In re Marriage of Feldman

557 N.E.2d 1004, 199 Ill. App. 3d 1002, 146 Ill. Dec. 62, 1990 Ill. App. LEXIS 520
CourtAppellate Court of Illinois
DecidedJuly 18, 1990
DocketNo. 2—89—0653
StatusPublished
Cited by20 cases

This text of 557 N.E.2d 1004 (In re Marriage of Feldman) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Marriage of Feldman, 557 N.E.2d 1004, 199 Ill. App. 3d 1002, 146 Ill. Dec. 62, 1990 Ill. App. LEXIS 520 (Ill. Ct. App. 1990).

Opinion

JUSTICE GEIGER

delivered the opinion of the court:

The respondent wife, Ina Y. Feldman, appeals from the trial court’s property, maintenance, and fee awards pursuant to the dissolution of her marriage to the petitioner husband, Edgar Feldman. The husband brings a cross-appeal. We reverse and remand.

The parties were married in 1959, when the husband was 23 and the wife was 22 years old. Four children were born to the marriage; all of them were emancipated when the dissolution was entered in 1988.

The husband is one of two principal shareholders in a professional corporation: General and Vascular Surgery, Ltd. (the practice). His gross taxable income in 1987 was $265,000. During the 29-year marriage the wife had primary responsibility for household affairs; she also was employed as a certified speech therapist. She has some graduate credits in her field and is employed at an annual $29,440 salary.

The court received extensive testimony about the parties’ financial condition and awarded the marital property as follows. The wife received $549,311 in assets, including the marital home. The husband received $593,514 in assets, including the practice. The parties’ debts on pension and profit sharing funds were allocated jointly; the $25,000 mortgage was allocated to the wife, and $72,300 in miscellaneous debts to the husband. The court ordered that the husband pay $2,500 monthly maintenance payments to the wife, reviewable on every three-year anniversary of the order. Lastly, without holding a hearing, the court ordered each party to pay his own attorney fees.

On appeal the wife first argues that, in distributing marital property, the court erred in not considering three marital assets: the practice’s accounts receivable, the husband’s interest in a professional building, and compensation due the practice for the husband’s work as head of a hospital trauma center. We agree with the wife on all three points.

The Illinois Marriage and Dissolution of Marriage Act (the Act) provides for equitable division of all “marital property” upon dissolution of a marriage. (Ill. Rev. Stat. 1987, ch. 40, par. 503.) To determine the value of a business which is marital property, the court must consider (1) fixed assets, (2) other assets, including accounts receivable, (3) the goodwill in the business, and (4) business-related liabilities. In re Marriage of Rubinstein (1986), 145 Ill. App. 3d 31, 36.

The court’s careful and thoroughly presented written judgment discloses that, in determining the value of the practice, it excluded the practice's accounts receivable. The husband argues that the court correctly considered those amounts as future income. Under our decision in Rubinstein, however, the court’s omission was erroneous: the accounts receivable are business assets and must be included in the practice’s valuation.

The wife also refers to one specific account receivable apparently excluded in the trial court’s business valuation. The record shows that as of the date of dissolution, the husband had earned over $20,000 as trauma service director for Sherman Hospital. The practice, which was entitled to receive that salary payment, had collected none of those monies. Under Rubinstein, the court erroneously excluded consideration of this account receivable.

Also in relation to the court’s valuation of the parties’ marital property, the wife urges that the court abused its discretion by placing a value of $0 on the husband’s interest in the West Side Professional Building (the building). The husband testified that he owned 26.67% interest in the building. Also, he opined that the building was worth $164,000. On appeal, he suggests that the court’s $0 valuation either reflects or is counterbalanced by the court’s determination on indebtedness related to the building.

The court received no evidence that the building was valueless. Further, the court’s judgment order thoroughly accounted for the parties’ debts without specifically applying debt against the building’s value. We find that the $0 valuation was an abuse of the trial court’s discretion.

Because the husband’s counterargument bears relation to this first of the wife’s arguments, we next address that counterargument: that the court improperly included a figure for “goodwill” in valuing the husband’s practice. The husband urges that we reconsider our decision in In re Marriage of Rubinstein (1986), 145 Ill. App. 3d 31, which stands for inclusion of goodwill in the business evaluation.

According to the husband, in valuing a professional practice the court should consider goodwill without fixing a specific value. He argues with support of other appellate districts’ decisions, that if the court both includes goodwill in the business valuation and awards maintenance, it double counts the asset of “likelihood of future income,” which is the basis for both awards. See Head v. Head (1988), 168 Ill. App. 3d 697; In re Marriage of Kapusta (1986), 141 Ill. App. 3d 1010; In re Marriage of Courtright (1987), 155 Ill. App. 3d 55; In re Marriage of Stone (1987), 155 Ill. App. 3d 62.

After considering the husband’s argument, we find no reason to depart from our prior conclusion in Rubinstein, that a fair and just disposition of marital property requires considering goodwill in valuing a professional corporation. The intangible asset of goodwill clearly affects a shareholder’s future earnings from a business. However, that is equally true of other business assets and is no basis to restrict consideration of that factor. We find no abuse of discretion in the court’s inclusion of $96,500 goodwill in valuing the husband’s practice.

In her more general comments regarding the property distribution, the wife argues that the court abused its discretion in failing to properly consider the statutory factors for the distribution. (See Ill. Rev. Stat. 1987, ch. 40, par. 503(d).) She emphasizes her multiple roles in the marital household, the length of the marriage, and the parties’ relative training, economic circumstances, and health.

We are not persuaded by the thrust of the argument. The record reveals that the court carefully considered all the relevant statutory factors, including those emphasized by the wife. Nevertheless, we reverse the court’s property distribution and remand for redistribution which includes the items of marital property erroneously omitted from the original judgment. See In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 636-37.

The wife makes two additional arguments which are also relevant on remand of the property distribution. First, she argues that the court abused its discretion in failing to allocate tax consequences of withdrawing funds from the parties’ profit-sharing and pension funds. Her argument is meritless. The trial court judge explicitly stated that his judgment considered tax consequences.

Secondly, the wife argues that court abused its discretion in refusing to reopen proof on the value of a brokerage account in the marital property. The wife asserts that the account’s value fell from the evidenced $8,900 to a value of $900 on the date of judgment.

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Bluebook (online)
557 N.E.2d 1004, 199 Ill. App. 3d 1002, 146 Ill. Dec. 62, 1990 Ill. App. LEXIS 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-feldman-illappct-1990.