Erp v. Erp

976 So. 2d 1234, 2008 WL 818822
CourtDistrict Court of Appeal of Florida
DecidedMarch 28, 2008
Docket2D05-3144, 2D06-1934
StatusPublished
Cited by7 cases

This text of 976 So. 2d 1234 (Erp v. Erp) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erp v. Erp, 976 So. 2d 1234, 2008 WL 818822 (Fla. Ct. App. 2008).

Opinion

976 So.2d 1234 (2008)

Mary Colleen ERP, Appellant,
v.
Albert John ERP, Appellee.

Nos. 2D05-3144, 2D06-1934.

District Court of Appeal of Florida, Second District.

March 28, 2008.

*1235 Robert L. Donald of Law Offices of Sherman and Donald, Fort Myers; and William T. Haverfield of The Pavese Law Firm, Fort Myers, for Appellant.

Nicole L. Goetz and Victoria M. Ho of Asbell, Ho, Klaus & Goetz, P.A., Naples, for Appellee.

ALTENBERND, Judge.

Mary Colleen Erp appeals the final judgment of dissolution of her marriage to Albert John Erp, arguing that the trial court made various errors in fashioning an equitable distribution of the parties' marital assets. She also appeals portions of an authorized postjudgment order that slightly modified the final judgment. We reverse only that portion of the judgment permitting the Husband to pay an equalizing payment for equitable distribution over ten years at a reduced rate of interest. We remand for the trial court to apply the statutory interest rate in section 55.03, Florida Statutes (2004), to this payment as of a date no later than the date the final judgment was entered. As to the other issues raised by the Wife, we affirm. We specifically conclude that the trial court did not abuse its discretion by accepting an expert's opinion that a marketability discount was appropriate in calculating the value of the couple's eighty percent interest in a closely held S-corporation.

I. THE FAMILY BUSINESS AND THE TRIAL COURT'S RESOLUTION OF EQUITABLE DISTRIBUTION

The parties married in 1986. Both have adult children from previous marriages. Shortly after the marriage, the parties acquired a small recreational vehicle (RV) dealership located near Interstate 75 in Lee County. As a result of the couple's efforts, the dealership became very successful and grew substantially during the marriage. At the time of the final hearing, the business was producing over a million dollars in net annual income for the parties.

The business was structured as a subchapter S-corporation, with the Husband and Wife each owning forty percent of the stock. All of this stock, for purposes of the dissolution, was a marital asset. The remaining twenty percent of the stock was owned in two ten percent blocks, one of the blocks held by the Wife's son from her prior marriage, and the other owned by the Husband's son from his prior marriage. Thus, neither party individually owned a majority of the corporation, and neither could control the corporation by vote without obtaining the vote of their spouse or the vote of both children.

The primary dispute in this proceeding centered around the valuation and equitable distribution of the parties' interest in this business and the real estate associated with it. While this action was pending, the Wife and her son also filed a separate action for judicial dissolution of the corporation pursuant to section 607.1430(2)(a), Florida Statutes (2003), alleging that the directors were deadlocked in the management of the corporate affairs. The corporate lawsuit did not proceed to trial prior to the final hearing in this case. Thus at least for the Husband and Wife, the issues involving the value of the corporation and *1236 the distribution of their shares were decided in this dissolution of marriage proceeding.

The Husband and Wife both agreed that one of them should leave the marriage owning eighty percent of this corporation and the other party should receive one-half of the fair market value or fair value of the parties' interest in the business as equitable distribution. Each of them asked to be awarded the eighty percent shares of stock. Each party presented the testimony of a well-qualified expert, and each expert presented a report regarding the proposed value of the business and the parties' interest in the business as of December 31, 2003, the last full year for which financial information was available at the time of the trial.

The Husband's expert opined that the business as a whole was worth $4.56 million, while the Wife's expert opined that it was worth $12.5 million. Both experts generally used an income-based approach to valuing the business, and both experts explained in detail how they had calculated their proposed value. They also testified to the value of the parties' respective interests in the corporation based upon the number of shares held by each.

Ultimately, the Husband's expert presented a demonstrative exhibit detailing the differences between the two appraisals. That demonstrative aid explained that the Husband's expert had (1) "tax-effected" the income stream of the company; (2) performed a regression analysis; (3) determined that a working capital adjustment was not appropriate; (4) measured the company's income based upon a "last in, first out" (LIFO) accounting method rather than a "first in, first out" (FIFO) method; (5) applied a minority discount to each party's forty percent shares; and (6) applied a twenty-five percent marketability discount to the value of the business. Based upon the Husband's expert's analysis, the Wife's one-half share of the parties' share of the corporation was worth $720,000. In contrast, the Wife's expert maintained that the Wife's one-half share of the parties' interest was worth $5 million.

The trial court determined that the Husband should be awarded the parties' eighty percent interest in the corporation and that the Wife should receive one-half of the fair market value of that interest as equitable distribution. In determining the fair market value of the business, the court accepted some portions of each expert's analysis. After some interaction between the court, the experts, the parties, and their counsel regarding the court's initial conclusions, the court found the value of the business as a whole was $6.2 million. The court valued the parties' eighty percent interest at $4.96 million.

The court arrived at this calculation by beginning with the Wife's expert's figure of $12.5 million. The court then resolved the six factors explained by the demonstrative aid by (1) rejecting the Husband's expert's advice to "tax-effect" the income stream; (2) applying a regression analysis as recommended by the Husband's expert; (3) including an adjustment for working capital as recommended by the Wife's expert; (4) utilizing a LIFO accounting method as explained by the Husband's expert; (5) rejecting the Husband's expert's application of a minority ownership discount; and (6) applying a marketability discount consistent with the approach taken by the Husband's expert, but at the reduced level of ten percent. Based upon this calculation, the court found that the Wife's one-half interest in the parties' share of the corporation was $2.48 million.

Because the parties' interest in the business was by far the most valuable marital asset, the trial court had to fashion an equitable distribution that required a large *1237 equalizing payment by the Husband. This payment needed to be structured in a manner that would fairly compensate the Wife without undue financial jeopardy to the Husband or the ongoing business. The trial court decided that the Husband would be allowed to make the equalizing payment of $3,943,197 by paying one-fifth of the amount immediately, with the remainder paid over ten years with interest accruing at the rate of four percent.

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Bluebook (online)
976 So. 2d 1234, 2008 WL 818822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erp-v-erp-fladistctapp-2008.