In re the Marriage of Madden

836 P.2d 1349, 114 Or. App. 319, 1992 Ore. App. LEXIS 1506
CourtCourt of Appeals of Oregon
DecidedJuly 22, 1992
DocketC891567 DR; CA A67850
StatusPublished
Cited by9 cases

This text of 836 P.2d 1349 (In re the Marriage of Madden) 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 Madden, 836 P.2d 1349, 114 Or. App. 319, 1992 Ore. App. LEXIS 1506 (Or. Ct. App. 1992).

Opinion

DEITS, J.

In this appeal from a judgment dissolving a 26-year marriage, husband assigns error to the trial court’s division of his interest in a closely held corporation, the requirement that he provide wife with an annual accounting, the amount and length of spousal support, the failure to award him the tax exemption for their minor child and the trial court’s award of attorney fees.

Before the marriage, wife, age 50, had graduated from junior college and worked as a flight attendant. She did not work outside the home during the marriage, until recently. She now works approximately 20 hours a week for $5.75 an hour taping hearings for a court reporting firm. She has made a few unsuccessful attempts to get a job as a receptionist.

Husband, age 53, worked in sales when the parties married. In the early 1970’s, he formed two corporations, Madden Sales, Inc., and Dee-Two Marketing, which sell food ingredients to the dairy industry. Husband received an income of varying amounts from Madden Sales each year, plus substantial benefits, including medical, travel and automobile expenses, as well as a pension plan. Madden sales put approximately $5,000 into his pension plan in 1989. Dee-Two Marketing owns the pick-up that husband drives, and Madden Sales purchased the Porsche that he uses.

Wesman Foods, Inc., was formed by five shareholders in 1981. Husband owns a 2/9 interest and is also employed by it as a salesperson, earning approximately $48,000 a year. The company manufactures a natural preservative used in dairy products. Its gross sales were $226,889 in 1985 and $754,582 in 1989. At the time of trial, Wesman Foods owed husband $160,489 in back wages and loans, plus interest. In May, 1990, Oregon Freeze Dry made an offer to buy Wesman Foods for $500,000, plus royalties for gross earnings over $750,000. The offer indicated that approximately $133,000 of the $500,000 was for the corporation’s assets and the rest for non-competition clauses that would not affect husband’s work for Madden Sales. It included a six-month employment contract for husband. One of the other shareholders and the corporation’s accountant testified that, [322]*322if the offer were accepted, the $500,000 would provide for little more than liquidation of debt. Husband testified that he did not want to accept the offer. Because the other shareholders were divided on the issue, his decision would be dispositive.

The trial court awarded wife custody of the parties’ youngest child, age 15. It ordered husband to pay $600 per month child support and $1,750 per month permanent spousal support. The court created a college fund trust account for the children’s education and ordered each party to add $5,000 to it as soon as rental properties that they owned were sold. The parties’ older two children, ages 20 and 22, now attend college. The judgment divided the assets, which include a residence, several other pieces of real estate, diamonds, bonds, the three businesses, household furnishings and personal property. All of the assets, except Wesman Foods, were divided equally. Regarding Wesman Foods, the court awarded husband all of the stock but ordered that he make an annual accounting and give wife half of all money that he receives as back wages, loan payments and interest, if the business is sold.1 The trial court explained that the annual accounting was “to protect her from any kind of bleed off of this corporation.” The court also awarded wife attorney fees of $5,380.

Husband first assigns error to the trial court’s award to wife of specific funds that he may receive from Wesman [323]*323Foods.2 He argues that the court erred, because it did not disentangle the parties’ finances as much as possible. Courts should disentangle the finances in a dissolution proceeding to the greatest extent possible.

“In dividing the property the dissolution decree should seek to disentangle the parties’ financial affairs and make them free from each other’s financial interference. The friction resulting from the unsuccessful marriage partnership almost inevitably makes continued business association untenable.” Slauson and Slauson, 29 Or App 177, 183, 562 P2d 604 (1977), quoted in Haguewood and Haguewood, 292 Or 197, 208, 638 P2d 1135 (1981). (Citation omitted.)

It is apparent that the parties have had difficulty in resolving their differences and that it would be in both parties’ best interests to end their financial relationship to the greatest extent possible. We conclude that the interest in Wesman Foods should be awarded to one of the parties. As explained in Haguewood and Haguewood, supra, 292 Or at 208:

“Where division of the principal asset of the marriage would unnecessarily dissipate its value and where alternative means can be found for dividing the financial benefit of the asset, the asset should be awarded intact to the spouse best able to manage it and other forms of balancing awards of property or support should be employed.”

Husband is best able to manage the business and, accordingly, it should be awarded to him.

The difficult issue here is how to value Wesman Foods. Husband and other witnesses testified that, unless it were sold or received an infusion of capital, it would probably be worthless within 6 months. On the other hand, there is evidence that the business does have significant value. There was a bona fide offer to purchase it for $500,000 at the time of trial. The testimony indicated that the offer could be structured in different ways for tax advantages and that it was sufficient to pay back all loans that the shareholders had made to it. The trial court recognized the difficulty in valuing the business because of its uncertain future and concluded [324]*324that the best way to allow wife credit for the business was to give her one-half of all amounts exceeding salary and normal raises that husband receives from the corporation before or after a sale. The trial court explained:

“Then we get to the famous Wesman Foods situation. The reason I said it doesn’t matter very much about the sale or not, it certainly matters to the people who are interested in Wesman Foods, but this is of such a completely speculative nature and it is worth anywhere from $133,000 [the value of the assets] down to virtually very little. It is the kind of situation that one can really not have anything resembling a reasonable judgment as to what it’s worth. There is a great deal of turmoil and difficulty. A possible sale, but even with a possible sale we don’t know really what it’s worth because it’s — Mr. Madden is and others are owed a lot from it. There is just all kinds of questions about the process patents or whatever. And it’s essentially an impossible matter to get a handle on, number 1.”

We conclude that awarding husband his interest in Wesman Foods and awarding wife a money judgment against him for one-half the amount that the corporation owes him is the best way to divide the asset. Recognizing that husband does not have liquid assets readily available and that he needs flexibility in his business decisions, we award wife a money judgment in the amount of $80,250 payable at 9 percent interest, with $10,000 to be paid by January 1,1993, $20,000 to be paid on or before August 30,1995, and the remainder to be paid in full on or before August 30, 1997.

Husband next argues that the award of $1,750 per month permanent spousal support is too high.

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Cite This Page — Counsel Stack

Bluebook (online)
836 P.2d 1349, 114 Or. App. 319, 1992 Ore. App. LEXIS 1506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-madden-orctapp-1992.