Wright v. Wright

100 O.R. (3d) 28

2010 ONCA 102

Court of Appeal for Ontario,

MacFarland, Rouleau and Watt JJ.A.

February 5, 2010

Family law -- Costs -- Trial judge not erring in awarding husband costs on substantial indemnity basis on grounds that wife's settlement proposals were outrageous and that she continuously made settlement impossible by making impossible demands that she knew could never be met.

Family law -- Domestic contracts -- Separation agreement -- Trial judge finding that letter from counsel for wife to counsel for husband constituted either counter-offer from wife in response to husband's offer outlined in draft separation agreement or free-standing offer in its own right and that it was accepted because both parties acted on it -- Trial judge not erring in finding that there was binding agreement between parties which had not been repudiated.

Family law -- Support -- Spousal support -- Wife not taking steps to promote her economic self-sufficiency after leaving husband and enjoying more luxurious lifestyle than husband -- Trial judge ordering husband to pay wife spousal support in amount of $800 per month but declining to make order retroactive -- No basis existing for interfering with trial judge's exercise of discretion.

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During their 27-year marriage, the husband and wife owned 51 per cent and 49 per cent of the shares of the companies, respectively, and both were actively involved in the daily operations of the companies. Following their separation, they agreed to have the companies valued as at May 31, 2003. The collaborative family law process broke down in 2004. The parties reached an informal agreement which was set out in a note written by the wife. Among other things, they agreed that the husband would buy out the wife's shares of the companies. However, the wife did not sign a draft separation agreement, based on the note, prepared by counsel for the husband. On August 25, 2004, counsel for the wife sent counsel for the husband a letter setting out what he understood to be the terms of the agreement (the "August 25 Letter"). The parties were unable to resolve the issue of spousal support. The husband initiated proceedings for divorce, equalization and an order requiring that the wife transfer her shares in the compa nies to him. The trial judge found that the August 25 Letter was either a counter-offer from the wife in response to the husband's offer outlined in the draft agreement, or a free- standing offer in its own right, and that it was accepted because both parties acted on it. He ordered the husband to pay spousal support of $800 per month. He awarded the husband costs on a substantial indemnity basis. The husband appealed and the wife cross-appealed.

Held, the appeal and cross-appeal should be dismissed.

It was open to the trial judge to find that there was a binding agreement between the parties on the valuation of the shares of the companies which had not been repudiated. Although repudiation may have been sought by both parties at various times, the record disclosed no clear acceptance by one party of the repudiation of the other. The record supported a finding that the parties conducted themselves as if the shares had effectively been transferred to the husband in 2004.

The trial judge did not err in awarding the wife indefinite spousal support in the amount of $800 per month despite his findings that she was an intelligent and resourceful woman who had done little to promote her economic self-sufficiency and now enjoyed a more luxurious lifestyle with the man with whom she was cohabiting. There was also no basis for interfering with the trial judge's refusal to grant retroactive support.

The trial judge gave ample reasons for his costs award. He found that the wife's settlement proposals were outrageous and constituted a completely impossible demand for spousal support. He found that she did not "win" her claim for the transfer of shares or for spousal support, but rather had continuously made settlement impossible by making demands that she knew could never be met. There was no basis for interfering with the award.

APPEAL AND CROSS-APPEAL from the order Langdon J., [2008] O.J. No. 3118, 2008 40140 (S.C.J.).

Cases referred to Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9, 172 D.L.R. (4th) 577, 240 N.R. 312, [1999] 8 W.W.R. 485, J.E. 99-1206, 138 Man. R. (2d) 40, 46 R.F.L. (4th) 1, REJB 1999-12847, 88 A.C.W.S. (3d) 1044; M. (C.A.) v. M. (D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181, [2003] O.J. No. 3707, 231 D.L.R. (4th) 479, 176 O.A.C. 201, 43 R.F.L. (5th) 149, 125 A.C.W.S. (3d) 650 (C.A.); Ramsay v. Ramsay, [1999] O.J. No. 4835, 93 A.C.W.S. (3d) 494, 1999 15027 (S.C.J.)

Statutes referred to Business Corporations Act, R.S.O. 1990, c. B.16 [as am.] Family Law Act, R.S.O. 1990, c. F.3

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Rules and regulations referred to Family Law Rules, O. Reg. 114/99, rule 24(4)

Philip M. Epstein, Q.C., and Michael Zalev, for appellant/ respondent by way of cross-appeal. Thomas Bastedo, Q.C., and Adam Black, for respondent/ appellant by way of cross-appeal.

The judgment of the court was delivered by

ROULEAU J.A.: -- Facts

[1] Alexander "Sandy" Wright, the appellant/respondent by cross-appeal, and Mary Wright, the respondent/appellant by cross-appeal, separated in May 2003 after a 27-year marriage.

[2] Over the course of the marriage, Sandy incorporated Aberfoyle Concrete Ltd. ("Aberfoyle") and Washington Sand & Gravel Ltd. ("WSGL"). WSGL carries on the business of extracting and hauling gravel from a quarry while Aberfoyle manufactures and hauls ready-mix concrete for construction projects. For ease of reference, the companies together will be referred to as the "Wright Group".

[3] Sandy and Mary owned 51 per cent and 49 per cent of the shares in the Wright Group, respectively. Both of them contributed to the businesses and were actively involved in their daily operations.

[4] A third business, Sandy Wright Trucking Ltd. ("SWTL"), is owned entirely by Sandy. SWTL sells fuel to Aberfoyle and other customers.

[5] Their marriage fell apart on May 11, 2003 when Mary informed Sandy that she had become emotionally involved with William Demarte, a salesman for the Wright Group. Mary immediately left her job and has not worked full-time since. She moved in with Mr. Demarte in December 2003 and they continue to live comfortably together in a country estate home valued at $575,000.

[6] In late 2003, Sandy and Mary attempted to resolve their issues through the collaborative family law process. As part of this process, the couple agreed to have the businesses valued as at May 31, 2003. The valuation report, delivered on February 9, 2004, estimated that WSGL and Aberfoyle had fair market values of $301,000 and negative $21,000, respectively. On this view,

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Mary Wright's shares in the Wright Group were worth approximately $140,000 on May 31, 2003.

[7] Throughout most of the collaborative family law process, Sandy paid Mary a "salary" of $350/week, even though she no longer had any position with the Wright Group. When the collaborative family law process broke down in the spring of 2004, Sandy stopped making the weekly payments.

[8] In June 2004, Sandy and Mary sold their matrimonial home, with the closing scheduled to take place on August 27, 2004.

[9] Later that same month, after the sale of the home, Mary (without counsel at this point) approached Sandy to discuss the issues they had been unable to resolve through counsel. They came to an informal agreement, which Mary eventually wrote out on a note (the "Note"). Mary told Sandy, "Give me this and we're done." The Note reads:

Business

213,475.00

House & Shop

254,050.00

6 yrs @@ 350.00

starting Aug 01

8 years @@ 2647.87

life insurance

tahoe to be ret. Aug 27 -- payments to start August 01

[10] Both parties understood that Sandy had to carry on the business, which required him to buy out Mary's shares. Accordingly, the first two lines of the Note -- "Business 213,475.00" -- reflect the value of Mary's equity in Aberfoyle and WSGL based on an estimate prepared by the accountant for the Wright Group.

[11] Sandy insisted that Mary have independent legal advice before signing anything and got his lawyer, Ms. Rinnie, to draft a formal separation agreement based on the Note. Mary received the draft in July 2004 and retained Mr. Buck to advise her. He reviewed the draft and told her not to sign it.

[12] As the closing date for the sale of the matrimonial home approached, Sandy was advised by Ms. Rinnie not to provide the proceeds of sale to Mary unless she signed the draft separation agreement. Sandy told Mary that he was concerned about her

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not signing the agreement. He says that she replied, "You can trust me."

[13] On August 25, 2004, three days before the closing date, Mr. Buck faxed a letter to Ms. Rinnie (the "August 25 Letter"), which referred to certain terms of the Note. The August 25 Letter reads as follows:

I am advised by my client that there have been discussions between she (sic) and her husband, and that the following has been agreed to:

(a) My client will receive on August 27th instant with respect to the Nicholas Beaver property [the "Shop" referred to in the Note] the approximate sum of $173,000.00.

(b) My client will be accepting of the content of paragraph 13 of the draft Separation Agreement [which states that "[t]he parties agree that the wife will sell her shares in the respective companies back to the companies for a total of $213,475.00 . . ."] as the same relates to the share sale of the three companies, however, there will need to be security which is satisfactory respecting the payments over time. We are prepared to have discussions with you with respect to mortgage security or some other security which would be suitable.

(c) There will be no equalization of the parties' RRSP's contemplated as per paragraph 14 of the draft agreement, and each party will retain their respective RRSP's.

(d) My client will return the Tahoe vehicle on Friday, however, there is to be no further or other expense respecting this vehicle to my client and any necessary expenses will be borne by your client.

Apparently, your client has advised Mrs. Wright that a letter from the writer setting out the foregoing is required in order that she receive the monies due to her with respect to the Nicholas Beaver property and the matrimonial home on August 27th instant. (Emphasis added)

[14] Notwithstanding the lack of a formally signed separation agreement, both sides took concrete steps to implement a portion of the bargain set out in the Note and reflected in the August 25 Letter. Toward the end of August 2004, Sandy mortgaged a property they jointly held (referred to as the "Shop" in the Note) to buy out Mary's interest and paid Mary $243,500 for her half interest in the Shop and her share of the proceeds from the sale of the matrimonial home. Sandy also resumed the weekly payments to Mary that he had stopped when the collaborative family law process broke down, but reduced the amount to $300/week. These payments continued up until the end of October 2005. For her part, Mary gave Sandy the Tahoe vehicle and conveyed her interest in the Shop to him.

[15] On September 20, 2004, Mr. Buck asked for certain changes to the draft agreement, including an increase in spousal

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support to $2,588/month in addition to "salary" payments of $350/week for eight years. Sandy rejected these changes, and although negotiations continued over the next several months, the parties were unable to resolve the support issue.

[16] Finally, on February 23, 2006, Sandy initiated proceedings for divorce, equalization and an order requiring that Mary transfer her shares in the Wright Group to him. Counsel agreed that the Wright Group would pay Mary $2,647.87/ month on an interim basis, without prejudice, to be allocated by the trial judge either on account of share value or as spousal support. In total, Sandy made 15 such payments, totalling $39,718.05.

Trial Judge's Reasons

[17] The trial judge granted Sandy and Mary a divorce.

[18] The trial judge viewed the August 25 Letter, which essentially reiterated the terms of the Note, as either (i) a counter-offer from Mary to Sandy in response to Sandy's offer outlined in the draft agreement prepared by Ms. Rinnie; or (ii) a free-standing offer in its own right. Under either scenario, the trial judge reasoned, the August 25 Letter offered Sandy a partial resolution of the outstanding issues on the following terms: Mary agreed to accept $213,475 as the value of her equity in the Wright Group, transfer her interest in the Shop, and return the Tahoe vehicle in exchange for the immediate receipt of her share of the proceeds from the sale of the matrimonial home and the value of her half interest in the Shop, and no equalization of RRSPs.

[19] The trial judge found Sandy's conduct -- that is, the payment of $243,500 to Mary for the transfer of her title in the Shop and her share of the proceeds from the sale of the matrimonial home -- was an acceptance of Mary's offer. The trial judge held that there was a mutuality of promises constituting consideration and that both parties acted to their detriment in fulfilling the agreement. Once the resulting agreement was executed, the trial judge concluded that "[t]here was no going back" and that it would be unconscionable for either Sandy or Mary to repudiate the agreement.

[20] Ultimately, the trial judge concluded that the offer in the August 25 Letter was accepted because both parties acted on it. He ordered that the 15 payments of $2,647.87 already made by Sandy be deducted from the $213,475 he owes Mary for her shares.

[21] The only remaining issues to be resolved, in the trial judge's view, were spousal support (addressed in the Note, but

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not the August 25 Letter) and the question of security for Sandy's purchase of Mary's shares. [See Note 1 below]

[22] With respect to spousal support, the trial judge observed that Mary failed to show need and now enjoys a much more luxurious lifestyle than when she was married. The trial judge noted that "[o]ne may guess how [Mary] maintains that lifestyle but she has clearly concealed from the court the means by which she manages to support her current lifestyle and alleged debt load". In determining a final amount for support, the trial judge considered: (i) Mary's significant contribution to the marriage and the Wright Group; (ii) the speculative economic disadvantages to her arising from the breakdown of the marriage; (iii) that Sandy should not be saddled with the obligation to maintain Mary's higher post-separation standard of living with Mr. Demarte; and (iv) that Sandy must have the means to pay for the support. After a detailed analysis, the trial judge arrived at the amount of $800/month commencing September 1, 2008 (i.e., not retroactive).

[23] The question of costs was argued separately before the trial judge on October 17, 2008. The trial judge concluded that, considering Sandy's financial circumstances, Mary's revised September 20, 2004 draft was "not merely unreasonable; it was outrageous". The trial judge found Mary's actions during the negotiation process tantamount to reneging on the agreement to fix the share value, which forced the trial to confront a wholly unnecessary evaluation and revaluation of the Wright Group. For these reasons, he awarded Sandy costs on a substantial indemnity basis.

Issues

[24] On appeal, Sandy raises the following issues:

(1) Did the trial judge err in finding there was a binding and subsisting agreement between the parties on the valuation of the Wright Group shares?

(2) Did the trial judge err in the quantum and duration of spousal support he awarded to Mary ($800/month indefinitely as of September 1, 2008)?

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[25] Mary has cross-appealed, raising the following additional issues:

(3) Did the trial judge err in not making the spousal support award retroactive to November 1, 2005?

(4) Did the trial judge err in awarding costs to Sandy on a substantial indemnity basis?

(1) The valuation of the Wright Group's shares

[26] On the issue of the valuation of the Wright Group shares, the trial judge fixed the value of Mary's 49 per cent at $213,475 -- the amount reflected in the Note, Sandy's first draft agreement prepared by Ms. Rinnie and the August 25 Letter sent by Mary's counsel. Sandy argues that the trial judge erred in at least two respects. First, the trial judge purported to find that an agreement as to the value of the shares had been reached by the parties in 2004 and that "[o]nce a contract is executed, it cannot be repudiated". This, Sandy submits, is an error in law, since if one party accepts the other party's repudiation, the contract is in fact at an end. Sandy argues that this is precisely what occurred in this case. Second, Sandy submits that, at trial, the issue framed by the parties for determination by the judge was the value of the shares as of August 2007 for purposes of a compelled transfer from the respondent to the appellant pursuant to the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 (the "OBCA"). As a result, it was not open to the trial judge to use a 2004 value for the shares in the net family property equalization calculations, or to find that there was a valid contract in respect of the value/transfer of the shares.

[27] I reject these submissions for the following reasons.

[28] Although the trial judge's reasons are, at times, unclear, I accept Mary's submission that, in effect, the trial judge found, through a combination of the August 25 Letter and their subsequent actions, that the parties had reached a binding agreement in 2004 valuing Mary's shares in the Wright Group at $213,475 for transfer to Sandy. It was only as a result of the parties' failure to reach an agreement on other issues that Mary refused to effect the transfer. Having found that an agreement concerning the shares was reached in 2004, the trial judge -- although referencing the net family property equalization calculations -- ultimately granted the appropriate remedies.

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(a) The repudiation issue

[29] I do not agree with Sandy's submission that the trial judge erred in his treatment of the repudiation issue. Standing alone, the trial judge's statement that "once a contract is executed it cannot be repudiated" is misleading; however, when it is read in the context of the whole decision, it is apparent that the trial judge was not suggesting that a contract can never be repudiated, but rather that one party cannot unilaterally repudiate a contract once it has been partly performed unless repudiation is accepted by the other party. This is apparent from comments made by the trial judge later in his reasons [at para. 63] where he notes that Sandy believed Mary "was attempting to repudiate her agreement" but that neither Sandy nor his lawyer "ever expressly stated that Sandy accepted Mary's repudiation of the share value agreement". The trial judge concludes, "I do not think either had the right to repudiate that agreement" (emphasis added). In other words, there was never clear acceptance of the repudiation by the non-repudiating party of the 2004 agreement concerning the shares.

[30] Before trial, Mary had tried to repudiate the agreement to transfer the shares and had maintained that the shares were worth substantially more than had been agreed in 2004. Her position in final submissions at trial, however, was that Sandy should be held to the 2004 agreement on the value of the shares as he had effectively operated the company as his own since 2004. I agree. The way Sandy administered the companies from 2004 onward supports the trial judge's finding that the 2004 agreement concerning the shares was binding. He conducted himself as full owner of Mary's shares. Although Mary remained as a director and officer of the Wright Group after her employment ended in 2003, starting in 2004 she was essentially cut off from banking and other documentation relating to the companies. Indeed, from that point on, Sandy operated the companies as his own and, with the exception of receiving the occasional salary payments, Mary had no involvement whatsoever in the business.

[31] In these circumstances, it was open to the trial judge to reject Sandy's submission that there had been a repudiation of the agreement. Although repudiation may have been sought by both parties at various times, the record discloses no clear acceptance by one party of the repudiation by the other. The record at trial supports a finding that the parties conducted themselves as if the shares had effectively been transferred to Sandy in 2004.

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(b) 2007 share value vs. 2004 share value

[32] Sandy takes the position that, by the time of trial, there was a consensus between the parties that the 2007 value of the shares should be used. He argues that a much lower August 2007 valuation was appropriate. Mary argues for either a much higher value or the agreed upon 2004 value. Further, Sandy submits that the trial judge confused the family law net family property issues with the OBCA issues.

[33] I disagree. The share valuation issues did, in part, raise net family property equalization issues because one of the corporations, SWTL, was owned solely by Sandy on the valuation date and would therefore have to be valued at that date and incorporated into the net family property equalization calculations. The trial judge's conclusion that it was equitable to hold the parties to the 2004 agreement and assign the agreed upon value to the shares addressed both the issue of an equalization payment under the FLA [Family Law Act, R.S.O. 1990, c. F.3] and the OBCA issues arising from the transfer of shares from Sandy to Mary. While these issues are conceptually distinct and ought to properly be addressed separately, as a practical matter both issues arose from the marriage breakdown and the payment ordered by the trial judge can be viewed as finally settling the net family property equalization and OBCA issues. This is consistent with the language used in the trial j udge's order, which requires Mary to transfer her shares to Sandy for $213,475 and immediately thereafter states, "No further equalization is required." I do not find serious fault in this approach.

[34] Although much of the trial focused on the 2007 value of the Wright Group's shares, this issue was only relevant if the trial judge had concluded that no agreement had been reached in 2004 as to the share value, or that the agreement reached in 2004 had subsequently been repudiated. Once the trial judge found that the parties had reached a binding agreement on the share issue in 2004, he did not have to value the shares for the purposes of a compelled transfer under the OBCA. Instead, he could simply use the agreed upon value to dispose of that issue.

[35] The trial judge's approach was consistent with the parties' pleadings. Sandy's application, as well as Mary's answer, both sought the equalization of net family properties. In addition, Sandy's pleading states that he made a substantial payment to Mary in reliance on the 2004 settlement, referring to the $243,500 he paid Mary for her interest in the Shop and her portion of the proceeds from the sale of the matrimonial home.

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[36] Similar support for the trial judge's conclusion on the valuation issue can be found in the parties' final written submissions at trial. Sandy appended his net family property statement showing that he owned 100 per cent of the shares. [See Note 2 below] In her final submissions, Mary confirmed that ordering an equalization payment was an option, that the net family property statement could be used to give a total picture of the obligations the parties owed to each other and that the agreed upon 2004 share value should be used.

[37] Using the 2004 share value also obviated the need to have Sandy account for the Wright Group's operations for the 2004 to 2007 period when he had effectively operated the businesses as his own. Sandy's expert explained that because the companies' principal asset -- a gravel pit -- was being rapidly depleted, the value of the Wright Group's land had declined substantially since 2004. During that same period, Sandy's salary from the Wright Group had increased substantially. Absent such an accounting, therefore, it may well have been unfair to Mary to have used the 2007 value.

[38] Ultimately, the trial judge's decision simply implements the parties' 2004 agreement. He ordered that title to the shares owned by Mary be transferred to Sandy and that payment to Mary of the agreed upon amount be made. On the specific facts of this case, it was, in my view, open to him to proceed in this manner and I would not interfere.

(2) The quantum and duration of spousal support awarded

[39] Sandy submits that the trial judge erred in awarding Mary indefinite spousal support in the amount of $800/month despite his findings that she is an intelligent and resourceful woman who has done little to promote her economic self- sufficiency and now enjoys a more luxurious lifestyle with Mr. Demarte.

[40] Mary submits that support payments compensate a spouse upon the breakdown of a marriage for contributions made to the marriage. Mary argues her ability to earn has been reduced because she did not pursue her education or career as a direct result of her marriage to Sandy and the raising of their children. She submits that her failure to achieve economic self-sufficiency is only one of many factors to be considered.

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[41] The Supreme Court has recognized that appellate courts should not disturb support orders made by trial judges unless the reasons disclose an error in principle, a significant misapprehension of the evidence or unless the award is clearly wrong: Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, [1999] S.C.J. No. 9, at para. 11.

[42] I find no such basis for interfering with the quantum and length of the support order made in this case.

Cross-Appeal

(3) The non-retroactivity of spousal support

[43] In her cross-appeal, Mary seeks retroactive and post- application support for the period commencing on November 1, 2005 (when Sandy discontinued the voluntary "salary" payments) up until September 1, 2008 (when the trial judge's order for payment of support commenced).

[44] Mary submits that, having determined that she was entitled to support, the trial judge erred by not making the support order commence on November 1, 2005, or by not allocating a portion of the monthly payments of $2,647.87 made by Sandy to support for the pre-trial period.

[45] As discussed above, support orders made by trial judges are entitled to deference upon appellate review. In my view, there is no basis for interfering with the trial judge's conclusions on the issue of spousal support in this case. His reasons reflect an appreciation of the circumstances and a careful consideration of the relevant factors. Summarizing his analysis, the trial judge wrote [at para. 158]:

Mary received an acceptable sum of spousal support during and for some time after the collaborative law process. Thereafter, she chose not to make any application for interim spousal support. The $2,647.87 she was recently receiving was without prejudice. I have allocated it to share acquisition. It seems likely that she spent that sum even though it was partly capital, as she did with her RRSPs. However, the evidence is clear that she lacked for nothing and she failed to disclose how she maintained her current lifestyle.

[46] The trial judge's conclusion in this regard was amply supported by his findings of fact, including his finding that Mary failed to show need; made a conscious choice to take a break from her former regimen of continuous hard work; did little to promote her economic self-sufficiency; chose to, in effect, take a period of retirement and live off her capital and the generosity of her parents; enjoyed a very comfortable lifestyle with Mr. Demarte; and concealed from the court the means by which she manages to support that lifestyle. The trial judge also

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correctly took into account Sandy's ability to pay, given his financial situation and the balance of the order being made.

(4) The award of substantial indemnity costs

[47] Mary also cross-appeals the trial judge's award of costs. She submits that she was largely successful at trial and that the trial judge erred in awarding costs to Sandy on a substantial indemnity basis.

[48] I disagree. The order of costs is discretionary and, even if I were to agree that Mary was largely successful, trial judges have the ability to award costs against a "successful party who has behaved unreasonably" or where otherwise appropriate: see Family Law Rules, O. Reg. 114/99, rule 24(4); M. (C.A.) v. M. (D.) (2003), 2003 18880 (ON CA), 67 O.R. (3d) 181, [2003] O.J. No. 3707 (C.A.), at paras. 40-41; Ramsay v. Ramsay, [1999] O.J. No. 4835, 1999 15027 (S.C.J.), at para. 10.

[49] In this case, the trial judge gave ample reasons for his costs award. The trial judge found that Mary's settlement proposals were "outrageous" and constituted "a completely impossible demand for spousal support". Furthermore, the trial judge found that Mary did not "win" her claim for the transfer of shares or for spousal support, but rather had continuously made settlement impossible by making demands that she knew could never be met. In effect, the trial judge concluded that the matter would have settled years ago had Mary not sought to obtain much more than what had been agreed to between the parties in 2004.

Conclusion

[50] For these reasons, I would dismiss both the appeal and cross-appeal. At the request of the parties, I have not dealt with costs. If the parties are unable to reach an agreement on costs, I would ask Sandy to provide brief written submissions within 20 days hereof and Mary to provide brief submissions within ten days thereafter.

Appeal and cross-appeal dismissed.

Notes

Note 1: On the matter of security for the shares, the trial judge ordered that the share certifates be charged with a note such that, should Sandy default, any shares that are unpaid shall be re-transferred to Mary.

Note 2: The appellant took the position that the value that should be ascribed to the shares was the 2007 value testified to by his expert, rather than the agreed upon 2004 value.