In Re the Marriage of Banning

971 P.2d 289, 1998 Colo. J. C.A.R. 3903, 1998 Colo. App. LEXIS 186, 1998 WL 409884

Opinions

Opinion by

Judge TURSI.

Footnotes

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In this dissolution of marriage action, Charles L. Banning (husband) appeals from the permanent orders concerning valuation of his business and the award of maintenance to Mary Ann Banning (wife). We affirm.

I.

The division of marital property is a matter resting within the sound discretion of the trial court, and its ruling will not be disturbed on review when it is supported by competent evidence. In re Marriage of Bookout, 833 P.2d 800 (Colo.App.1991), cert. denied as improvidently granted, 846 P.2d 189 (Colo.1993).

A.

Husband first asserts that the trial court erred in valuing the TAM Corporation, a business in which he was the majority owner. We are not persuaded.

The valuation of a business owned by a spouse is a question of fact to be resolved by the trial court as fact-finder. The excess earnings method is a generally accepted method for resolving that issue. In re Marriage of Huff, 834 P.2d 244 (Colo.1992).

Here, the trial court found that the valuation performed by wife’s expert, which determined a reasonable income that would be paid to the officers and directors of the corporation and treated the balance as excess or retained earnings, was more realistic than the valuation performed by husband’s expert. This determination was within the trial court’s discretion.

Wife’s expert testified as to the basis for his capitalization rate. He also explained that the earnings amount he used was the sum that would reasonably be paid to all officers and directors, and not just to husband. Thus, there is no basis for husband’s contention that the valuation of his business was based upon his monthly earnings.

Further, even without specific findings, we may presume that the trial court relied upon this testimony when, as it stated, it accepted the opinion of wife’s expert. See In re Marriage of Udis, 780 P.2d 499 (Colo.1989).

Husband argues that, by capitalizing excess income in order to arrive at a value for the corporation, the court’s order requires him to use future after-tax earnings to pay the equalization note awarded to wife. However, that argument has been considered by another division of this court, and rejected. See In re Marriage of Bookout, supra. To the contrary, the capitalization of excess earnings method of valuation avoids valuing a business on the basis of post-divorce earnings and profits. See In re Marriage of Huff, supra.

B.

Husband also contends that the trial court erred, in increasing its initial valuation of the corporation by $37,996 to offset a confessed $40,000 mathematical error. We disagree.

In its post-trial order, the trial court found that, in its valuation of the husband’s corporation, it had not included the tangible assets of the business. It found that those assets were valued at $37,996, and that finding is supported by husband’s own expert.

Further, contrary to husband’s characterization, the trial court did not dispose of the tangible assets of the corporation separately from the other assets. Rather, it adjusted the value of the corporation because it had failed to include the value of the tangible assets in its initial determination of value. Accordingly, we find no error.

c.

Husband separately argues the trial court erred in finding any goodwill existed in his business. We are not persuaded.

Husband’s concedes that, under Colorado precedent, even though it may not be subject to sale, goodwill can exist in a professional practice and, when it does exist, it can be valued and divided as a marital asset. See In re Marriage of Huff, supra; In re Marriage of Bookout, supra. However, husband seeks to distinguish Huff and Bookout on the basis that in neither case did the trial court find that the spouse could earn the same income without continued participation in the ongoing business, nor was the issue raised. In contrast, the trial court in this case agreed that husband could disband his business, start a new business serving his clients, and make the same income.

Husband argues that there can be no good will in TAM Corporation that would be vend-able to a purchaser. In essence, he argues that when the earnings of a spouse are derived solely from the spouse’s own skill and reputation, and those earnings would not be affected in any way by leaving the business in which the spouse is working, no goodwill exists in the ongoing business, or at least none that is of value to the spouse.

Husband’s attempt to distinguish the holdings in Huff and Bookout is not persuasive. The mere fact that husband could leave the existing business, and start again with a different name, location, or even business structure without impact on his earnings does not mean that no goodwill exists of value to the spouse. Even in a new business, husband would retain his reputation, his customer base, and his customer relations, all of which were developed during the marriage. See In re Marriage of Nichols, 43 Colo.App. 383, 606 P.2d 1314 (1979). These together constitute goodwill that supplements, and is distinct from, husband’s earning capacity. See In re Marriage of Bookout, supra.

We therefore conclude that, even though husband’s earnings would not be affected by his leaving the existing business, goodwill existed at the time of dissolution that was developed during the marriage. It would be inequitable to wife, who also contributed to the marriage, to ignore the value of that goodwill as a marital asset. See generally Zipp, Divorce Valuation of Business Interests: A Capitalization of Earnings Approach, 23 Fam. L.Q. 89 (1989). Hence, the trial court did not err valuing and dividing that goodwill as a marital asset existing at the time the marriage was dissolved.

II.

Husband asserts that the trial court failed to make sufficient findings to support the determinations that wife was entitled to maintenance and that an award of permanent maintenance was appropriate. We disagree.

The trial court has broad discretion in determining the amount and duration of maintenance. In re Marriage of Fisher, 931 P.2d 558 (Colo.App.1996).

Here, the court specifically found that the wife lacked sufficient property to meet her reasonable needs and is unable to support herself through appropriate employment. Thus, the trial court made the precise finding that is a necessary predicate to an award of maintenance.

Furthermore, the trial court found that the parties were married for 24 years, that wife spent the early years of the marriage raising the parties’ two children, and that during the marriage wife had obtained a bachelor’s degree in fine arts as well as a master’s divinity degree. In its post-trial order, the court elaborated that it entered an order for decreasing amounts of support to give wife a period in which to provide a home for her daughter, who was to graduate in May 1997, to make a decision regarding employment, and to obtain additional training. It also found that the testimony was speculative regarding wife’s ability to utilize her degrees to earn income.

The record supports these findings. In addition, the record shows that wife’s monthly needs amounted to approximately $7000 and husband testified that $4000 would be a reasonable amount of maintenance per month.

Also, because a spouse is not required to consume his or her property before being entitled to maintenance, see In re Marriage of Sewell, 817 P.2d 594 (Colo.App.1991), the trial court’s finding that wife had insufficient property to meet her reasonable needs is sufficient to show that it considered the payments that wife would receive from the equalization note. Finally, while we recognize that the trial court’s written order discusses the award of maintenance before the disposition of property, we are not persuaded that the order of the issues establishes that the trial court actually determined maintenance prior to determining the appropriate property division. Further, the order for decreasing maintenance over the first eighteen months of payment as well as the court’s post-trial order shows that it considered, in part, the fact .that wife was custodian of a minor child. Therefore, we find no error in the amount or duration of maintenance.

B.

Husband also contends that the maintenance order, when implemented along with the property division, is unconscionable, inequitable, and oppressive to him. We disagree.

Here, it is undisputed, and husband so testified, that he had been earning between $200,000 and $300,000 per year for the three-year period prior to the entry of the decree. Accordingly, the evidence does not support the contention that payment to wife of her share of the business over a four-year period would impoverish husband.

Furthermore, husband’s assertion that he necessarily must use after-tax dollars on a monthly basis to satisfy the promissory note payable to wife is not supported by record. Nevertheless, the trial court stated that it had considered the income tax ramifications of the transfers and payments ordered, and found that they were equitable under the totality of the evidence.

Judgment affirmed.

Judge PLANK concurs. Judge BRIGGS, specially concurs.

Sitting by assignment of the Chief Justice under provisions of the Colo. Const, art. VI, Sec. 5(3), and § 24-51-1105, C.R.S.1997.