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09/30/97 MARRIAGE PAUL M. MCHENRY PETITIONER AND

September 30, 1997

IN RE MARRIAGE OF PAUL M. MCHENRY, PETITIONER AND COUNTERRESPONDENT-APPELLANT, AND PATRICIA A. MCHENRY, RESPONDENT AND COUNTERPETITIONER-APPELLEE.


APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, COUNTY DEPARTMENT, DOMESTIC RELATIONS DIVISION. No. 91-D-16747. THE HONORABLE GEORGE W. ROTHSCHILD AND DRELLA SAVAGE, JUDGES PRESIDING.

Rehearing Denied October 28, 1997. Released for Publication November 26, 1997.

Presiding Justice Cousins delivered the opinion of the court. Cahill and Leavitt, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Petitioner, Paul M. McHenry, appeals from a supplemental judgment for dissolution of marriage entered on June 29, 1995, involving the distribution of marital and nonmarital property. On appeal, petitioner seeks reversal and remand for a new trial, arguing that the trial court failed to create an equitable distribution by: (1) awarding respondent the more profitable of two businesses without regard to their respective values and based solely on each party's respective contributions to the businesses; (2) avoiding the issue of dissipation of marital property; (3) failing to take into account petitioner's economic circumstances, age, health, needs, future income prospects, and prior financial obligations; (4) failing to take into account the relative credibility of the parties in weighing their testimony; and (5) awarding attorney fees outside the parties' presence and without a hearing.

BACKGROUND

Petitioner, Paul M. McHenry, appeals from the supplemental judgment for dissolution of marriage entered on June 29, 1995, which divided the nonmarital and marital property of petitioner and respondent, Patricia A. McHenry. Petitioner and respondent were married in 1979, at which time petitioner owned a sole proprietorship accounting practice, and respondent was employed as the comptroller of a potato company. During the marriage, the parties acquired three businesses and three parcels of real property: Telecom Answering Service (Telecom); McHenry and McHenry, Ltd. (McHenry and McHenry), an accounting firm formed by both parties; Martin Welding Machine Rental and Repair (Martin Welding), a machine rental business located in Hammond, Indiana; the real estate occupied by Martin Welding; rental property in Homewood, Illinois, consisting of 13 residential and commercial units; and a marital residence in Olympia Fields, Illinois. In addition, the parties acquired a membership in the Olympia Fields Country Club. Also, upon separation in 1991, the parties sold their accounting business, McHenry and McHenry, to a third party under a five-year buyout agreement.

After extensive evidence was presented by both parties, the trial court distributed the assets in the following manner. Respondent was awarded Telecom, half of the net proceeds from the sale of the marital residence, half of the net proceeds from the sale of the Homewood real estate, half of the net rental income remaining from the Homewood property, and all accounts held solely in respondent's name. Petitioner was awarded Martin Welding, the real property upon which Martin Welding was located, any and all past and future proceeds from the sale of McHenry and McHenry, any and all interest in the Olympia Fields Country Club, half of the net proceeds from the sale of the marital residence, half of the net proceeds from the sale of the Homewood real estate, half of the net rental income remaining from the Homewood property, and all accounts held solely in petitioner's name.

On appeal, petitioner argues on several grounds that the above distribution was inequitable.

We affirm.

I

Petitioner first contends that an inequitable distribution of marital assets resulted from the trial court's failure to make determinations as to the value of the two principal, ongoing business assets, Telecom and Martin Welding. At trial, both parties presented voluminous evidence regarding the value of the marital assets. The parties' expert witnesses, however, disagreed as to the value of Telecom and Martin Welding.

Petitioner's expert valued Telecom at $590,000, while respondent's expert concluded that it was worth $440,000. Petitioner argues that respondent's expert undervalued Telecom by including an unusually low revenue period in his evaluation. Contrarily, respondent argues that petitioner's expert exaggerated Telecom's value by factoring in an unusually low chief executive officer salary.

The experts also disagreed as to the value of the McHenrys' less successful business, Martin Welding. Petitioner's expert concluded that this business was worth $292,000, while respondent's expert valued it at $410,000. Once again, both experts disagreed on several factors, including the owner's compensation. In addition, petitioner's expert opined that the fair market value of the land upon which Martin Welding was located was $100,000. Respondent's expert valued the property closer to $175,000. Petitioner, however, argues that, due to a strong possibility that the property contains environmental contamination, its value may be little or nothing. Respondent claims that petitioner's argument is wholly speculative and unsupported by any evidence of contamination.

At trial, the court made no determination as to the current market value of Telecom or Martin Welding and its property before making its distribution. The court did note, however, that in awarding Telecom to respondent and Martin Welding to petitioner, it considered "the relative contribution [sic ] of the parties to the respective assets over the rather long life of [their] ...


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