Marriage of Brigden, In re

• Decision Date: 26 April 1978
• Citation: 145 Cal.Rptr. 716,80 Cal.App.3d 380
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Ann L. and John K. BRIGDEN. Ann L. BRIGDEN, Appellant and Cross-Respondent, v. John K. BRIGDEN, Respondent and Cross-Appellant. Civ. 51112.

Page 716

145 Cal.Rptr. 716

80 Cal.App.3d 380

In re the MARRIAGE OF Ann L. and John K. BRIGDEN Ann L. BRIGDEN, Appellant and Cross-Respondent, v. John K. BRIGDEN, Respondent and Cross-Appellant.

Civ. 51112.

Court of Appeal, Second District, Division 3, California.

April 26, 1978.

Barrett, Stearns, Collins, Gleason & Kinney and William N. Willens, Torrance, for appellant and cross-respondent

Ervin, Cohen & Jessup and Arthur Fields, Beverly Hills, for respondent and cross-appellant.

COBEY, Acting Presiding Justice.

Ann L. Brigden (hereafter "Wife") and John K. Brigden (hereafter "Husband") are cross-appellants from an interlocutory judgment of dissolution of marriage. (See Code Civ.Proc., § 904.1, subd. (j).) Both parties urge that the major issue upon appeal concerns that portion of the judgment disposing of 66,304 community owned shares of stock in Logicon, Inc. (hereafter "Logicon"). The entire block of Logicon stock was awarded to Husband as his separate property. But one-half of this award, the 33,152 shares which represent Wife's equal interest in the stock, was awarded to Husband subject to conditions which are summarized below. ¹

Wife contends that (1) the findings of fact relating to the award of the community-owned block of Logicon stock are based upon insubstantial evidence; (2) under the facts of this case, an equal "in kind" division of the Logicon stock is required; and (3) the division of community property that was made is not substantially equal. Husband, on the other hand, contends that it was improper for the judgment to place the risk of loss resulting from a decrease in stock value below four dollars per share solely upon him.

We agree with Wife and, therefore, do not reach Husband's contention. We also do not reach Husband's and Wife's additional contentions with regard to the award of various other community assets, the award of spousal and child support, the retention of jurisdiction to modify the judgment, and the award of attorney's fees to Wife's counsel. The trial court indicated that the various portions of its judgment were interrelated and intended "to achieve some sort of a balance." The comprehensive nature of the court's judgment bears this out. Also, the value of the assets held by each spouse upon the termination of the marriage is a factor to be considered by the

trial court in making its various determinations. (Civ.Code, §§ 4801, subd. (a)(2), 4806; In re Marriage of Morrison (1978) 20 Cal.3d 437, 453, 143 Cal.Rptr. 139, 573 P.2d 41; In re Marriage of Juick (1971) 21 Cal.App.3d 421, 430, 98 Cal.Rptr. 324; In re Marriage of Jafeman (1972) 29 Cal.App.3d 244, 264, 266, 105 Cal.Rptr. 483.) Since we will reverse the judgment of the trial court with respect to the disposition of the major asset of the former community, we will remand this case to that court so that it may reconsider its judgment in light of this change.

FACTS

Wife and Husband were married June 17, 1953. Nineteen and a half years later, on December 2, 1972, they separated. The separation was permanent and on November 10, 1976, the judgment of dissolution of marriage under appeal was granted. ²

In 1961 Husband was one of eight persons who formed a company named Logicon, Inc. At its inception Logicon's business was primarily systems engineering and work in the computer science field. But in recent years it has diversified and become involved in additional commercial activities such as manufacturing. Logicon has never lost money. It was founded with about $1,000 total capital and has "generally" grown "about forty percent a year." Annual revenues at the time of trial had "grown to about thirty some million."

Husband has been on the board of directors of Logicon during its entire existence. He also is senior vice president of Logicon, a position which gives him responsibility for "the outside financial affairs of the corporation, with our liaison with our legal counsel, with corporate planning, long range planning, and in the general management of the corporation." All eight of the persons who founded Logicon were placed on its original board of directors, but only one other of the founders remains as a director.

Over the course of their marriage Wife and Husband acquired 66,304 shares of Logicon stock, which constitutes 7.6% Of the 872,180 total shares of Logicon stock outstanding. ³ This is not a sufficient number of shares to guarantee Husband's election to the board of directors of Logicon or to assure that his position as senior vice president will not be terminated, but it is a useful power base. The community-owned shares have always been voted in favor of Husband's election to the board of directors of Logicon.

At the time of trial the Logicon stock was traded as an "over the counter" stock and had an approximate value of four dollars a share. Logicon stock is now traded on the American Stock Exchange. Its value on March 1, 1978 was 133/4 dollars per share. Its highest value over the 52 weeks prior to that date was 175/8 dollars per share. Its lowest value over the 52 weeks prior to that date was 9 dollars per share. As of the time of trial Logicon had never declared a dividend on its shares.

Wife requested at trial that the court award her one-half of the Logicon stock in kind. She testified that the primary reason she wants the stock is because she believes that it is a "valuable asset" which "should be more valuable in the future." She also indicated an interest in "possibly getting a place on the board of directors . . . to be able to participate and maybe help (her) investment grow." She said she thought her participation "would be an advantage to the company as well as an advantage to (herself)" due to the current absence of management level women at Logicon. But she was uncertain that she would become so involved.

Husband requested that all the stock be awarded to him. He testified that there were two reasons for his request. The first reason is that he had spent "virtually all (his) adult life" working for Logicon and felt as if Logicon was his company. It therefore is "important to (him) emotionally to own that stock." The second reason is that the stock gives him a power base. He testified, "I can't say this, that without the stock, if I didn't have the power base in the stock, it doesn't mean that I could get fired overnight nor if I have all the stock does that mean I will always keep my job. (P) But its very helpful and important to maintain the political power base that I need to stay in that company."

There were insufficient community assets to offset the value of the award of the entire block of stock to Husband. Husband did not have the ability to compensate Wife, by access to his separate property or other sources of funding, for the award to him of her interest in the stock.

DISCUSSION

1. The Findings of Fact with Regard to the Consequences of Awarding Wife her Interest in the Stock are not Supported by Substantial Evidence

The findings of the trial court upon the consequences of awarding Wife her interest in the Logicon stock in kind may be summarized as follows:

(A) "(Wife's) expressed desire to receive, in kind, 33,152 shares of Logicon stock stems from her wish to extend the parties marital dispute into Logicon's board room and business affairs." If awarded this stock Wife would use it to interfere with Husband's "maintaining his positions as an officer and director at Logicon."

(B) If Husband lost his positions at Logicon, "(b)ased on his age and current business conditions, it is extremely unlikely that (Husband) could find comparable positions in the foreseeable future." He would therefore be unable to support himself or to pay spousal or child support.

(C) If the 33,152 shares representing Wife's interest in the community-owned stock were awarded to her in kind "(t)here is a substantial likelihood that (Husband) could not maintain (his) positions" with Logicon.

We agree with Wife's contention that there is no substantial evidence to support these findings. (See Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67, 72-73, 64 Cal.Rptr. 785, 435 P.2d 553; Estate of Teed (1952) 112 Cal.App.2d 638, 644, 247 P.2d 54.) Our conclusions as to each finding will be discussed seriatim.

A. Finding of Wife's Improper Motivation

There is no evidence to support the trial court's finding that Wife desired to receive her interest in the community held stock in kind in order to extend the marital dispute into Logicon's board room and interfere with Husband's positions as director and senior vice president. As already noted, Wife indicated that she wished to keep the stock because of its value as an asset and her interest in participating in the future of Logicon. The only other evidence on the issue of her motivation is her testimony that she was " not requesting the stock out of a personal desire to harm or prejudice Mr. Brigden," that she "worked very hard to help him achieve the position he has. And (she) wouldn't want to jeopardize it." She also testified that she felt no "antagonism" toward her husband and that while their relationship was "very cool" it was not "bitter."

Since there is insubstantial evidence to support this finding of Wife's improper motivation (see Krause v. Apodaca (1960) 186 Cal.App.2d 413, 417-420, 9 Cal.Rptr. 10) it is not binding upon us.

B. Finding of Husband's Dependence upon His Position at Logicon as a Source of Support

Husband was 45 years old at the time of trial. Beyond this no evidence appears in the record to support the finding that if Husband ceased to be employed at Husband holds both a Bachelor's Degree in Electrical Engineering from Cornell University and a Masters Degree in Electrical Engineering from the University of Pennsylvania. After leaving school he joined TRW and worked for five years as an engineer. He then left that company to participate in the founding of Logicon.

Logicon he would be unable to support...