Marriage of Bury v. Bury

416 N.W.2d 133, 1987 Minn. App. LEXIS 5059, 1987 WL 4523
CourtCourt of Appeals of Minnesota
DecidedDecember 1, 1987
DocketC9-87-814
StatusPublished
Cited by3 cases

This text of 416 N.W.2d 133 (Marriage of Bury v. Bury) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marriage of Bury v. Bury, 416 N.W.2d 133, 1987 Minn. App. LEXIS 5059, 1987 WL 4523 (Mich. Ct. App. 1987).

Opinion

OPINION

CRIPPEN, Judge.

Appellant challenges the valuation and division of marital property, and the award of maintenance and attorney fees to respondent. We affirm.

FACTS

Appellant Richard B. Bury and respondent Dorothea A. Bury were divorced on December 26, 1986, after a 29-year marriage. During the marriage, respondent occupied the role of traditional homemaker, actively caring for the couple’s four children, all of whom were emancipated by the time of the trial. She has no college degree and no special vocational training, and has not had full-time employment in the last five years. She has a diabetic condition which she can control with insulin, diet, and exercise. The trial court found she is unable to'support herself and had insufficient property to provide for her rea *135 sonable needs, projected at $3525 per month.

Appellant holds a college degree in civil engineering and is sole owner and president of Midwest Asphalt Corporation.

The trial court made findings of fact identifying marital property and the valuation of each item. The court found that appellant’s financial resources were far greater than respondent’s. Based on these findings, the court decided that respondent was entitled to maintenance of $12,000 per year, attorney fees, and a cash payment over several years, as well as a great deal of the marital property.

The court awarded $606,000 cash to respondent: $106,000 payable within 180 days of the judgment, and $500,000 by promissory note payable over 10 years in installments of $50,000. Each principal payment is to include six percent interest on the unpaid balance.

The court awarded the homestead and adjacent rental property to respondent, after valuing them at $137,000 and $52,500, respectively. Appellant testified on his own behalf that the house, which has frontage on Glen Lake, is worth at least $200,-000 and the fair market value of the rental property is $80,000. Appellant contended that, as owner, his testimony as to the value of the properties was fully competent and was erroneously disregarded by the trial court. He argued that respondent’s witness undervalued these properties, and he attacked the credibility of respondent’s appraiser.

Respondent’s witness determined the property value by market analysis, comparing the house with other similar properties and making adjustments for “dissimilarities with respect to value influence.” He testified that this is a proper method of determining market value. Respondent’s appraiser admitted on cross-examination that other houses he looked at for comparison were not lakefront property, and that he had no direct experience regarding the value of lake frontage property on Glen Lake. The court accepted the valuation by respondent’s appraiser.

Appellant contended the trial court also overvalued his company, Midwest Asphalt Corporation, thereby overestimating his divided part of marital assets. The parties presented conflicting testimony by two certified public accountants. Respondent’s witness testified that he used four valuation methods that are “generally recognized as valid and acceptable methods of valuing a business that is operating as a going concern.” Taking into account the going concern and/or goodwill value, and a 15% marketability discount because of the closely held nature of the corporation, the expert arrived at $1,450,000 as the most likely market value, which the trial court adopted.

Using an adjusted book value method, appellant’s expert valued the business at between $356,000 and $588,000. He testified the book value was $740,000 and reduced that by $152,000, to $588,000, eliminating the value of stock in Walburn, Ltd. because of risk associated with pending litigation.

The trial court rejected this appraisal. •First, it was found flawed because it considered only tangible assets, and did not take into account any of the intangible assets associated with the “going concern” value of an operating business. In the 15 years appellant owned the company, it acquired value in longstanding relationships with banks and bonding companies, and in its own raw material supply sources.

Second, the expert did not adjust the value to reflect the fair market value of the land and buildings, which would have resulted in an adjusted book value of $973,-545 for the corporation.-

Third, the court found that the expert overvalued the contingent liability of Midwest Asphalt from an environmental damage lawsuit. The corporation is the general partner owning a one-third interest in a Minnesota limited partnership known as Walburn, Ltd. Walburn is one of multiple defendants in two lawsuits filed in connection with the alleged contamination of groundwater in the New Brighton area. Walburn has been designated an “indispensable party” under the statute, meaning that there is an insufficient basis to find it *136 a “responsible party” and that its obligation is to cooperate with the designated responsible parties in the clean-up efforts on the sites.

Respondent’s expert admitted on cross-examination that the contingent liability might adversely impact the marketability of appellant’s interest in Midwest Asphalt, and consequently the trial court discounted Bremer’s fair market value figure by 30%, to $1,015,000.

ISSUES

1. Did the trial court err in awarding more of the marital property to respondent than to appellant?

2. Did the trial court err in its valuation of the parties’ marital property?

3. Did the trial court err in granting spousal maintenance to respondent?

4. Did the trial court err in requiring appellant to pay respondent’s attorney fees?

ANALYSIS

I.

The trial court has broad discretion for property divisions, child support, and spousal maintenance. Bogen v. Bogen, 261 N.W.2d 606, 609 (Minn.1977); Novick v. Novick, 366 N.W.2d 330, 332 (Minn.Ct.App.1985). If the trial court’s determination has reasonable and acceptable basis in fact and principle, the reviewing court must affirm. Novick, 366 N.W.2d at 332 (citing DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn.1983)).

On appeal from a property settlement in a dissolution case, appellant has the burden of showing that the trial court abused its discretion in granting an award. Quade v. Quade, 367 N.W.2d 87, 89 (Minn.Ct.App.1985), pet. for rev. denied (Minn. July 11, 1985) (citing Swanson v. Swanson, 233 Minn. 354, 362, 46 N.W.2d 878, 883 (1951)).

Appellant contends that the trial court’s marital property distribution was vastly unfair in that a disproportionate amount was awarded to respondent.

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621 N.W.2d 758 (Court of Appeals of Minnesota, 2001)

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Bluebook (online)
416 N.W.2d 133, 1987 Minn. App. LEXIS 5059, 1987 WL 4523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-bury-v-bury-minnctapp-1987.