decided November 18, 2014

                                          Before

                            DIANE P. WOOD, Chief Judge

                            JOEL M. FLAUM, Circuit Judge

                            JOHN DANIEL TINDER, Circuit Judge

No. 14-1108

WILLIAM CHATMAN,                                 Appeal from the United States District
     Plaintiff-Appellant,                        Court for the Central District of Illinois.

       v.                                        No. 11-1257

GUY PIERCE, et al.,                              Michael M. Mihm,
     Defendants-Appellees.                       Judge.

                                        ORDER

       William Chatman, an inmate at Pontiac Correctional Center, appeals the grant of
summary judgment on his claim that a prison guard violated his First Amendment
rights by filing false disciplinary charges against him in retaliation for a grievance he
submitted regarding the guard’s allegedly illicit activity. See 42 U.S.C. § 1983. We affirm
in part, and vacate and remand in part.

       *
         After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2).
No. 14-1108                                                                         Page 2
        We construe all facts and inferences in the light most favorable to Chatman, the
non-movant. Miller v. Gonzalez, 761 F.3d 822, 826 (7th Cir. 2014). On August 22, 2010,
Chatman set in motion a series of events when he filed a grievance that accused
correctional officer John Heath of smuggling cigarettes into Pontiac to trade with an
inmate. Nearly three weeks later, the prison transferred Chatman to a cell block
monitored by Heath. Almost immediately Heath began visiting Chatman’s cell, telling
Chatman that he was going to “get” him, and asking him about the August 22
grievance. One week after the move, Heath issued Chatman a disciplinary ticket for
“insolence” and “intimidation of threats.” The following week Heath wrote up
Chatman again for the same offenses. A prison adjustment committee held two separate
disciplinary hearings, found Chatman guilty of the alleged infractions, and disciplined
him with segregation and restrictions on television and audio usage. But, according to
Chatman, the harassment continued—Chatman received food that appeared to be
tampered with and he had difficulty receiving and sending mail. Chatman complained
about these matters in grievances that he filed against Heath, but grievance officers
denied those grievances as baseless. He also complained in writing to the director of the
Illinois Department of Corrections, Gladyse Taylor, and Pontiac’s warden, Guy Pierce.
Pierce ordered an investigation into Chatman’s allegations of Heath’s cigarette
smuggling, and Taylor referred Chatman’s grievances to the prison’s Administrative
Review Board for further consideration.

        Chatman then brought this suit, claiming that Heath retaliated against him for
filing the August 22 grievance by fabricating disciplinary tickets and tampering with his
food and mail, and that Taylor and Pierce knew about the retaliation but “turned a
blind eye” by allowing Heath to be stationed at his same cell block.

       The district court granted summary judgment for the prison officials. First, with
regard to Chatman’s claims against Heath, the court determined that Chatman
presented neither direct nor circumstantial evidence of retaliation, adding that the
“four-week plus gap” between Chatman’s August 22 grievance and the September 17
disciplinary report was “too long to raise an inference of causation sufficient to preclude
summary judgment.” With regard to Chatman’s claims against Pierce and Taylor, the
court (1) noted Chatman’s acknowledgment that neither official personally harassed
him or tampered with his food or mail; (2) explained that respondeat superior did not
apply to § 1983 actions; and (3) determined that Chatman presented no evidence that
either official “approved, condoned, or turned a blind eye toward Heath’s
unconstitutional behavior.”
No. 14-1108                                                                            Page 3

       On appeal Chatman maintains that Heath’s actions were based on retaliatory
motive, and relies mainly on his declaration, in which he recounts Heath’s visiting his
cell on September 20 and threatening to “get” him, and then later reprimanding him for
informing the warden that he was “bringing in cigarettes.” The district court, however,
did not address these comments and focused on the disciplinary tickets. But Heath’s
alleged statements are circumstantial evidence of a retaliatory motive that the district
court determined was absent. Under these circumstances, a reasonable juror could
interpret Heath’s statements to be sufficient to show that Heath punished Chatman
because of protected activity. See Kidwell v. Eisenhauer, 679 F.3d 957, 966–66 (7th Cir.
2012); Muhammad v. Close, 379 F.3d 413, 417 (6th Cir. 2004). Contrary to the district
court’s suggestion, Chatman does not try to show retaliation merely with regard to the
suspicious timing of Heath’s actions; rather he sets forth a chronology of events,
supported by Heath’s alleged threats, and from those circumstances a retaliatory motive
could be inferred. See Mays v. Springborn, 575 F.3d 643, 650 (7th Cir. 2009). The grant of
summary judgment on Chatman’s claim against Heath is therefore vacated.

       Next Chatman disputes the district court’s conclusion that Pierce and Taylor
lacked personal involvement in the case and maintains that his subsequent grievances
put them on notice of Heath’s actions, but they nevertheless “turned a blind eye.” But §
1983 does not provide for vicarious liability, see Burks v. Raemisch, 555 F.3d 592, 593–94
(7th Cir. 2009), and Chatman has not provided evidence that Taylor and Pierce
deliberately ignored Heath’s actions toward him. See Anderson v. Cornejo, 355 F.3d 1021,
1026–27 (7th Cir. 2004). Pierce and Taylor in fact responded to letters that Chatman sent
them about Heath’s actions: Pierce ordered an investigation into Chatman’s allegations
that Heath was smuggling cigarettes into the prison, and Taylor forwarded Chatman’s
grievances to the Administrative Review Board—the agency authorized to handle
inmate grievances.

       Finally Chatman argues that the court should not have entered summary
judgment before discovery was complete. But if Chatman needed further discovery, he
should have moved under Federal Rule of Civil Procedure 56(d), explaining why he
could not yet present facts essential to his opposition. See Deere & Co. v. Ohio Gear, 462
F.3d 701, 706 (7th Cir. 2006); see also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir.
2010) (applying rule to pro se litigant); Walker v. Bowersox, 526 F.3d 1186, 1188 (8th Cir.
2008) (same).

      Accordingly, we VACATE the grant of summary judgment on Chatman’s claim
against Heath and REMAND that claim for further proceedings. In all other respects the
judgment is AFFIRMED.


473 F.2d 395
Neil PHILLIPS, Petitioner-Appellant,v.Carl G. HOCKER, Warden, Respondent-Appellee.
No. 72-1715.
United States Court of Appeals,Ninth Circuit.
Jan. 22, 1973.Certiorari Denied April 16, 1973.See 93 S.Ct. 1916.

Paul A. Bible (argued), of McDonald, Carano, Wilson & Bergin, Reno, Nev., for petitioner-appellant.
Robert A. Groves, Deputy Atty. Gen.  (argued), Herbert F. Ashwede, Chief Deputy Atty. Gen., Robert List, Atty. Gen., for respondent-appellee.
Before JERTBERG, DUNIWAY and TRASK, Circuit Judges.
JERTBERG, Circuit Judge:

1
Appellant, Neil Phillips, a prisoner of the State of Nevada, appeals from an order of the United States District Court for the State of Nevada denying his petition for a writ of habeas corpus.  Following trial to a jury, appellant was convicted of first degree murder and sentenced to life imprisonment without possibility of parole.

2
On direct appeal to the Supreme Court of the State of Nevada, his conviction was affirmed.  Phillips v. State of Nevada, 86 Nev. 720, 475 P.2d 671 (1970); Rehrg.  Denied Nov. 30, 1970.  His petition for a writ of certiorari to the United States Supreme Court was denied on June 21, 1971.  Phillips v. Nevada, 403 U.S. 940, 91 S.Ct. 2260, 29 L.Ed.2d 719.

3
The undisputed facts, taken from appellant's brief, are as follows:

4
On December 26, 1965, the emasculated body of John Russell Blair was discovered on the mountainside of Doby Summit, Elko County, Nevada, with three bullet wounds in the head.  Almost two years later, on December 16, 1967, the appellant was arrested and charged with the murder of Blair.

5
The evidence at the trial established that on the day the decedent's body was discovered, the appellant had appeared at the home of his brother, Chester Phillips, in an obviously troubled condition, and requested that his brother accompany him to Carlin, Nevada.  His brother complied, and during the trip appellant told his brother that he had shot a man earlier that morning when the man appeared to be reaching for a knife to attack him, and had left the body on Doby Summit.  Appellant's brother advised appellant to surrender to the authorities, but appellant did not do so.  At the same time, Chester observed appellant remove a .22 caliber pistol from the truck, which he recognized as a pistol which had been given to appellant by their father, and also observed blood stains in the truck and on the back of appellant's shirt.

6
Two years later, on December 12, 1967, appellant told his wife, Lillie, and his sister-in-law, Rosemary Dimitroff, that he "killed that guy" on Doby Summit because the decedent was going for a knife.  There were two subsequent conversations with regard to the decedent's death between the appellant and his sister-in-law. Approximately two months after he was taken into custody, the appellant escaped from the Elko County Jail, and was recaptured.

7
Appellant did not testify in his own behalf.  His only witness was Robert Gutsell, a psychiatrist, who expressed the opinion that the appellant was sane at the time of the psychiatric examination, then knew the nature of the charge against him, and was competent to assist in his own defense.

8
On direct examination he expressed the opinion that, at the time of the homicide, appellant was under the unfounded belief that he was in danger of being attacked by the decedent, and expressed the bare opinion that appellant was insane at the time of the homicide.

9
On cross-examination he stated that: He "did not believe that appellant was insane in the ordinary sense before this drinking bout took place, or when not drinking we will say, and that he was not insane after he sobered up."

And that:

10
"[H]e [defendant] was mentally deranged at the time because of 48 hours or thereabouts, more or less, of imbibing alcoholic drinks, with the added, perhaps, factor of fatigue, which might enter into it.  Loss of sleep."

11
He was unable to state whether appellant's state of mind at the time of the homicide was an actual state of mind or intoxication.  He was unable to state whether appellant knew the difference between right and wrong at the time of the homicide.  He further stated if appellant had not been drinking he would have concluded that appellant was sane at the time of the homicide.

12
Only two issues are presented for review on this appeal.  First, appellant contends that the District Court erred in ruling that the law of the State of Nevada, which imposes upon a defendant in a prosecution for murder, the burden of proving insanity by a preponderance of the evidence does not violate the Due Process Clause of the Constitution of the United States and thereby deprive him of a fair trial.

13
The law is well-settled in the State of Nevada.  As stated by the Supreme Court of Nevada in Phillips, supra, 475 P.2d at page 672:

14
"Whether sanity is an element of the crime of murder which must be proven by the state is a question that has been well-settled.  Insanity is an affirmative proposition which the defendant must establish by a preponderance of proof.  Gallegos v. State, 84 Nev. 608, 446 P.2d 656 (1968)."

15
In Gallegos, supra, 446 P.2d at page 657, it is stated:

16
"Insanity is in the nature of an affirmative defense.  Sanity is presumed and in order to overcome this presumption the defendant must establish his insanity by a preponderance of evidence.  State v. Bourdlais, 70 Nev. 233, 265 P.2d 761 (1954); State v. Lewis, 20 Nev. 333, 22 P. 241 (1889).  The jury was not only properly instructed, but its verdict is supported by substantial evidence on this issue.  Elias v. State, 73 Nev. 108, 310 P.2d 621 (1957)."

17
In support of his contention the appellant relies primarily on Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), which held, in effect, that the prosecution must prove every element of the crime of murder, including mental capacity, beyond a reasonable doubt.  The prosecution of Davis was for a federal crime, and he was convicted in a federal court.  The rule in Davis was limited by Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1951).

18
In Leland, appellant was charged with murder in the first degree.  He pleaded not guilty and gave notice of his intention to prove insanity.  Oregon statutes required appellant to prove his insanity beyond a reasonable doubt, and the jury was so instructed.  He was found guilty and sentenced to death.  His conviction was affirmed by the Supreme Court of Oregon.  On appeal to the Supreme Court of the United States his conviction was affirmed, the Court holding that the requirement that the appellant prove his insanity beyond a reasonable doubt did not deprive him of life and liberty without due process of law, in violation of the Fourteenth Amendment.  In the course of its opinion, the Supreme Court stated at page 797, 72 S.Ct. at page 1007:

19
"The decision [Davis, supra] obviously establishes no constitutional doctrine, but only the rule to be followed in federal courts.  As such, the rule is not in question here."

20
And further, commencing at page 798, 72 S.Ct. at 1007:

21
"Nor is this a case in which it is sought to enforce against the states a right which we have held to be secured to defendants in federal courts by the Bill of Rights.  In Davis v. United States, supra, we adopted a rule of procedure for the federal courts which is contrary to that of Oregon.  But '[i]ts procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.'  Snyder v. Massachusetts, [291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934)], supra, at 105. * * *.  We are therefore reluctant to interfere with Oregon's determination of its policy with respect to the burden of proof on the issue of sanity since we cannot say that policy violates generally accepted concepts of basic standards of justice."

22
Appellant contends that the impact of In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) has seriously undermined the holding in Leland.  Winship was a juvenile case prosecuted under a New York statute which required that the elements which would otherwise constitute a crime if an adult was accused need only be proved by a preponderance of the evidence where a juvenile is accused.  The Supreme Court reversed, holding that proof beyond a reasonable doubt, which is required by the Due Process Clause in criminal trials is among the essentials of due process and fair treatment required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult.

23
It is to be noted that the issue of insanity was not involved in In Re Winship, and that case in no way related to the right of a state to formulate its own rule on the burden of proof of insanity in criminal cases.

24
We also note that Leland was specifically mentioned in Re Winship, and we find no intimation in Re Winship that Leland should be questioned as to its holding on the nonconstitutional aspect of the insanity defense.

25
We believe that Leland remains viable and conclude that the first issue urged by appellant presents no constitutional question reviewable in these proceedings.  See Earp v. Cupp, 453 F.2d 378 (9th Cir. 1972).

26
The state trial judge instructed the jury: [Instruction No. 22]

27
"The killing of the deceased named in the indictment or information by the Defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified, or excused in committing the homicide."

28
Appellant's remaining and second contention is that the District Judge erred in holding that the instruction was harmless error and did not deprive the appellant of due process.

29
On direct appeal, the Supreme Court of Nevada held that the giving of such instruction was error under state law, but within the circumstances of the case the error was harmless.

30
The District Judge, after reviewing the record and instructions as a whole, reached the same conclusion, and concluded that the giving of such instruction did not mislead the jury or jeopardize or prejudice the appellant.  He stated that the issue was purely one of harmless error under established principles of appellate review, and not of constitutional error involving Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

31
Appellant contends that the instruction misled and confused the jury into believing that the burden of proof rested upon him to establish his innocence, and not upon the prosecution to establish his guilt beyond a reasonable doubt, and also deprived him of the presumption of innocence.

32
We disagree.  We have reviewed the thirty-seven instructions given to the jury by the state trial judge, and find that the jury was instructed that:

33
The plea of not guilty entered by the appellant is in law a denial of every material allegation of the Information and as to each material allegation of the Information an issue is raised by his plea of not guilty;

34
It is not proper for the jury to single out any one of the instructions as the law, but they must all be considered together and construed as a whole;

35
The defendant in this case is presumed to be innocent and this is a presumption of law with which the defendant is clothed and it abides with him throughout the entire trial of the case until it is overcome by competent evidence sufficient in your minds to establish the guilt of the offense charged, beyond a reasonable doubt.  In determining the guilt or innocence of the defendant, it is not necessary that he establish his innocence, but it is sufficient in order to warrant him an acquittal if a reasonable doubt exists in your minds as to his guilt, and it makes no difference whether the reasonable doubt thus created is established from the evidence produced on the part of the State or that produced by the defendant, or from the lack of evidence, or its unreliability or weight; [Emphasis added]

36
There are two classes of evidence recognized and admitted in Courts of Justice, upon either of which Juries may lawfully find an accused guilty of crime.  One is direct or positive testimony of an eye witness to the commission of the crime, and the other is proof by testimony of circumstances pointing sufficiently strong to the commission or lack of commission of the crime and which is known as circumstantial evidence; that the State and the Defendant are not required to prove all or any part of the facts by direct and positive evidence.  Circumstantial evidence is legal and competent evidence in criminal cases, and, where beyond a reasonable doubt, the evidence is all consistent with that of guilt beyond a reasonable doubt and inconsistent with every other hypothesis, including the hypothesis of Defendant's innocence or including the possibility of the commission of the crime by another, then it is the duty of the Jury, under the law to render a verdict finding him guilty.

37
But if, on the other hand, any evidence in the case is consistent with the hypothesis of Defendant's innocence, or if you do not feel an abiding conviction of the truth of the charge, or if you entertain a reasonable doubt, resting upon the unsatisfactory character of the evidence, or for any other reason growing out of the evidence in the case to establish Defendant's guilt, your duty is just as imperative to acquit him; [Emphasis added]

38
In all cases the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged; provided, however, that the guilt of the commission of such offense is established beyond a reasonable doubt; [Emphasis added]

39
The defendant has placed in issue his sanity at the time of the commission of the offense.  The law does not hold a person criminally accountable for his conduct if, at the time thereof, he was insane.  Insanity, as the word is used in these instructions, means such a diseased and deranged condition of the mental faculties of a person as to render him incapable of knowing the nature and quality of his act and of distinguishing between right and wrong in relation to the act with which he is charged.

40
The test of accountability is this: Did the party have sufficient mental capacity to appreciate the character and quality of the act?  Did he know and understand that it was a violation of the rights of another, and in itself wrong?  If he had the capacity thus to appreciate the character and to comprehend the probable or possible consequences of his act, he was sane under the law and is responsible to the law for the act thus committed.  On the contrary, if you find that he was not, at that time, able to distinguish right from wrong, or was incapable of knowing the nature and quality of the act, then he was not legally responsible for any acts committed by him and you should find him not guilty by reason of insanity;

41
The burden of proving the crime never shifts in a criminal action and all reasonable doubts must be resolved in favor of the defendant, whether these doubts be raised by the evidence of the State or the Defendant, and it is the duty of the State to establish the guilt of the defendant beyond a reasonable doubt; [Emphasis added]

42
When upon the trial of a charge of murder, the Jury is convinced beyond a reasonable doubt that the crime of murder has been committed by a Defendant, but has a reasonable doubt whether such murder was of the first or of the second degree, the Jury must give to such Defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.  [Emphasis added]

43
By other instructions the jury was correctly instructed as to the elements of the crime charged (including lesser offenses), and to the fact that the burden of proof required the prosecution to establish each element of such offense beyond a reasonable doubt.  Other instructions were given as to the effect of drunkenness of the defendant, and circumstances justifying homicide in self defense.

44
Seven forms of verdicts were submitted to the jury.  They were:

45
Guilty of murder in the first degree with the imposition of the death penalty;

46
Guilty of murder in the first degree with imprisonment for life without possibility of parole;

47
Guilty of murder in the first degree with imprisonment for life;

48
Guilty of murder in the second degree;

49
Guilty of the crime of voluntary manslaughter;

Verdict of not guilty; and

50
Verdict of not guilty by reason of insanity.

51
Although a plea of insanity was made, the State was required to prove beyond a reasonable doubt every element of the crime charged, including premeditation, deliberation, malice and intent.

52
We are satisfied that the instructions as a whole properly placed the burden of proof on the prosecution to establish appellant's guilt beyond a reasonable doubt, and that the giving of the questioned instruction was harmless error beyond a reasonable doubt and in no way denied due process.

53
The order appealed from is affirmed.


866 N.E.2d 377 (2007)
Paul KIEN, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.
No. 20A03-0608-PC-392.
Court of Appeals of Indiana.
May 17, 2007.
*379 J. Richard Kiefer, James J. Bell, Bingham McHale LLP, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Maureen Ann Bartolo, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION
VAIDIK, Judge.

Case Summary
Following his three convictions for molesting his former girlfriend's five-year-old daughter, Paul Kien appeals the post-conviction court's denial of his petition for post-conviction relief. Specifically, Kien contends that his trial counsel was ineffective for failing to investigate and present evidence that he was not the one who molested the victim and for failing to challenge the victim's competency. Because the evidence that Kien claims shows that he did not molest the victim is inadmissible, trial counsel cannot be deemed ineffective for failing to investigate and present it. In addition, because there is no evidence that the victim was incompetent, trial counsel was not ineffective for failing to challenge her competency. We therefore affirm the post-conviction court.

Facts and Procedural History
The facts underlying this appeal, taken from this Court's 2003 opinion in Kien's direct appeal, are as follows:
The incidents which led to the charges and the subsequent convictions arose out of allegations made by five-year-old J.F., the daughter of Kien's former live-in girlfriend[, Shellie Devlin]. During an interview conducted by Lori Harrington at the Elkhart Child and Family Advocacy Center, which was attended by Detective Terry [S]hmiel of the Elkhart Police Department, J.F. alleged that Kien had put his penis and tongue on her vagina "a lot." J.F. stated that these incidents occurred either in her mother's bedroom or by the basement door. J.F. also stated that during one incident, Kien put his penis in her vagina and that it hurt. On another occasion, she stated, Kien had forced her to suck his penis. J.F.'s [half-]brother, B.D., also stated that he witnessed one episode of molestation between J.F. and Kien.
J.F. was examined by a physician, Lynette Valentijn, who found that J.F.'s hymen had been "disrupted," or rather, was no longer intact. She also noted that there was increased vascularity to the posterior fourchette, the area beneath the hymen, which indicated that there had been a trauma which required more blood flow to aid in the healing process. A white mark was also present in the area, which could have been a scar from a cut.
Dr. Valentijn testified that all of these conditions were abnormal and were not the types of injuries which could have been caused by such things as a fall on a bicycle seat. According to Dr. Valentijn, these findings were all consistent with sexual abuse with penetration.

*380 On June 5, 2000, Kien was charged with one count of Child Molesting [as a Class A felony], alleging sexual intercourse. On November 3, 2000, two additional counts of Child Molesting [as Class A felonies] were added. On January 23, 2001, the counts which were added on November 3 were amended to reflect that the second count alleged sexual intercourse and the third count alleged deviate sexual conduct by fellatio.
Kien v. State, 782 N.E.2d 398, 403-04 (Ind. Ct.App.2003), reh'g denied, trans. denied.
At his January 2001 jury trial, Kien's theory of defense was that Shellie Devlin ("Shellie"), J.F.'s mother and his former girlfriend, sought revenge against him, when he ended their relationship for the final time and moved out of the house on April 1, 1999, by taking out a credit card in his name. Then, when Kien reported the crime to the police, Shellie concocted a scheme to divert attention from the credit card investigation by accusing Kien of molesting her daughter, J.F., and in the process brought her children in on the scheme. Kien explained that every time he moved out of the house, "something revengeful would happen to [him]." Appellant's App. p. 212. The jury found Kien guilty of the three counts of Class A felony child molesting, and the trial court sentenced him to forty years for each count, to be served consecutively, for an aggregate term of 120 years.
On direct appeal, Kien raised several issues before this Court: (1) whether his constitutional rights were violated by the manner in which objections and arguments were made at the bench so that they could not be recorded; (2) whether the evidence is sufficient to support his convictions; (3) whether two suicide notes were improperly admitted for impeachment purposes; (4) whether the jury should have been instructed on a mens rea element for child molesting; (5) whether the trial court relied upon improper aggravating and mitigating circumstances in sentencing; and (6) whether his sentence is inappropriate. We affirmed Kien's convictions but remanded the case for his sentence to be reduced:
Because the evidence did not necessarily establish that the acts occurred at significantly different times with Kien having time to reflect upon the heinous nature of the crimes committed, ordering that Kien serve consecutive sentences for the two convictions for child molesting by sexual intercourse is inappropriate. . . . The trial court is ordered to amend Kien's sentencing order to reflect that the sentences for Counts I and II, the convictions for child molesting by sexual intercourse, be served concurrently. The sentence is affirmed in all other respects.
Kien, 782 N.E.2d at 416-17. As a result, the trial court reduced Kien's sentence to eighty years. The Indiana Supreme Court denied Kien's petition to transfer.
In November 2004, Kien filed a petition for post-conviction relief, which has since been amended several times. A hearing on Kien's petition was held in April 2006, and the post-conviction court entered extensive findings of fact and conclusions thereon in August 2006 denying relief. Kien now appeals.

Discussion and Decision
A defendant who has exhausted the direct appeal process may challenge the correctness of his convictions and sentence by filing a post-conviction petition. Carew v. State, 817 N.E.2d 281, 285 (Ind. Ct.App.2004), trans. denied. Post-conviction procedures do not provide an opportunity for a "super-appeal"; rather, they create a narrow remedy for subsequent collateral challenges to convictions that *381 must be based on grounds enumerated in the post-conviction rules. Id.; see also Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006). Post-conviction proceedings are civil proceedings, so a defendant must establish his claims by a preponderance of the evidence. Carew, 817 N.E.2d at 285.
A petitioner who appeals the denial of post-conviction relief faces a rigorous standard of review. Benefiel v. State, 716 N.E.2d 906, 911 (Ind.1999), reh'g denied. The reviewing court may consider only the evidence and the reasonable inferences supporting the judgment of the post-conviction court. Hall v. State, 849 N.E.2d 466, 468 (Ind.2006). Furthermore, while we do not defer to the post-conviction court's legal conclusions, we accept its factual findings unless they are clearly erroneous. Carew, 817 N.E.2d at 285. To prevail on appeal, the petitioner must establish that the evidence is uncontradicted and leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court. Hall, 849 N.E.2d at 469.
Kien raises several issues on appeal, only one of which we need to address. That is, Kien contends that his trial counsel was ineffective for three reasons: (1) failing to investigate and present additional evidence of Shellie's vindictive behavior; (2) failing to challenge J.F.'s competency; and (3) failing to investigate and present evidence that J.F.'s half-brother could have molested her.[1]
We review claims of ineffective assistance of trial counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Carew, 817 N.E.2d at 285-86. First, the petitioner must demonstrate that counsel's performance was deficient because it fell below an objective standard of reasonableness and denied the petitioner the right to counsel guaranteed by the Sixth Amendment to the United States Constitution. Smith v. State, 765 N.E.2d 578, 585 (Ind.2002), reh'g denied. Second, the petitioner must demonstrate that he was prejudiced by his counsel's deficient performance. Wentz v. State, 766 N.E.2d 351, 360 (Ind.2002), reh'g denied. To demonstrate prejudice, a petitioner must demonstrate a reasonable probability that the result of the proceeding would have been different if his counsel had not made the errors. Id. A probability is reasonable if our confidence in the outcome has been undermined. Id.

I. Failure to Investigate and Present Additional Evidence of Shellie's Vindictive Behavior
Kien first argues that his trial counsel was ineffective for failing to investigate and present additional evidence of Shellie's vindictive behavior, which would have bolstered his defense theory that Shellie, in conjunction with her children, fabricated the child molesting allegations against him.[2] At the post-conviction hearing, *382 Kien presented this additional evidence, which the post-conviction court summarized as follows:
Evidence was presented at the [post-conviction] hearing . . . that the victim's mother threatened former lovers with vindictive acts following breakdowns in her relationships with them. Specifically, Jack Daryl Devlin, Sr. ("Jack, Sr."), [Shellie's ex-husband,] said Shellie threatened to accuse him of abusing the children if he stopped supporting her. Jack, Sr. also testified that Shellie applied for three or four credit cards in his name without his permission and, that he did not discover that fact until he received delinquent notices and statements. In addition, Richard Lewis Wheeler testified that he was involved in a relationship with Shellie after her marriage to Jack, Sr. ended. That relationship began sometime in 1987 and continued through 1988, when he joined the army. Mr. Wheeler said he worked and supported Shellie's children while he lived with Shellie, but stopped sending her money when he joined the army. No children were born to the couple. Shellie falsely named him as the father of a child when she later became pregnant. He also testified that Shellie obtained a JC Penney credit card in his name which he did not discover until 1991, when he applied for a home mortgage. Timothy Allen Flock testified that only [J.F.], the victim, is his child. He testified that when he broke off his relationship with Shellie, she accused him of physically abusing [C.D.] Finally, he averred that Shellie asked him to lie to a judge, saying that [B.D.] was his child. . . . Evidence was presented to the effect that Shellie made several attempts to persuade her children to lie about matters unrelated to this trial. These efforts produced varied results.
Appellant's App. p. 150-51 (formatting altered). The post-conviction court concluded that the above evidence was inadmissible and therefore trial counsel was not ineffective for failing to investigate and present it at Kien's jury trial:
Indiana Evidence Rule 404(b) is customarily used by criminal defendants to seek exclusion of evidence about their own prior bad acts. Under what has come to be called "reverse 404(b) evidence", courts have held that a defendant can introduce evidence of someone else's conduct if it tends to negate the defendant's guilt, and if one of the exceptions of 404(b) applies. See, e.g., Garland v. State, 788 N.E.2d 425, 429 (Ind.2003). . . .
In the instant case, the incidents relied upon by the defendant and the alleged misconduct on the part of [Shellie] Devlin with respect to the defendant were separated by a significant amount of time. In addition, the alleged acts of misconduct and the offered bad acts were not sufficiently similar or connected to the crimes charged. The offered earlier bad acts are not tangibly connected to the present case, and Shellie Devlin's propensity to behave a certain way is not admissible to prove the defendant did not commit the crime at issue. This is precisely the type of evidence Rule 404(b) is intended to exclude. Furthermore, the proffered evidence is related to the acts of the victim's mother, not the victim, and her prior bad acts as presented by defendant do not tend to prove any disputed fact in the instant case. Nothing indicates that the offenses charged arose out of Shellie Devlin's behavioral patterns with former *383 boyfriends or from her relationships with her children. Defense counsel cannot be said to be ineffective for failing to present evidence that would have been deemed inadmissible at trial.
Id. at 153-55 (formatting altered).
On appeal, Kien asserts that contrary to the post-conviction court's conclusion, the evidence of Shellie's vindictiveness in her past romantic relationships was admissible and therefore trial counsel was ineffective for failing to investigate and present it at his jury trial. Our starting point is Indiana Evidence Rule 404(b), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .
The Indiana Supreme Court addressed "reverse 404(b)" evidence in Garland v. State, 788 N.E.2d 425 (Ind.2003). In that case, our Supreme Court held that contrary to earlier case law, Evidence Rule 404(b) applies "to evidence about the bad acts of non-parties." Id. at 429. The court explained, "First, the text of Rule 404(b) is such that it governs evidence about acts by defendants, and non-defendants. Second, the rule acts as an appropriate restraint on admissibility of evidence about events or acts that are by definition largely extraneous to those for which a defendant is on trial." Id. In order for evidence about the bad acts of non-defendants to be admissible, though, one of the exceptions of Rule 404(b) must apply.[3]Id. at 430.
Kien claims that the evidence of Shellie's vindictiveness in her past romantic relationships was admissible to demonstrate Shellie's motive, an exception under Rule 404(b). We first point out that Shellie is not the one who made the child molesting allegations in this case. In fact, Shellie did not testify at either Kien's jury trial or the post-conviction hearing. Even if one of the exceptions is satisfied, the balancing test of Indiana Evidence Rule 403 must be applied. See Bassett v. State, 795 N.E.2d 1050, 1053 (Ind.2003); Burks v. State, 838 N.E.2d 510, 519 (Ind.Ct.App.2005), trans. denied. Evidence Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
With regard to motive, "evidence of an extrinsic act that is too remote or unrelated to the events at issue may be rendered inadmissible by the balance between probative value and the risk of unfair prejudice." 12 Robert Lowell Miller, Jr., Indiana Practice, § 404.212 (2d ed.1995); see also Bassett, 795 N.E.2d at 1053 (finding evidence "too strained and remote" to be admissible under motive exception); Spencer v. State, 703 N.E.2d 1053, 1056 (Ind.1999) ("The probative value of the evidence [of motive] may lose force, however, if too much time has elapsed between *384 the prior acts and the crime charged[, in this case, three years].").
Here, the evidence of Shellie's vindictiveness in her past romantic relationships is too remote and unrelated to the current crimes to be admissible. Jack Devlin, Sr., Shellie's ex-husband and father to three of her children, testified at the post-conviction hearing that they divorced in 1987, approximately twelve years before the offenses in this case. Devlin testified that after their divorce, Shellie threatened to accuse him of abusing the children if he did not send her money. Although Devlin testified that Shellie took out credit cards in his name, it occurred during their marriage. Richard Lewis Wheeler testified at the post-conviction hearing that his relationship with Shellie was in 1987-88, approximately eleven years before the offenses in this case. Wheeler testified that after their relationship ended, Shellie took out credit cards in his name. She did not lodge any allegations of abuse or molest of her children against him. Timothy Allen Flock, Shellie's ex-boyfriend and father of J.F., testified at the post-conviction hearing that Shellie accused him of spanking C.D., Shellie's son, with a paddle. No time frame was given, and Flock did not deny spanking C.D.
None of the evidence of Shellie's vindictiveness in her past romantic relationships involves allegations that the men molested any of her children. At most, Shellie alleged that two of the men abused her children. And at least two of the relationships ended more than a decade before the offenses in this case even occurred. Given the remoteness of these acts and the fact that they are not related to Kien's convictions in this case for molesting J.F., the probative value of this evidence is substantially outweighed by not only the danger of unfair prejudice, but also by confusion of the issues and undue delay. Therefore, the evidence would not have been admissible at Kien's jury trial.[4] As such, we cannot conclude that trial counsel was ineffective for failing to investigate and present it.

II. Failure to Challenge J.F.'s Competency
Second, Kien argues that his trial counsel was ineffective for failing to challenge J.F.'s competency. Specifically, Kien asserts that J.F., who was six years old at the time of trial, "could not recite substantial details of the alleged incident, gave inconsistent accounts of the alleged crime and admitted to lying under oath." Appellant's Br. p. 24. The post-conviction court made the following finding regarding this issue:
[A]t the time of trial [J.F.], the victim, was six (6) years old. Trial record reflects that [defense counsel] rigorously cross examined her with respect to contradictions in her trial testimony and discrepancies between her trial and deposition testimony. There is nothing to suggest that her competence to testify *385 should have been called into question and nothing to suggest that such tactic would have been productive.
Appellant's App. p. 151. As such, the post-conviction court concluded:
In this case, the trial record shows that the victim was questioned extensively about whether she knew the difference between telling the truth and a lie. Examples were proposed to her and she was asked if they were a lie or the truth. She was also asked if she understood why certain of these examples was a lie and the consequences of telling a lie. Specifically, the victim demonstrated that she understood the difference between telling the truth and telling a lie when she stated it would be a lie for counsel to say that he had long, curly, red hair. She showed she knew that she was under a compulsion to tell the truth when she said that for her to say counsel's hair was long, red, and curly, she was lying and that what happens when one lies is that one gets into trouble. The victim was further questioned during cross-examination as to whether she understood what it means to be under oath. There was sufficient evidence presented at trial to show that the victim was competent as a matter of law, and absolutely nothing to indicate that her competency was an issue. Therefore, defense counsel was not ineffective for failing to challenge the victim's competency.
Id. at 155-56 (record citations omitted).
According to the Indiana Rules of Evidence, "[e]very person is competent to be a witness except as otherwise provided in these rules or by act of the Indiana General Assembly."[5] Ind. Evidence Rule 601. A child's competency to testify at trial is established by demonstrating that he or she (1) understands the difference between telling a lie and telling the truth, (2) knows he or she is under a compulsion to tell the truth, and (3) knows what a true statement actually is. Richard v. State, 820 N.E.2d 749, 755 (Ind.Ct.App.2005), trans. denied, cert. denied, ___ U.S. ___, 126 S.Ct. 1034, 163 L.Ed.2d 856 (2006). "To be qualified to testify, a child need not be a model witness, have an infallible memory, or refrain from making inconsistent statements." Casselman v. State, 582 N.E.2d 432, 435 (Ind.Ct.App.1991).
Here, J.F.'s testimony at trial shows that she understood the difference between a truth and a lie, knew she was under compulsion to tell the truth, and knew what a true statement was. The fact that J.F.'s testimony could be interpreted as inconsistent and the fact that she admitted to not testifying truthfully[6] goes to her credibility, not her competency. See Harrington v. State, 755 N.E.2d 1176, 1181 (Ind.Ct.App.2001). As such, the jury was free to disregard J.F.'s testimony if it felt she was not a credible witness. See id. Because there is no evidence that J.F. was incompetent, trial counsel cannot be deemed ineffective for failing to challenge her competency.

III. Failure to Investigate and Present Evidence that J.F.'s Half-Brother Could Have Molested Her
Finally, Kien argues that his trial counsel was ineffective for failing to investigate *386 and present evidence that J.F.'s half-brother, J.D., could have molested her. The post-conviction court made the following finding with respect to this issue:
At the [post-conviction] hearing . . ., some evidence was presented to establish that [J.D.], a half-brother of the victim, engaged in homosexual experimentation with a younger sibling when [J.D.] was approximately ten years of age. . . . No evidence was presented to the effect that the victim was molested by anyone other than the defendant. At most, it was established that . . . [J.D.] was involved in an unrelated sex act with another person.
Appellant's App. p. 150. Finding that the evidence regarding J.D. was "tenuous" and "speculati[ve]," the trial court concluded that it was not admissible and therefore trial counsel was not ineffective for failing to investigate and present it at Kien's jury trial. Id. at 153. This issue again implicates our Supreme Court's opinion in Garland and its discussion of reverse 404(b) evidence.
Conceding that he does not have direct evidence that J.D. molested J.F., see P-C Tr. p. 63, Kien's main argument on appeal is that the evidence relating to J.D.'s molestation of a younger, male sibling was admissible to prove the "identity" of the "true perpetrator of th[ese] crime[s]," an exception under Rule 404(b). Appellant's Br. p. 35; see also supra note 3. At the post-conviction hearing, J.D., who was twenty-four years old at the time, testified that he engaged in sexual activity with his younger brother C.D., who is six years younger than him, on three occasions when he was approximately ten and twelve years old and that he was adjudicated a juvenile delinquent as a result.[7] No details of the actual adjudication were given, including dates and underlying offenses. However, J.D. denied having sexual contact with J.F., who is approximately fourteen years younger than him. P-C Tr. p. 71.
We find that the testimony regarding J.D.'s conduct twelve and fourteen years earlier involving his brother, and not involving the present victim, his sister, does not bear sufficient similarities to support a reasonable inference that he is the one who committed the crimes here. See Bassett, 795 N.E.2d at 1053. These were not "signature" crimes, nor are they "strikingly similar."[8]See Bassett, 795 N.E.2d at 1053; Garland, 788 N.E.2d at 431; see also 12 Robert Lowell Miller, Jr., Indiana Practice, § 404.220 (2d ed. 1995) ("Indiana cases in which scheme or plan evidence was used as proof of identity have stressed that the features common to the offenses must be unique, distinctive and unusual to justify admission of such evidence."). The evidence does not fit the identity exception of Rule 404(b) and therefore would have been inadmissible at Kien's jury trial. As such, we cannot conclude that trial counsel was ineffective for *387 failing to investigate and present it.[9]
Affirmed.
BAILEY, J., and BARNES, J., concur.
NOTES
[1]  Kien also raises claims of newly discovered evidence and cumulative effect of errors. Even if the evidence of Shellie's vindictive behavior and the possibility that J.F.'s half-brother could have molested her meets the requirements for newly discovered evidence, because we conclude below that the evidence is inadmissible, this claim fails. In addition, because we find no deficiency on the part of trial counsel, Kien's cumulative effect of errors claim also fails.
[2]  Kien also argues that his trial counsel was ineffective for failing to introduce the fraudulent credit card application that Shellie filled out using his name. Although Kien's trial counsel did not introduce the actual application, counsel did present evidence regarding this incident at trial. Specifically, counsel presented evidence that after Kien ended his relationship with Shellie, she took out a credit card in his name, which he reported to the police. Six months later, he was accused of molesting J.F. Because this evidence was presented to the jury, trial counsel was not ineffective for failing to introduce the actual application.
[3]  Our Supreme Court noted that "[w]here a defendant has probative, admissible evidence that [someone else committed the crime], regular due process would admit the evidence." Garland, 788 N.E.2d at 430. However, if the defendant "has little or no direct evidence" that someone else did it, then one of the exceptions of Rule 404(b) must apply. Id. Because the evidence of Shellie's vindictiveness in her past romantic relationships is not direct evidence that someone other than Kien molested J.F., the evidence is not constitutionally required, contrary to Kien's argument on appeal. See Appellant's Br. p. 22.
[4]  Kien also argues that his trial counsel was ineffective for failing to investigate and present evidence that Shellie made her children lie about several matters unrelated to his trial. For example, Kien points to testimony from H.D., Shellie's daughter, who testified at the post-conviction hearing that approximately fourteen years before, her mother asked her to lie in the course of a custody battle and tell a social worker that Timothy Flock did not live with them. H.D. added that her mother never asked her to lie to anyone else though. In addition, Kien points to testimony from April Powers, Richard Wheeler's sister, who testified at the post-conviction hearing that she observed Shellie ask two of her children, J.D. and H.D., to lie on several occasions when they were much younger. This evidence is even more strained than the evidence of Shellie's vindictiveness in her past romantic relationships and therefore is inadmissible as well.
[5]  "A child under ten years old was formerly presumed to be incompetent to testify, but the statute setting forth the presumption was repealed in 1990." Aldridge v. State, 779 N.E.2d 607, 609 (Ind.Ct.App.2002), trans. denied.
[6]  For example, Kien cites a portion of J.F.'s testimony where she admitted on cross-examination that she was "lying just now when [she] told [defense counsel] [she] couldn't remember" whether Kien "put his pee-pee in [her] private part or just up against it." Appellant's App. p. 197.
[7]  J.D. testified that on the first occasion, he viewed a pornographic magazine depicting homosexual activity. Then, J.D. and C.D. took a bath together, at which point J.D. "put [his] penis between [C.D.'s] legs and rubbed back and forth." P-C Tr. p. 67. The second incident involved J.D.'s request for oral sex from C.D., and the third incident involved activity similar to the first.
[8]  We decline Kien's invitation to apply New Jersey's "lower standard of degree of similarity of offenses . . . [when the] defendant us[es] other-crimes evidence defensively" as opposed to when the State uses such evidence incriminatingly. See Garland, 788 N.E.2d at 430 n. 7. Our Supreme Court has not decided "whether to embrace such an approach," see id., and we leave such a decision for that court.
[9]  Even if the identity exception was satisfied, we conclude that probative value of this evidence is substantially outweighed by not only the danger of unfair prejudice, but also by confusion of the issues and undue delay.


126 Ill. App.3d 897 (1984)
467 N.E.2d 657
MURYL J. JONES, a/k/a Muryl J. Meade, Petitioner-Appellee and Cross-Appellant,
v.
WILLIAM W. MEADE, Respondent-Appellant and Cross-Appellee.
No. 4-83-0719.
Illinois Appellate Court  Fourth District.
Opinion filed August 15, 1984.
*898 John T. Phipps, of John T. Phipps Law Offices, P.C., of Champaign, for *899 appellant.
Raymond R. Kimpel, of Summers, Watson & Kimpel, of Champaign, for appellee.
Judgment affirmed and cause remanded.
JUSTICE TRAPP delivered the opinion of the court:
On September 8, 1982, petitioner filed for a rule to show cause, claiming arrearages of child support payments. Following a hearing and the filing of points and authorities by counsel, the trial judge entered his judgment on May 5, 1983, in behalf of petitioner for arrearages of $16,850 plus interest on the payments in the amount of $11,663.07. Petitioner filed a post-trial motion seeking attorney fees and stating that the court's May 5, 1983, order on the rule to show cause made no finding as to whether respondent's failure to pay child support was without cause or justification. After hearing on August 8, 1983, the court concluded that respondent's failure to pay child support was not without cause or provocation. The trial judge therefore declined to apply section 508(b) of the Illinois Marriage and Dissolution of Marriage Act and treated attorney fees as discretionary under section 508(a). (Ill. Rev. Stat. 1981, ch. 40, pars. 508(a), (b).) On September 28, 1983, the trial court entered its order on petitioner's post-trial motion, finding petitioner's reasonable attorney fees amounted to $1,680 and ordering respondent to pay $1,200 in light of the relative financial circumstances of the parties. Respondent appeals from the judgment of the circuit court of Champaign County. Petitioner cross-appeals. We affirm and remand the cause.
On appeal respondent argues (1) petitioner's claim is barred by equitable estoppel, or (2) by laches; (3) his 1969 petition to modify the divorce decree should be reinstated; (4) the trial court erred in awarding interest on the support arrearage, and (5) in ordering him to pay a portion of petitioner's attorney fees. On cross-appeal, petitioner argues (1) the trial court erred in not awarding her the full amount of her reasonable attorney fees; and (2) that she is entitled to attorney fees for prosecution of this appeal.
The parties' marriage was dissolved on October 16, 1967. Respondent was ordered to pay $250 each month for the support and maintenance of their three minor children. On April 9, 1969, respondent filed a petition to modify the divorce decree and reduce his support obligation. On May 23, 1969, the parties and counsel appeared and stipulated that (1) for three months respondent would pay petitioner $150 per month with liability accruing but sanctions not being enforced, and (2) respondent's petition would be heard during that *900 period. Accordingly, the trial judge entered a temporary order pending a hearing upon the merits of respondent's petition.
Respondent failed to call his petition for a hearing on the merits, but continued paying child support at the rate of $150 per month. He further decreased his monthly support payments by $50 per month as each of the parties' children attained majority. On November 2, 1976, petitioner filed a petition to increase support payments for the remaining minor. On March 15, 1977, a consent decree was entered under which respondent agreed to increase his payments by $50 per month.
Respondent's 1969 petition to modify the divorce decree and reduce child support payments was dismissed on the court's motion for want of prosecution on March 31, 1978. In 1978, the court terminated its March 1977 consent decree, as the youngest child had attained majority.
Testimony of the February 7, 1983, hearing may be summarized as follows. Respondent testified that his 1967 income was $7,581.80. Thereafter his income fell to less than $5,000 in 1968; $4,542 in 1969; $5,178.24 in 1970; and less than $5,000 in 1971. He said these economic reversals led him to file his 1969 petition to modify the divorce decree. After the May 1969 discussion regarding the petition, he understood he was to pay $150 monthly, or $50 per child per month. He said he had not been aware that the court's docket entry indicated that the child support payments would be reduced for a three-month period only. He said immediately after the May 1969 proceeding, sitting on a bench outside the conference room, petitioner had agreed that he could pay $50 per child per month.
On cross-examination, respondent acknowledged his letter to petitioner dated August 20, 1969, mailed from Milan, New Mexico, wherein he stated, "`I'd like to come back to Illinois sometime but you started in last Sunday about seeing your lawyer, so I had nothing to do but leave. * * * If you can ever see your way clear to see your lawyer to get these things settled, I'll be back and keep paying what I can afford.'" Respondent said he had been to court with petitioner so many times that he did not know the dates or why he had been there. He denied that petitioner had tried to collect child support from him, but recalled being in court on one occasion when she had asserted he had not made a payment and he had produced a check.
In 1980, respondent had sold two acres purchased at $20,000 for $58,500. In 1982, he had acquired warehouse rental properties for about $26,000. Respondent owns and operates Meade Sunoco in Urbana, Illinois. In 1981 he had done approximately $287,000 worth of *901 business. His 1981 income tax return showed he had claimed depreciation on $84,370 worth of personal property, tools, and equipment, including five motor vehicles. As this included leased trucks, respondent estimated that he owned about $45,000 worth of the figure depreciated. He owned his home, valued at $30,000, clear of mortgage, and a building on I-74.
In May 1969, petitioner had agreed with respondent and his counsel to reduced child support payments for a period of three months. She testified that in efforts to collect the child support as it became overdue, she had gone to the State's Attorney's offices in Champaign and Montgomery counties, and to the attorney who had represented her in the divorce. She had made no demand on respondent for the money, as there had been no communication between them. Referring to her failure to include a claim for the arrearages in her 1977 action to increase child support for the remaining minor, she said she had had enough trouble getting money from respondent month to month.
The trial court's order on the rule to show cause, filed May 5, 1983, found as follows:
"By consent decree entered in * * * Case No. 77-L-168, on March 23, 1977, the defendant was ordered to pay $50 twice monthly for [the minor's] support, with that decree expressly stating that its entry would `not supercede any previous order issued by any other court, but the amounts for a particular period paid pursuant to such previous order shall be credited against amounts accruing or accrued for the same period under both.' * * *
The evidence fails to establish that the Court ever modified the original order providing for $250 per month in child support on an unallocated basis. Moreover, the Court is persuaded that the plaintiff did not agree to reduce the defendant's support obligation at any time. The record affirmatively supports the conclusion that the most that the plaintiff agreed to do was to suspend enforcement for a limited period and to [permit] an arrearage in support to accumulate during this period. It is now entirely self-serving for the defendant to claim that any other agreement existed. He clearly knew how to petition the Court for a reduction, initiating such a proceeding but failing to pursue it. He cannot now claim that the plaintiff is barred by waiver, estoppel or laches from collecting past due child support. It would more likely be true that the defendant is guilty of laches for sitting on his right to seek a court order reducing his support obligation. The Court is without authority to retroactively *902 modify child support and the defendant may not unilaterally reduce unallocated child support as each child reaches majority. In re Bjorklund, 88 Ill. App.3d 576 (1980).
* * *
The evidence fails to establish that the defendant is in willful and contumacious contempt of Court for his failure to make support payments.
The affirmative defenses raised by the defendant find insufficient support in the evidence. * * *"
Respondent argues on appeal that his filing of a petition to modify the divorce decree and reduce his payments in 1969 makes this a special case. He maintains petitioner's claim is barred by the doctrines of equitable estoppel and laches because he believed she had agreed to a permanent reduction in child support payments and was lulled into inaction on his petition to modify the divorce decree by her silence. He claims that petitioner had no vested right to any support payments accruing after the filing of his petition to modify the decree. He further contends that the court's award would result in a large windfall to petitioner since the children have all reached the age of majority. We disagree.
 1 First, the trial judge clearly found that petitioner did not agree to reduce respondent's support obligation. Second, respondent's petition to modify the divorce decree, filed some 14 years ago and dismissed 9 years later, is now a nullity and cannot be revived. Respondent's request to reinstate his petition to modify the divorce decree was presented in his discussion of estoppel as an affirmative defense in response to the amended petition for rule to show cause. Such a request should be made by petition for relief in compliance with section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1401).
 2 We agree with the trial judge that respondent cannot interpose the results of his own inaction to bar petitioner's claim. Past due installments of child support are a vested right, and the court has no authority to modify them either as to amount or time of payment. See Wilson v. Wilson (1970), 122 Ill. App.2d 142, 257 N.E.2d 810; Hurt v. Hurt (1953), 351 Ill. App. 427, 431, 115 N.E.2d 638, 640, and cases cited therein.
In order for the doctrine of equitable estoppel to apply, the six elements must be present: (1) Words or conduct by the party against whom the estoppel is alleged constituting either a misrepresentation or concealment of material facts; (2) knowledge on the part of the party against whom the estoppel is alleged that representations made *903 were untrue; (3) the party claiming the benefit of an estoppel must have not known the representations to be false either at the time they were made or at the time they were acted upon; (4) the party estopped must either intend or expect that his conduct or representations will be acted upon by the party asserting the estoppel; (5) the party seeking the benefit of the estoppel must have relied or acted upon the representations; and (6) the party claiming the benefit of the estoppel must be in a position of prejudice if the party against whom the estoppel is alleged is permitted to deny the truth of the representations made. (Stewart v. O'Bryan (1977), 50 Ill. App.3d 108, 110, 365 N.E.2d 1019, 1020-21.) The defense of laches is dependent upon the facts of each case and has been defined as such neglect or omission to assert a right, taken in conjunction with a lapse of time and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity. A defendant must show prejudice or hardship and must be injured by the delay for the defense of laches to apply. Fruhling v. County of Champaign (1981), 95 Ill. App.3d 409, 416, 420 N.E.2d 1066, 1070; DeBryan v. Elrod (1981), 84 Ill.2d 128, 136, 418 N.E.2d 413, 417.
 3 As the trial court found petitioner did not agree to a permanent reduction in child support, the doctrine of equitable estoppel does not apply. Silence on the part of the custodial spouse, in the face of unilateral reduction in child support payments by a spouse, does not itself create an equitable estoppel. (Ellingwood v. Ellingwood (1975), 25 Ill. App.3d 587, 323 N.E.2d 571 (petitioner alleged arrearages over 22 years).) Rather, respondent's failure to comply with the provisions of the support decree was because he believed he was no longer liable for the amount specified in the decree and could therefore unilaterally reduce the payment. His erroneous belief does not bar petitioner's recovery. Finley v Finley (1980), 81 Ill.2d 317, 410 N.E.2d 12.
 4 The same rationale may be applied to respondent's assertion that laches bars petitioner's recovery. Laches is an equitable doctrine to be invoked or rejected in the trial court's discretion. The trial court in this case specifically found that the evidence was insufficient to establish laches. We agree. A spouse is not injured because he is forced to pay the accumulated support in one lump sum as opposed to weekly payments as ordered. (Finley v. Finley (1980), 81 Ill.2d 317, 410 N.E.2d 12.) He asserts as prejudice that he is unable to locate his income tax returns for 1968 and 1971 and certain business records from 1971 and 1972. As he elected to forego prosecution of his petition to modify the decree, the absence of such records cannot now be *904 relied upon to prove prejudice.
 5 Respondent cites as persuasive Royster v. Royster (1949), 339 Ill. App. 250, 89 N.E.2d 279 (abstract of opinion). This is an abstract decision, and the full opinion was not appended to respondent's brief in violation of Uniform Appellate Rule 8. (Ill. Rev. Stat. 1981, ch. 110A, par. 908.) We therefore refuse to consider it.
 6 Respondent maintains he should be allowed to reinstate his petition to modify the divorce decree. He asserts that the trial court abused its discretion and was mistaken as to the applicable law in this regard. We note that respondent's failure to pursue his petition has removed him from the scope of In re Marriage of McDavid (1981), 97 Ill. App.3d 1044, 425 N.E.2d 442, wherein it was held that the trial court has discretion to modify a support order retroactive to the date the petition for modification had been filed. It has been held that the trial court has no jurisdiction to vacate an order of dismissal for want of prosecution more than three years after its entry or to reinstate the cause. Watts v. Medusa Portland Cement Co. (1971), 132 Ill. App.2d 227, 268 N.E.2d 721; Grice v. Grice (1940), 304 Ill. App. 584, 26 N.E.2d 747 (abstract of opinion); Andonoplas v. Jaremko (1972), 9 Ill. App.3d 298, 292 N.E.2d 225.
 7 Respondent next argues that the trial court abused its discretion in awarding interest on the past-due periodic support payments. The allowance of interest on such support payments lies within the sound discretion of the trial judge, whose determination will not be set aside absent an abuse of that discretion. (Finley v. Finley (1980), 81 Ill.2d 317, 410 N.E.2d 12.) Respondent asserts that the trial judge "appears to have assumed that interest should be awarded in all cases of child support arrearages." The court's order simply states, "the accrued child support arrearage totals $16,850 in unpaid payments plus accumulated simple interest at the statutory rate applicable when each payment became due." No erroneous assumption is apparent to us in this ruling. We presume the trial judge knew the law. We cannot say that the allowance of interest constituted an abuse of discretion. As in Finley, for many years petitioner was deprived of money for child support which was rightfully hers and, for that same length of time, respondent enjoyed the use of this money.
 8 By cross-appeal, petitioner contends that section 508(b) of the Act controls and a full award of attorney fees should be required. By its order of September 28, 1983, upon petitioner's motion for attorney fees, the trial court rejected the finding required by section 508(b). Accordingly, an award of fees is not mandatory, but discretionary. Sostak v. Sostak (1983), 113 Ill. App.3d 954, 447 N.E.2d 1345.
*905  9 Respondent urges that the trial court abused its discretion in requiring that he pay $1,200 towards petitioner's reasonable attorney fees. The trial court's finding was that petitioner's income and assets were virtually nil while those of respondent were substantial. The test of discretion in the awarding of attorney fees is the ability of the petitioning spouse to pay, together with consideration of the circumstances requiring judicial proceedings. Coons v. Wilder (1981), 93 Ill. App.3d 127, 416 N.E.2d 785.
Although a hearing was conducted and evidence taken on this matter on August 8, 1983, neither party has supplemented the record on appeal with a transcript of that proceeding or a bystander's report prepared in compliance with Supreme Court Rule 323 (87 Ill.2d R. 323). We conclude that the trial judge was aware of the factors to be considered and made his determination based on the totality of the circumstances. We therefore decline to disturb the exercise of his discretion.
We remand petitioner's request for attorney fees in prosecution of this appeal to the trial court so that evidence may be taken and a ruling obtained thereon. In re Marriage of Legge (1982), 111 Ill. App.3d 198, 443 N.E.2d 1089.
Affirmed, and cause remanded for proceedings consistent with this opinion.
MILLS, P.J., and WEBBER, J., concur.


471 U.S. 1072
105 S.Ct. 2151
85 L.Ed.2d 507
INTERSTATE COMMERCE COMMISSIONv.COAL EXPORTERS ASSOCIATION OF THE UNITED  STATES, INC., et al
No. 84-884

NORFOLK AND WESTERN RAILWAY COMPANY et al.
v.
COAL EXPORTERS ASSOCIATION OF THE UNITED
STATES, INC., et al
No. 84-885
Supreme Court of the United States
April 29, 1985
On petitions for writs of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
The petitions for writs of certiorari are denied.
Justice WHITE, with whom Justice REHNQUIST joins, dissenting.

1
Like ICC v. Brae Corp. and Consolidated Rail Corp. v. Ahnapee & W.R. Co., 471 U.S. 1069, 105 S.Ct. 2149, 85 L.Ed.2d 505 these cases involve implementation of the Staggers Rail Act of 1980, 49 U.S.C. § 10101 et seq.  That Act begins with a 15-point National Rail Transportation Policy with a decidedly antiregulatory bent. § 10101a.  It goes on to provide that the Interstate Commerce Commission (ICC) "shall exempt a person, class of persons, or a transaction or service" from any regulation that is not necessary to carry out the policies detailed in § 10101a or to "protect shippers from the abuse of market power."  § 10505(a).

2
Pursuant to this provision, the ICC exempted the rail transportation of coal bound for export from all regulation under the Interstate Commerce Act.   Railroad Exemption-Export Coal, 367 I.C.C. 570 (1983).  In the view of the Commission, relief from regulation would lead to improved efficiency, stronger railroads, and greater pricing flexibility.  The resulting benefits would promote a variety of goals set out in § 10101a.  In addition, continued regulation was not needed to protect against abuse of market power by the railroads.  They had an interest in the shippers' success, and the competitive international coal market would prevent them from raising prices so high that producers would not be competitive abroad.  In addition, as experience had shown, the shippers formed a concentrated industry with bargaining power essentially equal to that of the railroads.  The Commission also noted that antitrust remedies were available should the railroads abuse what market power they had, and that the railroads were unlikely to do so even if they could because the Commission would respond by revoking the exemption.

3
The Court of Appeals for the District of Columbia Circuit vacated and remanded.  Coal Exporters Assn. of United States v. United States, 240 U.S.App.D.C. 256, 745 F.2d 76 (1984).  It found that the Commission had overlooked a key element of National Transportation Policy:  "to maintain reasonable rates where there is an absence of effective competition and where rail rates provide revenues which exceed the amount necessary to maintain the rail system and to attract capital."  49 U.S.C. § 10101a(6). Reading this provision in tandem with § 10505's requirement that an exemption not subject shippers to "the abuse of market power," the court held that the Commission had too narrow an understanding of the latter phrase.  As it read the Commission's opinion, there would be no abuse of market power as long as the shippers had some bargaining power, however minimal, and received some share of the economic rents, however slight.  The court condemned this view as "wholly unreasonable," 240 U.S.App.D.C., at 275, 745 F.2d, at 95, and indifferent to the Act's concern for protecting the revenues of shippers, id., 278, 745 F.2d, at 98.

4
The railroads and the ICC, supported by the United States, petition for certiorari.  They argue that the decision below effectively forecloses any use of the exemption provision.  While this seems an overstatement, the opinion below does criticize the ICC for failing to quantify its conclusions with a precision that would appear unattainable.  Moreover, the Court of Appeals involved itself in details of regulatory decisionmaking that might more properly be left to the agency.  Precisely where hard bargaining leaves off and "abuse of market power" begins is the sort of issue best left to the agency's expertise, and the Court of Appeals' identification of abuse with any inequality is open to question.

5
More important, the decision below is set against the background of a fundamental clash between the Court of Appeals and the ICC concerning the deregulatory mandate of the Staggers Act. See ICC v. Brae Corp., 471 U.S., at 1069, 105 S.Ct. at 2150.  The exemption provision is the key mechanism by which that mandate is to be effected, and the Commission has had some difficulty in getting its exemptions past the Court of Appeals.  As I noted in dissenting from the Court's refusal to consider the Brae case, the effective implementation of the Staggers Act requires that the scope of the exemption requirement be settled.

6
I respectfully dissent.

7
Justice O'CONNOR took no part in the consideration or decision of these petitions.