In re Marriage of Bornhofen

2023 IL App (1st) 221194-U

SECOND DIVISION
December 19, 2023

Nos. 1-22-1194 and 1-23-0010, Consolidated

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________

In re the Marriage of ) Appeal from the
) Circuit Court of
LOUISE BORNHOFEN, ) Cook County.
)
Petitioner-Appellant, )
)
and ) No. 19 D 331168
)
GERALD BORNHOFEN, ) Honorable
) Rossana P. Fernandez,
Respondent-Appellee. ) Judge Presiding.

PRESIDING JUSTICE HOWSE delivered the judgment of the court.
Justices Ellis and Cobbs concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court of Cook County is affirmed; the trial court’s
selection of one expert’s valuation method over another proposed by a competing expert
was not an abuse of discretion; the expert’s opinion adjudged credible by the trial court
was based on accepted principles of law and was supported by the evidence; and in the
interest of finality and judicial efficiency, the trial court did not abuse its discretion in
declining to reopen proofs after the final date of the experts’ valuation of the former
marital business.

¶2 In December 2019, petitioner, Louise Bornhofen, filed a Petition for Dissolution of

Marriage against respondent, Gerald Bornhofen. In July 2022, the circuit court of Cook County
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entered judgment on the petition. Louise filed postjudgment motions that the trial court denied as

moot in light of the trial court’s judgment for dissolution of marriage. Louise appeals, arguing

the trial court abused its discretion in valuing a marital business, awarding maintenance, and

refusing to consider Louise’s postjudgment motions.

¶3 For the following reasons, we affirm the trial court’s judgment.

¶4 BACKGROUND

¶5 We repeat only those facts applicative to the issues on appeal. Beginning in September

2021 and continuing through December 2021 on various dates, the parties engaged in a trial of

the petition for dissolution of marriage primarily on the issues of the valuation of the marital

businesses: iTouch Biometrics, LLC and Polyad USA, the division of marital assets and

liabilities, and the appropriateness, amount, and duration of maintenance.

¶6 On February 17, 2022, Louise filed a pleading titled “Motion to Supplement Trial Record

with Evidence of a Significant Factor Which Has a Substantial Bearing on the Valuation of the

Company.” The motion claimed that Gerald “has sought to keep from Petitioner and the Court

the actual profits of the marital business.” The motion stated that comparing the profit and loss

statements for iTouch from January 2021 and January 2022 showed a 78% increase in average

monthly sales and a 301% increase in average monthly income with a profit on monthly sales of

39% and 66% respectively, implying that iTouch was earning a higher rate of profit on its sales

in January 2022 than in January 2021 and stating that profit would “still go up.” Louise attached

the profit and loss statement for iTouch from January 1, 2021, through December 31, 2021, and

January 2022, and prayed the court supplement the trial record with those statements.

¶7 Also on February 17, 2022, Louise filed “Petitioner’s Attorneys’ Petition for Rule to

Show Cause: Violations of the Court’s Order and Notice to the Court of Ethical Violations by

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Respondent’s Attorneys.” In sum, the motion alleged that Gerald’s attorneys had improper

contact (without notifying Louise’s attorney) and improperly shared trial transcripts (in violation

of the court’s order to exclude witnesses) with Louise’s consultant witness. The motion prayed,

in part, the trial court strike portions of Gerald’s attorney’s opening and closing arguments

asserting that Louise’s hiring, then firing, of the consultant witness as a testifying expert was

“proof of Petitioner’s ‘shopping’ for a valuation.”

¶8 On May 18, 2022, Louise filed a pleading titled “Emergency Motion and for Sanctions:

Husband Reveals Hidden iTouch Account.” The May 2022 motion stated in pertinent part that

Louise discovered that, contrary to the trial court’s order, Gerald opened and “has been operating

a hidden iTouch bank account.” The motion claimed that Gerald had ordered unnecessary

inventory and deposited funds into the account and, further, that iTouch maintained a second set

of financial records on Monday.com.

¶9 On July 20, 2022, the circuit court of Cook County entered a judgment for the dissolution

of the marriage of Louise and Gerald (occasionally Gerry) pursuant to the Illinois Marriage and

Dissolution of Marriage Act (Act).

¶ 10 The judgment stated the court was able to assess the credibility of each witness, weigh

the evidence in its totality, and review various stipulations entered by the parties. As it pertains to

this appeal, the judgment stated the trial court heard the testimony of each party’s business

valuation expert. Dr. Adarsh Arora testified as a business valuation expert on behalf of Louise

and Joseph Modica testified on behalf of Gerald. The court also heard testimony from current

and former employees of iTouch and admitted certain exhibits into evidence. The trial court’s

judgment makes express findings concerning the credibility of the witnesses and the weight of

their testimony. As it pertains to this appeal, the court found “all witnesses who testified to be

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credible in differing degrees with the exception of Zane Kelly whom the Court finds was not

credible or knowledgeable about the management or daily activities of iTouch ***.” The court

also found that two non-expert witnesses called during Louise’s case-in-chief “added very little

to the issue of valuation.”

¶ 11 The trial court stated it reviewed statutory authority and applicable case law prior to

making its findings and orders. The court found, in pertinent part, that at the time of the

judgment Louise was residing in the former marital residence and Gerald was residing in a rental

apartment in Chicago. The marriage produced three children, all of whom were emancipated.

¶ 12 As it pertains to this appeal, the trial court’s judgment found that Louise was then

employed as iTouch’s bookkeeper, she was a licensed attorney, and Louise “has positive

prospects for future employability.” Louise stopped working as an attorney when their first child

was born (in 1996). Gerald was President and CEO of iTouch and “has an ability to support

himself through the continued function of handling and running the business of iTouch.” The

court found that source of income may continue steadily into the future without the need for

Gerald to change his profession.

¶ 13 The parties entered stipulations as to the value of various intangible assets deemed

marital property and marital liabilities. The trial court made findings regarding the value of the

parties’ personal property and vehicles, and miscellaneous assets. As for the real property

considered marital property, the trial court found that per stipulation, the former marital

residence had a fair market value of $760,000.00 and was encumbered by a home equity line of

credit with a loan balance of $298,733.00 as of August 2021. A second residence in Cozumel,

Mexico had a fair market value of $550,000.000 and was unencumbered.

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¶ 14 The judgment states, and the appeal bears out, that the primary issue in this case is the

valuation of the parties’ business: iTouch. The court found that the parties then owned iTouch

equally. iTouch “is a company that provides a biometric system to police departments, schools

and other public sector clients.” The company “is a full service biometrics (fingerprinting)

company that sells a package to its clients which includes hardware, software, installation,

maintenance and warrant services.” However, “the software cannot be sold separately from the

hardware.”

¶ 15 Louise did not want to retain an interest in the business and wanted Gerald to buy her out.

Gerald did want to keep the business at its fair market value if he could afford to do so. The

parties agreed to this but disputed the value of the business. On that question the trial court

“heard testimony from Gerry, Louise, Dr. Adarsh Arora and Joseph Modica.” Modica “valued a

100% fair market value interest in iTouch at $1,166,100 as of April 30, 2021, and Dr. Arora

valued iTouch at $5,140,000 as of July 30, 2021.” The court found that Dr. Arora, Leslie’s

expert, “utilized an investment method of ascertaining the value of iTouch mostly based upon his

own experience in buying and selling software-based companies.” However, the court found that

“Dr. Arora was not able to credibly establish that iTouch was primarily a software-based

company for his comparisons to purely software-based companies.” Later, the court found that it

did not find iTouch to be a software-based company “and the record is devoid of any credible

evidence that the software was ever sold separately from the hardware but rather intermingled

such that they are intricately tied to one another.”

¶ 16 The court rejected Dr. Arora’s valuation, finding as follows:

“The Court finds that 750 ILCS 5/503 specifically indicated that all assets

must be valued under the fair market value standard, and a closely held business

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such as iTouch invariably begins with Revenue Rule 59-60 and the principles

contained therein. As such, the Court does find that Dr. Arora’s assessment is

unreliable, not credible and based upon speculative criteria and methodology,

simple not allowed under the [Act.]”

¶ 17 Contrarily, the trial court found that Modica, Gerald’s valuation expert, “testified

consistently as to each and every factor of Revenue Ruling 59-60 and valued iTouch under the

fair market value standard which is consistent and required under the IMDMA.” The court stated

it considered “each and every factor outlined in Section 503 of the IMDMA, Revenue Ruling 59-

60, all relevant evidence, testimony, transcripts and *** the respective credibility of each of the

witnesses at trial.” The court found that the fair market value of iTouch was $1,166,100, which is

the value determined by Modica. The court stated that Modica’s opinion was “the only credible

fair market value opinion presented to the Court with proper foundation and basis.”

¶ 18 The trial court awarded Gerald 100% interest in iTouch “at the fair market value

determined by this Court of $1,166,100.” The court ordered Gerald to “buy Louise out of her

50% share of the business in the amount of $583,050 *** in quarterly payments of $25,000.”

Based on the value of iTouch and the remainder of the marital estate the court found that the total

value of the marital estate was $2,402,903. The court found that an equal division of the marital

estate was justified and awarded each party approximately $1,201,453. The court also found that

Louise has no impediments in gaining full-time employment but “will need some time to be fully

on her feet so that she may be employed full-time in her position of choice without limit.” The

court found that “a maintenance award to Louise is appropriate” and that such award was in

addition to the allocation of the marital estate.

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¶ 19 Louise’s allocated assets included the former marital residence with a stipulated equity of

$461,267. The trial court also allocated Louise 100% interest in Polyad USA, LLC (at $0 fair

market value), half the proceeds from the sale of an Aruba timeshare, $44,367 from Gerald “for

equalization of marital property), and other tangible and intangible assets (that are not germane

to the issues on appeal beyond comprising a 50% allocation of the total marital estate). The court

also awarded Louise maintenance. The court’s judgment indicates that in awarding maintenance

the court considered that “Louse will be receiving approximately $363,918 in non-marital

assets,” and that she is able to work full-time as a lawyer or “in a number of other professions.”

The court found that “[a]lthough Louise has not been employed in the legal field for a period of

time, *** her advanced degree, experience, age and intelligence provide her with a very positive

employment outlook.”

¶ 20 The trial court found that “the combined income of the parties is currently in excess of

$500,000 gross.” The court ordered Gerald to pay maintenance “in the amount of $7,000 a month

*** taking into consideration *** an imputed annual gross income of $65,000 to Louise and an

income of approximately $450,000 gross per year to Gerry ***.” The court ordered that

maintenance shall be reviewed after five years and that a reviewable term of maintenance was

appropriate. The court also ordered that Louise “may file a Petition to Extend Maintenance no

later than five (5) years from the date of entry of this Judgment.” Specifically, the court ordered

that Louise’s right to maintenance beyond five years from the date of the judgment would be

determined “if Louise files a Petition to Extend Maintenance.” If Louise does not file that

petition, she is barred from seeking or receiving maintenance for any time beyond the fifth year

after the judgment.

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¶ 21 The July 20, 2022, judgment also found that certain pleadings were rendered moot by the

trial court’s decision, including: “Petitioner’s Moton to Supplement Trial Record with Evidence

of Significant Factor Which Has a Substantial Bearing on the Valuations of the Company” and

“Petitioner’s Emergency Motion and for Sanctions: Husband Reveals Hidden iTouch Account.”

¶ 22 This appeal followed.

¶ 23 ANALYSIS

¶ 24 Initially, Gerald asserts this court should find Louise’s arguments forfeited for her failure

to comply with various aspects of Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020).

Gerald’s concerns are not unfounded, but we decide not to find Louise’s arguments all forfeited.

“A reviewing court is entitled to the benefit of clearly defined issues with

pertinent authority cited and a cohesive legal argument. [Citation.] The appellate court is

not a depository in which an appellant may dump the entire matter of argument and

research. [Citation.] Arguments that are not supported by citations to authority do not

meet the requirements of Rule 341(h)(7) and are procedurally defaulted. [Citation.] ***

When the procedural violations interfere with our review of the issue, we may exercise

our discretion and strike a brief for failure to comply with the rules. [Citation.]” Wing v.

Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 11.

In this case, we believe we are able to understand and to provide meaningful review of Louise’s

contentions on appeal. We note that Louise’s reply clearly articulates that this appeal “centers on

the [alleged] error of the circuit court in understanding the evidence concerning iTouch’s

financial success and fair market value.” For the reasons that follow, we find that rather than a

misunderstanding, the trial court’s judgment represents a considered exercise of the trial court’s

judgment to weigh the evidence from competing experts and determine what the court believed

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was the appropriate methodology to value iTouch and that the trial court’s determination in that

regard was not an abuse of that discretion. Gerald’s request to summarily affirm the trial court’s

judgment is denied.

¶ 25 Proceeding to the merits, this is an appeal of a property valuation and distribution in a

dissolution of marriage judgment. “A determination of the value of marital property is the duty

of the trial court and will not be reversed absent an abuse of discretion. [Citations.]” In re

Marriage of Weiss, 129 Ill. App. 3d 166, 173 (1984). The trial court abuses its discretion in the

valuation of marital property when “its ruling is arbitrary, fanciful, or unreasonable, or where no

reasonable person would take the view adopted by the trial court.” (Internal quotation marks and

citations omitted.) In re Marriage of Abu-Hashim, 2014 IL App (1st) 122997, ¶ 22. An abuse of

discretion by the trial court “in evaluating and apportioning certain marital assets” “requires

reversal and remandment for a new trial with regard to these issues.” In re Marriage of Malters,

133 Ill. App. 3d at 180.

¶ 26 On appeal, Louise argues the trial court’s valuation of iTouch at $1,166,100 is against the

manifest weight of the evidence (more appropriately, an abuse of discretion) because that

valuation represents roughly one year of cash earnings. Louise argues the trial court’s valuation

was unreasonable, arbitrary, and not based on evidence.” Louise claims specifically that “[t]o say

that a company making $1,000,000 in cash earnings is worth approximately a $1,000,000 fails

the common sense and ‘insanity test’ of valuation, as well as all applicable ‘rules of thumb.’ ”

¶ 27 On the contrary, Louise argues, the evidence, in which she includes the evidence Louise

proffered in her motion to supplement the trial record, which the trial court did not allow,

“clearly presented a company with unique, proprietary software and successive years of doubling

sales and profits on a cash basis.” Louise claims the trial court “failed to understand the nature of

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the iTouch business,” which Louise repeatedly characterizes as “a software-based company.”

Louise claims the trial court “failed to understand how the software and maintenance contracts

were the driving force behind iTouch’s 40% profitability.” Louise claims iTouch’s growth in

profit “comes from the software maintenance contracts and the scalability inherent in providing

the software technical support.” (Emphases added.) Louise argues, the trial court should have

accepted her expert’s valuation because of her expert’s “extensive” experience valuing software

companies. Finally, Louise complains the trial court erroneously believed the principles of

Revenue Rule 59-60 must be applied.

¶ 28 “A trial court has broad discretion in the valuation and subsequent distribution of marital

assets. [Citation.]” In re Marriage of Malters, 133 Ill. App. 3d at 180.

“In determining whether a trial court has abused this discretion the

question is *** did the trial court *** act arbitrarily without the employment of

conscientious judgment or, in view of all the circumstances, exceed the bounds of

reason and ignore recognized principles of law so that substantial injustice

resulted. [Citation.] In short, in order to correctly evaluate marital assets the trial

court must have before it competent evidence of value and its determination of

value must be supported by that evidence. [Citation.]” In re Marriage of Malters,

133 Ill. App. 3d at 180.

“The Act only requires *** there be sufficient evidence of value in the record to allow review of

the trial court’s distribution.” (Internal quotation marks and citations omitted.) In re Marriage of

McHenry, 292 Ill. App. 3d 634, 638 (1997).

¶ 29 The trial court did not abuse its discretion when it valued iTouch. The trial court’s

valuation is based on recognized principles of law and competent evidence of value, and its

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determination of value is supported by that evidence and reviewable by this court. In re

Marriage of Malters, 133 Ill. App. 3d at 180. Louise does not dispute the cash flow approach is a

recognized principle of law. This court has expressly recognized that the cash flow approach to

calculate fair market value is “a common method of business valuation.” Gold v. Ziff

Communications Co., 322 Ill. App. 3d 32, 58 (2001) (citing Superior Investment & Development

Corp. v. Devine, 244 Ill. App. 3d 759, 768-69 (1993) (“approving use of discounted cash flow

analysis”)).

¶ 30 Nor do we find that the trial court erroneously believed the principles of Revenue Rule

59-60 must be applied. Section 503 of the Act states, in pertinent part, as follows: “In

determining the value of assets or property under this Section, the court shall employ a fair

market value standard.” 750 ILCS 5/503(k) (West 2020).

“Precise rules for determining the value of closely held stock cannot be laid down,

but rather all evidence reflecting the worth of the entity should be considered. (In re

Marriage of Rossi, 113 Ill. App. 3d 55, 61 (1983); In re Marriage of Mitchell, 103 Ill.

App. 3d 242, 248 (1981)). Both the future economic outlook and the capitalization of

future earnings are important tools for valuing a closely held corporation. [Citation.]

Conflicts in testimony regarding the value of marital assets in an action for dissolution

are matters for the trier of fact, and a valuation within the range testified to by the parties’

experts will not be disturbed on review.” In re Marriage of Olson, 223 Ill. App. 3d 636,

646 (1992).

See also In re Marriage of Liszka, 2016 IL App (3d) 150238, ¶ 41 (quoting In re Marriage of

Gunn, 233 Ill. App. 3d 165, 183 (1992) (“Placing a fair market value on the professional

corporation is an art, not a science, and the court must rely on expert witnesses to assist it in this

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difficult task. There is no exact formula that can be applied, so the trial court must rely on

experts who may differ significantly in both methodology and valuation. The trial court must

consider the relevant evidence before it; determine the credibility of the experts, the

reasonableness of their testimony, the weight given to each of them, and their expertise in the

particular area of valuation; and then determine fair market value.”)).

¶ 31 The trial court followed section 503 of the Act. This court acknowledges that “[t]he

Internal Revenue Service has recognized that the general approach, method and factors outlined

in Revenue Ruling 59-60 may be relevant in determining the fair market value of business

interests of any type. (Rev. Rul. 59-60, 1959-1 C.B. 237.)” In re Marriage of Rossi, 113 Ill. App.

3d 55, 60 (1983). The trial court in this case did state that “the fair market value standard, and a

closely held business such as iTouch, invariably begins with Revenue Rule 59-60 and the

principles contained therein.” Nonetheless, the court went on to consider “all relevant evidence”

of iTouch’s value. Olsen, 223 Ill. App. 3d at 646. The court stated that in reaching its

determination of the fair market value of iTouch, the court considered “each and every factor

outlined in Section 503 of the IMDMA, Revenue Ruling 59-60, all relevant evidence, testimony,

transcripts and *** the respective credibility of each of the witnesses at trial.” Specifically, by

implicitly adopting the cash flow approach to valuation used by Gerald’s expert Modica, the trial

court considered “the capitalization of future earnings.” Id. The trial court did not rely on

Revenue Ruling 59-60 as the sole or a mandatory basis for determining the fair market value of

iTouch. The trial court’s consideration of the factors outlined in Revenue Ruling 59-60 was

appropriate. See In re Marriage of Puls, 268 Ill. App. 3d 882, 886 (1982) (rejecting valuation

that followed only part of the formula in, inter alia, Revenue Ruling 59-60 and adopting

valuation of expert who “followed the formula *** precisely”).

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¶ 32 The trial court’s valuation is also supported by competent evidence of value. Gerald’s

expert, Modica, testified that he considered “the asset approach, the market approach and the

income or cash flow approach.” Modica determined that the cash flow approach was the most

appropriate in this case. The cash flow approach is “the capitalizing of a single period, the cash

flow of a single period.” (Emphases added.) In that process, you are “taking a single period then

capitalizing it into the future at a capitalization rate. Modica “fully and completely set forth in

[his] report” the analysis of the capitalization of cash flow and determination of the capitalization

rate.

¶ 33 Modica also testified that hardware, warranties, software, and technical support were “the

largest sources of revenue for the company.” Modica based his testimony on actual sales

documents iTouch provided to him. Based on the data, Modica testified that “anywhere from 20

to 40 percent of the revenue is from technical support and software and it looks like 64 to—

maybe 60, 60 to 70 is from hardware sales and warranties.” iTouch predominately does live scan

fingerprinting.

¶ 34 The fatal flaw in Louise’s arguments is that the lynchpin on which it relies—that iTouch

is a software company—is a false premise. The trial court expressly found that iTouch “is a full

service biometrics (fingerprinting) company that sells a package to its clients which includes

hardware, software, installation, maintenance and warrant services.” However, “the software

cannot be sold separately from the hardware.” That determination by the trial court is supported

by competent evidence.

¶ 35 Gerald is the CEO of iTouch. Gerald testified that iTouch has sold a handful of hardware

units (scanners) but “virtually all” its sales are a “turnkey setup” that “includes hardware and

software.” iTouch works with multiple hardware vendors and uses software from the hardware

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vendor to adapt their hardware to iTouch’s software. iTouch resells their hardware as part of

iTouch’s package. Gerald testified that the hardware and the software, including the software

from hardware vendors to make iTouch’s software work, are all “sold as one single unit.” Gerald

agreed that iTouch is a “full service biometric firm” meaning iTouch, for example, “can provide

a system to a police department that does everything from ten prints to palm prints to mug shots

to lineups to electronic signature capture to printing out cards.” iTouch also provides

certifications, training, and technical support. Gerald opined that iTouch cannot survive without

its technical support function or without the sale of its hardware because: “It’s all combined, one

package.” Gerald would not “jump to the conclusion” that iTouch is a software development

company. iTouch sells the hardware it buys from outside vendors at a significant markup.

¶ 36 At bottom, Louise simply asks this court to resolve a conflict in the valuation evidence

differently than the trial court. “Conflicts in testimony regarding the value of marital assets in an

action for dissolution are matters for the trier of fact, and a valuation within the range testified to

by the parties’ experts will not be disturbed on review.” In re Marriage of Olson, 223 Ill. App.

3d at 646. The trial court’s valuation is in the range Modica testified to. The trial court did not

abuse its discretion in considering the factors in Revenue Ruling 59-60 or in valuing iTouch

consistently with Gerald’s expert’s opinion of fair market value. Id.

¶ 37 Louise also appeals the trial court’s denial (actually, its finding to be moot) of what on

appeal Louise implicitly concedes was a motion to reopen proofs after trial. Leslie sought to

supplement the trial record with evidence of iTouch’s profits and their source after the date of the

hearing on the petition for dissolution but before the court entered its final judgment. Gerald’s

expert, Modica, “valued a 100% fair market value interest in iTouch at $1,166,100 as of April

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30, 2021. Louise’s expert, Dr. Arora, valued iTouch at $5,140,000 as of July 30, 2021. The trial

court adopted Modica’s valuation, stating:

“The Court finds that the fair market value of iTouch Biometrics, LLC to

be $1,166,100, the value determined by Gerry’s valuation expert, Joseph Modica

which the Court finds to be the only credible fair market value opinion presented

to the Court with proper foundation and basis.”

¶ 38 The trial court did not abuse its discretion in valuing iTouch without Louise’s alleged

new evidence. “The date of valuation for the purposes of division of assets shall be the date of

trial or such other date as agreed by the parties or ordered by the court, within its discretion.”

(Emphases added.) 750 ILCS 5/503(k) (West 2020). “[T]he systematic interests in achieving

finality, promoting judicial economy, and avoiding piecemeal litigation will typically militate in

favor of resolving all ancillary issues before entering a judgment of dissolution.” In re Marriage

of Mathis, 2012 IL 113496, ¶ 31. In this case, the trial court entered the judgment for dissolution

of marriage on July 20, 2022, after the date of valuation. We may presume, then, that the trial

court valued iTouch as of April 30, 2021, the date used by Gerald’s expert Modica. The use of

that date of valuation excluding Louise’s proffered evidence was proper.

¶ 39 As previously stated, on appeal Louise does not dispute the characterization of her

motion to supplement the trial evidence as a motion to reopen proofs. “The decision to deny such

motions is within the sound discretion of the trial court and will not be disturbed on review

absent a clear abuse thereof.” In re Marriage of Weinstein, 128 Ill. App. 3d 234, 249 (1984). “In

considering a motion to reopen proofs, a trial court should take into account whether there is

some excuse for the failure to introduce the evidence at trial, whether the adverse party will be

surprised or unfairly prejudiced by the new evidence, whether the evidence is of utmost

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importance to the movant’s case, and whether there are the most cogent reasons to deny the

motion.” In re Marriage of Weinstein, 128 Ill. App. 3d at 248-49.

¶ 40 In Weinstein, the movant sought to reopen proofs with evidence amounting to a change in

financial circumstances. Id. This court found that “[w]e cannot say that the trial court abused its

discretion in the case at bar, as the evidence Frances sought to introduce was not of utmost

importance to her case and likely would not have materially altered the trial court’s judgment.”

Id. at 249. The court found that “any change in the [nonmovant’s] immediate earnings would not

have altered the trial court’s distribution of the marital estate.” Id. We find that a similar outcome

is warranted here because we find that Louise’s proffered new evidence likely would not have

altered the trial court’s valuation of iTouch.

¶ 41 Louise seeks to reopen proofs with evidence of iTouch’s profit and loss statements

ending December 21, 2021, and for January 2022 for comparison purposes to demonstrate an

increase in average monthly sales, net income, and profit on monthly sales, particularly

comparing January 2021 to January 2022, according to Louise’s motion. At trial, Modica

provided extensive testimony regarding how his valuation accounted for such spikes in sales.

First, Modica explained that his valuation does not utilize earnings, but cash flow; making the

utility of the proposed comparison dubious for purposes of its effect on Modica’s valuation,

which the trial court expressly found to be the only competent evidence of iTouch’s value.

Modica testified explicitly that he would “put no emphasis and no reliance on” using only a

profit and loss statement to project cash flow. When asked whether a company with increasing

net income on a cash basis would be worth the same value Modica testified that the

determination could not be made on that basis alone. Modica was asked the following question

and gave the following answer:

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“Q. Mr. Modica, I want you to assume that iTouch net income before tax

is approximately 800,000, and then on top of that 800,000, Louise and Gerry

Bornhofen received together around 200,000 in wages such that they being the

owners have cash earnings on a cash basis of approximately a million dollars. I

want you to assume in 2021, the two of them have approximately a million dollars

between net income, cash net income, and the W-2 wages for the two of them.

*** If that is a fact, do you still believe that the value of the company is only

1.166 million?

A. Yes”.

¶ 42 Modica projected a growth rate of three percent in perpetuity. Dr. Arora, on the other

hand, according to Modica, is “using *** 22 percent compound annual growth rate in perpetuity.

And I am saying that there is no business that is going to grow forever at 22 percent with no

capital infusion. So my 3 percent is in perpetuity based on my change in working capital as it is

built into my cash flow projection.” Modica’s valuation accounts for spikes in sales by using the

trailing twelve months for his valuation.

¶ 43 Here, as in Weinstein, we cannot say the trial court abused its discretion as the evidence

Louise sought to introduce likely would not have materially altered the trial court’s judgment. Id.

at 249. Louise’s expert’s opinion was based on increasing sales and profit on sales, and Modica

explained why his projections were not. The trial court wholly rejected Louise’s expert’s opinion

and found that Modica’s opinion was the only credible evidence of the value of iTouch. The

addition of the evidence on which Louise’s expert relied and the trial court implicitly rejected

would not have altered the trial court’s judgment. See id. We find the trial court did not abuse its

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discretion in finding Louise’s motion to supplement the trial record to be moot in light of the trial

court’s judgment distributing the marital property.

¶ 44 Louise separately argues the trial court’s maintenance award was an abuse of the trial

court’s discretion.

“The trial court has the discretion to determine the amount and duration of an

award of maintenance and its decision will not be reversed on appeal absent an abuse of

discretion. [Citation.] A trial court abuses its discretion when its ruling is arbitrary,

fanciful, or unreasonable or when no reasonable person would take the same view.

[Citation.] In determining the amount of maintenance to award, a trial court should

consider the parties’ income[s] at the time of dissolution as well as their potential

incomes. [Citation.] We defer to a trial court’s factual finding[s] as to the parties’ annual

incomes as long as the findings are not against the manifest weight of the evidence.”

(Internal quotation marks omitted.) In re Marriage of Gabriel & Shamoun, 2020 IL App

(1st) 182710, ¶ 39.

¶ 45 Louise argues that the maintenance award is comparatively “unfair” when comparing

Gerald’s projected income with Louise’s maintenance award. Louise contends that Gerald’s

income from iTouch will be $1,000,000 annually or $83,333 monthly compared to Louise’s

maintenance award of $7,000 per month. However, Louise concedes that income is “[b]ased

upon Dr. Arora’s report,” which the trial court discredited, “and the actual 2021 net income.”

Louise’s argument is premised on section 504(b-1)(1)(A) of the Act, which sets maintenance at

33 1/2% of the payor’s net income minus 25% of the payee’s net annual income. 750 ILCS

5/504(b-1)(1)(A) (West 2020). Louise also argues that the maintenance award is erroneous

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pursuant to section 504(b-1)(1)(B) of the Act, and the “equitable considerations pursuant to 750

ILCS 5/504(a) for establishing a reasonable maintenance amount and duration.”

¶ 46 Gerald initially responds that Louise’s argument that Gerald’s income from iTouch will

be $1,000,000 annually is based on a baseless growth projection from Dr. Arora’s discredited

report and not supported by the record. Gerald further responds that section 504(b-1)(1)(A) and

(b-1)(1)(B) do not apply pursuant to section 504(b-1)(1) because the parties’ family income

exceeds $500,000 per year; therefore, the maintenance award should have been made pursuant to

section 504(b-1)(2), which is what the trial court did. Gerald argues that given Louise’s imputed

annual income of $65,000 and the $7,000 maintenance award, Louise received “precisely what

she asked” for, or $12,500 per month. Gerald notes that Louise does not challenge her imputed

income. We note that in her reply, Louise does not respond to Gerald’s pointing out that the

statutes upon which she initially based her arguments do not apply, and instead only argues that

Gerald will enjoy both parties’ original incomes from iTouch as its sole owner and, therefore, his

income is larger than the trial court applied.

¶ 47 First, Gerald is correct that Louise’s reliance on sections 504(b-1)(1)(A) and (b-1)(1)(B)

is misplaced. Section 504(b-1)(1) clearly states that its guidelines apply “[i]f the combined gross

annual income of the parties is less than $500,000.” 750 ILCS 5/504(b-1)(1) (West 2020). If the

guidelines do not apply the trial court is required to award maintenance “after the court’s

consideration of all relevant factors set forth in subsection (a) of [section 504.]” 750 ILCS (b-

1)(2) (West 2020). Subsection (a) of section 504 lists 14 relevant factors. See 750 ILCS

5/504(a)(1) through (a)(14) (West 2020). The trial court’s written judgment for dissolution states

the court “reviewed the following statutory factors and applied all facts and evidence presented

at trial.” The judgment then lists and makes findings as to every factor listed including two it

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found “inapplicable to this case” (any valid agreement of the parties and any other factor).

Regarding the parties earning capacity, the court found as follows:

“Louise is 56 years old and in good health. She possesses an advanced

degree in law with a current license to practice in Illinois. She is able to work 40

hours a week full time as a lawyer or utilize her advanced degree in a number of

other professions. She was last employed as a real estate attorney earning

approximately $50,000 a year. Although Louise has not been employed in the

legal field for a period of time, the Court finds that her advanced degree,

experience, age and intelligence provide her with a very positive employment

outlook. The Court notes Louise did fail to attempt to seek employment during the

pendency of the entire case although she clearly had the option and ability to do

so. The Court firmly believes that Louise has the ability to obtain full-time

employment with her advanced degree, intelligence and level of expertise and

significantly increase her ability to become self-supporting.

Similarly, as noted herein, Gerry is 57 years old and in good health. He

contributed significantly to the creation of iTouch which he is awarded. Gerry is

currently able to work full-time and earn a salary equal or in excess of the salary

earned during the marriage. Gerry has the ability to continue earning a substantial

salary even if required to pay maintenance. Gerry has demonstrated the ability to

write off many items through the business of his personal benefit.”

¶ 48 The trial court considered the increased earning capacity Gerald enjoys from ownership

of the business. Absent Louise’s spurious arguments premised on section 504(b)(1)(A) and (B)

we are left with nothing more than an attempt to have this court substitute its judgment for that of

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the trial court in weighing the statutory factors, which the trial court demonstrably considered

and made findings about, which Louise does not directly refute. “The amount and duration of a

maintenance award lies within the discretion of the trial court, for whose judgment we will not

substitute our own absent an abuse of discretion which occurs only where no reasonable man

would take the view adopted by the trial court.” (Internal quotation marks omitted.) In re

Marriage of Brooks, 138 Ill. App. 3d 252, 265 (1985) (citing In re Marriage of Johnson, 106 Ill.

App. 3d 502, 508 (1982)).

¶ 49 We cannot find that “no reasonable” person would take the view adopted by the trial

court. The court considered Gerald’s increased earning potential, but whether or not Gerald will

elect to double his personal income, regardless of whether that amount is available to him (much

like substantially gainful employment is available to Louise) remains to be seen and may form

the basis of a motion to modify maintenance based on a substantial change in circumstances in

the future. In re Marriage of Dea, 2020 IL App (1st) 190234, ¶ 18 (“An order for maintenance

may be modified only upon a showing of a substantial change in circumstances. [Citation.] [A]

‘substantial change in circumstances’ means that either the needs of the party receiving

maintenance or the ability of the other party to pay that maintenance has changed.” (Internal

quotation marks omitted.)).

¶ 50 The question for this court is whether the trial court abused its discretion in setting the

amount and duration of maintenance. In re Marriage of Brooks, 138 Ill. App. 3d at 265 (“The

amount and duration of a maintenance award lies within the discretion of the trial court, for

whose judgment we will not substitute our own absent an abuse of discretion”). Louise briefly

references the trial court’s allocation of real marital property but only in support of her

arguments that the maintenance award and valuation of iTouch were an abuse of discretion. See

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Wing, 2016 IL App (1st) 153517, ¶ 11. They were not. “An abuse of discretion occurs when the

trial court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take

the view adopted by the trial court.” In re Marriage of Dea, 2020 IL App (1st) 190234, ¶ 18. For

now, we cannot find that the trial court’s maintenance award or the valuation of iTouch based on

Modica’s valuation were an abuse of discretion.

¶ 51 CONCLUSION

¶ 52 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 53 Affirmed.

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