In re: Marriage of Alexander ( 2006 )

NOTICE NO. 5-05-0109
Decision filed 09/07/06. The text of
this decision may be changed or IN THE
corrected prior to the filing of a
Petition for Rehearing or the APPELLATE COURT OF ILLINOIS
disposition of the same.
FIFTH DISTRICT
___________________________________________________________________
_____
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
JAMES O. ALEXANDER, ) Saline County.
)
Plaintiff-Appellant, )
)
and ) No. 01-D-207
)
VALERY M. ALEXANDER, Honorable )
Brocton Lockwood, )
Respondent-Appellee. ) Judge, presiding.
___________________________________________________________________
_____
JUSTICE WELCH delivered the opinion of the court:
The petitioner, James O. Alexander, appeals a judgment of dissolution
entered by the circuit court of Saline County dissolving his marriage to the
respondent, Valery M. Alexander. On appeal, James raises the following six issues:
(1) whether the circuit court erred in admitting David Wood's testimony regarding the
value of enterprise goodwill in James's medical practice, (2) whether the circuit court
erred in its valuation of James's medical practice, (3) whether the circuit court's
award of interim attorney fees to Valery violated section 501(c-1) of the Illinois
Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/501(c-1) (West 2002)),
(4) whether the circuit court erred in its final award of attorney fees, (5) whether the
circuit court erred in its valuation of James's Vanguard accounts, and (6) whether the
circuit court erred in its award of child support. For the reasons that follow, we affirm
the judgment of the circuit court.
1
The parties in this case were married on August 10, 1985. Three children
were born to the marriage: Logan, born October 2, 1988, Ethan, born May 22, 1992,
and Megan, born December 28, 1993. The parties separated in July 1999. On
November 6, 2001, James filed a petition to dissolve the marriage. A dissolution
hearing was conducted over several days between July 20, 2004, and December 20,
2004.
The evidence presented at the dissolution hearing revealed that James
graduated from medical school in 1988. In 1997, he opened his own medical
practice as a family practitioner. At the time of the dissolution, James had offices in
Harrisburg and Marion and employed two physician assistants. According to his
2003 tax return, the practice grossed approximately $950,000, of which James
reported his gross business income at $201,841. His 2002 tax return reported that
his practice grossed approximately $842,000, of which James reported his personal
gross business income at $325,416.
While James pursued his medical career, Valery concentrated her efforts on
raising the children. As the children got older, Valery began working full-time as a
teacher in the Harrisburg school district. According to her 2003 tax return, her
annual income was $33,527.
The bulk of the evidence presented at the dissolution hearing pertained to the
value of James's medical practice. This evidence, along with other evidence
presented during the hearing, will be set forth in greater detail where relevant in this
disposition. For now, it is sufficient to note that the circuit court valued James's
medical practice at $379,473, of which $160,000 consisted of enterprise goodwill.
In its judgment order, the circuit court found that the total value of the parties'
marital property was approximately $1 million, including the value of James's
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medical practice. The circuit court divided the marital property equally. In addition,
the circuit court found that James had an annual pretax income of $350,000, and the
court awarded Valery monthly maintenance in the amount of $2,000, ordered James
to pay monthly child support in the amount of $5,333, and ordered James to pay
$25,000 of Valery's attorney fees. James appeals this order.
The first issue raised by James on appeal is whether the circuit court erred in
admitting David Wood's expert testimony pertaining to the value of enterprise
goodwill in James's medical practice. In its order, the circuit court noted the
extremely "different evaluations" that each party had placed on the value of James's
medical practice. The circuit court noted that James claimed that the practice was
worth $20,000 and that Valery claimed that the practice was worth $581,000. This
first issue raised by James strictly pertains to the value of enterprise and personal
goodwill in the practice.
At the dissolution hearing, Wood testified that, in his opinion, James's medical
practice had a total goodwill value of $350,000, of which $245,000 consisted of
enterprise goodwill and $105,000 consisted of personal goodwill. In reaching his
conclusion, Wood testified that he utilized an approach called the multiattribute utility
theory. On appeal James argues, as he did before the circuit court, that Wood's
testimony pertaining to the value of enterprise and personal goodwill should not have
been admitted because the multiattribute utility theory used by Wood to form his
opinion is a novel scientific methodology that is not generally accepted in the
relevant scientific community. Accordingly, James argues that Wood's opinion on
the amount of the total goodwill that constituted enterprise goodwill was inadmissible
under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
After considering James's arguments, the circuit court specifically found, "Mr.
3
Wood's approach, though not scientific, was thoughtful and persuasive." Although
the circuit court admitted Wood's testimony, it rejected Wood's proposed total
goodwill figure of $350,000 and found that James's medical practice had a total
goodwill value of $240,000. The circuit court then employed Wood's opinion to the
extent that Wood suggested that approximately two-thirds of the total goodwill in the
practice consisted of enterprise goodwill. The circuit court then found that $160,000
of the total value of goodwill in James's medical practice constituted enterprise
goodwill. Before examining whether Wood's testimony was properly admitted, we
briefly examine the importance of distinguishing enterprise goodwill from personal
goodwill for purposes of a dissolution proceeding.
Goodwill represents the ability to acquire future income and has been defined
as " ' " 'the value of a business or practice that exceeds the combined value of the
physical assets.' " ' " In re Marriage of Schneider, 214 Ill. 2d 152, 166 (2005)
(quoting In re Marriage of Talty, 166 Ill. 2d 232, 238 (1995) (quoting In re Marriage of
White, 151 Ill. App. 3d 778, 780 (1986) (quoting 2 Valuation & Distribution of Marital
Property '23.04(1) (Matthew Bender ed. 1984)))). Goodwill may be categorized as
enterprise or personal. Enterprise goodwill is that which exists independently of
one's personal efforts and will outlast one's involvement with the business. In re
Marriage of Talty, 166 Ill. 2d at 240. Personal goodwill is that which is attributed to
one's personal efforts and will cease when that person is no longer involved in the
business. In re Marriage of Talty, 166 Ill. 2d at 240. Enterprise goodwill is
considered a marital asset for the purposes of the just division of marital property.
Personal goodwill is not considered a marital asset for the purposes of the just
division of marital property. The supreme court observed that because other factors
under section 503(d) of the Act (750 ILCS 5/503(d) (West 2004)) (the section of the
4
Act that sets forth factors that the circuit court is to consider when making a just
division of marital property) already reflect elements that constitute personal
goodwill, to consider personal goodwill in addition to these other factors would result
in an impermissible double-counting. In re Marriage of Talty, 166 Ill. 2d at 240. In
sum, for purposes of a dissolution proceeding, enterprise goodwill is to be treated as
a marital asset and personal goodwill is not. We now turn to the admissibility of
Wood's opinion.
On appeal, James does not challenge Wood's qualifications as an expert.
James also does not contend that Wood's testimony would not aid the trier of fact in
understanding the evidence. See In re Marriage of Jawad, 326 Ill. App. 3d 141, 152
(2001) (expert testimony is generally admissible if the testimony aids the trier of fact
in understanding the evidence before it). James's argument is simply that Wood's
methodology, the multiattribute utility theory, which Wood used to determine that
approximately two-thirds of the total goodwill in James's medical practice consists of
enterprise goodwill, is a novel scientific methodology not accepted by the relevant
scientific community and that therefore his opinion derived from this methodology is
inadmissible under Frye.
Illinois has adopted the Frye standard for use when courts are faced with a
question of the admissibility of novel scientific evidence. People v. Basler, 193 Ill. 2d
545 (2000). The Frye test is also known as the general-acceptance test. Agnew v.
Shaw, 355 Ill. App. 3d 981, 988 (2005). The test is conducted to determine whether
novel scientific evidence sought to be admitted by a party has gained general
acceptance in the particular field to which it belongs. Agnew, 355 Ill. App. 3d at 988.
Because scientific evidence generally carries with it a heightened degree of
reliability, a Frye hearing is conducted to weed out unreliable evidence that may fall
5
under the guise of scientific evidence. If the novel scientific evidence has gained
general acceptance in the particular field to which it belongs, then the evidence is
presumed reliable and will be deemed admissible under Frye. Agnew, 355 Ill. App.
3d at 988. By subjecting novel scientific evidence to the general-acceptance test,
the risk of relying on invalid evidence is reduced. Donaldson v. Central Illinois Public
Service Co., 199 Ill. 2d 63, 78 (2002), overruled on other grounds by In re
Commitment of Simons, 213 Ill. 2d 523 (2004).
It is important to remember that the Frye test only applies to evidence that is
both novel and scientific. In re K.T., 361 Ill. App. 3d 187, 202 (2005). If an expert's
opinion is not novel or scientific, it is not subject to the Frye test but still remains
subject to the general admissibility test applied to all expert testimony. In re
Commitment of Field, 349 Ill. App. 3d 830, 831 (2004); In re Marriage of Jawad, 326
Ill. App. 3d at 154. Unfortunately, there is no clear line that distinguishes scientific
evidence from nonscientific evidence. However, the appellate court has noted that
when a court examines whether evidence is scientific, the focus is to be on the
methodology employed by the expert in reaching his or her conclusion and not on
the conclusion itself. Agnew, 355 Ill. App. 3d at 989. The court is to focus on how
the expert reached his or her conclusion and not on what the conclusion is. Harris v.
Cropmate Co., 302 Ill. App. 3d 364, 371 (1999).
If an expert's opinion is derived solely from his or her observations and
experiences, the opinion is generally not considered scientific evidence. In re
Marriage of Jawad, 326 Ill. App. 3d at 153-54. On the other hand, if the expert's
opinion is derived from a particular scientific methodology, such as the application of
scientific principles or the use of other literature or studies, then the opinion is
generally considered scientific. In re Marriage of Jawad, 326 Ill. App. 3d at 153-54.
6
Again, the line that separates scientific evidence from nonscientific evidence is not
always clear. Harris, 302 Ill. App. 3d at 371.
In Harris, 1 the appellate court was faced with the question of whether the
opinions of three expert witnesses constituted scientific evidence. These witnesses
testified that the herbicide 2,4-D had caused damage to the plaintiffs' crops. Harris,
302 Ill. App. 3d at 371. One expert was a seed sales agent with several years of
experience applying 2,4-D. Another expert was an extension specialist and a
doctoral student in weed science who had read literature and conducted field
research on the effects of 2,4-D. The third expert was a research biologist who had
become acquainted during the course of his work as an extension specialist with the
effects of phenoxy-type herbicides, including 2,4-D, on cucurbits. Harris, 302 Ill.
App. 3d at 371.
In concluding that the opinions of these three experts did not constitute
scientific evidence, the appellate court noted that although botany and chemistry
were undisputedly implicated in the testimony of these witnesses, none of the
witnesses relied on some particular scientific principle or methodology in determining
whether 2,4-D had caused damage to the plaintiffs' crops. Harris, 302 Ill. App. 3d at
371. Instead, the court found that the witnesses derived their opinion from their
1
We acknowledge that the appellate court's decision in Harris has been
abrogated by the supreme court's decision in Donaldson v. Central Illinois Public
Service Co., 199 Ill. 2d 63 (2002). In Harris, the appellate court applied the "Frye
plus-reliability" standard, and the supreme court clarified that is not the standard
used in Illinois. Donaldson, 199 Ill. 2d at 80-81. However, we believe that Harris is
still helpful for its analysis of what constitutes scientific evidence.
7
generalized knowledge of agriculture, their firsthand experience with and
observations of the effects of 2,4-D on cucurbits, and the type of deductive process
that is common to everyone. Harris, 302 Ill. App. 3d at 371. Accordingly, because
the expert opinions were derived from their observations and experience as opposed
to the application of scientific principles, the appellate court in Harris concluded that
the evidence tendered was not scientific.
In the instant case, Wood testified that in reaching his conclusion on what
portion of the total goodwill in James's medical practice constituted enterprise
goodwill and what portion constituted personal goodwill, he employed the
multiattribute utility theory. 2 Wood testified that he believed he was the first to use
this approach in reaching his conclusion. Wood also testified that his approach was
scientific. According to Wood, the multiattribute utility theory works as follows.
First, the valuator (Wood in this case) sets forth an objective. In the instant
case, the objective set forth by Wood was to form a conclusion on the value of the
elements of total goodwill in James's medical practice that represent personal
goodwill and enterprise goodwill.
Next, the valuator establishes "alternatives." An alternative is a "range of
percentages" that will define the choices "in which the method will result." Wood
2
Although Wood and others interchange the terms "professional goodwill" and
"personal goodwill," we shall use the term "personal goodwill" throughout to maintain
consistency.
8
chose five alternatives but acknowledged that there is no set rule for the number of
alternatives that a valuator must choose.
Each alternative is then assigned a "range." Wood assigned a range of 20%
for each alternative. To illustrate, Wood created a graph containing five rows and
two columns. The rows were labeled "alternative 1" to "alternative 5," and the two
columns were labeled "[personal] goodwill" and "enterprise goodwill." Where the
rows and columns intersect, Wood inserted the range. For example, where personal
goodwill and row 1 intersect, Wood inserted a range of "0 to 20 percent." Where
enterprise goodwill and row 1 intersect, Wood inserted a range of "80 to 100
percent." Where personal goodwill and row 2 intersect, Wood inserted a range of
"20 to 40 percent." Where enterprise goodwill and row 2 intersect, Wood inserted a
range of "60 to 80 percent." This continued to row 5, where the range for personal
goodwill was "80 to 100 percent" and the range for enterprise goodwill was "0 to 20
percent."
After the objective and the alternatives are set, the valuator must then define
the "attributes." An attribute is an element of goodwill to which the valuator must
assign a value. Examples of attributes are personal reputation and business
location. Attributes are categorized as either personal or enterprise. Wood does not
contend that there are universal attributes that must be defined in every situation.
Wood also does not contend that there is a set number of attributes that must be
defined. Instead, Wood leaves the creation and categorization of attributes to the
discretion of the valuator.
In the instant case, Wood created the following personal attributes: (1) lacks
transferability, (2) specialized knowledge, (3) personalized name, (4) inbound
referrals, (5) personal reputation, (6) personal staff, (7) age, health, and work habits,
9
and (8) knowledge of end user. Wood created the following enterprise attributes: (1)
number of offices, (2) business location, (3) multiple service providers, (4) enterprise
staff, (5) systems, (6) years in business, (7) outbound referrals, and (8) marketing.
Wood acknowledged that the attributes could be described as "opposite sides of the
same coin" and testified that "if one valuator placed an attribute into the [personal]
category and another valuator [placed the same attribute] into the enterprise
category, the model would correct for this during the measuring process."
After defining the attributes, the valuator is then to assign a value to each
attribute. This involves a two-step process. First, the valuator assigns a value
known as an attribute's "utility of importance." The utility of importance is a value
placed on an attribute based on how important the valuator feels the attribute is to
the value of goodwill. The value assigned is taken from a range created by the
valuator. Wood created a utility-of-importance range of 1 to 5, with 5 being most
important and 1 being least important. Wood then assigned a utility-of-importance
value to each attribute he defined.
Next, the valuator assigns a value known as an attribute's "utility of existence."
The utility of existence is a value placed on an attribute based on the valuator's
determination of the presence of that attribute in the business that the valuator is
analyzing. The value is also taken from a range created by the valuator. Wood
created a range of 0 to 4, assigning 0 to an attribute that has a weak presence and 4
to an attribute that has a strong presence. The values that Wood assigns to the
utility of importance and the utility of existence are derived solely from his subjective
opinion.
After assigning each attribute two values (a utility-of-importance value and a
utility-of-existence value), the valuator then "aggregates the results." Aggregating
10
the results simply involves multiplying the values assigned to an attribute to come up
with a final value for that attribute. For example, in the instant case, for the personal-
reputation attribute Wood assigned a utility-of-importance value of 5 and a utility-of-
existence value of 3, to give it a final value, or "multiplicative utility" as Wood calls it,
of 15. Once each attribute has a final value, the valuator then takes the sum of the
final values for each attribute from its assigned category (personal or enterprise) and
derives a "total multiplicative utility" for that category. Wood calls the total value for
the personal attributes the "total multiplicative (PGA) utility" and the total value for
the enterprise attributes the "total multiplicative (EGA) utility." The valuator then
adds the total multiplicative (PGA) utility to the total multiplicative (EGA) utility and
comes up with a "total multiplicative (TMU) utility." The valuator then employs
simple division to determine what percentage of the total multiplicative (TMU) utility
consists of the total multiplicative (PGA) utility and what percentage consists of the
total multiplicative (EGA) utility. At this point, the valuator has before him or her what
percentage of the total goodwill is personal goodwill and what percentage is
enterprise goodwill.
In the instant case, Wood calculated the total multiplicative (PGA) utility for the
personal attributes at 52 and the total multiplicative (EGA) utility for the enterprise
attributes at 114. Accordingly, he found a total multiplicative (TMU) utility of 166 (52
plus 114). Employing the simple division set forth above, Wood concluded that the
personal goodwill attributes constitute 31% of the total goodwill (52 divided by 166)
and that the enterprise goodwill attributes constitute 69% of the total goodwill (114
divided by 166).
According to Wood, once these figures are reached, the valuator is then to
"evaluate the alternatives" by examining where the final results fit into the range of
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alternatives that was established at the beginning of this methodology. The valuator
also must analyze his or her conclusions by looking at each attribute individually in
light of the attribute's total contribution to the total utility, and the valuator must ask
himself or herself if certain attributes should be "driving the results." After performing
this analysis, the valuator then reaches his or her ultimate opinion.
Wood testified that although a valuator would most likely find it tempting to
simply use the final percentage that is derived from the math above (in this case,
69% for enterprise goodwill and 31% for personal goodwill), he believes that "it is
more effective and proper" to select the midpoint of the range that exists in the
appropriate alternative. Accordingly, if the percentage for enterprise goodwill fell
anywhere within the 20-to-40% range, Wood believes that the figure 30% should be
used for the final percentage of enterprise goodwill. In the instant case, because
Wood calculated 69% for enterprise goodwill, for his conclusion he used 70%, which
is located at the midpoint of his 60%-to-80% range. As noted above, the circuit court
did not use 70% as suggested by Wood but instead used a two-thirds ratio.
After conducting a thorough examination of Wood's multiattribute utility theory,
we are convinced that this method does not constitute scientific evidence subject to
a Frye hearing. The methodology employed by Wood does not rely on the
application of scientific principles but incorporates basic math with the observations
and experience of the valuators. As Wood points out, the creation of the
alternatives, the creation of the ranges, the creation of the attributes, and the values
assigned to the attributes are all derived from the subjective determinations of the
valuator. Wood never contends that there are universal alternatives, attributes, utility
values, or ranges that must be applied in each and every situation. Furthermore, he
does not allege that there are constant or universal values that must be assigned.
12
Wood leaves just about everything to the sole discretion of the valuator.
Although Wood repeatedly describes his approach as "scientific," this does not
make it so for purposes of subjecting it to a Frye hearing. Wood acknowledged that
the "whole process" is "subjective" and that the methodology he uses simply
attempts to make a "precise decision from imprecise and subjective criteria." In
addition, to the extent that mathematics is employed in Wood's methodology, the
types of mathematics employed by Wood (addition, multiplication, and division) are
certainly not novel. Most people are at least familiar with these basic mathematical
principles, although certainly some are more versed at applying them than others.
But suffice it to say, to the extent that mathematics is employed in Wood's
methodology, this does not make it a scientific methodology subject to Frye.
However, even if it were sufficiently scientific to trigger a Frye hearing, the evidence
would pass the general-acceptance test because elementary mathematics has
gained general acceptance in all fields of science and engineering. Southern Energy
Homes, Inc. v. Washington, 774 So. 2d 505, 518 (Ala. 2000).
On appeal, James argues that the methodology employed by Wood relies on
literature and the expertise of others. We disagree. Although Wood may be using
an equation or a process utilized by others in other fields, how Wood reached his
opinion is no different from how the experts in Harris reached their opinion. Wood's
opinion was derived from his own observations and experience. Wood's
methodology involved assigning a value, as determined by Wood, to certain
attributes of James's practice that Wood subjectively determined, based on his
experience and observations, to be attributes that relate to the enterprise or personal
goodwill value of James's medical practice. Wood then relied on simple math to
quantify his opinion. We do not believe that Wood's approach is scientific for
13
purposes of a Frye hearing. See Harris, 302 Ill. App. 3d at 369-70 (if one's
conclusion is based on experience and observations, combined with a deductive
process familiar to the average trier of fact, it is generally not scientific). Wood does
not employ a methodology that is beyond the realm of an average juror's
understanding. Again, essentially "how" Wood reached his opinion was derived from
his observation and experience.
James relies heavily on In re Marriage of Jawad to support his position that
Wood's testimony is subject to Frye. In re Marriage of Jawad is readily
distinguishable. In In re Marriage of Jawad, the respondent sought an order
requiring all visitation between the parties' children and the petitioner to be
supervised. The respondent claimed that the petitioner was an abduction risk and
that the petitioner might abduct the parties' three minor children to Iraq. In re
Marriage of Jawad, 326 Ill. App. 3d at 142. In support of her claim, the respondent
tendered Maureen Dabbagh as an expert to testify regarding whether the petitioner
possessed the characteristics of a person who posed an abduction risk. In re
Marriage of Jawad, 326 Ill. App. 3d at 148. The petitioner objected to Dabbagh's
testimony, claiming that Dabbagh's opinion was inadmissible under Frye. The trial
court found that her opinion was not scientific and allowed her to testify as a
nonscientific expert. In re Marriage of Jawad, 326 Ill. App. 3d at 148.
Dabbagh then testified that in making her decision regarding whether the
petitioner was a risk to abduct the children, she considered six risk factors that had
been identified as the result of research performed by the American Bar
Association's Center on Children and the Law on actual cases of abduction.
Dabbagh testified that the petitioner possessed three of these factors that had been
identified as common to all abductors. In re Marriage of Jawad, 326 Ill. App. 3d at
14
148-49. Dabbagh further indicated that if a person possesses only one of the six risk
factors, that person would be considered at risk to abduct. In re Marriage of Jawad,
326 Ill. App. 3d at 149. Regardless of Dabbagh's testimony, the trial court denied
the request for a preliminary injunction, finding that the respondent failed to
demonstrate that there was a risk that the petitioner would abduct the children. In re
Marriage of Jawad, 326 Ill. App. 3d at 150.
On appeal, the Second District Appellate Court considered the issue of the
admissibility of Dabbagh's testimony. In re Marriage of Jawad, 326 Ill. App. 3d at
152. The Second District held that because Dabbagh's opinions were "not derived
solely from her observations and experience" but were "predicated upon factors
identified in studies and literature authored by certain psychologists," her opinions
did in fact constitute scientific evidence. In re Marriage of Jawad, 326 Ill. App. 3d at
153-54. The Second District concluded that because Dabbagh's opinions
constituted scientific evidence, the trial court was obligated to conduct a Frye
hearing to determine whether the scientific theory upon which her evidence was
based was novel and, if so, whether it had gained general acceptance in the relevant
scientific community. In re Marriage of Jawad, 326 Ill. App. 3d at 154. Without this
determination, the court held that her testimony lacked the necessary foundation to
be admitted into evidence and should not have been considered by the trial court. In
re Marriage of Jawad, 326 Ill. App. 3d at 154.
The instant case is distinguishable from In re Marriage of Jawad because in In
re Marriage of Jawad the expert clearly turned to and relied upon another source to
provide a basis for her opinion. Wood no more turned to other sources to provide a
basis for his opinion than did the experts in Harris. Wood's reliance on other
sources only assisted Wood in creating the basic mathematical formula that he
15
would use to quantify his opinion. Again, the basis for Wood's opinion was derived
through his observations and experience, and therefore, this case is distinguishable
from In re Marriage of Jawad and other cases cited by James wherein the expert's
opinion clearly relied on another source. See In re Commitment of Simons, 213 Ill.
2d 523, 533 (2004) (the use of actuarial instruments such as the Minnesota Sex
Offender Screening Tool-Revised and the Static-99 constitutes a scientific
methodology for predicting sexual offender recidivism); Whiting v. Coultrip, 324 Ill.
App. 3d 161, 166 (2001) (evidence that involved mathematical calculations using
various types of computer programs and used test studies correlating force to injury
in the biomedical literature constituted scientific evidence). Because we agree with
the circuit court that Wood's opinion does not constitute scientific evidence, we find
no error in the circuit court's failure to conduct a Frye hearing. We therefore reject
the arguments in the first issue raised by James on appeal.
[The following text is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d
R. 23).]
The second issue raised by James on appeal is whether the circuit court erred
in its valuation of James's medical practice. James argues that the circuit court
overvalued the medical practice because it failed "to consider the value of a
covenant not to compete as personal goodwill." According to James, Wood failed to
calculate the value of a covenant not to compete and failed to consider the impact
that a covenant not to compete would have on the sale of James's medical practice.
James argues that by failing to do so, Wood overvalued the enterprise goodwill in
the practice, which in turn resulted in the circuit court's overvaluation of the medical
practice for marital purposes. We reject James's argument.
"Generally, the valuation of assets in an action for dissolution of marriage is a
16
question of fact, and the circuit court's determination will not be disturbed absent an
abuse of discretion." In re Marriage of Schneider, 214 Ill. 2d at 162. The valuation
of a medical practice within the range testified to by the parties' experts will not be
disturbed on appeal so long as the valuation is not against the manifest weight of the
evidence. In re Marriage of Lee, 246 Ill. App. 3d 628, 636 (1993).
To begin, the circuit court's order directly contradicts James's assertion that
the circuit court failed to consider a covenant not to compete. In discussing goodwill,
the order specifically states that if James "was a willing seller, not going into
competition with a willing buyer, there is a value to the business which generates the
income shown." (Emphasis added.) It is apparent to this court that the circuit court
did consider a covenant not to compete in valuing James's medical practice.
In addition, to the extent that the circuit court based its valuation of James's
medical practice on Wood's testimony, the record reveals that in reaching his
conclusion Wood also considered a covenant not to compete. Although Wood
testified that he did not assign a specific value to a covenant not to compete, his
valuation assumed that a covenant not to compete would exist between the buyer
and the seller of James's medical practice. Wood testified that similar transactions
almost always include a covenant not to compete. Our review of Wood's testimony
convinces us that Wood assumed a covenant not to compete when deriving his
valuation. Indeed, Wood acknowledged that his valuation of goodwill in the medical
practice would decrease if a covenant not to compete did not exist. Wood
specifically testified that the value he assigned to personal and enterprise goodwill
would "be greatly diminished" absent a covenant not to compete.
Upon a review of the record, we are convinced that the circuit court's valuation
of James's medical practice took into account the existence of a covenant not to
17
compete. Accordingly, we reject James's argument that the trial court overstated the
value of goodwill because the circuit court failed to consider a covenant not to
compete.
The third issue raised by James on appeal is whether the circuit court erred in
its award of interim attorney fees. Section 508(a) of the Act provides that from time
to time the circuit court may order any party to pay a reasonable amount of the other
party's costs or attorney fees. 750 ILCS 5/508(a) (West 2002). This section further
provides, "Interim attorney's fees and costs may be awarded from the opposing
party, in accordance with subsection (c-1) of Section 501." 750 ILCS 5/508(a),
501(c-1) (West 2002).
Section 501(c-1) of the Act provides that "interim attorney's fees and costs"
means "attorney's fees and costs assessed from time to time while a case is
pending, in favor of the petitioning party's current counsel, for reasonable fees and
costs either already incurred or to be incurred." 750 ILCS 5/501(c-1) (West 2002).
The statute further provides that when a party files a petition for fees supported by
one or more affidavits "that delineate relevant factors," the court shall assess an
interim award after affording the opposing party a reasonable opportunity to file a
responsive pleading. 750 ILCS 5/501(c-1)(1) (West 2002).
The legislature's goal in enacting section 501(c-1) was to level the playing field
by equalizing parties' litigation resources where it is shown that one party can pay
and the other party cannot. In re Marriage of Beyer, 324 Ill. App. 3d 305, 315
(2001). To further this goal, section 102(5) of the Act provides, "This Act shall be
liberally construed and applied to promote its underlying purposes, which are to ***
make reasonable provision for spouses and minor children during and after litigation,
including provision for timely awards of interim fees to achieve substantial parity in
18
parties' access to funds for litigation costs[.]" 750 ILCS 5/102(5) (West 2002). We
review a circuit court's award of attorney fees under an abuse-of-discretion standard.
In re Marriage of Beyer, 324 Ill. App. 3d at 320.
On March 10, 2004, Valery filed a counterpetition for temporary relief in which
she sought, inter alia, an award for interim attorney fees. On March 15, 2004,
James filed a motion to strike her request, claiming that Valery's petition was
insufficient because it failed to comply with section 508(a), in that it improperly
sought an order for James to pay the fees incurred by Wood (which were not
attorney fees), it failed to establish that Valery had an inability to pay, and it
contained conclusions and not allegations of specific facts. At a hearing on April 15,
2004, Valery informed the court that she would resubmit the request for interim
attorney fees "in a form that will attempt to cure [James's] objections."
On March 26, 2004, Valery filed a petition for an interim award of attorney
fees. In her petition, Valery set forth the amount of attorney fees incurred, along with
an affidavit by her attorney detailing these charges. Valery also alleged that she had
incurred $9,569.63 in fees for Wood and that an additional $7,600 in fees were
estimated. She further alleged that she had an annual income of only $33,526.76,
whereas James's medical practice profits were in excess of $300,000. Finally,
Valery alleged that she had no funds from which to pay her interim fees and that
James had sufficient income.
On April 8, 2004, James filed another motion to strike, again alleging that
Valery's petition was insufficient. On April 30, 2004, a hearing was conducted
wherein the circuit court found that Valery's petition for interim attorney fees was
adequate, and hence, the circuit court denied James's motion to strike. At the
hearing, Valery then sought to submit an affidavit from Wood detailing the services
19
that he had provided. The circuit court allowed the admission of the affidavit. James
refused the circuit court's offer of the opportunity to submit evidence. On May 3,
2004, the circuit court entered an order awarding Valery $15,145.87 for attorney fees
and costs and $5,888.40 for costs incurred by Wood.
James now argues on appeal that the petition filed by Valery was insufficient
under the statute because it was devoid of any "delineation" of any relevant factor as
specified in the statute. Essentially, James argues that the allegations in Valery's
petition were not sufficiently detailed as required by statute. Our review of the record
reveals that the petition and attached affidavits set forth in sufficient detail the total
amount of attorney fees and the basis for which those fees were incurred.
Moreover, the petition sufficiently set forth the earning capacity of each party, the
income of each party, and the needs of the parties. The petition also noted that
Valery had difficulty in obtaining access to all of James's relevant information. Upon
a review of the petition, we reject James's assertion that the petition failed to
delineate any relevant factor as specified in the statute.
Next, James argues that the circuit court departed from the procedure
prescribed in section 501(c-1) in that it considered affidavits that were not a part of
the petition and failed to allow James an opportunity to respond. However, the
record clearly reveals that James was provided an opportunity to respond but chose
not to, and to the extent that the circuit court departed from the procedure prescribed
in section 501(c-1), James fails to show prejudice. We have thoroughly reviewed the
record and find no reversible error with regard to this argument.
James's third argument is that the circuit court erred in ordering James to pay
Wood's fees because the statute only allows for fees payable to a "petitioning party's
current counsel." Because Wood was not Valery's "current counsel," James argues
20
that it was error for the circuit court to award Wood's fees.
As stated above, the applicable statute was enacted to equalize the parties'
litigation resources where it is shown that one party can pay and the other party
cannot. In re Marriage of Beyer, 324 Ill. App. 3d at 315. To promote the goal of the
statute, the statute is to be liberally construed. 750 ILCS 5/102 (West 2002). We
believe that Wood's services were clearly a necessary litigation cost incurred by
Valery. Utilizing a liberal construction of the statute, we do not find that the circuit
court's award of fees to Wood constitutes an abuse of the circuit court's discretion.
In re Marriage of Beyer, 324 Ill. App. 3d at 320. Accordingly, we find no error.
James's final argument within this issue is that the circuit court's award of fees
directly to respondent as reimbursement for sums already paid violates section
501(c-1)(3) of the Act (750 ILCS 5/501(c-1)(3) (West 2004)) because, if Valery was
able to previously pay her attorney fees, clearly she had the ability to pay those fees.
Contrary to James's assertion, we find that the circuit court did not abuse its
discretion in determining that Valery did not have the ability to pay her attorney fees.
The circuit court had before it evidence of the parties' financial situation, and we
believe that the finding that Valery did not have the ability to pay her fees does not
constitute an abuse of discretion. Accordingly, we reject the third argument raised
by James on appeal.
The fourth issue raised by James on appeal is whether the circuit court erred
in its final award of attorney fees pursuant to section 503(j) of the Act (750 ILCS
5/503(j) (West 2004)). James contends that the circuit court failed to follow the
rigors of section 503(j), that the circuit court violated his due process rights, and that
the circuit court's award of attorney fees was unsupported by the evidence. The
facts relating to this issue are as follows.
21
On December 13, 2004, on the final day evidence was presented at the
dissolution hearing, immediately preceding the close of all the evidence, Valery
moved to admit into evidence an exhibit detailing her attorney fees. A brief recess
was taken to allow James to examine the exhibit, and when court reconvened,
James did not object to the exhibit's admission. The circuit court then informed the
parties that it would like the parties to summarize their positions, including their
position on attorney fees, and present closing arguments the following week.
On December 20, 2004, the parties delivered their closing arguments. James
argued that although the circuit court had asked the parties to address the issue of
attorney fees, because no petition had been filed requesting attorney fees, the issue
was not before the court. Valery argued during her closing that she did not file a
formal petition for attorney fees but requested that the court consider attorney fees,
reminded the circuit court of the exhibit presented the previous week detailing her
attorney fees, and requested leave to file a petition within the following 30 days. The
circuit court did not immediately rule on her request, and Valery did not file a petition
within the following 30 days.
On January 24, 2005, the circuit court found that James had "done nothing to
facilitate an efficient resolution of this case," that James had "engaged in a series of
deceptions about, and nondisclosure of, assets," and that James had "caused the
unnecessary expenditure of attorney fees." The circuit court then awarded Valery
$25,000 in attorney fees. The circuit court's order stated that the amount "will be
awarded in the event that a petition [seeking attorney fees] is filed within 30 days."
On January 31, 2005, Valery filed a petition seeking attorney fees. On
February 2, 2005, James filed a response, but he did not request a hearing. On
February 4, 2005, the circuit court entered a judgment of dissolution incorporating
22
the January 24, 2005, order, thereby awarding Valery $25,000 in attorney fees.
James did not file a posttrial motion, but he now contends that the circuit court erred
in awarding Valery $25,000 in attorney fees.
Section 503(j)(1) provides as follows:
"(j) After proofs have closed in the final hearing on all other issues
between the parties (or in conjunction with the final hearing, if all parties so
stipulate) and before judgment is entered, a party's petition for contribution to
fees and costs incurred in the proceeding shall be heard and decided, in
accordance with the following provisions:
(1) A petition for contribution, if not filed before the final hearing
on other issues between the parties, shall be filed no later than 30 days
after the closing of proofs in the final hearing or within such other period
as the court orders." (Emphasis added.) 750 ILCS 5/503(j)(1) (West
2004).
As the above-quoted section makes clear, the circuit court has discretion to allow the
filing of a petition for contribution beyond the final hearing. There is nothing in the
statute that limits the circuit court's discretion to the following 30 days. This is made
clear by the language "within such other period as the court orders." Although the
petition in this case was filed beyond the 30-day period set forth in the statute,
because the issue of attorney fees was an ongoing issue throughout the proceeding
and was specifically raised during closing arguments, we find no abuse of the trial
court's discretion in allowing Valery to file the petition beyond the 30-day period.
To the extent that James argues the circuit court's actions violated his due
process rights, we disagree. James was fully aware that Valery was seeking
contribution for attorney fees. In fact, the circuit court specifically requested that
23
during closing argument the parties address the issue of attorney fees. To claim that
James was surprised by the issue of attorney fees is nonsense. In addition, to the
extent that James claims that he was deprived of his right to due process because
there was no hearing on the petition, again we disagree. At no time did James
request a hearing on the petition or raise the matter in a posttrial motion. In addition,
James fails to argue on appeal what evidence he would have presented at the
hearing and, therefore, what prejudice he might have suffered by the circuit court's
alleged improper action.
James's final argument within this issue is that the circuit court's $25,000
award of attorney fees is not supported by the record. In determining an award of
attorney fees, the circuit court should consider the allocation of assets and liabilities,
maintenance, and the relative earning abilities of the parties. In re Marriage of
McGuire, 305 Ill. App. 3d 474, 479 (1999). A party seeking an award must show that
he or she is unable to pay those fees and that the other party is able to do so. In re
Marriage of McGuire, 305 Ill. App. 3d at 479. The decision to award attorney fees
rests within the sound discretion of the circuit court, and that decision will not be
disturbed absent an abuse of that discretion. In re Marriage of McGuire, 305 Ill. App.
3d at 479. An abuse of discretion occurs where no reasonable person would take
the view taken by the circuit court.
We have reviewed the entire record and find that the circuit court's award of
$25,000 in attorney fees does not constitute an abuse of discretion. The record
demonstrates the disparity between the parties' income. Valery submitted an exhibit
setting forth her monthly income and expenses, and we find no error in the circuit
court's conclusion that Valery has an inability to pay and that James has an ability to
pay. We also find no abuse of discretion regarding the amount of the award.
24
Accordingly, we reject the arguments raised in the fourth issue on appeal.
[The preceding text is nonpublishable under Supreme Court Rule 23.]
The next issue raised by James on appeal challenges the circuit court's
valuation of two Vanguard accounts. The circuit court awarded Valery two Vanguard
accounts that the circuit court valued at $10,804. This included a 21% reduction in
value imposed by the circuit court on these accounts. The evidence presented at
the dissolution hearing showed that the accounts were actually worth $13,792.97.
James argues on appeal that there is no indication in the record why a 21%
reduction in value was imposed, but James speculates it was to take into account
the effect of taxes. James argues that this is improper and that the valuation should
be reversed.
In response, Valery concedes that the reduction is related to taxes and argues
that a 21% reduction is low, because her taxes will probably be 30% when the
accounts are liquidated. Valery contends that it is appropriate for the circuit court to
consider the tax implications of property, pursuant to section 503(d)(12) of the Act
(750 ILCS 5/503(d)(12) (West 2004)). Furthermore, Valery contends that her
retirement benefits were valued the same way. However, Valery concedes that her
retirement was cashed out prior to the divorce and that the funds had been used for
the parties' living expenses. In any event, Valery contends that the valuation is not
contrary to the statute and hence did not constitute an abuse of discretion.
Section 503(d)(12) of the Act provides that the trial court shall divide the
marital property in just proportions, considering relevant factors including "the tax
consequences of the property division upon the respective economic circumstances
of the parties." 750 ILCS 5/503(d)(12) (West 2004). However, in In re Marriage of
Emken, 86 Ill. 2d 164, 167 (1981), the supreme court found that a circuit court erred
25
when it reduced the value of certificates of deposit in the respondent's possession by
the amounts that he would be required to pay in taxes and penalties if he were to
surrender the assets. The supreme court held that there was no evidence in the
record that the respondent would surrender the assets and that therefore it was
improper to reduce the value of the assets in anticipation of losses which might arise
as a result of the respondent's voluntary action. In re Marriage of Emken, 86 Ill. 2d
at 167.
James also cites In re Marriage of Hawkins, 160 Ill. App. 3d 71 (1987), and In
re Marriage of Perino, 224 Ill. App. 3d 605 (1992), to further support his position. In
In re Marriage of Hawkins, this court held that the circuit court did not err in failing to
consider, in its valuation of certain property, the tax implications resulting from a
subsequent sale of that property. We noted that the circuit court should not
speculate about the existence and amount of future tax implications when no such
sale is contemplated by the parties or required by the court's division of property. In
re Marriage of Hawkins, 160 Ill. App. 3d at 79. In In re Marriage of Perino, the
appellant argued that the trial court erred in failing to consider the tax consequences
of a sale of a business. The appellate court found that the tax consequences were
not a proper factor for consideration where the party did not have to sell any assets
in order to meet the court's order, because the suggested consequences were
purely hypothetical. In re Marriage of Perino, 224 Ill. App. 3d at 609.
In light of the precedent set forth above, we believe that the circuit court
abused its discretion in its valuation of the Vanguard funds. The circuit court should
not have reduced the value of the funds by 21%. However, because an appropriate
valuation only marginally impacts the entire valuation and subsequent distribution of
marital property, we find that any error is de minimis and that a reversal is not
26
required. The circuit court valued all the marital property at approximately $1 million.
A proper valuation of the Vanguard accounts would merely increase the total value
of the parties' marital property by less than one half of one percent of its current
figure. James does not contend that the division of marital property was inequitable
(apart from his argument that his medical practice was overvalued), and we do not
believe that inserting a proper valuation of the Vanguard accounts significantly
affects the division of marital property to mandate a reversal and remand for the
redistribution of marital property. Furthermore, James failed to raise this argument in
a posttrial motion to allow the circuit court to address and correct the error. Pursuant
to our powers provided by Supreme Court Rule 366 (155 Ill. 2d R. 23), we modify the
circuit court's order to reflect the proper value of the Vanguard accounts
($13,792.97). However, we in no way alter the distribution of marital property.
[The following text is nonpublishable under Supreme Court Rule 23.]
The final issue raised by James on appeal is whether the circuit court erred in
its award of child support. The circuit court found that the statutory guidelines would
require a monthly child support award of $6,066, based on 32% of James's net
income. The circuit court elected to deviate from the guideline, in light of Valery's
request, and awarded Valery $5,333.33 in monthly child support. James now
contends that the circuit court's order is erroneous because it fails to contain a
termination date and because it is excessive.
Section 505(a)(l) of the Act sets forth a guideline for determining the minimum
amount for child support. 750 ILCS 5/505(a)(1) (West 2004). The Act provides that
a party paying support for three children shall pay 32% of his or her net income. 750
ILCS 5/505(a)(1) (West 2004). The Act further provides that if the circuit court
deviates from the guideline, the court shall set forth the amount of support under the
27
guideline and the reasons for its departure from the guideline. 750 ILCS 5/505(a)(2)
(West 2004).
When a parent has a high income, the circuit court, in determining the amount
of child support, must balance the standard of living that the children would have
enjoyed absent the parental dissolution with the concern that the child support award
not constitute a windfall. In re Marriage of Charles, 284 Ill. App. 3d 339, 347 (1996).
However, child support is not necessarily based solely upon the shown needs of the
child, but the court must also consider the standard of living that the children would
have enjoyed had the marriage continued. In re Marriage of Singleteary, 293 Ill.
App. 3d 25, 36 (1997). The circuit court has wide discretion in awarding child
support. In re Marriage of Potts, 297 Ill. App. 3d 110, 114 (1998). We shall not
disturb the circuit court's award absent an abuse of that discretion. Einstein v. Nijim,
358 Ill. App. 3d 263, 273 (2005).
First, James argues that the award of child support is erroneous because it
fails to contain a termination date for child support payments. Although section
505(g) of the Act provides that an order of child support shall include "a date on
which the current support obligation terminates" (750 ILCS 5/505(g) (West 2002)),
we do not believe that the failure to include the termination date requires a reversal.
"Unless otherwise agreed by the parties in writing or expressly provided in the
judgment, provisions for child support under the [Act] are terminated by
emancipation." In re Marriage of Loomis, 348 Ill. App. 3d 972, 974 (2004). Because
the circuit court's order is silent regarding a termination date, child support is set to
terminate at the time of emancipation. Accordingly, we do not believe that the award
is erroneous or must be reversed on this basis.
The second argument raised by James is that the award of child support, even
28
though it deviated below the statutory guideline, was excessive. James contends
that the record demonstrates the excessiveness of the award because the bank
accounts where Valery had exclusively deposited child support payments during the
separation, which totaled an amount identical to the circuit court's award,
consistently had high balances, thereby indicating that the entire amount for support
is not necessary to support the needs of the children. James contends that the
children continue to "enjoy the same lifestyle they had previously enjoyed while the
balances in the respective accounts continued to grow" and that, therefore, history
shows that the payments are excessive and constitute a windfall to Valery.
In response, Valery contends that the reason a surplus existed in the accounts
was that James had also been paying the mortgage, taxes, and insurance on the
marital home and that, therefore, she had a larger cash flow and was able to
accumulate the money. However, Valery contends that following the dissolution,
there will no longer be a surplus.
The record clearly reflects the parties' large disparity in income. In fact, the
circuit court found that in light of this disparity, it would be appropriate to follow the
guideline. However, the circuit court opted to deviate downward from the guideline
in light of Valery's request. The circuit court then stated in its order that although the
children could get by on less money, it "is ludicrous to argue that [James] needs
more money while the three children need less." We believe that the record
supports the award of child support, that it does not constitute a windfall to Valery,
and that the award reflects the standard of living that the children would have
enjoyed absent the dissolution. Accordingly, we reject James's argument that the
circuit court's award of child support is excessive or that the circuit court abused its
discretion in its child support award.
29
[The preceding text is nonpublishable under Supreme Court Rule 23.]
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
GOLDENHERSH and McGLYNN, JJ., concur.
30
NO. 5-05-0109
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
JAMES O. ALEXANDER, ) Saline County.
)
Plaintiff-Appellant, )
)
and ) No. 01-D-207
)
VALERY M. ALEXANDER, )
Honorable
)
Brocton Lockwood,
Respondent-Appellee. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: September 7, 2006
___________________________________________________________________________________
Justices: Honorable Thomas M. Welch, J.
Honorable Richard P. Goldenhersh, J., and
Honorable Stephen P. McGlynn, J.,
Concur
___________________________________________________________________________________
Attorney Morris Lane Harvey, Law Offices of Harvey & Bradley, LLC, 2029 Broadway,
for Mt. Vernon, IL 62864
Appellant
___________________________________________________________________________________
Attorney Edward J. Heller, Reed, Heller, Mansfield & Gross, 1100 Walnut, P.O. Box 727,
for Murphysboro, IL 62966
Appellee
___________________________________________________________________________________