In re the Marriage of Adams

854 P.2d 501, 121 Or. App. 187, 1993 Ore. App. LEXIS 1060
CourtCourt of Appeals of Oregon
DecidedJune 16, 1993
DocketD8907-65106; CA A67089
StatusPublished
Cited by3 cases

This text of 854 P.2d 501 (In re the Marriage of Adams) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Adams, 854 P.2d 501, 121 Or. App. 187, 1993 Ore. App. LEXIS 1060 (Or. Ct. App. 1993).

Opinion

DURHAM, J.

Husband appeals and wife cross-appeals from a dissolution judgment. The parties dispute the trial court’s finding regarding the value of their two corporations and the amount of the equalizing judgment granted to wife. Wife also challenges the denial of spousal support, attorney fees and costs. On de novo review, ORS 19.125(3), we affirm.

Husband, age 45, and wife, age 46, were married for 23 years. He had lymphatic cancer in 1977, but was cured. In 1984, his doctor discovered lung cancer, that is now in remission, but may recur. Husband also has a heart condition. Despite his health problems, he works full time. Wife is in good health and worked full time as a reading specialist during the 1989-90 school year. During the marriage, she was a homemaker and helped with the family businesses.

Husband is a lumber trader and manages Marketor Corporation (Marketor) and Marketor International Corporation (Marketor International). Each party owns 50 percent of the stock of the companies. Marketor International sells lumber products to buyers in other countries, primarily Japan. Marketor conducts the same business in the domestic market.

Marketor is a subchapter S corporation. Marketor International is a domestic international sales corporation (DISC). IRC § 991 et seq (1988). It does not pay corporate income tax, but passes its income through to its shareholders. They may defer paying income tax if they pay the interest on the deferred tax. Through December 31,1989, the parties had deferred $397,158 in income tax.

In 1983, pursuant to a contract between husband, Marketor and U.S. Bancorp World Trade Company (World Trade), husband became a consultant to and then president of World Trade, and World Trade bought Marketor’s intangible assets. Marketor retained its corporate form but terminated its lumber business activities. It received $13,600 per month for husband’s consulting services and $173,000 annually when he became president. In 1985, husband left World Trade when he developed cancer. With wife’s help, he re-established his business. She ran Marketor and Marketor [190]*190International from their home while he received cancer treatments. Although wife carried out the day-to-day business of the companies, husband remained actively involved in their operation.

In determining the value of the two corporations, the trial court found, contrary to the opinions of the parties’ experts, that the companies had a combined value of $2,193,918. The court awarded husband the corporations and gave wife an equalizing judgment in the sum of $988,103.50. The parties do not dispute that the corporations are marital assets and that the presumption of equal contribution by the spouses applies. ORS 107.105(l)(f); Stice and Stice, 308 Or 316, 325, 779 P2d 1020 (1989).

Husband assigns error to the court’s finding that Marketor and Marketor International had goodwill worth $675,000. It made that finding by multiplying the combined projected earnings of the corporations for 1990, which was $135,000, by a factor of five. Husband accepts using projected earnings to calculate goodwill but argues that the trial court should not have used that multiplier because his poor health, the yen-dollar exchange rate, the current state of the lumber industry and the businesses’ dependency on his personal services diminish the goodwill value. His expert testified that goodwill equalled one year’s projected earnings. Wife accepts the multiple-of-five formula but contends on cross-appeal that the trial court’s goodwill figure is too low, because it erred in determining projected earnings.

A business ordinarily has some value above that of its assets, known as goodwill value. See Hinrichs and Hinrichs, 37 Or App 833, 588 P2d 130 (1978). We have on occasion declined to assign a goodwill value to a family business when the success or failure of the business depends on one party’s personal services. See Lankford and Lankford, 79 Or App 742, 745, 720 P2d 407 (1986). Husband argues that his personal services were essential to his companies’ success, and that his arrangement with World Trade demonstrates that.

The parties agree that these corporations have goodwill value. We agree with the trial court that husband plays a major role in the companies’ profitability, and that they are [191]*191operating in an adverse business climate. However, other highly paid executives assist him in the business. In addition, his arguments regarding his health and the business climate do not explain why the court’s formula produces an unreasonably high goodwill value. The formula is supported by parts of the experts’ testimony, husband’s bargaining history regarding goodwill, and the speculative effect of his health problems and market factors on profitability.

Wife’s appraiser valued goodwill at five times earnings, but according to the court, he used an inflated projected earnings figure. The court applied that multiplier to husband’s expert’s projected earnings figure. In the 1983 negotiations to place a value on Marketor’s “intangible” asset (i.e., its earning power), husband rejected as too conservative World Trade’s proposal to follow a five-times-earnings formula, and World Trade increased its offer from $250,000 to $375,000. Then, as now, he worked full time. If his health interferes with work at all, that may be attributable, according to his doctor, to his decision to continue to smoke two packs of cigarettes each day. The company has produced significant profits from year to year despite cyclical market uncertainties.

Wife argues that the court should have applied the multiplier to the figure for 1989 earnings, which was $475,000, rather than to husband’s projection for 1990 earnings, $135,000, because the projection was too speculative. However, because the corporations were experiencing a downward business cycle, projected 1990 earnings provided a more accurate basis for determining goodwill than the prior year’s earnings. We have considered the parties’ challenges to the court’s finding regarding goodwill and, on de novo review, we agree with that finding.

Husband next assigns error to the court’s alleged failure to consider the parties’ obligation for nearly $400,000 in deferred income taxes when it divided assets and liabilities. The court’s division made him responsible for her one-half share of that liability. He argues that the court failed to deduct the debt from the value of the stock he received, with the result that she received a larger portion of the parties’ assets. He also contends that he can pay the equalizing judgment only by pledging the assets or borrowing funds [192]*192from that corporation, and that those acts would violate tax deferral rules and cause all deferred taxes to become due and payable.

Husband has no present tax obligation, because the taxes on the DISC are deferred. Under DISC rules, he may continue to defer income taxes until he sells the corporation or withdraws its assets. The judgment does not require a sale of the corporation, and husband presented no evidence that he intended to sell it. We see no reason to reduce an asset’s value by the tax effect of its sale when no sale is planned. Olinger and Olinger, 75 Or App 351, 356, 707 P2d 64, rev den 300 Or 367 (1985).

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Bluebook (online)
854 P.2d 501, 121 Or. App. 187, 1993 Ore. App. LEXIS 1060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-adams-orctapp-1993.