In re the Marriage of Gay

279 P.3d 265, 250 Or. App. 31, 2012 WL 1711388, 2012 Ore. App. LEXIS 622
CourtCourt of Appeals of Oregon
DecidedMay 16, 2012
Docket0830321; A144993
StatusPublished
Cited by2 cases

This text of 279 P.3d 265 (In re the Marriage of Gay) 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 Gay, 279 P.3d 265, 250 Or. App. 31, 2012 WL 1711388, 2012 Ore. App. LEXIS 622 (Or. Ct. App. 2012).

Opinions

SCHUMAN, P. J.

In this appeal from a judgment dissolving the parties’ marriage, wife assigns error to the trial court’s distribution of property. In particular, she contends that, instead of distributing to each party its own minority shares in a closely held corporation, the court should have assigned a value to the shares, distributed all of them to husband, and imposed an equalizing judgment. We conclude that, in determining that a just and proper property division would be achieved by having the parties retain their shares, the trial court did not abuse its discretion. We therefore affirm.

Wife requests that we exercise our discretion to review the trial court’s finding regarding the value of the shares de novo. We decline to do so because such requests are disfavored except in “exceptional” cases, and we do not find this case to meet that criterion. ORS 19.415(3); ORAP 5.40(8)(C).1

At the time of their divorce, the parties had been married for 14 years. Husband was 50 years old and wife was 39. The trial court awarded wife custody of the parties’ 13-year-old son, with reasonable parenting time for husband. Wife has been working full time and has an imputed gross monthly income of $3,750, or approximately $45,000 per year. Husband has been employed by Middleton Heating & Sheet Metal, Inc., of Corvallis, Oregon (Middleton Heating), for over 30 years. He is now the vice-president and general manager, and his average gross monthly income is $7,911. Husband was ordered to pay child support of $627 per month and monthly spousal support of $300, to continue until the child reaches age 19.

The parties were able to agree on most of the issues relating to the division of property. The only dispute on appeal concerns the valuation and division of the parties’ interest in [33]*33Middleton Heating, husband’s employer. Middleton Heating is a closely held corporation that has been in business since 1949. In 1973, the current owners, Judy and Glenn DeFord, purchased the business from Ms. DeFord’s parents, the Middletons. Husband has worked for the company since he graduated from high school in 1977. Until 2000, the DeFords owned all of the corporation’s outstanding 81 shares.

Mr. DeFord saw husband as a potential successor to the business. In 2000, the two began to discuss possible buyout strategies. They reached a tentative agreement that was reduced to writing but never signed. Mr. DeFord estimated that, as of 2000, Middleton Heating had a value of approximately $1.3 million. The plan was that husband would purchase the shares of the business over a period of approximately 20 years. For tax reasons, Mr. DeFord and husband decided that it would be best if the initial transfer of shares could be made by gift rather than sale so that the DeFords could take advantage of the annual federal gift tax exclusion of $10,000. For that purpose, the shares were estimated to have a value of approximately $10,000 each. Loosely described, the agreement called for Mr. DeFord to begin transitioning to retirement and for the DeFords to transfer by gift approximately 1.25 shares of the corporation to both husband and wife annually, for a period of approximately 10 years, or until husband and wife together owned a 51 percent interest in the corporation. At that time, Mr. DeFord would retire completely from the business, and husband would begin paying the DeFords for their remaining interest in the corporation with monthly payments of $5,000 for 10 years plus a lump sum payment at closing, at which time husband would own 100 percent of the corporation.

As noted, the agreement was never signed. However, consistent with the agreement, beginning in 2000, the DeFords began to “gift” 1.25 corporate shares per year to each party and did so until 2008 when this dissolution was filed. The transfers were approved by shareholder resolutions and noted on the corporation’s ledger. By 2008, when the DeFords ceased transferring shares, the parties each owned 10 shares, or a 12.35 percent interest in the corporation.

[34]*34Beyond the agreement to transfer a majority of the shares by gift, the record shows that Mr. DeFord and husband had not fully agreed to the details of the sale of the corporation. For example, it was inconclusive as to what husband would owe the DeFords for the purchase of their remaining interest in the corporation and whether the purchase would include the corporation’s real property, or whether that property would be withdrawn by the DeFords and leased back to the corporation.

After the DeFords learned of this. dissolution proceeding, they stopped transferring further shares to the parties. However, at trial, both Mr. DeFord and husband affirmed their intention to pursue husband’s buyout of the DeFords’ interest in Middleton Heating so that Mr. DeFord could retire.

The primary issue at trial concerned the valuation and division of the parties’ shares of Middleton Heating. Each party’s expert offered testimony concerning the value of the shares. Husband’s witness, Olsen, the corporation’s CPA, offered an estimate of value under what he referred to as the “net tangible asset approach.” Olsen applied what he described as a “minority discount” of 35 percent to adjust for the fact that the parties owned less than 51 percent of Middleton Heating’s shares. In Olsen’s view, the value of each party’s shares also depended in part on whether husband would acquire the real property currently owned by the corporation. Olsen estimated that if the real property was a part of the acquisition, wife’s 10 shares had a value of $137,228. If the corporation was acquired without the real property, then Olsen estimated that the 10 shares were worth $61,057.

Wife’s expert, Mason, was an accredited business appraiser. After considering three valuation methods and applying a marketability discount, and working under the assumption that husband would have control of the corporation within 15 months from the valuation date, Mason estimated that wife’s 10 shares had a value of approximately $123,000.

Mr. DeFord and husband also each expressed an opinion of the corporation’s value. In Mr. DeFord’s view, the [35]*35corporation had been worth $1.3 million in 2000, and at the time of the hearing it was worth $3.9 million. Husband admitted that, at one time, he told wife that he believed that the business was worth $3 million.

The trial court concluded that the appraisals were “not overly helpful to the court” and that the valuation of the shares “calls for too much speculation for the court to have sufficient certainty to place a fair market value on the shares.” In light of the lack of marketability of the parties’ minority interests in the closely held corporation, the trial court stated, “there is no true market value for these shares,” and it was unlikely that any value could be ascertained until husband liquidated his interest at the time of his retirement. Even that eventuality was speculative, the trial court reasoned, in light of the court’s finding that the agreement for husband’s acquisition of the corporation was unenforceable. In its judgment, the court repeated that “there is no true market value for” the shares. The court determined that a just and proper division of the property required that each party retain his or her shares.2

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Related

Hostetler v. Hostetler
344 P.3d 126 (Court of Appeals of Oregon, 2015)
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Bluebook (online)
279 P.3d 265, 250 Or. App. 31, 2012 WL 1711388, 2012 Ore. App. LEXIS 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-gay-orctapp-2012.