Marriage of Nemitz v. Nemitz

376 N.W.2d 243, 1985 Minn. App. LEXIS 4648
CourtCourt of Appeals of Minnesota
DecidedOctober 29, 1985
DocketC6-85-359
StatusPublished
Cited by7 cases

This text of 376 N.W.2d 243 (Marriage of Nemitz v. Nemitz) 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 Nemitz v. Nemitz, 376 N.W.2d 243, 1985 Minn. App. LEXIS 4648 (Mich. Ct. App. 1985).

Opinion

OPINION

FOLEY, Judge.

Robert W. Nemitz appeals from the amended judgment in this dissolution proceeding arguing that the trial court overvalued his business interests, erred in dividing the marital assets by failing to consider a $10,000 inheritance as nonmarital property, erred by requiring him to pay $60,000 of his former wife’s attorneys fees and expenses, and erred by not considering the tax consequences of the property division. Respondent did not file a notice of review. We affirm.

FACTS

The parties were married on June 18, 1954. At the time of trial appellant was 51 years old and respondent was 50 years old. Three children were born to the parties. All of them are emancipated.

The parties accumulated substantial property during the course of their marriage including real estate, personal property and business holdings. The parties stipulated as to the value of many of their assets. Expert witnesses were called to testify as to the value of the major asset of the parties — appellant’s 50% share of the Rasmussen College System. This system consists of Rasmussen Business College, Inc., Northern Technical School of Busi *245 ness, Inc., and St. Cloud Business College, Inc., all Minnesota corporations.

The Rasmussen Business College was begun by appellant’s father and was purchased by appellant and his brother in 1961. Prior to that time, appellant taught in the business college. In 1973 appellant and his brother purchased St. Cloud Business College for $15,360, later purchasing a building to house the school. In December 1978, Northern Technical School of Business, which operates on leased property, was purchased by the brothers for $225,-000. Appellant is also a 50% partner with his brother in Nemitz and Nemitz Management Company, a Minnesota general partnership. This company provides management services to the Rasmussen College System in return for 15.2% of the schools’ revenue and pays the salaries of appellant and his brother.

The petition for dissolution was served in September 1982. Before trial in January 1984, the parties were encouraged to and did enter into a stipulation dividing their assets. The judgment entered pursuant to this stipulation was set aside by appellant’s collateral attack and this matter was subsequently tried.

A four-day trial was held in September and October 1984, at which evidence was presented on the valuation of the parties’ assets including appellant’s business interests. Three expert witnesses testified as to the value of the Rasmussen College System.

Appellant had two experts testify as to the value of his 50% interest in the college system. Mr. Rhude, an owner and operator of a business college, testified that appellant’s interest was worth about $300,000 with existing management and about $200,-000 without. He capitalized average before-tax earnings of the schools over the previous six years to arrive at his valuation.

Mr. Weinberg, a certified public accountant, also testified for appellant. His method involved capitalizing a projected income stream, assuming declining enrollments and increasing costs. He used a 25.7% discount rate due to the “risks of the business school industry.” This produced a value of $700,000 for appellant’s share. An additional 25% discount was applied to this figure to calculate the value of the business presuming a sale. This discount reflected appellant’s “key man” status and limited marketability of appellant’s 50% share. Mr. Weinberg’s final valuation of appellant’s interest in the school system was $525,000, exclusive of real estate.

Appellant testified his share of the real estate owned by the businesses was valued at about $320,000. This appraisal was based on an independent appraisal and appellant’s own knowledge. The experts agreed that Nemitz and Nemitz Management Company had no value apart from its assets. Appellant testified his after-tax share of those assets, assuming sale, was $31,800. Respondent’s expert, Mr. Bremer, valued appellant’s one-half interest in the assets at $77,500.

Respondent’s expert, Mr. Bremer, a certified public accountant, also testified as to the value of appellant’s interest in the Rasmussen College System. Bremer capitalized the projected income stream of the college system assuming a 10% average annual increase in earnings. He applied a 15% discount factor and did not apply a “key man” status discount or a discount for limited marketability of the stock. Bremer valued appellant’s interest in the college system and in the management company at $1,065,000. He relied on an independent real estate appraisal in valuing appellant’s share of the college system’s real estate at $405,000. Bremer valued appellant’s total business interests and assets at $1,470,000.

The trial court valued appellant’s business interests and assets at $1,400,000 in its amended judgment. In its amended judgment the trial court awarded respondent $500,000 as her proportionate share of the business assets in addition to personal property in her possession and other assets valued at $709,000. Appellant was awarded the stock and real property of the businesses in addition to other assets valued at *246 $997,000. Appellant was ordered to pay. respondent $500,000 for her share of the business interests by making a $60,000 cash payment within 30 days and $440,000 in monthly installments at 9% interest, payable over 11 years (about $5,260 monthly). Appellant was also required to pay $60,000 of respondent’s attorneys fees and expenses, with $25,000 due by February 1, 1985 and the balance payable within 90 days of the court order.

Appellant moved for an order amending the findings of fact or, in the alternative, for a new trial. Following a hearing, the trial court amended the findings and entered judgment. Appellant appeals from the amended judgment and the order denying a new trial.

ISSUES

1. Did the trial court assign a proper value to the appellant’s business interests?

2. Did the trial court err in calling the Balsam Lake property a marital asset?

3. Did the trial court err in failing to consider the tax consequences of the property settlement?

4. Did the trial court abuse its discretion in requiring appellant to pay a portion of respondent’s attorneys fees?

ANALYSIS

1. Valuation of business interests

The Minnesota Supreme Court has held that a trial court’s determination as to the value of a business in a dissolution action is a finding of fact which should not be set aside on appeal unless clearly erroneous:

Assigning a specific value to an asset is a finding of fact; disputes as to asset valuation are to be addressed to the trier of fact, and conflicts are to be resolved in that court. Such findings of fact, when made without a jury, shall not be set aside unless clearly erroneous on the record as a whole.

Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975) (citations omitted).

Appellant argues the court attached the wrong valuation to his interest in the Rasmussen School System.

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Bluebook (online)
376 N.W.2d 243, 1985 Minn. App. LEXIS 4648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-nemitz-v-nemitz-minnctapp-1985.