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04/28/87 In Re Marriage of Marie R. Courtright

April 28, 1987

IN RE MARRIAGE OF MARIE R. COURTRIGHT,


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

Petitioner-Appellant, and JOHN B. COURTRIGHT,

Respondent-Appellee

507 N.E.2d 891, 155 Ill. App. 3d 55, 107 Ill. Dec. 738 1987.IL.553

Appeal from the Circuit Court of Iroquois County; the Hon. Robert L. Dannehl, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. BARRY, P.J., and SCOTT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

This is an action to dissolve the marriage of Marie and John Courtright. The plaintiff, Marie, appeals from that portion of the judgment of the circuit court of Iroquois County pertaining to the distribution of marital property, the award of permanent maintenance, and the denial of her request for attorney fees.

The evidence introduced at trial established that the parties were married in 1956 and invested 29 years in the marriage prior to its termination. Four children were born, all adults at the time of the dissolution. The defendant, John, is a licensed physician and practices in a three-man clinic as a general practitioner. He is in his late fifties. John's adjusted gross income for the four years prior to the dissolution ranged from $83,000 to $100,000. Marie is in her mid-fifties, has a degree in education from Northwestern University, but is not presently licensed to teach. She has not worked outside the home since 1958 but has obtained seasonal employment as a switchboard operator at a Colorado resort at $5.75 an hour. She is in general good health except for some residual disability in her left foot as a result of childhood polio. At the time of the dissolution she had also shown some discomfort in her right foot from an arthritic condition. Her health prevents her from working at jobs which require her to be on her feet for any length of time.

The trial court found that the value of all marital assets was agreed upon except for the value of John's medical practice. The court awarded certain IRA accounts, household goods, the family's 200-acre farm free and clear of all liens, and the marital home to Marie. The home, valued at $135,000, was subject to a $22,000 mortgage. The court awarded John certain assets which include two items in dispute on this appeal. Marie claims that improper valuations were attached to John's pension fund and accounts receivable for his medical practice, which in turn adversely affected the property distribution. While the defendant has a significant income generated from his medical practice, he also incurred substantial obligations via the property distribution, including significant litigation costs, payable almost solely from that income.

The trial court did not award permanent maintenance on the basis that property allocated to Marie, together with her potential earning abilities, would provide her with sufficient income. It did, however, award rehabilitative maintenance in the amount of $1,100 per month in order to help Marie adjust to her new status and provide time to seek suitable employment and improve her skills, if necessary. The court retained jurisdiction to review the issue of further extension of the award at the end of two years although the court believed that this award, together with investment and rental income, should permit Marie to become and remain financially independent in the future.

The trial court also denied Marie's request for attorney fees. The court reasoned that John had already been assigned significant litigation costs as debts and noted that, although the fees were reasonable, insufficient evidence was presented to support them or to establish Marie's inability to pay them.

The first issue presented by the parties centers on the property distribution and certain valuations attached to the good will and accounts receivable of John's medical practice and the value placed on John's pension fund. Marie contends that the failure of the court to consider the good will of the practice and improper valuations of the accounts receivable and John's pension fund produced an inequitable property distribution.

The Illinois courts have differed on whether the good will developed in a professional practice deserves separate consideration and specification as an asset of the practice or whether it is a factor already given consideration under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.). In In re Marriage of White (1981), 98 Ill. App. 3d 380, 424 N.E.2d 421, the court held that good will should be considered separately because "despite the intangible quality of good will in a professional practice, it is of value to the practicing spouse both during and after the marriage and its value is manifested in the amount of business and, consequently, in the income which the spouse generates." (98 Ill. App. 3d 380, 384, 424 N.E.2d 421, 424; see also In re Marriage of Rubinstein (1986), 145 Ill. App. 3d 31, 495 N.E.2d 659.) The counterpoint to this argument was expressed in In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447, when the court held that this definition of good will is reflected in three of the factors which the trial court must consider in reaching a just property distribution under section 503(d) of the IMDMA. The Wilder court's Conclusion was that the ability to generate income, which the ...


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