Marriage of Talty, In re

Page 1041

623 N.E.2d 1041

252 Ill.App.3d 80, 191 Ill.Dec. 451

In re Marriage of Helen TALTY, (Petitioner-Appellee Cross-Appellant, and William F. Talty Respondent-Appellant, Cross-Appellee).

Nos. 3-92-0939, 3-93-0097.

Appellate Court of Illinois Third District.

Nov. 22, 1993.

Rehearing Denied Dec. 23, 1993.

Robert E. White, White Marsh Anderson Howarter Brusatte & Vickers (argued), Ottawa, for William F. Talty.

Michael H. Massino, Michael H. Massino, Ltd. (argued), Morris, for Helen Talty.

Justice LYTTON delivered the opinion of the court:

This consolidated appeal involves the divorce of petitioner, Helen Talty (Helen), from respondent, William F. Talty (William). Helen and William were married in April 1961. William was employed as a construction worker and part-time farmer until 1975 when he and his brother became owners and operators of an automobile dealership known as "Talty Chevrolet, Cadillac, Buick" located in Morris. Thereafter, William worked at the dealership and also continued working as a part-time farmer.

Helen filed a petition for separate maintenance in Grundy County Circuit Court in April 1983, which was subsequently amended in February 1984 to a petition for dissolution of marriage. For reasons not clear from the record, a trial was not held on the petition until October 1992. The trial court awarded Helen $750,000 in cash and the condominium in which she lived, subject to the mortgage on the property. William appealed this award and Helen filed a cross-appeal. Helen then petitioned for prospective appellate attorney fees, and the trial court granted her $15,000. William also appeals this award, which was consolidated with the earlier appeal. We affirm the trial court on all issues.

William first argues that the trial court erred in denying his motion for substitution of judge pursuant to Ill.Rev.Stat.1983, ch. 110, par. 2-1001(a)(2). Helen filed her petition for separate maintenance on April 11, 1983. The judge assigned to the case was Judge Robert Wren. William's attorney filed his special and limited appearance along with a motion for change of venue requesting a substitution of Judge Wren. This motion was never heard and no order was entered on it.

The trial court entered an order awarding temporary maintenance to Helen on June 17, 1983. This order was signed by Judge Richard Wilder, who had apparently been assigned to the case. No order was entered to reflect this change. On February 24, 1984, Helen was granted leave by the court to modify her separate maintenance petition to a petition for dissolution of marriage.

On August 30, 1984, William again moved for a change of venue pursuant to Ill.Rev.Stat.1983, ch. 110, par. 2-1001(a)(2), asking for a substitution of Judge Wilder. Judge Wilder denied this motion and made specific findings on the record as to his lack of prejudice against William.

A litigant's right to a change of venue is absolute where a petition alleging that the presiding judge is prejudiced is presented before trial or hearing begins, and before the judge that is the subject of the petition has ruled on any substantial issue in the cause. (In re Marriage of Birt (1987), 157 Ill.App.3d 363, 366, 109 Ill.Dec. 691, 510 N.E.2d 559, appeal denied 116 Ill.2d 556, 113 Ill.Dec. 292, 515 N.E.2d 101, citing Ill.Rev.Stat.1985, ch. 110, pars. 2-1001(a)(2), (c).) A change of venue petition based on general allegations of prejudice is untimely if brought after the judge has ruled on a substantial issue. (in rE marriage oF birt, 157 ilL.app.3d at 366, 109 ilL.dec. 691, 510 N.E.2d 559.) The policy behind this rule is to preclude a litigant's attempt to "judge shop" after forming an opinion that the judge may be unfavorably disposed toward that litigant's cause. In re Marriage of Kozloff (1984), 101 Ill.2d 526, 530-31, 79 Ill.Dec. 165, 463 N.E.2d 719.

William contends that when Helen modified the separate maintenance action to a dissolution of marriage action, he acquired a new unconditional right to a change of venue. Thus, the temporary maintenance order would not be a ruling on a substantial issue.

While it is true that an action for divorce is separate from an action for separate maintenance, "they are for the same cause and the relief requested relates to substantially the same state of facts." (Sidwell v. Sidwell (1966), 75 Ill.App.2d 133, 143, 220 N.E.2d 479.) Here, Helen modified her petition; the case retained the same docket number and docket sheet. The June 17, 1983, temporary maintenance order continued without adjustment during the pendency of the litigation. Orders are considered substantial when they are directly related to the merits of the case. (Delta Oil Co. v. Arnold (1978), 66 Ill.App.3d 375, 380, 23 Ill.Dec. 389, 384 N.E.2d 25.) We believe that a temporary maintenance order was a ruling on a substantial issue in the cause, and allowed William to form an opinion as to Judge Wilder's disposition in the cause. The trial court properly decided to deny William's petition for a change of venue.

William next argues that the trial court erred in considering the opinion testimony of Helen's expert witness, William Evenson, concerning his valuation of the automobile dealership. William contends that Evenson's reliance on data from a publication by Robert Morris & Associates was improper because it contains a disclaimer that states,

"(1) That the data should be considered only as a general guideline and not as absolute industry norms; (2) the data may not be fully representative of a given industry; (3) the financial statements that are used in compiling the data are not selected by any random or statistically reliable method; (4) some of the industry samples are rather small in a relationship the [sic] total number of firms in a given industry and hence the small sample can increase the chance that some composites do not fully represent the industry; (5) there is a chance that an extreme statement may be present in the data that could result in a disproportionate influence on the industry composite."

A trial court has broad discretion in determining whether a witness has been qualified to testify as an expert. (In re Marriage of Hunter (1992), 223 Ill.App.3d 947, 954, 166 Ill.Dec. 242, 585 N.E.2d 1264, appeal denied 145 Ill.2d 634, 173 Ill.Dec. 4, 596 N.E.2d 628.) A party seeking to have a witness qualified as an expert must lay a proper foundation showing that the expert has some special knowledge or experience in the area about which the expert intends to express his or her opinion. (In re Marriage of Hunter, 223 Ill.App.3d at 954, 166 Ill.Dec. 242, 585 N.E.2d 1264.) An expert witness' opinion may not be based on mere conjecture or speculation. (Dyback v. Weber (1986), 114 Ill.2d 232, 244, 102 Ill.Dec. 386, 500 N.E.2d 8.) Additionally, if the data upon which the expert relies contains substantial unreliability or inaccuracy, it may be stricken. (Lowe v. Norfolk & Western Railway Co. (1984), 124 Ill.App.3d 80, 114, 79 Ill.Dec. 238, 463 N.E.2d 792.) However, if the trial court finds that a witness is qualified to testify as an expert, this decision will not be disturbed absent an abuse of discretion. Black v. Iovino (1991), 219 Ill.App.3d 378, 388, 162 Ill.Dec. 513, 580 N.E.2d 139.

In this instant case, William's attack on Evenson's valuation is centered on the alleged unreliability or inaccuracy of the data utilized by Evenson in the Robert Morris & Associates publication. The Robert Morris publication accumulates financial data provided by American businesses and presents this data in a statistical break-down according to asset size of the business. The publication has a data sheet devoted exclusively to automobile retailers. Evenson testified that the data that he utilized was accumulated from between 1,500 and 2,000 automobile retailers, and that in his opinion, the data was adequately reliable to be used in his valuation calculations.

We believe that the trial court did not abuse its discretion in allowing Evenson's testimony; any deficiency in the Robert Morris data goes to the weight of Evenson's testimony, not to the admissibility. See Illinois State Toll Highway Authority v. Humphrey Estate (1978), 62 Ill.App.3d 316, 326, 19 Ill.Dec. 754, 379 N.E.2d 626.

Further, Evenson did not base his opinion exclusively on the Robert Morris data. Both Evenson and Carl Woodward, William's expert witness, utilized essentially the same method of valuing Talty Chevrolet, the capitalized earnings method. Both opinions used the Talty Chevrolet income tax returns to determine the adjusted gross income of the business, which was divided by a rate of return to determine the value of the asset. The experts' opinions differed substantially on two figures, the rate of return and the proper figure for management compensation. In light of the evidence presented, we find that the trial court did not abuse its discretion and properly allowed Evenson's testimony to be admitted.

William also asserts that the trial court duplicatively considered the goodwill of Talty Chevrolet, because, under the statute, future earnings are already considered by the court in fashioning an award of maintenance or distribution of property. Goodwill has been defined as "the ability to generate future income." (In re Marriage of Zells (1991), 143 Ill.2d 251, 254, 157 Ill.Dec. 480, 572 N.E.2d 944.) This court has found that the consideration of goodwill in the valuation of a professional business in addition to a party's ability to generate future income results in an impermissible duplicative valuing of goodwill. (In re Marriage of Courtright (1987), 155 Ill.App.3d 55, 58-59, 107 Ill.Dec. 738, 507 N.E.2d 891.) Under the Illinois Marriage and Dissolution Act (Act) (Ill.Rev.Stat.1989, ch. 40, par. 101 et seq.), a trial court is required to consider certain factors in apportioning marital assets. The pertinent factors include:

"[T]he relevant economic circumstances of each spouse when...