Fausch v. Fausch

2005 SD 63, 697 N.W.2d 748, 2005 S.D. LEXIS 63
CourtSouth Dakota Supreme Court
DecidedMay 18, 2005
DocketNone
StatusPublished
Cited by12 cases

This text of 2005 SD 63 (Fausch v. Fausch) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fausch v. Fausch, 2005 SD 63, 697 N.W.2d 748, 2005 S.D. LEXIS 63 (S.D. 2005).

Opinion

MEIERHENRY, Justice.

[¶ 1.] This is a divorce action between Mark Fausch and Zelmira Fausch. On December 22, 2003, a partial Judgment and Decree of Divorce was granted to both parties on grounds of extreme cruelty. On May 5, 2004, an Amended Judgment and Decree of Divorce was entered which resolved the issues of property division, debt division, alimony and attorney fees. There are three points of dispute on appeal. First, Mark contends that the trial court’s failure to apply a lack of marketability discount to his business interests in three companies resulted in a clearly erroneous valuation. Second, Mark contends that the valuation of the third business based on his capital contribution to the business was clearly erroneous. Third, Mark contends that the award of alimony was an abuse of discretion because it was based on erroneous findings concerning Zelmira’s need for alimony. We affirm.

FACTS

[¶ 2.] Mark and Zelmira were married on December 5, 1980. During the marriage, they had three children, all of whom had reached the age of majority at the time of the divorce. Mark .is a physician and Zelmira has mainly been a full time wife and mother during the marriage. Mark is working as an interventional cardiologist with North Central Heart Institute and earning approximately $400,000 annually. He is 53 years old and in good health. Zelmira is 56 years old and suffers from hyperthyroidism, type two diabetes and divorce-related depression.

[¶ 3.] The parties moved to Sioux Falls, SD in 1997 when Mark accepted a position as a cardiologist at North Central Heart Institute P.C. (NCH Institute). At that time, NCH Institute was affiliated with Sioux Valley Hospital. NCH Institute later severed its affiliation, with Sioux Valley Hospital and entered into an agreement with Avera McKennan Hospital and a company called MedCath to build and operate a specialty hospital, Heart Hospital of South Dakota, in which each business entity was a one-third owner. Mark is a minority owner of NCH Institute.

[¶ 4.] In connection with these changes, the partner-owners of NCH Institute created three separate business entities: North Central Heart Real Estate, LLC (NCH Real Estate), Medical Development, LLC, and North Central Heart. Institute Holdings, LLC (NCHI Holdings). NCH Real Estate owns the building and land occupied by NCH Institute’s clinic operations in addition to approximately 10 acres of bare land. Medical Development owns two parcels of land adjacent to the land owned by NCH Real Estate. NCHI Holdings was formed to hold NCH Institute’s one-third ownership interest in the Heart Hospital of South Dakota. Mark is a minority owner in each business, having ownership interests ranging between 5% and 7%. Various other owners/members of *751 NCH Institute hold the remaining interests in the companies.

ISSUES
I. Whether the trial court was clearly erroneous in its valuation of Mark’s interest in three companies in which he was a minority owner.
II. Whether the trial court’s division of the marital property was an abuse of discretion.
III. Whether the trial court’s - finding that Zelmira needed an alimony award of $8,000 per month is supported by the evidence.

STANDARD OF REVIEW

[¶5.] “[T]he valuation of property involved in a divorce proceeding will not be overturned unless it is clearly erroneous.” Priebe v. Priebe, 1996 SD 136, ¶ 8, 556 N.W.2d 78, 80. “Our standard of review of a trial court’s property division is that of an abuse of discretion.” Grode v. Grode, 1996 SD 15, ¶ 6, 543 N.W.2d 795, 799 (quotations and citations omitted). “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” Id. ¶ 6, 543 N.W.2d at 800 (quotations and citations omitted). A trial court’s alimony award is also reviewed under the abuse of discretion standard. Urban v. Urban, 1998 SD 29, ¶ 8, 576 N.W.2d 873, 875.

Valuation of Business Interests

[¶ 6.] During the divorce' proceedings, the parties stipulated to the value of Mark’s interest in NCH Institute but disagreed as to the value of the three related businesses. Each party retained an expert to determine these values. On appeal, the valuation dispute regarding two of the entities, NCH Real Estate and Medical Development, is over the trial court’s failure .to apply a lack of marketability discount to Mark’s interests in these businesses. The valuation dispute over the third business, NCHI Holdings, involves the trial court’s rejection of the value as determined by a “buy-sell” provision in the company’s operating agreement. Instead, the trial court used the higher figure of Mark’s capital contribution as. the value of his interest in the company.

Lack of Marketability Discount

[¶ 7.] Both parties provided expert testimony as to the value of Mark’s business interests. In valuing NCH Real Estate and Medical Development, the experts arrived at significantly different figures. A major part of the disparity between the values of the two experts was the application of a 25% marketability discount on the part of Mark’s expert, Shelly Fossum, in comparison to 0% marketability discount used by Zelmira’s expert, John Wenande. The trial court adopted the value of Zelmira’s expert and did not apply a marketability discount. The reason for accepting the opinion of Zelmira’s expert was explained in the trial court’s decision as follows:

The valuation given to the property by defendant’s expert Mr. Wenande made the most sense. Mr. Wenande based his opinion on a $3.00 per square foot valuation. This value was based on the fact that thé entity had sold land to the Heart Hospital for $3.00 a foot in 1999, in 2002 had donated 4 acres to a charity and allocated $200,000 per acre or over $4.00 a square foot on its tax return, and had recently accepted an offer of $2.75 a square foot for some of the land. Mr. Wenande also testified that a 10% discount for lack of control should be given, but an additional 25% discount for lack of marketability was inappropriate in a divorce case where no sale is contem *752 plated... .Adjusting Mr. Wenande’s numbers to take the taxes into account, I find Dr. Fausch’s interest in NCH Real Estate LLC is worth $154,400. Medical Development is an entity that owns land held for development. Accepting Mr. Wenande’s values for the reasons stated above, I find Dr. Fauseh’s -interest to be $175,000.

[¶ 8.] Mark argues that it was error for the court not to apply a marketability discount. Although acknowledging that a marketability discount may not always be appropriate, Mark claims that rejecting one in this case was error because of the underlying premise of Wenande.’s opinion. Wenande opined that it was not appropriate to apply the discount in a divorce case if the business was not going to be sold. 1 Mark argues that since the task of the expert is to determine and provide the fair market value of the business, an expert’s opinion must establish the price at which a willing seller would sell to a willing buyer.

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Cite This Page — Counsel Stack

Bluebook (online)
2005 SD 63, 697 N.W.2d 748, 2005 S.D. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fausch-v-fausch-sd-2005.