Gill v. Gill

919 N.W.2d 297
CourtSupreme Court of Minnesota
DecidedOctober 24, 2018
DocketA16-1421
StatusPublished
Cited by6 cases

This text of 919 N.W.2d 297 (Gill v. Gill) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gill v. Gill, 919 N.W.2d 297 (Mich. 2018).

Opinions

CHUTICH, Justice.

This case considers whether future, contingent earn-out payments are marital or nonmarital property under Minnesota Statutes section 518.003, subdivision 3b (2016). While married to respondent Gretchen Zwakman Gill (Gretchen), appellant Francis Stephen Gill (Stephen) purchased an ownership interest in a company.1 Stephen later sought a dissolution of marriage. After the district court's valuation date for marital property but before the dissolution, Stephen and the other owners of the company sold the company and their ownership interests in that company. The purchase agreement gave the company and its owners the right to receive (1) an up-front payment of $180 million and (2) two potential future earn-out payments, ranging from $0 to $170 million in value.

The parties dispute whether the earn-out payments are marital or nonmarital property. The district court concluded that the earn-out payments are nonmarital property because they are property acquired by a spouse after the valuation date. See Minn. Stat. § 518.003, subd. 3b. The court of appeals reversed. Because the parties' interest in the company was marital property that was acquired before the valuation date, the consideration for the sale of the company, which occurred before the dissolution and included an amount paid at the time of the sale and a contractual right to receive future amounts, is also marital property. We therefore affirm the court of appeals, including its instructions on remand to the district court to equitably divide any received earn-out payments.

FACTS

Stephen and Gretchen married in 1993. Stephen was the president of a company, and Gretchen worked full-time in advertising. Gretchen became a stay-at-home *299mother in 1994, after the birth of their first of four children, while Stephen continued his career.

In 2008, Stephen and a business partner purchased, as equal partners, a little over 50-percent ownership interest in Talenti, a company that makes gelato, for about $1.5 million. Stephen also became the Chief Executive Officer of Talenti, overseeing "all aspects" of the company, "from production, human resources, marketing, operations, sales, and finances." The district court found that "[i]t is undisputed that Stephen's leadership in all aspects of Talenti was a major factor in its success."

While married to Gretchen, Stephen created Wyndmere LLC (Wyndmere) to hold his interest in Talenti. Wyndmere then acquired a membership interest in David Goliath Group LLC (David Goliath), Talenti's parent company that its members created in 2013 to hold their membership interests.2 Stephen transferred 20 percent of his interest in Wyndmere to trusts for the parties' children, keeping the remaining 80 percent in his own name. Gretchen is not a named member of Wyndmere, but the parties agree that she has a marital interest in Stephen's 80-percent ownership interest because he acquired it during their marriage. See Minn. Stat. § 518.003, subd. 3b.

After Talenti reached capacity at its manufacturing facility, David Goliath's members, including Wyndmere, hoped to sell the company. In mid-2013, Unilever N.V. and Conopco Inc. (collectively, Unilever) contacted David Goliath about purchasing the company. Negotiations occurred over the next year. Ultimately, David Goliath and Unilever agreed to "an aggregate maximum purchase price" of $350 million, split between a $180 million upfront payment and two additional contingent payments worth a maximum total of $170 million. A letter of intent memorialized their agreement in July 2014.

While negotiations to sell David Goliath were underway, Stephen and Gretchen separated after 21 years of marriage. After Stephen petitioned for a dissolution of the marriage in August 2014, the district court set September 5, 2014, as the valuation date for marital property. See Minn. Stat. § 518.58, subd. 1 (2016) (providing that "[t]he court shall value marital assets for purposes of division between the parties as of the day of the initially scheduled prehearing settlement conference"). The valuation date is unchallenged on appeal.

On December 2, 2014-that is, after the valuation date, but before the dissolution was final-Stephen and the other members of David Goliath sold all of their membership units and the assets of David Goliath to Unilever. Gretchen was aware of the sale and nothing in the record shows that she opposed the sale.3 At the time of the sale, Wyndmere owned 38.7043 percent of David Goliath. The sale terms, which were set out in a purchase agreement, were consistent with the terms of the July 2014 letter of intent.4 In exchange for David Goliath's assets and membership units, Unilever made an upfront payment *300of $180 million to David Goliath upon closing and gave it and its members a right to receive a proportional share of two future earn-out payments, with the value of those payments based on the annual performance of Talenti.

Specifically, the purchase agreement provided in relevant part:

SECTION 1.01. The Asset Purchase.... (b) As additional consideration for the Assets, the Company shall also be eligible to receive from Asset Buyer (i) an amount equal to the First Earn-out Payment ... and (ii) an amount equal to the Second Earn-out Payment....
SECTION 1.02. The Distribution.... [I]mmediately following the consummation of the Asset Purchase, [David Goliath] shall effect a distribution to the Members of (a) the Asset Purchase Payment and (b) the right to receive (i) an amount equal to the First Earn-out Payment ... and (ii) an amount equal to the Second Earn-out Payment....
SECTION 1.03. The Membership Unit Purchase.... (b) As additional consideration for the Membership Units, the Members shall also be eligible to receive from Unit Buyer (i) an amount equal to the First Earn-out Payment ... and (ii) an amount equal to the Second Earn-out Payment....

The agreement specified that the earn-out payments would be calculated according to a formula that was based on the amount by which annual sales exceeded an established "floor" ($120 million in net sales), multiplied by a set multiplier (1.75), and subtracting certain variable costs. The payments would become "final and binding"5 after the end of the first and second "earn-out years" (calendar years 2015 and 2016). After becoming "final and binding," Unilever would be required to pay each member, including Wyndmere, its respective share of the earn-out payments. All David Goliath members, regardless of whether they (or their individual members) worked for Unilever after the sale, would receive earn-out payments according to the same formula.

Separate from the purchase agreement, Stephen also negotiated an employment agreement with Unilever. He agreed to work as Talenti's Chief Executive Officer at an annual salary of $362,500 in 2015 and $375,625 in 2016.

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919 N.W.2d 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gill-v-gill-minn-2018.