Property Valuation and Professional Goodwill in Tennessee Divorce: Eberting v. Eberting

Facts: The parties were divorced after a 14-year marriage. After a trial, the trial court awarded Wife a divorce, distributed the marital property, entered a Permanent Parenting Plan, awarded Wife transitional alimony, and awarded Wife attorney’s fees as alimony in solido. Husband appealed the trial court’s valuation of Husband’s orthodontic practice, its failure to adopt a parenting plan that provided “equal time” with the children, and the amount of attorney’s fees awarded to Wife.

On Appeal: The Court of Appeals affirmed the trial court.

Value of Orthodontic Practice. At trial, Wife’s expert valued Husband’s orthodontic practice at $700,000, of which $269,000 were “hard assets” with the remainder being “implied goodwill.” Husband’s expert valued the practice at $224,000, which was only based on the tangible assets. The trial court ruled:

The basic rationale, however, in the cases disallowing goodwill as a component of the estate in valuing a professional practice results from the inequity in compelling a professional practitioner to pay a spouse a share of an intangible asset at a judicially determined value that could not be realized by a sale or another method of liquidating value. . . . The Court finds and concludes that the value of the practice lies between $224,000 and $700,000. The husband himself, prior to the divorce, consistently stated the value of the practice, of which he now holds one hundred percent of the interest, to be $500,000 in his personal financial statements. There is certainly nothing unfair to the husband in rejecting the value of $224,000, which he himself would reject, and adopting the husband’s own value of $500,000, with which this Court agrees.

While agreeing that “professional good will is not a marital asset which would be accounted for in making an equitable distribution of the marital estate,” the Court noted that

[e]vidence also was presented showing the values that Husband had assigned to his practice on Husband’s recent financial statements. Furthermore, we note that the value assigned to the practice by Husband’s expert witness was less than what Husband paid for the practice years prior to moving the practice into a state-of-the-art location built specifically for the practice with state-of-the-art equipment purchased since Husband purchased the practice.

Considering the values that Husband himself had applied to his practice, and Husband’s own testimony that he would be upset if he were to sell the practice and receive only the value assigned by his expert, the Court found the trial court’s valuation to be within the range of values presented by the evidence and, therefore, it was affirmed.

Failure to Adopt “Equal Time” Parenting Plan. Husband claimed the trial court erred in failing to adopt his parenting plan because, Husband argued, “[t]here was no proof that an allowance of equal co-parenting time with the parties was not in the best interest of the children.” The Court disagreed, noting these findings from the trial court:

The evidence establishes, without dispute, that the mother has been a devoted, attentive mother to the fullest with no competing interest or distraction. While working more hours than the father, the mother has been the primary caretaker for the children. Throughout the marriage, the mother permitted no interest to compete with her duties as a wife and mother.

On the other hand, the father, while active in his children’s lives, had several interests in conflict with his parenting of the children. The father has devoted time and energy to running and training for marathons, flying lessons, musical interests, service clubs, professional organizations, e-mailing, and sexual activity. The father has also rekindled his interest in participating in the theater.

The Court held the evidence did not preponderate against the trial court’s detailed findings, commenting as follows:

Husband has on several occasions since the separation exercised extremely poor judgment with regard to the Children. Most notably were the two instances when Husband left the Children alone in a vehicle at night in a public parking lot. We shudder to think what type of harm might have come to these very young children in those circumstances if the wrong person had happened upon them. As already discussed, the record reveals numerous other instances where Husband put his own desires above the wants and needs of the Children.

Award of Attorney’s Fees to Wife as Alimony in Solido. Although Wife incurred attorney’s fees and costs of $277,000, the trial court awarded her $150,000 as alimony in solido. On appeal, Husband argued the attorney’s fees requested by Wife were excessive because they included charges for four attorneys and Wife’s valuation expert. Husband suggested $75,000 as a more appropriate amount.

Applying the abuse of discretion standard of review, the Court found the trial court’s

decision was within the range of acceptable alternative dispositions. At a minimum, reasonable minds could disagree as to the propriety of the Trial Court’s decision, the very essence of a discretionary decision. We find no abuse of discretion in the Trial Court’s award to Wife of a portion, but not all, of her attorney’s fees and expenses as alimony in solido.

Eberting v. Eberting (Tennessee Court of Appeals, Eastern Section, February 27, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.

Posted by

K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

Leave a Comment