Kanaan v. Kanaan

KANAAN_V_KANAAN.91-378; 163 Vt 402; 659 A.2d 128

[Filed 24-Mar-1994]

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press. 


                                 No. 91-378


Hiyam H. Kanaan                                   Supreme Court

                                                  On Appeal from
     v.                                            Windham Family Court

Hisham R. Kanaan                                  September Term, 1994



Robert Grussing III, J.

William M. Dorsch, John D. Shullenberger and Beth A. Danon of Mickenberg,
Dunn, Sirotkin & Dorsch, and Donald E. O'Brien, Burlington, for
plaintiff-appellant 

Ellen Mercer Fallon and Peter F. Langrock of Langrock Sperry & Wool,
Middlebury, for defendant-appellee 


PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Norton, Superior J.,
Specially Assigned 


     DOOLEY, J.  Plaintiff, Hiyam Kanaan, appeals a decision of the Windham
Family Court in the divorce action against her former husband, Hisham Kanaan.
 Plaintiff alleges that the trial court erred: (1) in its findings regarding
the valuation of the parties' individual businesses and their marital home,
(2) in denying plaintiff reimbursement for the couple's joint tax liability,
(3) in failing to enforce the parties' initial separation agreement, and (4)
by permitting defendant to pay plaintiff's equitable settlement award in
installments, thereby decreasing the actual value of that award.   We
conclude that the trial court erred by failing to enforce the parties'
pretrial agreement, and by permitting defendant to pay the equitable
settlement award in installments.  We reverse and remand on both of these
issues.  In all other respects, the decision is affirmed. 

 

                                I.

     Plaintiff first claims that the trial court's factual findings regarding
the valuation of the couple's individual businesses and their marital home
were inadequate.  Specifically, she points to the findings supporting the
court's valuation of her husband's businesses, collectively known as the
Bradley Group; her business, Brattleboro Printing, Inc. (BPI); and the
couple's marital home in Brattleboro.   Plaintiff contends that for each
asset the court's findings were inadequate to support its valuation
conclusions.  We deal with each argument in turn. 

     It is well settled that we will not disturb a trial court's findings of
fact unless they are clearly erroneous.  Semprebon v. Semprebon, 157 Vt. 209,
214, 596 A.2d 361, 363 (1991). The reason the trial court is granted such
wide deference on review is that it is in a unique position to assess the
credibility of the witnesses and the weight of the evidence presented.
Bonanno v. Bonanno, 148 Vt. 248, 250-51, 531 A.2d 602, 603 (1987).  
Consequently, we will uphold the court's valuation conclusions as long as
they are supported by adequate findings, which are in turn supported by
sufficient evidence in the record.  See Goodrich v. Goodrich, 158 Vt. 587,
590, 613 A.2d 203, 205 (1992). 

     Plaintiff's first claim of error relates to the court's valuation of her
husband's businesses. These businesses are collectively known as the Bradley
Group, and are comprised of four separate companies:  C.E. Bradley
Laboratories, Inc., Bradley VanHolm Corporation, Industrial Coatings, Inc.,
and 3-R Realty, Inc.  The trial court heard extensive evidence from four
separate experts regarding how to value this group, and each expert used a
different methodology.  For example, defendant's expert valued the Bradley
group at $735,000 by calculating average earnings over a five-year period and
then multiplying that amount by a projected rate of return. One of
plaintiff's three experts, and the expert upon whom the court most heavily
relied, calculated the worth of the companies by compiling a consolidated
balance sheet, and then adding to this value adjustments which reflected the
difference between the appraised value of certain assets versus their
depreciated value;  he originally estimated the worth of companies at

 

$1,450,000. 

     This expert's calculations, however, did not include the value of 3-R
Realty, and plaintiff introduced testimony from another expert regarding the
valuation of this company.  In addition, C.E. Bradley Laboratories owned
65,000 shares of stock in an insurance company called Verlan, Ltd.  Plaintiff
provided evidence that the value of this stock was $241,000, and that it
needed to be valued separately from C.E. Laboratories.  The court also heard
extensive testimony regarding the impact on the market value of the Bradley
Group of several environmental problems.  Again, each expert provided the
court with varying opinions as to how these environmental liabilities
affected the Bradley Group's value. 

     Faced with all of this conflicting evidence, the trial court concluded
that the Bradley Group should be valued at $1,200,000.   To be sure, it did
not reach this figure by applying a pure mathematical formula.  Instead, the
court used pieces of testimony from certain experts, and adjusted these
figures based on what it considered to be the overall weight of the evidence.
For example, it discounted the evidence on the value of Verlan, Ltd. stock,
finding it not credible, and concluded the value of the stock was minimal. 
Overall, the court placed the most weight on the evidence provided by the
expert who originally valued the company at $1,450,000. The court properly
observed, however, that this expert did not take into consideration the
Bradley Group's full liability for its environmental problems or the value of
3-R Realty.  These offsets, although they pulled in opposite directions, had
the overall effect of reducing the final valuation. 

     As a further means of supporting its conclusion, the court noted that it
gave "considerable weight" to the testimony of defendant's expert, because of
her "expertise, methodology and professionalism;"  this expert testified to a
valuation of $735,000.  When this amount is added to the $146,000 value of
3-R Realty, the total was $971,000, less than the court's final conclusion.
When it considered that figure and balanced it against the higher values from
other experts, along with the defects in the expert opinions, the court found
the $1,200,000 valuation 

 

to be fair and fully supported by the evidence. 

     On appeal, plaintiff claims three errors regarding how the trial court
valued these businesses:  (1) it was error for the court not to identify
specifically the methodology it employed in reaching its valuation
conclusions; (2) the court failed to indicate what amount it assigned to
environmental cleanup costs associated with the defendant's business; and (3)
the court did not include the value of either 3-R Realty or Verlan, Ltd, in
its final valuation. Plaintiff contends that because of these errors, review
of the court's conclusions is impossible, and that predictable, consistent
decision-making is practically abandoned.  See Klein v. Klein, 150 Vt. 466,
473, 555 A.2d 382, 386 (1988) (noting that different judges dealing with same
case should reach essentially the same result). 

     As is often true in the law, and particularly in appellate
decision-making, we are dealing with conflicting principles.  On the one
hand, findings must be adequate to support conclusions. See Andreson v.
Andreson, 145 Vt. 634, 636, 497 A.2d 371, 373 (1985).  Moreover, we will not
speculate as to the basis upon which the court made its findings and reached
its conclusions, where the court's decision does not spell out this basis. 
See McCormick v. McCormick, 150 Vt. 431, 438, 553 A.2d 1098, 1103 (1988); see
also Richard v. Richard, 146 Vt. 286, 287, 501 A.2d 1190, 1190-91 (1985)
("The purpose of findings is to provide a clear statement of what was decided
and why; where no indication appears of the method employed and weight
accorded various factors, remand is necessary.") 

     On the other hand, the court's ability to find a proper valuation is
limited by the evidence put on by the parties and the credibility of that
evidence.  See Klein, 150 Vt. at 471, 555 A.2d  at 385.  The court is not
bound to follow the opinions of expert witnesses, Dreves v. Dreves, 160 Vt.
330, 332, 628 A.2d 558, 560 (1993), a principle that is obvious where the
testimony of experts is in conflict.  Although it is better practice to
specify the subsidiary facts upon which ultimate facts are based, it is not
reversible error to fail to do so.  See Bonanno, 148 Vt. at 251, 531 A.2d  at
604. 

 

     In balancing these conflicting principles, we are particularly
influenced by the difficult task that faced the trial judge in this case. 
Valuation of a closely held business "is never an easy task." Goodrich, 158
Vt. at 590, 613 A.2d  at 205.  We have upheld such a valuation as an exercise
of the trial court's discretion where it was "within the range of the
evidence presented." Semprebon, 157 Vt. at 214, 596 A.2d  at 364. 

     As the trial court emphasized, the evidentiary hearings in this case
were prolonged and hotly contested, consuming 14 days of trial time.  The
valuation of defendant's business was the subject of the testimony of four
different experts, supplemented by the testimony of another expert witness on
the value of 3-R Realty.  The court found none of the experts on overall
value to be fully credible.  There is no mathematical equation that can put
together pieces of opinion evidence from different expert witnesses that can
compute a final valuation.  The task of the court necessarily involved
approximation controlled by judgment and discretion.  The court explained its
thinking as much as the imprecise process allowed.(FN1)  We conclude the
result is within the range of the evidence and is adequately explained. 

     Plaintiff also attacks the court's handling of specific valuation
issues.  Primarily, plaintiff attacks the court's handling of certain
environmental cleanup obligations because it found that they reduced the
value of the Bradley Group but the court did not determine the extent of the
reduction.(FN2)  The court's findings indicated that two environmental
liabilities, one connected with 

 

a superfund site in Massachusetts and the other connected with its
Brattleboro plant, would cost in the neighborhood of $500,000 each to resolve
over some uncertain period of time.  The court found that these obligations
reduced the current value of the Bradley Group, and the expert witnesses did
not fully consider the extent of the reduction. Thus, the court considered
the environmental clean-up costs as one area that made the expert valuations
too high, and took this into account in determining its overall valuation. 
We conclude that this issue cannot be considered apart from the overall
valuation of the Bradley Group.  Having affirmed the methodology for the
overall valuation, we necessarily affirm the court's handling of
environmental cleanup costs. 

     Finally, with respect to defendant's businesses, plaintiff attacks the
failure to value 3-R Realty and stock in Verlan, Ltd., owned by C.E. Bradley
Laboratories.  The court did value 3-R Realty and included it in determining
its valuation of the Bradley Group.  In the face of conflicting testimony, it
declined to give a separate value to the Verlan stock, agreeing with part of
the testimony that the stock was not significant in the valuation of the
Bradley Group.  There is no error. 

     We now turn to plaintiff's claim that the court erred in valuing her
business, Brattleboro Printing, Inc. (BPI).  The trial court heard evidence
from three experts and plaintiff regarding the market value of BPI, and these
opinions ranged from $200,000 to $799,646.  The trial court 

 

stated that it was unable to accept one particular opinion as reflecting the
true value of BPI because each of the opinions were successfully discredited
by cross-examination and other evidence.  Based on its combination and
balancing of the methodologies presented, the trial court concluded that the
market value of BPI was $475,000. 

     Plaintiff's arguments here are similar to those made with respect to the
evaluation of defendant's businesses, and we affirm for the same reasons. 
The court's findings are not clearly erroneous.  Under difficult
circumstances, where the court did not accept the opinion of any one expert,
the court's ultimate valuation is in the range of the evidence and is
adequately explained. 

     In valuing BPI, the court relied heavily on the testimony of one of
plaintiff's two experts. This expert used a discounted future cash flow
analysis to estimate the selling price of BPI. Although the court found this
analysis to be sound, it rejected the expert's discount rate as too high, and
concluded that his deductions for obsolete equipment and a discount for
marketability were inappropriate.  Making adjustments for these factors, the
court estimated that the value of BPI was between $400,000 and $500,000.  In
addition, the court placed particular emphasis on this expert's testimony
that printing businesses like BPI tend to sell for between 50% and 175% of
revenues, and six to ten times operating profit.  The court decided that a
good indicator of value could be derived by multiplying gross sales by 65%,
and by multiplying operating profit by 6.5.  These calculations arrive at a
market value of $475,000.  The court justified its use of smaller factors
because there was evidence that BPI's overall financial health and growth was
declining.  The court also considered the opinion of defendant's expert who
used a weighted- average-of-earnings method to conclude that BPI was worth
nearly $800,000.  The court found that this expert's opinion that BPI would
sell at eight times earnings was not justified given the evidence of BPI's
declining growth rate.  The court concluded that a factor of five times
earnings was more appropriate, and if it used this figure in defendant's
expert's original calculations, the court's earlier conclusion that the value
of BPI was around $500,000 was fully supported. 

     Plaintiff also argues that the trial court abused its discretion by
failing to give greater weight to BPI's June 30, 1990 balance sheet so that
it could value the company as close to the date of trial as possible.  See
Albarelli v. Albarelli, 152 Vt. 46, 48, 564 A.2d 598, 599 (1989) 

 

(marital assets should be valued as close to date of trial as possible).  The
1990 balance sheet was only a partial-year statement, and the court was
justifiably concerned that it might not accurately reflect anticipated
full-year earnings due to seasonal fluctuations and year-end adjustments.
Furthermore, the trial court did factor in the decline in growth and
financial health of BPI as indicated by the 1990 balance sheet when it used
conservative assumptions in calculating the market value of BPI.  Because the
trial court's decision to give little weight to the 1990 balance sheet was
adequately supported and within its broad discretion, plaintiff's argument is
without merit.  See Cleverly v. Cleverly, 147 Vt. 154, 156, 513 A.2d 612, 613
(1986). 

     Plaintiff's last claim of error regarding the alleged inadequacy of the
trial court's findings concerns the court's valuation of the couple's marital
home.  Once again, the court heard significantly conflicting evidence
regarding the value of this asset.  Plaintiff's expert placed the value of
the home at $220,000, whereas defendant's expert valued the home at $300,000.
 The court valued the property at $300,000.  Plaintiff contends that it was
error for the court to rely exclusively on defendant's expert because this
opinion was submitted over a year and a half before the close of evidence,
and was, therefore, "stale."  In addition, plaintiff argues that the court's
determination was erroneous because it failed to consider required repair
costs to the property.  We reject both of these arguments. 

     We agree with plaintiff that as a general proposition, marital assets
should be valued as close to the date of trial as possible.  See Bell v.
Bell, 161 Vt. ___, ___, 643 A.2d 846, 848 (1994); Goodrich, 158 Vt. at 592,
613 A.2d  at 206; Ward v. Ward, 155 Vt. 242, 249, 583 A.2d 577, 582 (1990). 
Contrary to plaintiff's argument, this proposition does not hold that trial
courts are obligated to accept automatically the more recent of two
appraisals.  Our concern is that the court's property disposition decision be
based on a valuation as close to trial as possible.  See Ward, 155 Vt. at
249, 583 A.2d  at 206 (error to value property as of date of separation,
rather than as of date of trial).  We do not intend to restrict what evidence
is admissible, or can be 

 

relied upon, to determine that valuation.  Thus, in Goodrich, we upheld the
use of testimony of a financial expert on the value of a closed corporation,
even though the underlying financial data was two years old, because the
expert also testified that "the ensuing years had brought little change,
except for a slightly lower dividend."  158 Vt. at 592, 613 A.2d at ___. 
Here, the trial court relied on the earlier valuation but considered the
testimony of plaintiff's expert on what had happened to valuation in the
intervening two years.  Its decision to accept the testimony of defendant's
expert was not based on the timing of the report, but instead with its
agreement with the methodology.  The court found the opinion of defendant's
expert to represent "the present market value" of the house. There is no
error because of staleness. 

     Plaintiff's contention that the trial court did not consider stipulated
repair costs is also without merit.   The court specifically stated that it
considered these costs in its final conclusion. It determined, however, that
the tudor-style home belonged to an "executive class," and contained many
unique features, such as cork insulation and leaded-glass windows that
compensated for the property's repair needs.   Because these findings are
supported by the evidence, the trial court's conclusion regarding the value
of the couple's marital home was not clearly erroneous.  See Cleverly, 147
Vt. at 156, 513 A.2d  at 613. 

                                II.

     Plaintiff's next argument alleges that the trial court erroneously
denied plaintiff reimbursement for tax liability incurred by defendant in
1986 and 1987.  Plaintiff contends that this liability was incurred directly
from defendant's corporate earnings, but that plaintiff effectively paid the
liability when the IRS seized her bank account, and when the IRS and the
State of Vermont intercepted her 1989 tax refunds.  Plaintiff maintains that
defendant has failed to pay his share of these taxes, and therefore, she is
entitled to reimbursement.  We disagree. 

     In its order of March 1991, the trial court found that the couple
continued to file joint tax returns for the tax years 1986 and 1987, and
therefore, the tax liability incurred for those years was not solely
defendant's.  The court found that plaintiff's share of the liability was
fully 

 

satisfied, and that all remaining liabilities should be paid by defendant. 
Further, the court was unpersuaded by plaintiff's evidence that the bank
account was earmarked for her sole use and benefit, in large part because it
remained in the name of both parties.  Consequently, it found that the bank
account was a joint asset that could be properly used to pay a joint
obligation. As we stated above, we will not disturb trial court findings
unless they are clearly erroneous. See Semprebon, 157 Vt. at 214, 596 A.2d  at
363.   Because the court's findings are supported by the record and fully
justify its conclusions, the court's refusal to reimburse plaintiff for the
couple's joint tax liability was not error. 

                              III.

     Plaintiff's next claim of error concerns whether the trial court abused
its discretion in failing to enforce the parties' oral agreement that
defendant pay support and maintenance after their separation.  The trial
court found that the parties agreed informally that from the time the parties
separated in August of 1986, defendant would pay plaintiff $4000 per month
for both maintenance and child support.  Defendant's payments pursuant to the
agreement were sporadic, and after April of 1988, defendant ceased making
payments altogether.  In March of 1989, plaintiff filed a Motion for Issuance
of a Temporary Order with respect to support and maintenance, and three
months later, spousal maintenance and child support in the amount of $3000
per month were awarded to plaintiff. 

     Despite the court's finding that the parties had entered into a
maintenance agreement, the court declined to enforce this agreement, and it
denied plaintiff's request that defendant be ordered to pay plaintiff for
maintenance payments in arrears.  The court concluded that because plaintiff
waited nearly a year to institute any action against defendant, and because
it appeared that she was able to meet her household expenses during this
time, no retroactive maintenance or support from defendant was required.  On
appeal, plaintiff argues that the trial court's refusal to enforce the
parties' agreement was error. 

     The court found that there was an informal maintenance agreement between
the parties, 

 

and because this finding is supported by the evidence, it must be upheld. 
See Cleverly, 147 Vt. at 156, 513 A.2d  at 613.  The court's characterization
of this agreement as "informal" does not affect its enforceability.  See 1 S.
Williston, A Treatise on the Law of Contracts  1:16, at 39 (4th ed. 1990)
(no significant differences between formal and informal contracts).  The
parties' pretrial maintenance agreement is a contract, and it can be set
aside only for grounds sufficient to set aside a contract.  See Bendekgey v.
Bendekgey, 154 Vt. 193, 197, 576 A.2d 433, 435 (1990). 

     Absent grounds for modification, see 15 V.S.A.  758, pretrial
contracts may be set aside only upon a showing of fraud, unconscionable
advantage, impossibility of performance, or hampering circumstances
intervening beyond the expectation of the agreeing parties.  See Braine v.
Braine, 127 Vt. 211, 214, 243 A.2d 797, 799 (1968).  Indeed, the record must
demonstrate a compelling reason for the court not to accept the parties'
pretrial agreement.  See Strope v. Strope, 131 Vt. 210, 216, 303 A.2d 805,
809 (1973).  The rationale for this approach is rooted in an important policy
consideration.  It is likely that whatever agreement a couple reaches
together will be preferable to that imposed by a court, which is a stranger
to the marriage.  See White v. White, 141 Vt. 499, 502, 450 A.2d 1108, 1109
(1982). 

     In this case, the court did not offer any legally supportable rationale
for refusing to enforce this contract.  There was no evidence that the
contract was fraudulent, or that it unfairly benefited plaintiff.  The fact
that plaintiff was not unduly burdened by defendant's failure to comply with
the agreement is irrelevant.  If the contract was fair, the fact that
defendant might have negotiated a more advantageous bargain is not a ground
to set aside an otherwise valid agreement.  See Ashcraft v. Ashcraft, 601 N.Y.S.2d 753, 754 (N.Y. App. Div. 1993). 

     Nor can we conclude that any delay on the part of plaintiff in filing
her action against defendant constitutes a forfeiture of her rights.  Laches
does not arise from delay alone, but from delay that works a disadvantage to
another, and defendant has not shown how he was prejudiced by plaintiff's
delay. See Stamato v. Quazzo, 139 Vt. 155, 157, 423 A.2d 1201, 1203 

 

(1980). A laches claim is also unavailing because there is evidence which
demonstrates that plaintiff periodically requested the overdue maintenance.
See Biderman v. Biderman, 568 N.Y.S.2d 760, 761 (N.Y. App. Div. 1991).
Further, plaintiff's delay cannot be construed as a waiver of her rights
because waiver is not created by mere oversight and cannot be inferred from
silence.  See Barringer v. Donahue, 562 N.Y.S.2d 531, 533 (N.Y. App. Div.
1990). Instead, waiver requires proof of a voluntary and intentional
relinquishment of a known and enforceable right. See id.  No such showing has
been made against plaintiff, and it was error for the trial court to refuse
to enforce the parties' agreement on this basis. 

     Our opinion on this issue in no way suggests that oral or informal
pretrial agreements are always the preferred method of settling maintenance
and property distribution matters.  Here, however, where the trial court
found that such an agreement existed, and evidence in the record supports
this finding, the court can refuse to enforce the agreement only for grounds
applicable to contracts generally.  This analytical approach is not novel;
other jurisdictions employ a similar framework for oral and informal
agreements between divorcing spouses.  See, e.g., Brash v. Brash, 551 N.E.2d 523, 526 (Mass. 1990) (oral agreement would have been valid but for its
unconscionability).  We must, therefore, reverse the trial court's refusal to
enforce the parties' pretrial maintenance agreement and remand for
calculation of the arrearage. 

                               IV.

     Finally, plaintiff claims that the trial court improperly ignored the
time value of money when it permitted defendant to pay plaintiff's equitable
settlement award in semi-annual installments over a ten-year period.  In its
order dated March 1991, the court determined that an equal division of the
assets between the parties was proper, and it divided the couple's marital
property 50% to each party.  Because the value of the existing assets decreed
to defendant was significantly higher than those decreed to plaintiff, the
trial court ordered defendant to pay plaintiff $317,000 in lieu of property. 
The court went on to provide that the "sum shall be paid in 20 equal install-
ments of $15,850.00 beginning June 30, 1991, and continuing each and every 

 

six months thereafter until paid in full."  The aggregate amount that
will be paid in installments will be $317,000.  Because the money is to be
paid in installments, however, the present value of the payments will be much
less.  Plaintiff asserts that the actual value of the award is $189,000 and
results in an unequal property distribution despite the court's pronouncement
to the contrary.  Arguing that this internal inconsistency cannot stand, she
urges us to increase the payments to reach a present value of $317,000. 

     If the matter had ended with the initial order, there is no question
that plaintiff is correct. In Williams v. Williams, 158 Vt. 574, 578-79, 613 A.2d 200, 202 (1992), we held that when a party will not receive a fixed sum
until some time in the future, the court must add interest to account for the
lost value over time.  Whatever the current value of the installments the
court ordered, it does not approach the $317,000 needed to produce the
equitable distribution arrived at. 

     The court dealt with the issue, however, in a post-trial order.  In
response to plaintiff's claim that the installments should earn interest, the
court declined to change the order, giving three main reasons for its
actions: (1) defendant does not have the ability to pay the interest
requested in view of the other obligations he faces; (2) an award of interest
would change the maintenance award; and (3) if the division is unequal
without interest, the inequality "is not of such significance that the court
feels it needs to be addressed."  In favor of the court's action, we note
that the trial court is accorded broad discretion to determine what
constitutes an equitable division of the marital property. See Semprebon, 157
Vt. at 215, 596 A.2d  at 364. Although the result must be equitable, equal
division of marital property is not required.  See Goodrich, 158 Vt. at 593,
613 A.2d  at 206. 

     The court's discretion is not unlimited, however, and we have required
that findings provide a clear description of what was decided and why.  See
Dreves v. Dreves, 160 Vt. 330, 333, 628 A.2d 558, 560 (1993).  In this case,
we are unable to accept the explanations the court gave for upholding the
original award.  Although the court was not required to make an equal

 

distribution of property, it clearly stated it was doing so.  Its failure to
account for the time value of money makes the final award much less
advantageous to plaintiff.  With $100,000 or more at stake, we cannot call
the issue insignificant as the trial court did.  Plaintiff is not required to
show a "need" for money necessary to bring about the equal division of
property the court awarded. 

     Further, if the main concern was defendant's ability to pay, the court
could have restructured the payments to respond.  Finally, even if there is
an effect on maintenance, plaintiff by this appeal has agreed to open the
maintenance decree to consideration of that effect. 

     Because of the error with respect to the installment payments, we
reverse the property award, and reopen the maintenance award, for further
proceedings to respond to the error. 

     Reversed and remanded for proceedings not inconsistent with this opinion.



                              __________________________________________
                              John A. Dooley, Associate Justice


-----------------------------------------------------------------------------
                               Footnotes


FN1.  We have considered, but have not separately discussed in the text,
plaintiff's argument that the court erred in not considering the intermixing
of defendant's personal affairs with those of his corporations.  The
interconnections were well-known and were disclosed on the books of the
Bradley Group corporations.  Thus, they were considered by the expert
witnesses.  We do not believe that the court was required to give them
special consideration since it based its valuation on the expert testimony. 


FN2.  Plaintiff also attacks the valuation of the superfund liability because
C.E. Bradley Laboratories has taken a $672,456 tax deduction for the
anticipated cleanup costs.  Plaintiff argues that since Bradley has already
deducted the liability from its income, it would be a "double deduction" to
now reduce its valuation because of the liability.  As explained in the text,
the court's treatment of this issue related to the valuation done by the
expert witnesses.  The effect of tax deduction was considered by the
witnesses.  The court found, however, that the witnesses understated the
Bradley Group's liability for the superfund and Brattleboro cleanup
obligations.  The effect is not a "double deduction" as suggested by
plaintiff.  The tax treatment reduced Bradley's tax obligation and increased
its profitability, but the obligations themselves were a long-term cost that
reduced valuation.  The experts properly considered the positive effect on
valuation without adequately considering the negative effect.