Root v. Root, 01-137.

• Decision Date: 13 March 2003
• Docket Number: No. 01-137.,01-137.
• Citation: 2003 WY 36,65 P.3d 41
• Parties: Terry A. ROOT, Appellant (Defendant), v. Pamela Potter ROOT, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

65 P.3d 41

2003 WY 36

Terry A. ROOT, Appellant (Defendant), v. Pamela Potter ROOT, Appellee (Plaintiff).

No. 01-137.

Supreme Court of Wyoming.

March 13, 2003.

James K. Lubing of James K. Lubing Law Office, Jackson, Wyoming, Representing Appellant.

George L. Simonton and M. Jalie Meinecke of Simonton & Simonton, Cody, Wyoming, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] Terry A. Root (the husband) and Pamela Potter Root (the wife) were married for almost eighteen years during which time the wife obtained a medical degree. After acquiring a pathology business in Cody and practicing there for several years, the wife filed for divorce. The trial court divided the marital property, including the value of the pathology business, equally between the parties. The husband appeals the trial court's division of property contending the value of the pathology business was too low and he was entitled to a larger share of the marital property because of the financial support he provided and the career sacrifices he made to further the wife's medical education.² We affirm the trial court's property division and remand the matter for conformation of the Decree of Divorce with the decision letter.

ISSUES

[¶ 2] The husband presents these issues for resolution:

I. Whether the Court abused its discretion in determining the value of the business as its decision was not supported by the evidence at trial.

II. Whether the Court abused its discretion in accepting opinion testimony from [the wife's] expert, as he was not qualified as an expert, and had done no substantive review of the value of the business.

III. Whether it was error for the Court not to take career sacrifices into account when determining property distribution.

IV. Whether it was error for the Court to allow [the wife] to deduct over three thousand dollars ($3,000.00) per month for child support calculation purposes where such sum is clearly includable in her income pursuant to § 20-2-303(a)(ii) & (iii).

The wife frames the issues in the following manner:

I. Did the trial court abuse its discretion in determining the value of Big Horn Basin Pathology?

II. Did the trial court abuse its discretion in considering the expert testimony?

III Did the trial court abuse its discretion in the manner in which it determined the marital sacrifices issue?

IV. Did the court properly consider the parties['] financial affidavits in determining the child support calculations?

FACTS

[¶ 3] The applicable standard of review requires we consider only the evidence in favor of the successful party, ignore the evidence of the unsuccessful party, and grant to the successful party every reasonable inference that can be drawn from the record. Belless v. Belless, 2001 WY 41, ¶ 6, 21 P.3d 749, ¶ 6 (Wyo.2001). For this reason, we consider the facts in a manner most favorable to the wife as the prevailing party in the trial court.

[¶ 4] The husband and the wife married on July 16, 1983. At the time, the husband worked for the United States Forest Service as a wildlife biologist and expressed an interest in attending law school. The wife was a licensed practical nurse, held a degree in journalism, and intended to go to medical school. She had saved some money to fund her medical school costs prior to meeting and marrying the husband. In the spring before the marriage, the husband took steps to apply to law school but did not pursue this career option any further. The wife applied to medical school. After the marriage, she attended Creighton University Medical School in Nebraska through the University of Wyoming contract program which pays a portion of the student's school costs in exchange for a commitment to practice in Wyoming for a period of time upon graduation. The husband took a series of jobs which were essentially lateral transfers in order to remain close to the wife while she attended school. The wife gave birth to three children while she was attending medical school. Both spouses contributed to the family's living expenses, the husband through his full-time work and the wife through her intermittent, part-time work. The wife graduated from medical school in 1989 and completed her residency in 1994 at which time the family moved to Wyoming.

[¶ 5] The husband took a job at the National Elk Refuge in Jackson Hole, and, because the wife could not find suitable employment in Jackson, she and children moved to Cody where she commenced work for a pathologist at Big Horn Basin Pathology, Inc. In 1996, the wife entered into an agreement with the pathologist to purchase his business for $30,000 to be paid over five years. Also in 1996, the husband moved to Cody and took a job with the United States Fish and Wildlife Service as well as developing a radon detection and control business and doing some consulting for Integrated Pest Management. The husband also worked at various times for the pathology business as secretary/treasurer, general business manager, and bookkeeper. The purchase price of the pathology business was completely paid by July of 1999.

[¶ 6] The couple's marital difficulties began in 1988, and they attended marriage counseling. In early September of 1999, the wife's friend told her that the husband was preparing to file for divorce. The wife responded by filing for divorce against the husband on September 8, 1999. In October 1999, approximately one month after the divorce action was filed, the parties jointly applied for a loan to purchase the residence the husband was living in at the time of the divorce trial. In the loan application, signed by both the husband and the wife, the pathology stock was listed with a value of $30,000. In January 2000, the husband ceased working for the pathology business.

[¶ 7] The parties vigorously litigated the appropriate and equitable division of property during a three-day divorce trial held in February 2001. Both parties submitted expert testimony regarding the manner in which the pathology business should be appraised. The wife's expert provided no opinion as to the specific value of the business; however, he did testify the value should be determined by adding the accounts receivable, discounted for monthly fluctuations and expenses, to the value of the hard assets. He contended there was no "blue sky" or good will because the business was wholly dependent on the wife's medical expertise. The wife testified the hard assets were worth $30,000, and a summary of the business records from July 1, 1999, through October 31, 2000, prepared in response to discovery requests indicated the accounts receivable were $72,481.50 without deductions for expenses. She acknowledged that one piece of equipment had been purchased for $40,000 since the acquisition of the business, but she did not believe it was worth very much on resale. The husband's expert estimated the accounts receivable and the value of the good will based on the annual gross income generated and industry statistics to value the business at $394,772. The trial court determined the business was worth $50,000 and awarded $25,000 of that amount to the husband. The remainder of the marital estate was also divided equally between the husband and the wife. We observe, although not raised by the parties, the Decree of Divorce did not reflect the $25,000 award to the husband and did not appear to comply with W.R.C.P. 58(a) which requires both parties approve orders as to form. The wife, however, does not contest that the husband should receive the $25,000. The husband appealed contending the trial court erred by undervaluing the pathology business and not awarding him a larger proportion of the marital property to compensate him for his contributions to, and sacrifices for, the wife's medical career.

STANDARD OF REVIEW

[¶ 8] We have often acknowledged:

There are few rules more firmly established in our jurisprudence than the proposition that the disposition of marital property is committed to the sound discretion of the district court. Judicial discretion is made up of many things, including conclusions reached from objective criteria, as well as exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. We are required to ask ourselves whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.

Holland v. Holland, 2001 WY 113, ¶ 8, 35 P.3d 409, ¶ 8 (Wyo.2001). As noted above, we consider the prevailing party's evidence to be true and give every reasonably drawn inference to it while we disregard all conflicting evidence. Hensley v. Hensley, 896 P.2d 115, 115 (Wyo.1995) (per curiam). Further, property divisions are complex and therefore require the trial court, in its discretion, to assess what is right under the circumstances while considering the respective merits and needs of the parties. McCulloh v. Drake, 2001 WY 56, ¶ 15, 24 P.3d 1162, ¶ 15 (Wyo. 2001). "An abuse of discretion occurs when the property disposition shocks the conscience of this court and appears to be so unfair and inequitable that reasonable people cannot abide it." Hall v. Hall, 2002 WY 30, ¶ 12, 40 P.3d 1228, ¶ 12 (Wyo.2002).

DISCUSSION

A. Expert Witness Testimony

[¶ 9] On appeal, the husband contends, for the first time, the wife's expert, Lawrence McGovern, was not qualified to provide an expert opinion regarding the value of the business. It is interesting to note the husband actually tried to retain Mr. McGovern as his expert prior to trial. Further, the husband made no objection to this witness' qualifications or expertise prior to or during trial. See Alexander v. Meduna, 2002 WY 83, ¶ 21, 47 P.3d 206,

¶ 21 (Wyo.2002); Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). He did make a number of objections to Mr. McGovern's testimony on the basis...