Wilson v. Wilson

• Decision Date: 26 November 1991
• Docket Number: No. 57979,57979
• Citation: Wilson v. Wilson, 822 S.W.2d 917 (Mo. App. 1991)
• Parties: Joann M. WILSON, a/k/a Joann M. Hood and Joann M. Papper, Petitioner/Appellant/Cross-Respondent, v. Robert E. WILSON, Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

Page 917

822 S.W.2d 917

Joann M. WILSON, a/k/a Joann M. Hood and Joann M. PapperPetitioner/Appellant/Cross-Respondent, v.Robert E. WILSON, Respondent/Cross-Appellant.

No. 57979.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 26, 1991.

Raymond A. Bruntrager, Mary P. Schroeder, Bruntrager & Billings, P.C., St. Louis, for petitioner/appellant/cross-respondent.

Kenneth S. Lay, Tremayne, Lay, Carr, Bauer & Nouss, Clayton, for respondent/cross-appellant.

AHRENS, Judge.

This is a consolidated appeal from an amended dissolution decree entered February 1, 1990.Wife alleges error in the trial court's valuation of the family business, distribution of marital property, and failure to award wife temporary maintenance and attorneys' fees.Husband cross-appeals from an order granting wife's motion for maintenance, attorneys' fees, and costs pending appeal.We affirm.

Husband and wife were married on September 11, 1948, and separated on or about June 26, 1985.Four children were born of the marriage, one of whom is deceased and three of whom are adults.

Husband is employed as an officer of the family real estate corporation founded during the parties' marriage; husband owns 110 shares of the company, wife owns 30 shares, and the parties' son, Robert, owns 70 shares and serves as the corporation's president.Early in the marriage, wife served as a real estate broker and branch manager for the business; she carried her brokers' license until the parties separated.At the time of the dissolution, husband and son operated the business.Both parties' experts presented greatly differing valuations of the corporation.Wife contends the trial court erred in limiting the value of the corporation to its tangible assets.

The parties own real estate with a stipulated value of $440,000.00, subject to a deed of trust for $75,000.00.During the marriage, the parties collected jewelry, silver, and substantial household goods, furniture, and furnishings.The existence and valuation of such property was the subject of extensive testimony at trial; husband contended wife had removed much of it from the marital home upon the parties' separation and had greatly overvalued it on a list of items she contends remained in the home at the time of the separation.Wife denied she had removed the property and claims she has no knowledge concerning what became of the items.

In 1979, wife opened an antique consignment shop which she operated until shortly after the parties separated.At trial, husband challenged wife's assertion that she received only $3,500.00 from the sale of the goods remaining in her shop.Husband further contended that many of the goods sold were the same items wife claims were remaining in the marital home at the time of the separation.The trial court found a lack of credible evidence to specifically identify or value all of the parties' household goods, furniture, and furnishings.The court also found that wife had removed substantially all of the jewelry from the parties' safe deposit boxes, and found a lack of credible evidence to determine the current value of the jewelry other than from the index cards wife kept which noted only the items' purchase prices.

Wife inherited approximately $100,000.00 in certificates of deposit upon the death of her mother during the parties' marriage.The trial court found the inheritance was converted to marital property when it was placed into a joint bank account.Wife contends she had no intent to make a gift to the marriage, and that even if the trial court properly deemed the funds marital property, husband squandered the portion he had withdrawn from the parties' account.

Lastly, both parties alleged misconduct on the part of the other.Wife claimed husband physically and mentally abused her during the year prior to the parties' separation; husband denied any such conduct.Shortly after the separation and while receiving $800.00 per month from husband as temporary maintenance, wife began living with a man and legally changed her name to his.Further, wife altered the inscription on the headstone of the parties' deceased daughter in response to husband's alleged denial that the daughter was his child.The trial court found that wife's actions placed additional burdens upon husband prior to husband's filing a petition conceding the marriage was irretrievably broken; the court also found that the turmoil of the separation adversely affected husband.

In its decree, the trial court awarded no maintenance or attorneys' fees to either party.All jewelry, gold, silver and precious stones collected in the parties' safe deposit boxes were awarded to wife.Wife was also awarded all furniture, furnishings, household goods, and silver located in the marital home immediately prior to the parties' separation; husband was awarded the property remaining in the home after the separation.The property in the possession of the parties' children is to remain the children's property.The court awarded husband cemetery lots and all stock of the family business held in either husband's or wife's names.Further, the parties were awarded the certificates of deposit they each appropriated, and the cash surrender values of various life insurance policies were divided equally.Lastly, husband was awarded the marital home, subject to a $115,000.00 lien awarded wife.Court costs were taxed against husband.

Our review of this case is governed by Rule 73.01andMurphy v. Carron, 536 S.W.2d 30(Mo. banc 1976).We will affirm the decree of dissolution unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.Murphy, 536 S.W.2d at 32.The trial court is free to accept or reject all, part, or none of the testimony of any witness.Stein v. Stein, 789 S.W.2d 87, 92(Mo.App.1990).We view the evidence in a manner favorable to the decree and disregard all contradictory evidence.Langdon v. Langdon, 792 S.W.2d 645, 646(Mo.App.1990);Wynn v. Wynn, 738 S.W.2d 915, 918(Mo.App.1987).Further, we defer to the trial court even if the evidence could support a different conclusion.Langdon, 792 S.W.2d at 646;Wynn, 738 S.W.2d at 918.

In her first point, wife alleges the trial court erred in finding the family business had a value consisting only of its tangible assets.Wife alleges the court improperly rejected her expert's capitalization method of valuation and instead relied upon a fair market value approach without considering the distinction between a professional practice and a commercial business enterprise.

In Hanson v. Hanson, 738 S.W.2d 429(Mo. banc 1987), our supreme court held that "[b]ecause of the difficulties inherent in separating the reputation of the professional from that of his enterprise, evidence that other professionals are willing to pay for goodwill when acquiring a practice is, in our view, the only acceptable evidence of goodwill.Thus, as a matter of proof, the existence of goodwill is shown only when there is evidence of a recent actual sale of a similarly situated professional practice, an offer to purchase such a practice, or expert testimony and testimony of members of the subject profession as to the existence of goodwill in a similar practice in the relevant geographic and professional market."Id. at 435.The existence of goodwill in a professional practice may be established only by one of these methods.In re Marriage of Parker, 762 S.W.2d 506, 511(Mo.App.1988).

Subsequent cases extend the Hanson tests for the existence of goodwill in a professional practice to commercial entities involving highly skilled personal services.In Ikonomou v. Ikonomou, 776 S.W.2d 868(Mo.App.1989), this court applied the Hanson tests in affirming the trial court's determination that no goodwill existed in the husband's custom tailor business.Id. at 872.Ikonomou was cited with approval in Hogan v. Hogan, 796 S.W.2d 400(Mo.App.1990), where the court again applied the Hanson tests for the existence of goodwill in finding that husband's art studio, although a "commercial enterprise," had no value attributable to goodwill.Id. at 407-08.In cases involving highly skilled personal service businesses, there are inherent difficulties in separating the reputation of the individual businessperson from that of the enterprise.It is this concern that prompted the Hanson court to set forth its tests for proof of the existence of goodwill in professional practices.SeeHanson, 738 S.W.2d at 435.For this reason, we find the rationale of Hanson equally applicable to cases involving highly skilled personal service businesses, such as husband's real estate brokerage business.

In the case before us, no evidence was presented to prove the existence of goodwill in accordance with one of the methods approved in Hanson.Wife offered no evidence of sales or offers to purchase rural real estate brokerage businesses, nor did she offer testimony of rural real estate brokers or expert testimony concerning the existence of goodwill in a similar business in the St. Louis area.In fact, wife's expert made no attempt to prove the existence of goodwill by any method.

We note the recognition in Hanson that "[c]ourts which have employed capitalization formulae ... often appear to mix concepts of value with concepts of proof."Hanson, 738 S.W.2d at 435 n. 1.Such issues are easily confused even in cases involving the fair market value method of valuation, since the evidence required for proof of the existence of goodwill is also the best evidence of its value.SeeHanson, 738 S.W.2d at 435, 436.However, the existence and valuation of goodwill are separate issues.SeeParker, 762 S.W.2d at 509(court finds its unnecessary to address the problem of proving value because it finds the evidence insufficient under the Hanson rules to establish the existence of goodwill).Further, "[e]...