Marriage of McHenry, In re

• Decision Date: 30 September 1997
• Docket Number: No. 1-95-4019,1-95-4019
• Citation: 686 N.E.2d 670,226 Ill.Dec. 887,292 Ill.App.3d 634
• Parties: , 226 Ill.Dec. 887 In re MARRIAGE OF Paul M. McHENRY, Petitioner and Counterrespondent-Appellant, and Patricia A. McHenry, Respondent and Counterpetitioner-Appellee.
• Court: United States Appellate Court of Illinois

Page 670

686 N.E.2d 670

292 Ill.App.3d 634, 226 Ill.Dec. 887

In re MARRIAGE OF Paul M. McHENRY, Petitioner and Counterrespondent-Appellant and Patricia A. McHenry, Respondent and Counterpetitioner-Appellee.

No. 1-95-4019.

Appellate Court of Illinois First District, Third Division.

Sept. 30, 1997.

Rehearing Denied Oct. 29, 1997.

Edward A. Berman, P.C., Chicago (Edward A. Berman and Nina H. Rahmloff, of counsel), for Petitioner and Counterrespondent-Appellant.

Linda S. Kagan, Chicago (Mary C. Thompson, Homewood, of counsel), for Respondent and Counterpetitioner-Appellee.

Presiding Justice COUSINS delivered the opinion of the court:

Petitioner, Paul M. McHenry, appeals from a supplemental judgment for dissolution of marriage entered on June 29, 1995, involving the distribution of marital and nonmarital property. On appeal, petitioner seeks reversal and remand for a new trial, arguing that the trial court failed to create an equitable distribution by: (1) awarding respondent the more profitable of two businesses without regard to their respective values and based solely on each party's respective contributions to the businesses; (2) avoiding the issue of dissipation of marital property; (3) failing to take into account petitioner's economic circumstances, age, health, needs, future income prospects, and prior financial obligations; (4) failing to take into account the relative credibility of the parties in weighing their testimony; and (5) awarding attorney fees outside the parties' presence and without a hearing.

BACKGROUND

Petitioner, Paul M. McHenry, appeals from the supplemental judgment for dissolution of marriage entered on June 29, 1995, which divided the nonmarital and marital property of petitioner and respondent, Patricia A. McHenry. Petitioner and respondent were married in 1979, at which time petitioner owned a sole proprietorship accounting practice, and respondent was employed as the comptroller of a potato company. During the marriage, the parties acquired three businesses and three parcels of real property: Telecom Answering Service (Telecom); McHenry and McHenry, Ltd. (McHenry and McHenry), an accounting firm formed by both parties; Martin Welding Machine Rental and Repair (Martin Welding), a machine rental business located in Hammond, Indiana; the real estate occupied by Martin Welding; rental property in Homewood, Illinois, consisting of 13 residential and commercial units; and a marital residence in Olympia Fields, Illinois. In addition, the parties acquired a membership in the Olympia Fields Country Club. Also, upon separation in 1991, the parties sold their accounting business, McHenry and McHenry, to a third party under a five-year buyout agreement.

After extensive evidence was presented by both parties, the trial court distributed the assets in the following manner. Respondent was awarded Telecom, half of the net proceeds from the sale of the marital residence, half of the net proceeds from the sale of the Homewood real estate, half of the net rental income remaining from the Homewood property, and all accounts held solely in respondent's name. Petitioner was awarded Martin Welding, the real property upon which Martin Welding was located, any and all past and future proceeds from the sale of McHenry and McHenry, any and all interest in the Olympia Fields Country Club, half of the net proceeds from the sale of the marital residence, half of the net proceeds from the sale of the Homewood real estate, half of the net rental income remaining from the Homewood property, and all accounts held solely in petitioner's name.

On appeal, petitioner argues on several grounds that the above distribution was inequitable.

We affirm.

OPINION

I

Petitioner first contends that an inequitable distribution of marital assets resulted from the trial court's failure to make determinations as to the value of the two principal, ongoing business assets, Telecom and Martin Welding. At trial, both parties presented voluminous evidence regarding the value of the marital assets. The parties' expert witnesses, however, disagreed as to the value of Telecom and Martin Welding.

Petitioner's expert valued Telecom at $590,000, while respondent's expert concluded that it was worth $440,000. Petitioner argues that respondent's expert undervalued Telecom by including an unusually low revenue period in his evaluation. Contrarily, respondent argues that petitioner's expert exaggerated Telecom's value by factoring in an unusually low chief executive officer salary.

The experts also disagreed as to the value of the McHenrys' less successful business, Martin Welding. Petitioner's expert concluded that this business was worth $292,000, while respondent's expert valued it at $410,000. Once again, both experts disagreed on several factors, including the owner's compensation. In addition, petitioner's expert opined that the fair market value of the land upon which Martin Welding was located was $100,000. Respondent's expert valued the property closer to $175,000. Petitioner, however, argues that, due to a strong possibility that the property contains environmental contamination, its value may be little or nothing. Respondent claims that petitioner's argument is wholly speculative and unsupported by any evidence of contamination.

At trial, the court made no determination as to the current market value of Telecom or Martin Welding and its property before making its distribution. The court did note, however, that in awarding Telecom to respondent and Martin Welding to petitioner, it considered "the relative contribution [sic ] of the parties to the respective assets over the rather long life of [their] relationship." Petitioner claims that the absence of such valuations constitutes reversible error. We disagree.

This court has established in a long line of cases that section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/101 et seq. (West 1996)) does not require the court to place a specific value on each marital asset in considering the value of property to be set aside to each spouse. See In re Marriage of Brown, 241 Ill.App.3d 305, 308, 181 Ill.Dec. 716, 608 N.E.2d 967 (1993); In re Marriage of Hagshenas, 234 Ill.App.3d 178, 200, 175 Ill.Dec. 506, 600 N.E.2d 437 (1992); In re Marriage of Frederick, 218 Ill.App.3d 533, 544, 161 Ill.Dec. 254, 578 N.E.2d 612 (1991); In re Marriage of Courtright, 155 Ill.App.3d 55, 59, 107 Ill.Dec. 738, 507 N.E.2d 891 (1987); In re Marriage of Randall, 157 Ill.App.3d 892, 896-97, 110 Ill.Dec. 122, 510 N.E.2d 1153 (1987); In re Marriage of Hyland, 95 Ill.App.3d 31, 37, 50 Ill.Dec. 554, 419 N.E.2d 662 (1981). The Act only requires the court to consider the value of the property apportioned to each spouse and that there be sufficient evidence of value in the record to allow review of the trial court's distribution. See Brown, 241 Ill.App.3d at 308, 181 Ill.Dec. 716, 608 N.E.2d 967; Hagshenas, 234 Ill.App.3d at 200, 175 Ill.Dec. 506, 600 N.E.2d 437; Courtright, 155 Ill.App.3d at 59, 107 Ill.Dec. 738, 507 N.E.2d 891; Randall, 157 Ill.App.3d at 896, 110 Ill.Dec. 122, 510 N.E.2d 1153; In re Marriage of Woolsey, 85 Ill.App.3d 636, 637, 40 Ill.Dec. 775, 406 N.E.2d 1142 (1980).

Petitioner relies upon In re Marriage of Boone, 86 Ill.App.3d 250, 252, 41 Ill.Dec. 750, 408 N.E.2d 96 (1980), for the proposition that trial courts must make valuations of the parties' primary marital assets, including businesses. In Boone, however, this court based its holding upon the fact that there was no proper evidence in the record of the value of the property in question. Boone, 86 Ill.App.3d at 251, 41 Ill.Dec. 750, 408 N.E.2d 96. Likewise, in In re Marriage of Leon, 80 Ill.App.3d 383, 385-86, 35 Ill.Dec. 717, 399 N.E.2d 1006 (1980), this court reversed a division of marital property based on the trial court's failure to find the value of the husband's insurance business, since there was insufficient evidence adduced at trial to support any distribution of that asset. See also In re Marriage of Olsher, 78 Ill.App.3d 627, 34 Ill.Dec. 32, 397 N.E.2d 488 (1979) (finding that, in the absence of evidence of value, the trial court's division of property was an abuse of discretion).

In the cases upon which petitioner relies, the reviewing courts determined that the trial courts lacked proper or adequate evidence to make certain distributions. These cases are distinguishable from the case sub judice. Here, as petitioner admits, both parties presented vast amounts of evidence of value upon which the trial court could have based its disposition. This is not a case, therefore, in which there is a lack of competent evidence in the record to permit review by this court.

In cases involving the distribution of marital property, the appellate court will reverse only upon a finding that the lower court abused its discretion. In re Marriage of Kerber, 215 Ill.App.3d 248, 254, 158 Ill.Dec. 717, 574 N.E.2d 830 (1991). In the case at bar, we do not find that the trial court abused its discretion, where it had ample evidence upon which it could have based its distribution, and no specific valuation of marital assets was mandated.

II

Petitioner also argues that the court failed to take into account the parties' contributions to the marriage as a whole, as opposed to each asset. Although the parties presented conflicting testimony regarding their contributions to Telecom and Martin Welding, it appears that petitioner made much greater contributions to Martin Welding as compared to Telecom, and that respondent made considerably larger contributions to Telecom as compared to Martin Welding. The trial court considered these contributions in awarding Telecom to respondent and Martin Welding to petitioner. Petitioner, however, claims that the trial court erred in considering the parties' relative contributions to these assets and by ignoring the parties' respective contributions to the marriage...