*1 obvious, claim, belaboring I unnecessary to address Without would Clause only note Third New Interna- issue. Webster’s raised as to this arguments (1986) Dictionary tional includes in its affirmed. judgment “investigation” the terms definition of “de- searching inquiry ... ... tailed examination JONES, J., concurs. was, probe.” investigation Such an official TURSI*, J., dissents. statute, expressly prohibited, under thus, sustain the its results cannot FPPA’s TURSI*, dissenting. Judge, action. respectfully I dissent. jurisdiction may Inasmuch as be raised at 1980, Pension Asso- the Fire and Police anytime, jurisdiction it is clear that the of the (FPPA) occupa- plaintiff an ciation awarded properly placed FPPA to act was before the disability pension. Fifteen

tional retirement authority trial court. None of the relied later, years it obtained based on information upon by the FPPA and the trial court in- FPPA termi- plaintiffs employer, challenges jurisdiction of the volved pension. nated that above, FPPA to act. as discussed The FPPA is a creature of statute and its position investiga- of the FPPA was in its powers and limitations are contained investigation, tion not in fact an was 31-31-101, statutes, seq., § et C.R.S. organic apply. therefore the time bar not did jurisdiction of FPPA to review 1997. The Therefore, judgment I would reverse years §by awards barred after 5 31-31- of the trial court and remand the matter to 803(4)(b), C.R.S.1997,which reads: in- the trial court for further remand with authority to in- The board shall have the plaintiffs pension. structions to reinstate disability vestigate claims for retirement application benefits at the time of initial subsequent to

for benefits or an award eligibility

benefits in to determine or order

continuing eligibility for such benefits. appoint investigators

The board shall such necessary personnel

and other investiga- carry No out function. tion a member who has been awarded a Mary OF In re the MARRIAGE disability pursued retirement shall be if BANNING, Appellee, Ann years elapsed more than has since five award, added) (emphasis date emphasized language makes it indis- Banning, Appellant. L. Charles Assembly putably obvious that the General FPPA investi- intended that the No. 97CA0256. gate years than five benefit awards more Appeals, Court of Colorado after the date award. Div. III. Here, however, it cannot be that 15 denied award, years pursued after the the board 23, July 1998. Indeed, investigation plaintiffs award. 20, Rehearing Aug. Denied 1998. that, as the FPPA’s own evidence established plaintiffs part of its and review of research 25, Jan. 1999. Certiorari Denied records, inquiry plaintiffs it had sent an letter of employer. the FPPA’s Specifically, 16, 1995, plain- on sought

March information

tiffs duties.

* 24-51-1105, Sitting by § C.R.S.1997. assignment Chief Justice Const, VI, 5(3), provisions Sec. art. of the Colo.

,290

291 Bloom, P.C., he Bloom, that the amount used was the Charles S. &

Osborn Collins, reasonably paid sum that would to all Appellee. Fort directors, just officers and and not to hus- Dickson, P.C., Charles Dickson Thus, there is no basis for husband’s band. Stehlik, Dickson, Greeley, for Greeley; John *3 of his contention that the valuation Appellant. monthly earnings. upon was based his by Judge TURSI.* Opinion Further, specific findings, we even without action, marriage this dissolution of presume upon that the trial court relied (husband) appeals from Banning when, stated, Charles L. testimony accepted as it it concerning valuation of permanent orders the expert. Mar- opinion of wife’s See In re maintenance to and the award of (Colo.1989). his business Udis, 780 P.2d 499 of (wife). Mary Banning affirm. Ann We that, by capitaliz

Husband to I. excess income in order arrive at a corporation, value for the court’s order marital is a The division of requires him to use future after-tax of resting the sound discretion matter within pay equalization note awarded to wife. court, ruling not be trial and its will argument has been considered by supported disturbed on review when court, by reject of this another division Marriage competent evidence. In re of Bookout, Marriage ed. See In re of Bookout, (Colo.App.1991), cert. 833 P.2d 800 contrary, capitalization of excess To the granted, 846 P.2d improvidently denied as valuing a earnings method of valuation avoids (Colo.1993). post-divorce of earn business on the basis ings profits. Marriage In re See A. Huff, supra. that the trial court Husband first asserts valuing Corporation, the TAM a erred majority owner. business in he was the which persuaded. are not

We trial court Husband also contends that the erred, initial valuation increasing owned its The valuation of a business $37,996 by question by a of fact to be a confessed corporation offset by $40,000 resolved the trial court as fact-finder. mathematical error. We generally method is a The excess trial court found post-trial In its resolving that accepted method for issue. that, corpo- valuation of the husband’s in its (Colo. Marriage Huff, 834 P.2d 244 re ration, tangible assets it had not included 1992). It found that those assets business. the trial court found that $37,996, finding at and that were valued expert, performed valuation which expert. husband’s own supported determined a income that would reasonable directors of the paid to the officers and Further, contrary char to husband’s as excess corporation and treated balance acterization, dispose the trial court did than earnings, or retained was more realistic sepa tangible corporation assets of the performed by expert. the valuation Rather, it rately from assets. ad the other This determination within it justed corporation the value of the because court’s discretion. value of the had failed to include the of value. in its initial determination assets the basis for expert Wife’s as to testified explained Accordingly, we find no error. capitalization his He also rate.

* 24-51-1105, § Sitting by C.R.S.1997. assignment Justice of the Chief Const, 5(3), VI, provisions Sec. art. the Colo.

c. wife, inequitable to who also contributed to marriage, ignore the value of that separately argues generally as a marital asset. See finding erred in his existed in Zipp, Divorce Valuation Business Inter- persuaded. business. are not We Capitalization Earnings ests: A Ap- Husband’s concedes under Colorado (1989). Hence, proach, L.Q. 23 Fam. precedent, though may subject even it not be trial court valuing did not err dividing sale, goodwill professional can exist a marital asset at and, exist, practice it it when does can be the time the was dissolved. valued and divided as a marital asset. See Marriage Huff, supra; In re In re Mar- *4 II. Bookout, supra. husband distinguish seeks to and Bookout on the Huff Husband that asserts the trial court failed basis that in neither case did the trial court to make findings sufficient to support the spouse find that the could earn the same determinations that wife was entitled to income participation without continued in the maintenance permanent and that an award of business, ongoing was the issue nor raised. maintenance appropriate. was We contrast, In the agreed trial court in this case business, that husband could disband his The trial court has broad discretion in clients, serving start a new business his determining the amount and duration of make the same income. Fisher, maintenance. In Marriage re 931 argues P.2d (Colo.App.1996). Husband that there can be 558 good no Corporation will in TAM that would be vend- specifically the court found essence, able to purchaser. argues he that the wife lacked property sufficient to earnings that when the spouse of a are de- meet her reasonable needs and is unable to solely rived spouse’s from the own skill and support through appropriate herself employ reputation, and those would not be Thus, ment. precise made the any way by affected in leaving the business finding necessary predicate that is a to an in which spouse working, goodwill the no award of maintenance. business, ongoing exists in the or at least none that is of spouse. value to the Furthermore, the trial court found that the parties years, were married for 24 that wife attempt to distinguish the Husband’s spent early years the marriage raising holdings in persua and Bookout is not Huff children, parties’ two during and that sive. The mere fact that husband could marriage wife had obtained a bachelor’s de- business, existing leave the and start again gree in fine arts divinity as well as a master’s name, location, with a different or even busi degree. post-trial In its the court ness impact structure without on his earn elaborated that it entered order for de- ings does not goodwill mean that no exists of creasing support amounts of give to wife a value spouse. business, Even in a new period provide in which to a home for her husband would retain reputation, his his cus daughter, 1997, graduate who was to May in base, relations, tomer and his customer all of to make a regarding decision employment, developed which were during marriage. and to training. obtain additional It also Nichols, Marriage See In re Colo.App. 43 found that testimony speculative re- 383, (1979). 606 P.2d 1314 together These garding ability degrees to utilize her goodwill constitute supplements, and is earn income. from, distinct earning capacity. Bookout, See In Marriage re The record supports findings. these that, addition, We therefore even though conclude the record shows that wife’s month- husband’s earnings ly not be affected would needs approximately amounted to $7000 business, his leaving and husband testified that would be a $4000 existed at the time that was of dissolution reasonable amount per of maintenance developed during marriage. It would be month. BRIGGS, specially concurring.

Also, Judge re is not because a before property his or her to consume quired I conclusions reached concur maintenance, Mar see In re being entitled separately explain what majority. I write Sewell, (Colo.App.1991), 817 P.2d 594 riage of fallacy argu- as the in husband’s perceive I had insuffi finding that wife the trial court’s income ment that future valued needs to meet her reasonable cient from that income when should be subtracted to show that it considered is sufficient maintenance. I calculating child that wife receive would why, despite pres- explain also write recog Finally, we equalization note. while commonly this case of ence in dis order that the trial court’s written nize being pur- overvalued for results before the award maintenance cusses dissolution, poses of I nevertheless persuaded property, we are not disposition affirming the trial court’s valuation. concur of the issues establishes that the order mainte actually court determined I. determining appropriate prior to nance Further, contrary to the rea- the order property division. Marriage Huff, P.2d eigh soning first in In re decreasing over the maintenance (Colo.1992), as the use the excess payment months of as well teen *5 valuing goodwill not avoid the it consid method of does post-trial order shows that court’s ered, dipping.” “double No matter the fact was custodian of part, in wife .that used, Therefore, of valuation it does not find no error what method is a minor child. we of being change the nature of the asset valued. or of maintenance. in the amount duration represents in- potential still future Goodwill Hence, according argu- to husband’s come. ment, of is valued and portion if a income asset, the mainte- currently also contends that divided as along with implemented potential nance when from portion must be subtracted unconscionable, division, ineq- property calculating is income when maintenance future uitable, Otherwise, oppressive and to him. We the other support. child and based on spouse receives “double credit” undisputed, and husband income. the same testified, earning that he be had been so argument at first blush is not without The $200,000 $300,000 year per and for the tween appeal. supreme court in some Huff prior entry of the three-year period reasoning Zipp, Divorce Val- relied on the Accordingly, does not the evidence decree. Capitaliza- A Business Interests: uation of payment to wife support the contention that L.Q. Earnings Approach, Fam. tion of four-year over a of her share of (1989). article, recognized regard- As impoverish period would husband. valuation, being what is less of the method Furthermore, assertion that he in terms is “the value the business valued on a necessarily must use after-tax dollars earnings.” produce future potential itsof monthly satisfy promissory note basis supra, at 92. Zipp, by record. payable supported to wife is not However, supreme from the fact the aside Nevertheless, stated that it excess express approval in court’s Huff the income tax ramifications had considered binding on is earnings method valuation ordered, and and payments of the transfers court, argu- reasoning in husband’s they equitable found were fallacy than that relies on no less a ment totality of the evidence. reasoning Husband’s claimed for Huff. participating spouse argument assumes Judgment affirmed. at disso- the time of the

purchasing lution, purchase price paid with the out Judge PLANK concurs. case, it income. If that then future were BRIGGS, might participating spouse follow that Judge specially concurs. pay purchase should not have to for the out marital while at the pay- same time and, time, ing support of future child income at same treat and maintenance should of ignored. course not be the same income as purposes available for no reason exists to subtract those calculating when cal- support child and maintenance. culating the That, child however, maintenance is not the case. paid. to be valuation, earnings excess method of ones, like other similar relies on &fictional II. fact, purchase goodwill. and sale of at the Husband also even if the time of dissolution the to be valued goodwill in his subject business is to valua- already divided has been accumulated. asset, tion and division as a marital asset, It existing intangible is an no different accepting court erred in the value calculated other fully marital asset that expert. wife’s argument, For this hus- owned. band does not challenge the use of the excess illustrate, To assume husband and wife Rather, method of valuation. hus- during acquired their had a house challenges band the use expert assets, tangible and other including furniture average a fictitious worker to business, equipment used in the valued determine the supposed amount of husband’s $600,000,plus goodwill at in husband’s busi- earnings. husband, excess According to be- $200,000. ness valued at A approach ignored trial court seek- cause this husband’s actual experience abilities, could, to divide the equally expert marital assets necessari- $400,000 ly example, $600,- earning undervalued his capacity distribute and over- goodwill. valued tangible 000 in assets to wife. The balance assets, including the business view, my overvaluation is a common equipment, furniture and could be distribut- problem when the excess earnings method is *6 husband, ed to together goodwill. with the used to goodwill value purposes of mar- Each would have received marital assets of problem dissolution. The arises when equal value. a point critical is overlooked: “Good will for marital purposes is substantively case, In such a goodwill while the value of good different from will for business sale intangible as an may business asset lie in its purposes.” Zipp, supra, at 106. ability income, produce future the same Among the differences is that the value of can be said of the assets used in the goodwill inherent spouse in the participating business. calculating When child in the depends completely on what maintenance, there would be no more happens spouse to that in the future. This part reason subtract that at- presents greater a risk than typically pres- tributable goodwill than there would ent purchaser for the goodwill ongo- in an be to part subtract of income attribut- addition, business. goodwill as an able to other business asset. asset is inherent in the participating The when, rationale change does not immediately begin will diminishing in here, goodwill the value of and other assets upon value the marriage dissolution. All fu- assigned to husband in dividing prop- marital ture income post-dissolution created ef- erty exceeds the value of assigned assets forts must be eliminated from the valuation. circumstances, wife. In these husband generally See Zipp, supra; Udinsky, see also well be required to make out of his Putting Goodwill, a Value on Fam. Adv. 37 wife, future income to but he is “purchas- not (Fall 1986). ing” good will in the sense of purchasing differences, As a result of these and other Rather, additional marital asset. hus- the formulas commonly providing used for band must make the future payments in or- capitalization rate to determine the value of der to equal achieve the desired division of goodwill in a business being going sold as a already marital fully assets owned. concern, provided such as that by the Inter- ability Husband’s financial pay- Service, make nal Revenue often need modification. necessary ments to balance the division Those modifications will result higher in a rate, valua- and thus lower capitalization Udinsky, Zipp, supra; generally

tion. See

supra. model for expert used the IRS ongoing business

valuing in an business. in husband’s

to value any modifica- expert did hot consider unique nature of the to reflect

tions inherently to husband. attached

Hence, have overvalued expert may well goodwill.

husband’s argument ap- on sole husband’s expert improperly used

peal is that wife’s average worker in hus- wage

fictitious of an to calculate excess

band’s field of business argument is

earnings. with the average salary fictitious

that use of a

necessarily only when no erroneous. It is

adjustment capitalization in the is later made partici-

rate to reflect the actual skills may arise. See

pating spouse problems Hence,

generally light Zipp, us, I

limited issue before concur with

majority rejecting challenge to goodwill in his business.

the valuation of the INSURANCE

MIDWEST MUTUAL

COMPANY, Plaintiff-Appellee,

v. and Pamela

Dina Marie MURRY

Roland, Defendants, Company,

Progressive Insurance

Defendant-Appellee, Anthony Hospital, Defendant-

St.

Appellant.

No. 97CA0523. Appeals,

Colorado Court

Div. V. 3, 1998.

Sept. Rehearing

As Modified on Denial 10, 1998.

Dec.