In Re Marriage of Alexander

857 N.E.2d 766, 368 Ill. App. 3d 192, 306 Ill. Dec. 367, 2006 Ill. App. LEXIS 836
Appellate Court of Illinois·Decided September 7, 2006·No. 5-05-0109·Published·Cited by 24 cases

Opinion

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.

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 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. 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) (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 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 ofTalty, 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.

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In Re Marriage of Alexander, 857 N.E.2d 766, 368 Ill. App. 3d 192, 306 Ill. Dec. 367, 2006 Ill. App. LEXIS 836 (Ill. Ct. App. 2006).

857 N.E.2d 766 (In Re Marriage of Alexander) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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