Docket No. 97430-Agenda 14-November 2004.

In re MARRIAGE OF EARL M. SCHNEIDER, Appellant, and JODI
ANN SCHNEIDER, Appellee.

Opinion filed January 21, 2005.
 

JUSTICE THOMAS delivered the opinion of the court:

Appellant, Earl Schneider, filed a petition in the circuit court ofLake County seeking the dissolution of his marriage to appellee, JodiAnn Schneider. The circuit court entered a judgment for dissolutionof marriage incorporating its findings and decisions. Among thecontested issues at trial was the value of Earl's dental practice. Invaluing Earl's dental practice, the circuit court excluded personalgoodwill and accounts receivable from the fair market value of thepractice. The circuit court also allocated 67% of the marital assets toJodi, noting the duration of the marriage, the reasonable opportunityof each spouse for the future acquisition of capital assets and income,and that the apportionment of assets was in lieu of maintenance. Thecircuit court also determined that each party would be responsible forhis or her own attorney fees.

The appellate court affirmed the circuit court in part and reversedin part. 343 Ill. App. 3d 628. The appellate court affirmed the circuitcourt's holding that each party should be responsible for his or herown attorney fees. However, the appellate court held that personalgoodwill and accounts receivable should have been included in thevaluation of Earl's dental practice. The appellate court thereforereversed the circuit court's valuation of the dental practice andremanded for a redistribution including those assets. This court thenallowed Earl's petition for leave to appeal the appellate court'sholding that personal goodwill and accounts receivable should havebeen included in the valuation of the dental practice. 177 Ill. 2d R.315.

BACKGROUND

Earl and Jodi were married in August 1985. The parties had threechildren during their marriage: Ashley, born in 1986; Justin, born in1989; and Jordan, born in 1991. Earl filed a petition for dissolution ofmarriage on September 15, 2000. Prior to trial on the petition fordissolution, the parties stipulated that Earl's gross income as a self-employed dentist was $325,000, with a net income of $195,000. Inaddition, each party waived maintenance, although Jodi later indicatedthat she had reserved the right to seek a disproportionate share of theassets in light of her waiver of maintenance. Child support was set at$5,400 a month until Ashley attained majority or graduated highschool. Thereafter, child support was set at $4,062.25 until Justinattained majority or graduated high school. Child support then wasreduced to $3,250 per month until Jordan attained majority orgraduated high school. The tax exemptions for the children wereallocated to Earl, and Earl agreed to pay the children's healthinsurance. Jodi was awarded sole custody of the children.

At trial, Jodi testified that she graduated from college in 1981with a B.S. in accounting. She became a CPA in 1983. Aftergraduating, Jodi began working full time as a staff accountant forWarady and Davis. Jodi was promoted to supervisor when she waspregnant with Ashley. Jodi continued to work full time until Ashleywas born in 1986. Over Earl's objections, Jodi then worked part-timeuntil Justin was born. After Justin was born, Jodi stopped working atWarady and Davis pursuant to Earl's request, although she continuedto do bookkeeping and payroll taxes for one client, workingapproximately four hours every three months. In addition, Jodi did thereceivables, accounting, payables, bills and insurance for Earl's dentalpractice from the time he graduated from dental school untilapproximately the summer of 2000. Jodi testified that had shecontinued to work full time for Warady and Davis, she would havebeen promoted to manager and then to partner. Managers earn from$75,000 to $100,000 a year, while partners earn more than $100,000a year.

Jodi went back to work part-time for Warady and Davis inSeptember 1998, when her youngest child began school. She currentlyhas three clients. Jodi earned a gross income of $4,385.25 in 2000.From January through October 2001, Jodi had grossed approximately$5,800. Jodi testified that she earns $30 an hour at Warady and Davis.

Earl testified that on March 24, 1987, he entered into anemployment agreement with Jack E. Taub, D.D.S., Ltd., an Illinoisprofessional corporation. Pursuant to the employment agreement, Earlwas to receive a monthly salary equal to 40% of the net collections ofhis monthly billings. On August 24, 1987, Earl entered into a secondemployment agreement with Jack E. Taub, D.D.S., Ltd., whichprovided for a monthly draw of $4,000 through January 31, 1988, andon a year-to-year basis thereafter, provided Earl had purchased certainshares of Jack E. Taub, D.D.S., Ltd. Also on August 24, 1987, Earlentered into a stock purchase and redemption agreement with Dr.Taub and Jack E. Taub, D.D.S., Ltd. Earl testified that he purchasedthe dental practice from Dr. Taub in 1987 for $350,000, althoughagreed interest payments brought the total cost to $550,000. Dr. Taubagreed to stay at the practice for 30 months, and also agreed to a five-mile radius noncompete provision. Earl testified that he did not loseany of Dr. Taub's patients following the transition, and that thepractice's current gross income was approximately $800,000 a year.Jodi claimed that the total purchase price for the business was$650,000.

As noted, at trial on the petition for dissolution, the partiescontested the valuation of Earl's dental practice and the allocation ofmarital property. Earl's expert witness, Stephen Mareta, testified thatthe fair market value of the dental practice was $346,300. Of thisamount, Mareta attributed $311,300 to personal goodwill and$35,000 to fixed assets. The fixed assets included property andequipment, but did not include cash on hand, accounts receivable, cashsurrender value of life insurance, and loans due from officers. Maretatestified that the accounts receivable were merely a reflection of futureincome.

Jodi's expert witness, Bruce Richman, testified that the fairmarket value of the dental practice was $481,000. Richman attributed$144,413 to tangible assets, including accounts receivable, furnitureand equipment, cash surrender value of insurance, and inventory.Richman attributed the remaining $336,587 to intangible assets,although Richman stated that those intangible assets did not includepersonal goodwill. Richman described the intangible assets asincluding dental records, the leasehold interest, a trained work force,intellectual property, trade names and enterprise goodwill.

On January 23, 2002, the circuit court entered its findings anddecision. The circuit court valued Earl's dental practice at $38,300.This amount included $8,000 in inventory and $30,330 in furnitureand equipment. The circuit court did not include accounts receivable,cash on hand, cash surrender value of life insurance, and loans duefrom officers in the valuation, accepting Earl's argument that includingthose items in the valuation would result in a double counting of thoseassets. In addition, the circuit court held that any goodwill that existedin the practice was personal goodwill that should not be included indetermining the fair market value of the dental practice. The circuitcourt stated that Jodi's expert witness had failed to establish theexistence of any enterprise goodwill in the practice.

The circuit court next addressed each party's request forcontribution toward attorney fees. The circuit court noted that bothparties had been extremely litigious and "quarrelsome" during theentire process, and that each had been unreasonable from time to time,resulting in an unnecessarily expensive divorce. The circuit court heldthat legal fees would not be based upon the misconduct orlitigiousness of the other party because both parties were equallyguilty of such conduct. The circuit court then considered the factorsset forth in section 503 of the Illinois Marriage and Dissolution ofMarriage Act (Dissolution Act) (750 ILCS 5/503 (West 2000)), aswell as the allocation of marital property and debt, and held that eachparty should be responsible for his or her own legal fees and costs.

The circuit court then allocated 67% of the marital assets to Jodiand 33% to Earl, for an approximate distribution of $326,000 to Jodiand $161,000 to Earl. The circuit court stated that in determining theallocation of marital assets, it found that the following factors weighedheavily in favor of a disproportionate allocation: the duration of themarriage (750 ILCS 5/503(d)(4) (West 2000)); whether theapportionment of assets was in lieu of or in addition to maintenance(750 ILCS 5/503(d)(10) (West 2000)); and the reasonable opportunityof each spouse for future acquisition of capital assets and income (750ILCS 5/503(d)(11) (West 2000)). The circuit court then entered ajudgment for dissolution of marriage on March 4, 2002, incorporatingits findings and decision. The circuit court subsequently denied Earl'smotion for reconsideration.

Earl then appealed the circuit court's judgment and Jodi filed across-appeal. Earl later filed a motion to dismiss his appeal, so thatonly Jodi's cross-appeal remained pending. Relevant to the instantcase, Jodi argued on appeal that the circuit court had erred in itsvaluation of Earl's dental practice and thus in its ultimate distributionof the marital property. Jodi argued that the circuit court should haveincluded goodwill, accounts receivable, loans due from officers, cashsurrender value of insurance policies, and cash on hand in its valuationof the dental practice. Jodi also argued that the circuit court shouldhave ordered Earl to contribute to her attorney fees.

The appellate court, with one justice dissenting, reversed thecircuit court in part. 343 Ill. App. 3d 628. The appellate court foundthat the circuit court erred in excluding personal goodwill from thevaluation of Earl's dental practice. 343 Ill. App. 3d at 636. Theappellate court acknowledged that this court, in In re Marriage ofZells, 143 Ill. 2d 251 (1991), held that personal goodwill is not to beconsidered a divisible marital asset. 343 Ill. App. 3d at 635. Theappellate court concluded, however, that if goodwill is not consideredas part of a spouse's income-generating ability relative to amaintenance award, it may be considered in the valuation of aprofessional practice as a divisible marital asset. 343 Ill. App. 3d at636. In addition, the appellate court held that accounts receivable arebusiness assets and should have been included in the valuation of thedental practice. 343 Ill. App. 3d at 637. Likewise, the appellate courtfound that the circuit court erred in not including the cash on hand,cash surrender value of insurance policies and loans due from officersin determining the fair market value of the dental practice. 343 Ill.App. 3d at 637. The appellate court therefore reversed the circuitcourt's property distribution and remanded to the circuit court for aredistribution including the items of marital property that wereerroneously omitted from the original judgment for dissolution. 343Ill. App. 3d at 637. Finally, the appellate court held that the circuitcourt did not abuse its discretion in determining that Jodi was able topay her own attorney fees. 343 Ill. App. 3d at 638.

Justice Bowman, dissenting, disagreed with the majority'sconclusion that the circuit court erred in not including personalgoodwill in the valuation of Earl's dental practice. 343 Ill. App. 3d at638 (Bowman, J., dissenting). Justice Bowman stated that themajority's holding was contrary to the language expressed by thiscourt in Zells. 343 Ill. App. 3d at 638 (Bowman, J., dissenting).Justice Bowman noted that the circuit court considered both Jodi'swaiver of maintenance and the future income generating ability ofeach party in awarding Jodi a disproportionate share of the maritalassets. 343 Ill. App. 3d at 639 (Bowman, J., dissenting). In addition,the circuit court based its child support award on Earl's income fromhis dental practice. 343 Ill. App. 3d at 639 (Bowman, J., dissenting).Justice Bowman concluded that, because the personal goodwill ofEarl's dental practice was reflected in the child support award, anyadditional consideration of goodwill in the valuation of his dentalpractice would be duplicative and improper. 343 Ill. App. 3d at 639(Bowman, J., dissenting), quoting Zells, 143 Ill. 2d at 256.

Earl then petitioned this court for leave to appeal from theappellate court's holding that goodwill and accounts receivable shouldhave been included in the valuation of his dental practice. This courtallowed Earl's petition for leave to appeal. 177 Ill. 2d R. 315. Jodicross-appealed, again challenging the circuit court's failure to orderEarl to pay her costs and attorney fees. Jodi also argues on cross-appeal that if this court finds that goodwill and accounts receivablewere properly excluded from the valuation of Earl's dental practice,this court should remand to the circuit court for a reconsideration ofJodi's waiver of maintenance.

ANALYSIS

As noted, Earl first argues that the appellate court erred inincluding the personal goodwill of his dental practice as an element ofvaluation. Generally, the valuation of assets in an action fordissolution of marriage is a question of fact, and the circuit court'sdetermination will not be disturbed absent an abuse of discretion. Inre Marriage of Stone, 155 Ill. App. 3d 62, 70 (1987). However, theissue in this case-whether personal goodwill must be considered adivisible marital asset when spousal maintenance is notawarded-presents an issue of law and not a question of fact.Accordingly, this court reviews the issue de novo. See In re Marriageof Crook, 211 Ill. 2d 437, 442 (2004).

In support of his claim that the appellate court erred inconsidering personal goodwill in valuing his dental practice, Earlcontends that the appellate court majority misinterpreted this court'sdecision in In re Marriage of Zells, 143 Ill. 2d 251 (1991). At issuein Zells was the division and distribution of marital property betweena lawyer and his spouse. Zells, 143 Ill. 2d at 252. The circuit courtand the appellate court had found that the goodwill in the husband'slaw practice was a marital asset subject to division and distribution.Zells, 143 Ill. 2d at 252. In addressing the issue, this court noted thatthe appellate court districts were divided on the issue of whetherpersonal goodwill should be considered in valuing a professionalpractice. Zells, 143 Ill. 2d at 254-55. For example, the Fifth District,in In re Marriage of White, 98 Ill. App. 3d 380, 384 (1981), had heldthat goodwill was a factor to be considered in valuing a professionalcorporation. The White court had noted that "despite the intangiblequality of good will in a professional practice, it is of value to thepracticing spouse both during and after the marriage and its value ismanifested in the amount of business and, consequently, in the incomewhich the spouse generates." White, 98 Ill. App. 3d at 384.

In contrast, the First District had taken the position that thegoodwill of a professional business was not marital property subjectto division. In re Marriage of Wilder, 122 Ill. App. 3d 338 (1983).The Wilder court declined to follow the reasoning of the Fifth Districtin White, finding that the White court's definition of goodwill wasreflected in three of the factors that the trial court must consider inapportioning marital property under section 503(d) of the DissolutionAct (Ill. Rev. Stat. 1981, ch. 40, par. 503(d), now 750 ILCS 5/503(d)(West 2000))), including the ability to generate income. Wilder, 122Ill. App. 3d at 347.

Subsequently, the Third District elected to follow Wilder ratherthan White. In re Marriage of Courtright, 155 Ill. App. 3d 55 (1987).The appellate court in Courtright stated that:

"Although many businesses possess this intangible knownas good will, the concept is unique in professional business.The concept of professional good will is the sole asset of theprofessional. If good will is that aspect of a business whichmaintains the clientele, then the good will in a professionalbusiness is the skill, the expertise, and the reputation of theprofessional. It is these qualities which would keep patientsreturning to a doctor and which would make those patientsrefer others to him. The bottom line is that this is reflected inthe doctor's income-generating ability." Courtright, 155 Ill.App. 3d at 58.

The court in Courtright concluded that, although goodwill had notbeen considered in the trial court's valuation of the husband's businessitself, goodwill was a factor in examining the husband's incomepotential. Courtright, 155 Ill. App. 3d at 59. The court held that "[t]ofigure good will in both facets of the practice would be to doublecount and reach an erroneous valuation." Courtright, 155 Ill. App. 3dat 59.

Upon review of the appellate court decisions, this court in Zellsagreed with the reasoning of the court in Courtright. Zells, 143 Ill. 2dat 256. We held that:

"Adequate attention to the relevant factors in the DissolutionAct results in an appropriate consideration of professionalgoodwill as an aspect of income potential. The goodwillvalue is then reflected in the maintenance and supportawards. Any additional consideration of goodwill value isduplicative and improper." Zells, 143 Ill. 2d at 256.

We stated that "[g]oodwill represents merely the ability to acquirefuture income. Consideration of goodwill as a divisible marital assetresults in gross inequity." Zells, 143 Ill. 2d at 254.

In this case, in addressing our decision in Zells, the appellatecourt majority focused on the statement that "goodwill value is thenreflected in the maintenance and support awards." The appellate courtmajority interpreted Zells as holding that "personal goodwill, if usedas a factor in calculating income potential, on which the maintenanceand support awards are based, cannot also be used as a divisiblemarital asset." (Emphasis added.) 343 Ill. App. 3d at 635. Themajority therefore concluded that "if goodwill is not considered aspart of a spouse's income-generating ability relative to a maintenanceaward, it may be considered in the valuation of a professional practiceas a divisible marital asset." 343 Ill. App. 3d at 636. The majority alsorejected the dissent's assertion that personal goodwill was reflected inthe child support award. 343 Ill. App. 3d at 636. The majorityinterpreted Zells as providing that personal goodwill must be reflectedin both the maintenance and support awards. 343 Ill. App. 3d at 636.Thus, if personal goodwill was reflected only in the award of childsupport, the exclusion of goodwill from the valuation of the dentalpractice would result in an unfair and unjust distribution of maritalproperty. 343 Ill. App. 3d at 636. Consequently, the court concludedthat, because Jodi had waived maintenance, personal goodwill shouldhave been included when valuing Earl's dental practice.

Earl disputes the appellate court's application of Zells. Earlmaintains that Zells held that only one of the allowances predicated onfuture income, maintenance or support, was necessary for a doublecount of goodwill to exist if goodwill is also used to value an asset.Earl additionally observes that the majority did not address this court'sdecision in In re Marriage of Talty, 166 Ill. 2d 232 (1995). Talty heldthat an impermissible double count takes place if professional goodwillis used first to give the other spouse a disproportionate share of theassets and then is used in valuing the business. Talty, 166 Ill. 2d at238-39. Earl argues that because Jodi sought and received adisproportionate share of the marital assets, an impermissible doublecounting would take place if Earl's professional goodwill isconsidered in valuing his dental practice.

Upon review, we agree with Earl that the appellate court majoritymisinterpreted our decision in Zells. Section 503(d) of the DissolutionAct sets forth relevant factors to be considered in dividing maritalproperty in just proportions. These factors include:

"(5) the relevant economic circumstances of each spousewhen the division of property is to become effective,including the desirability of awarding the family home, or theright to live therein for reasonable periods, to the spousehaving custody of the children;

* * *

(8) the age, health, station, occupation, amount andsources of income, vocational skills, employability, estate,liabilities, and needs of each of the parties;

***

(10) whether the apportionment is in lieu of or in additionto maintenance;

(11) the reasonable opportunity of each spouse for futureacquisition of capital assets and income[.]" 750 ILCS5/503(d)(5), (d)(8), (d)(10), (d)(11) (West 2000).

In Zells we noted that adequate attention to the preceding factorswould result in an appropriate consideration of professional goodwillas an aspect of income potential that would then be reflected in themaintenance and support awards. Zells, 143 Ill. 2d at 256. Wetherefore held that any additional consideration of goodwill value isduplicative and improper. Zells, 143 Ill. 2d at 256. However, as thiscourt made clear in Talty, the basis for our holding in Zells was notsimply the fact that maintenance and support were awarded. Rather,the basis for our holding in Zells was the fact that personal goodwill"is already reflected in a number of the circumstances that must beconsidered by a judge in making an equitable division of propertyunder the [Dissolution] Act." Talty, 166 Ill. 2d at 237. Specifically westated:

" 'A workable definition of goodwill is that "goodwill isthe value of a business or practice that exceeds the combinedvalue of the physical assets." (2 Valuation and Distribution ofMarital Property, sec. 23.04[1] (M. Bender ed. 1984).)' (Inre Marriage of White (1986), 151 Ill. App. 3d 778, 780.)'Goodwill represents merely the ability to acquire futureincome.' (Zells, 143 Ill. 2d at 254.) To the extent that thegoodwill of the car dealership depends on [the husband's]personal efforts, the same elements that underlie thatcalculation were also considered by the court in itsassessment of the criteria contained in section 503(d)." Talty,166 Ill. 2d at 238.

Notably, in Talty, although no award of maintenance or child supportwas made, this court nonetheless held that personal goodwill shouldnot be considered an asset of the business because the elements thatconstitute personal goodwill are considered under section 503(d) ofthe Dissolution Act in dividing marital property. Talty, 166 Ill. 2d at240.

In this case, as in Talty, the personal goodwill in Earl's dentalpractice was considered by the circuit court in assessing the criteria insection 503(d) and in deciding to award Jodi a disproportionate shareof the marital assets. Any further consideration of that goodwill invaluing Earl's dental practice would amount to an impermissibledouble counting. Accordingly, we find that the appellate court erredin holding that personal goodwill should have been included in thevaluation of Earl's dental practice.

Notwithstanding this court's decisions in Zells and Talty, Jodiargued in her brief and at oral argument that this court should followthe approach taken by the appellate court in In re Marriage ofGrunsten, 304 Ill. App. 3d 12 (1999), in valuing Earl's dental practice.Grunsten held that, in valuing a closely held corporation, it was properto consider the price paid for the corporation four years earlier, aswell as the increase in gross revenues since the corporation waspurchased. Grunsten, 304 Ill. App. 3d at 18. Jodi argues that thiscourt should look to the price that Earl paid Dr. Taub for his dentalpractice, as well as at the increase in revenues since Earl purchased thepractice in order to determine a fair market value for the practice.

We decline to adopt the approach set forth in Grunsten forpurposes of the valuation in this case. The issue of goodwill in valuingthe corporation was not addressed by the court in Grunsten.Moreover, the corporation in Grunsten was a closely heldcorporation, while Earl's dental practice is a professional corporation.The goodwill in a professional practice is generally personal in nature,while the goodwill in a corporation might include both personal andenterprise goodwill. Talty, 166 Ill. 2d at 239. As we recognized inTalty, the duplication of the factors set forth in section 503(d) of theAct is limited to personal goodwill and does not extend to enterprisegoodwill. Talty, 166 Ill. 2d at 239-40. Because the court in Grunstendid not address the issue of goodwill, let alone whether any enterpriseor personal goodwill existed in the corporation, we find that Grunstenis inapposite.

Earl next argues that the appellate court erred in remanding thiscause to the circuit court with directions to consider accountsreceivable in distributing the marital estate.⁽¹⁾ Earl concedes that courtshave classified accounts receivable as assets, but argues that no courthas considered the issue of double counting with regard to accountsreceivable. Earl contends that the accounts receivable are analogousto goodwill. Earl argues that accounts receivable are income fromwhich child support payments are made, so that if accounts receivableare considered in valuing the dental practice, the same money is beingpaid upon twice. Jodi responds that goodwill and accounts receivableare distinguishable. Goodwill is an intangible asset, while accountsreceivable are tangible, or fixed, assets and may be considered invaluing Earl's dental practice.

Because the issue of whether accounts receivable are properlyincluded in valuing a professional corporation presents an issue of law,our review is de novo. See In re Marriage of Crook, 211 Ill. 2d 437,442 (2004). Although this court has not considered the issue, ourappellate court has addressed whether accounts receivable should beconsidered in valuing a professional practice. In In re Marriage ofTietz, 238 Ill. App. 3d 965, 973 (1992), the respondent husbandargued that the trial court erred in valuing his law practice by takinginto consideration accounts receivable. Relying on this court'sdecision in Zells, the respondent argued that accounts receivable, likegoodwill and contingent fees, were part of his future earnings andwere accounted for in his projected income, so that it would beduplicative to also consider the accounts receivable as a separate assetin valuing respondent's law practice. Tietz, 238 Ill. App. 3d at 975.The respondent maintained that the accounts receivable should not beviewed as marital property subject to distribution, but instead shouldbe used in determining income for purposes of support andmaintenance. Tietz, 238 Ill. App. 3d at 975.

The appellate court held that Zells did not apply to accountsreceivable. Tietz, 238 Ill. App. 3d at 976. The court in Tietz notedthat, in addition to goodwill, Zells had also considered whether alawyer's contingent fee contracts are subject to valuation, division anddistribution as part of the marital estate. Zells held that the propercontext for the consideration of fees, contingent or otherwise, was inthe determination of income for support and maintenance, so thatfuture earned fees could be considered if the subject of maintenancewas revisted. Zells, 143 Ill. 2d at 253. The court in Tietz thenconcluded that:

"Clearly, future earned fees, like contingent fees, are notmarital assets because their value is too speculative andbecause they are fees earned in the future. Accountsreceivable, however, are distinguishable because they areassets already earned with a known value but have not yetbeen collected." Tietz, 238 Ill. App. 3d at 977.

The appellate court held that it was not error for the trial court tovalue the law partnership by viewing the tangible assets, includingaccounts receivable. Tietz, 238 Ill. App. 3d at 977. The court statedthat "[a]ccounts receivable are only 'future income' in the sense theywill be collected in the future. The distinction is these fees havealready been earned and have a known value." Tietz, 238 Ill. App. 3dat 977.

Subsequent appellate court decisions have also rejected the claimthat considering accounts receivable in valuing a business results in adouble recovery. See In re Marriage of Steinberg, 299 Ill. App. 3d603 (1998) (court rejects husband's theory that because accountsreceivable when collected become part of the husband's income uponwhich support is based, wife would receive double benefit if maritalestate also was reimbursed for increase in accounts receivable); In reMarriage of Lee, 246 Ill. App. 3d 628 (1993) (court rejects husband'sclaim that trial court considered his "future income" twice, once invaluing the accounts receivable and again in determining theproportion of marital assets awarded each party, holding that accountsreceivable are simply past, but not yet collected, income).

We agree with the appellate court in the preceding cases.Although accounts receivable have not been collected, they are assetsthat have been earned and have a known value and, thus, aredistinguishable from future earnings or income-generating ability.Because accounts receivable have a known value, a court can properlyconsider accounts receivable as assets of the business. As the Tietzcourt correctly observed, accounts receivable are future income onlyin the sense that they will be collected in the future. Accountsreceivable are not future income in the sense that they are assetsconsidered by a circuit court in determining a party's income-generating ability for purposes of maintenance or child supportawards. The fact that the accounts receivable may not be collecteduntil a future date does not transform those assets into speculative orfuture income. Consequently, we agree with the appellate court thatthe circuit court should have considered the accounts receivable invaluing Earl's dental practice. We therefore affirm that portion of theappellate court's order remanding this cause to the circuit court for aredistribution of marital property which includes accounts receivable,in addition to cash on hand, cash surrender value of life insurance, andloans due from officers.

Finally, Earl argues that if this court affirms the appellate court'sholding that goodwill and/or accounts receivable should be includedin valuing Earl's dental practice, this court must also order the circuitcourt to reassess the 67/33 allocation of marital assets. Earl contendsthat the addition of personal goodwill and accounts receivable wouldincrease the marital estate by more than $300,000, resulting in anunjust allocation of assets if the 67/33 division is allowed to stand.

Section 503(d) of the Dissolution Act provides that the circuitcourt shall divide marital property in "just proportions." 750 ILCS5/503(d) (West 2000). In order to divide the marital property in justproportions, the circuit court first must establish the value of theassets. In re Marriage of Cutler, 334 Ill. App. 3d 731, 736 (2002).Any conflicts in testimony concerning the valuation of assets must beresolved by the trier of fact. In re Marriage of Stone, 155 Ill. App. 3d62, 70-71 (1987). Here, Earl's expert showed adjusted accountsreceivable of $112,000, while Earl stated that the accounts receivablewould amount to $89,000. Jodi's expert discounted the receivables to$78,550. Consequently, upon remand, the circuit court first mustdetermine the proper value of the accounts receivable, then it mustinclude the accounts receivable, cash on hand, cash surrender value oflife insurance and the loans due from officers in the distribution ofmarital assets. Because the circuit court has not had an opportunity toreassess the allocation of marital assets in light of the redistribution,we will not at this point usurp the circuit court's discretion todetermine whether the 67/33 allocation of assets remains a justallocation upon redistribution. Rather, we find that it is for the circuitcourt to determine whether the 67/33 allocation must be reassessedonce the accounts receivable, cash on hand, cash surrender value oflife insurance and loans due from officers are added to the maritalestate.

We next consider the issues raised in Jodi's cross-appeal. Jodiargues that, if this court agrees that goodwill and/or accountsreceivable were properly excluded from the valuation of Earl's dentalpractice, this court should find that the circuit court abused itsdiscretion in failing to sua sponte declare Jodi's waiver of maintenanceunconscionable. In the event that this court declines to includegoodwill and/or accounts receivable in the valuation of the dentalpractice, Jodi asks this court to either enter an award of maintenanceor remand to the circuit court for an award of maintenance.

Earl responds that Jodi should not be allowed to change herlitigation position on appeal. Earl notes that Jodi elected to waivemaintenance at trial in order to seek a disproportionate share of themarital assets. Based upon Jodi's waiver of maintenance, the circuitcourt did in fact award Jodi a disproportionate share of the maritalassets. Jodi should not be allowed to retract her waiver ofmaintenance simply because the circuit court did not accept hervaluation of the dental practice.

We agree with Earl. This court has held that the theory underwhich a case is tried in the trial court cannot be changed on review,and an issue not presented to or considered by the trial court cannotbe raised for the first time on review. Daniels v. Anderson, 162 Ill. 2d47, 58 (1994). To allow a party to change his or her trial theory onreview would weaken the adversarial process and the system ofappellate jurisdiction, and could also prejudice the opposing party,who did not have an opportunity to respond to that theory in the trialcourt. Daniels, 162 Ill. 2d at 59. Here, Jodi elected to waivemaintenance in order to request a disproportionate share of the maritalassets. Nonetheless, Jodi now claims that the division of assets wasunconscionable because the valuation of the dental practice did notinclude personal goodwill. Jodi, however, cannot claim that she wasunaware that personal goodwill would be excluded from the valuationbecause our decisions in Zells and Talty were well established at thetime that Jodi elected to waive maintenance. In addition, althoughgoodwill was not included in the valuation of the dental practice, thecircuit court considered goodwill, as evinced by Earl's greater abilityto acquire assets in the future, in awarding Jodi 67% of the maritalassets and in setting the amount of child support. We will not allowJodi to change her trial strategy on appeal and now seek maintenancesimply because the circuit court did not accept her expert's valuationof Earl's dental practice.

In any event, the propriety of a maintenance award is within thediscretion of the trial court and the court's decision will not bedisturbed absent an abuse of discretion. In re Marriage of Puls, 268Ill. App. 3d 882, 887 (1994). A trial court abuses its discretion onlywhere no reasonable person would take the view adopted by the trialcourt. Puls, 268 Ill. App. 3d at 888. Moreover, the burden is on theparty seeking reversal concerning maintenance to show an abuse ofdiscretion. Puls, 268 Ill. App. 3d at 888. Given that Jodi waivedmaintenance in order to seek a disproportionate share of the assets,and did in fact receive a disproportionate share of the assets, wecannot say that the circuit court's failure to sua sponte reconsiderJodi's waiver of maintenance amounted to an abuse of discretion.

Finally, Jodi argues on cross-appeal that circuit and appellatecourts erred in denying her request for contribution of attorney feesand costs. Jodi claims that the circuit court abused its discretionbecause the evidence revealed a gross disparity in income and earningcapacity, as well as Jodi's financial inability to pay her fees.

Earl contends that Jodi has failed to meet her burden of showingthat the circuit court's finding was an abuse of discretion. Jodi failedto present any facts or argument with regard to the fee factors,including complexity, nature of the controversy, or importance of thesubject matter. Jodi also failed to provide this court with a recordreflecting the amount of Earl's fees, which is necessary to an analysisconcerning an award of attorney fees. Earl argues that absent a findingthat the dental practice was undervalued, the circuit court did notabuse its discretion in denying Jodi's request that Earl pay more than$67,000 for her attorney and expert fees, in addition to his own fees,out of the $161,000 that he received in the distribution of maritalassets.

Section 508 of the Dissolution Act allows for an award ofattorney fees where one party lacks the financial resources and theother party has the ability to pay. 750 ILCS 5/508 (West 2000). Theparty seeking an award of attorney fees must establish her inability topay and the other spouse's ability to do so. In re Marriage of Puls,268 Ill. App. 3d 882, 889 (1994). Financial inability exists whererequiring payment of fees would strip that party of her means ofsupport or undermine her financial stability. Puls, 268 Ill. App. 3d at889. In addition, a trial court's decision to award or deny fees will bereversed only if the trial court abused its discretion. In re Marriage ofSnow, 277 Ill. App. 3d 642, 653 (1996).

The appellate court affirmed the circuit court's order holdingeach party responsible for his and her own attorney fees and costs.The appellate court noted that the circuit court found both partieswere equally unreasonable, litigious and quarrelsome throughout theproceedings, resulting in an unnecessarily expensive divorce. Inaddition, the circuit court had considered the factors set forth insection 503 of the Dissolution Act and found it was equitable to holdboth parties responsible for their own attorney fees. The appellatecourt further noted that Jodi had failed to show an inability to pay herown attorney fees. Finally, the appellate court reiterated that Jodi hadbeen awarded a disproportionate share of the marital assets,amounting to approximately $326,000.

We agree with the appellate court that Jodi has failed to establishthat the circuit court abused its discretion in this case. Jodi has notestablished her inability to pay or Earl's ability to do so. Jodi also hasnot established that requiring payment of fees would strip her of hermeans of support or would undermine her financial stability. AlthoughJodi claims she is entitled to fees because Earl's dental practice wasworth $650,000, we note that Earl's greater earning capacity wastaken into consideration in awarding Jodi a disproportionate share ofthe marital assets and in setting the amount of child support.Consequently, we affirm the circuit court's order directing each partyto pay his or her own fees and costs.

For these reasons, we reverse the appellate court's judgmentfinding that the circuit court should have included personal goodwillin the valuation of Earl's dental practice. We affirm the appellatecourt's finding that the circuit court should have included accountsreceivable, cash on hand, cash surrender value of life insurancepolicies and loans to officers in its valuation of the dental practice, andremand the cause to the circuit court for a redistribution includingthose assets. Finally, we affirm the judgment of the circuit andappellate courts directing that each party is responsible for his or herown attorney's fees and costs.

Appellate court judgment affirmed

in part and reversed in part;

circuit court judgment affirmed

in part and reversed in part;

cause remanded with directions.

1. Earl does not challenge the appellate court