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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: MARK SMALL Indianapolis, Indiana

ATTORNEY FOR APPELLEE: DAWN E. WELLMAN Allen Wellman McNew, LLP Greenfield, Indiana

FILED
of the supreme court, court of appeals and tax court

Jul 22 2009, 10:10 am

IN THE COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF: DIANNA LYNN GEYER,1 Appellant-Respondent, vs. ROBERT G. GEYER, JR., Appellee-Petitioner. ) ) ) ) ) ) ) ) ) )

CLERK

No. 33A01-0902-CV-95

APPEAL FROM THE HENRY SUPERIOR COURT The Honorable Michael D. Peyton, Judge Cause No. 33D01-0705-DR-88

July 22, 2009

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
The documents before us contain a discrepancy regarding the spelling of Appellant's name. We have chosen to use Dianna, based upon her name as it appears on her income tax return. Appellee's App. at 29.
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Case Summary Dianna Lynn Geyer ("Wife") appeals the trial court's property settlement order entered as part of the dissolution of her marriage to Robert G. Geyer, Jr. ("Husband"). We affirm. Issues Wife raises the following issues for review: I. Did the trial court err in accepting Husband's expert's valuation of the personal and enterprise goodwill of Husband's business? Did the trial court abuse its discretion in dividing the marital estate equally? Facts and Procedural History Husband and Wife were married on July 19, 1974. They had one son, Glynn, born in 1989. They separated on May 18, 2007. On May 22, 2007, Husband filed a dissolution petition. At the May 5, 2008 final hearing, the trial court noted the issues upon which the parties agreed, and the parties presented evidence on the disputed issues. On November 10, 2008, the trial court issued findings of fact, conclusions thereon, and a final decree of dissolution. On December 5, 2008, Wife filed a motion to correct error or, in the alternative, a motion to reconsider. The trial court denied Wife's motion on January 7, 2009. This appeal ensued. Additional facts will be provided as necessary. Discussion and Decision I. Valuation of Husband's Business

II.

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Wife asserts that the trial court erred in valuing Husband's business. The trial court entered extensive findings of facts and conclusions thereon. In such cases, we first "determine whether evidence supports the findings and then whether the findings support the judgment." Carpenter v. Carpenter, 891 N.E.2d 587, 592 (Ind. Ct. App. 2008). We will reverse only if the findings or judgment are clearly erroneous, meaning that a review of the record "leaves us firmly convinced that a mistake has been made." Id. (citation and quotation marks omitted). Specifically, Wife contends that the trial court erred by accepting Husband's expert's figures on the goodwill value of Husband's tax preparation business. "A trial court has broad discretion in ascertaining the value of property in a dissolution action, and its valuation will not be disturbed absent an abuse of that discretion." Nowels v. Nowels, 836 N.E.2d 481, 485 (Ind. Ct. App. 2005). The trial court has not abused its discretion if its chosen valuation is supported by sufficient evidence and the reasonable inferences drawn from it. Id. Even when the circumstances would support a different award, we will not substitute our judgment for that of the trial court. Id. Here, the trial court decreed that "Husband shall have as his sole and separate property ... [a]ll interest he has in [the] H & R Block/Geyer Tax Practice, Inc." Appellant's App. at 18. After hearing evidence from each party's expert regarding the valuation of Husband's business, the trial court made the following findings: 20. Husband purchased the [H & R Block] tax practice in 1994 for $100,000.00. The seller of the company worked for Husband for a period of one (1) year after the purchase.

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21. Robert Schlegel of Houlihan Valuations did a summary report of the value of H & R Block Tax Services owned by [Husband] and found personal goodwill, current assets, fixed assets and liabilities to total approximately $110,000.00. 22. Troy Patton, CPA, testified as Wife's expert and placed a value of $242,000.00 on Husband's business. xx. [sic] The Court finds that the testimony of Robert Schlegel is more credible than that of Troy Patton and that the valuation of [Husband's] business should be based upon the appraisal of Robert Schlegel. Id. at 13. Essentially, Wife's challenge involves the distinction between personal goodwill and enterprise goodwill. The portion of a business's goodwill attributable to the skill, training, or reputation of the owner as an individual--the personal goodwill--is not includable as a divisible marital asset. Yoon v. Yoon, 711 N.E.2d 1265, 1268-70 (Ind. 1999). Conversely, the portion of the goodwill attributable to the name recognition, location, and reputation of the business itself--the enterprise goodwill--is properly includable as a divisible marital asset. Id. Husband's expert testified that the goodwill value of the business was approximately $144,000.00. Appellee's App. at 11. He attributed roughly half to personal goodwill and half to the H & R Block enterprise. Id. Thus, he reduced the business valuation by approximately $72,000.00. Id. Wife challenges the expert's valuation based on: (1) the strong name recognition of H & R Block as an enterprise; and (2) the existence of a noncompete contract between Husband and H & R Block. See McCart v. H & R Block, 470 N.E.2d 756, 763 (Ind. Ct. App. 1984) (noting that strong customer recognition of Block name

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gave Block a protectable property interest justifying a reasonable covenant not to compete), trans. denied (1985). In support of her argument that Husband's expert attributed excessive value to Husband's personal goodwill, Wife also cites the transient nature of the community and the ensuing higher than normal client turnover rate. In doing so, Wife essentially asks that we reweigh evidence, which we may not do. The trial court heard extensive testimony regarding the experience, certification, and methods of each expert. The record supports the trial court's findings. Husband's expert is employed with a national business valuation firm and has authored publications and taught workshops in the field. Appellee's App. at 1, 50-52. He has received distinguished designations in his field, being accredited as a senior appraiser and master certified business appraiser. Id. He personally met with Husband twice, toured the facilities, and used comparisons of Husband's four-year distributionary earnings with those of sixty-seven similarly situated tax businesses in arriving at his assessment of personal and enterprise goodwill. Id. at 5-15, 53-55, 60-65. In apportioning goodwill, he considered seven factors, including fixed business assets, Husband's personal skills and relationships, and the extent to which sales depended on his skills and relationships. Id. at 11. Of the seven factors, he found five to weigh in favor of personal goodwill. Id. Interestingly, the record indicates that Wife had initially agreed to hire him as her own expert but sought another expert when his valuation proved too low. Tr. at 118-19. In contrast, the record indicates that Wife's expert enjoys no such specific certifications as a business appraiser. Id. at 109. Instead, he is a CPA with only eighteen

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percent of his business consisting of business valuations. Id. In reaching his conclusions, he neither went to the business location nor met with Husband. Id. at 109-10. In sum, the record supports the trial court's findings regarding the relative credibility of these experts. As such, we find no abuse of discretion in its decision to accept Husband's expert's figures in valuing Husband's business. II. Equal Division of Property Wife contends that the trial court abused its discretion by dividing the marital estate equally. We review a challenge to the trial court's division of marital property for abuse of discretion. Goodman v. Goodman, 754 N.E.2d 595, 599 (Ind. Ct. App. 2001). We will reverse only if its judgment is clearly against the logic and effect of the facts and the reasonable inferences to be drawn from those facts. Id. We neither reweigh evidence nor judge witness credibility; rather, we consider only the evidence favorable to the trial court's disposition of the property. Hendricks v. Hendricks, 784 N.E.2d 1024, 1027 (Ind. Ct. App. 2003). Even if facts and reasonable inferences might allow for a different conclusion, we will not substitute our judgment for that of the trial court. Id. Indiana Code Section 31-15-7-4 provides that the trial court shall divide the property in a just and reasonable manner. An equal division of marital property is presumed to be just and reasonable. Ind. Code

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