Fexa v. Fexa

578 A.2d 1314, 396 Pa. Super. 481, 1990 Pa. Super. LEXIS 2195

• Court: Supreme Court of Pennsylvania
• Decided: August 2, 1990
• Docket: 1967
• Status: Published

Opinions

KELLY, Judge:

In this case, the appellant, Barbara Fexa, appeals from the denial of her exceptions to the Master’s Recommendation and an order of equitable distribution. We find no merit in her challenges to the amount of the alimony award, the valuation date used for the distribution of pension and profit sharing plans, and the denial of counsel fees. However, we vacate the order of the trial court and remand for valuation and inclusion of the good will value of appellee Robert Fexa’s dental practice in the distribution, correction of the dollar value of marital bank accounts, and for further consideration of the equitable distribution of the proceeds of a life insurance policy.

The panel is unanimous in its disposition of all contentions except the one dealing with the includability of the good will value of the husband’s dental practice. On this issue, a plurality of the panel (including Judge Johnson and myself) agree that the trial court erred in excluding any good will value. Judge Olszewski agrees with the trial court that none should have been included. We examine this issue at length in the majority, concurring, and concurring and dissenting opinions in this case.

I. Facts and Procedural History

The facts and procedural history are as follows. Barbara and Robert Fexa married in 1968, and separated in 1984. There were no children born of their marriage. Barbara worked part-time for periods during the marriage in Robert’s office as receptionist and dental assistant and for a year following the separation doing the books for a dental lab which serviced her husband’s dental practice and in which her husband had a significant ownership interest. She obtained her college degree in 1985, and a real estate license in 1987. Robert continues in his dental practice. The parties were divorced on January 10, 1989 in a bifurcated proceeding. The property distribution order was entered on July 3, 1989 following denial of appellant’s exceptions to the master’s report. Appellant then filed this timely appeal.

The issues raised on appeal will be addressed in the order presented and are as follows:

1. Whether the Master erred in failing to include good will in the valuation of the Husband’s dental practice.

2. Whether the Master abused his discretion in making its award of alimony when Wife had been awarded a larger support order prior to the divorce, by the same trial court?

3. Whether the Lower Court erred in awarding the wife a smaller amount of cash funds than had the Master to offset the marital cash accounts that the Husband took as his own, and as a result, erred in failing to award his Wife the correct cash value of the parties insurance policies.

4. Whether the Master and the Court erred in valuing the pension and profit sharing plans as of the date of the hearing rather than the date of separation when Husband had dissipated the pension after separation?

5. Whether the Master erred in failing to award the wife cash funds representing a loan taken by Husband from the parties life insurance policies and used by Husband to his own use?

6. Whether the Master erred in failing to award counsel fees to the wife when she was and continues to be without immediate funds to pay her attorneys?

(Appellant’s Brief at 5).

II. Good Will Value as Marital Property

The appellant first contends that the trial court erred when it failed to include good will in the valuation of the husband’s dental practice. Having reviewed the opinion of the trial court, a majority of the panel for a plurality of reasons finds that the failure to include good will was based on an error of law. My reasons are as follows.

The trial court relied on two cases, Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1985) and DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), in determining that the good will value of Dr. Fexa’s dental practice was not to be considered as marital property subject to equitable distribution. I find the instant case to be materially distinguishable.

In Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1985), we held that good will was not a factor in valuing a law practice operated as a sole proprietorship because the good will involved could not be sold or transferred. The trial court found as fact that its value lay solely in the professional reputation of Attorney Beasley himself and was incapable of sale from Attorney Beasley to another, ethical considerations aside.

Similarly, in DeMasi v. DeMasi, 366 Pa.Super. 19, 530 A.2d 871 (1987), we held that the good will of a professional corporation composed of two physicians could not be valued for equitable distribution, because the trial court had found that the two physicians practiced in different specialties and did not share patients. Despite incorporation, each physicians’ practice was conducted as though it were an individual practice. Based upon the trial court’s findings of fact, this Court concluded each physician’s good will was personal to the physician. It was not shared in common with that of his partner in a manner which could be transferred to the other physician involved in the practice.¹

Before deciding whether Beasley and DeMasi are distinguishable, it is necessary to consider three other cases involving similar situations—Buckl v. Buckl, 373 Pa.Super. 521, 542 A.2d 65 (1988), Ullom v. Ullom, 384 Pa.Super. 514, 559 A.2d 555 (1989), and McCabe v. McCabe, — Pa. —, 575 A.2d 87 (1990).

In Buckl, this Court held that the good will of an architectural partnership was to be considered in placing a value on the husband’s marital property. The fact that the business had a distinct identity tied to an association, rather than merely an individual, and that the work of the association could be continued by either partner, was found to create a sufficient probability that the business could remain a going concern in either partner’s absence. That being the case, the good will of the clients toward the partnership could not be deemed purely personal to individual professionals in the corporation, and to that limited extent the partnership’s alienable good will value could be included as part of the partnership assets for the purpose of buying into or withdrawing from the business itself.

In Ullom, this Court held that it was error not to include good will value when determining a spouse’s interest in an auto dealership corporation. In that case, the court had found good will to be an asset of the family owned auto dealership, but nonetheless excluded it from marital property for equitable distribution. This Court reversed the trial court reasoning that despite its intangible nature, good will would often comprise a large portion of the marketable value of a business and so it could not be ignored when determining the proper value of assets available for distribution.

Recovery of good will value in Ullom was limited though. Under the terms of incorporation when any family member desired to sell their shares in the corporation, they first had to offer them to the other family members at a set price. If the shares were not purchased by the family at that price, the shares could be offered then to any other buyer for a price which, according to expert testimony, would include a substantial sum based on the good will value of the dealership. This Court found that since an ascertainable and reasonably realizable good will value could be determined, it was error for a trial court not to include its value as an asset available for distribution.

Our Supreme Court was faced with a slightly different equitable distribution question in McCabe which they nonetheless answered by way of a similar rationale. In McCabe, our Supreme Court was called on to decide whether the husband’s partnership share of the value of a law firm as a “going concern” (including good will value) should be included in the marital property equitable distribution or whether the value to be included should be limited to the amount that the husband could actually realize on withdrawal from the firm, which was limited by contract. The Court stated “(I)f Mr. McCabe were able to sell, liquidate or otherwise realize the ‘going concern’ value assigned to his partnership interest,” it should be included as marital property. “However, it has been clearly established that the ‘going concern’ value cannot be realized in any manner. It would be unrealistic, therefore to assign this value to the partnership interest for purposes of equitable distribution.” 575 A.2d at 87-88.

From the foregoing cases, I would distill the following general considerations. If the nature of the economic good will is purely personal to the professional spouse, it is not alienable; hence, it cannot actually be realized and may not be included in the equitable distribution. Cf. McCabe; Ullom; Beasley; DeMasi. If, however, a portion of the economic good will is attributable separately to the corporation or business and can be realized by sale to another (by selling the enterprise in whole or in part, buy-in’s and buy-out’s included), then to that extent, there is good will value subject to equitable distribution. McCabe; Ullom; Buckl.

When, as here, partners have bought-in and have been bought-out, and the dental practice has been maintained, there is a clear basis upon which to determine that the good will enjoyed by the dental practice was not entirely personal to the individual professionals involved. Likewise, when professionals share clients within the corporation, there is a basis upon which to conclude the good will is not purely personal. Buckl. On the other hand, when the corporation has remained intact throughout its history and the professionals do not share clients, there is no clear basis for concluding that there is any good will other than that inalienably attached to the individual professionals involved in the corporation. DeMasi; Beasley.

The determination of whether alienable/realizable good will value exists in a particular case may often be a difficult and subtle question of fact.² The determination may be complicated by additional difficulties regarding the ethics and/or legality of “selling” professional clients—especially with regard to attorneys and doctors, whose possession of client confidences complicates matters considerably.³ Moreover, there may also be difficulties in determining a credible value for the alienable/realizable good will; whether these difficulties are surmountable may vary with the peculiar facts of particular cases.

Judge Johnson, concurring, construes Beasley more narrowly, would effectively disclaim DeMasi, and would construe Buckl more broadly so as to render good will distributable regardless of whether the business is a sole proprietorship. In one sense, I agree. If it can be shown that, despite organization as a sole proprietorship, good will value may be actually realized through sale of the business or practice, then good will value must be included. However, to the extent good will is actually personal and inalienable, and thus cannot be actually realized through sale, I would find that McCabe would preclude distribution. I note, though, that such non-distributable good will value would have to be included as part of that spouse’s future earnings capacity in alimony and support determinations. Cf. Beasley, supra, 518 A.2d at 553.

Judge Olszewski, on the other hand, would appear to construe Beasley and DeMasi to provide a broad “personal talents” exclusion. Semantically, I agree. If the good will is wholly personal and inalienable, then it cannot be actually realized, and consequently the value of that good will may not be included in equitable distribution. Beasley, supra, 530 A.2d at 881. I disagree, however, that this record would permit a conclusion that there was no good will value in the spouse’s dental practice other than the personal and inalienable good will which was not realizable and so not includable.

In the dental partnership involved in the instant case, the husband has had various full-time, long-term partners since approximately 1969, who were involved in the practice, and in ownership of the business. (N.T. 12/18/87 at 108A-113A, 165A-116A). Following the dissolution of various partnerships, the business continued as an entity and new partners were periodically absorbed into the business. The form of the business and its work continued unchanged despite personnel changes, thereby demonstrating that the good will of the clients of the business toward the business was not tied exclusively to the presence or skills of particular individuals but was tied to some extent to the services that could be provided by any of a number of dentists. Here, as in Buckl, the good will was capable of being valued for the purpose of buying into or withdrawing from the partnership itself, making it an asset to the business, rather than a purely personal asset.

In the case before us, expert testimony on the value to be attributed to the good will of the dental partnership had been presented. As would be expected, there was a difference in the amounts proffered as the value of the good will by each party; nonetheless, despite the differences in the values determined by the experts, I find that the evidence established that husband could realize some discernable good will value on the sale of his interest in the dental practice. (N.T. 1/27/88 at 238A). Because the valuation of the alienable/realizable good will value requires a factual determination, the case must be remanded to the trial court for a determination of the proper valuation of good will to be included for equitable distribution purposes.

III. Adequacy of the Alimony Award

Appellant next contends that the trial court’s award of alimony in the amount of $100 per week was an abuse of discretion in view of the fact that court ordered spousal support had been $501 per week, and there had been no change in circumstances. This contention reveals a misunderstanding of spousal support.

The purpose of an order of support is to assure a reasonable living allowance to the party requiring support. Commonwealth v. Turner, 258 Pa.Super. 388, 392 A.2d 848 (1978). The duty to provide spousal support is concomitant with the marital relationship, and terminates with the ending of the marriage. Remick v. Remick, 310 Pa.Super. 23, 456 A.2d 163 (1983).

In this case, the husband continued support payment beyond the entry of the divorce decree on January 10, 1989, until the resolution of the financial and property claims between the parties.⁴ This payment, however, does not set the basis for the award of alimony. There is no absolute obligation on the part of a supporting spouse to see that the dependent spouse’s life style remains unchanged from that enjoyed during the marriage.

The court in determining whether an award of alimony is necessary must consider the factors enumerated in 23 P.S. § 501(b) to determine only whether the party seeking alimony is able to provide for his or her reasonable needs through appropriate employment or other property. Hess v. Hess, 327 Pa.Super. 279, 475 A.2d 796 (1984). A review of the recommendation of the master and the opinion of the trial court confirms that those factors were properly considered. Accordingly, we affirm the order of the trial court on the issue of the adequacy of the award of alimony.

IV. Inadvertent Clerical Error

Appellant’s next issue requires little discussion. Both appellant and appellee agree that there was a clerical error in the amount shown in the trial court’s order for the division of the marital bank accounts. The appellant should receive $13,242.47 not the $9,551.75 shown in the order. On remand, this correction should be made in the equitable distribution order.

V. Valuation Date for Pension Plan

Appellant next contends that date of separation, rather than the date of hearing, should have been used for valuation of pension and profit-sharing plans. Appellant argues that a decrease in value resulting from bad investments suggested by the plan administrator should be considered an intentional dissipation of marital assets. This argument is completely without merit. The trial court properly relied on Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988), in determining the proper valuation date for the pension and profit sharing plans.

VI. Exclusion Of Life Insurance Proceeds From Equitable Distribution

Appellant further contends that the trial court erred in not equitably distributing the proceeds of a life insurance policy which appellee cancelled in 1986. The master’s recommendation at page 14 refers to the policy proceeds having gone solely to appellee, but gives no explanation as to why this amount was excluded from the distribution, when the cash value of the life insurance policy was marital property. Lindsey v. Lindsey, 342 Pa. 72, 492 A.2d 396 (1984).

The opinion of the trial court at page 10 mischaracterizes this as a loan and a liability to appellee, when the record discloses unequivocally to the contrary that in actuality appellee took as a disbursement to his own use $16,691.45 from marital property in the form of the cash surrender payment on the policy with the intent not to repay the insurance policy. (N.T. 6/30/89 at 134A-136A and 179A). In such situations, the court should properly charge the spouse who took the assets with the amount that should have been included in the distribution. Semasek v. Semasek, 509 Pa. 282, 502 A.2d 109 (1985).

It is possible that this value has already been included in the distribution indirectly. If the money was invested in the dental business or used to purchase other assets included in the distribution, any part of the proceeds thus accounted for would already be in the distribution, and could not be double-entered for equitable distribution purposes. Hence, on remand, the trial court must redetermine the includability of policy proceeds in the equitable distribution.

VII. Counsel Fees

Appellant’s final contention is that the trial court erred in not awarding her counsel fees. The trial court’s decision that appellant had or would receive through the equitable distribution sufficient assets to pay her own counsel fee was supported in the record. We find no abuse of discretion. Adelstein v. Adelstein, 381 Pa.Super. 221, 553 A.2d 436 (1989).

Conclusion

This Opinion represents a unanimous majority opinion as to Parts III through VII. We have reached a plurality disposition as to Part II dealing with the inclusion of good will value in the equitable distribution. Judge Johnson and myself agree in the result requiring remand of this case for valuation and inclusion of the ascertainable and realizable good will value of husband’s dental practice in the distribution of marital assets.⁵

Based on the foregoing, the order of the trial court is vacated, and this case is remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction is relinquished.

OLSZEWSKI, J., files a concurring & dissenting opinion. JOHNSON, J., files a concurring opinion.

1 . Valuation for sale to an outside physician or for inclusion of a new physician in the Corporation who practiced in the same specialty as Dr. DeMasi was not considered.

2 . This was one of several concerns raised in Beasley. 518 A.2d at 552-3.

3 . This issue was also addressed in Beasley, wherein the prospective value of cases taken on contingency fee agreements was sought to be included in the computation of good will value. Beasley, supra, 518 A.2d at 554-55. Our Supreme Court expressly left this issue open in McCabe, 575 A.2d at 87-88, 89.

4 . In a bifurcated divorce, as we have instantly, spousal support terminates with the entry of the divorce decree. Alimony pendente lite may be awarded at a party’s request for the period between the entry of divorce and adjudication of the economic aspects of marriage to maintain an equality between spouses in resolving their differences. Levine v. Levine, 360 Pa.Super. 297, 520 A.2d 466 (1987); Desch v. Desch, 329 Pa.Super. 22, 477 A.2d 883 (1984). There is no record that the parties considered any possibility of change in payments on entry of the divorce decree.

5 . Because my position is narrower than Judge Johnson's and broader than Judge Olszewski’s, it is that approach which binds as law of the case, though not as precedent. In effect, Judge Johnson and I both agree that at least the value I describe must be included, and Judge Olszewski and I agree that no more value than I describe may be included.