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BUNDSCHUH v. BUNDSCHUH


BUNDSCHUH v. BUNDSCHUH

(unpublished)


JUNE 16, 1998
Record No. 2574-97-1

MARY BETH BUNDSCHUH

v.

WILLIAM P. BUNDSCHUH

MEMORANDUM OPINION[1]
BY JUDGE RICHARD S. BRAY
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

Edward W. Hanson, Jr., Judge
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

Irene Sutton (Law Offices of Charles Hofheimer, P.C., on
briefs), for appellant.

Gregory K. Pugh (Bobby W. Davis, on brief), for appellee.


In the decree of divorce between Mary Beth Bundschuh (wife)
and William P. Bundschuh (husband), the trial court, inter
alia, affirmed the report of the commissioner in chancery
which valued husband’s stock in a medical practice at
"zero." Wife appeals, arguing that the court
erroneously relied upon the terms of the corporate bylaws to
ascertain the worth of husband’s interest. We disagree and affirm
the decree.

The parties are fully conversant with the record and this
memorandum opinion recites only those facts necessary to
disposition of the appeal.

Under familiar principles, "we construe the evidence in
the light most favorable to husband, the prevailing party below,
granting to him all reasonable inferences fairly deducible
therefrom." Rogers v. Yourshaw, 18 Va. App. 816, 818,
448 S.E.2d 884, 885 (1994) (citation omitted). "In all
divorce cases in which equitable distribution issues are
presented, fashioning the decree is left largely to the
discretion of the trial court as empowered and instructed by Code
Sect. 20?107.3." McClanahan v. McClanahan, 19
Va. App. 399, 400, 451 S.E.2d 691, 692 (1994) (citation omitted).
Absent an abuse of discretion, a departure from the mandate of
statute, or findings unsupported by the record, the chancellor’s
award will not be reversed on appeal. Id. at 401, 451
S.E.2d at 692. "The burden is upon the party appealing to
point out the error in the decree and to show how and why it is
wrong," and "[t]he decree stands until that burden has
been met." Kaufman v. Kaufman, 7 Va. App. 488, 499,
375 S.E.2d 374, 380 (1988) (citation omitted).

The instant proceedings for divorce and equitable distribution
were referred to a commissioner in chancery for hearing and
report to the court. The value of husband’s stock in Julius J.
Snyder, M.D. & Associates, an incorporated anesthesiology
practice, was a substantial issue between the parties. The
evidence disclosed that husband’s shares in the corporation were
subject to a provision in the bylaws which established a
formulaic "purchase or redemption price." Wife’s
expert, David P. Miller, testified that this approach to value
was inapplicable and opted, instead, for the "capitalization
of excess earnings" method, assigning a worth of $218,443 to
husband’s interest. In contrast, husband’s expert, H. Leon
Hodges, deferred to the bylaws and, accordingly, found that the
husband’s stock was without value.

After acknowledging during the evidentiary hearing that he
"d[id not] have to follow the value set up in the buy?sell
agreement," the commissioner, nevertheless, concluded that
"the parties are bound by the terms of the corporation’s
buy/sell agreement which restricts the amounts of money to be
paid to a withdrawing stockholder" and fixed "the value
of husband’s interest [at] zero." Wife excepted, and,
following a related hearing, the court noted that "each
[expert] gave plausible testimony as to valuation," but
reminded counsel that "it was up to the commissioner to make
a determination as to the
credibility . . . and weight to be placed
upon their testimony." Finding that the commissioner
properly "made a determination based upon the
evidence," the court affirmed the report.

On appeal, wife contends that "[b]ecause neither expert
valued the practice under the other expert’s set of assumptions,
this appeal does not present a . . . question of
fact," but, rather, an issue of law arising from the
erroneous premise that value was controlled by the formula
prescribed in the bylaws. In support of her argument, wife relies
upon Bosserman v. Bosserman, 9 Va. App. 1, 384 S.E.2d 104
(1989). In Bosserman, we held that "the sale price
set by restrictive provisions on transfer" of stock was
"not conclusive as to the value." Id. at 7, 384
S.E.2d at 108. However, we recognized that such covenants
affected value through impaired marketability and "must be
considered when a trial court determines the value of stock for
purposes of equitable distribution." Id. Indeed,
quoting Bosserman, wife correctly acknowledges on brief
that "a buy?sell agreement might be controlling in a
particular case, if the agreement properly reflects ‘the actual
value of the stock to the shareholder.’" 9 Va. App. at 7,
384 S.E.2d at 108.

Here, husband’s expert testified that he regarded the
agreement as the predominate factor in valuation, while wife’s
expert admitted that his approach did not "take into
consideration the buy?sell agreement at all." In weighing
this testimony, the record reflects that the commissioner
considered the disparate approaches to value and other relevant
evidence in determining the husband’s stock to be worthless, a
factual analysis consistent with Bosserman. On review, the
trial court found that the commissioner had properly balanced the
evidence, including the credibility of witnesses, in reaching a
factual finding and confirmed and incorporated the report in the
final decree. Thus, the record clearly reflects the resolution of
a factual dispute in accordance with controlling principles of
law.

"While the report of a commissioner in chancery does not
carry the weight of a jury’s verdict, Code Sect. 8.01?610, it
should be sustained unless the trial court concludes that the
commissioner’s findings are not supported by the evidence.

This rule applies with particular force to a commissioner’s
findings of fact based upon evidence taken in his presence . . .
."

Jones v. Jones, 26 Va. App. 689, 694?95, 496 S.E.2d
150, 153 (1998) (citation omitted). "Once the trial court
has resolved conflicting evidence as to value and determined
value, the decision whether to make a monetary award and the
amount of the award is governed by the rights and equities of the
parties and the factors designated in Code
Sect. 20?107.3(E)." Bosserman, 9 Va. App. at 5,
384 S.E.2d at 107 (citations omitted). "We will not disturb
the trial court’s finding of the value of an asset unless the
finding is plainly wrong or unsupported by the evidence." Schooltz
v. Schooltz
, 27 Va. App. 264, 275, ___ S.E.2d ___, ___ (1998)
(citations omitted).

The instant record discloses conflicting evidence of value in
the opinions and related testimony of two expert witnesses. The
factual predicates for both conclusions were before the
commissioner and court and properly considered, together with
other pertinent evidence, in finding that husband’s stock had no
value, a determination supported by the record which will not be
disturbed on appeal.

Accordingly, we affirm the decree.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17?116.010 this opinion is not designated for
publication.

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