*1 379 condition v. establishes a Roberts Roberts justiciability.” (1967), 184, 187, 372; 90 Ill. 2d App. 234 N.E.2d see also Northwestern v. State Illinois 56 Ill. University App.
N.E.2d 1046. controversy We believe that actual exists in the case before us. hypothetical Rather, There is or nothing dispute. abstract about this very genuine and actual Dayan created when filed a controversy against lawsuit France McDonald’s French company seeking decla- ration that the fee made to are percentage payments McDonald’s usuri- ous and in law, violation French and that be McDonald’s ordered to return to more than six Dayan Although Dayan million francs. asserts is until petition premature McDonald’s the French courts rule on his lawsuit, such an assertion is merit in without above-quoted conclusion, authorities. It not the commencement, is but rather the French which proceedings engendered actual controversy required under section 2—701. affirm the court’s Accordingly, we trial denial of Dayan’s motion on ground to dismiss prematurity. reasons,
For the foregoing the circuit court of Cook is County affirmed.
Affirmed. O’CONNOR,JJ.,
LORENZ and concur. In re BAUER, Petitioner-Appellee, OF MARRIAGE MARIAN BAUER, Respondent-Appellant.
GEORGE Division) (4th First District No. 84 — 2097 21, 1985. Opinion filed November *3 Associates, Ltd., Beermann, Libertyville (Jon Jon L. Beermann & L. counsel), appellant.' for Associates, P.C., (James Arlington Heights James R. Truschke & R. Arnoux, counsel), appellee. Truschke and Matthew C. for JUSTICE court: opinion LINN delivered Bauer, Respondent-appellant, George from certain finan- appeals cial marriage. decreed in a for dissolution of dispositions appeal, (1) On he claims as error the trial court’s valuation of his one-man corporation, (2) directing order him to pay petitioner-appel- lee’s, Bauer’s, fees, Marian (3) order him to reim- attorney directing from an insurance settlement burse and tax (4) refund received order during marriage, directing bills, set a petitioner’s (5) 10-year per- medical determination to iod of rehabilitative maintenance. part modify part.
We affirm
Background
George and Marian Bauer were married on March 1950. A marriage for dissolution of filed Marian on petition by May counterpetition 1981. filed a on October 1982. On Novem- 16, 1983, a judgment ber for dissolution of was entered the circuit certain issues for later County, reserving court of Cook hearing, judgment dispos- a contested a final disposition., Following the trial court on ing remaining May these issues was entered 9, 1984, 16, 1983, order. It is from supplementing November 16, 1983, set forth in the orders of November dispositions May 9,1984, that now appeals. during they
The Bauers married for 33 which time years, were Marian, children, four all of whom are now produced emancipated. in home old, now 55 had three with a years years college major marriage, She has at her jobs during economics. worked various *4 time, to that of as a in 1982. Prior most recent which was waitress and at a agency, she as a at a travel part-time salesperson, worked travel school. 1980, Marian in her through
At various times from 1973 worked invoices, business, filing, and doing bookkeeping, typing husband’s a eventually functioning leaving as After secretary-treasurer. business, she took on attended travel school and a course the basics of a operating computer system commonly used travel agencies. 1979, Marian was for alcoholism. She has since suf- hospitalized fered of the to relapses disease and continues attend meet- regularly ings Alcoholics She has for sci- Anonymous. hospitalized also been atic nerve and pressure problems. blood
George salesman, Bauer has made his as and 1973 he his incorporated own chemical & Associ- distributing company, Bauer ates. In went from respondent a one-man business to incorpo- rate with two other individuals under name Taurus-Bauer & Associates, Inc., continuing same business. In re- type spondent business, again began his own incorporating George Associates, & Inc., Bauer continued same business. type During time, this respondent has and retained up “high built reliable caliber” customer accounts. Horwich, introduced Arnold expert, certified
public accountant under his since employ testify as to the value of respondent’s business. Horwich stated that while there were valuation, several methods of methods such as gross book value and or gross profits sales would business, be in a inappropriate one-man Associates, such as Bauer & Inc., where business is com- pletely tied into the of George abilities Bauer. Horwich appraised the value the business from the of resale point only, value concluding it because had no assets, and no inventory business would no have resale on value market. He open valued the business at $1,000,the cost incorporation and value of the capital stock.
Horwich testified that has good experience col- very lecting cash accounts and that his clients are “high caliber” reliable accounts. After having respondent’s examined through books March 1983, Horwich stated on that based a volume of approximately $120,000 $150,000, respondent has profit been able draw a margin 20%. He further testified that the chemical distribution was, stable, business it generally, fluctuated although with the nor- mal fluctuations of the economy.
Petitioner presented expert no as to the testify value of court, business. The trial however, had before it tax forms testi- as to mony salaries earned Additional respondent. tax forms were to the reviewing introduced court upon stipulation parties. This evidence disclosed taxable income for respondent’s corporation 1977, 1978, 1979, the years and 1981 as approximately $30,000, $38,000, $50,000, $38,000, $23,000, Testi- respectively. *5 384 in sales from 1980 an increase hearing revealed adduced at
mony in the cost $114,000, and a concurrent decline $108,000 to 1981 from salary that his then current $4,000. testified goods Respondent $20,000 a year. owns respondent’s corporation revealed that testimony Additional value, which are expenses three of limited a car and boats for these corporation expended by the business. Funds paid by $12,000. return, The tax totalled vehicles, on the 1981 as reflected account expense furnishes with also corporation fringe other benefits. evidence, the trial court valued and distrib-
After reviewing follows: the marital property uted
Marian Bauer $64,000.00 of the home
Proceeds from the sale from the sale One-half 850.00
a house trailer 1,918.50 of stock One-half value 3,500.00 Mercury Marquis 150.00 in insurance policy Equity 750.00 in IRA account equity Half 200.00 for 1980 tax refund Reimbursement 1,500.00 in townhome equity One-half 3,100.00 possession Furniture in 2,830.00 for insurance settlement Reimbursement $78,798.50 Marian’s at- pay Bauer to addition, George the court ordered In $2,287.49. $7,500 totalling and her medical bills fees of torney Bauer George $66,000.00 & Bauer Associates
Shares 1,918.50 of stock value One-half 150.00 policy in insurance Equity 750.00 Half in IRA account equity 1,500.00 in townhome One-half equity 475.00 in possession Furniture $70,793.50 attorney his own addition, pay ordered George Bauer was above, re- as stated the other fees bills $4,231.65, fees a 10- $11,055.64. provided The also judgment a debt sulting in the amount of maintenance $400 of rehabilitative year period month. of the dissolution provisions from those now appeals business, in which the trial court his valued directed him his attorney fees, wife’s his ordered reimburse wife refund,
for funds received from an insurance settlement and a tax him pay directed medical bills incurred Marian the mar- during riage, and set a other 10-year rehabilitative maintenance The period. provisions of the set forth in the court’s are distribution trial order not contended as error.
Opinion
I *6 Respondent’s first contention on is the appeal trial court’s business, valuation of his Associates, Inc., & Bauer at $66,000 was an abuse of discretion in of light testimony the of his expert, $1,000 who valued the business at and the fact that peti- tioner presented no evidence as to valuation. Petitioner maintains that the trial court’s valuation was not so unreasonable as be an to abuse of light discretion in of the lack expert’s credibility of and of method valuation the and testimony and exhibits submitted to the court. We find merit in petitioner’s position.
We first address respondent’s contention that the absence of any evidence presented as by to the value of the corporation mandates reversal and remand for a new This hearing. contention in addressed In Marriage re Schaufelberger 120 Ill. (1983), of 114, 3d App. 993, 457 N.E.2d court, wherein the from In quoting re Marriage (1983), Smith 114 Ill. 3d 47, 448 App. 545, N.E.2d of refused to remand due ato lack of solid the evidence of value cer tain as property, reasoning follows:
“Reviewing courts cannot continue to
and remand
reverse
dis
solution cases where the
have
parties
adequate oppor
had an
tunity
introduce evidence but have
to do
failed
so. Parties
should not be allowed to benefit on review from their failure
Remanding
introduce evidence at
trial.
cases
[Citations.]
such
the
as
one
only
before us would
protract
litigation
and
the trial
clog
issues which
courts with
should have been
of at
disposed
hearing.”
47,
the initial
114 Ill.
3d
54-55.
App.
The precise rules for
valuing
held
closely
corporation
cannot be laid down.
re
(In Marriage
103
(1981),
Mitchell
Ill.
App.
242,
3d
430
716.)
spite
N.E.2d
In
of the fact
closely
that a
held
is without
corporation
value,
market
established
it nevertheless pos
an
sesses
ascertainable value
respect
with
the division of marital
(In
380,
property.
Marriage
(1981),
re
White
98 Ill. App. 3d
424
asset,
it fig
as a business
recognized
is
421.)
N.E.2d
Goodwill
Trade v.
(Board
into the valuation of a business.
significantly
ures
526.)
3d
439 N.E.2d
(1982),
App.
Co.
108 Ill.
Dow Jones &
where the worth of a
Moreover,
present,
in instances such as the
the con
largely by
future
are determined
earnings
business and its
definite valuation
plaintiff,
services made
personal
tributions and
Greenberg (1981),
In Marriage
is not
re
required.
business
Ill.
3d
riage, abuse Mar (In the trial court. re adopted by would take view person 120 Ill. 457 N.E.2d riage Schaufelberger App. it busi on-going trial court here had before evidence of 993.) The clientele, goodwill, an increase with a reliable and established ness economic The business picture. sales from 1980 to and a stable a comfortable family had and his with furnished and had even pro for over valuation lifestyle years prior five *7 to him to son with a clientele sufficient enable respondent’s vided factors, these the trial court Considering a competing start business. $66,000. not find this value to at We do respondent’s valued business agree. therefore person one with which no reasonable would We be in determining not its discretion find that the trial court did abuse $66,000. at valuation business
II in directing that the trial court erred next contends Respondent $7,500. in the amount of He as- his wife’s fees pay attorney him to the other this fee award and ability pay serts that he has no to He further asserts obligated judgment. he is to under pay debts asset, cash from proceeds his has the substantial only wife to home, position and is therefore a better sale of the marital agree. her fees. We attorney’s own pay
A party seeking
attorney
an award of
fees in a dissolution
of marriage
inability
case must
financial
to
the fees and
pay
show
the financial
to
ability
(In Marriage
the other
do so.
re
spouse
in
Hopkins (1982),
897.)
106 Ill.
3d
435 N.E.2d
Financial
App.
ability
destitution;
does not mean
it is sufficient to
an award
support
of fees that disbursement of the individual’s
exhaust
funds would
protesting
estate,
him/her of means of
spouse’s
strip
support
or
a
and undermine his/her
re
Rossi
stability. (In Marriage
economic
(1983),
are,
113 Ill.
3d
fees
App.
1198.) Attorney
446 N.E.2d
however, the primary obligation of the
for whom the services
party
are rendered. In Marriage
re
Jacobson
89 Ill.
App.
Respondent, week, who is earning re currently per $400 ceived little or no cash award judgment. from the dissolution In ad dition $4,231.65 he owes his own attorney obligated in fees and is pay $10,000 over to petitioner. facts, of these we find that petitioner has failed to carry her of proving burden either her finan cial her inability pay own attorney fees or her ability husband’s pay them for her. We therefore find that the erred or trial court dering George Bauer to pay fees, his wife’s attorney and we modify the order to him relieve of that obligation.
Ill next contends that the trial court erred in directing his reimburse wife for half the during received from an insurance settlement from a arising burglary within the marital residence. The majority of these funds were used debt, off a marital a loan made to George’s the Bauers fa- ther to help George start his business. The balance the funds was expended on living expenses doctor, such as telephone, gasoline bills. funds, Petitioner claims that these being rather than expended to pay marital debts and on re- living expenses, dissipated were We, however, spondent. find no evidence of dissipation.
Dissipation of marital assets occurs uses spouse when a *8 marital property for his or her for own benefit a unrelated purpose 388 breaking (In is re Mar marriage
to the while the down. 866.) 117 Ill. 3d 453 N.E.2d While riage (1983), App. Sevon assets, in spouse settlement received a are fact marital proceeds the on expended by spouse expenses where such are proceeds no exist a cannot appor as marital asset thus be they longer Marriage as section 503 of the Illinois tioned marital under property Marriage (Ill. par. and Dissolution of Act Rev. Stat. ch. Ill. 437 503). Marriage In re Kundit 107 App. 777. N.E.2d $5,960.93 in a Here, acquired the insurance proceeds was to couple marital asset and used to off a loan made the largely pay that starting George for the business. Bauer testified purpose The he wife to use the to the loan. agreed repay both and his funds They family funds to debts bills. pay balance the was used asset, it for the improper as a marital and thus was longer no exist for ex to these respondent petitioner court to direct reimburse trial that to the extent modify therefore pended judgment funds. We for $2,830 in pay is ordered to reimbursement respondent petitioner from the settlement. already insurance expended brief, his also that the trial court in contends Respondent, from in for funds directing pay petitioner erred him to received $200 argument, tax oral counsel for conceded petitioner refund. At error, is judgment that the dissolution in record discloses finding it who This petitioner pay respondent and that is must $200. that a 1980 tax refund was received undisputed is on the fact based $2,402.17, of took amount of the Bauers which court, $1,400. held hearing The trial $1,000 and Marian took 13, 1983, Marian Bauer to pay respondent ordered September on $200. not decree does conform with
Finding that to so and direct order, modify the decree conform court’s we trial to the sum of respondent petitioner pay $200.
IV court erred in direct that the trial Plaintiff next contends in the amount of by petitioner medical bills incurred ing should have and trial $2,287.49. The court found peti and that coverage for have insurance could obtained treatment, notice had no hospital tioner, having after entered the Consequently, petitioner not that she was covered. of the fact in order end treatment prior to leave hospital forced coverage. hospitalization money provide obtain he, faith, good claims that for and be- applied *9 himself, lieved he for coverage petitioner, had obtained insurance and other group. deposit two individuals The to the insur- paid ance of company by way corpora- was check issued respondent’s issued, tion. The and of the policy covering only respondent one other applicants. Respondent was informed that due to petitioner’s condition, pre-existing she was under the At policy. uninsurable that time, had entered for petitioner hospital the treatment. Ultimately, respondent was refunded his and deposit, coverage no issued. reflects,
theAs record failure clearly respondent’s to obtain in- inadvertent, surance coverage involved no bad petitioner faith, and in fact resulted his efforts to It despite contrary. the is clear, however, also that he the obligation provide felt coverage wife, for his and that the hospital entered on her relying representations husband’s that costs would be covered. In of all of circumstances, result, these we find that the trial court’s placing the blame for petitioner’s sole lack of coverage insurance on entirely is respondent, inequitable and unreasonable.
Balancing the equities, we conclude that the debt incurred by pe- titioner’s bills medical should be apportioned between the parties. We therefore the modify dissolution decree to reflect this equal appor- tionment, such that respondent obligated is to pay petitioner one-half $1,143.75. of the or bills the sum of
V Respondent’s final contention appeal on is that the trial court abused its discretion in setting 10-year rehabilitative mainte nance find period. We no such of discretion under abuse the instant circumstances.
The relevant factors to be considered the court in making a determination of maintenance set are forth section 504(b) and Marriage Marriage (Ill. Dissolution Act Rev. Stat. ch. 40, par. 504(b))as follows: “(1) the financial resources of the party seeking mainte- ***
nance and his ability to meet his needs independently;
(2) the time sufficient necessary acquire education or to enable the training party seeking maintenance ap- to find propriate employment;
(3) of living marriage; standard established during (4) the duration the marriage; (5) age and emotional physical condition both parties; is maintenance from whom spouse
(6) ability spouse of the meeting meet his needs while those sought seeking maintenance.” 504, of subsection
The notes to section elaboration practice 504(b)(4)),explain ch. (b)(4)(Ill. par. Rev. Stat. “*** attention to the careful given particularly courts have as it to other fac marriage, relates especially duration de including employability, tors the standard award. and duration of the maintenance termining amount the home or has has not worked outside spouse Where a any development at that did not further jobs worked skills, frequently will related courts particular employment awarding factor in important that circumstance an consider long is of dura maintenance, particularly where Stat., 504(b)(4),Supple par. Ill. Ann. ch. tion. [Citations.]” Notes, (Smith-Hurd at 129 & Practice ment to Historical *10 Supp. 1985). is entitled to rehabilitative concedes that petitioner pro- that he duration; it is the duration 10-year of some
maintenance alcoholism, and insuffi- of age, history In of petitioner’s tests. com- considering and the training particular employment; cient for accustomed, and grown to which she has standard of fortable the trial court’s we- find that marriage, duration of the 33-year the period maintenance set a rehabilitative 10-year determination to of discretion. not abuse that agree the addition, parties the trial court and both Marriage of Act and Dissolution Marriage 510 of the
under section not an award of as this is par. 510(a)), Stat. ch. (Ill. Rev. during the be modified may in that the award gross, maintenance in circum change showing a of a substantial 10-year period upon of rehabilitative the award to petitioner therefore affirm stances. We years. a of 10 period a month for in the sum of maintenance $400 authority with the coupled reasons foregoing For all of the R. 366), Ill. 2d (73 Court Rule 366 court under Supreme this granted en of the for dissolution and modify we affirm 16, 1983, sup amended by and trial court on November tered the by (1) we affirm as follows: May entered on order plemental the set (2) and business respondent’s trial of the court’s valuation (3) modify we period; maintenance rehabilitative 10-year of a ting fees attorney petitioner’s to pay directing respondent the provision re directing the obligation, (4) provision relieve him of that an in- from for received petitioner to reimburse spondent him surance (5) settlement and from a 1980 tax refund and relieve obligations, those direct in to reimburse respondent the $100, (6) amount of provision directing respondent the $2,287.44 pay petitioner bills and half medical direct $1,143.75. that or amount in
Affirmed part part. and modified JOHNSON, J., concurs. JIGANTI,
PRESIDING JUSTICE dissenting: I dissent from the the respectfully majority’s conclusion that trial $66,000. court was in valuing correct the husband’s business at The husband presented only concerning evidence the value expert’s business. His that the no testimony was business had inven- assets, tory, no no accounts receivables and was a function basically of the to generate husband’s income. He ability concluded the value business was largely determined the contribu- by tions husband, and services made no resale business had value on the open market. Consequently, the business was worth $1,000, only the cost of incorporation and the value of the capital Thus, stock. the value of the is, effect, business the husband no different than the value to an If salary employee. husband dies, retires, or becomes disabled the ability generate income evaporates.
Further,
the trial court’s
method
valuation used in the instant
case was erroneous. As the value
business is
solely
function
to generate income,
husband’s ability
salary
he draws was
already taken into account and disposed of
of the mainte
by way
nance
result,
effect,
award ordered
trial court. The
double
counts the husband’s ability to earn income.
In Marriage
See
re
*11
Wilder
347-48,
Ill. App.
I would remand the matter to the circuit its court reconsider of the above.