Sonek v. Sonek

412 S.E.2d 917, 105 N.C. App. 247, 1992 N.C. App. LEXIS 43
CourtCourt of Appeals of North Carolina
DecidedFebruary 4, 1992
Docket9123DC122
StatusPublished
Cited by10 cases

This text of 412 S.E.2d 917 (Sonek v. Sonek) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sonek v. Sonek, 412 S.E.2d 917, 105 N.C. App. 247, 1992 N.C. App. LEXIS 43 (N.C. Ct. App. 1992).

Opinions

WYNN, Judge.

The plaintiff and defendant were married on 18 June 1972, in Chicago, Illinois. Two children were born of the marriage. On 5 June 1990, the parties obtained a judgment of absolute divorce.

The defendant, husband, is a medical doctor, specializing in obstetrics and gynecology. Defendant set up his own medical practice in Mocksville, North Carolina, in November 1984. Thereafter, in April 1986, defendant became a salaried employee of Brushy Mountain Ob-Gyn Associates, P.A. (“Brushy Mountain”), located in Wilkesboro, North Carolina, and owned solely by Charles F. Whicker who employed defendant pursuant to a written Employment Agreement.

At the time defendant and plaintiff separated, defendant was an employee of Brushy Mountain and held no ownership interest in the association. Five days after the separation, defendant ended [249]*249his employment with Brushy Mountain and subsequently opened his own practice in Wilkesboro, North Carolina.

Plaintiff filed an action for equitable distribution of marital property, child custody, child support, and alimony on 23 November 1988. From the equitable distribution judgment and the child support order, defendant appealed.

I.

The appellant contends that the trial court committed error in finding that his medical practice at the time of the separation had goodwill to be included as a marital asset. He argues that a salaried employee of a professional association who has no ownership interest in the association cannot have personal goodwill for equitable distribution purposes. We agree.

The question of whether a salaried employee with no ownership interest in the respective business may have personal goodwill is a matter of first impression for our courts. A similar issue has been addressed, however, by the Washington Supreme Court in the case of In re Marriage of Hall, 103 Wash. 2d 236, 692 P.2d 175 (1984), wherein the Court considered the division of marital property of two physicians. The husband in Hall owned his own practice, and the wife worked as a salaried employee at a medical school. In rejecting the husband’s contention that the wife’s practice had professional goodwill, the Court reasoned as follows:

Once goodwill is distinguished from earning capacity, the error becomes apparent in the argument that a practicing professional and a salaried professional, with equal earning capacities and educations, both have goodwill. Both have earning capacities, and, yet, only the practicing professional has a business or practice to which the goodwill can attach. The practicing professional brings an earning capacity to the practice comprised of skill and education. The goodwill, comprised of such things as location, referrals, associations, reputation, trade name and office organization, can directly supplement this earning capacity. When the practicing professional dies, retires or moves, he takes his skill and education with him, but the goodwill factors must be transferred or otherwise left behind. The goodwill may exist even though it is not marketable.
The salaried professional also brings an earning capacity comprised of skill and education to the position. However, [250]*250when the salaried professional leaves a position, he takes everything with him to the new position. There is nothing that increased his earning capacity in the old salaried position that cannot be taken to the new position.

Id. at 241-42, 692 P.2d at 178 (citation omitted).

The Washington Supreme Court’s decision in Hall is consistent with the concept of goodwill as developed by the courts of this State. Our Supreme Court has defined goodwill in the following manner: “Goodwill exists as property merely as an incident to other property rights, and is not susceptible of being owned and disposed of separately from the property right to which it is incident.” Maola Ice Cream of North Carolina, Inc. v. Maola Milk and Ice Cream Co., 238 N.C. 317, 321, 77 S.E.2d 910, 914 (1953). See Faust v. Rohr, 166 N.C. 187, 81 S.E. 1096 (1914). In Poore v. Poore, 75 N.C. App. 414, 331 S.E.2d 266, disc. review denied, 314 N.C. 543, 335 S.E.2d 316 (1985), this Court delineated the factors relevant in determining goodwill as “the age, health, and professional reputation of the practitioner, the nature of the practice, the length of time the practice has been in existence, its past profits, its comparative professional success, and the value of its other assets.” Id. at 421, 331 S.E.2d at 271.

In the case at bar, appellant had no ownership interest in Brushy Mountain on the date of the separation. The decisions in Poore and Maola demonstrate that there is no goodwill in this situation. The factors discussed in Poore, such as the past profits of the practice and the value of its assets, are obviously inapplicable to a non-owner salaried employee since they presume the existence of an ownership interest. Additionally, under the Maola Court’s definition, goodwill does not exist in the absence of a property right. We, therefore, find that a salaried employee who maintains no ownership interest in the particular place of employment does not possess goodwill.

The trial court, in the instant case, concluded that defendant’s medical practice had goodwill with a value of $31,419.92 on 25 June 1988, the date of separation. It awarded the goodwill to defendant. The court- also stated that “[i]f the defendant’s medical practice had not had goodwill on June 25, 1988, or if this goodwill had a value less than that determined, then the Court would have distributed the marital property with a greater percentage of it being distributed to the plaintiff.” Because the trial judge made [251]*251his percentage award based on the presence of the $31,419-92 goodwill, we remand this case to the trial court.

While we recognize an inequity may result from our holding here today and note that Judge Greene has suggested in his concurring opinion that such inequity may be cured by classifying the increased value, if any, of defendant’s medical license as marital property, this issue was not raised by either of the parties on appeal. We, therefore, are without jurisdiction to address this issue. N.C.R. App. P. 10 (This Court’s scope of review “is confined to a consideration of those assignments of error set out in the record on appeal.”). Moreover, we note that one spouse’s contribution to “help educate or develop the career potential of the other spouse” is currently a distributional factor that allows a trial judge to order an unequal division of marital property. N.C. Gen. Stat. § 50-20(c)(7) (1991). In the present case, the trial judge, in fashioning the original order, allowed himself sufficient latitude for curing any potential inequities resulting from our reversal of his goodwill determination. The trial judge, on remand, should eliminate the value of the goodwill and assign the proper percentage due to each spouse.

II.

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Bluebook (online)
412 S.E.2d 917, 105 N.C. App. 247, 1992 N.C. App. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sonek-v-sonek-ncctapp-1992.