COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judges Baker and Annunziata
Argued at Alexandria, Virginia
THOMAS C. SHOOLTZ
v. Record No. 2205-96-4
JANE HOFFMAN SHOOLTZ OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
JANE HOFFMAN SHOOLTZ APRIL 28, 1998
v. Record No. 2209-96-4
THOMAS C. SHOOLTZ
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jack B. Stevens, Judge
William M. Baskin, Jr. (Southy E. Walton;
Baskin, Jackson & Hansbarger, P.C., on
briefs) for Thomas C. Shooltz.
David H. Fletcher (Martin A. Gannon; Gannon,
Cottrell & Ward, P.C., on briefs) for Jane
Hoffman Shooltz.
Jane H. Shooltz (wife) and Thomas C. Shooltz (husband) both
appeal the equitable distribution order of the trial court. Wife
contends the trial court erroneously valued the husband's two
businesses, erroneously reduced the monetary award based on tax
consequences to husband, and erroneously refused to reopen the
equitable distribution hearing to take further evidence on the
business valuation issue. Husband contends the trial court
erroneously counted a single asset twice in its equitable
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
distribution award. For the reasons which follow, we reverse.
I. Motion to Reopen Hearing
The parties were married in September 1976, and separated in
August 1993. Husband filed for divorce in December 1993, and
wife responded with a cross-bill for divorce. The trial court
referred the matter to a commissioner in chancery, who
recommended a divorce based on the separation of the parties for
more than one year.
The circuit court held an equitable distribution hearing on
September 15 and 17, 1994, during which evidence was taken on the
value of the husband's two start-up businesses, Gateway II
Limited Liability Corporation ("Gateway II") and Highland Limited
Partnership ("Highland"). The trial court granted husband's
motion to strike as speculative the valuation testimony of the
wife's expert in which he determined the present value of the
businesses' future earnings based largely, not on historical
earnings, which did not exist, but on husband's income
projections.
The parties submitted written memoranda on November 3, 1994.
On January 22, 1996, sixteen months after the evidentiary
hearing, the trial court rendered its decision by letter opinion.
Upon husband's Motion to Reconsider, in which he asked the court
to reduce the monetary award made to wife in its January 22, 1996
letter opinion, the trial court reduced the monetary award by
letter opinion issued on May 20, 1996.
2
The matter had been held within the breast of the court for
nearly twenty months, during which time husband's businesses had
begun operations. The wife thereafter moved for reconsideration,
asking, inter alia, that the court revalue the husband's
interests in Gateway II and Highland. Wife argued that during
the court's delay in reaching a decision, Gateway II had begun
operations and that sufficient historical earnings were now
available to warrant the application of the wife's expert's
methodology for valuation. Wife's expert testified that, as of
the hearing, Gateway II and Highland were earning profits, which
were substantially consistent with the projections on which he
had relied to project Highland's and Gateway II's future
earnings.
In denying wife's motion to reopen the equitable
distribution hearing to revalue the marital estate in 1996, the
court concluded that it lacked the discretionary power under the
provisions of Code § 20-107.3(A) to value the businesses as of a
date other than that of the equitable distribution hearing. We
disagree.
Motions to reopen a hearing to take further evidence are
matters within the court's discretion. See Kirn v. Bembury, 163
Va. 891, 900-01, 178 S.E. 53, 56 (1935) ("Such motions are
addressed to the sound discretion of the court . . . . Usually,
such motions are based upon error apparent on the face of the
record, or for the purpose of introducing after-discovered
3
evidence."); Rowe v. Rowe, 24 Va. App. 123, 144, 480 S.E.2d 760,
770 (1997) (citing Morris v. Morris, 3 Va. App. 303, 307, 349
S.E.2d 661, 663 (1986)). 1
In the present case, the trial court declined to exercise
its discretion to reopen the hearing on the value of the
husband's businesses after a sixteen-month delay in bringing the
equitable distribution issue to closure and notwithstanding the
wife's proffer that the circumstances had substantially changed.
In denying the motion to reopen, the court erroneously concluded
that the provisions of Code § 20-107.3(A) abrogated the court's
discretionary power and confined its review of the issue to the
2
date of the initial evidentiary hearing.
1
In addition to considering newly discovered evidence and
legal error as the primary bases for the exercise of discretion
in reopening a hearing, see, e.g., Wells Fargo Alarm Servs., Inc.
v. Virginia Employment Comm'n, 24 Va. App. 377, 386, 482 S.E.2d
841, 845 (1997); Hughes v. Gentry, 18 Va. App. 318, 326, 443
S.E.2d 448, 453 (1994) (citing Holmes v. Holmes, 7 Va. App. 472,
482, 375 S.E.2d 387, 393 (1987)), Virginia courts have also
included among the factors to be applied in the analysis whether
a party seeking rehearing had "ample opportunity to present
evidence" at the initial hearing, see, e.g., Old Dominion Elec.
Coop. v. Virginia Elec. & Power Co., 237 Va. 385, 395, 377 S.E.2d
422, 428 (1989); Rowe, 24 Va. App. at 144, 480 S.E.2d at 770
(citing Morris, 3 Va. App. at 307, 349 S.E.2d at 663); whether
the moving party's request to take additional evidence was
timely, Rowe, 24 Va. App. at 144, 480 S.E.2d at 770; whether the
moving party asserted the claim requiring rehearing at the
initial hearing, Brown v. Brown ex. rel. Beacham, 244 Va. 319,
324, 422 S.E.2d 375, 378 (1992); Dietz v. Dietz, 17 Va. App. 203,
217, 436 S.E.2d 463, 472 (1993); and whether the grant of a
motion to reopen a hearing would cause prejudice, delay,
confusion, inconvenience, surprise or injustice to the opposing
party. Old Dominion, 237 Va. at 397, 337 S.E.2d at 429; Fink v.
Huggins Gas & Oil Co., 203 Va. 86, 91, 122 S.E.2d 539, 543
(1961).
2
In its current form, Code § 20-107.3(A) provides in
4
Prior to its amendment in 1988, Code § 20-107.3 did not fix
a valuation date, and the trial court chose a valuation date if
the parties could not agree to one. See Mitchell v. Mitchell, 4
Va. App. 113, 118, 355 S.E.2d 18, 21 (1987); see also Clements v.
Clements, 10 Va. App. 580, 584 n.4, 397 S.E.2d 257, 259 n.4
(1990) (explaining the 1988 amendment). In Mitchell, 4 Va. App.
at 118, 355 S.E.2d at 21, a pre-amendment case, this Court held
that the trial court should generally value assets as of the date
of the evidentiary hearing and not as of the date of separation,
because "the date of trial will usually be the most current and
accurate value available."
Following the 1988 statutory amendment, we held in Gaynor v.
Hird, 11 Va. App. 588, 593 n.1, 400 S.E.2d 788, 791 n.1 (1991),
that "the 1988 amendments to Code § 20-107.3(A) codified the rule
announced in Mitchell." The adoption of the statutory rule
fixing the evidentiary hearing as the presumptively proper date
for valuation of property did not, however, change the
fundamental policy objectives which underlie it, viz., that, in
the interest of just and fair results, the trial court should use
relevant part:
The court shall determine the value of any
such property [of the parties] as of the date
of the evidentiary hearing on the evaluation
issue. Upon motion of either party made no
less than twenty-one days before the
evidentiary hearing the court may, for good
cause shown, in order to attain the ends of
justice, order that a different valuation
date be used.
5
a valuation date which is most likely to provide the court with
the most current and accurate information available. We do not
interpret the amendment to Code § 20-107.3 to preclude this
objective, and we find nothing in its provisions which supports
the conclusion that the court's inherent authority to reopen a
hearing to take additional evidence, including more current
evidence, has been curtailed by this statutory provision. 3
Accordingly, we find that the trial court erred in
concluding that Code § 20-107.3(A) barred it from reopening the
hearing on the valuation of assets. The trial court's error of
law with respect to its discretion to reopen the hearing was
itself an abuse of discretion. As the Supreme Court has
recognized, a trial court "by definition abuses its discretion
when it makes an error of law." Koon v. United States, 116
S. Ct. 2035, 2047 (1996). Accordingly, we reverse and remand the
case for the trial court to consider the issue of reopening the
hearing in light of the relevant factors which govern its
4
exercise of discretion.
3
Where, in the exercise of its discretion, the court
concludes a reopening of the hearing to take more current
evidence is warranted, it follows that the valuation date is the
date of the reopened evidentiary hearing.
4
We note that, on remand, the trial court retains the
discretion to refuse to reopen the hearing on the valuation of
assets, subject only to our possible later review for an abuse of
that discretion. In the current appeal, we hold only that the
trial court erred in concluding it had no such discretion. We
make no comment on how the trial court should exercise that
discretion on remand.
6
We address below the remaining claims of error regarding the
valuation of husband's businesses as they may arise again in the
course of the proceedings on remand.
II.
Admissibility of Expert Business Valuation Testimony
Wife appeals the valuation of two businesses developed by
husband with marital funds: Gateway II, a family amusement
center, and Highland, a mini-storage facility. Both parties
presented the expert testimony of accountants at the equitable
distribution hearing. At the time of the hearing, Highland had
applied for building permits but had not begun construction,
which husband's accountant stated would take a year. Gateway II
had completed most of the development process and was scheduled
to open for business in approximately six weeks, on December 1,
1994.
Applying the "net assets value" method of valuation,
husband's expert testified that Gateway II was largely financed
by debt, except for an amount husband personally invested in the
project, totalling $49,144. Applying the net assets value
method, husband's expert concluded that Gateway II had no value.
He acknowledged, however, that Gateway II could be considered to
have a value of $49,000, the amount of husband's personal
investment not financed by loans. When asked how long Gateway II
would have to be in operation before he could value the business
using an income-based valuation method, husband's expert
7
responded, "I guess you could get some indications after -- after
a year."
Husband's expert testified that the Highland investment
property was worth the same amount as its debt and, therefore,
had no value. He also opined that years would pass before
Highland would have a positive cash flow.
Wife's expert placed a value on Gateway II and Highland by
determining the present value of the projected future earnings of
the businesses. The expert arrived at the present value of the
projected future earnings by evaluating payments to husband from
his partners, the history of the projects, and projections of
earnings developed by husband. Wife's expert calculated the
present value of Gateway II's projected future earnings to be
$1,381,303 and the present value of Highland's projected future
earnings to be $1,982,958.
The court granted husband's motion to strike wife's evidence
of the value of Gateway II and Highland. The court concluded, "I
don't think it's the law that you can get somebody to get on the
stand and project earnings of a company that has done no
business, has no record of income. That's pure speculation.
Couldn't be more pure."
On January 22, 1996, the trial court issued an opinion
letter dividing the assets between the parties. The court later
determined that the opinion letter contained clerical errors and
issued a corrected opinion letter, also dated January 22, 1996.
8
In the opinion letter, the court valued Gateway II at $49,144 and
Highland at $0.
A. Motion to Strike Expert Testimony
The trial court struck wife's expert's opinion of the value
of Gateway II and Highland because the expert's projections and
opinion testimony were overly speculative and, by implication,
unreliable. 5 Based on the evidence presented to the court at
trial, we find no error in this ruling. 6
The fundamental infirmity in the testimony of wife's expert
is that the effort failed to establish the propriety of
application of the "discounted future earnings" method to
determine the value of a business which is on the threshold of
beginning operations and which has no historical earnings and
failed to establish that such methodology would render accurate
results. "Expert testimony is admissible in civil cases to
assist the trier of fact, if the evidence meets certain
fundamental requirements, including the requirement that it be
5
Husband and wife both refer to the methodology of wife's
expert as the "capitalization of earnings" method. Strictly
speaking, wife's expert used the "discounted future earnings"
method, in which projected future income is given a present
value, rather than the "capitalization of earnings" method, in
which one year's earnings are multiplied by a capitalization
rate. See Alan S. Zipp, Divorce: Valuation, Tax, and Financial
Strategies 20-21 (Tax Advisors Planning Series 1995) (explaining
methods of valuation). Both methods rely on the expectation of
future earnings to determine the value of a business.
6
This conclusion is based solely on the evidence presented
at trial. We voice no opinion with respect to the admissibility
of the evidence upon rehearing.
9
based on an adequate foundation." Tarmac Mid-Atlantic, Inc. v.
Smiley Block Co., 250 Va. 161, 166, 458 S.E.2d 462, 465 (1995)
(citing, inter alia, Lawson v. Doe, 239 Va. 477, 482-83, 391
S.E.2d 333, 336 (1990)). When a litigant claims that a
particular scientific, technical or other specialized theory or
technique is valid, there must be some basis for determining the
validity of the proffered theory or technique. Satcher v.
Commonwealth, 244 Va. 220, 244, 421 S.E.2d 821, 835 (1992)
("'Wide discretion must be vested in the trial court to
determine, when unfamiliar scientific evidence is offered,
whether the evidence is so inherently unreliable that a lay jury
must be shielded from it, or whether it is of such character that
the jury may safely be left to determine the credibility for
itself.'" (quoting Spencer v. Commonwealth, 240 Va. 78, 98, 393
S.E.2d 609, 621 (1990))). Where the expert's conclusion rests on
sound methodology and theory, the conclusion is admissible. See
Code § 8.01-401.3. 7
In the present case, wife failed to produce any evidence to
establish the validity of her expert's methodology in the context
7
Code § 8.01-401.3(A) provides:
In a civil proceeding, if scientific,
technical, or other specialized knowledge
will assist the trier of fact to understand
the evidence or determine a fact in issue, a
witness qualified as an expert by knowledge,
skill, experience, training, or education may
testify thereto in the form of an opinion or
otherwise.
10
of this case. Indeed, the only evidence in the case on this
issue was presented by husband's expert, who testified that
valuation methods which depend on earnings, such as the
discounted future earnings method, are never used for the
valuation of a business with no operating history. This opinion
remained wholly unrebutted by wife. While we recognize that
"'[t]he court may not refuse or fail to give parties a reasonable
opportunity to develop and present evidence of value,'" Gottlieb
v. Gottlieb, 19 Va. App. 77, 93 n.6, 448 S.E.2d 666, 675-76 n.6
(1994) (quoting Bowers v. Bowers, 4 Va. App. 610, 618, 359 S.E.2d
546, 551 (1987)), in the absence of a proper foundation for the
opinion proffered by wife's expert, the court did not abuse its
discretion in striking the testimony. See Satcher, 244 Va. at
244, 421 S.E.2d at 835.
B. Valuation of Highland
Wife also challenges the trial court's valuation of
Highland, contending the court used inconsistent methods in
valuing Highland and Gateway II. We disagree that the trial
court's reasoning was inconsistent. We will not disturb a trial
court's finding of the value of an asset unless the finding is
plainly wrong or unsupported by the evidence. Rowe, 24 Va. App.
at 140, 480 S.E.2d at 768; Traylor v. Traylor, 19 Va. App. 761,
763-64, 454 S.E.2d 744, 746 (1995).
Husband's expert testified that Highland owned a piece of
property worth $1,150,000; the debt on the property equalled the
11
asset's value. The expert, therefore, concluded that Highland
had no net asset value because its debt matched the value of its
assets. Husband's expert acknowledged that husband had invested
$49,144 in Gateway II and initially stated that Gateway II had no
value. He later changed his view and stated that the value of
Gateway II was $49,000 because $49,000 of the value of Gateway II
was not financed by debt.
Wife argues that the trial court determined that Highland
had no value based on its net asset value but valued Gateway II
according to husband's capital contributions. Starting from this
premise, wife contends the court should have valued Highland at
husband's capital contribution of $968,084, which she calls its
"book value." 8 The book value and adjusted book value methods of
valuation require a court to value a business at the net value of
assets and liabilities, which is precisely what the trial court
did in valuing both Highland and Gateway II. McDavid v. McDavid,
19 Va. App. 406, 414-15, 451 S.E.2d 713, 719 (1994) (explaining
that fair market value of assets is appropriate to value a real
estate holding company); Bosserman v. Bosserman, 9 Va. App. 1, 8,
384 S.E.2d 104, 109 (1989) ("[V]aluation based upon the
8
The "book value" of a business refers to assets and
liabilities at their actual historical cost, no matter what the
current value of the assets and liabilities might be. The
"adjusted book value" of a business adjusts the book value to
reflect the current value of each asset and liability. Zipp,
supra, at 19-20. The trial court purported to value Highland and
Gateway II according to book value, although husband's expert
testified to the current, rather than historical, value of the
business assets and liabilities.
12
corporation's net assets has gained wide acceptance in cases
where the corporation is a real estate holding company."); see
also Goldberg v. Goldberg, 626 A.2d 1062, 1066 (Md. Ct. Spec.
App. 1993) ("[A]djusted historical cost . . . appears an entirely
appropriate way to evaluate . . . interests in newly formed
companies without any earning or profit history . . . ."); In re
Marriage of Bors, 839 P.2d 272, 273 (Or. Ct. App. 1992) ("[B]ook
value is an appropriate technique to value a corporation that has
just been formed."). Neither book value nor adjusted book value,
however, requires the court to value a business according to
capital contributions without reference to liabilities.
Wife's premise that the trial court valued Gateway II
according to husband's capital contributions is without merit.
Although husband contributed $49,144 to Gateway II, the court
considered that contribution because it represented the portion
of Gateway II not financed by debt, and thus constituted a net
asset. We find that the trial court did not use inconsistent
valuation methods to determine the value of the two businesses.
III.
Reduction in Marital Award
With respect to the potential tax liabilities to be
addressed by the parties, wife's expert testified at the
equitable distribution hearing that the parties had approximately
$1,220,000 in suspended passive tax loss and $334,000 in
carried-over investment interest. The expert testified that the
13
parties could apply the approximately $1,555,000 in suspended
passive losses and investment interest to offset income or
capital gains for a tax benefit of $518,000. The husband's
expert did not testify about the tax loss at the equitable
distribution hearing.
Six months after the equitable distribution hearing, husband
moved for permission to liquidate marital assets to pay
approximately $100,000 in taxes. According to husband's
attorney, the taxes arose from the husband's sale of stock as
well as margin calls on the parties' margin account. Husband
testified that, after the equitable distribution hearing, he sold
$750,000 of stock in a Charles Schwab margin account to generate
$250,000 to retire a debt acquired during the marriage in
conjunction with husband's investment in a partnership called
Birch's Crossroads. Husband thereafter filed a motion to reduce
the value of the marital estate by the amount of tax liability
incurred as a result of husband's court-approved sale of stock.
Granting the motion to reopen the hearing on this issue, the
court took further evidence on the potential tax consequences
faced by the parties as a result of the equitable distribution of
their property. Husband maintained that the June 1995 sale of
stock had generated an additional $307,000 in tax liability. In
response to wife's expert's testimony that husband had $374,803
of tax benefits from $1,135,766 in passive losses which he could
use to offset the tax liability, husband's expert stated that
14
most of the tax loss could not be used to offset tax liability
because the tax loss from the defunct partnership named Birch's
Crossroads would have to be reduced by husband's negative capital
account in that partnership before the loss could be applied to
offset other gains. Both experts relied on tax forecasts because
the tax returns had not yet been filed.
The trial court ruled that any passive losses from Birch's
Crossroads would have to be offset by the gains and income from
Birch's Crossroads before the losses could be used to offset any
other income. The court reduced the award from husband to wife
from $200,000 to $50,000. The difference reflected husband's
additional approximate tax liability of $307,000. 9
Code § 20-107.3(E) requires a trial court to consider the
"tax consequences to each party" in fashioning an equitable
distribution award. The primary conflict in the testimony over
the parties' tax liabilities was whether husband could apply his
accumulated passive losses to offset capital gains from the sale
of stock. In its opinion letter of May 20, 1996, the trial court
determined that the testimony of husband's expert with regard to
tax consequences was more persuasive than that of wife's expert,
and ordered that the award to wife be reduced from $200,000 to
$50,000 to account for husband's tax liabilities. Wife contends
9
During the hearing, husband's expert revised his opinion of
husband's tax liability from $307,000 to $242,434. Wife does not
argue that the court should have based its award on $242,000
rather than $307,000.
15
the court's determination of the parties' tax liabilities was
erroneous because husband's tax consequences were speculative,
were the result of husband's unilateral actions, and were offset
by accumulated passive losses.
We find that the trial court did not abuse its discretion in
considering the tax consequences of the distribution of assets
based on tax returns which had not yet been filed. After hearing
testimony and receiving memoranda on the tax consequences of the
disposition of assets, the trial court found: "I don't see that
there is anything artificial or made up in this. These are real
life taxes that have to be paid." This finding is supported by
the record, and we will not disturb it on appeal. In Arbuckle v.
Arbuckle, 22 Va. App. 362, 366, 470 S.E.2d 146, 148 (1996),
relied upon by wife, we disapproved consideration of tax
consequences based on a hypothetical sale of an asset. The
present case involves actual dispositions of assets. In
Arbuckle, we stated: "Every capital asset has a value basis and,
thus, a potential liability for capital gain tax upon sale. That
potential liability is a proper consideration in the
determination of a property division and an award, if not
speculative." 22 Va. App. at 367, 470 S.E.2d at 148; see also
Barnes v. Barnes, 16 Va. App. 98, 106, 428 S.E.2d 294, 300 (1993)
(approving consideration of capital gains tax in equitable
distribution).
The trial court in its discretion approved the sale of
16
stock, which generated part of the capital gains liability,
because the proceeds of the sale reduced marital debt.
Furthermore, wife knew of husband's settlement of marital debt
which created an additional capital gains liability. Finally,
the sale of stock due to margin calls created the remainder of
the tax liability. Wife's claim that the tax consequences for
which husband sought relief resulted from his unilateral action
was properly rejected by the trial court. Husband's action was
not unilateral but was undertaken with the knowledge of wife and
the court.
We also reject wife's contention that accumulated passive
losses would offset the tax liabilities. "Where experts offer
conflicting testimony, it is within the discretion of the trial
judge to select either opinion." Rowe, 24 Va. App. at 140, 480
S.E.2d at 768. The trial court considered the testimony and
memoranda of both parties' experts on tax strategies and
consequences and accepted the husband's position. This
conclusion was firmly grounded in tax law, 26 U.S.C.
§ 469(g)(1)(A), and was a proper exercise of the trial court's
discretion.
IV.
Distribution of $220,000 Reimbursement
At the equitable distribution hearing, both experts
testified that husband's partner in the development of Highland
had agreed to reimburse him up to $220,000 for expenses incurred
17
in conjunction with the development of Highland. As of the date
of the hearing, husband had incurred $147,000 in reimbursable
expenses. Before the court reached its decision, it held a
subsequent hearing on January 20, 1995, at which husband updated
the court on his financial affairs. Husband testified he had
received $220,000 in reimbursement for Highland development
expenses in December 1994 or January 1995. In its accounting of
the assets subject to equitable distribution, the court included
$147,500 as a "Highland L.P. Loan Receivable," the amount due to
be reimbursed as of the date of the equitable distribution
hearing, and considered this amount when fashioning the award to
wife. However, in fashioning the award, the court did not
consider husband's receipt of the additional $72,500 in full
payment of the $220,000 due him for Highland development
expenses.
At a hearing on August 9, 1996, the trial court stated that
it had not previously considered the reimbursement when making
the equitable distribution award. Although the earlier testimony
established that husband had received $220,000, husband and both
attorneys became confused as to the amount of the reimbursement,
and husband testified that he had received only $200,000 in
reimbursement. The trial court increased its award to wife by
$100,000, one-half of the amount supposedly reimbursed by
husband's partner in Highland.
This Court will not disturb an equitable distribution award
18
"unless it is plainly wrong and without evidence to support it."
Srinivasan v. Srinivasan, 10 Va. App. 728, 732, 396 S.E.2d 675,
678 (1990). The trial court's $100,000 adjustment in the award
was a factual error and plainly contrary to the evidence. The
trial court mistakenly incorporated the $220,000 reimbursement in
its award twice: once as $147,500, and a second time as
$200,000. The credible evidence established that the total
reimbursement was $220,000, but the trial court accounted for
$347,500 of reimbursement ($147,500 plus $200,000). Rather than
increasing the award to wife by $100,000 as one-half of $200,000,
the trial court should have increased the award by $36,250 as
one-half of the unaccounted-for $72,500, to bring the total
reimbursement for Highland expenses to $220,000.
For the reasons stated, this case is reversed and remanded
for further proceedings consistent with this opinion.
Reversed and remanded.
19