In re the Marriage of Weakley

33 P.3d 1045, 177 Or. App. 363
CourtCourt of Appeals of Oregon
DecidedOctober 31, 2001
Docket99DO-0133DS; A108764
StatusPublished
Cited by6 cases

This text of 33 P.3d 1045 (In re the Marriage of Weakley) 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 Weakley, 33 P.3d 1045, 177 Or. App. 363 (Or. Ct. App. 2001).

Opinion

EDMONDS, P. J.

Husband appeals from a dissolution judgment. ORS 107.105. He makes four assignments of error: The trial court erred (1) by adopting an expert witness’s opinion as to the valuation of husband’s stock in his business by including goodwill and by it failing to deduct for sales commissions in arriving at the value of equipment; (2) by failing to discount the shareholder loan owed by husband’s company to him; (3) by failing to take into account in its property award wife’s alleged refusal to provide discovery; and (4) by requiring him to pay an equalizing judgment within 120 days. Wife cross-appeals the trial court’s denial of her claim for spousal support. On de novo review, we affirm on husband’s appeal, and on wife’s cross-appeal, we award her indefinite spousal support in the amount of $195 per month.

At the time of the dissolution, husband was 49 years old, and wife was 45 years old. They had been married for 26 years and have one adult child. Neither party brought any substantial assets to the marriage. Husband completed two and one half years of college before the marriage. Throughout most of the marriage, he was employed by a logging company. In 1996, he formed Cascade Thinning, Inc. (Cascade), a Sub-chapter S corporation, with two other shareholders. Husband works full time for Cascade. He runs a shovel and a log loader. He receives income of $3,550 per month, and his total monthly expenses are $2,861. At some point, husband elected to defer receipt of payment of a $500 per month raise. The company kept track of those amounts, and husband drew against them as needed for personal expenses, including the cost of this litigation. Consequently, husband has drawn an undetermined amount of money from Cascade to pay for personal and legal expenses and has exhausted the surplus created by his retained salary. Husband also receives work-related benefits from Cascade such as use of a truck, a cell phone, fuel related to business travel, dining and lodging expenses and health insurance.1 He also receives $96 per month in veterans’ disability benefits.

[366]*366Cascade is a specialized logging company that performs thinning projects. It employs 11 people and has gross revenues of more than a million dollars. Fifty percent of the company’s business comes from fixed contracts, and the rest results from bids. In the industry, 90 percent of thinning contracts are bid contracts, which means that the contracts will be let to the lowest qualified bidder, regardless of the bidder’s reputation or experience. Husband describes the thinning business as “feast or famine,” with too much business in the summer and too little business in the winter. The evidence shows overall that the timber industry is a declining industry because there is a multitude of competitors and a decreasing timber supply.

When forming Cascade, husband contributed the initial start-up capital, and the other two shareholders contributed their experience. The shareholders have entered into a stock transfer agreement. The agreement gives the company and the other shareholders the right to purchase a shareholder’s stock before the stock can be sold to a third party. Any attempt by a shareholder to encumber the stock is treated as an election to transfer under the agreement. The agreement also provides that the other shareholders will acquire without cost a portion of husband’s stock each year until the year 2003, at which time husband will own 40 percent of the stock and the two other shareholders will own 30 percent each. At the time of the dissolution, husband owned 56 percent of the stock in the corporation.

Wife is a high school graduate. She is employed full time as an optical assistant and works an average of four hours of overtime each month. She has no plans for further education or for a job change. She suffers from fibromyalgia, which requires that she take medication, but her disease does not prevent her from working. She earns approximately $1,849 a month, and she lists her monthly expenses as between $2,792 and $3,017. Those amounts include saving 15 percent of her salary for retirement and a $1,000-1,200 per month housing expense. During the marriage, Cascade paid for wife’s medical insurance. After the dissolution, wife will be able to obtain medical insurance for $195 a month through her employer.

[367]*367During the marriage, both parties put money into their respective IRA accounts; husband stopped making contributions three years ago when he started paying $609 a month in child support for a child conceived outside the marriage. Wife testified that the parties contemplated retiring when husband was age 47 years old and, through her management of their finances, she would have accomplished that goal, had she not “lost control” of the family finances. At the time of dissolution and after a 30 percent tax liability discount, husband had two IRA accounts in the amount of $38,470 and $63,300; while wife had an IRA account in the amount of $7,700, an investment account in the amount of $33,962 and a retirement account in the amount of $21,799. In 1977, the parties built a residence and, at the time of trial, husband continued to reside there. The parties stipulated that the value of the residence was $150,000. It is encumbered by a first mortgage of about $7,200 and a second mortgage of about $40,000 that Cascade has assumed. Husband requested that he receive the marital residence because his mother lives next door.

At trial, husband’s expert witness, a certified public accountant, valued Cascade’s net assets at $910,200. He did not include any goodwill in the calculation. He deducted from that value the cost of sales commissions, assuming that the equipment of the company would be sold. Husband’s expert also deducted $16,696 from the net assets of the corporation as a discount on an unsecured shareholder’s loan that husband had made to the corporation. Wife’s expert witness, who is a certified public accountant and a certified valuation expert, also testified as to the value of husband’s interest in Cascade. He based his value on the fair market value of the equipment without a discount for sales commissions. He also included in his valuation a $117,018 value for goodwill, explaining that, in his view, Cascade is an ongoing concern that is not dependent on any particular expertise of husband. He also took into account the declining nature of the logging industry, Cascade’s four-year business history, and the specialized nature of its business in his valuation of Cascade’s goodwill. Wife’s expert did not discount the loan.

The trial court awarded each party their individual retirement, checking, savings, and investment accounts. It [368]*368found that husband was capable of earning $62,000 a year, even though he was not currently earning that much. Husband was also awarded the marital home and his interest in Cascade. This award lefthusband with net assets of$525,510 and wife with net assets of $99,461, according to the court’s calculation. As a result, it awarded wife a $213,024.50 equalizing judgment, leaving each party with $312,485.50 in net assets. The judgment requires that husband pay the equalizing judgment within 120 days after entry of the judgment.

The trial court ruled that wife’s expert witness’s analysis is the preferred approach for the valuation of Cascade. We agree.

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245 P.3d 676 (Court of Appeals of Oregon, 2010)
In Re the Marriage of Sather
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In re the Marriage of McDuffy
56 P.3d 449 (Court of Appeals of Oregon, 2002)

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Bluebook (online)
33 P.3d 1045, 177 Or. App. 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-weakley-orctapp-2001.