Semprebon v. Semprebon, 89-012

• Decision Date: 19 July 1991
• Docket Number: No. 89-012,89-012
• Citation: 596 A.2d 361,157 Vt. 209
• Court: Vermont Supreme Court
• Parties: Judith C. SEMPREBON v. Thomas SEMPREBON.

Page 361

596 A.2d 361

157 Vt. 209

Judith C. SEMPREBON v. Thomas SEMPREBON.

No. 89-012.

Supreme Court of Vermont.

July 19, 1991.

Oreste V. Valsangiacomo, Jr., and Gary D. McQuesten of Valsangiacomo, Detora, McQuesten, Rose & Grearson, Barre, for plaintiff-appellant.

Richard E. Davis and Edwin W. Free, Jr., of Richard E. Davis Associates, Inc., Barre, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Plaintiff Judith Semprebon filed this divorce action against defendant Thomas Semprebon. Plaintiff appeals from the final order, claiming that: (1) the trial court's findings with respect to certain marital property were clearly erroneous; (2) the court failed to indicate the weight given to each statutory factor in fashioning the property award; and (3) the court improperly failed to award spousal maintenance. Defendant Thomas Semprebon cross-appeals, also claiming error in the valuation of certain property. We affirm the property settlement but reverse and remand for consideration of plaintiff's request for maintenance.

The parties were married on September 29, 1973. They had three children together, whose present ages are 13, 15, and 17. Plaintiff also has another child from a previous marriage. Beginning in the early 1980s, the parties apparently began having difficulties in their relationship. Plaintiff complained that defendant did not communicate with or pay attention to her or show affection toward her, spending most of his time at work rather than with her or their family. Defendant believed that such "love and attention problems" were, to some degree, "a normal part" of any marriage.

In October of 1986, plaintiff engaged in an extramarital affair, and the parties separated in December of 1986. Following their separation, defendant paid for plaintiff's purchase of a condominium, and gave her $8000 to furnish it. Defendant remained in the family home with the children.

Defendant has a college degree and, prior to the marriage, had worked out of state. In 1972, he returned to Vermont to join his family's business, Calmont Beverages Company, Inc., in Barre. Over the years, through the efforts of defendant, defendant's brother, and their father, Calmont has grown and proven to be a very profitable enterprise. In 1986, for example, the business had gross sales of nearly four million dollars. At the time of the final divorce hearing, defendant and his brother each owned a 37% share of the corporation and the senior Semprebon held the remaining shares. A shareholders' agreement provided that, at the death of their father, the brothers would purchase the remaining shares from his estate for a fixed price of $100,000. The corporation paid the premiums for a life insurance policy on the senior Semprebon, the proceeds of which will cover the purchase price of these shares.

Defendant's adjusted gross income for 1987 was $165,268. Because Calmont is a Subchapter S corporation, defendant is taxed on some undistributed corporate earnings that he did not actually receive. The trial court could not determine the extent to which the $165,268 was actually received by defendant.

Plaintiff was thirty-five years old at the time of the divorce and had a high school degree and limited career skills. During the marriage, she worked primarily at home and cared for the children. At the time of the final divorce hearing, plaintiff worked in a furniture store as a salesperson and interior designer. She earned $175 per week plus a five percent sales commission. From May 16, 1988, to September 2, 1988, her earnings totaled $4454.

After the final divorce hearing, the trial court awarded legal and physical rights and responsibilities for the parties' three children to defendant, pursuant to an agreement of the parties. Because of plaintiff's low income, the court ordered her to pay only a nominal amount of monthly child support. The court ordered defendant, however, to pay plaintiff a "maintenance supplement" of $200 per month "to help equalize plaintiff's and defendant's living situations so that the children can enjoy the same activities with plaintiff during their visitation with her as they do at home with defendant."

The court valued the major property as follows. It found plaintiff's condominium to be worth $115,000 and to be free of any mortgage. It further found that plaintiff had received $20,000 from the parties' joint bank account to purchase an automobile and had cashed her $12,000 IRA account. It found that defendant possessed the following assets: (1) a house valued at $195,000 and encumbered by a $30,000 mortgage, (2) the 37% share in Calmont Beverage valued at $392,000 plus $113,000 for Calmont's real estate minus $66,000 in debt owed by defendant to Calmont, and (3) a pension valued at $14,000. It also found that defendant owed his father about $32,000, incurred in part to finance plaintiff's condominium. The court made the following property settlement:

(7) Defendant is awarded all his interest in Calmont Beverage, the home in Williamstown, his pension, household furnishings and other personal property presently in his possession....

(8) Defendant shall be solely responsible for the mortgage on the home and debts due his father and Calmont Beverage.

(9) Plaintiff is awarded the condominium, cash, household furnishings and other personal property presently in her possession....

(10) In addition to the property awarded plaintiff in # 9, plaintiff is awarded cash in lieu of property in the amount of $135,000. As of June 1, 1989, defendant shall pay plaintiff $25,000 each year for five consecutive years and shall pay plaintiff $10,000 on June 1 of the sixth year.

In reaching its settlement, the court stated: "In light of the factors listed in 15 V.S.A. § 751, and the fact that the divorce was more plaintiff's fault than defendant's fault, the court will award more than half of the property to defendant."

The trial court denied both parties' motions to reconsider the order. This appeal and cross-appeal followed.

Plaintiff makes a series of claims with respect to the findings supporting the property award. Her most earnest attack is on the court's valuation of defendant's interest in Calmont Beverage Company, which she argues is unsupported by the evidence. Significantly, plaintiff's own expert witness, James Powers, offered the most detailed testimony on the value of defendant's share of Calmont. Powers, a certified public accountant, testified that there are several acceptable methods for valuing a closely held business. He stated, "Obviously, there is no set number that really represents the specific value of Calmont, but the answer comes back in a range." Accordingly, he described three methods he had used to arrive at a low, a medium, and a high figure for the value of defendant's share. The first method, the "equity approach," yielded a value of $275,000 for defendant's share. The second, the "income approach," provided a value of $392,000. The third, an "entity approach," resulted in a value of approximately $650,000. Defendant's expert witness, John Salvador, an accountant who had worked for Calmont, offered a single estimate of the value of defendant's share in the business: $277,000. The trial court made the following finding:

Defendant's 37% share of Calmont Beverage is valued at $392,000 based on the income approach of estimating value. Although differing estimates of value were presented at trial, the court finds this estimate to be the most reasonable one under all of the circumstances and represents the value of defendant's minority interest.

We will not disturb the court's findings of fact unless, viewing the evidence in the light most favorable to the prevailing party and excluding the effect of modifying evidence, a finding is clearly erroneous. McCrea v. McCrea, 150 Vt. 204, 206, 552 A.2d 392, 393 (1988). The $392,000 valuation was clearly within the range of the evidence presented, and the court was within its discretion to arrive at this figure. We likewise reject defendant's claim that the court placed too high a value on his share in the business. See Wood v. Wood, 143 Vt. 113, 119, 465 A.2d 250, 253 (1983) (absent evidence of outside appraisal figures, "the court was limited to the parties' valuations, and it was fully within its discretion to choose defendant's estimates"); see also Klein v. Klein, 150 Vt. 466, 469, 555 A.2d 382, 384 (1988) (where testimony on value of real property "was in some conflict," trial court's reliance on valuation provided by plaintiff/owner was not clearly erroneous).

As a second attack on the valuation of defendant's interest in his business, plaintiff argues that the court failed to include almost $400,000 in cash which Calmont had on hand at the time it was valued. The evidence was that Calmont often kept large amounts of cash on hand, to be used to purchase inventory and equipment and to meet cash flow needs when income would not...