Scott David Trahan VS Margaret Garrison Trahan
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0109 SCOTT DAVID TRAHAN VERSUS MARGARET GARRISON TRAHAN Judgment rendered June 11 2010 1 Appealed from the The Family Court for the Parish of East Baton Rouge Louisiana Trial Court No 162 982 Honorable Pamela J Baker Judge ARLENE C EDWARDS BATON ROUGE LA ATTORNEY FOR PLAINTIFF APPELLEE SCOTT DAVID TRAHAN LEE HERRINGTON ATTORNEY FOR BATON ROUGE LA DEFENDANTAPPELLANT MARGARET GARRISON TRAHAN BEFORE CARTER C GUIDRY AND PETTIGREW JJ J PETTIGREW J In this matter defendant appellant Margaret Garrison Trahan challenges a judgment rendered in family court involving a community property partition and the determination of claims arising under special contractual terms of a marriage contract entered into by Mrs Trahan and plaintiff appellee Scott David Trahan For the reasons that follow we amend in part and as amended affirm FACTS AND PROCEDURAL HISTORY The parties were married on December 20 1998 Prior to the marriage the parties entered into a marriage contract on December 10 1998 providing that certain property would be the separate property of Mr Trahan and other property would be the separate property of Mrs Trahan Otherwise the contract provided that the legal regime of the community of acquets and gains would exist between the parties were born of the marriage No children Mr Trahan filed a petition for divorce on August 23 2007 alleging the parties had lived separate and apart since February 15 2007 and requesting a divorce based on La Civ Code art 103 On September 4 2007 Mrs Trahan filed 1 A an answer and reconventional demand alleging a separation date of June 20 2007 and requesting a divorce based on La Civ Code art 102 The matter was submitted by affidavits and stipulations and after consideration of same the family court judge agreed that the parties were separated in June 2007 A judgment of divorce was signed by the court on January 29 2008 According to the record the parties acquired various properties during the marriage which was subject to a combination community joint and separate property regime pursuant to the December 10 1998 marriage contract Because the parties were not able to reach an amicable community property partition and settlement of all claims between them arising from the marriage Mrs Trahan filed a petition for judicial partition 1 On May 24 2010 a Motion To Substitute Party PlaintiffAppellant In Property Partition Proceeding was filed informing this court that Margaret Garrison Trahan died on May 19 2010 from a long term illness and that James G Garrison former husband of Margaret Garrison Trahan had been appointed Independent Executor of the Succession of Margaret Garrison Trahan and desired to be substituted as party plaintiffappellant in this proceeding An order was signed by this court granting said request on May 26 2010 However to avoid confusion we will refer to the parties in this matter as Mr and Mrs Trahan 2 of property on September 7 2007 requesting a partition of the property in accordance with La R 9 as well as a full accounting of all rights and claims of the parties of S 2801 every nature and kind including placing in possession of all separate property and recognition of separate claims On November 28 2007 Mr Trahan filed a Rule To Show Cause Why A Judgment Decreeing Separation Of Property Should Not Be Granted On December 13 2007 a judgment was signed decreeing a Separation of Property and terminating the community of acquets and gains retroactively to the date of filing September 4 2007 pursuant to the provisions of M Civ Code arts 2374 and 2375 The matter proceeded to trial in family court on October 10 2008 and concluded on November 14 2008 The parties submitted testimony of various witnesses including some expert witnesses and introduced numerous documents into the record At the close of the evidence the matter was taken under advisement On January 30 2009 the court issued lengthy written reasons for judgment detailing its findings on each of the contested issues that had been argued at trial A judgment in accordance with these findings was signed on March 3 2009 wherein the property partition issues and other Z Louisiana Civil Code article 2374 provides in pertinent part as follows A When the interest of a spouse in a community property regime is threatened to be diminished by the fraud fault neglect or incompetence of the other spouse or by the disorder of the affairs of the other spouse he may obtain a judgment decreeing separation of property C When a petition for divorce has been filed either spouse may obtain a judgment decreeing separation of property by a rule to show cause and upon proof that the spouses have lived separate and apart without reconciliation for at least thirty days from the date of or prior to the filing of the petition for divorce and have not reconciled Louisiana Civil Code article 2375 provides in pertinent part as follows A Except as provided in Paragraph C of this Article a judgment decreeing separation of property terminates the regime of community property retroactively to the day of the filing of the petition or motion therefor without prejudice to rights validly acquired in the interim between filing of the petition or motion and rendition of judgment C If a judgment is rendered on the ground that the spouses were living separate and apart after the filing of a petition for divorce without having reconciled the judgment shall be effective retroactively to the date the original petition for divorce was filed without prejudice to rights validly acquired in the interim between filing of the petition or motion and rendition of judgment All subsequent pleadings or motions involving matters incidental to the divorce must be filed in the first filed suit 3 claims contained in the detailed descriptive lists of the parties were decided It is from this judgment that Mrs Trahan has appealed assigning the following specifications of error A The Trial Court erred in failing to grant Judgment for legal interest on the money Judgment in favor of Mrs Trahan against Mr Trahan B The Trial Court erred in failing to grant security for payment and failing to provide for acceleration on default of the Judgment payment owed by Mr Trahan to Mrs Trahan C The Trial Court abused its discretion in its application of Expert Witness evidence in valuing Mr Trahan interest in Chemtech Chemical Services s C L D The Trial Court abused its discretion in discounting its valuation of Mr s Trahan interest in Chemtech Chemical Services L by incorrectly C applying a marketability discount E The Trial Court erred in denying Mrs Trahan claim for s reimbursement for payment of Mr Trahan separate mortgage debt with s community funds F The Trial Court erred in crediting Mr Trahan with a Mercedes Benz debt payment unsupported by any evidence G The Trial Court erred in requiring Mrs Trahan to account for a purported 300 federal tax refund which never existed and which is 00 unsupported by any evidence H The Trial Court erred in denying Mrs Trahan La R 9 s S 2801 1 claim for compensating value for Mr Trahan Social Security benefits s value accrued during the marriage in excess of Social Security benefits of Mrs Trahan I The Trial Court erred in failing to reduce Mr Trahan reimbursement s claim against Mrs Trahan by onehalf of the tax savings to Mr Trahan resulting from his payment of community debt mortgage interest and property taxes included in that reimbursement claim J The Trial Court erred in failing to render Judgment in favor of Mrs Trahan and against Mr Trahan for all Expert Witness fees incurred by Mrs Trahan in connection with the testimony of the following Expert Witnesses 1 Ron Cartier CPA 2 Marc DeRouen CVA 3 Mark Shirley CVA 4 Dale Baringer Board Certified Tax Attorney 5 Michael B Burris CPA 2 LEGAL INTEREST On appeal Mrs Trahan refers to the legal interest to which she alleges she is entitled as the proverbial 800 pound gorilla in the room that simply cannot be ignored She acknowledges that nothing in the marriage contract between the parties entitles her to contractual interest However Mrs Trahan argues she is clearly entitled to legal interest an entirely different issue In response Mr Trahan argues that Mrs Trahan claim that she is entitled to s interest stems from the payments that she is owed by Mr Trahan for Chemtech Chemical Services LLC Chemtech and the home on S Harrell Ferry Road both s items being the separate property of Mr Trahan Mr Trahan further notes that these payments are owed as a result of the contract entered into by the parties prior to their marriage Thus Mr Trahan maintains these are not community property issues but rather contractual obligations making it necessary to look to the language of the contract to determine if the payment of interest was agreed upon by the parties to the contract Mr Trahan concludes that because the contract is void of any language regarding interest and because this is not community property being divided Mrs Trahan is not entitled to interest payments in this case We disagree As support for her position that she is entitled to legal interest Mrs Trahan cites La Code Civ P art 1921 which provides as follows The court shall award interest in the judgment as prayed for or as provided by law According to the record Mrs Trahan filed her initial Petition For Judicial Partition Of Property on September 7 2007 On January 7 2008 she filed a Detailed Descriptive List which was followed by a Supplemental And Amending Detailed Descriptive List filed on July 22 2008 On July 31 2008 Mrs Trahan filed a Motion For Leave Of Court For Filing Of Supplemental And Amending Detailed Descriptive List Of Margaret Garrison Trahan As Well As Filing Of Traversal By Margaret Garrison Trahan Of The Detailed Descriptive List Filed By Scott David Trahan In this final pleading Mrs Trahan specifically prays that all monetary Judgments bear legal interest from date of judicial demand or date of partition as provided by law An order allowing Mrs Trahan to file and serve this 5 pleading was signed by the court on August 6 2008 Thus Mrs Trahan initial s September 7 2007 Petition For Judicial Partition Of Property was supplemented and amended as prayed for in the July 31 2008 pleading including but not limited to Mrs s Trahan request for legal interest In an action for partition of community property legal interest on an amount awarded to one of the spouses as a reimbursement or as an equalizing payment starts to run from the date of the judgment of partition S Litvinoff Obligations La Civ Law Treatise 7 9 p 255 1999 see also Reinhardt v Reinhardt 99 0723 pp 58 La 10 748 So 423 426 427 Manno v 99 19 2d Manno 2001 2138 pp 56 La App 1 Cir 10 835 So 649 653 Michael v 02 2 2d Michael 602 So 1099 1102 La App 1 Cir 1992 2d The marriage contract entered into by the parties in this case created a hybrid community property property regime separate Thus although the family court was presented with various contractual claims to resolve it was also asked to partition the legal regime of the community of acquets and gains that existed between the parties Based on the unique facts and circumstances of this case and the above cited jurisprudence and applicable law it was error for the court not to include legal interest in its March 3 2009 judgment Accordingly we amend said judgment to provide for legal interest on the money judgment in favor of Mrs Trahan from the date of the judgment of partition 3 SECURITY FOR PAYMENT ACCELERATION UPON DEFAULT Mrs Trahan argues the court erred in failing to provide for adequate security on the payments due her in the judgment and in failing to provide for acceleration upon default While acknowledging that the marriage contract specifically states that the cash payment from Mr Trahan to Mrs Trahan concerning his interest in Chemtech does not create a lien in favor of Mrs Trahan or transfer any ownership interest in Chemtech to 3 In brief Mr Trahan argues that even if Mrs Trahan is entitled to legal interest she would not be entitled to any interest until at least the expiration of four years because the marriage contract provided for a payout term of not less than four years Mr Trahan cites no authority for his position and we can find none As previously indicated legal interest in a case such as this runs from the date of the judgment of partition See Reinhardt 99 0723 at 5 8 748 So at 426 427 2d I Mrs Trahan Mrs Trahan cites the security provisions of La R 9 and the second S 2801 circuit case of Head v Head 30 La App 2 Cir 5 714 So 231 as 585 98 22 2d support for her position on these issues In response Mr Trahan alleges the absence of any provisions in the contract regarding security shows a clear intent of the parties not to require security Mr Trahan further states that the court has no authority to go beyond the four corners of the contract to impose such a burden Louisiana Revised Statutes 9 sets forth the procedure to be followed by the 2801 parties in partitioning the community property and settling claims between them In particular La R 9 directs the trial court as follows S 2801 4 A 4 The court shall then partition the community in accordance with the following rules a The court shall value the assets as of the time of trial on the merits determine the liabilities and adjudicate the claims of the parties b The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value c The court shall allocate or assign to the respective spouses all of the community assets and liabilities In allocating assets and liabilities the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses The court shall consider the nature and source of the asset or liability the economic condition of each spouse and any other circumstances that the court deems relevant As between the spouses the allocation of a liability to a spouse obligates that spouse to extinguish that liability The allocation in no way affects the rights of creditors d In the event that the allocation of assets and liabilities results in an unequal net distribution the court shall order the payment of an equalizing sum of money either cash or deferred secured or unsecured upon such terms and conditions as the court shall direct The court may order the execution of notes mortgages or other documents as it deems necessary or may impose a mortgage or lien on either community or separate property movable or immovable as security Emphasis added In statutory construction the word shall is mandatory and the word may is permissive La R 1 La Code Civ P art 5053 Teano v Electrical Const Co S 3 20022032 pp 12 13 La App 1 Cir 5 849 So 714 724 Louisiana Revised 03 9 2d Statutes 9 does not mandate that the court provide for security in its judgment 2801 This matter lies within the discretion of the court 7 Based on our review of the record before us we find no abuse of discretion by the court in its decision not to provide for security or for acceleration upon default This assignment of error is without merit a VALUE OF MR TRAHAN INTEREST IN CHEMTECH S Mrs Trahan argues that the court abused its discretion in its application of expert witness evidence in valuing Mr Trahan interest in Chemtech She further alleges the s court abused its discretion in discounting its valuation of Mr Trahan interest in s Chemtech by incorrectly applying a marketability discount According to the record Mr Trahan is owner of 2 interest in Chemtech The 3 other 1 interest is owned by Eric Mistretta 3 The marriage contract executed by the parties in December 1998 provided as follows with regard to Chemtech Mrs Trahan specifically waives and relinquishes all of the rights which may have to Mr Trahan ownership interest in Chemtech for the s five years of marriage between the parties If the parties divorce after years of marriage Mrs Trahan will continue to specifically waive she first five and relinquish all of the rights which she may have to Mr Trahan s ownership interest in Chemtech however she shall be entitled to a cash payment from Mr Trahan equal to the value of onehalf of Mr s Trahan interest in Chemtech as of the date of the judgment of divorce A 1 credit will be assessed to Chemtech 00 000 500 sappraised value to calculate Mr Trahan interest The value of Chemtech and in turn s Mr Trahan interest therein shall be arrived at by taking the average s appraised value of two independent appraisers using an agreed upon method of appraisal by the parties Mr Trahan and Mrs Trahan will agree to a payout term of not less than four 4 years and other terms of the payout if necessary This right to a cash payment as outlined above does not in any way create a lien in favor of Mrs Trahan or transfer any ownership interest in Chemtech to Mrs Trahan 4 The Head case cited by Mrs Trahan is easily distinguished from the case before us now In Head the parties to a community property dispute asked the trial court to value the community stock in a family corporation The trial court calculated an equalizing payment owed by Mr Head to Mrs Head of 114 23 181 directing this amount to be paid to Mrs Head in 120 monthly installments at eight percent interest Head 30 585 at 16 714 So at 240 on appeal the second circuit noted Mr Head had not requested that the trial court defer 2d payment We are unable to discern from the record a reason for the trial court unsolicited deferral of an s unsecured equalizing payment particularly without imposing temas and conditions for the deferral as La S 2801 R 9 directs Head 30 at 17 714 So at 240 emphasis in original The second circuit 585 2d ultimately concluded that the trial court abused its discretion by deferring the equalizing payment without providing for either or both acceleration of the debt upon default and security of adequate value to satisfy the amount of the equalizing payment Head 30 at 18 714 So at 240241 In the instant case 585 2d there is no unsolicited deferral of an unsecured equalizing payment Here the parties entered into a marriage contract and agreed to a payout term of not less than four 4 years and other terms of the payout if necessary The contract further provided that the right to a cash payment by Mr Trahan to Mrs Trahan did not in any way create a lien in favor of Mrs Trahan thus evidencing the parties intent that there would be no security for any payment that might be awarded M On February 4 2008 Mr Trahan filed a motion to have the court appoint an independent appraiser for the valuation of Chemtech in accordance with the marriage contract This led to a Stipulated Judgment signed by the court on March 11 2008 whereby the court appointed Ronald D Cartier to appraise Chemtech The judgment further provided that the parties would not be precluded from having their own appraisers appointed to perform independent appraisals of Chemtech Thus the following experts testified regarding the appraisal value of Chemtech Ronald D Cartier the court appointed expert James Koerber expert for Mr Trahan and Marc DeRouen expert for Mrs Trahan After hearing much testimony and considering many documents regarding the daily operations of Chemtech the court provided the following detailed reasons for its decision to adopt Mr Koerber appraisal of 8in its valuation of Chemtech s 00 530 177 Three appraisers testified regarding the value of Chemtech Mr s Trahan appraiser Mr James Koerber and Mrs Trahan appraiser Mr s Marc DeRouen both used the same method in valuing Chemtech the discounted net cash flows method Mr DeRouen assigned a value to Mr Koerber assigned a value to Chemtech Chemtech of 14 000 800 of 8 530 177 As explained by Mr Koerber this method is prospective where an appraiser projects future earnings and then discounts them to present value Mr DeRouen explained this method as one that focuses on anticipation of future cash flow to the owners of the business Mr Cartier who was appointed by the court used a different method of appraisal an EBIDA Earnings Before Interest Depreciation and Amortization valuation and assigned a value of 13 for 000 250 Chemtech Mr DeRouen testified that EBIDA tends to produce a higher number than the discounted cash flows method Both Mr DeRouen and Mr Koerber agreed that Mr Cartier did not follow the valuation standards for business appraisals They both gave various reasons why the method used by Mr Cartier was inappropriate in valuing this small closely held business Mr Cartier approach differed from the other appraisers and he s is not a certified business appraiser therefore the court did not appraisal use his Mr DeRouen and Mr Koerber both certified business appraisers had similar capitalization rates and many of their numbers were the same In fact Mr Koerber testified that his report was completed weeks before Mr DeRouen report and that Mr DeRouen used his calculations with a s couple of modifications Mr DeRouen also testified that he used Mr s Also testifying briefly on behalf of Mrs Trahan was Mark Shirley a certified valuation analyst Mr Shirley was Mr DeRouen partner who worked along with Mr DeRouen in the appraisal of Chemtech Mr Shirley s was the coauthor of Mr DeRouen report on Chemtech s 0 s Koerber information and then departed from it in the gross profit margin and the operating expenses Mr DeRouen used a gross profit percentage of 50 for the 67 years 2009 through 2012 He testified that he arrived at the 50 67 figure using the average gross profit from the years 20042007 He further testified that out of an abundance of caution he agreed with Mr Koerber for the year 2008 and used a gross profit percentage of 46 5 for that year He explained that he did this because his conversations with the management of Chemtech indicated that there may be some problem reaching the average gross profit figure He stated that he looked online at the cost issues and although he saw that the cost of materials was in an up cycle he did not see where Chemtech was having difficulty passing on price increases and therefore saw no effect of the raw materials cost increase on the profits of Chemtech When Mr DeRouen was questioned about an article stating that it will get more difficult for chemical companies to pass on price increases Mr DeRouen responded that the question was whether that was known or knowable in January 2008 seeming to imply that it was not On cross examination Mr DeRouen admitted that he did not know which raw material prices have increased the most He stated that the management of Chemtech did not mention to him that they had stockpiled materials so they would not have felt the effect of the price increases at the time of the valuation Mr Koerber used a gross profit percentage of 46 for the 50 future He testified that he based his figure on the history of the company and the conferences that he had with Mr Trahan and Mr Mistretta who showed him what they are spending on raw materials He cited sblend sheets and the recent rise in the cost of raw materials Chemtech as the reason for his lower gross profit percentage He testified that he looked at prices of raw materials prior to the valuation date and that these things were known and knowable Mr Koerber was able to testify about specific price increases for chemicals used by Chemtech Mr Koerber testified that he does work for a phosphates plant and that they have seen similar price increases Mr Koerber testified that it does not appear that Mr DeRouen looked at the cost of raw materials or the blend sheets He testified that as of the valuation date there was a tremendous increase in prices only some of which can be passed on to the customer He also discussed two anomalies that happened in 2007 that lead sic to greater gross profits for that year These were a sale of equipment and large Motiva contracts that Chemtech received with no bid Operating expenses were the other major distinction in the appraisers values Mr DeRouen testified that he determined that s Chemtech operating expenses are high in comparison with their industry peers and have been high historically He stated that he felt there is room for efficiency there When questioned on cross about how he picked the percentage of future operating expenses that he used in his report he stated that he just used a judgment call Mr Koerber found that the operating expenses would grow at the same rate as sales He stated that he used Chemtech business model as s well as their past as evidence for this and that his projections are based on historical information He testified that Mr DeRouen did not use the historical numbers 10 Mr Mistretta Mr Trahan partner and Mr Trahan testified about s how Chemtech is operated Mr Mistretta discussed two large new contracts with Motiva in 2006 and 2007 He stated that they received Shell Motiva without bid and they were able to charge a very high price for the work He stated that this no bid contract high price and lag time between receiving the payment and incurring the cost lead them to a bubble in net profit for 2007 He said that Mr DeRouen did not take this into account in his valuation He further testified that Chemtech has Mr never averaged the projected profits in Mr DeRouen report s Mistretta testified that one of the Motiva contracts is up for bid in September 2009 and that they were told that they have to get their price down because Motiva is no longer in a hurry up and fix the problem situation He said that Chemtech must lower its price to be more competitive because it was 70 higher than prior vendors He said that this price reduction will come directly off the profit that Chemtech made in the past with Motiva Mr Mistretta also testified about his concern that the key people who initially gave Chemtech the accounts are no longer at the plants Shell differs from their other customers in this regard since they rotate their employees to other plants every few years These Motiva contracts represent almost 50 of Chemtech business Much testimony s was given about the sale of a large piece of equipment in 2007 that also lead sic to a greater profit margin Mr Mistretta also testified about the cost of raw materials He testified that raw material costs are not cyclical as alleged by Mr DeRouen and that costs have increased 100 to 200 in the last year Chemtech s competitors have better gross profit margins because they are much larger and they are able to buy in bulk Chemtech is the smallest among its competitors Mr Trahan testified that Chemtech has contracts with some of its customers that prohibit passing on cost increases Mr Koerber argued during trial that after understanding what Mr Trahan intended in the marriage contract he would have used the asset based approach He did give a value for Chemtech using this method The contract says only that the parties will determine the value of Chemtech using an agreed upon method The Court believes that this value must be the fair market value The discounted cash flow method is the method used by both appraisers and for which the Court had the most testimony and information The Court has determined that it is an appropriate method and will use the numbers from that method to value Chemtech Chemical Services L C After an exhaustive consideration of the reports and testimony presented to the Court regarding the value of Chemtech the Court finds Mr Koerber value using the discounted cash flow method is the s appropriate value of Chemtech He clearly had the most knowledge of the everyday workings of Chemtech as well as their contracts and history Additionally Mr Koerber numbers were all similar regardless of the s method he used while Mr DeRouen had a much lower number using the capitalized cash flow method Mr Koerber testified that the numbers using the discounted cash flow method and the capitalized cash flow method should be close and if they are not the valuator should know that something is wrong Interestingly Mr DeRouen value using the s capitalized cash flow method was about the same as Mr Koerber yet by s simply changing the percentage of gross profit and operating expenses he d arrive at a much greater value with the discounted cash flow method Mr Ralph Stevens who was admitted as an expert in tax law and 11 business valuations also testified that all of the numbers should have been similar whether using the discounted cash flow method or the capitalized cash flow method Mr DeRouen stated that he used many of Mr Koerber numbers and changed operating expenses because he felt s there was more room for efficiency as compared with similar companies There was no evidence introduced that Chemtech will suddenly become more efficient in the future Mr Mistretta testimony was clear direct and extremely helpful in s outlining how Chemtech is operated and why the profits were greater in certain years Mr Koerber was more aware of the activities described by Mr Mistretta Mr Koerber numbers were more clearly supported by s historical evidence It is well settled in Louisiana that the trier of fact is not bound by the testimony of an expert but such testimony is to be weighed the same as any other evidence The trier of fact may accept or reject in whole or in part the opinion expressed by an expert Harris v State ex rel Dept of Transp and Development 20071566 p 25 La App 1 Cir 11 997 So 849 866 writ denied 20082886 La 2 999 08 10 2d 09 6 2d So 785 The effect and weight to be given expert testimony is within the broad discretion of the trial court Morgan v State Farm Fire and Cas Co Inc 2007 0334 p 8 La App 11 978 So 941 946 The decision reached by the trial 07 2 2d court regarding expert testimony will not be disturbed on appeal absent a finding that the trial court abused its discretion Louisiana State Bar Ass v Carr and n Associates Inc 2008 2114 p 17 La App 1 Cir 5 15 So 158 171 writ 09 8 3d denied 20091627 La 10 21 So3d 292 09 30 Having thoroughly reviewed the evidence and expert testimony we find no abuse of the trial court discretion in finding Mr Koerber appraisal value of Chemtech s s which he arrived at using the discounted cash flow method to be the appropriate appraisal value of Chemtech based on the facts and circumstances of this case Thus Mrs Trahan assignment of error regarding the court alleged abuse of discretion in its s s application of expert witness evidence in valuing Mr Trahan interest in Chemtech is s without merit However our analysis of Mr Trahan interest in Chemtech does not s end here After concluding that Mr Koerber appraisal value was an appropriate starting s point the court then applied a marketability discount in determining the fair market 12 value of Chemtech With regard to whether the marketability discount should be applied in this case the court made the following findings in its written reasons for judgment Mr DeRouen and Mr Koerber both provided the value of Chemtech before and after the marketability discount Mr DeRouen explained that a marketability discount is applied in valuing a small closely held business because you are not valuing something that can be readily traded and this applies to Chemtech He testified that there is a discount due to the fact that it is not traded on the free and open market It has restricted stock Also studies tell us that in companies of this sort the time to sell is an important factor Mr DeRouen suggested however that it may not be necessary to use a marketability discount as there is no plan to sell the business however he stated he felt that was within the discretion of the court Mr Koerber testified that he thought it was necessary to include a marketability discount because Chemtech is a closely held entity The Court is aware of the jurisprudence from the 5th 4th and 2nd circuits applying no marketability discount to businesses where there were no plans to sell them and the 3rd circuit case where a marketability discount was applied D v D 527 So 2d 309 La Ct App 5th Cir Spain Spain 1988 writ granted cause remanded 528 So 2d 152 La 1988 and Mexic v Mexic 577 So 2d 1046 La Ct App 4th Cir 1991 are factually distinguishable from this case and both involved the valuing of real estate See Collier v Collier 790 So 2d 759 La Ct Apo 3d Cir 2001 writ denied 803 So 2d 30 La 2001 where a marketability discount was applied and Head v Head 714 So 2d1 231 La Ct Apo 2nd Cir 1998 where a marketability discount was not applied Louisiana courts have not clearly determined a standard for valuing a community business The contract in this case provides only that Mrs Trahan shall be entitled to 1 the value of Chemtech Chemical Services 2 The Court believes the marketability discount is appropriate majority because Chemtech is a small closelyheld L with only two members 0 Mr Trahan is the majority owner however he and Mr Mistretta clearly work together making decisions for the company Therefore a 20 marketability discount is appropriate considering all the facts in this case and was applied by the Court The fact that this company is small closely held and not traded on the open market limits the available buyers and thereby reduces the price The marketability discount is appropriate in this case Mr Koerber using the discounted cash flow method valued Chemtech at 8 530 177 The Court determined that a marketability discount was appropriate Therefore after the 20 marketability discount he found the fair market value of Chemtech to be 6 024 542 As per the contract the 1 will be subtracted from the entire 00 000 500 value of Chemtech This total equals 5 Mr Trahan 66 024 042 s 67 interest in this amount is 3 Therefore Mrs Trahan is 40 517 361 entitled to 1 of that amount or 1 2 70 758 680 13 Mrs Trahan argues on appeal that the court decision to apply a marketability s discount to the value of Chemtech is clearly contrary to the Louisiana Supreme Court s ruling in Cannon v Bertrand 20081073 La 1 2 So 393 09 21 3d In Cannon one of three members of a limited liability corporation Cannon notified the other two that he desired to withdraw and subsequently filed suit to have the value of his one third share determined The plaintiffs expert suggested no minority discount defendants expert suggested 75 percent the trial court applied 35 percent which the court of appeal affirmed On writs to the Louisiana Supreme Court it held that no discount should have been applied noting as follows Minority discounts and other discounts such as for lack of marketability may have a place in our law however such discounts must be used sparingly and only when the facts support their use Here the district court determined the value of the assets owned by the company and then applied a discount Under the particular facts of this case though the use of a discount was unwarranted and therefore the district court abused its discretion in applying such a discount The buyers of the partnership interest at issue are the two remaining partners in the partnership These two partners will not be subject to a lack of control as would a third party as each has an equal say in the control of the partnership and because the partners have already determined to purchase the partnership share themselves by opting to continue the partnership and avoid liquidation neither is lack of marketability an issue Furthermore discounting the market value of the partnership property would be inequitable s The withdrawing partner should not be penalized for doing something the law allows him to do and the remaining partners should not thereby realize a windfall profit at his expense Footnotes omitted Cannon 20081073 at 56 2 So at 396397 The Cannon court did not state that 3d marketability discounts should never be used but rather stated that the discounts should be used sparingly and only when the facts support their use Cannon 2008 1073 at 5 2 So at 396 3d Based on the facts particular to that case the court concluded that a discount was not warranted In the instant case unlike in Cannon the marketability discount was applied by experts for both parties and accepted by the court based on the facts and circumstances herein In Cannon the sole issue before the court was the value of the business That was not the case here as can be seen from the lengthy list of issues presented for our review This numerous assets and liabilities case involved the classification and valuation of The court below noted that Chemtech was a small 14 closelyheld company and that although Mr Trahan was the majority owner he and Mr Mistretta worked closely together to make decisions for the company Thus the court concluded that a marketability discount was appropriate Based on our review of the record herein and the facts and circumstances particular to this case we find the court was not in error in applying the marketability discount MRS TRAHAN CLAIM FOR SEPARATE S MORTGAGE DEBT PAYMENT Mrs Trahan asserts the court erred in denying her claim for reimbursement for payment of Mr Trahan separate mortgage debt with community funds Mrs Trahan s alleges that Mr Trahan separate mortgage debt on his home had a 150 s 00 000 principal balance at the time of their marriage all of which was paid off during their marriage with community funds thus entitling Mrs Trahan to a 75 00 000 reimbursement payment by Mr Trahan In response Mr Trahan argues that the family home basically became community in the form of joint ownership when Mr Trahan donated one half of the home to Mrs Trahan keeping a credit for the equity that he had in the home prior to the marriage Thus Mr Trahan maintains the community funds used to pay the note from the time that they were married were used to pay a community debt since the house was now owned by both of the parties After considering the evidence and hearing from the parties on the issue of Mrs s Trahan claim for reimbursement for payment of Mr Trahan separate mortgage debt s with community funds with regard to the S Harrell Ferry Road home the court made s the following findings Mrs Trahan claimed she is entitled to reimbursement for the separate mortgage debt on the South Harrell Ferry Road home brought s into the marriage by Mr Trahan and paid with community funds Clearly had there been no marriage contract specifically dealing with what Mrs Trahan was entitled to out of the South Harrell Ferry home she would s be entitled to onehalf not 100 as argue by Mrs Trahan in her d post trial brief of the community funds paid sic used to pay this debt However the marriage contract entered into between the parties specifically addresses the sum that Mrs Trahan is entitled to from the South Harrell Ferry Road home The contract provides Mrs Trahan s shall also be entitled to one half of the increased equity in the property after the date of marriage Equity is the value of a piece of property over and above any mortgage or other liabilities relating to it Mr Trahan had a mortgage of approximately 150 on the home at the time of the 00 000 15 marriage 00 000 210 was the value of the home over and above this 00 000 150 mortgage at the time of the marriage As the mortgage was paid it increased the equity in which Mrs Trahan shared Had the parties wanted Mrs Trahan to be entitled to additional sums for payment of the mortgage during the marriage they necessarily would have had to include this in the contract This would have led to an absurd result Using Mrs Trahan argument each time the community s paid 1 on the mortgage she was entitled to 50 cents in reimbursement and 50 cents in increased equity in the home thereby giving Mr Trahan absolutely no benefit from any of the payments on this mortgage The fact that the parties placed additional mortgages on the home is not relevant to this issue Mrs Trahan claim for onehalf of the principal paid on the s mortgage on the South Harrell Ferry Road home is denied s The marriage contract specifically provides for Mrs Trahan interest in the home s as follows Mrs Trahan specifically waives and relinquishes of all of rights which she may have to any and all equity accumulated by Mr Trahan in this separate property prior to their marriage The parties agree that Mr s Trahan equity is 210 at the time of the execution of this 00 000 agreement Mrs Trahan shall be entitled to reimbursement of any and all of her separate funds used to make improvements to the above mentioned property and any appreciation in the property attributed to the investment of her separate funds into the property in the event of a divorce between the parties Mrs Trahan shall also be entitled to one half of the increased equity in the property after the date of marriage This separate property will remain under the sole civil administration or control of Mr Trahan If the property is rented or leased and the parties are still married the income andor rents from the property will be divided equally between the community and Mr Trahan as his separate property after deductions are made for expenses The language of the contract is clear A contract between the parties is the law between them and the courts are obligated to give legal effect to such contracts according to the true intent of the parties La Civ Code art 2045 Amoco Production Co v Fina Oil Chemical Co 95 1185 p 11 La App 1 Cir 2 670 So 502 511 writ 96 23 2d denied 96 1024 La 5 673 So 1037 As correctly noted by the court below 96 31 2d had there been no provision in the marriage contract specifically dealing with this issue the outcome would be different However we have thoroughly reviewed the record and the evidence and conclude that given the facts and circumstances as presented herein the court did not err in denying Mrs Trahan claim for reimbursement of one half of s 16 the principal paid on the pre marriage separate mortgage debt on the S Harrell Ferry s Road home This assignment of error is without merit THE MERCEDES BENZ DEBT CREDITED TO MR TRAHAN Mrs Trahan alleges the court erred in crediting Mr Trahan with a credit for the 02 288 38 debt on the Mercedes Benz as there was no trial evidence to support the existence of this debt Mr Trahan responds that this was a community vehicle that was used by him while Mrs Trahan drove a leased BMW Mr Trahan also points out that at the time of trial the balance owed on the Mercedes Benz was 38 as agreed 02 288 upon by the parties According to the record the parties stipulated that the value of the Mercedes Benz was 43 The only evidence in the record of the 38 debt is 00 287 02 288 Exhibit A attached to Mr Trahan posttrial brief This exhibit is a statement from s Chase Auto Finance showing a principal balance as of November 14 2008 of 02 288 38 The statement also shows a monthly payment of 1 which is the 83 186 same amount Mr Trahan attributed to his monthly car payment when asked at trial about his monthly expenses Based on our review of the record we find the court s ruling on this issue to be clearly supported by the evidence in the record Mrs Trahan s to the contrary is without merit 00 300 FEDERAL TAX REFUND Mrs Trahan claims a 300 federal tax refund that was allocated to her must 00 be removed from the accounting as there was no evidence that she received this refund She also alleges that this refund is not listed in the Joint Detailed Descriptive List of the parties or any separated Detailed Descriptive List of Mr Trahan We find no merit to this argument 6 At the close of evidence the court instructed the parties to file posttrial briefs There was some discussion on the record about what the court expected from these briefs However there was also mention of discussions in chambers thus making it impossible for us to know exactly what the court advised the parties regarding the admissibility of additional exhibits Nonetheless it is clear that the court considered Mr Trahan sexhibit in ruling on this issue Thus it is also before us on review 17 According to the record this 300 refund was listed by Mr Trahan in both of 00 the Detailed Descriptive Lists that he filed the January 10 2008 filing and the July 23 2008 filing The refund was also included in the Joint Detailed Descriptive List filed on August 22 2008 In written reasons for judgment the court found The parties received a federal tax refund in the amount of 300 which is in the possession of 00 Mrs Trahan This asset shall be allocated to Mrs Trahan Based on the record before us we cannot say the court erred in this respect MRS TRAHAN SOCIAL SECURITY CLAIM S Mrs Trahan argues on appeal that the court erred in denying her claim for compensating property allocation in accordance with La R 9 to offset Mr S 2801 1 s Trahan excess social security interest accumulated during the marriage Mr Trahan asserts the court correctly denied the claim for many reasons chief among them that Mrs Trahan has no right to receive social security benefits from Mr Trahan While we acknowledge a trial court discretion under La R 9 to assign a spouse s S 2801 1 community property equal to the amount the other spouse will receive in social security benefits we find no merit to Mrs Trahan argument based on the unique facts of this s case In denying Mrs Trahan claim the court gave the following reasons s Mrs Trahan asserts a claim in accordance with La R S 1 2801 9 against the social security retirement account of Mr Trahan funded during the marriage in excess of the Social Security Retirement Account value of Mrs Trahan She asserts a claim in the amount of 58 033 14 La R 9 S 2801 1states When federal law or the provisions of a statutory pension or retirement plan state or federal preempt or preclude community classification of property that would have been classified as community property under the principles of the Civil Code the spouse of the person entitled to such property shall be allocated or assigned the ownership of community property equal in value to such property prior to the division of the rest of the community property Nevertheless if such property consists of a spouse right to s receive social security benefits or the benefits themselves then the court in its discretion may allocate or assign other community property equal in value to the other spouse IV Mr Burris Mrs Trahan expert CPA provided the Court with his s method of determining the amount Mrs Trahan was owed Mr Burris testified that he used his own social security information because he and Mr Trahan are the same age and have a similar work history Mr Burris stated that if his assumption were correct then his calculation would be very close Further 42 USCA entitles a divorced wife to social security of their husband only if they were married for a period of ten years These parties clearly were not 9 leaves this within the courts 2801 discretion The evidence introduced was insufficient to support this claim There were far too many speculations assumptions and unknowns in the calculation provided to the Court Further these parties entered into a marriage contract that resulted in Mrs Trahan receiving significant assets that she would not have received without the marriage contract Presumably had the parties wanted to include additional amounts for social security they would have done so in the contract Therefore the Court will not allocate additional community property to Mrs Trahan We find no abuse of discretion by the court in denying this claim This assignment of error is without merit REDUCTION OF MR TRAHAN REIMBURSEMENT CLAIM S Mrs Trahan alleges that she is owed additional funds because the court failed to reduce Mr Trahan reimbursement claim by onehalf of the alleged tax savings to Mr s Trahan Mr Trahan asserts the court properly denied this claim because Mrs Trahan presented no evidence at trial of what if any benefit Mr Trahan would receive from those deductions After reviewing the evidence and hearing testimony from the parties and expert witnesses the court denied Mrs Trahan claim The court gave the following reasons s for its findings Mrs Trahan requests that to the extent Mr Trahan asserts a claim for reimbursement of any tax deductible community items paid with separate funds she be given an offset against the reimbursement claim for one half of the tax savings to Mr Trahan Mrs Trahan presented no evidence at trial of what if any benefit Mr Trahan would receive for these deductions In fact in the year 2007 Mrs Trahan prevented Mr Trahan from claiming itemized deductions by rushing to file her return so that she could receive a 33 refund and leaving him with several 000 hundred thousand dollars in debt to pay Mrs Trahan now alleges that her CPA is working with Mr Trahan CPA to file an amended 2007 return s with itemized deductions There was no evidence of this at trial There was some testimony at trial indicating that due to the high tax bracket of Mr Trahan he will not be able to take advantage of these deductions Insufficient evidence was introduced to support this claim The evidence in the record reasonably supports the court ruling on this issue s Therefore we find no error by the court This assignment of error is meritless 01 EXPERT WITNESS FEES With regard to expert witness fees the court stated as follows in its written reasons for judgment The fees of Mr Cartier shall be taxed as costs and shall be split equally between the parties Each party shall be responsible for their own expert witness fees for the remainder of the expert witnesses Mrs Trahan argues that judgment should be rendered in favor of Mrs Trahan and against Mr Trahan for the entirety of all expert fees incurred by Mrs Trahan On appeal the amount and fixing of expert fees will not be disturbed in the absence of an abuse of discretion Samuel v Baton Rouge Gen Med Center 991148 p 8 La App 1 Cir 10 798 So 00 2 2d 126 132 We find no abuse of discretion in the court ruling on expert witness fees s and decline to disturb same CONCLUSION For the above and foregoing reasons we amend the March 3 2009 judgment to provide for legal interest in favor of Mrs Trahan from the date of the judgment of partition In all other respects the judgment is affirmed All costs associated with this appeal are assessed equally between the parties AMENDED IN PART AND AS AMENDED AFFIRMED 20
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