McCabe v. McCabe

543 A.2d 558, 374 Pa. Super. 451, 1988 Pa. Super. LEXIS 1683
CourtSupreme Court of Pennsylvania
DecidedMay 31, 1988
Docket1353 and 1354
StatusPublished
Cited by8 cases

This text of 543 A.2d 558 (McCabe v. McCabe) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCabe v. McCabe, 543 A.2d 558, 374 Pa. Super. 451, 1988 Pa. Super. LEXIS 1683 (Pa. 1988).

Opinions

BROSKY, Judge:

This is a consolidated appeal. Appellant has appealed from final orders providing for alimony, alimony pendente [453]*453lite, distribution of property and the awarding of counsel fees and expenses.

Appellant has challenged the trial court’s valuation of marital property and distribution of marital property, the awarding of alimony, alimony pendente lite and counsel fees and expenses, and has also challenged the procedure utilized by the Montgomery County Court of Common Pleas. Because we find that the trial court erred in the valuation of marital property, we will affirm the orders in part, vacate in part, and remand the case to the trial court for further proceedings.

The parties to this action were married in 1948 and separated in July of 1980. Appellant has pursued a career in law, and for many years has been associated with the firm of Rawle & Henderson, located in Philadelphia. Appellant is currently a partner in that firm. Appellee has never been employed for compensation, but took an active role in raising and caring for the parties’ five children. The record indicates that appellant’s gross income from his law practice approximates $150,000 per year and has approximated this figure for many years. At the time of the filing of briefs appellant was 62 years of age while appellee was age 60.

An action in divorce was filed by appellee on January 26, 1981. After several hearings and the passing of much time, the orders in question were issued by the Court of Common Pleas of Montgomery County. Marital property was valued at more than $590,000 by the trial court. The equitable distribution order called for distribution as follows:

To appellee:

Personalty $ 8,231.00

Stock (including net increase) 60,207.55

Pension Plan (appellant’s) 60,638.63

Home 140,000.00

Loan 4,500.00

Boat 12,000.00

Cash 15,500.00

$301,077.18

[454]*454To appellant:

Partnership interest $286,276.00

Stamp Collection 5.430.00

Life Insurance 1.951.00

$293,657.00

Appellant was also ordered tó pay appellee $2,500.00 a month alimony for an indefinite period of time and the sum of $33,047.43 for counsel fees and expenses.

Appellant argues that the court erred in valuing appellant’s partnership interest in excess of $286,000.00 and, therefore, abused its discretion in distributing the marital property as it did. After careful consideration of this contention, we are inclined to agree.

There can be no doubt that the passage of the Divorce Code in 1980 has given rise to a number of interesting and difficult issues in property distribution. Business interests are properly included in the marital estate, and there is no reason to exclude a professional practice from the classification of marital property as well. In the present case, the partnership interest appellant has in the firm of Rawle & Henderson was acquired during the marriage, and is, therefore, marital property and properly a subject of equitable distribution. Appellant does not dispute this, but contends that the figure assigned as a representative value is not founded in economic reality.

Judicial experience leads us to state that the difficulty in valuing marital property becomes more acute when the subject of the valuation becomes less tangible. Undoubtedly, the partnership interest in this case is much more difficult to value than the parties’ stock. Although both could be classified as business interests, the stocks are considerably easier to valúate, as they are readily transferable for consideration on the appropriate market. Furthermore, and perhaps more importantly, they do not require active participation by the owner. Similarly, a small business owner, while perhaps actively involved in the business’s operation, is capable of selling his business and realizing its value. However, the case of valuating the [455]*455interest of a professional corporation or a sole proprietorship, is full of difficulties and the subject of much debate.

Any business enterprise operates on a principle of utilizing or employing assets to derive income from its operation. When an individual owns stock in a corporation, he owns a proportionate share of the assets, and the right to receive the income derived from the utilization of the assets. This principle applies as well in a small business or in a professional practice. HoweVer, in the professional practice, the professional plays a far more important role in the derivation of profits or income and can, in fact, be considered the major “asset” of that concern. Moreover, in professional practices, the value of the expertise or knowledge often far outweighs the value of the more tangible capital assets employed in the practice. In this respect, the profits drawn from the professional practice can be traced, in a sense, to the employment of both tangible and non-tangible assets. However, the non-tangible asset, the expertise and training, is part and parcel of one of the parties to the action: hence, making distribution of such an asset impossible and awarding commensurate compensation to the other spouse problematic at trial. The court cannot sever part of the surgeon’s training and expertise and award it to a spouse, although such training and experience undoubtedly has “value” to one who possesses it and even though one spouse may have contributed greatly to its acquisition. Nor have our courts held that such intangible assets are even marital “property” subject to equitable distribution.

In Hodge v. Hodge, 513 Pa. 264, 520 A.2d 15 (1986), our Supreme Court affirmed a panel decision of this Court holding that increased earning capacity is not a divisible asset subject to equitable distribution. The court indicated that it is not proper to award one spouse a share of the other spouse’s future earnings, even if the increased capacity for earning was acquired during the marriage.

Perhaps in awareness of this Court’s decision in Hodge, the trial court stressed that evaluation of appellant’s partnership interest was in no way based upon appellant’s [456]*456expectation of future income. Rather appellee’s expert evaluated the partnership as “a going concern.” His evaluation included, but was not necessarily limited to, such items as equipment, cash, accounts receivable and work-in-progress (services rendered but not yet billed). Appellant’s partnership interest was derived by dividing the value of the partnership by his percentage of “ownership” in the firm. This resulted in a figure of approximately $286,000. If appellant enjoyed all the benefits of true ownership, i.e. the ability to sell, liquidate or otherwise realize the value assigned to his interest, we might be inclined to affirm the equitable distribution order in question. However, it has been clearly established in this case that appellant cannot realize the value assigned for his partnership interest by appellees’ expert. Consequently, we cannot affirm that order.

Like many business enterprises, the firm of Rawle & Henderson has an agreement which defines the rights of each partner. Under the Rawle & Henderson partnership agreement, a partner whose partnership status ends is compensated upon leaving pursuant to terms in the agreement.

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Bluebook (online)
543 A.2d 558, 374 Pa. Super. 451, 1988 Pa. Super. LEXIS 1683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccabe-v-mccabe-pa-1988.