Rush v. Rush

932 So. 2d 800, 2005 WL 1870253
CourtCourt of Appeals of Mississippi
DecidedAugust 9, 2005
Docket2004-CA-00260-COA
StatusPublished
Cited by3 cases

This text of 932 So. 2d 800 (Rush v. Rush) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rush v. Rush, 932 So. 2d 800, 2005 WL 1870253 (Mich. Ct. App. 2005).

Opinion

932 So.2d 800 (2005)

Charles W. RUSH, Appellant
v.
Latresa A. RUSH, Appellee.

No. 2004-CA-00260-COA.

Court of Appeals of Mississippi.

August 9, 2005.
Rehearing Denied November 29, 2005.

*802 Stephen L. Beach, Jackson, attorney for appellant.

William D. Ketner, Jackson, attorney for appellee.

Before BRIDGES, P.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. Charles Rush and Latresa Rush were granted a divorce in the Rankin *803 County Chancery Court. Charles is a one-third owner of an air conditioning service, which the chancellor valued at $179,000. The chancellor found that none of the value of the air conditioning service was attributable to Charles' goodwill. Latresa was found to be entitled to $89,000, and the chancellor secured Latresa's payment by imposing a judicial lien on the former marital home. Charles was granted primary physical custody of the parties' minor child, but he was ordered to pay $400 per month in child support and $500 per month in periodic alimony to Latresa. Charles appeals, raising the following issues:

I. WHETHER THE CHANCELLOR ERRED IN DECLARING THAT THE GOODWILL OF HERMETIC RUSH SERVICES, INC. WAS A MARITAL ASSET THAT COULD BE DIVIDED BETWEEN THE PARTIES
II. WHETHER THE CHANCELLOR ERRED IN AWARDING CHILD SUPPORT PAYMENTS TO LATRESA
III. WHETHER THE CHANCELLOR ERRED IN AWARDING LATRESA PERIODIC ALIMONY
IV. WHETHER THE CHANCELLOR ERRED IN PLACING A JUDICIAL LIEN ON CHARLES' HOME TO SECURE PAYMENT OF CHARLES' INTEREST IN HERMETIC

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Charles W. Rush and Latresa A. Rush were married on October 22, 1983, and separated in August of 2001. The marriage produced two children, Charles Sean Rush ("Sean"), born July 10, 1984, and Rose Marie Rush ("Rosie"), born October 14, 1991. On July 26, 2002, Charles filed a complaint for divorce on the grounds of Latresa's adultery. In his complaint, Charles requested custody of the children and an equitable distribution of the marital property. On September 13, 2002, Latresa filed a motion for relief, where she requested custody of the children, child support, alimony, and an equitable distribution of property. Before the divorce was finalized, Charles had physical custody of Sean and Latresa had physical custody of Rosie, and Charles paid $1,000 per month in child support.

¶ 4. Trial was held on September 3 and 4, 2003. At the beginning of the trial, Latresa admitted to uncondoned adultery. The chancellor granted a judgment of divorce in favor of Charles and retained jurisdiction to resolve matters relating to child custody, child support, and division of the marital property.

¶ 5. Charles is an air conditioning technician and owns a one-third interest, or 100 shares, in a business called Hermetic Rush Services, Incorporated ("Hermetic"). Latresa was not employed during the time she and Charles were separated, but she helped operate Charles' business as a bookkeeper and secretary for approximately six years, and she also occasionally worked in temporary contract agencies at various times during the marriage. At the time of the trial, Latresa was attending community college part-time pursuing a degree in cosmetology.

¶ 6. The chancellor appointed Pace and Company, Ltd., to value Hermetic. Kevin Lightheart completed this evaluation on December 16, 2002. Lightheart valued Charles' stock in Hermetic at $1,790 per share, for a total of $179,000. Goodwill was not discussed in this valuation. After the valuation report was completed, Charles' attorney made an ex parte request to Lightheart inquiring what part, if any, of the value of the business was attributable to Charles' goodwill in the corporation. *804 Lightheart submitted a letter stating that $120,000 of the $179,000 was attributable to goodwill, although he gave no analysis in the letter or to the court as to how he reached this conclusion. The letter was not submitted into evidence.

¶ 7. After hearing all the evidence, the chancellor valued Hermetic at $179,000 and found that none of the value of the business was attributable to Charles' goodwill. Latresa was found to be entitled to receive $89,000, and the chancellor placed a judicial lien on Charles' house[1] to secure payment. The chancellor granted to Charles and Latresa joint legal and physical custody of Rosie, with Charles as the primary physical custodian.[2] Although Charles was named primary physical custodian, he was ordered to pay to Latresa $400 per month in child support and $500 per month in periodic alimony.

ANALYSIS

I. WHETHER THE CHANCELLOR COMMITTED MANIFEST ERROR IN DIVIDING THE ASSETS OF HERMETIC RUSH SERVICES

¶ 8. Charles has spent all of his working years in the refrigeration and air conditioning business. He operated a sole proprietorship known as Rush Service Company from 1988 until 1995. In 1995, Jimmy Jones and L.D. Carpenter created a partnership. The next month, they merged with Charles' sole proprietorship. Hermetic is now a profitable and successful company and employs twenty-five technicians. Charles manages and supervises the technicians, Carpenter controls the financial aspects, and Jones provides the marketing. Carpenter serves as the president; Jones serves as the vice president; and Charles serves as the secretary/treasurer. Charles receives a regular salary and bonuses. Charles' financial statement reveals that he earns approximately $7,800 per month, after taxes.

¶ 9. Mississippi prohibits the inclusion of goodwill in valuing a business for purposes of distributing marital property. Singley v. Singley, 846 So.2d 1004, 1011(¶ 18) (Miss.2002). "Goodwill within a business depends on the continued presence of the particular professional individual as a personal asset and any value that may attach to that business as a result of that person's presence." Id. at 1011(¶ 18). "[T]he bottom line is one must arrive at the `fair market value' or that price at which property would change hands between a willing buyer and a willing seller when the former is not under any compulsion to buy and the latter is not under any compulsion to sell, both parties having reasonable knowledge of the relevant facts." Id.

¶ 10. The Mississippi Supreme Court further clarified the definition of goodwill as it relates to distribution of marital property in Watson v. Watson, 882 So.2d 95 (Miss.2004). The court distinguished between enterprise goodwill and personal goodwill. "Enterprise goodwill `is based on the intangible, but generally marketable, existence in a business of established relations with employees, customers and suppliers.'" Id. at 105(¶ 43) (quoting Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind.1999)). By contrast, personal goodwill is a personal asset and is not divisible at divorce. "This is true because `any value that attaches to a business as a result of this "personal goodwill" represents *805 nothing more than the future earning capacity of the individual.'" Id. at 105(¶ 44) (quoting Yoon, 711 N.E.2d at 1269).

¶ 11. The Mississippi Supreme Court concluded that, although there is a distinction between enterprise goodwill and personal goodwill, neither should be included for purposes of valuing a professional solo practice. "In such cases, the two are simply too interwoven and not divisible." Id. at 105(¶ 46).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cox v. Cox
61 So. 3d 927 (Court of Appeals of Mississippi, 2011)
Rush v. Rush
932 So. 2d 794 (Mississippi Supreme Court, 2006)
Charles W. Rush v. Latresa A. Rush
Mississippi Supreme Court, 2004

Cite This Page — Counsel Stack

Bluebook (online)
932 So. 2d 800, 2005 WL 1870253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rush-v-rush-missctapp-2005.