Semprebon v. Semprebon

596 A.2d 361, 157 Vt. 209, 1991 Vt. LEXIS 165
CourtSupreme Court of Vermont
DecidedJuly 19, 1991
Docket89-012
StatusPublished
Cited by32 cases

This text of 596 A.2d 361 (Semprebon v. Semprebon) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Semprebon v. Semprebon, 596 A.2d 361, 157 Vt. 209, 1991 Vt. LEXIS 165 (Vt. 1991).

Opinion

*211 Dooley, J.

Plaintiff Judith Semprebon filed this divorce action against defendant Thomas Semprebon. Plaintiff appeals from the final order, claiming that: (1) the trial court’s findings with respect to certain marital property were clearly erroneous; (2) the court failed to indicate the weight given to each statutory factor in fashioning the property award; and (3) the court improperly failed to award spousal maintenance. Defendant Thomas Semprebon cross-appeals, also claiming error in the valuation of certain property. We affirm the property settlement but reverse and remand for consideration of plaintiff’s request for maintenance.

The parties were married on September 29, 1973. They had three children together, whose present ages are 13, 15, and 17. Plaintiff also has another child from a previous marriage. Beginning in the early 1980s, the parties apparently began having difficulties in their relationship. Plaintiff complained that defendant did not communicate with or pay attention to her or show affection toward her, spending most of his time at work rather than with her or their family. Defendant believed that such “love and attention problems” were, to some degree, “a normal part” of any marriage.

In October of 1986, plaintiff engaged in an extramarital affair, and the parties separated in December of 1986. Following their separation, defendant paid for plaintiff’s purchase of a condominium, and gave her $8000 to furnish it. Defendant remained in the family home with the children.

Defendant has a college degree and, prior to the marriage, had worked out of state. In 1972, he returned to Vermont to join his family’s business, Calmont Beverages Company, Inc., in Barre. Over the years, through the efforts of defendant, defendant’s brother, and their father, Calmont has grown and proven to be a very profitable enterprise. In 1986, for example, the business had gross sales of nearly four million dollars. At the time of the final divorce hearing, defendant and his brother each owned a 37% share of the corporation and the senior Semprebon held the remaining shares. A shareholders’ agreement provided that, at the death of their father, the brothers would purchase the remaining shares from his estate for a fixed price of $100,000. The corporation paid the premiums for a life insurance policy on the senior Semprebon, the proceeds of which will cover the purchase price of these shares.

*212 Defendant’s adjusted gross income for 1987 was $165,268. Because Calmont is a Subchapter S corporation, defendant is taxed on some undistributed corporate earnings that he did not actually receive. The trial court could not determine the extent to which the $165,268 was actually received by defendant.

Plaintiff was thirty-five years old at the time of the divorce and had a high school degree and limited career skills. During the marriage, she worked primarily at home and cared for the children. At the time of the final divorce hearing, plaintiff worked in a furniture store as a salesperson and interior designer. She earned $175 per week plus a five percent sales commission. From May 16,1988, to September 2,1988, her earnings totaled $4454.

After the final divorce hearing, the trial court awarded legal and physical rights and responsibilities for the parties’ three children to defendant, pursuant to an agreement of the parties. Because of plaintiff’s low income, the court ordered her to pay only a nominal amount of monthly child support. The court ordered defendant, however, to pay plaintiff a “maintenance supplement” of $200 per month “to help equalize plaintiff’s and defendant’s living situations so that the children can enjoy the same activities with plaintiff during their visitation with her as they do at home with defendant.”

The court valued the major property as follows. It found plaintiff’s condominium to be worth $115,000 and to be free of any mortgage. It further found that plaintiff had received $20,000 from the parties’ joint bank account to purchase an automobile and had cashed her $12,000 IRA account. It found that defendant possessed the following assets: (1) a house valued at $195,000 and encumbered by a $30,000 mortgage, (2) the 37% share in Calmont Beverage valued at $392,000 plus $113,000 for Calmont’s real estate minus $66,000 in debt owed by defendant to Calmont, and (3) a pension valued at $14,000. It .also found that defendant owed his father about $32,000, incurred in part to finance plaihtiff’s condominium. The court made the following property settlement:

(7) Defendant is awarded all his interest in Calmont Beverage, the home in Williamstown, his pension, household furnishings and other personal property presently in his possession ....
*213 (8) Defendant shall be solely responsible for the mortgage on the home and debts due his father and Calmont Beverage.
(9) Plaintiff is awarded the condominium, cash, household furnishings and other personal property presently in her possession ....
(10) In addition to the property awarded plaintiff in # 9, plaintiff is awarded cash in lieu of property in the amount of $135,000. As of June 1,1989, defendant shall pay plaintiff $25,000 each year for five consecutive years and shall pay plaintiff $10,000 on June 1 of the sixth year.

In reaching its settlement, the court stated: “In light of the factors listed in 15 V.S.A. § 751, and the fact that the divorce was-more plaintiff’s fault than defendant’s fault, the court will award more than half of the property to defendant.”

The trial court denied both parties’ motions to reconsider the order. This appeal and cross-appeal followed.

Plaintiff makes a series of claims with respect to the findings supporting the property award. Her most earnest attack is on the court’s valuation of defendant’s interest in Calmont Beverage Company, which she argues is unsupported by the evidence. Significantly, plaintiff’s own expert witness, James Powers, offered the most detailed testimony on the value of defendant’s share of Calmont. Powers, a certified public accountant, testified that there are several acceptable methods for valuing a closely held business. He stated, “Obviously, there is no set number that really represents the specific value of Calmont, but the answer comes back in a range.” Accordingly, he described three methods he had used to arrive at a low, a medium, and a high figure for the value of defendant’s share. The first method, the “equity approach,” yielded a value of $275,000 for defendant’s share. The second, the “income approach,” provided a value of $392,000. The third, an “entity approach,” resulted in a value of approximately $650,000. Defendant’s expert witness, John Salvador, an accountant who had worked for Calmont, offered a single estimate of the value of defendant’s share in the business: $277,000. The trial court made the following finding:

Defendant’s 37% share of Calmont Beverage is valued at $392,000 based on the income approach of estimating value. Although differing estimates of value were presented at *214

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Cite This Page — Counsel Stack

Bluebook (online)
596 A.2d 361, 157 Vt. 209, 1991 Vt. LEXIS 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/semprebon-v-semprebon-vt-1991.