Sorensen v. Sorensen

839 P.2d 774, 183 Utah Adv. Rep. 13, 1992 Utah LEXIS 24, 1992 WL 64544
CourtUtah Supreme Court
DecidedMarch 30, 1992
Docket890145
StatusPublished
Cited by19 cases

This text of 839 P.2d 774 (Sorensen v. Sorensen) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sorensen v. Sorensen, 839 P.2d 774, 183 Utah Adv. Rep. 13, 1992 Utah LEXIS 24, 1992 WL 64544 (Utah 1992).

Opinions

ON CERTIORARI TO THE UTAH COURT OF APPEALS

HOWE, Associate Chief Justice.

We granted defendant’s petition for cer-tiorari to review a decision of the court of [775]*775appeals that affirmed the trial court’s (1) valuation and distribution of defendant’s dental practice and (2) allocation of expert witness fees between plaintiff and defendant in this divorce action. Sorensen v. Sorensen, 769 P.2d 820 (Utah Ct.App.1989). We also granted plaintiff’s cross-petition in which she assails the court of appeals’ (1) reversal of the trial court’s award of attorney fees to her and (2) denial of attorney fees to her on appeal.

Plaintiff Elaine S. Sorensen and defendant Clifford G. Sorensen were married in April 1975. Plaintiff sued for divorce in March 1985. Four children had been born to the parties, one of whom died after the divorce decree was entered. The trial court awarded custody of the children to plaintiff and ordered defendant to pay child support and alimony. As part of the property division, the court awarded defendant his dental practice. In valuing that practice, the court found that “the large portion of the value of the practice has to do with goodwill and reputation built up in the practice over the years of marriage.” The court relied on the opinion of plaintiff’s appraiser in arriving at a value of the practice. Other property of equal value was awarded to plaintiff. Defendant was ordered to pay $2,000 toward plaintiff’s attorney fees and one-half the fees of a real estate appraiser selected by the parties.

Defendant appealed to the court of appeals. His principal contention was that the trial court should not have included goodwill and reputation in its valuation of his dental practice. After reviewing the cases and authorities on the subject, the court of appeals affirmed the valuation and affirmed the allocation of payment of the expert’s appraisal fees but reversed the trial court’s award of $2,000 attorney fees to plaintiff. She was also denied attorney fees on appeal.

I. VALUATION OF DENTAL PRACTICE

A. Goodwill and Reputation

Defendant renews his objection to the inclusion of goodwill in valuing his dental practice. The trial court valued the practice at $100,060, $62,560 of which represented the value of goodwill which depended upon defendant’s retiring from his practice and referring his patients to the buyer. The balance consisted of furniture and equipment ($15,830) and discounted accounts receivable ($22,170). In its findings of fact, the trial court implicitly recognized that the goodwill and reputation of Dr. Sorensen were bound up together. In finding of fact No. 7, the court stated:

The defendant should be awarded the dental practice including all equipment and accounts receivable[,] the Court feeling that the large portion of the value of the practice has to do with goodwill and reputation built up in the practice over the years of marriage.

(Emphasis added.) In affirming the inclusion of goodwill, the court of appeals relied on what it stated to be the rule in a majority of jurisdictions and also on dicta which it found in our decision in Gardner v. Gardner, 748 P.2d 1076, 1078 (Utah 1988). However, in Gardner there were twenty-three physicians in the Ogden Clinic. The goodwill of the clinic did not rest on the reputation of any one person as it does in the case of a sole practitioner such as defendant. In a clinic, practitioners may come and go and the institution may have goodwill separate and apart from any one practitioner.

It may well be that if the sole practitioner retires at the time of a divorce and his or her practice is actually sold and an amount is realized over and above the value of the tangible assets, the full amount should be viewed as marital property. We leave that issue for another day. In the instant case, however, no actual sale took place, and defendant continued in his practice at the same location following the divorce. It would not be equitable to require him to pay his wife part of the value ascribed to the goodwill, because the goodwill of a sole practitioner is nothing more than his or her reputation for competency, as pointed out in the dissenting opinion of Judge Jackson in the court of appeals. Sorensen, 769 P.2d at 833; see also Prahinski v. Prahinski, 321 Md. 227, 582 A.2d 784 (1990). We [776]*776recognize that a professional reputation can be valued and that it sometimes can be sold together with the tangible assets of a practice when the professional retires. We believe, however, that unless the professional retires and his practice is sold, his reputation should not be treated differently from a professional degree or an advanced degree: both simply enhance the earning ability of the holder.

We held in Gardner and more recently in Martinez v. Martinez, 818 P.2d 538 (Utah 1991), that advanced degrees were not marital property which could be valued and then divided between the spouses. The reputation of a sole practitioner is personal, as is a professional degree. Both enhance the professional’s earning capacity. The combination of the degree and the practitioner’s reputation enables him or her to earn in many cases a substantial income, the fruits of which are shared by the children in the form of child support and by the former spouse in the form of alimony. That is true in the instant case where defendant has been ordered to pay substantial amounts of child support and alimony which were determined in light of his earnings from his dental practice. Requiring defendant to divide with his wife the value of his reputation would not be an “equitable division,” which is required by our statute, but would constitute “double counting,” which is condemned in property division cases. See Holbrook v. Holbrook, 103 Wis.2d 327, 352, 309 N.W.2d 343, 355 (Ct.App.1981); In re Marriage of Nichols, 43 Colo.App. 383, 386, 606 P.2d 1314, 1316 (Ct.App.1979) (Ruland, J., concurring).

In affirming the trial court’s inclusion of goodwill and reputation in the valuation of the dental practice, the court of appeals warned:

We emphasize, however, one factor that clearly should not be considered in the valuation of goodwill is the professional spouse’s future earning capacity. Consistent with our position that professional degrees are not assets capable of distribution, we similarly hold that the future earning capacity of the divorcing professional should not be considered. To consider future earning capacity in the valuation of the professional corporation’s goodwill would have the effect of double counting, as earning capacity is also utilized in determining an appropriate alimony award. See, e.g., Olson v. Olson, 704 P.2d 564, 566 (Utah 1985).

Sorensen, 769 P.2d at 829. We believe the court of appeals fell into the very trap it warned against.

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Bluebook (online)
839 P.2d 774, 183 Utah Adv. Rep. 13, 1992 Utah LEXIS 24, 1992 WL 64544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sorensen-v-sorensen-utah-1992.