(concurring and dissenting):
I concur in the award to the plaintiff of $463,000 representing one-half of the value of her husband’s stock in Argyle Ranch, Inc. I respectfully dissent, however, from the trial court’s order with regard to the payment of that amount to the plaintiff. The defendant was ordered to pay $100,000 within six months and the balance over a fifteen-year period with interest on the unpaid balance at the rate of 10 percent per annum. I find nothing in the record to indicate that the court took any evidence as to the defendant’s ability to borrow the $100,000. It is undisputed that he did not have $100,000 in liquid assets. The genesis for the court’s order apparently was the plaintiff’s proposal that he pay $150,000 down. This proposal appears to have been made without any supporting evidence by the plaintiff. The corporation is a family ranching operation in one of the rural counties of this state. Most of the assets of the corporation are mortgaged. The defendant could only pledge his stock, which is not a majority interest. I believe that before an order of such magnitude is made, some evidence should appear that the defendant has the borrowing capacity to meet the court’s order. This burden of proof rests with the plaintiff and should not be shifted to the defendant as the majority opinion advocates.
Recently, in Berry v. Berry, Utah, 635 P.2d 68 (1981), we reversed a trial court’s order which, in a similar situation, ordered the husband to purchase the wife’s interest that had been awarded her in a farming partnership composed of the husband and two of his uncles. He was ordered to pay her $42,000 over a ten-year period with 12 percent interest on the unpaid balance. We affirmed the award of a portion of the husband’s interest in the partnership to her, but held that it would be inequitable to require him to purchase that interest from her when he lacked the financial capacity to do so. The same problem is presented in the instant case where it is of greater concern because of the sizable amount involved. I would remand the case to the trial court to provide a proper evidentiary basis for its order of payment.
I also dissent from the award to the plaintiff of interest at the rate of 10 percent per annum on the unpaid balance owing her. While 10 percent may be a reasonable rate in many contexts, there was not the slightest bit of evidence or indication that it was reasonable under these circumstances. The corporation’s income tax returns for recent years, which were introduced in evidence, showed that its taxable income ranged from $3,200 in the lowest year to $32,000 in its highest year. It thus appears that the corporation was realizing a return on the value of its assets much less than 10 percent. The court’s order regarding interest is inequitable to the defendant because it requires him to pay a much higher return to the plaintiff on the value of her stock than the defendant is receiving on the use of that stock. After payment of the $100,000 down, the defendant in the following year would be *473obligated to pay $36,300 interest on the balance of $363,000. This interest obligation would amount to $3,025 per month. Even the plaintiff does not contend that defendant’s monthly income approaches that amount. It can readily be seen that by the time the unpaid balance has been paid in full, the defendant’s obligation for interest will have been sizable. The rate of interest should have been made commensurate with the return the defendant will realize on the use of the plaintiff’s stock. Pope v. Pope, Utah, 589 P.2d 752 (1978), cited in the majority opinion, involved only the payment of $25,000, together with interest at 10 percent per annum on the unpaid balance, by the husband to the wife to equalize the property division. The husband was awarded the income-producing assets of the parties, and presumably those assets were providing a 10 percent return. The situation in the instant case of an award of $463,000 to the plaintiff for her interest in a corporation owning low-yielding rural grazing and agricultural land is entirely different.
STEWART, J., concurs in the concurring and dissenting opinion of HOWE, J. ZIMMERMAN, J., does not participate herein.