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Champion v. Champion3/19/2002
Essex.
January 16, 2001.
Divorce and Separation, Division of property, Modification of judgment. Value.
Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on April 25, 1996.
The case was heard by Edward J. Rockett, J., and a complaint for modification, filed on November 4, 1997, was also heard by him.
This matter comes to us on cross appeals from an amended judgment of divorce nisi and an amended judgment on a complaint for modification. Both parties assert that the trial judge erred in his valuation of the sole proprietorship of the former husband (Gary), and in determining the amount of support awarded the former wife (Joyce). We affirm the judgments.
1. The Amended Judgment of Divorce .
We recite the facts found by the judge that are relevant to the division of the parties' assets and the order for alimony and child support . The evidence will be related where necessary to the discussion of the various issues.
Married in 1978, the parties separated in 1995. They have shared custody of their only child, a son born in 1983, since the time of their separation. At the time of their divorce , Gary was forty-eight years of age, in good health, and operated his own telecommunications business, Champion Resources. Joyce is two years younger than Gary. She had worked as a bookkeeper for Champion Resources but was unemployed at the time of the divorce. Notwithstanding her health problems, the judge found that she was able to work twenty to twenty-five hours a week.
Finding that Joyce had less opportunity than Gary to acquire future capital assets and income, the judge awarded her fifty-three percent of the marital estate. The assets were valued and assigned as follows. Gary was awarded the marital home and assumed its mortgage ($81,514 equity); received sole ownership of Champion Resources ($54,000), his boat ($10,000), and his 1991 car ($8,500); and gave a secured four year, four percent note payable to Joyce ($26,523.68) for total net assets of $127,490.32. Joyce was assigned the parties' condominium and assumed its mortgage ($39,732 equity); received sole ownership of their individual retirement accounts ($76,010), and her 1985 car ($1,500); and held the aforementioned note from Gary for total net assets of $143,765.68. The judge also ordered that Gary pay Joyce $656 a week for her support ($328) and that of their child ($328).
2. Value of the Sole Proprietorship.
There was evidence to show that Gary, as owner and operator of Champion Resources, sold and installed new and used telecommunication equipment. His expert witness, a business appraiser and accountant, opined that Champion Resources had a value of $54,000. He arrived at that figure by subtracting the business's liabilities from its inventory and receivables and making certain minor adjustments. The expert stated that he did not value the goodwill of Champion Resources because, in his opinion, any goodwill was personal to Gary and could not be transferred. The judge accepted the testimony of Gary's expert witness and put a value of $54,000 on Champion Resources.
Gary does not dispute the obvious fact that Champion Resources was a sole proprietorship. See, e.g., Ladd v. Scudder Kemper Invs., Inc., 433 Mass. 240, 243 (2001). Instead, he claims that because Champion Resources was worth more to him as a stream of income rather than any amount for which he might have sold the business, he would not willingly sell Champion Resources no matter the sale price it might fetch. It is on this basis that he insists that Champion Resources should have been valued as worth
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