In Re Marriage of McTiernan and Dubrow

John McTiernan (husband) and Donna Dubrow (wife) both appeal from a judgment in the dissolution of their marriage. Their appeals raise distinct issues. Husband primarily challenges the trial court's determination that there existed goodwill in his business as a motion picture director, and that all of the $1.5 million of goodwill constituted community property. Husband also contests a ruling that he must reimburse wife's share of profits that were lost after husband sold certain community securities without her consent, and in violation of the automatic injunctive order imposed upon commencement of the proceedings. (Fam.Code, § 2040, subd. (b).)

In her appeal, wife contends that the court abused its discretion by limiting her postdissolution spousal support to two years, and by characterizing several months of pendente lite payments as community property distributions rather than temporary support. Wife also asserts that the judgment should be modified to preserve jurisdiction over support beyond the two-year period. Finally, wife contends that the court abused its discretion by reducing husband's obligation to pay wife's attorney fees, by reason of an irrelevant and…

I concur in the judgment and write separately to state the rationale I believe justifies the conclusion that, as a matter of law, John McTiernan’s work as a movie director is not a business or professional practice to which goodwill may attach.

Let me begin with several points on which there is no dispute.

First, goodwill may exist in a professional practice or in a business which is founded upon personal skill or reputation. (In re Marriage of Foster (1974) 42 Cal.App.3d 577, 582, fn. 2 [ 117 Cal.Rptr. 49 ].)

Second, the goodwill of a business is property and is transferable. (Bus. & Prof. Code, § 14102.) Otherwise stated, goodwill is an asset of a business or professional practice, and where the business or professional practice is community property, it is a community asset. (Golden v. Golden (1969) 270 Cal.App.2d 401, 405 [ 75 Cal.Rptr. 735 ].)

*1112 Third, “[although the goodwill of a business may be the result of the personal skill, talent, experience, or reputation of an individual connected with the business, it may attach to and continue with the business even after the separation of the individual on whom it was founded.” (Smith v. Bull (1958) 50 Cal.2d 294, 302 […

I concur in the lead opinion and in the judgment with respect to all issues but one. I respectfully dissent from my colleagues’ conclusion that husband has no divisible goodwill. The facts found by the trial court establish that husband possesses valuable goodwill, as traditionally recognized by California case law. In holding otherwise as a matter of law, the majority apply restrictive concepts that disregard established family law precedent. Moreover, even under this legal revision, substantial evidence still supports the trial court’s findings that husband possessed goodwill in his professional business, in which wife was entitled to share.

Business and Professions Code section 14102 declares the goodwill of a business to be property, albeit intangible. Section 14100 of the same code compactly defines goodwill as “the expectation of continued public patronage.” The United States Supreme Court has similarly stated, “Although the definition of goodwill has taken different forms over the years, the shorthand description of goodwill as ‘the expectancy of continued patronage’ [citation] provides a useful label with which to identify the total of all the imponderable qualities that…

John McTiernan (husband) and Donna Dubrow (wife) both appeal from a judgment in the dissolution of their marriage. Their appeals raise distinct issues. Husband primarily challenges the trial court’s determination that there existed goodwill in his business as a motion picture director, and that all of the $1.5 million of goodwill constituted community property. Husband also contests a ruling that he must reimburse wife’s share of profits that were lost after husband sold certain community securities without her consent, and in violation of the automatic injunctive order imposed upon commencement of the proceedings. (Fam. Code, § 2040, subd. (b).)

In her appeal, wife contends that the court abused its discretion by limiting her postdissolution spousal support to two years, and by characterizing several months of pendente lite payments as community property distributions rather than temporary support. Wife also asserts that the judgment should be modified to preserve jurisdiction over support beyond the two-year period. Finally, wife contends that the court abused its discretion by reducing husband’s obligation to pay wife’s attorney fees, by reason of an irrelevant and…