In re the Marriage of Messerle

643 P.2d 1286, 57 Or. App. 15, 1982 Ore. App. LEXIS 2807
CourtCourt of Appeals of Oregon
DecidedApril 26, 1982
DocketNo. 80-1759, CA A21221
StatusPublished
Cited by3 cases

This text of 643 P.2d 1286 (In re the Marriage of Messerle) 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 Messerle, 643 P.2d 1286, 57 Or. App. 15, 1982 Ore. App. LEXIS 2807 (Or. Ct. App. 1982).

Opinion

JOSEPH, C. J.

Wife appeals a dissolution decree, contending that the trial court did not make an equitable distribution of husband’s interests in the family corporation and that the award of child support was insufficient. We modify in part and remand for further proceedings.

The parties, in their early thirties, were married for twelve and one-half years. They have two children, who were 9 and 10 years old at the time of the hearing. Husband is employed by, and is the secretary-treasurer of, Fred Messerle & Sons, Inc., a closely held family corporation involved in raising beef and selling timber. The corporation has 1,001 shares of common stock outstanding. Husband and his three brothers each own 250 shares of the voting common stock; one share is owned by husband’s father. Husband also owns 648 shares of the preferred stock.

The corporate by-laws require that each voting shareholder live on corporate property. The corporation contributed $50,000 to the cost of each shareholder’s house and has an interest in it for that amount. The parties’ house has an assessed value of $81,300 but is insured for $112,000. The corporation also supplies necessities to each shareholder and his family. It pays the taxes and utilities for each home, provides each shareholder and his wife an automobile, gives each family its beef requirement and provides medical insurance. Husband also receives a monthly gross salary of $1,200, with a net of approximately $900.

At the time of trial, wife and the children had left the family home. She had returned the car supplied by the corporation and had purchased another for $6,600, which she borrowed from her father.

The trial court awarded wife all of the marital assets in her possession, including antiques, almost $16,000 in savings accounts and $2,700 in cash. Husband was awarded possession of, and the parties’ interest in, the family home.

The dispute centers around the division of husband’s corporate interests. The only evidence of value was [18]*18presented by husband. According to the balance sheet he prepared for 1979, the corporation had a net worth of $2,562,586.1 The book value of the common stock was $1,672 per share, and the stated value of the preferred stock was $100 per share. Thus, according to husband’s figures, the book value of his common stock was approximately $418,103, and his preferred shares had a total stated value of $64,800.

The trial court found that the stated value of the preferred stock was its actual value:

“* * * [I]t can be inferred from the evidence that the corporation has consistently used that value for its preferred shares; therefore, the court finds that the true value of the 648 shares of preferred stock owned by husband is $64,800.00.”

Husband claimed that the present value of his common stock was only $6,165, because the stock is actually intended to be enjoyed in his retirement and, according to the corporate by-laws, is redeemable only on his death or retirement.2 Nevertheless, the shares are transferrable, subject to the restriction that the board of directors be given the first right of refusal to purchase them.

Wife claims that the shares should be valued at book value and that she is presently entitled to one-half of that value, or $209,051.49. The trial court found that wife is entitled to receive that amount only at the time of husband’s retirement.

“Husband’s interest is $418,102.98 which is 24.975% of the net worth of the corporation * * *. Wife would be entitled to one-half of this which is $209,051.49. By stating that wife is entitled to this amount it does not necessarily mean that she should receive that amount immediately. [19]*19This amount reflects husband’s non-vested, non-matured retirement right. Since wife’s interest is derived from husband, she can have no greater right than husband. This means that she would not be entitled to this amount until husband retired.”

He found husband’s shares of common stock presently to be worth $100,000.

The court awarded wife all of the preferred shares, giving husband the first right of refusal should she want to sell them. He ordered that the common stock be placed in trust for the benefit of both parties, with the voting rights in husband. Under the decree, husband may terminate the trust and acquire the preferred stock by paying wife $82,400 (one-half of the stated value of the preferred stock and one-half of the “current” $100,000 value of the common stock) within five years from the date of the decree. If, after five years, he has not terminated the trust in this manner, wife would be free to dispose of the preferred stock, and the trust would continue until husband retires or the parties jointly agree to sell the stock, at which time wife is entitled to receive $241,451.49,3 less any proceeds she may have received from a sale of the preferred stock.4 Husband would then pay the amount in 120 monthly installments of $2,012. When the payments were completed, wife would transfer any unsold preferred shares to husband. He is to be responsible for any taxes attributable to the transfer of shares.

The trial court’s valuation of the common stock is puzzling. He rejected wife’s claim that it was currently worth the book value of $418,103 and husband’s claim that [20]*20it was presently worth only $6,165, but found instead that it was worth $100,000, which is apparently nothing other than a compromise figure with no basis in the record. He also found that the 1980 book value is what husband will receive on retirement several years hence and that wife would then be entitled to one-half of that amount if husband did not buy out her interest earlier.5

Under the decree, it is unlikely that wife will receive anything from the corporate interests for nearly 30 years, because the corporation is closely held, the shares are not readily marketable and husband’s interest is intended to be realized only upon his retirement. This is particularly inequitable given that the parties’ home — ordinarily a major asset of a marriage — is partially owned by the corporation and has been awarded to husband. Moreover, the decree can hardly be said to disentangle the financial affairs of the parties. See Price and Price, 43 Or App 1029, 607 P2d 756 (1979).

We acknowledge the shortcomings of valuing stock in a closely held corporation at book value,6 but neither party put on any other evidence as to its present fair market value. Moreover, both parties seem willing to assume that the present book value is the proper measure. Wife claims the present book value is the present value of husband’s interest. He claims it is only the basis of his retirement interest. However, there was no evidence, other than his testimony, that this is the case. He also testified that the redemption value is solely within the control of the board of directors. Because the only reliable evidence presented was the book value of the common stock and the stated value of the preferred stock, we adopt those values as the current values of husband’s interests.7 See Kennedy and Kennedy, 51 Or App 15, 21, 625 P2d 654 (1981), and [21]*21Halvorsen and Halvorsen, 46 Or App 25, 29, 610 P2d 307 (1980).

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643 P.2d 1286, 57 Or. App. 15, 1982 Ore. App. LEXIS 2807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-messerle-orctapp-1982.