Marriage of Smith v. Smith

410 N.W.2d 334, 1987 Minn. App. LEXIS 4623
CourtCourt of Appeals of Minnesota
DecidedAugust 4, 1987
DocketC6-86-2106
StatusPublished
Cited by1 cases

This text of 410 N.W.2d 334 (Marriage of Smith v. Smith) 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 Smith v. Smith, 410 N.W.2d 334, 1987 Minn. App. LEXIS 4623 (Mich. Ct. App. 1987).

Opinion

OPINION

HUSPENI, Judge.

Appellant Gerald Smith argues that they trial court in this dissolution action abused its discretion in valuing an asset, dividing property, failing to give credit for expenditures made during the pendency of the action which were necessary to preserve the marital estate and in awarding attorney’s fees. Respondent Darlene Smith has filed a notice of review and contends that in the property division the court abused its discretion in crediting appellant with money he received through inheritance but which he comingled with marital assets during the marriage. We affirm.

FACTS

The parties were married in 1959 and have three children, all of whom are now over 18. During the marriage, the parties became involved in several partnerships which own real estate and contracts for deed. Various members of the parties’ families were also involved in the partnerships. Appellant and respondent were both actively involved in the real estate business, and both managed the rental properties owned by the partnerships. Their income was derived from management fees charged to the partnerships based on five percent of the gross rental income and from the cash flow generated by the properties.

By the time this dissolution action was commenced in April of 1984, the relationship between appellant and respondent had deteriorated to the point where they could not work cooperatively. They agreed that they could not continue as co-owners of any of the properties following the dissolution.

The trial court found the total value of the marital estate to be $2,565,055, and that appellant had enhanced the marital estate by $122,500 he had inherited from his father during the marriage, although the money could not be traced to any specific asset. The court awarded appellant assets valued at $122,500 in excess of those awarded to respondent in recognition of this enhancement. The court’s division resulted in respondent, being awarded assets valued at $1,221,277 and appellant being awarded assets valued at $1,343,778. In making the division, the trial court awarded interests in three of the real estate partnerships to respondent and five to appellant. Appellant was awarded the Win-netka Village Apartments, which represents approximately 37 percent of the property owned by the parties. Three contracts for deeds were awarded to respondent and one to appellant.

ISSUES

Did the trial court abuse its discretion in:

1. Valuing Winnetka Village Apartments,

2. Dividing the property,

3. Failing to allow appellant credit for expenditures required to preserve the marital estate during the pendency of this action,

4. Ordering appellant to pay one-half of respondent’s attorney’s fees, and

5. Allowing appellant credit for enhancement of the marital estate?

ANALYSIS

I.

The parties stipulated to the values of all properties except Winnetka Village Apartments. Both presented expert testimony from appraisers regarding the value of that complex, and the trial court adopted the *336 valuation offered by respondent’s appraiser, Howard Lawrence. Appellant argues that the trial court should have made findings explaining why it accepted Lawrence’s valuation when appellant's expert, David Berg, had offered a different figure.

The supreme court has stated that the trial court’s valuations

should be supported by either clear documentary or testimonial evidence or by comprehensive findings issued by the court.

Ronnkvist v. Ronnkvist, 331 N.W.2d 764, 766 (Minn.1983). In adopting Lawrence’s valuation, the trial court found:

[Respondent’s] appraiser performed a cash equivalency appraisal which encompassed the traditional approach of combining values arrived at through replacement cost analysis, comparative sales analysis and capitalization of net income (using a capitalization rate of 9.0%).

Appellant asserts that this finding is not sufficiently detailed to explain why the court adopted Lawrence’s valuation. However, the finding does summarize the methodology used by Lawrence. He determined that the income approach to valuation, using a nine percent capitalization rate, would yield a value of $7,100,000. The comparison of sales approach would place the value at $8,400,000, and the value based on replacement cost would be $8,000,000. Lawrence stated that a potential buyer

would consider what apartment buildings have been selling for, the sales prices, how big they are. He would look at the economics, very important, but he would forecast the future a little more. The one I have is kind of a sterile figure on that date. He would sense the future and then he would compromise in his mind which number should be better or best guide. He would consider what others have sold for * * *.

Lawrence’s testimony indicates that he attempted to reflect the process of compromise that a potential buyer would complete, rather than merely averaging the figures yielded by the three approaches to valuation, as appellant has alleged. Lawrence compromised the figures resulting from the comparative sales and income approaches, concluding that the value of Win-netka Village Apartments was $7,800,000.

In contrast, appellant’s appraiser Berg placed little emphasis on comparative sales when valuing the property for the purposes of this dissolution action. However, two years earlier, he too had relied on comparative sales when valuing the property for the purposes of refinancing. After speculating on the possible effect of pending changes in the federal tax laws, Berg shifted to reliance on the income approach’. Using a nine and one-half percent capitalization rate and more current income figures than those available to Lawrence, he arrived at a value of $7,168,000.

We further note that in adopting a nine fnd one-half percent capitalization rate for use in the income approach to valuation, Berg acknowledged that there is no consensus on which rate to use and that selection of a rate is a matter of opinion among appraisers. He further acknowledged that the lower the rate used, the higher the resulting value. Lawrence used a nine percent rate, which consequently would yield a higher value than that resulting from the rate used by Berg. Had Berg also used a nine percent rate, his valuation would have been closer to Lawrence’s figure. Given the subjective process of selecting a capitalization rate, we cannot require the trial court to accept an appraisal based on a nine and one-half percent rate rather than nine percent.

While the trial court’s finding does not go into detail as to why it accepted Lawrence’s approach to valuation rather than Berg’s, the finding is sufficient to indicate that the court found Lawrence’s methodology the “traditional approach.” As this court has noted:

Where conflicting opinions of expert witnesses have a reasonable basis in fact, the trier of fact must decide who is right, and the decision will not be overturned on appeal.

Griepp v. Griepp,

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Related

Falk v. Hecker (In Re Falk)
88 B.R. 957 (D. Minnesota, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
410 N.W.2d 334, 1987 Minn. App. LEXIS 4623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-smith-v-smith-minnctapp-1987.