Cole v. Cole

110 S.W.3d 310, 82 Ark. App. 47, 2003 Ark. App. LEXIS 348
CourtCourt of Appeals of Arkansas
DecidedApril 30, 2003
DocketCA 02-232
StatusPublished
Cited by35 cases

This text of 110 S.W.3d 310 (Cole v. Cole) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cole v. Cole, 110 S.W.3d 310, 82 Ark. App. 47, 2003 Ark. App. LEXIS 348 (Ark. Ct. App. 2003).

Opinion

Larry D. Vaught, Judge.

This appeal involves the financial aspects of the dissolution of a twenty-five-year marriage. The trial court divided the marital estate, including the husband’s interest in a medical practice and associated entities, and also awarded spousal and child support. Appellant Cindy Cole (wife) has appealed, taking issue principally with the division of the marital estate, the award of spousal support, and the award of child support. Appellee Randall Cole (husband) has cross-appealed on the issue of calculation of his income for child-support purposes. We have determined that the trial court’s judgment should be reversed and remanded.

The parties were married in 1976, while husband was still in medical school. After the marriage, three children were born to the parties, with two having reached majority at the time of the divorce. Wife worked and supported the family while husband finished medical school and residency. After the parties returned from Florida in the mid-1980s, husband became associated with the Boozman-Hof Clinic (“Clinic”), the Boozman-Hof Surgery Center (“Surgery Center”), and the Genesis Partnership (“Genesis”). Husband filed a complaint for divorce, and wife answered and counterclaimed. Wife sought an unequal distribution of the marital property in her favor. The major issues at trial were the valuation of husband’s interest in the surgery center and the distribution of the marital property.

On appeal, equity cases, such as divorces, are reviewed de novo. Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 738 (2001). With respect to the division of property in a divorce case, we review the trial judge’s findings of fact and affirm them unless they are clearly erroneous. Id. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Huffman v. Fisher, 343 Ark. 737, 38 S.W.3d 327 (2001). In order to demonstrate that the trial court’s ruling was erroneous, an appellant must show that the trial court abused its discretion by making a decision that was arbitrary or groundless. Skokos v. Skokos, supra.

Guidelines for the division of marital property are set forth in Ark. Code Ann. § 9-12-315(a)(l)(A) (Repl. 2002). Factors to be considered include the duration of the marriage, the estate of each party, and the “contribution of each party in acquisition, preservation, or appreciation of marital property . . . .” Ark. Code Ann. § 9-12-315(a)(l)(A)(viii).

I. Valuation of the Surgery Center

At the time of trial, husband had a 50% interest in the surgery center, a 22.7% interest in the clinic, and a 22.7% interest in Genesis. The clinic employs the personnel used in both the clinic and the surgery center and leases the employees to the surgery center. The clinic also provides administrative services such as accounting and marketing. Genesis owns the real estate and the equipment used by the clinic and surgery center. The parties agreed that husband’s interest in Genesis was valued at $689,700. The parties also agreed that husband’s interest in the clinic was valued at $100,000. Husband has a buy-sell agreement with Dr. William Hof, the owner of the other 50% interest in the surgery center. The agreement, effective May 4, 1998, but signed on December 28, 1998, valued the entire surgery center at $750,000. Husband testified that the $750,000 figure was arrived at without a fair market valuation but was based on what he and Dr. Hof felt they could afford to pay each other and still operate the surgery center. There was also an option given to Dr. John Billingsley to purchase a 15% interest in the surgery center for $406,855.59, dated March 1, 1999.

Wife’s expert, Cheryl Shuffield, a certified public accountant, gave an exhaustive valuation of husband’s interest in the surgery center. In her original report, she valued the interest at $1,526,100. With updated information, she valued the interest at $1,274,200, in order to account for the goodwill personally attributable to husband’s presence. Husband presented two experts, Daniel Bernick and Michael Brown, neither of whom were certified public accountants. Bernick did not do an independent evaluation; instead, he reviewed Shuffield’s report and changed certain assumptions made by Shuffield for discounts for lack of marketability (50% versus Shuffield’s 10%) and lack of a controlling interest (31.5% versus Shuffield’s 10%) to arrive at a value of $497,303. Bernick testified that, if he had done an independent valuation, he would have used a different methodology than that used by Shuf-field. Brown agreed with Bernick’s basic approach and valued husband’s interest at $297,500. Brown testified that he did not extensively review Shuffield’s report. The trial court found husband’s interest in the surgery center to be worth $375,000, the exact amount set forth in the buy-sell agreement.

This is a case in which we are left with the firm conviction that the trial court made a mistake in valuing husband’s interest in the surgery center at $375,000. Husband argues that the trial court found his experts more credible than Ms. Shuffield and made a rough average of their values and the buy-sell agreement value to reach $375,000. This is not supported in the abstract and addendum before us. The only indication in this record of the court’s reasoning when establishing the value at $375,000 is found in the posttrial hearing of September 20, 2001. During a colloquy with counsel for both parties, the trial court indicated that it would take a long time for husband to retire the debt payment to wife if the surgery center were valued at $1.2 million, and rhetorically questioned the value of the surgery center if husband became disabled. In response to a request to divide the stock in the surgery center, the court stated that, if he used another method of distribution, such as stock division, husband would quickly be bought out by Dr. Hof pursuant to the terms of the buy-sell agreement. We believe that these comments indicate that the trial court did not attempt to establish a fair market value but instead determined that it was bound by the value set in the buy-sell agreement. Arkansas law requires the use of the “fair market value” standard for valuing businesses in a marital property context. Ark. Code Ann. § 9-12-315 (Repl. 2002); Crismon v. Crismon, 72 Ark. App. 116, 34 S.W.3d 763 (2000).

A small minority of courts hold that, in a divorce, the non-shareholder spouse is bound by a shareholder valuation agreement entered into by the shareholder spouse. Hertz v. Hertz, 99 N.M. 320, 657 P.2d 1169 (1983) (holding that, where agreement set value the shareholder spouse could receive for the firm’s goodwill, non-shareholder spouse was bound by that valuation so as not to receive a greater interest upon divorce than the shareholder spouse). See also McDiarmid v. McDiarmid, 649 A.2d 810, 815 (D.C. 1994) (holding that, where partnership agreement provided husband could not recoup value of goodwill in law. firm, wife was bound). Another court has held that a shareholder’s agreement can establish a “presumptive value” for the divorcing spouse’s shares. Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975).

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Bluebook (online)
110 S.W.3d 310, 82 Ark. App. 47, 2003 Ark. App. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-cole-arkctapp-2003.