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In Re Marriage of Cuisance

OPINION FILED JUNE 17, 1983.

IN RE MARRIAGE OF GEORGE CUISANCE, PETITIONER-APPELLEE AND CROSS-APPELLANT, AND WANDA CUISANCE, RESPONDENT-APPELLANT AND CROSS-APPELLEE.


Appeal from the Circuit Court of Cook County; the Hon. Monica D. Reynolds, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Respondent Wanda Cuisance appeals from those portions of the judgment of dissolution of marriage pertaining to the award to her of marital property and maintenance. Petitioner George Cuisance cross-appeals from the modification of the judgment order awarding respondent additional property and from the portion of the judgment requiring him to pay respondent's attorney fees and costs of $17,299.55.

The issues presented are whether: (1) the award of maintenance set by the trial court was inadequate; (2) the division of marital property was improper; (3) the award of additional property was error; and (4) the award of attorney fees was improper and excessive. We reverse and remand.

Wanda and George Cuisance were married on July 3, 1967. No children were born to the marriage. In December 1978 George filed his petition for dissolution of marriage. An ex parte judgment for dissolution was entered in April 1979 which was later vacated in June 1980. In June 1980 Wanda filed her counterpetition for dissolution of marriage. In October 1980 after a hearing, the trial court entered an order finding grounds to dissolve the marriage and reserving the remaining issues for later determination. Thereafter, a trial relating to division of property and the award of maintenance commenced in February 1981.

At the trial, the following relevant evidence was adduced.

During the marriage the parties acquired the following assets: a Chicago condominium; 10 unimproved parcels of land located in Pensacola, Florida; approximately 1,625 shares of stock in various companies, valued at $58,675, and which generate annual dividends of about $400 to $500; a restaurant business known as Le Bordeaux Restaurant, located at 3 West Madison Street, Chicago; certain checking and savings accounts in Chicago and abroad; a condominium located in Vesoul, France; a house and farm located at Neurey, France; and various items of personal property, household goods, furniture and furnishings.

George Cuisance testified that in 1976 he purchased 200 shares representing 50% of the stock of the restaurant business, Le Bordeaux, from his former partner for $125,000 and that he now owns 100% of the restaurant.

Al Richman, accountant for Le Bordeaux and George's personal accountant, testified that George bought out the former co-owner of the restaurant for about $104,000; that George gave the co-owner a note for $64,000 payable within three years, a note for $15,000 payable on a monthly basis until the expiration of the restaurant's lease in 1985, and $25,000 in cash. George was forced to buy out the co-owner's shares because the latter was moving from Chicago and would not be able to help George operate the restaurant.

In 1976 the restaurant's gross receipts were $510,647, and in 1980 they were $645,853. Richman stated that considering assets and liabilities, the net worth of the restaurant on December 30, 1980, was $63,285. The liquidation value of the restaurant would be up to 30 cents on the dollar. A new location for the restaurant was being sought due to the expiration of the lease in 1985.

In 1977 George drew compensation from the restaurant in the amount of $72,250; in 1978, $80,754; in 1979, $75,984; and in 1980, $58,734. In 1980 he left $20,186.49 in the corporation for certain income tax advantages. In addition, the business pays for George's life and health insurance.

Marshall Frishman, an accountant, testified on behalf of Wanda over petitioner's objections. He reviewed the restaurant's books and records and concluded that notwithstanding the lease, the fair market value of the restaurant was in excess of $200,000. This figure took into consideration the restaurant's good will. He could not, however, place a value on the business in the event of its relocation.

The parties' Chicago condominium located at 1440 North Lake Shore Drive was purchased in 1972 for $57,000. The mortgage balance at trial was $30,143.35. The parties stipulated to an exterior real estate appraisal value of the condominium of $174,000. Wanda testified that interior spaces of the condominium are in a bad state of repair and that $20,000 would be needed to make necessary repairs. She valued the premises in its present condition at between $120,000 to $130,000.

George testified that he also owns a condominium, a house and a 40-acre farm in France. He stated that he inherited the condominium upon his mother's death in June 1979 and that title to all these properties are in his name. No testimony was given establishing the manner of acquisition of the farm property. George testified that his uncle Lucien Henriot resides in the stone house located on the farm and that he has sent money to this uncle for remodeling expenses. He also maintained that his uncle pays the taxes on the farm. Wanda testified that George had told her that the French condominium was his property and that he had paid for it. No evidence of value of any of the French properties was adduced at trial.

Ten unimproved lots in Pensacola, Florida, were purchased during the marriage for $10,000 to $12,000. George has never seen these lots and it was his understanding that they tend to be flooded when it rains. He testified that these lots are worth less today than when ...


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