In re the Marriage of Gibbons

94 P.3d 879, 194 Or. App. 257
CourtCourt of Appeals of Oregon
DecidedJuly 21, 2004
Docket00DO 1913 DS; A117837
StatusPublished
Cited by4 cases

This text of 94 P.3d 879 (In re the Marriage of Gibbons) 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 Gibbons, 94 P.3d 879, 194 Or. App. 257 (Or. Ct. App. 2004).

Opinion

ARMSTRONG, J.

Wife appeals from a dissolution judgment. She contends that the trial court erred in its division of the parties’ property and in its award of spousal and child support. Husband cross-appeals, assigning error to the property division on the ground that the court erred in its finding that husband had failed to rebut the statutory presumption that wife had contributed equally to the acquisition of 30 shares of stock in a closely held corporation. Our review is de novo. ORS 19.415(3) (2001).1 We modify the dissolution judgment to require husband to pay wife an equalizing judgment for the value of her interest in two marital assets and otherwise affirm on appeal and cross-appeal.

The parties married in September 1984, shortly after they graduated from high school, and separated in September 2000. They have three children, two teenage daughters and a younger son. Wife was the children’s primary caregiver, and husband often worked long hours during the marriage. Although wife held a few jobs during that time, she spent most of her time as a homemaker. Wife was unemployed at the time of trial. By agreement, the court awarded custody of the children to husband.

Husband works for his family’s logging corporation, Allen & Gibbons Logging, Inc. He has worked there since high school. His current salary is approximately $60,000 a year. It is unlikely that husband’s salary will increase in the [260]*260near future. At the time of trial, husband owned 102.23 shares of Allen & Gibbons stock. Husband received 30 of those shares from his father between 1995 and 1997. Husband’s mother gave husband a total of eight more shares in 1999 and 2000. Husband received the balance of the shares from his father’s estate in April 2000. As a condition of husband’s inheritance, he entered into a stock transfer agreement that permanently assigned his voting rights in the stock to the company’s president and also gave the company the right to purchase the stock at favorable terms if he decided to sell it. Wife challenges the trial court’s division of the parties’ assets. The disputed assets consist of Allen & Gibbons stock, an interest in the Lawrence Gibbons Family Partnership, and the parties’ home.

Both parties presented competing evidence on the value of the Allen & Gibbons stock. The court found that husband’s expert was more convincing and, based on the expert’s evaluation, determined the value of the stock to be $684.73 a share. The parties agree that the value of the partnership interest is $24,281. The court valued the parties’ home at $270,000. It estimated that, if the house sold for that amount, the parties would receive $70,000 in proceeds after they paid the balance of their mortgage. The court ordered that the proceeds from the sale, if any, be applied in the following order:

“(a) To pay the costs of the sale including the realtor commission, engineering study, and installation of city water;
“(b) Marital obligations existing as of the date of separation;
“(c) To reimburse Husband $300 for each month since October 1, 2000 he has occupied the residence and has been responsible for making the mortgage payment;
“(d) Wife is to receive the $10,270.95 that represents her interest in the corporate stock;
“(e) Wife is to receive the $12,140.50 that represents her interest in the Lawrence Gibbons Family Partnership;
“(f) The balance is to be split equally.”

Not including the mortgage, the parties had marital debt of $32,276.54 at the time of their separation. After payment of [261]*261that debt and the costs of sale, and reimbursment of husband for his post-separation mortgage payments, it is likely that, if the trial court’s estimation of proceeds is correct, $30,000 or less will remain to pay items (d), (e), and (f).

The court awarded wife transitional spousal support of $1,000 per month for five years and $500 per month for the next two years. The court also ordered wife to pay husband $471 per month in child support. The court found that wife has the skills to be successful at a job if she pursues additional education and, for purposes of both support awards, it attributed a full-time minimum wage income to wife.

Wife first argues that the trial court erred in valuing the Allen & Gibbons stock at $684.73 per share because husband’s expert’s valuation of the stock, which the court adopted, was not based on a proper valuation method. Wife and husband agree that the shares, if held as a controlling interest with voting power, are worth $3,100 per share. Both agree that the value of the stock must be discounted from that value because the stock represents a 20.45 percent, non-controlling interest in the company. The parties disagree over the appropriate rate of the minority discount and whether the stock must be discounted further because of the stock transfer agreement. Wife contends that husband’s expert over-discounted the value of husband’s shares and that, properly discounted for the minority interest only, the stock’s value is approximately $2,400 per share rather than $684.73. Wife’s expert testified that the stock was worth approximately $2,400 per share based on an asset method of evaluation after a minority discount. Husband’s expert did not conclude that specific discounts for minority and lack of marketability were appropriate but estimated that the economic rights attached to husband’s shares were in the range of $60,000 to $75,000.

The court analyzed the competing testimony between husband and wife’s experts as follows:

“Wife’s expert, Brock Parthemer, testified that the fair market value per share was $2,404 based upon an asset approach of evaluating the corporation. Mr. Parthemer acknowledged that the stock transfer agreement, if binding, [262]*262would determine value, but indicated that the stock transfer value did not reflect fair market value. Husband’s expert, Charles Chappel, did not conduct a separate evaluation of the corporation; nevertheless, he critiqued the Parthemer study and criticized Mr. Parthemer’s reliance on the asset evaluation method. Mr. Chappel suggested that the asset approach was not workable because husband owns a minority interest in the corporation and has executed an irrevocable voting proxy; therefore, husband has no access to the corporate assets. Instead, Mr. Chappel indicated that the proper assessment of Husband’s interest would be to consider the economic rights that the purchaser of his stock would acquire — specifically, the value of the cash flow resulting from an application of the terms of the stock transfer agreement together with the value of a possible future liquidation of the corporation. Mr. Sam Barker, an expert in the field, found that the cash flow in question had a fair market value ranging from $39,000 to $52,000, less costs and fees between $3,000 and $4,000. Given Mr. Barker’s evaluation, Mr. Chappel’s estimate of the value of the economic rights acquired by a purchaser of husband’s stock under the stock transfer agreement was from $6[0],000-$75,000. The Court finds Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
94 P.3d 879, 194 Or. App. 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-gibbons-orctapp-2004.