In Re the Marriage of Banning

Judge BRIGGS,

specially concurring.

I concur in the conclusions reached by the majority. I write separately to explain what I perceive as the fallacy in husband’s argument that future income valued as goodwill should be subtracted from that income when calculating child support and maintenance. I also write to explain why, despite the presence in this case of a problem that commonly results in goodwill being overvalued for purposes of marriage dissolution, I nevertheless concur in affirming the trial court’s valuation.

I.

Husband argues that, contrary to the reasoning in In re Marriage of Huff, 834 P.2d 244 (Colo.1992), use of the excess earnings method of valuing goodwill does not avoid the problem of “double dipping.” No matter what method of valuation is used, it does not change the nature of the asset being valued. Goodwill still represents potential future income. Hence, according to husband’s argument, if a portion of income is valued and divided as a currently existing asset, that portion must be subtracted from potential future income when calculating maintenance and child support. Otherwise, the other spouse receives a “double credit” based on the same income.

The argument at first blush is not without some appeal. The supreme court in Huff relied on the reasoning in Zipp, Divorce Valuation of Business Interests: A Capitalization of Earnings Approach, 23 Fam. L.Q. 89 (1989). As recognized in that article, regardless of the method of valuation, what is being valued is “the value of the business in terms of its potential to produce future earnings.” Zipp, supra, at 92.

However, aside from the fact the supreme court’s express approval in Huff of the excess earnings method of valuation is binding on this court, the reasoning in husband’s argument relies on no less a fallacy than that claimed for the reasoning in Huff. Husband’s argument assumes the participating spouse is purchasing goodwill at the time of the dissolution, with the purchase price paid out of future income. If that were the case, then it might follow that the participating spouse should not have to pay for the purchase out of future income and, at the same time, treat the same income as available for purposes of calculating child support and maintenance. That, however, is not the case.

The excess earnings method of valuation, like other similar ones, relies on & fictional purchase and sale of goodwill. In fact, at the time of dissolution the goodwill to be valued and divided has already been accumulated. It is an existing intangible asset, no different from any other marital asset that is fully owned.

To illustrate, assume husband and wife during their marriage had acquired a house and other tangible assets, including furniture and equipment used in the business, valued at $600,000, plus goodwill in husband’s business valued at $200,000. A trial court seeking to divide the marital assets equally could, for example, distribute $400,000 of the $600,-000 in tangible assets to wife. The balance of the tangible assets, including the business furniture and equipment, could be distributed to husband, together with the goodwill. Each would have received marital assets of equal value.

In such a case, while the value of goodwill as an intangible business asset may lie in its ability to produce future income, the same can be said of the tangible assets used in the business. When calculating child support and maintenance, there would be no more reason to subtract that part of earnings attributable to the goodwill than there would be to subtract that part of income attributable to any other business asset.

The rationale does not change when, as here, the value of goodwill and other assets assigned to husband in dividing marital property exceeds the value of assets assigned to wife. In these circumstances, husband may well be required to make payments out of his future income to wife, but he is not “purchasing” the good will in the sense of purchasing an additional marital asset. Rather, husband must make the future payments in order to achieve the desired equal division of marital assets already fully owned.

Husband’s financial ability to make payments necessary to balance the division of marital property while at the same time paying child support and maintenance should of course not be ignored. However, no reason exists to subtract those payments when calculating the child support and maintenance to be paid.

II.

Husband also argues that, even if the goodwill in his business is subject to valuation and division as a marital asset, the trial court erred in accepting the value calculated by wife’s expert. For this argument, husband does not challenge the use of the excess earnings method of valuation. Rather, husband challenges the use by wife’s expert of the earnings of a fictitious average worker to determine the amount of husband’s supposed excess earnings. According to husband, because this approach ignored husband’s actual experience and abilities, the expert necessarily undervalued his earning capacity and overvalued goodwill.

In my view, overvaluation is a common problem when the excess earnings method is used to value goodwill for purposes of marriage dissolution. The problem arises when a critical point is overlooked: “Good will for marital property purposes is substantively different from good will for business sale purposes.” Zipp, supra, at 106.

Among the differences is that the value of goodwill inherent in the spouse participating in the business depends completely on what happens to that spouse in the future. This presents a greater risk than is typically present for the purchaser of goodwill in an ongoing business. In addition, goodwill as an asset that is inherent in the participating spouse will immediately begin diminishing in value upon the marriage dissolution. All future income created by post-dissolution efforts must be eliminated from the valuation. See generally Zipp, supra; see also Udinsky, Putting a Value on Goodwill, Fam. Adv. 37 (Fall 1986).

As a result of these and other differences, the formulas commonly used for providing a capitalization rate to determine the value of goodwill in a business being sold as a going concern, such as that provided by the Internal Revenue Service, often need modification. Those modifications will result in a higher capitalization rate, and thus a lower valuation. See generally Zipp, supra; Udinsky, supra.

Here, wife’s expert used the IRS model for valuing the goodwill in an ongoing business to value the goodwill in husband’s business. The expert did hot consider any modifications to reflect the unique nature of the goodwill inherently attached to husband. Hence, the expert may well have overvalued husband’s goodwill.

However, husband’s sole argument on appeal is that wife’s expert improperly used the fictitious wage of an average worker in husband’s field of business to calculate excess earnings. The problem with the argument is that use of a fictitious average salary is not necessarily erroneous. It is only when no adjustment is later made in the capitalization rate to reflect the actual skills of the participating spouse that problems may arise. See generally Zipp, supra. Hence, in light of the limited issue before us, I concur with the majority in rejecting husband’s challenge to the valuation of the goodwill in his business.