Tankersley v. Tankersley

390 S.E.2d 826, 182 W. Va. 627
CourtWest Virginia Supreme Court
DecidedMarch 23, 1990
Docket18687
StatusPublished
Cited by28 cases

This text of 390 S.E.2d 826 (Tankersley v. Tankersley) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tankersley v. Tankersley, 390 S.E.2d 826, 182 W. Va. 627 (W. Va. 1990).

Opinions

MILLER, Justice:

This is an appeal by Richie Calvin Tank-ersley, the plaintiff below, from a final divorce decree entered in the Circuit Court of Wyoming County. The defendant below is Debra Rosemary Tankersley. The central issue in this case is how to determine the value of a marital asset, a funeral home operated by a closely held corporation owned by Mr. Tankersley.

Mr. Tankersley contends that the trial court erred in deducting only one debt from the $325,000 market value of the business. [629]*629This debt was for $170,000, which was the amount owed to the former owner of the funeral home. Mr. Tankersley argues that W.Va.Code, 48-2-32(d)(l) (1984), requires the court to determine the “net value” 1 of the marital property; thus, the court should have deducted all the debts of the corporation from its fair market value.2 Both parties acknowledge that the term “net value” is not defined within the statute. The question before us is to ascertain its meaning. The parties do not disagree that the funeral home is a marital asset. Moreover, there is no disagreement that the funeral home has a market value of $325,000.

While the accountants for both parties testified about the market value of the corporation,3 neither testified about its net value. In particular, neither accountant was asked whether his estimate of the market value of the corporation assumed that the purchaser would be responsible for the existing debts or whether the debts would have to be discharged by the seller.

We have historically defined the market value of an asset as set forth in Syllabus Point 3 of Estate of Aul v. Haden, 154 W.Va. 484, 177 S.E.2d 142 (1970):

“The market value is the price at which a willing seller will sell and a willing buyer will buy any property, real or personal.”4

See also Franklin v. Pence, 128 W.Va. 353, 36 S.E.2d 505 (1945); Baltimore & Ohio R.R. Co. v. Bonafield’s Heirs, 79 W.Va. 287, 90 S.E. 868 (1916). For purposes of equitable distribution, W.Va.Code, 48-2-32(d)(l), requires that a determination be made of “the net value of all marital property of the parties[.]”

The concept of “net value” is rather simple when a court is valuing a single asset which has a valid lien or encumbrance. In these situations, the net value equals the fair market value of the property less the amount of any lien or encumbrance. We alluded to this equation in Syllabus Point 3, in part, of LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312, 41 A.L.R.4th 445 (1983): “In computing the value of any net asset, the indebtedness owed against such asset should ordinarily be deducted from its fair market value.”5 This is also the general rule elsewhere — in computing the net value of an asset, the first step is to establish its market value and then deduct the amount of any valid lien or encumbrance on the property. E.g., Gravenstine v. Graven-[630]*630stine, 58 Md.App. 158, 472 A.2d 1001 (1984); Balogh v. Balogh, 356 N.W.2d 307 (Minn.App.1984); Creon v. Creon, 195 Mont. 254, 635 P.2d 1308 (1981); Rider v. Rider, 141 A.D.2d 1004, 531 N.Y.S.2d 44 (1988); Alexander v. Alexander, 68 N.C.App. 548, 315 S.E.2d 772 (1984); Centazzo v. Centazzo, 509 A.2d 995 (R.I.1986), modified on other grounds, 556 A.2d 560 (R.I.1989); Trivett v. Trivett, 7 Va.App. 148, 371 S.E.2d 560 (1988).

However, valuing assets becomes more difficult when the asset is part of a more complex entity, such as an on-going business. Most courts also recognize that the valuation problems are more acute in closely held corporations, whose stock is not publicly traded. Courts have cautioned against inflexibility and have incorporated some or all of the factors utilized by the Internal Revenue Service in Revenue Ruling 59-60.6 See In Re Marriage of Suarez, 148 Ill.App.3d 849, 102 Ill.Dec. 85, 499 N.E.2d 642 (1986); In Re Marriage of Rossi, 113 Ill.App.3d 55, 68 Ill.Dec. 801, 446 N.E.2d 1198 (1983); In Re Marriage of Moffatt, 279 N.W.2d 15 (Iowa 1979); Kowalesky v. Kowalesky, 148 Mich.App. 151, 384 N.W.2d 112 (1986); Bowen v. Bowen, 96 N.J. 36, 473 A.2d 73, 56 A.L.R.4th 847 (1984); Amodio v. Amodio, 70 N.Y.2d 5, 516 N.Y.S.2d 923, 509 N.E.2d 936 (1987); Matter of Marriage of Webber, 99 Or.App. 703, 784 P.2d 111 (1989); Wallace v. Wallace, 733 S.W.2d 102 (Tenn.App.1987); Bosserman v. Bosserman, 9 Va.App. 1, 384 S.E.2d 104 (1989). See generally L. Golden, Equitable Distribution of Property § 7.08 (1983); 24 Am.Jur.2d Divorce & Separation § 947 (1983).

Admittedly, the foregoing cases were not concerned with an equitable distribution statute which uses the term “net value." We have found the phrase “net value” in the North Carolina equitable distribution statute, N.C.Gen.Stat. §50-20(c) (1987). As in our statute, the term is not defined therein.7 However, the North Carolina courts do not appear to have applied the statutory term “net value” to valuing the worth of a closely held corporation or business.

In Patton v. Patton, 78 N.C.App. 247, 255, 337 S.E.2d 607, 612 (1985), rev’d on other grounds, 318 N.C. 404, 348 S.E.2d 593 (1986), the court approved of a method of valuing a closely held corporation which considered “the capitalization of earnings of the company, ... [its] earning capacity ... as demonstrated in the last four-to-five year period of time, the present economic outlook for the business and the industry, the good will which has been accumulated to the business ..., and [its] financial position ... as demonstrated by its unaudited statements[.]” This methodology had been previously sanctioned by the North Carolina Court of Appeals in Phillips v. Phillips, 73 N.C.App. 68, 326 S.E.2d 57 (1985). Moreover, the court in Patton approved of several examples of evidence useful in valuing closely held corporations, which were identified in Phillips. These included: “gross sales, cost of goods sold, profit, operating , expenses, income, retained earnings.” 78 N.C.App. at 256, 337 S.E.2d at 612. See also Hartman v. Hartman, 82 N.C.App. 167, 346 S.E.2d 196 (1986), aff'd, 319 N.C.

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Tankersley v. Tankersley
390 S.E.2d 826 (West Virginia Supreme Court, 1990)

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Bluebook (online)
390 S.E.2d 826, 182 W. Va. 627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tankersley-v-tankersley-wva-1990.