McCabe v. McCabe

*463JOHNSON, Judge,

concurring and dissenting:

My review of the entire record in this case and the briefs of the respective parties leads me to conclude that the orders from which these consolidated appeals have been taken should be affirmed in all respects.

I join the majority in finding that the award relating to alimony, alimony pendente lite, counsel fees and costs is entirely sound and well within the discretion vested in the trial judge. I depart from my colleagues on the issue of the valuation of the partnership interest in the law firm.

We are bound by an abuse of discretion standard of review in determining the propriety of property distribution. We will not usurp the trial court’s duty as factfinder nor will we adopt guidelines or presumptions in addition to those set forth by the legislature. King v. King, 332 Pa.Super. 526, 529-30, 481 A.2d 913, 914-15 (1984).

The trial court found that the partnership agreement, upon which appellant relies, did not reflect appellant’s true interest in the firm of Rawle & Henderson. I agree with this conclusion. Appellant did not take exception to the trial court’s finding that the provisions of the agreement for determining the value of a partner’s interest had not significantly changed since 1963. Nor is there any dispute that the only valuations directly calculable from the terms of the agreement are the value of a partner’s interest (1) at death, (2) at withdrawal on 90-days’ notice, and (3) at withdrawal on less than 90-days’ notice.

The trial court correctly determined that none of these three situations were relevant to the matters before it, where appellant remains with the firm as an ongoing concern, enjoying the benefits of a part owner far in excess of what he would enjoy if he were to retire.

I find nothing in the Divorce Code to authorize or even to permit this court to speculate about what a party might do in the future, in determining the value of a marital asset for purposes of equitable distribution. In this case, the court had the benefit of the testimony of a certified public ac*464countant specializing in the evaluation of professional practices. He was found to be competent to testify as an expert regarding economic issues such as evaluation of a professional practice.

Appellant took no exception to the expert’s qualifications, but rather argues on appeal that the expert’s testimony should have been rejected as “superficial” and incomplete. My review of the record, and particularly the testimony of the wife’s expert, Stanton L. Meltzer, and that of appellant, J. Grant McCabe, III, persuades me that there is sufficient competent evidence in the record to support a finding of $286,276 as being a reasonable valuation of appellant’s interest in the partnership as of the date of separation.

The distinguished trial judge, the Honorable Paul W. Tressler, is to be commended for recognizing that the Rawle & Henderson partnership agreement did not take into consideration the factors necessary for an accurate valuation of the partner’s interest and consequently had to be disregarded. The wife’s valuation properly included partnership accounts receivable, accounts payable, work in progress, inventory and capital accounts. The expert made what the trial court found to be reasonable adjustments in those areas where appellant and his law firm had not provided sufficient data to permit a precise calculation as of the date of separation. I can find no fault with this procedure.

While it may be true, as my colleagues state, that the valuation of an intangible, partnership interest may be full of difficulties and the subject of much debate, we still must return to the narrow question of whether an abuse of discretion arises where inadequate testimony from one party is rejected and the trial court fashions an award from the remaining evidence as submitted by an expert.

The majority asserts that it has been clearly established in this case that appellant cannot realize the value assigned for his partnership interest by the wife’s expert. I must respectfully disagree. Appellant has neither retired nor withdrawn from the firm, on the record before us. I find *465nothing in the record to dispute the value as a going concern placed upon the partnership by the wife’s expert. A trial judge is not expected to look ten years down the road to guess about what a party’s interest might be in the future, based on varying assumptions.

The trial judge’s role is to take the evidence presented in the record and decide each case on the established facts contained therein. I believe our role, as a reviewing court, is to ascertain whether this obligation of the trial judge has been met. I find no fault with the extremely meticulous and exhaustive disposition of Judge Tressler. I therefore would affirm both orders.

CAVANAUGH, MONTEMURO and TAMILIA, JJ., join.