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In Re Marriage of Mullins

OPINION FILED JANUARY 11, 1984.

IN RE MARRIAGE OF GEORGE ELLIS MULLINS, PETITIONER-COUNTERRESPONDENT-APPELLEE AND CROSS-APPELLANT, AND WINIFRED MULLINS, RESPONDENT-COUNTERPETITIONER-APPELLANT AND CROSS-APPELLEE.


Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal lies from an order of the circuit court of Champaign County which dissolved the marriage of the parties, established valuations for marital and non-marital property and then divided such properties between the parties, and awarded the wife her attorney fees and costs and maintenance. The wife appeals the property division and the award of maintenance; the husband cross-appeals the award of the wife's attorney fees and costs. We affirm.

The dissolution was ordered upon the counterpetition of the wife; the court found that the children of the parties were of age and emancipated. Neither of these matters is disputed on appeal.

The trial court's order allocating property gives approximately 60% to the husband and 40% to the wife. Because of this division, the husband was ordered to pay certain marital debts. By subtracting these from his aliquot share, the division then becomes roughly equal. In her appeal the wife does not contest the 60/40 division as inequitable per se; she does maintain that the trial court abused its discretion in the valuation of certain assets, that the award of maintenance was inadequate, and that the calculation of the debts assigned to the husband was erroneous. She claims that by revaluing the assets and by correctly calculating the debts downward, the husband in fact received more than 60% and she received proportionately less.

Much of the valuation testimony was uncontroverted. A major controversy was over the valuation of the stock in Brown, Davis, Mullins and Associates (BDM), a consulting engineering firm, of which the husband is president and sole stockholder.

• 1, 2 The fundamentals of division of marital property are well known. The reviewing court will not substitute its judgment for that of the trial court unless an abuse of discretion may be shown and such abuse exists only where no reasonable man could adopt the trial court's position. (In re Marriage of McDonald (1983), 113 Ill. App.3d 116, 446 N.E.2d 559.) There is no requirement that a trial court place a precise figure on each item of property, but only that there be competent evidence of value and that the court's division be supported by that evidence. (In re Marriage of Cuisance (1983), 115 Ill. App.3d 551, 450 N.E.2d 1302; In re Marriage of Miller (1983), 112 Ill. App.3d 203, 445 N.E.2d 811.) It is a matter of common knowledge that the valuation of a closely held corporation, especially one dealing in services and largely dependent upon the personalities and abilities of its principals, is not an exact science. One need only to view the mountain of Federal tax litigation on the subject in order to come to this conclusion.

The wife maintains that the trial court did not receive adequate evidence of valuation of BDM shares. We disagree. The court heard evidence from the husband, BDM's accountant (Max Tarble), the other current principal participant in BDM (Jerry Ramshaw), and the secretary-treasurer of the corporation (Robert Ogden). This testimony revealed that a buy-sell agreement had been in effect among the three original shareholders of BDM, namely Brown, Davis, and husband. When Brown died in 1978, the agreement's formula was used to value his shares. Although no longer in effect after Brown's death, the agreement was also used as the basis for a valuation of Davis' shares when he retired in 1979. The trial court expressly stated in its opinion that it considered these valuations of BDM stock in the recent past in arriving at a corporate valuation. The court also heard testimony concerning the corporate profit-loss trend over the years, and the outlook at the time of the trial. The court considered the current financial statements of BDM. Further, the trial court considered evidence of BDM stock sale negotiations between husband and Ramshaw occurring from 1980 until the present divorce proceedings began.

• 3 Stock is generally valued at its market value. (In re Marriage of Olsher (1979), 78 Ill. App.3d 627, 397 N.E.2d 488.) This is true even in the case of a closely held corporation providing that there is a market for the shares. Therefore, the negotiations between Ramshaw and husband are competent evidence of value. Similarly, stock valuations in the recent past are indicative of present value. In the present case the court was also aided by detailed documentary evidence concerning the present and historical financial status of BDM. The evidence was provided by persons intimately involved with BDM and was unrefuted. While only the husband's opinion as to the actual present value of the stock was presented, such specific opinion testimony should not be required. Evidence of arms-length valuations in the recent past may be at least as helpful to the court. It appears then that this evidence would provide an ample basis upon which the court could arrive at a valuation for the BDM stock.

• 4 Of major significance, in our opinion, apart from the valuation testimony and exhibits introduced by the husband, is the failure of the wife to present any evidence at all on the question of the valuation of the BDM stock. We acknowledge that there is a line of authority holding that a litigant need not present evidence of value of marital assets at trial in order to raise the issue on appeal. (In re Marriage of Reib (1983), 114 Ill. App.3d 993, 449 N.E.2d 919.) Other recent cases have questioned the principle. In In re Marriage of Smith (1983), 114 Ill. App.3d 47, 54-55, 448 N.E.2d 545, 550, the court said:

"We again emphasize that it is the parties' obligation to present the court with sufficient evidence of the value of the property. Reviewing courts> cannot continue to reverse and remand dissolution cases where the parties have had an adequate opportunity to introduce evidence but have failed to do so. Parties should not be allowed to benefit on review from their failure to introduce evidence at trial. (In re Marriage of Miller (1983), 112 Ill. App.3d 203, 209; see In re Marriage of Melton (1981), 93 Ill. App.3d 338, 341, 417 N.E.2d 220, 223.) Remanding cases such as the one before us would only protract the litigation and clog the trial courts> with issues which should have been disposed of at the initial hearing. As the trial court here said after numerous hearings in this case, at some point we must `ring the curtain down.'"

(Accord In re Marriage of McCartney (1983), 116 Ill. App.3d 512, 452 N.E.2d 114.) We, too, express our agreement with the Smith and McCartney courts>.

• 5 In sum, the trial court had before it a plethora of testimony and exhibits on valuation of the stock, all provided by the husband, and nothing from the wife. Its valuation was well within the range of the evidence. There was no abuse of discretion, and we find no basis upon which to gainsay its finding.

The wife's next contention is that the trial court erred in assigning a zero valuation to certain limited partnerships which the husband had purchased as tax shelters. At trial the husband testified that he had very little knowledge of the investments; that two of them obliged him to invest an additional $40,000 and $34,000 respectively; that they could not be assigned without consent of the general partner; and that any assignee must be in a 50% tax bracket and have a net worth of $100,000. To assist the court, the husband presented a prospectus from each entity. These stated, among other things, that each investor should be prepared to lose his entire investment and to expect little liquidity.

• 6 As in the case of the BDM stock, the wife failed to introduce any countervailing evidence as to the valuation of the limited partnerships. In the light of the husband's evidence, the court's valuation of zero does not appear unreasonable. It might well have considered the interests a ...


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