Russell v. Russell

426 S.W.3d 527, 2013 Ark. App. 151, 2013 WL 704330, 2013 Ark. App. LEXIS 150
CourtCourt of Appeals of Arkansas
DecidedFebruary 27, 2013
DocketNo. CA 12-331
StatusPublished
Cited by2 cases

This text of 426 S.W.3d 527 (Russell v. Russell) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. Russell, 426 S.W.3d 527, 2013 Ark. App. 151, 2013 WL 704330, 2013 Ark. App. LEXIS 150 (Ark. Ct. App. 2013).

Opinion

WAYMOND M. BROWN, Judge.

| Appellant appeals from the circuit court’s divorce decree and the denial of his motion for a new trial. He argues on appeal that (1) the divorce decree was unlawful because it ordered him to buy corporate shares in a family business from appellee instead of distributing existing property and (2) appellee offered no competent evidence to prove that the business had a fair market value independent of the personal goodwill of appellant’s stepfather. We affirm.

Appellant and appellee were married in July 1996. The two separated in July 2006, and appellant sued for divorce in August 2006. Appellee filed a counterclaim on October 24, 2006.1 She also moved for temporary alimony on November 15, 2006, which was granted 12for the amount of $200 per week in an order dated January 30, 2007. During the course of the marriage, appellant and his two brothers 2 each bought a third of the shares in their stepfather’s business, American Lenders Services Company, Inc. The company later came to be known as National Recovery Specialists, Inc. (NRS). Appellant and appellee stipulated that appellant owned a 99/300& interest in A.L.S.C.O.F.S., Inc., and NRS. Appellant and appellee entered into a property division agreement regarding all property except appellant’s interest in NRS. Trial was set for the purpose of determining the value of appellant’s stipulated interest in NRS.3

At a pre-trial deposition,4 Joe Webb, a certified public accountant and expert witness for appellee, testified regarding his report showing a calculation of NRS as of December 31, 2010.5 He stated that a calculation is not intended to be relied upon by any third-party besides himself and his client. He testified that if he were doing a valuation of NRS, he would discuss general economic conditions, industry-specific risks as well as company-specific risks, a | .¡standard value for the shares, and goodwill. He testified that he did none of these things because his calculation, being based on an agreement between himself and appellee on the numbers to be used, did not require that he apply them. He testified that he dropped the Mergerstat average control premium of 29.6% to 10% because appellant appeared to have some control over cash flow, though he admitted that a buyer of 16.67% of his shares would not expect that control of cash flow would follow their purchase and might discount the value by 50%. He applied a 5% marketability discount though he testified that a buyer would look for a deep discount ranging from 80%-40%. He specifically stated that he “chose the discounts to apply, but [he] did not employ industry standards.”

At trial, Webb testified that he discounted the value of NRS by 10% and not the average Mergerstat value because the three shareholders all had control evidenced by the fact that they each took out money from the company. He did not apply a separate marketability discount, though he testified that the average marketability discount is 35%. He stated that marketability and lack of control are not distinguishable. He further discounted the value by 6%, which factored in the possible sale of HRSI to Capital One, an amount which he thought was high. He applied no personal goodwill discount for he believed Glynn Colquitt was not the owner of NRS and therefore could not hold personal goodwill.

Also testifying at trial was David Potts, a certified public accountant and expert witness for appellant. He testified that he prepared a fair market valuation of 33% of NRS complying with all industry standards. He used an income-based approach, instead of one of two other 14possible approaches because NRS is an operating business6 and he could not find enough sales of other comparable businesses.7 Potts found the value of 100% of NRS to be $3,028,000 under the income method. That meant appellant’s 33% interest was worth $1,008,324. He then applied a 30% discount for lack of control and a 35% discount for lack of marketability, which reduced the value of appellant’s 33% interest to $458,787. After rounding down to $458,000, he estimated that appellee’s 1/6 interest, half of appellant’s 1/3 interest, would be $229,000. He then discounted the goodwill of the company again, finding that enterprise goodwill was approximately only 50% with the other 50% being personal goodwill to appellant’s stepfather, Glynn Colquitt. After the discount, he valued appellee’s 1/6 interest to be worth no more than $115,000. He testified that his total valuation of the company was based on Glynn Colquitt remaining with the company.

Appellee testified that HSBC, NRS’s one client, had bought HRSI, which had bought Household Bank, the company that NRS initially started doing business with. She acknowledged that Capital One was acquiring HSBC, but she stated that NRS had kept the business with each prior change, presumably implying that the same would happen again. She asserted that compliance with HSBC requirements was extremely important and outweighed any personal relationship. Following ap-pellee’s testimony, all testimony was concluded and the court announced it would decide the issues after reviewing the evidence before it.

| Jn an order filed October 13, 2011, the court accepted the appellant and appellee’s stipulation that appellant owned a 99/300& interest in A.L.S.C.O.F.S., Inc., and NRS.8 In a letter filed the same day, the court found NRS to be valued at $3,028,000 as both parties agreed to that valuation. It found that, though Glynn Colquitt was the owner of record, it was not contested that appellant and his stepbrothers purchased an equitable interest in the company in 1996. It concluded that, considering all the testimony and exhibits on value, appel-lee’s interest in the business was worth $272,875. The court then ordered “alimony” in the amount of $11,370 per month for a period of twenty-four months due to the unequal property division. A divorce decree reflecting the court’s findings, as explained in the letter, was filed on December 8, 2011.

Appellant filed a timely motion for a new trial on December 22, 2011, objecting to the findings and the award of “alimony in gross” to pay for non-marital personal goodwill. In his brief supporting the motion, he further objected that the decision to award all shares to appellant was not supported by a factual finding as required by Ark.Code Ann. § 9-12-315(a)(l)(B). The motion was deemed denied on January 21, 2012, when the trial judge did not act on it. Appellant filed a timely notice of appeal on February 1, 2012.

Appellant filed a motion to remand the case on May 22, 2012, to complete the record. This court entered an order remanding the matter to the circuit court to settle the record on [ June 20, 2012. The circuit court entered an order on June 21, 2012, finally dismissing all claims by and against Ron Colquitt, Rod Colquitt, Glynn Colquitt, Betty Colquitt, RARO Investments, LLC, and A.L.S.C.O.F.S., Inc. a/k/a National Recovery Specialists, Inc., as third party defendants. The same order ratified the December 8, 2011 divorce decree as its final decree and denied appellant’s motion for a new trial on the record so that is was no longer simply deemed denied.

On June 22, 2012, appellant filed a second timely notice of appeal from the June 21, 2012 order and the December 8, 2011 divorce decree.

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

Related

Russell v. Russell
2013 Ark. 372 (Supreme Court of Arkansas, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
426 S.W.3d 527, 2013 Ark. App. 151, 2013 WL 704330, 2013 Ark. App. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-russell-arkctapp-2013.