Marriage of Goldstein, In re, 13595

• Decision Date: 11 September 1978
• Docket Number: No. 13595,13595
• Citation: 120 Ariz. 23,583 P.2d 1343
• Parties: In re the MARRIAGE OF Marvin R. GOLDSTEIN, Appellant, and Jacqueline Goldstein, Appellee.
• Court: Arizona Supreme Court

Page 1343

583 P.2d 1343

120 Ariz. 23

In re the MARRIAGE OF Marvin R. GOLDSTEIN, Appellant,

and

Jacqueline Goldstein, Appellee.

No. 13595.

Supreme Court of Arizona, In Division.

Sept. 11, 1978.

James Hamilton Kemper, Derickson, Kemper & Henze, Phoenix, for appellant.

Robert A. Jensen, P. C., and Murphy, Posner & Froimson by K. Bellamy Brown, Phoenix, for appellee.

GORDON, Justice:

On November 9, 1976, a decree was entered by the Superior Court dissolving the marriage of the parties to this action. Appellant Marvin R. Goldstein, M.D., filed a timely notice of appeal challenging the trial court's valuation of certain assets of the wholly owned professional corporation which was awarded to him in the decree. We have taken jurisdiction in this appeal pursuant to rule 47(e), Rules of the Supreme Court, 17A A.R.S.

The parties were married in 1962 while appellant was in medical school. Appellant now specializes in the treatment of cardiovascular disease and incorporated his private practice in 1973 under the name of Marvin R. Goldstein, M.D., Ltd. In evaluating the worth of this corporation, the trial court did not deduct overhead expense from the amounts in the corporation's accounts receivable and its checking account. Additionally, these assets, together with the pension and profit sharing plans, were not reduced by the amount of tax liability which Dr. Goldstein may eventually incur. Although appellant initially questioned the valuation of the stockholder's equity in the medical practice he specifically abandoned that issue in the briefs, because,

"Marvin Goldstein is going to own the medical practice until some unknown time in the future, there is no evidence to the contrary, and any discounting of stockholders' equity for tax impact would therefore be totally speculative."

We agree with the trial court's treatment of the corporate assets.

Citing McClennen v. McClennen, 11 Ariz.App. 395, 464 P.2d 982 (1970), appellant contends that the court initially erred by including the accounts receivable in its equitable division of property. In McClennen, the Court of Appeals noted in dictum:

"We do not believe * * * it would have been proper * * * for the trial court to divide (the accounts receivable) between spouses. This is so because a lawyer's accounts receivable represents what he lives on from month to month. It is his source of income and the source of the alimony and child support payments ordered by the trial court." Id. at 397, 464 P.2d at 984.

Certainly a court should not strip a person of his means of livelihood so that he could not meet his court-ordered obligations. However, this does not mean that the value of an asset, such as the accounts receivable, should not be included in the worth of the corporation awarded to Dr. Goldstein in order to equitably divide all of the property belonging to the parties. Appellant does not dispute the fact that the accounts receivable represents a valuable asset which arose from his efforts during the marriage. As such, the trial court properly included the accounts receivable as an asset on appellant's side of the ledger in apportioning the property. See Stern v. Stern, 66 N.J. 340, 331 A.2d 257 (1975); Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967).

Next, appellant contends that the trial court erred by not reducing the accounts receivable and the corporation's checking account by 36.9 percent, the overhead figure for the corporation. Since the trial court must establish a Present value for each asset in order to make an equitable distribution, it properly is not concerned with possible future debts which may or may not come into existence. See In Re Marriage of Fonstein, 17 Cal.3d 738, 131 Cal.Rptr. 873, 552 P.2d 1169 (1976). Although appellant may choose to utilize the cash in the checking account and the income from the accounts receivable to pay future overhead expenses in order to generate new accounts, for dissolution purposes such future overhead bears no relationship to the cash and accounts already in existence. The overhead incurred in generating the balance currently in the checking account and accounts receivable has either been paid, thereby reducing the checking account, or is present in the form of an incurred debt. In either case, the past...