In re the Marriage of Gay , 250 Or. App. 31 ( 2012 )

SCHUMAN, P. J.

In this appeal from a judgment dissolving the parties’ marriage, wife assigns error to the trial court’s distribution of property. In particular, she contends that, instead of distributing to each party its own minority shares in a closely held corporation, the court should have assigned a value to the shares, distributed all of them to husband, and imposed an equalizing judgment. We conclude that, in determining that a just and proper property division would be achieved by having the parties retain their shares, the trial court did not abuse its discretion. We therefore affirm.

Wife requests that we exercise our discretion to review the trial court’s finding regarding the value of the shares de novo. We decline to do so because such requests are disfavored except in “exceptional” cases, and we do not find this case to meet that criterion. ORS 19.415(3); ORAP 5.40(8)(C).¹

At the time of their divorce, the parties had been married for 14 years. Husband was 50 years old and wife was 39. The trial court awarded wife custody of the parties’ 13-year-old son, with reasonable parenting time for husband. Wife has been working full time and has an imputed gross monthly income of $3,750, or approximately $45,000 per year. Husband has been employed by Middleton Heating & Sheet Metal, Inc., of Corvallis, Oregon (Middleton Heating), for over 30 years. He is now the vice-president and general manager, and his average gross monthly income is $7,911. Husband was ordered to pay child support of $627 per month and monthly spousal support of $300, to continue until the child reaches age 19.

The parties were able to agree on most of the issues relating to the division of property. The only dispute on appeal concerns the valuation and division of the parties’ interest in Middleton Heating, husband’s employer. Middleton Heating is a closely held corporation that has been in business since 1949. In 1973, the current owners, Judy and Glenn DeFord, purchased the business from Ms. DeFord’s parents, the Middletons. Husband has worked for the company since he graduated from high school in 1977. Until 2000, the DeFords owned all of the corporation’s outstanding 81 shares.

Mr. DeFord saw husband as a potential successor to the business. In 2000, the two began to discuss possible buyout strategies. They reached a tentative agreement that was reduced to writing but never signed. Mr. DeFord estimated that, as of 2000, Middleton Heating had a value of approximately $1.3 million. The plan was that husband would purchase the shares of the business over a period of approximately 20 years. For tax reasons, Mr. DeFord and husband decided that it would be best if the initial transfer of shares could be made by gift rather than sale so that the DeFords could take advantage of the annual federal gift tax exclusion of $10,000. For that purpose, the shares were estimated to have a value of approximately $10,000 each. Loosely described, the agreement called for Mr. DeFord to begin transitioning to retirement and for the DeFords to transfer by gift approximately 1.25 shares of the corporation to both husband and wife annually, for a period of approximately 10 years, or until husband and wife together owned a 51 percent interest in the corporation. At that time, Mr. DeFord would retire completely from the business, and husband would begin paying the DeFords for their remaining interest in the corporation with monthly payments of $5,000 for 10 years plus a lump sum payment at closing, at which time husband would own 100 percent of the corporation.

As noted, the agreement was never signed. However, consistent with the agreement, beginning in 2000, the DeFords began to “gift” 1.25 corporate shares per year to each party and did so until 2008 when this dissolution was filed. The transfers were approved by shareholder resolutions and noted on the corporation’s ledger. By 2008, when the DeFords ceased transferring shares, the parties each owned 10 shares, or a 12.35 percent interest in the corporation.

Beyond the agreement to transfer a majority of the shares by gift, the record shows that Mr. DeFord and husband had not fully agreed to the details of the sale of the corporation. For example, it was inconclusive as to what husband would owe the DeFords for the purchase of their remaining interest in the corporation and whether the purchase would include the corporation’s real property, or whether that property would be withdrawn by the DeFords and leased back to the corporation.

After the DeFords learned of this. dissolution proceeding, they stopped transferring further shares to the parties. However, at trial, both Mr. DeFord and husband affirmed their intention to pursue husband’s buyout of the DeFords’ interest in Middleton Heating so that Mr. DeFord could retire.

The primary issue at trial concerned the valuation and division of the parties’ shares of Middleton Heating. Each party’s expert offered testimony concerning the value of the shares. Husband’s witness, Olsen, the corporation’s CPA, offered an estimate of value under what he referred to as the “net tangible asset approach.” Olsen applied what he described as a “minority discount” of 35 percent to adjust for the fact that the parties owned less than 51 percent of Middleton Heating’s shares. In Olsen’s view, the value of each party’s shares also depended in part on whether husband would acquire the real property currently owned by the corporation. Olsen estimated that if the real property was a part of the acquisition, wife’s 10 shares had a value of $137,228. If the corporation was acquired without the real property, then Olsen estimated that the 10 shares were worth $61,057.

Wife’s expert, Mason, was an accredited business appraiser. After considering three valuation methods and applying a marketability discount, and working under the assumption that husband would have control of the corporation within 15 months from the valuation date, Mason estimated that wife’s 10 shares had a value of approximately $123,000.

Mr. DeFord and husband also each expressed an opinion of the corporation’s value. In Mr. DeFord’s view, the corporation had been worth $1.3 million in 2000, and at the time of the hearing it was worth $3.9 million. Husband admitted that, at one time, he told wife that he believed that the business was worth $3 million.

The trial court concluded that the appraisals were “not overly helpful to the court” and that the valuation of the shares “calls for too much speculation for the court to have sufficient certainty to place a fair market value on the shares.” In light of the lack of marketability of the parties’ minority interests in the closely held corporation, the trial court stated, “there is no true market value for these shares,” and it was unlikely that any value could be ascertained until husband liquidated his interest at the time of his retirement. Even that eventuality was speculative, the trial court reasoned, in light of the court’s finding that the agreement for husband’s acquisition of the corporation was unenforceable. In its judgment, the court repeated that “there is no true market value for” the shares. The court determined that a just and proper division of the property required that each party retain his or her shares.²

On appeal, wife seeks to have this court place a valuation of $300,000 on her shares and, in the interest of disentangling the parties’ financial affairs, require wife to transfer her shares to husband in exchange for an equalizing money judgment of $300,000, payable in equal installments over a 10-year period, with interest of nine percent.

ORS 107.105(l)(f) requires that a division of marital property be “just and proper in all the circumstances.” The parties do not dispute on appeal that the Middleton Heating shares constitute marital property and a marital asset. As noted, the court determined that a just and proper division of the assets simply required that the parties retain their respective shares. Also as noted, we have declined to review this matter de novo-, thus, we will make no new findings of fact.

We may nonetheless consider whether the trial court abused its discretion in determining what is a just and proper division of property. Cook and Cook, 240 Or App 1, 248 P3d 420 (2010) (whether trial court’s property division was “just and proper” is reviewed for abuse of discretion). Our review for abuse of discretion means that we will not disturb the trial court’s ruling if, given the facts found by the court, it chose one among a variety of legally correct outcomes. Berg and Berg, 250 Or App 1, 2, 279 P3d 286 (2012); see Kunze and Kunze, 337 Or 122, 136, 92 P3d 100 (2004); Githens and Githens, 227 Or App 73, 90, 204 P3d 835, rev den, 347 Or 42 (2009) (“In evaluating the trial court’s determination about what is a just and proper distribution of marital property, we are instructed not to disturb that decision unless we conclude that the court abused its discretion and misapplied applicable statutory and equitable considerations.” (citing Kunze)).

Thus, the issue on appeal is whether, in light of the trial court’s findings that are supported by constitutionally adequate evidence in the record, the trial court’s decision not to distribute wife’s shares to husband in exchange for an equalizing judgment was legally permissible. We conclude that it was. It is clear that the corporation has value. However, both experts made clear that wife’s 10 shares are not currently marketable separately from the corporation; thus, the evidence supports the trial court’s finding that, in and of themselves, wife’s shares carry no market value, discounted or otherwise, see Branscomb and Branscomb, 201 Or App 188, 117 P3d 1051, rev den, 339 Or 544 (2005), independent of the value of the corporation as a whole. In light of that finding, the trial court did not err in determining that assigning a value to the shares would be speculative.

The trial court also found that the owners of the corporation have no plans to liquidate its assets and no enforceable agreement to sell the remaining shares to husband. Those findings are also supported by the record. In light of the trial court’s determination that any value assigned to wife’s shares would be speculative, and the trial court’s findings concerning uncertainties of husband’s future acquisition of the corporation, we conclude that the trial court’s determination that it is just and proper for the parties to retain their respective shares is legally permissible and that the court therefore did not abuse its discretion.

Wife cites this court’s opinion in Madden and Madden, 114 Or App 319, 836 P2d 1349 (1992), as an example of a better outcome. In that case, we determined that, despite the speculative nature of the value of shares that the parties owned in a closely held corporation that employed the husband, it was best to divide the interest by awarding all of the shares to the husband and requiring the husband to pay the wife a money judgment. There are a multitude of reasons why Madden is distinguishable from this case and does not guide us here, not the least of which is that, in Madden, we reviewed the trial court’s findings de novo. Id. at 323. More importantly, however, the fact that we approved an outcome in Madden that differs from the trial court’s disposition of property in this case does not mean that either of the outcomes was beyond either court’s discretion.

Finally, although wife is correct that it is generally preferable to create a property division that separates the parties’ finances as much as possible, see Haguewood and Haguewood, 292 Or 197, 206-07, 638 P2d 1135 (1981), this is not a case in which the assignment of wife’s shares to husband is compelled in order to avoid an entanglement of the parties’ financial affairs. At the present time, neither husband nor wife derives any financial benefit from the shares or has any control over the financial affairs of the corporation by virtue of a majority ownership interest. Cf. id. at 207 (it was appropriate to award the husband the wife’s share in closely held corporation over which the husband exercised control).

Affirmed.

1 ORAP 5.40(8)(c) provides:

“The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases. Consistently with that presumption against the exercise of discretion, requests under paragraph (a) or (b) of this section are disfavored.”

2 In its letter opinion, the trial court said:

“The shares held by both [husband and wife] are assets acquired during the marriage and are subject to the presumption of equal contribution. [Husband] has not rebutted that presumption as to his shares. Both parties in this litigation presented evidence regarding the value of this minority interest in the corporation. * * * The Court finds that the evaluations presented by the witnesses in this case are not overly helpful to the Court in determining this matter. It is clear from the testimony that the current majority owners of [Middleton Heating] have no plans to liquidate this corporation and also have no enforceable agreement to sell the remaining shares of the corporation. Valuing the minority interest held by [husband and wife] in this case calls for too much speculation for the court to have sufficient certainty to place a fair market value on these shares. It is clear from the testimony of the witnesses in this case that there is no true fair market value for these shares. [Wife’s] expert witness Mr. Mason testified that there would be no third party that would be willing to purchase [wife’s] minority interest in this corporation. If this corporation was to liquidate this minority interest potentially could have a very large value. Anyone that would acquire the remaining shares of the DeFord’s stock in this corporation would not need to purchase either [husband’s] or [wife’s] minority interest in this corporation to control the corporation. That person or entity acquiring the majority interest would not need to pay anything in the future to [husband or wife] unless the corporation was liquidated. Based on the testimony that was presented in this case the Court believes that a ‘just and proper’ division of the shares is simply to award to [husband] his ten shares in this corporation and to award [wife] her ten shares in the corporation.”

The judgment of dissolution provides:

“There is no true fair market value for the shares in Middleton Heating & Sheet Metal, Inc., owned by Husband and Wife. No third party would be willing to purchase Wife’s minority interest in the corporation. Any entity seeking to acquire majority control of the corporation would not need to acquire the shares owned by the parties to do so, nor would it be required to pay anything in the future to either party unless the corporation was liquid. Based on these findings, it is just and proper to award Husband his ten (10) shares in the corporation and to award Wife her ten (10) shares in the corporation.”