In re the Marriage of Howard

798 P.2d 683, 103 Or. App. 342, 1990 Ore. App. LEXIS 1275
Court of Appeals of Oregon·Decided September 12, 1990·No. D8612-68899; CA A60824·Published·Cited by 5 cases

Opinion

JOSEPH, C. J.

In this dissolution case, husband appeals the division of property and the award of costs to wife. Wife cross-appeals, seeking modification of the valuation of husband’s lessor’s interest in a manufacturing facility or, in the alternative, modification of the payment schedule in the judgment.

The parties were married for 41 years. Husband is the president of Purdy Corporation, which manufactures paint brushes and paint rollers. Wife has not worked outside the home for over 35 years. The couple have three adult sons, all of whom are employed by the corporation. Husband’s annual corporate compensation at the time of trial was $200,000. His net monthly salary is approximately $12,000. He has also received occasional stock bonuses and has an account with the corporation that allows him to charge personal expenses or borrowings to it that he is then obligated to repay. He has the use of a company car and a chauffeured limousine and has insurance benefits and an expense account.

When the parties separated, wife began receiving a $41,000 salary from the corporation as a “consultant,” but she performs no services. Her net monthly salary is $2,264. She also has the use of an automobile and is provided medical and dental insurance by the corporation. Husband testified that he planned for the company to continue providing the salary and the benefits after the dissolution.

Purdy Corporation owned 9 1/2 acres of vacant land in north Portland. On February 1, 1980, the corporation leased the land to husband for 16 years, with two 5-year renewal options. The lease is part of an arrangement that permitted husband to construct a manufacturing facility with financing from the Oregon Economic Development Commission (OEDC). To secure the financing, OEDC received a defeasible title to the building, which will revert to husband when the debt is paid in 1995. OEDC leased the building back to husband until 1995. Husband then leased it to the corporation for 16 years, with two 5-year renewal options, the same period as in the ground lease from the company. The lease to the corporation provides that the annual rent may increase by 50 percent of the annual increase in the Consumer Price Index for the Portland area, but the rent will not go down if the index goes down.

[345]*345At the time of trial, the monthly lease payment to husband was $21,580. After deductions for husband’s rent under the ground lease and the monthly payments on the OEDC debt, he receives a positive cash flow estimated at between $16,000 and $24,000 a year. When the OEDC debt is paid in 1995, the lease to the corporation during the remaining year of the initial lease and during the renewal periods, if the options are exercised, will produce a net cash flow in excess of $300,000 per year. Since the lease to the corporation, husband has transferred portions of the building to the corporation in order to reduce his construction debt and to decrease the corporation’s monthly rent.

The leasing arrangements were structured in the light of husband’s long-term plan to give control of the corporation to his sons. The plan entails transferring the land and the building to the sons in such a way that no tax burden will be incurred. In 1981, the corporation sold the land, subject to husband’s lease, to a partnership made up of the sons. When the ground lease terminates, the owner of the land, which is now the partnership, automatically becomes the owner of the building. The earliest that that could happen is 1996, when the building and ground leases’ original terms expire, a year after OEDC is to be paid off. If husband exercises the 5-year options to renew his ground lease, title will not pass to the partnership until 2001 or 2006.

As another part of his plan, husband began to give shares of stock in the corporation to the sons in blocks of 300, 100 shares to each. The transfers were made once a year from 1983 through 1986, but two transfers were made in 1987. As a result, husband, who was once a majority shareholder, owned approximately 28 percent of the corporation’s stock at the time of trial.

The dissolution petition was filed in December, 1986. In January, 1987, husband owned 1,647 shares of the stock. During that month, he transferred 300 shares to his sons, as had been his practice. On June 1, 1987, wife sent husband a proposed mutual restraining order barring the parties from transferring any assets until the dissolution was completed. Husband indicated that he would sign the order after wife had signed it. On June 9, 1987, he transferred 300 shares to the sons without wife’s knowledge. He admitted that he made the [346]*346transfer with knowledge that the restraining order was going to be entered but claimed that it was only a part of his long-term plan. After the transfer, he owned 1,047 shares.

A restraining order against husband was entered on August 3, nunc pro tunc July 27,1987. A stipulated restraining order against both parties was entered on August 11. Nevertheless, on October 31, 1987, husband sold certain building improvements to the corporation at their depreciated book value. That transfer reduced his debt to the corporation and reduced the rental payment from the corporation to husband by $1,250 per month.

It is uncontested that the building, the lease and the income from it are valuable assets acquired during the marriage. Both parties offered expert testimony about the present value of the lease. The experts used different rent increase estimates and different discount rates to establish present value. Wife’s expert’s valuation for the remainder of the original lease and both of the option periods was $1,150,350. Husband’s expert stated the present value to be $883,262.1

Husband testified that he does not intend to exercise the ground lease options, because the lease arrangement is part of his plan to transfer all of his interests in all of the property to the sons free of estate tax. He claims that he would not exercise the options because, at the end of the original lease term, he will be 75 years old and has already had heart surgery and a stroke. He testified that the options were created when he was not sure whether his sons would become involved in the corporation and that he had then wanted the flexibility to decide what he would do on the expiration of the original lease term, if the sons did not want to control the corporation. There will be no taxes on husband’s estate if the building goes to the owner of the land at the expiration of the lease in 1996 and he is still alive.

[347]*347The trial court awarded wife permanent spousal support of $5,700 per month, less $2,264, so long as she receives that much in salary from the corporation. The court valued husband’s stock in the corporation at $715 a share and applied that to 1,347 shares, for a total of $963,105; it awarded all of the stock to him. It also awarded husband a townhouse in Lake Oswego with a net value of $72,164; a profit sharing plan worth $27,722; an IRA worth $48,837; a life insurance policy worth $61,157; a condominium in Palm Springs, California, with a net value of $155,024; and an undivided one-half interest in numerous limited partnerships, but with the obligation for all indebtedness or liabilities relating to them.

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In re the Marriage of Howard, 798 P.2d 683, 103 Or. App. 342, 1990 Ore. App. LEXIS 1275 (Or. Ct. App. 1990).

798 P.2d 683 (In re the Marriage of Howard) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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