Marriage of Gehret, In re
| Decision Date | 22 June 1978 |
| Docket Number | No. 77-538,77-538 |
| Citation | 580 P.2d 1275,41 Colo.App. 162 |
| Parties | In re the MARRIAGE OF Robert Arthur GEHRET, Appellee, and Caroline Virginia Gehret, Appellant. . III |
| Court | Colorado Court of Appeals |
John R. Rasmussen, Lakewood, for appellee.
David W. Pehr, William Pehr, Westminster, for appellant.
Caroline Gehret appeals from the entry of permanent orders in the dissolution of marriage action below. She asserts that the property division portion of these orders does not comply with § 14-10-113, C.R.S.1973. We agree and reverse for a determination of the value of the disputed property and for a division of property consistent with our holding herein.
The property in dispute is the Gehret's family business, The Mountain States Janitorial Service. Several witnesses were called to testify as to the value of this modest-sized janitorial firm. Although there was some express testimony as to the present fair market value between $40,000 and $50,000 other witnesses, while adopting no final figure, supplied the court with formulae from which a fair market value could be derived.
The court, in its final orders, however, made no mention of the fair market value of the business. Rather, the final orders, after declaring the Mountain States Janitorial Service to be marital property, merely provided the following as a "division of property":
Later, the court added the one additional provision that if the janitorial service had not been sold at the time of husband's death, it was to be sold and the proceeds equally divided.
The court made other property determinations not of importance here, and it also ordered husband to pay $742.50 in monthly maintenance to the wife, which was to be increased to $1,000 at the end of six months, and to a permanent figure of $1,200 at the end of twelve months. The court also ordered that husband pay $150 to one expert witness called by the wife and $100 to each of the other two, and directed that he pay the wife's attorney's fees in the amount of $1,000.
Wife urges us to hold that the disposition of the Mountain States Janitorial Service is not actually a division of property at all, and that the mandate of § 14-10-113, C.R.S.1973 has not been complied with. She also asserts that the awards given for attorneys' fees and for expert witness fees are insufficient.
Section 14-10-113, C.R.S.1973 is silent as to what constitutes a "division" of property and what does not. The statute merely provides that the court "shall divide the marital property" after considering all relevant factors.
However, the case law persuades us that the "division" in the instant case does not suffice. See Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969); Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964); Larrick v. Larrick, 30 Colo.App. 327, 491 P.2d 1401 (1971).
In Menor, the trial court awarded the wife 25% Of any proceeds realized from the sale of certain stockholdings of her husband. However, the court ordered that the husband's obligation to pay such proceeds would only arise upon dissolution of the company which issued the stock, or the husband's voluntary sale of the stock. In reversing, the Colorado Supreme Court held that it was error to award a share in property which might be acquired after the proceedings. The property division, said the court, "must be based upon conditions as they exist at the time of the hearing . . . ."
In Santilli, the court awarded the wife $17,000 worth of securities, which were registered in her husband's name; and it further authorized her to choose which of the husband's securities she would take in satisfaction of this award. This, too, was reversed on the grounds that it was an improper delegation of the court's discretion to divide the property.
The instant case involves elements found unacceptable in both Menor and Santilli. The order here left all discretion as to the sale of the business in the husband, and it appears, as well, that its effect might be to award a share in property acquired after the dissolution.
Husband argues in response that the division of property here is proper in that it reflects the "totality-of-circumstances"...
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Marriage of Thornton, In re
... ... In support of this argument Elizabeth Thornton cites only In re Marriage of Gehret (1978), 41 Colo.App. 162, 580 P.2d 1275 ... In Gehret the trial court ordered that in the event the parties' business was ever sold the net proceeds "shall be divided on a 50-50 basis" and that if the business had not previously been sold it was to be sold at the time of the ... ...
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Hellwig v. Hellwig
... Page 1087 ... 426 N.E.2d 1087 ... 100 Ill.App.3d 452, 55 Ill.Dec. 762 ... In re the Marriage of Betty HELLWIG, Petitioner-Appellant ... and Cross-Appellee, ... Werner HELLWIG, Respondent-Appellee and Cross-Appellant ... Nos. 80-182, ... (See In re Marriage of Gehret (1978), 41 Colo.App. 162, 580 P.2d 1275.) The efficacy of a property distribution results from placing in the hands of each party a definable or ... ...
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... ... Thus, the court could not have conveyed any ownership attributes of that vehicle to wife. See In re Marriage of Campbell, supra. Wife's citations to In re Marriage of Paul, 821 P.2d 925 (Colo.App.1991), and In re Marriage of Gehret, 41 Colo.App. 162, 580 P.2d 1275 (1978), do not compel a contrary conclusion, as in each case, the issue was the division of marital, not separate, property. Wife has not shown the court erred when it did not give her any ownership interest in the vehicle ... However, ... ...
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Kenfield v. U.S., 83-1968
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...in valuing a closely held corporation operated as a going concern at the time of a divorce proceeding. 10. In re the Marriage of Gehret, 580 P.2d 1275 (Colo.App. 1978). 11. Id. at 1277. Gehret involved a small family janitorial services business. At hearing, the trial court heard expert tes......