IN RE THE MARRIAGE OF LAURA LYNN BECKER AND FRED HAROLD BECKER Upon the Petition of LAURA LYNN BECKER, Petitioner-Appellant/Cross-Appellee, And Concerning FRED HAROLD BECKER, Respondent-Appellee/Cross-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-314 / 06-0319
Filed November 29, 2007
IN RE THE MARRIAGE OF LAURA LYNN BECKER
AND FRED HAROLD BECKER
Upon the Petition of
LAURA LYNN BECKER,
Petitioner-Appellant/Cross-Appellee,
And Concerning
FRED HAROLD BECKER,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson,
Judge.
Laura Becker appeals and Fred Becker cross-appeals from the economic
provisions of a dissolution decree. AFFIRMED AS MODIFIED.
Alexander R. Rhoads of Babich, Goldman, Cashatt & Renzo, P.C., Des
Moines, for appellant.
Daniel L. Bray of Bray & Klockau, P.L.C., Iowa City, and Stephen Scott,
Dubuque for appellee.
Heard by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
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VAITHESWARAN, J.
Laura Becker appealed and Fred Becker cross-appealed from the
economic provisions of a dissolution decree. We filed an opinion on October 12,
2007, affirming the decree as modified. Fred Becker requested rehearing. He
accepted our methodology for valuing his corporation but urged us to consider a
revised valuation presented at trial. We granted his request for rehearing to
consider this and other issues he raised. We now vacate our earlier opinion and
substitute this opinion for it.
I. Background Facts and Proceedings
Laura and Fred married in 1983. When they met, Fred and his father
were partners in a stone quarry business known as Becker & Becker Stone Co.
Soon, Fred bought his father out of the business and the company came to be
known as Becker & Becker Stone Co., Inc.
In 2004, Laura petitioned to dissolve the marriage.
The district court
awarded her $5000 per month in temporary spousal support and $7000 in
temporary attorney fees. Prior to trial, Fred was sanctioned for his failure to
comply with discovery and was ordered to pay $500 of Laura’s attorney fees.
The case proceeded to trial on financial issues. As part of the property
distribution, the district court ordered Fred to pay Laura $1,203,759 within six
months of the decree. The court also granted her $5000 per month in spousal
support for a term of forty-eight months and $30,000 in attorney fees.
Fred moved for enlarged findings and conclusions pursuant to Iowa Rule
of Civil Procedure 1.904(2).
The district court partially granted the motion,
removing a $132,000 note from the assets subject to distribution. This resulted
3
in a reduction of Laura’s property settlement award to $1,137,759. The court
also granted Fred a $7500 credit towards the $30,000 in attorney fees owed to
Laura. Laura appealed and Fred cross-appealed.
II. Property
A.
Valuation of Becker & Becker Stone Co., Inc.
Laura contends the district court should have valued Becker & Becker
Stone Co., Inc. at $5,704,240 rather than $3,100,000. She maintains (1) the
court undervalued the un-quarried limestone, (2) the business valuation was
based on incorrect tax assumptions and simple math errors, (3) the court should
not have reduced the value for professional goodwill, and (4) the court improperly
treated evidence regarding the $132,000 note.
1. Un-Quarried Limestone
Fred individually owned two limestone quarries used in the operation of
his business. For several years, Fred leased the quarries to his company and
received royalty payments from the company. One of Laura’s experts assigned a
$2,000,000 value to these leasehold interests. The district court did not adopt
this expert’s valuation. Laura maintains the district court acted inequitably in
failing “to assign any value to the leasehold interest owned by the parties
individually for which the corporate entity pays a royalty each and every year.”
Fred counters that Laura’s expert relied on speculative income, based his opinion
on “a myriad of false assumptions,” and did not consider “the value of
substitution.”
We find it unnecessary to address Fred’s criticisms of Laura’s key expert,
an expert whose opinion was not mentioned in the decree. Instead, we focus on
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the opinion of Fred’s expert, Shannon Shaw, whose testimony the district court
found “persuasive.”
Shaw prepared a pre-trial report containing a $3,068,962 capitalization of
earnings valuation for the corporation. See Northwest Inv. Corp. v. Wallace, ___
N.W.2d ___, ___ (Iowa 2007) (“Capitalization of earnings involves an estimation
of the company’s ongoing net earnings and a determination of the risks
associated with generating those earnings (capitalization rate).”) In a revised
report, this figure was later reduced to $2,664,887. The district court did not
adopt either of these figures, but instead relied on Shaw’s trial testimony
espousing a previously unarticulated “operating entity” valuation.
Under this
approach, Shaw arrived at a final valuation of $3.1 million for the company and
the quarries. Shaw reasoned as follows:
If you hold the land outside of the operating entity, the
correct way to value this would be to look at the operating entity’s
income stream, and if that income stream takes into account the
economic reality of paying rents and/or paying royalties for the
underlying product, which is the rock, then you should add back to
your value of the operating entity the fair market value as appraised
by a real estate appraiser to the total value.
If, in fact, you combine the land inside the operating entity
and there is no effect on the income stream now because you’re
not paying royalties, you’re not paying rent, your ultimate income
stream that you’re valuing will go up accordingly and your ultimate
value conclusion will go up accordingly, and -- -- that conclusion,
since you have not taken into account the economic expense since
they’re combined now should -- that value conclusion would include
not only the underlying real estate but also the value of the
operations.
This new valuation glossed over the fact that the land and buildings used in the
business were not owned by the corporation but by Fred individually. For this
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reason, we are not persuaded by Shaw’s “operating entity” approach to valuation
espoused at trial or the district court’s adoption of that approach.
In reaching this conclusion, we acknowledge that the district court found
“Shaw’s investigation and evaluation to be the most thorough and his testimony
to be the most well-documented.” We also recognize that, although our review is
de novo, we are to defer to the district court when valuations are accompanied by
such supporting credibility findings. In re Marriage of Vieth, 591 N.W.2d 639, 640
(Iowa Ct. App. 1999). Given this standard, we return to Shaw’s written reports.
Shaw’s original and revised reports recognized that the quarries “are
owned outside of the Company.” The original report also explained the effect of
this outside ownership. First, Shaw noted that “[t]he Company pays a royalty fee
each year for the depletion of the quarries.” Second, he noted that because
“[t]he land and the building the company operates out of are owned personally by
Fred Becker,” the company had rent expenses.
Finally, according to Shaw,
Fred’s ownership of the quarries and buildings resulted in the following tax
allowance to Fred:
Mr. Becker owns the land personally and takes a depletion
deduction on his personal income tax return at an amount that is
allowed by the Federal government. The Company pays Mr.
Becker an amount to reimburse him for the depletion allowance. At
some point in the future, the land will be depleted and Mr. Becker
will have to purchase a new parcel of land.
In his reports, therefore, Shaw considered and accounted for the fact that the
corporation did not own the quarries and buildings used in the business.
Shaw proceeded to value the company using both an asset approach and
a capitalization of earnings approach. Under the asset approach, Shaw excluded
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the quarry values because they were “outside of the Company.” In his original
report, he arrived at an adjusted net book value of $2,553,814 on a control,
marketable basis. Under the earnings approach, Shaw examined five years of
statements recording the company’s adjusted earnings.
The statements
revealed that the corporation regularly and consistently made payments to Fred
based on his ownership of the land and buildings. These expenses reduced
corporate earnings.
Shaw factored the reduced earnings into his original
valuation figure of $3,068,962.
Shaw next compared his valuation under the asset approach with the
valuation under the capitalization of earnings approach. He selected the figure
obtained under the capitalization of earnings approach over the net book value of
$2,553,814 because, in his view, “the capitalization of earnings method captures
the intangible value present in the Company.” His original report contained the
following conclusion:
The marketable value of the subject shares of Becker &
Becker Stone Company was $3,068,962. A discount for lack of
marketability of 10 percent is appropriate in this case, and when
applied to the marketable value above, results in a fair market value
of approximately $2,912,000.
The $3,068,962 valuation figure Shaw obtained before application of the
pre-marketability discount was consistent with the district court’s concern that the
business be valued “as a functioning whole.” As Shaw noted, this was in fact a
“going-concern” value.
The figure was also consistent with the court’s determination that there
was “no basis for an assumption that the business will be sold.” The record
supports this determination and calls into question Shaw’s use of a marketability
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discount.
In reaching this conclusion, we have considered and found
unpersuasive Fred’s present arguments to the contrary.
Although we are not persuaded that Shaw’s marketability discount was
supported by the evidence, we believe his original $3,068,962 was supported by
the evidence. That, however, was not Shaw’s final valuation figure.
At trial, Shaw presented a revised report that reduced the valuation of the
corporate stock from $3,068,962 to $2,664,887.
This reduced valuation was
based on a shareholder distribution of $800,000 authorized by the district court
prior to trial and divided evenly between the parties. Shaw testified that the effect
of this distribution was to decrease the cash and equity of the corporation.
In a belated response to Fred’s request for rehearing, Laura does not take
issue with the methodology used by Shaw to arrive at this reduced figure or to
the figure itself. Instead, she argues that we should use the higher valuation
figure of $3,068,962 to account for what she believes was the previously
unaccounted for value of the buildings and land from which the business
operates. However, as discussed below, the buildings and land were valued in
connection with the appraisal of one of the quarries.
Therefore, we are
unpersuaded by this argument.
Considering the district court’s credibility finding in favor of Shaw and the
evidentiary corroboration of Shaw’s capitalization of earnings valuation, see
Vieth, 591 N.W.2d at 640, we conclude the appropriate valuation for the stock of
Becker & Becker Stone Co., Inc. was $2,664,887, the value after distribution of
the $800,000 in shareholder equity. As the stock was owned entirely by Fred,
this figure would be listed as an asset to Fred.
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This brings us back to Laura’s contention that the district court did not
consider the value of the leasehold interests in the quarries.
As explained,
Shaw’s written valuations accounted for the royalty payments to Fred. What
remained was the value of the quarries and associated buildings. One of Fred’s
experts valued one quarry at $470,000 and the other at $110,000. The $470,000
valuation figure included the value of buildings on that quarry site.
As the
quarries and buildings were assets of Fred, the quarry and building values should
have been added to Fred’s asset total.
We turn to the question of how these additional assets should be
distributed. Iowa is an equitable distribution state. In re Marriage of Keener, 728
N.W.2d 188, 193 (Iowa 2007). The district court stated, “[i]n this case, a fair
distribution is one that is more or less equal.” We agree with this assessment.
The marriage lasted twenty years. See Iowa Code § 598.21(1)(a) (2003). Laura
contributed to the marriage by sacrificing a career to stay home and raise the
parties’ children, which enabled Fred to focus on business activities.
Id. §
598.21(1)(c) As a result, Laura’s earning power was adversely affected. Id. §
598.21(1)(f).
For these reasons, we conclude an equal division of Fred’s
additional assets is warranted.
In sum, the total value of the corporation and the quarries should have
been $3,244,887 ($2,664,887 + $580,000) rather than $3,100,000. This figure
adds $144,887 to Fred’s assets and would require an additional $72,443.50
equalizing payment to Laura.
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2. Incorrect Tax Assumptions/Mathematical Errors
Laura next contends Shaw (1) failed to adjust his income figures for bonus
depreciation and (2) used an excessively high tax rate of forty-four percent. She
maintains the actual federal and state taxes paid by the Beckers were
significantly lower, and Shaw’s use of the higher figure had the effect of
“seriously understating the net income of the business.” 1
In light of these
claimed errors, Laura asks this court to reject the district court’s finding that Shaw
was a more credible expert. She also contends the business should be revalued
at $3,700,000.
Turning to the record, Shaw testified that he in fact considered bonus
depreciation in his calculation. Given the district court’s credibility finding in favor
of Shaw, we decline to adopt the contrary testimony of Laura’s expert.
As for the tax rate, the record supports Laura’s contention that the
Beckers’ actual tax rate gleaned from their personal tax returns was between
32.0% and 39.8%., “with the average of the five years being 35.7.” Fred did not
refute this testimony. However, the testimony does not assist Laura, because
when her expert was asked how the depreciation and tax rate discrepancies
would affect Shaw’s valuation, he testified that, with the correct numbers, the
figure “comes out to $3,187,594.”
This figure is close to Shaw’s original
capitalization of earnings valuation without the marketability discount.
Again,
given the district court’s credibility finding in favor of Shaw, we believe his
capitalization of earnings valuations are the more appropriate figures. We note,
1
Shaw testified that because the corporation was an S corporation, it did not pay entity
level taxes. He stated "the income from that S Corporation passes through and the
income is taxed at the individual or shareholder level."
10
however, that Shaw’s original valuation of the corporation, together with the
values assigned to the quarries and buildings, are close to the $3,700,000 figure
requested by Laura in this portion of her argument.
3. Professional Goodwill
Laura contends the district court “incorrectly reduced the value of the
corporate entity below that indicated by [her expert] as it clearly adopted Mr.
Shaw’s findings that a majority of the goodwill in the business was ‘personal’
goodwill.” On our review of the district court’s decree we find no indication that
the district court based its valuation on a consideration of personal goodwill.
Accordingly, we decline to modify the decree on this basis.
4. Treatment of Note
Laura asserts the district court should not have revised its decree after
trial to eliminate a $132,000 note from the list of Fred’s assets. We agree. The
court’s decision to do so was based on the adoption of the “operating entity”
approach to valuation, an approach that we have concluded glossed over the
actual ownership of assets. As Laura correctly points out, the note from the
corporation to Fred was factored into Shaw’s written corporate valuation analysis
as a liability and was listed on Fred’s financial affidavit as an asset. For this
reason, the note should have been considered an asset to Fred, Fred’s current
arguments notwithstanding.
B.
Kauffman Quarry
Fred contends the court erred in awarding Laura four lots within the city of
Dubuque, collectively known as the Kauffman Quarry. He argues the quarry was
a business asset that the court “inexplicably” chose not to include in the
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business. However, Fred testified no stone had been removed from this quarry
for one-and-a-half to two years and one of his experts testified the property was
no longer used as a quarry. Indeed, the expert went even further, stating the
quarry was “no longer . . . allowed to be used as a quarry right in the city.”
(Emphasis added). We conclude the district court acted equitably in allocating
the Kauffman quarry to Laura.
C.
Premarital Property
The district court estimated that Fred had a net worth of $30,000 at the
time of the parties’ marriage. The court gave Fred an allowance or credit in this
amount. Both parties contend this was inequitable. Laura argues Fred should
be granted no setoff for his premarital property. Fred argues he should receive a
credit of $583,000, the full value of the quarries and equipment he owned at the
time of the marriage.
As we have stated, “Property which a party brings into the marriage is a
factor to consider in making an equitable division. In some instances, this factor
may justify a full credit, but does not require it.” In re Marriage of Miller, 552
N.W.2d 460, 465 (Iowa Ct. App. 1996). We conclude the district court acted
equitably in affording Fred a credit of only $30,000 for premarital property, given
the length of the marriage and Laura’s sacrifice of her career. At the same time,
Fred was involved with the quarry and business prior to the marriage and brought
the assets of that business to the marriage, entitling him to some credit for those
assets. An offset of $30,000 is reasonable under these circumstances.
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D.
U. S. Bank Account
Fred next contends a checking account at U.S. Bank should have been
assigned a value of $0 because it had a negative balance of $10,000 at the time
of trial. However, the account had a balance of $178,200.17 as of May 1, 2005,
$164,763.09 on June 1, 2005, $107,164.40 on July 1, 2005, and $99,411.70 on
August 1, 2005. By September 30, 2005, the balance had been extinguished.
Among the checks written in the intervening two months were one to Fred’s law
firm for $15,000 and a check to Fred personally for $38,000. The trial began on
September 20, 2005.
Our court has stated that, “some conduct of a spouse which results in the
loss or disposal of property otherwise subject to division at the time of divorce
may be considered in making an equitable division of property.” In re Marriage of
Burgess, 568 N.W.2d 827, 828 (Iowa Ct. App. 1997); see also In re Marriage of
Johnson, 350 N.W.2d 199, 202 (Iowa 1984) (noting the court could not ignore
one party’s unilateral post-separation disposition of assets).
The district court found, “No satisfactory explanation was provided to
explain the change in value.
This drop is particularly troubling given the
respondent’s significant current income. Fairness requires valuing this asset at
its prior level.” In its post-trial order, the court stated:
[The court valued the bank account at $150,000] because the
Respondent had intentionally created an overdraft when there was
no reason to do so in light of his income and other available assets.
The bank account was a marital asset. The Respondent
used the account to pay his current attorney’s fees, fees of his prior
attorney, and alimony to the Petitioner. If the Court accepts
payment of these items with marital property, the Petitioner ends up
in a position of having to contribute towards the Respondent’s
attorney’s fees and her own alimony.
13
Given Fred’s substantial earnings and the timing of the account’s depletion, we
conclude the district court acted equitably in assigning a value of $150,000 to this
account.
E.
2004 Tax Refund
Fred contends the district court acted inequitably in allocating a 2004 tax
refund of $186,000 to him.
Laura counters that Fred consented to this
assignment and he cannot now take a different course.
See McCracken v.
Edward D. Jones & Co., 445 N.W.2d 375, 378-79 (Iowa Ct. App. 1989). We
agree with Laura.
In his statement of requested relief, Fred stated, “if in connection with any
joint federal and state, or separate combined income tax returns filed by the
parties there is a refund, it will be received by Fred.” Additionally, he stated the
parties agreed that the 2004 refund would be applied to his personal 2005 state
and federal income tax returns. This is consistent with his trial testimony:
Q. Fred, are you asking that the 2004 tax refund be applied
to you for the 2005 tax estimates? A. Yes.
Q. Why should you receive that and Laura not be entitled to
any part of it? A. The reason we’re doing that is because
historically we’ve always carried any refunds into the following year.
I worked for that money. Those dollars are used to pay the taxes
on the funds that – the earnings that I made from the previous year.
Fred cannot now complain that the district court allocated the refund to him.
Based on this record, we decline to modify the decree to reallocate the 2004 tax
refund.
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III. Spousal Support
Both parties appeal the court’s award of $5000 per month in alimony for a
term of forty-eight months. Laura requests an increase to $8000 per month for a
period of ten years. Fred requests the elimination of spousal support. In the
alternative, he seeks a reduction of the award to thirty-six months and a
reconfiguration of the property distribution.
Beginning with Fred’s request to eliminate the spousal support award, this
request is inconsistent with his statement of requested relief filed with the district
court. There, he expressed a willingness to pay spousal support for thirty-six
months and made no mention of the theory for elimination of spousal support that
he now espouses. Accordingly, we decline to consider the request. Id.
That brings us to Laura’s request for an increase of the spousal support
award. Given the large property distribution she received, we are not convinced
an enlargement of the support award is warranted.
One of Fred’s experts
testified that, assuming a property settlement of $1.1 million and spousal support
of $60,000 per year, Laura would have approximately $302,004 of annual “aftertax spendable income.” Although the marriage was long and Fred had significant
earnings during the marriage, we believe the property settlement, even without
the modifications set forth in this opinion, allowed Laura to become self-sufficient.
Additionally, the spousal support was sufficient to allow her to acquire the
master’s degree in business or communications that she desired.
See Iowa
Code § 598.21(3)(a)–(c); In re Marriage of O’Rourke, 547 N.W.2d 864, 866 (Iowa
Ct. App. 1996) (stating rehabilitative alimony serves to support an economically
dependent spouse through a limited period of education and retraining).
15
IV. Trial Attorney Fees
The district court awarded Laura $30,000 in trial attorney fees. In a posttrial ruling, the court subtracted from this award the $7500 Fred paid Laura in
temporary attorney fees.
Laura contends she should be awarded the full
$30,000.
An award of attorney fees rests in the sound discretion of the trial court
and will not be disturbed on appeal in the absence of an abuse of discretion. In
re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995).
Fred was ordered to pay $500 in attorney fees as a discovery sanction.
He should not receive a credit for this sum. Therefore, we modify the decree to
deduct $7000 rather than $7500. Fred shall owe $23,000 rather than $22,500.
V. Appellate Attorney Fees
An award of attorney fees on appeal is not a matter of right, but rests
within the discretion of the court. In re Marriage of Gonzalez, 561 N.W.2d 94, 99
(Iowa Ct. App. 1997). Laura prevailed on her challenge to the district court’s
treatment of the note and raised appropriate concerns about the valuation of the
corporation. Fred raised a number of issues on cross-appeal, which Laura was
forced to defend. We order Fred to pay $2500 toward Laura’s appellate attorney
fees.
VI. Summary
We modify the valuation of Becker & Becker Stone Co., Inc. to
$2,664,887. We add the $580,000 land value of the two operating quarries and
buildings to Fred’s assets. This results in an increase of $144,887 from the
district court’s valuation.
We add the $132,000 value of the note to Fred’s
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assets. These modifications result in an additional $276,887 in assets to Fred,
which would result in an additional $138,443.50 equalizing payment to Laura.
This additional sum shall be paid to Laura within six months of the date
procedendo issues in this matter.
We modify the trial attorney fee award to reduce the credit by $500. We
order Fred to pay $2500 toward Laura’s appellate attorney fees. Costs shall be
taxed to Fred.
AFFIRMED AS MODIFIED.
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