J. Patton Mabray, Jr. v. Sarah McSherry Mabray

Shreveport LA - Divorce lawyer represented Plaintiff-1

st Appellant with a dispute of partition of community assets.

J. Patton Mabray ("Mabray”) and Sarah McSherry Mabray

("McSherry”) were married on June 25, 1977, and established their domicile

in Tensas Parish. In 1988, during the existence of the community of acquets

and gains, Mabray formed P & S Farms Partnership for the purpose of

taking advantage of federal farm subsidies and for advantageous sheltering

of income for tax purposes. The only other partner initially to P & S Farms

was McMabes, Inc., a family-owned corporation. During the marriage

Mabray and McSherry constructed their residence on separate property

owned by Mabray. Various other assets in connection with farming

operations and recreational pursuits were acquired by the couple. The

couple separated in 1989. Mabray apparently retained use and possession of

all the property belonging to the community with the exception of some

furniture and one vehicle, which McSherry took when she left the residence.

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On July 10, 1991, Mabray filed for divorce in Ouachita Parish, noting

the parties had separated in 1989. A judgment of divorce was granted on

August 15, 1991. Sixteen years later, on January 14, 2008, in a separate

proceeding filed in Tensas Parish, Mabray sought to partition the former

community property. An ad hoc appointment was required after recusal of

the judges of the 6th Judicial District Court. Another eleven years go by,

during which there are many delays and discovery is fraught with allegations

being exchanged of uncooperative behavior. A trial on the merits was

finally held on July 25, 2019. The trial court issued a detailed 68-page

opinion containing 61 footnotes. Mabray filed a motion for new trial, which

was heard on November 6, 2019. The trial court ruled that Mabray was

entitled to some of the relief sought and amended and rewrote its original

judgment addressing the concerns raised in the motion for new trial. On

December 11, 2019, the trial court issued a 27-page detailed Judgment on

the Motion for New Trial, from which Mabray has sought an appeal and

asserted nine assignments of error from among the numerous findings of the

trial court.

STANDARD OF REVIEW

It is well settled that a trial court has broad discretion in adjudicating

issues raised by divorce and partition of the community. A trial judge is

afforded a great deal of latitude in arriving at an equitable distribution of the

assets between the spouses. Factual findings and credibility determinations

made by the trial court in the course of valuing and allocating assets and

liabilities in the partition of community property may not be set aside absent

manifest error. Politz v. Politz, 49,242 (La. App. 2 Cir. 9/10/14), 149 So.3d

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805 (citing Clemons v. Clemons, 42,129 (La. App. 2 Cir. 5/9/07), 960 So.2d

1068, writ denied, 07-1652 (La. 10/26/07), 966 So. 2d 583); Mason v.

Mason, 40,804 (La. App. 2 Cir. 4/19/06), 927 So. 2d 1235, writ denied, 06-

1524 (La. 10/13/06), 939 So. 2d 366).

DISCUSSION

Parties to a partition of their former community property are entitled

to and should expect a fair valuation and assignment of assets, which process

necessarily takes into consideration any debts or liens associated with the

community assets to determine a true net value. The parties are very much

stakeholders in that process, having unique knowledge of the history and

extent of the assets, any corresponding debts, and information imperative for

a disinterested valuation of each item by the court. Recalcitrant parties in

the process of identifying and valuing assets have only themselves to blame

for any decisions of the trial court they believe are based on incomplete

information. The trial court is tasked with partitioning the accumulation of

assets and assigning any liabilities.

The parties had 30 years from the granting of divorce and 13 years

from the original filing to partition the community property, during which

they could have amicably partitioned their community assets, completed

detailed descriptive lists, retained experts, and had time for in-depth

discovery in order to bolster their position and assignment by each of values

and legal positions with the trial court. The trial court, in two opinions

totaling 95 pages, has gone to great lengths to detail the challenges in

extracting from the parties the necessary information regarding assets and

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debts and has provided insight into the extensive deliberative process which

culminated in his conclusions.

From the judgment of the trial court, Mabry has asserted nine

assignments of error.

Assignment of Error Number 1: The trial judge's awards of prejudgment judicial interest were legal error.

Mabray first asserts that the trial judge erred in awarding prejudgment

legal interest to McSherry, contrary to the Louisiana Supreme Court's

decision in Reinhardt v. Reinhardt, 97-0723 (La. 10/19/99), 748 So. 2d 423.

In Reinhardt, the Supreme Court determined that prejudgment interest is not

due on equalizing payments made as part of a partition of community

property, even though part of the equalizing payment could be traced to a

reimbursement claim. Id. We disagree with Mabray's reliance on Reinhardt

under the facts present in this matter.

In Reinhardt, supra, the Supreme Court addressed the interest due on

equalizing payments made. In this case, while the trial court classified the

payments as "equalizing” in its first judgment, it subsequently clarified this

classification upon Mabray's motion for new trial. The trial court specified

in the judgment on motion for new trial that the sums awarded were not

equalizing payments but, rather, division of cash awards due to McSherry

because Mabray had taken the funds for his sole use after the parties

separated. The term of art, "interest,” was clearly intended to refer to the

share of community owned by and owed to McSherry and not the financial

term of the assessment of a sum charged on money owed. We cannot find,

either in the original judgment or judgment on motion for new trial, any

assertions by the trial court that the monies awarded were equalizing

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payments to McSherry due to an unequal net distribution of assets. Rather,

they are a valuation of her ownership interest, and therefore, we find

Mabray's first assignment of error to be without merit.

Assignment of Error Number 2: The trial judge's awards for Mr.

Mabray's post-termination income earned from his operation of the

Somerset Hunting Club were legal error.

In his next assignment of error, Mabray asserts that the trial court

erred in awarding McSherry income earned from his operation of the

Somerset Hunting Club. This assignment of error has merit. Community

property comprises property acquired during the existence of the legal

regime through the effort, skill, or industry of either spouse. La. C.C. art.

2338.

After termination of the community property regime, the provisions

governing co-ownership apply to former community property, unless

otherwise provided by law or by juridical act. La. C.C. art. 2369.1. Each

spouse owns an undivided one-half interest in the former community

property and its fruits and products. La. C.C. art. 2369.2. The term "civil

fruits” is defined in La. C.C. art. 551 as "revenues derived from a thing by

operation of law or by reason of juridical act, such as rentals, interest, and

certain corporate distributions.” This court is now tasked with the issue of

whether the trial court was manifestly erroneous in its determination that

McSherry is entitled to one-half of the profits generated by Somerset

Hunting Club from the period after the termination of the community, 1992

to 2018, and to determine the proper classification of funds/wages paid to

Mabray.

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It is not challenged that Somerset Hunting Club was established

during the existence of the community in 1986 and is therefore community

property. However, the profits/distributions at issue with regard to Somerset

Hunting Club came into Mabray's possession after the termination of the

community and do not carry the presumption of community. Lanza v.

Lanza, 04-1314 (La. 3/2/05), 898 So. 2d 280. The burden then fell to

McSherry to prove the profits/distributions were community assets. A

distribution of profit to the owners is distinctly different from wages paid

specifically for labor. Mabray testified at trial the he does "the running part

of” Somerset Hunting Club and that his cousin (and sole partner in the

hunting club) lives in north Arkansas. Therefore, Mabray "tends to the day

to day business.” By implication of Lanza, wages earned by a spouse for

work performed after the termination of the community are separate

property. The money received by Mabray was the result of his efforts, and,

therefore, should be considered similarly as wages for his efforts and not a

community asset. Accordingly, the district court erred in awarding

McSherry sums totaling $180,000 for her one-half interest in the

profits/distributions of Somerset Hunting Club from 1992 to 2018, and that

award is hereby reversed.

Notwithstanding the above, McSherry would be entitled to her

undivided one-half interest in the value of Somerset Hunting Club, since it is

community property and was established during the existence of the

community. There exists insufficient evidence in the record before us to

determine the value of Somerset Hunting Club, other than the income

generated and disbursed. Considering the foregoing, we reverse the award

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of the trial court of McSherry's interest in the funds distributed by Somerset

Hunting Club and remand to the trial court for further proceedings relative to

fixing a value for Somerset Hunting Club and determination of McSherry's

share of that value and its inclusion in the total award to her.

Assignment of Error Number 3: The trial judge committed legal

error or manifest error in awarding Ms. McSherry $9,000 for the use of

the 28-year old party barge.

Mabray next contends that the trial court erred in awarding McSherry

$9,000 for the use of a party barge owned by the parties during the marriage.

Under La. R.S. 9:2801(A)(4)(a), the trial court shall value the assets as of the

time of trial on the merits. Either party was free to seek partition of the

community, contemporaneous with the 1991 filing for divorce or after. That

the court is left to untangle, thirty years after the date of divorce, the

location, condition, and value of community assets is, as was described at

oral arguments, the equivalent of legal archaeology. To complicate the

process, the parties did not submit evidence of the current value of

community assets. In such situations, the trial court does not err in making

its valuations based on the evidence presented by the parties. Ellington v.

Ellington, 36,943 (La. App. 2 Cir. 3/18/03), 842 So. 2d 1160, writ denied,

03-1092 (La. 6/27/03), 847 So. 2d 1269.

The trial court has broad discretion in partitioning community

property. The Third Circuit noted in Razzaghe-Ashrafi v. Razzaghe-Ashrafi:

The purpose of [La. R.S. 9:2801(A)(4)(a)] is to provide

an occasion for the court to get a handle on the situation. It does

not mean that the court is frozen by any statutory time level or

particular valuation at any particular time or for any particular

purpose, but simply to place values on the assets for the

purpose of accounting, allocation and adjudication in

accordance with the further provisions of La. R.S. 9:2801(4)(b,

c, d and e).

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Razzaghe-Ashrafi v. Razzaghe-Ashrafi, 558 So. 2d 1368 (La. App. 3 Cir.

1990). Since broad discretion is granted to the trial court by La. R.S.

9:2801, the court is not required to accept at face value a party's valuation of

assets, debts, or claims against the community. Gay v. Gay, 31,974 (La.

App. 2 Cir. 6/16/99), 741 So. 2d 149. If the trial court's valuations are

reasonably supported by the record and do not constitute an abuse of

discretion, its determinations should be affirmed. In the absence of values to

the contrary, the court below was left to establish values in a vacuum or

without full involvement and cooperation of both parties.

In her amended detailed descriptive list, McSherry listed the party

barge's value at $18,000. Mabray did not list the party barge on his detailed

descriptive list or traversal. At trial, Mabray acknowledged that he had

possession of the party barge, that he had retained possession since the

parties physically separated, and that the barge was indeed community

property. Mabray also testified that the barge had fallen into disrepair and

he stripped it down and made a fishing platform out of it. Additionally,

Mabray said he "hadn't laid eyes on it in 8 or 10 years.” However, at trial,

Mabray never offered any documentation or testimony as to the barge's

value as of the time of trial. As a result, the trial court was confronted with

no competing value to take into consideration when tasked with fixing a

value on this particular asset.

The opportunity to establish a value for community assets is provided

by filing a detailed descriptive list and calling any supporting witnesses to

substantiate the rationale for valuations. Likewise, the opportunity to

dispute a value included in opposing party's detailed descriptive list is to file

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a traversal of that item and call any supporting witnesses to substantiate the

traversal and alternative valuation. Mabray complains of the result of the

trial court's valuation without providing it with information in the form of a

detailed descriptive list, traversal, or other information.

Without any other evidence being introduced or testimony being

given as to the value of the party barge, the court had no other available

means to determine the value except to accept McSherry's value of $18,000.

Since the court awarded the barge to Mabray, McSherry would be entitled to

one-half of its determined value under the law. Therefore, we cannot find

that the trial court erred in awarding McSherry $9,000 for the party barge,

and accordingly, Mabray's assignment of error is without merit.

Assignment of Error Number 4: The trial judge erred in awarding

Ms. McSherry $140,000 for "her share of the dividends and interest

which was generated as community property,” with no evidence, and

certainly insufficient evidence, that $280,000 of accumulated dividends

and interest had existed and remained in Mr. Mabray's possession as of

the termination of the community.

Mabray next asserts that the trial court erred in awarding McSherry

$140,000 as her share of dividends and interest generated from community

stocks and bonds. In her initial detailed descriptive list, McSherry listed

"Numerous Stocks and Bonds,” but provided a value as "unknown.” In his

detailed descriptive list, Mabray listed a large amount of securities but

asserted they were his separate property. Thereafter, in her amended

detailed descriptive list, McSherry asserted that the "dividends” from those

securities accounts were community, but the amount thereof remained

unknown.

First, we must determine if the "dividends” from the securities

accounts were Mabray's separate property or property belonging to the

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community. Property of married persons is either community or separate,

except as provided by Article 2341.1. La. C.C. art. 2335. The classification

of property as either separate or community is fixed at the time of its

acquisition. Gay, supra. Property in the possession of a spouse during the

existence of the community property regime is presumed to be community,

but either spouse may rebut the presumption. La. C.C. art. 2340. The

spouse seeking to rebut the presumption bears the burden of proving that the

property is separate in nature and that proof must be fixed, clear, positive,

and legally certain. Tolar v. Tolar, 28,202 (La. App. 2 Cir. 4/3/96), 671 So.

2d 1234.

Fruits are things that are produced by or derived from another thing

without diminution of its substance. La. C.C. art. 551. That article defines

civil fruits as revenues derived from a thing by operation of law or by reason

of a juridical act, such as rentals, interest, and certain corporate distributions.

Cash dividends from separately owned stock are fruits since they come from

the surplus of the corporation and do not cause a diminution in the substance

of the principal thing. Andrea Carroll & Richard D. Moreno, Matrimonial

Regimes, in 16 La. Civ. L. Treatise § 3:00 (4th ed. 2019). They are

community property unless the appropriate declaration is filed. Id.

According to his testimony at trial, Mabray contends that the stocks at

issue were gifts to him alone by either his parents or grandparents and

produced "a little” dividend of $20,000 per year for the years 1977 to 1991.

McSherry does not dispute that these stocks are Mabray's separate property.

Rather, she contends that the dividends produced by those stocks are fruits

of separate property belonging to the community under La. C.C. art. 2339.

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A spouse may reserve such fruits as his separate property by a declaration

made in an authentic act or in an act under private signature duly

acknowledged and a copy of the declaration shall be provided to the other

spouse prior to filing. La. C.C. art. 2339. Mabray testified both in his

deposition and at trial that he did not file a declaration reserving the

dividends as his separate property. The absence of such a declaration

resolves the issue, and the fruits of Mabray's separate property would be

community assets.

The only testimony or evidence presented as to the value of the

dividends came directly from Mabray. The trial court used his testimony to

determine that $20,000 in dividends per year would accumulate from the

stocks. Using this figure, we find that the trial court correctly found that

McSherry is entitled to $140,000 as payment for her one-half share of the

$20,000 in annual cash dividends per year from 1977 until the termination of

community by the granting of the judgement of divorce in 1991. Mabray's

assignment of error is without merit.

Assignment of Error Number 5: The trial judge erred in awarding

Ms. McSherry an equalizing payment of $125,000 "because community

funds were used to construct the matrimonial residence” on Mr.

Mabray's separate property, based on his misreading of Mr. Mabray's

2015 deposition testimony.

Mabray next contends that the trial court erred in awarding McSherry

$125,000 for use of community funds in the enhancement of his separate

property by constructing the matrimonial residence on his separate land.

Mabray owns 6½ acres in Tensas Parish, Louisiana. After the parties

married, they constructed the matrimonial residence on that property. The

parties agree that the property, and now the residence, are Mabray's separate

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property. As opposed to ownership of the asset, we are tasked with

determining whether the trial court erred in fixing the amount awarded to

McSherry for use of community funds in the improvement of Mabray's

separate property.

On July 10, 1991, La. C.C. art. 2408 provided that McSherry would

be entitled to an amount equal to one-half the enhanced value of the separate

property or one-half of the amount of community funds expended on the

improvement, whichever is greater. The record shows that McSherry took

the lead role in purchasing materials, overseeing construction, and selecting

various finishes for the residence. Additionally, she supervised the laborers

and collected their invoices weekly and submitted them to Mabray for

payment. Once completed, the home consisted of two stories, with the

second floor being left unfinished. In 1982, the parties added a swimming

pool, hot tub, deck, and patio. In 2009, long after the parties divorced,

Mabray added two bedrooms and bathrooms to the second floor. The value

of improvements made after the termination of community are not included

in our review.

McSherry testified that the cost of construction was between $300,000

and $350,000 based on her observation of invoices and receipts that she

transferred. Mabray testified that the construction cost of the original

project was $160,000, which he claims he borrowed from Tensas State

Bank, but could never produce evidence to support his assertion at trial.

Mabray testified that in order to pay for the pool and additions, he sold some

securities. As to the upstairs addition built in 2009, Mabray testified that it

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cost an "additional hundred thousand dollars or so.” Lastly, Mabray testified

that he estimated the residence alone to have a value of $350,000.

The trial court determined that the home was worth $350,000, as per

Mabray's own testimony, but credited Mabray $100,000 for cost of the

upstairs additions to the home he made with his separate funds after the

divorce, bringing the enhanced value of Mabray's separate property from

community funds to $250,000. McSherry's claim to reimbursement of the

enhanced value of Mabray's land from construction of the home would be

one-half of the total or $125,000, as the trial court held. We cannot say,

based on the record before us, that the trial court erred on this point, and

Mabray's assignment of error is without merit.

Assignment of Error Number 6: The trial judge committed legal

error or manifest error in awarding Ms. McSherry an equalizing sum of

$20,000 based on Ms. McSherry's testimony that the parties had

purchased unspecified furniture and décor for $85,000 in 1979, with no

detail of what the items of furniture and décor were or what community

furniture or décor items she would contend were either left or remained

in Mr. Mabray's possession.

Mabray asserts that the trial court erred in awarding McSherry

$20,000 for Mabray's retention of community furniture and décor located in

the former matrimonial domicile. There is no disagreement between the

parties that the furniture and décor contained in the former matrimonial

domicile is community property. There is a dispute, however, between them

as to what remains in the home and how to value those items. Such a

dispute should be expected when, thirty years after being divorced, former

spouses are reunited in the courtroom to contest the amount of money owed

to the other. McSherry testified at trial that she left all furniture and décor in

the home upon her departure and took only the items her mother had loaned

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her. Mabray did not testify as to the furniture and décor either at trial or in

his deposition. Therefore, the only evidence or testimony the trial court had

at its disposal was that from McSherry, as well as a general understanding

regarding the lifestyle of the parties and their financial position during the

marriage when the furniture was purchased.

At trial, McSherry testified that the value of the furniture and décor

was based on its purchase price in 1979 and her experience as a decorator.

She valued the furniture and décor at $85,000. Although the court had the

benefit of McSherry's testimony of the value of property in 1979, the trial

court deviated significantly and assigned a value of her ownership interest of

$20,000 and ordered the furniture and décor to remain with Mabray.

A trial court has much discretion in valuing and allocating assets and

liabilities in community property partitions and must consider the source and

nature of each asset or liability, the financial situation of the other spouse,

and any other relevant circumstances. Maxwell v. Maxwell, 51,335 (La.

App. 2 Cir. 4/5/17), 217 So. 3d 1227, writ denied, 17-0958 (La. 10/9/17),

227 So. 3d 830. The record on this particular issue is scant. The trial court

used its broad discretion to determine that, because the furniture and décor

was at least ten years old at the time the parties separated, it had a value of

$40,000 and determined that McSherry was entitled to $20,000 for her share.

When the parties do not submit evidence of the current value of their

community assets as of the time of trial, the trial court does not err in

making its valuations based upon the evidence presented by the parties

which values assets as of another date. Ellington, supra. Therefore, we

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cannot say that the trial court erred in its valuation of the furniture and décor

and affirm this decision. This assignment of error is without merit.

Assignment of Error Number 7: The trial judge committed legal

error or manifest error in awarding, and maintaining the awards to,

Ms. McSherry of the amounts of $28,125; $56,250; $12,510; $12,510;

$856.30; $12,388.46; $9,112.06; $17,908.37; and $28,794.96, which

represented federal farm subsidies received by P & S Farms, a separate

legal entity and partnership.

Mabray next contends that the trial court erred in awarding McSherry

various amounts for her interest in farm subsidy payments. P & S Farms

Partnership ("P&S Farms”) was formed on March 30, 1988, during the

existence of the community. There were initially only two partners in P&S

Farms: J. Patton Mabray and McMabes, Inc., a Louisiana corporation with

Mabray as its president. It is clear, and the parties do not dispute, that the

initial 50% interest in P&S held by Mabray was a community interest.

Therefore, when the community terminated, McSherry became an owner of

a 1/4 interest in P&S.

In 1993, Mabray added seven more partners to P&S so as to gain

more money from the federal government for farm subsidies and for tax

purposes. All terms of the partnership remained the same, but Mabray's

interest was reduced to 11.11%. When the partnership automatically

terminated by its terms in 1999, Mabray formed a new partnership bearing

the same name on December 4, 1999. To this new partnership, he added

eight other entities, but McSherry was not included as a partner. Her

ownership interest in P&S ended in 1999.

During the years 1988 through 1993, Mabray received $225,000 per

year in federal farm subsidies, which he applied to his farming debts. This is

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shown by McSherry's production of records detailing such.1

The trial court

correctly ruled that McSherry was entitled to her portion of the farm

subsidies for years after the divorce but prior to the termination of P&S,

being 1991 through 1999. Additionally, the trial court correctly held that

McSherry was not entitled to any portion of the farm subsidies after these

dates, as P&S Farms had dissolved and re-formed as a wholly new

partnership, unlike in 1993 when P&S simply added new members.

Therefore, we cannot say that the trial court erred in awarding McSherry her

proportionate share of the farm subsidies in various amounts from years

1991 through 1999. This assignment of error lacks merit.

Assignment of Error Number 8: The trial judge committed legal

error or manifest error in awarding Ms. McSherry $10,000 "for her

ownership interest in P & S Farms Partnership,” based only on the first

page of the 1999 partnership tax return.

Mabray next asserts that the trial court erred in awarding McSherry

$10,000 for her ownership interest in P&S Farms. To extent that it is

acquired during marriage, a spouse's interest in partnership is community

asset; as such, a nonpartner spouse is entitled to one-half value of spouse's

interest in partnership, as determined on date of trial. Borello v. Borello, 614

So. 2d 91 (La. App. 4 Cir. 1993) (on reconsideration), writ denied, 616 So.

2d 706 (La. 1993). The trial court's determination of the value of a

community business is a factual one which will not be disturbed absent

manifest error. Monje v. Monje, 94-622 (La. App. 5 Cir. 12/28/94), 648 So.

2d 1086.



1 Mabray testified that he received between $250,000 and $300,000 per year during this

period.

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Initially, the trial court valued P&S Farms at $73,000 based on an

extrapolation method and viewing various tax return documents, wherein it

determined the average total asset figure for the years 1993 through 1999 to

be $73,609. Considering these figures, the trial court initially awarded

McSherry $36,500 for her interest in P&S Farms. After a motion for new

trial was heard, the trial court, after further review, reduced that amount to

$10,000.

The court determined that the value of the community share of P&S

Farms at the time the partnership dissolved in 1999 was $20,000 according

to the first page of the partnership tax return for that year. Considering the

foregoing, the broad discretion of the trial court in making factual

determinations, and the lack of evidence in this matter, we cannot say that

the trial court erred in its determination of a value of P&S Farms and its

award to McSherry. This assignment of error lacks merit.

Assignment of Error Number 9: The trial judge committed legal

error or manifest error in awarding Ms. McSherry $100,000 for use of

"farming equipment” with no evidence showing what farm equipment,

if any, even existed 28 years later as of the time of the trial.

Mabray next contends that the trial court erred in its award of

$100,000 to McSherry for her interest in various farming equipment. When

the parties do not submit evidence of the current value of their community

assets as of the time of trial of the partition action, the trial court does not err

in making its valuations based upon the evidence presented by the parties

which values assets as of another date. Ellington, supra.

In her detailed descriptive lists, McSherry lists the following as

community farm equipment: Combines and cotton pickers - $500,000;

Tractors and trucks - $287,000; and Irrigation equipment - $45,000. She

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testified that she priced the combines and cotton pickers after talking to a

John Deere dealer in Newellton, Louisiana. Mabray initially stated that he

was no longer in possession of the farming equipment and that the debt

exceeded the value. In his second detailed descriptive list, he stated that he

still had the equipment, but that he owed more on the equipment than it was

worth. Mabray testified that, in 1991, he was receiving $25,000 per month

by renting out his farming equipment to his own farming business, and after

the divorce, he rented it to P&S Farms for between $100,000 and $225,000

per year. Mabray did not produce any evidence to show that this equipment

was either encumbered by a lien or disposed of prior to the judgment of

divorce on July 10, 1991. Considering the fact that both parties agree that

the equipment exists but neither could provide a value, we cannot say that

the trial court erred in awarding all farming equipment to Mabray and

$100,000 to McSherry for her interest in same. This assignment of error

lacks merit.

For the foregoing reasons, we reverse the award to McSherry of

$180,000 from income generated by Somerset Hunting Club but remand the

matter to the trial court for a determination of the value of Somerset Hunting

Club and the value of McSherry’s interest therein; and in all other respects

we affirm the judgment of the trial court. Costs are assessed to 20% to

McSherry and 80% to Mabray.



REVERSED AND REMANDED IN PART; AFFIRMED IN

PART