text:
No. 93,470
1. The Kansas Spousal Elective Share statutes, K.S.A. 59-6a201 et seq., give a surviving spouse the right to take an amount equal to the value of a percentage of an estate, augmented by certain uncompensated nonprobate transfers by the decedent to others, the percentage determined by a statutory table based on length of the marriage.
2. Upon election by a surviving spouse, the statutory scheme requires analysis of uncompensated nonprobate transfers to determine whether assets should be "pulled back" or included in the augmented estate, together with valuation of those assets at date of transfer.
3. Although written consent of the surviving spouse to a nonprobate transfer of assets renders those assets excludable from the augmented estate, consent is irrelevant to issues of valuation under K.S.A. 59-6a205 and 59-6a207, and the paramount consideration is to value the property at date of the nonprobate transfer.
4. In valuing minority interests in closely-held corporations, control and marketability discounts are not appropriate when the purchaser is either the majority shareholder or the corporation itself. Similarly, when the result of the transaction unifies the interests of a partnership in the same individual, albeit as an individual and a trustee, such discounting is illusory in valuing the interests transferred.
5. Where the sole asset of a partnership is 100% of the stock of a closely held corporation that has already been discounted for lack of marketability, no further discount may be appropriate when valuing interests in such a partnership because the partnership does not perform a management function for such a purely passive asset.
6. Where, as here, the artificiality or illusory nature of the partnership entity is manifest by disregard in practice, including illusory capital contributions, lack of any filing of state or federal partnership tax returns, circumvention of dividends payable, and charter forfeiture by the State, the separate legal existence of the partnership entity at death does not require discounting that might otherwise be appropriate in valuing partnership interests.
7. Under the facts of this case, recognition of control and marketability discounting could encourage the creation of layers of illusory ownership for nonprobate transfers, each with the potential for additional discounting, and all for the purpose of insulating the true value of assets transferred in furtherance of a scheme to disinherit a spouse. Such encouragement would be counter to the legislative purpose inherent in the Kansas spousal elective share statutes.
8. When a life tenant and a remainderman unite in a nonjudicial sale of property, without agreeing as to a division of disposal of the proceeds, the life tenant is entitled to receive from such proceeds the estimated value of his or her life estate computed as of the time of the sale.
9. In appraising real estate subject to a lease agreement, if the lease is in full force and effect, there is no evidence presented to suggest that the terms of the lease would not be complied with, there is a significant remaining term of the lease, there is no question regarding viability of the tenant, and there is a provision requiring purchase by the tenant at termination, it defies logic to disregard the lease's impact on the value of the realty.
10. Factors considered in determining an appropriate capitalization rate in appraising real property by the income approach to value include the nature of the property, the positive and negative physical attributes of the property, the term of any lease, the market rate for rent for similar properties, and any risk factors that could affect receipt of payments under existing leases.
11. In a probate matter, services provided or expenses incurred by an executor or his or her attorney solely to benefit one or more of the heirs or beneficiaries to the detriment of or without any benefit to the estate are not properly compensable or reimbursable from the estate assets.
12. For purposes of fee awards in a probate proceeding, even if it can be established that some of the efforts of an executor or his or her attorney were more beneficial to other individuals or entities than to the estate, it is no abuse of discretion to fail to require any precise formula that would segregate, allocate, or otherwise treat differently such services from those performed exclusively for the estate.
Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed June 2, 2006. Affirmed in part, reversed in part, and remanded with directions.
Michael R. Ong and Michelle M. Burge, of Law Office of Michael Ong, P.A., of Leawood, for appellant/cross-appellee.
Byron E. Springer, William N. Fleming, and Terrence J. Campbell, of Barber Emerson, L.C., of Lawrence, for appellee/cross-appellant.
Before RULON, C.J., ELLIOTT and GREENE, JJ.
GREENE, J.: Maryam Hjersted, surviving spouse of Norman B. Hjersted, petitioned under K.S.A. 59-6a201 to take her spousal elective share of the augmented estate, thus triggering contentious and complex litigation with her stepson and executor, Lawrence Hjersted, regarding valuation of uncompensated nonprobate transfers to Lawrence and to Norman's trust, as well as related issues. Maryam appeals several orders of the district court, including (i) the award of $100,000 as executor fee; (ii) the award of $284,330 as executor expenses and attorney fees and costs; and (iii) the reduction by $10,000 of the value of an uncompensated transfer to Lawrence of a limited partnership interest to be included in the augmented estate. Lawrence, executor of Norman's estate and trustee of Norman's revocable trust, cross-appeals several orders of the district court, including (i) the court's valuation of an uncompensated nonprobate transfer to him of a limited partnership interest to be included in the augmented estate; (ii) the inclusion in the augmented estate of a portion of the proceeds of the sale of certain realty in Nebraska; and (iii) the court's valuation of certain realty in Missouri to be included in the augmented estate. We analyze each issue framed, affirming the district court on all issues except Lawrence's issue (iii), where we reverse and remand for further proceedings.
Factual and Procedural Background
Norman J. Hjersted died testate April 28, 2001, survived by his wife of nearly 20 years, Maryam; his son born of that marriage, Timothy; and three children from a prior marriage, Lawrence, Karen, and Ingrid. At some time before his death, Norman apparently visited his attorneys and expressed a desire to disinherit his wife. The following transactions occurred during the last few years of Norman's life, each of which spawned issues for the probate court and this appeal following Norman's death:
The Restated Norman B. Hjersted Revocable Trust (the Trust).
The Trust was created in 2000 by amendment and restatement of a prior trust agreement created in 1998. The will "poured over" the probate assets into the Trust. At the time of Norman's death, Lawrence was trustee.
Hjersted Family Limited Partnership (HFLP).
HFLP was created in 1997, and the initial partners were the decedent, who owned a 2% general partnership interest and a 96% limited partnership interest, and Lawrence, who owned a 1% general partnership interest and a 1% limited partnership interest. The decedent transferred all of the outstanding shares of his company, Midland Resources Inc. (MRI), to the partnership, and these MRI shares were the sole asset of the partnership. On March 1, 2000, decedent and Lawrence entered into a part gift/part sale transaction whereby decedent transferred to Lawrence his 96% limited partnership interest in HFLP.
Nebraska realty/Florida orange grove.
Norman owned a life estate in certain realty in Richardson County, Nebraska, and Lawrence owned the remainder interest. In September 1999, under purported "threat" of condemnation, the property was deeded to the United States Army Corps of Engineers for $292,950. The price included both the life estate and the remainder interest, but the entire proceeds were deposited into Lawrence's bank account. Lawrence later contributed these proceeds toward the purchase of a Florida orange grove as a like-kind investment. At the time of this purchase, Norman wrote to Lawrence, "It is my intent and has always been that you retain ownership of the Florida Farm. I would like and need some of the profits but not to exceed 5%/year of value of money received from the Corp. of Engineers."
St. Louis Realty.
At some unspecified time prior to his death, Norman conveyed to the Trust his interest in St. Louis, Missouri, realty. The parties stipulated that this property was an asset of the Trust and, therefore, part of the augmented estate, but the parties disagreed as to its value. In March 2000, the property was leased to MRI for a term of 10 years, and the lease contained a provision requiring the tenant to purchase the property at the conclusion of the term for a price to be determined from a formula in the lease agreement.
Following Norman's death, Maryam filed a petition seeking her spousal elective share of Norman's estate pursuant to K.S.A. 59-6a201 et seq. Subsequently, the district court admitted the will to probate and appointed Lawrence executor of the estate. Although the parties were able to resolve numerous issues necessary to determine the value of the augmented estate under K.S.A. 59-6a203, unresolved issues prompted a lengthy and complex trial before the district court in June 2003.
Ultimately, after modifications to its original orders, the district court calculated the total value of the augmented estate to be $4,548,333. The court awarded Lawrence $100,000 as executor fee, and awarded his attorneys $233,602.75 in fees, $18,935.69 in costs, and $31,792.03 in expenses. Based upon the length of the marriage, Maryam's elective share percentage under the statute was 50%, and the court determined that her unsatisfied elective share was $1,175,322.
Overview of the Kansas Spousal Elective Share Statutes
In 1994, the Kansas Legislature amended the Kansas Probate Code to incorporate a comprehensive spousal elective share scheme patterned after the Uniform Probate Code. See K.S.A. 59-6a201 et seq. The statutory scheme gave the surviving spouse the right to take an elective share amount equal to the value of an elective share percentage of the augmented estate, the percentage determined by a statutory table based on length of the marriage. K.S.A. 59-6a202. For purposes of determining the augmented estate, certain uncompensated nonprobate transfers to others are included, including certain of those during the 2-year period next preceding the decedent's death. K.S.A. 59-6a205 and K.S.A. 59-6a207.
The public purpose of the statutory scheme is to prevent disinheritance of the surviving spouse. Moreover, the scheme is based on two theories of the marriage relationship: the "partnership theory" and the "support theory." The partnership theory of marriage recognizes that both partners have contributed to the accumulated estate, whereas the support theory recognizes that during their joint lives, spouses owe each other mutual duties of support, and these duties continue in some form after death in favor of the survivor, as a claim on the decedent spouse's estate. A comprehensive discussion of the genesis and purpose of the Kansas scheme can be found in In re Estate of Antonopoulos, 268 Kan. 178, 180-84, 993 P.2d 637 (1999).
In a situation such as that presented here, upon the election by a surviving spouse, the statutory scheme requires analysis of nonprobate transfers to determine whether assets should be "pulled back" or included in the augmented estate, together with valuation of those assets at date of transfer. K.S.A. 59-6a205 to K.S.A. 59-6a208. Once the augmented estate has been composed generally from the net probate estate and the eligible uncompensated nonprobate transfers, the surviving spouse is entitled to the elective share percentage shown in the statutory table. K.S.A. 59-6a202 to K.S.A. 59-6a203. Award of fees and other administrative expenses reduce the augmented estate for these purposes. K.S.A. 59-6a204.
Standards of Review
This appeal presents numerous questions requiring construction and application of Kansas statutes. These questions are entitled to de novo review. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). To the extent that the district court made fact findings, particularly as they regard valuation issues, we review those findings to determine whether they are supported by substantial competent evidence. U.S.D. No. 233 v. Kansas Ass'n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). Substantial evidence is evidence possessing both relevance and substance which furnishes a substantial basis of fact from which the issues can reasonably be resolved. 275 Kan. at 318. We do not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 775, 69 P.3d 1087 (2003).
Lawrence urges us to review the district court's valuation conclusions for an abuse of discretion, citing In re Marriage of Cray, 254 Kan. 376, 867 P.2d 291 (1994). Cray, however, involved the propriety of the district court's selection of a particular valuation date for marital assets in a divorce proceeding. We do not believe that the discretionary selection of a valuation date in a divorce proceeding is parallel to the complex valuation issues presented in a probate matter, and we decline to adopt an abuse of discretion standard of review for the valuation issues herein.
Attorney and executor fee determinations in probate matters are reviewed for an abuse of discretion. In re Estate of Somers, 277 Kan. 761, 89 P.3d 898 (2004).
Did the District Court Err in Determining the Value of the
Uncompensated Nonprobate Transfer of the HFLP Interest to Lawrence for
Purposes of Inclusion in the Augmented Estate?
Lawrence appeals the district court's valuation of the 96% interest in HFLP conveyed to him in March 2000 by his father. He argues that the district court employed "fair value" rather than "fair market value" and, accordingly, failed to consider or apply discounts for lack of marketability and lack of control that were inherent in his limited partnership interest. Maryam maintains that there is no evidence to demonstrate the district court employed any valuation other than fair market value and that the court's refusal to consider such discounts was appropriate based on the absence of her consent to Norman's transfer of the interest to Lawrence.
Details of the transaction are essential to our analysis. The March 2000 transaction was achieved partially by gift and partially by sale. The gift portion consisted of a transfer of that extent of the HFLP limited partnership interest having a fair market value of $675,000; this was the maximum transfer without incurring gift tax under the Internal Revenue Code. The remainder of the limited partnership interest was purchased by Lawrence, by a down payment and promissory note in amounts to be determined by an appraisal of the interest. Because the sole asset of the limited partnership was 100% of the MRI stock, the appraisal required by this agreement first determined the stock to be worth $4,500 per share, but then discounted that value by a total of 32.5% to account for the restrictions imposed upon owners of a limited partnership, including lack of marketability and lack of control. Lawrence urged the court to add the value of only the gift portion of the transaction ($675,000) to the augmented estate.
In contrast, Maryam urged the court to adopt her appraiser's value of the MRI stock as of March 1, 2000, which reflected a discount of 10% for lack of marketability, and to include the full value of this stock (without further discounts attributable to limited partnership holding) in calculating the amount of the transfer, a total of 96% of $2,660,000, or $2,553,600. Thus, reducing the value by consideration received (the promissory note [$743,914] and down payment made by Lawrence [$39,150]), Maryam urged the court to add $1,770,536 to the augmented estate by reason of the uncompensated portion of the nonprobate HFLP conveyance in March 2000.
With one caveat, the district court adopted Maryam's calculation of the value of the transfer, finding that although the HFLP "was a valid and existing limited partnership at the time of the gift . . . and continues to be so," the entire value of the limited partnership interest (i.e., without discounts for control or marketability) must be included in the augmented estate because Maryam did not consent to the transfer. The court agreed with Lawrence, however, that K.S.A. 59-6a205(c)(3) required the court to reduce the amount of this uncompensated transfer by $10,000.
Lawrence initially claims that the district court utilized an incorrect standard of value in computing the value of the HFLP interest. He argues that the district court applied the concept of "fair value" rather then "fair market value." We agree with Maryam, however, that there is nothing to indicate the court used anything other than a fair market value standard. In fact, we find nothing in the record to suggest that any issue of value standard was addressed before the district court, and finding no preservation of an issue in this regard, we decline to analyze this argument further. See Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003). We note, however, that the crux of Lawrence's argument regarding applicability of certain discounts in the valuation process was preserved and will be addressed below.
Lawrence next argues that it was error for the court to focus on lack of consent in determining whether discounts inherent in limited partnership interests should be ignored. He argues:
"Why is consent an issue? The only relevant issue under the statute is the value of the gift. K.S.A. 59-6a205(c). Certainly, if the surviving spouse gives written consent, then the effect under the spousal election law is that the gift is not considered to be a part of the augmented estate, even if the gift was made within two years of the testator's death. See K.S.A. 59-6a208(a). For gifts that are pulled back into the calculation of the augmented estate pursuant to K.S.A. 59-6a205(c), however, the task for the court is to determine the value of the gift, not to selectively apply differing valuation principles for the gifted interest based on whether or not the surviving spouse consented to the gift."
We agree with Lawrence that the trial court erred in its exclusive focus on the lack of consent to the transfer. The proper focus was to determine the value "at the time that the right, interest, or power terminated." See K.S.A. 59-6a205(c)(1). Under K.S.A. 59-6a205 and K.S.A. 59-6a207, consent is irrelevant, and the paramount consideration is to value the "property" at the date of the nonprobate transfer. Here, the transfer was a 96% limited partnership interest in HFLP on March 1, 2000. The value of this property interest must be included in the augmented estate to the extent that it was not supported by consideration.
On the question of valuation of this interest, there was competing evidence on the value of the MRI shares held by the partnership. The district court weighed the evidence and accepted the appraisal presented by Maryam.
"[A]fter analysis of the written reports submitted by both experts and weighing the testimony provided by both experts, that the opinion of [Maryam's appraiser] is better supported (in particular with regard to use of more recent data concerning the increase in pre tax income in early 2000, the on sight investigation, and the inherent bias to minimize value by [the original appraisal] in performing the task hired for) and the court finds that the value of 500 shares of Midland Resources Inc. to be $2,660,000.00."
We conclude that there is substantial competent evidence to support this conclusion, leaving only the question whether the court's apparent misfocus on the MRI shares rather than the limited partnership interest resulted in error, particularly because of its disregard of discounts for lack of control and marketability purportedly inherent in the fact that the stock was held in a limited partnership.
On this question, we begin by analyzing the result of the transaction. After receiving the 96% limited partnership interest in March 2000, Lawrence owned a 97% limited partnership interest and a 1% general partnership interest. The remaining 2% general partnership interest had already been conveyed to the Trust or was headed there as a result of the "pour-over" provisions of the will; accordingly, the entirety of the partnership interests was unified in Lawrence, either individually or in his capacity as trustee.
Discounts for lack of control and lack of marketability were unnecessary under these circumstances for several reasons:
Discounting individual share holdings injects into the appraisal process speculation on the various factors which may dictate the marketability of such holdings. Cavalier Oil Corp. v. Harnett, 564 A.2d 1137, 1145 (Del. 1989);
Control and marketability discounts are not appropriate when the purchaser is either the majority shareholder or the corporation itself. Arnaud v. Stockgrowers State Bank, 268 Kan. 163, Syl. ¶ 3, 992 P.2d 216 (1999). Similarly, when the result of the transaction unifies the interests of a partnership in the same individual, albeit as an individual and a trustee, such discounting is illusory;
Where the sole asset of the partnership is corporate stock that has already been discounted for lack of marketability, no further discount is appropriate when valuing the partnership interests because the partnership did not perform a management function for such asset. See Estate of Bongard v. Commissioner, 124 T.C. 95, 126-29 (2005) (transfer of stock to a limited partnership does not satisfy bona fide sale exception to 26 U.S.C. § 2036[a] [2000]);
Where, as here, the artificiality or illusory nature of the partnership entity is manifest by its disregard in practice, including illusory capital contributions, lack of any filing of state or federal partnership tax returns, MRI dividends paid directly to Lawrence and Norman rather than the entity, and charter forfeiture by the State, the separate legal existence of the partnership entity at death does not require discounting that might otherwise be appropriate in valuing partnership interests. See Estate of Thompson v. C.I.R., 382 F.3d 367 (3d Cir. 2004); Estate of Reichardt v. Commissioner, 114 T.C. 144 (2000); Estate of Morton B. Harper, 83 T.C.M. (CCH) 1641 (2002); Estate of Dorothy Morganson Schauerhamer, 73 T.C.M. (CCH) 2855 (1997) (all of which hold that where a decedent's relationship to transferred assets remains the same before and after transfer, the assets transferred are returned to gross estate for estate tax purposes).
Recognition of discounting under these circumstances could encourage the creation of layers of illusory ownership for nonprobate transfers, each with the potential for additional discounting, and all for the purpose of insulating the true value of assets transferred, in furtherance of a scheme to disinherit a spouse. Such encouragement would be counter to the legislative purpose of the Kansas spousal elective share statutes. See In re Estate of Antonopoulos, 268 Kan. 178, 181-82, 993 P.2d 637 (1999); Ackers v. First National Bank of Topeka, 192 Kan. 319, 332-33, 387 P.2d 840 (1963).
Although the district court erred in disregarding the proposed discounts due to lack of spousal consent, we may affirm where such disregard was appropriate for other reasons. See Hall v. Kansas Farm Bureau, 274 Kan. 263, 273, 50 P.3d 495 (2002).
The parties raise two related issues regarding the valuation of the HFLP transaction:
(1) Maryam challenges the district court's deduction of $10,000 from the valuation of the partnership interest for purposes of augmentation, and she claims there were additional transfers of $10,000 that should have been considered. We reject this argument, concluding that in the deducting this $10,000, the district court did no more than follow K.S.A. 59-6a205(c)(3) in including the value of property transferred only "to the extent that the aggregate transfers to any one donee in either of the two years exceeded $10,000." (Emphasis added.) Claims to consider additional nonprobate transfers were not preserved below.
(2) Lawrence challenges the district court's failure to consider the liability of MRI created by a deferred compensation agreement between Norman and MRI that was dated March 8, 2000. We reject this argument, concluding that the statute required valuation of the HFLP interest on the date of the transfer, March 1, 2000. Despite evidence that the compensation agreement was intended to be a part of the transaction, the district court found to the contrary, and we decline to reweigh the evidence or redetermine the underlying question of fact. See State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. at 775.
For all of the reasons stated, we affirm the district court's valuation of the HFLP transfer and the resulting addition of $1,760,536 to the augmented estate.
Did the District Court Err in Including in the Augmented Estate
a Portion of the Proceeds from the Sale of the Nebraska Realty,
Based on Norman's Life Estate Therein?
Lawrence next challenges the district court's decision to include in the augmented estate a portion of the proceeds from the sale of Nebraska realty, arguing that the forced nature of the sale, together with the reinvestment agreement, did not "separate the life estate from the remainder [estate]." Lawrence argues that the reinvestment of proceeds from the sale into the Florida orange grove with the understanding that Norman would have "5%/year" profits should limit any inclusion of proceeds in the augmented estate to the extent of such unpaid profits, or $23,478. In contrast, Maryam argues and the district court concluded that the augmented estate should include a portion of the proceeds of sale, based upon actuarial tables using Norman's age at the time of transfer and an appropriate interest rate, amounting to $137,393.55. The parties stipulated to these competing values, framing only the question of which conceptual approach was correct.
During the bench trial, the district court ruled from the bench that the only evidence of a reinvestment agreement, a handwritten memo from Norman expressing his desire for 5% profits from the reinvestment, was not an enforceable agreement.
"That's a memorandum of what they discussed, but it's not an agreement. Agreement requires consideration and a contract signed by both parties, and it's not been signed by both parties. It's signed with Mr. Hjersted as to what he expects, so the Court finds that's not an agreement. No written agreement."
We agree. A careful reading of the handwritten memo reveals that it was nothing more than an expression of Norman's desire to receive a portion of the profits from the Florida orange grove. It did not speak to the actual disposal or division of the proceeds from the sale of the Nebraska property. Moreover, no payments were ever made to Norman by Lawrence, based upon the memo. Lawrence's basis for a stipulated amount of unpaid profits to be included in the augmented estate is unsupported by any enforceable agreement.
Lawrence argues that Maryam's conceptual approach is legally flawed, because "the law affirmatively prohibits the district court from separating the life estate from the remainder as part of a forced sale." Lawrence supports this statement with the following quote from treatise law:
"When not required by the exigencies of the situation, the separation of life estates from estates in remainder, by estimating the values of the former and paying such values to the life tenants, constitutes an unnecessary and therefore unauthorized infringement upon the testator's intention. Hence, in the absence of some overpowering necessity, the court has no power to direct the separation of the life estate from the estate in remainder by estimating the value of the former and paying that value to the life tenant." 51 Am. Jur. 2d, Life Tenants and Remaindermen, § 105, Practice Guide, p. 296-97 (2000).
Lawrence's quotation and associated argument are a bit misleading, however, given that the treatise section begins with the caveat: "When the entire interest in real estate is sold by court order . . . ." (Emphasis added.) In fact, the cited treatise expressly notes that "[t]he judicial or nonjudicial character of the sale greatly affects whether a life tenant is entitled, or may be compelled, to receive from the proceeds of a sale of the property which was subject to his or her estate." 51 Am. Jur. 2d, Life Tenants and Remaindermen, § 104, p. 295 (2000). The treatise then fully supports a division of the life estate interest when there has been a nonjudicial sale:
"When a life tenant and remainderman unite in a nonjudicial sale of property, without agreeing as to a division of disposal of the proceeds, the life tenant is entitled to receive, absolutely, from such proceeds the estimated value of his or her estate computed as of the time of the sale." 51 Am. Jur. 2d, Life Tenants and Remaindermen, § 107, p. 299 (2000).
Notwithstanding the district court's characterization of the sale as "forced," we note Lawrence's admission at trial that the sale was entirely voluntary.
"The Army Corp of Engineers came to me asking me if I wanted to sell this property. I didn't have to sell it. I got my dad's approval and he signed a document which I don't have, but that was prior, and that document then bound us. At the time we did that, I didn't know that–I didn't know that he would get a division of that. I didn't know that until after we were already bound to do it." (Emphasis added.)
The sale of the Nebraska realty was clearly not a judicial sale, and based upon this admission by Lawrence, it was not truly a "forced" sale either. We adopt the rule set forth above as applicable, that when a life tenant and remainderman unite in a nonjudicial sale of their property, the life estate is entitled to receive the estimated value of his or her estate at the time of sale. We understand that this is precisely what Maryam's approach was intended to achieve.
Given the stipulation as to the numerical calculation, we decline to examine the amount with more precision, and we affirm the district court's adoption of Maryam's approach together with the resulting inclusion of $137,393.55 in the augmented estate.
Did the District Court Err in Its Valuation of the Missouri Realty
for Purposes of Inclusion in the Augmented Estate?
Lawrence next challenges the district court's valuation of Missouri realty on which MRI operates a chemical plant. The property was deeded to the Trust by Norman prior to his death, so the only issue presented to the district court was how the property should be valued for purposes of inclusion in the augmented estate.
At trial, Lawrence presented evidence of an appraisal of the realty conducted at his request that stated the fair market value of this property was $250,000 at the date of Norman's death. Lawrence also presented evidence of various environmental problems associated with this property, but the appraisal did not consider such problems and it is not clear that Lawrence sought further discounts to the appraised value due to such problems. In any event, Lawrence contends on appeal that his appraisal was the sole evidence of fair market value and that the district court erred in concluding otherwise.
Maryam did not present appraisal evidence as to value of this property, but instead relied solely upon monetizing a lease agreement for the property between Norman as landlord and MRI as tenant. According to its terms, MRI was required to pay $5,000 per month to Norman during a 10-year term concluding in March 2010. At termination, the lease provided that the tenant was required to purchase the property at the greater of (I) 10 times annual rental; or (ii) fair market value determined by appraisal. This purchase requirement expressly stated that any such appraisal "not take into account any environmental contamination associated with the Real Estate." Given this lease, Maryam proposed that valuation be based upon the balance of rental payments and 10 times the rental rate, both discounted at 6%, the rate issued by the Internal Revenue Service for federal income tax purposes for April 2001 under § 7520 of the Internal Revenue Code (the § 7520 rate). See Rev. Rul. 2001-17 and 26 U.S.C. § 7520 (2000). The revenue ruling established the rate "for determining the present value of an annuity, an interest for life or a term of years, or a remainder or reversionary interest."
The district court rejected Lawrence's appraisal and adopted Maryam's approach to value of this property:
"The court rejects the executor's request to use the appraised value, as the lease creates greater value to the decedent and his successors, than that of the present fair market value; without the lease, the court would have used appraised value. There was no evidence presented to suggest that the terms of the lease would not be complied with and the court believes the amounts contracted to be paid, would in fact be paid, thus creating a different and higher value than fair market value. The fact that there may exist environmental contamination associated with the property does not impact the contractual obligation to pay the terms of the lease, and in light of the profitability and appraised value of Midland, these concerns did not impact on the court[']s beliefs and findings.
"Further as the lease creates two obligations to pay the decedent and his successors, the court accepts the arguments of the surviving spouse that the court should bifurcate its approach to the value of the real estate in St. Louis, and thus finds the value of the lease is $315,074.30 and the value of the 'put right' at $358,521.36.
"The total value of the St. Louis real estate is $673,595.66, to be added to the [K.S.A.] 59-6a204 net probate estate."
At the outset, we agree with the district court that Lawrence's appraisal must be rejected. The appraisal states that "[t]he property is reportedly involved in a corporate lease, and this lease is not considered to be arms length and it was not considered in the valuation of the property." This statement conflicted with the court's findings that "the lease agreement was in full force and effect on the date of decedent death, and remains so today" and that "[t]here was no evidence presented to suggest that the terms of the lease would not be complied with."
Given these fact-findings, together with the significant remaining term of the lease, the viability of the tenant, and the provision requiring purchase at termination, it simply defies logic to disregard the lease's impact on the value of this property. (We note that the appraiser's failure to analyze the effect on value of the terms and conditions of the lease may also violate generally accepted appraisal practice. See Appraisal Standards Board, Uniform Standards of Professional Appraisal Practice, Standards Rule 1-4(d) [2001 ed.]). We view the district court's criticism of the appraisal and the court's refusal to adopt or further consider Lawrence's appraisal conclusion as grounded in a credibility determination, and we decline to disturb the court's conclusion in this regard. See Oshman, 275 Kan. at 775.
Even more problematic, however, is Maryam's reliance on the 26 U.S.C. § 7520 (2000) rate for purposes of capitalizing revenue streams and discounting terminal purchase price under the MRI lease. We agree with authorities cited by Lawrence regarding the impropriety of employing the § 7520 rate for these purposes. For example, the tax court has stated:
"A leasehold interest is the product of an agreement providing for a lessor to receive payment for a lessees's use of property. Valuation of the resultant payment stream typically relies upon an income capitalization approach to discount the rental installments to present value. Factors considered in calculating an appropriate capitalization rate include the nature of the property, the positive and negative physical attributes of the property, the term of the lease, the market rate for rent for similar properties, and any risk factors that could affect receipt of payments." Estate of Gribauskas v. Commissioner, 116 T.C. 142, 153 (2001), rev'd on other grounds 342 F.3d 85 (2d Cir. 2003).
Although we agree that the terms and conditions of the MRI lease were crucial to an accurate valuation of the Missouri realty, we are unable to determine the propriety of the district court's decision to apply the § 7520 rate for purposes of capitalizing the income stream or discounting the terminal purchase value. In fact, the record and the court's journal entries are devoid of the detailed calculations, making it impossible for us to provide meaningful appellate review. See Burch v. Dodge, 4 Kan. App. 2d 503, 506-07, 608 P.2d 1032 (1980).
We conclude that neither party to the proceeding provided substantial competent evidence of the value of the Missouri realty and that the court's adoption of Maryam's approach to valuation is not sufficiently supported or detailed for appellate review. For all these reasons, we are compelled to reverse the district court's valuation of the Missouri realty and remand for further proceedings to determine the fair market value of this property at the date of Norman's death with due regard for all terms and conditions of the MRI lease.
Did the District Court Err in Awarding Executor and Attorney Fees and Costs?
The final issue in this appeal is Maryam's challenge to the district court's award of executor and attorney fees and costs. Generally she contends that the fees were either inadequately documented, unreasonable, or inappropriate in light of Lawrence and his attorneys' performance of duties unrelated to the interests of the estate.
At the posttrial motions hearing, the parties extensively litigated the propriety of this award. Lawrence testified in some detail about the various duties he performed on behalf of both the estate and the Trust as well as the impact those duties had on his personal and professional life. Additionally, Lawrence testified about his numerous trips to Kansas that were associated with the administration of the estate; for support, Lawrence submitted a copy of his counsel's itemized billing record with the dates of Lawrence's participation highlighted. The court also admitted a document into evidence estimating from the information contained in the billing record that Lawrence spent 197.6 hours providing services as executor through July 31, 2003. Lawrence conceded, however, that he did not keep a log of the time he spent performing estate or trust duties. Lawrence testified he arrived at his requested sum of $100,000 by estimating both that the estate administration would wrap up by the end of December 2003 and that his services were worth approximately $33,000 per year. When asked whether he believed the sum of $100,000 represented fair compensation for the duties he performed as executor, Lawrence responded, "I think it's a bargain."
In contrast to the documentation for executor fees, the attorney fee request was supported by a 57-page detailed billing, reflecting date of service, timekeeper, hours spent, rate, and detailed description of services provided. The hourly rates of timekeepers servicing the estate ranged from $45 (presumably paralegal services) to $180.
The district court's comments from the bench illuminate its rationale for the fee awards. With regard to the executor fee, the court stated:
"[Lawrence] has a lot of responsibilities and spent a lot of time and the Court believes that, while [Maryam's counsel] has pointed out that, you know, trying to account for hours he has failed to do, but I'm not expecting of that, I really think the Court looks at the overall position that he was placed into, the trust he was given by [Norman], the responsibilities given to him, I think he has earned a fee of; $100,000 is warranted under the circumstances. . . . Well I'm not going to try to suggest that I am basing this on x-number of hours that he spent on it, I just know that he spent an awful lot of time, that he was invested with a lot of responsibility and that should be compensated and when you consider the length of time these proceedings have gone, the complexity of the issues, the involvement he had obviously with the number of hours he spent dealing with lawyers, accountants, appraisers, etcetera, travel; the court believes he is justified not by any percentage, not by any hourly rate, but just by the overall complexity, time spent and responsibility level."
With regard to attorney fees and costs, the court stated:
"[T]he Court believes that even while there may have been some blending and some overage and overlapping, the Court still believes that the fee is not unconscionable, the request and that it is in all or in part related to the estate and therefore, the court denies the request to reduce the fee as [Maryam's counsel] has suggested."
Again, the crux of Maryam's argument is that the district court erred in awarding the requested executor and attorney fees because the services rendered were not confined to the administration of the estate. For support, Maryam correctly states that an allowance of fees is inappropriate when a party pursues litigation for his or her personal benefit rather than for that of the estate and is unsuccessful in those endeavors. See In re Estate of Somers, 277 Kan. 761, 773, 89 P.3d 898 (2004); Householter v. Householter, 160 Kan. 614, Syl. ¶ 2, 164 P.2d 101 (1945).
Pursuant to the probate code, every fiduciary is "allowed his or her necessary expenses incurred in the execution of his or her trust, and shall have such compensation for services and those of his or her attorneys as shall be just and reasonable." K.S.A. 59-1717. An executor qualifies as a fiduciary of the probate estate. K.S.A. 59-102(2) and (3); In re Estate of Petesch, 31 Kan. App. 2d 241, 244, 62 P.3d 674 (2003). Accordingly, an executor owes a duty to the estate as a whole rather than to each individual heir. 31 Kan. App. 2d at 244. In allowing an executor's claim for compensation, a district court must find that the services rendered were reasonably necessary for the proper administration of the estate. 31 Kan. App. 2d at 244-45. "Services provided or expenses incurred solely to benefit one or more of the heirs or beneficiaries to the detriment of or without any benefit to the estate are not properly compensable or reimbursable from the estate assets." (Emphasis added.) 31 Kan. App. 2d at 245.
Mindful that we review these awards for an abuse of discretion, we simply cannot conclude that either the executor fee or the attorney fees were unreasonable. The record demonstrates Lawrence spent a considerable amount of time in the past 5 years tending to matters involved in the administration of Norman's estate. Although Lawrence performed services in various capacities, one cannot conclude he provided those services "solely to benefit one or more of the heirs or beneficiaries to the detriment of or without any benefit to the estate." (Emphasis added.) Petesch, 31 Kan. App. 2d at 245. Moreover, even if one could establish that some of the efforts were more beneficial to Lawrence or the Trust than to the estate, the parties have not proposed and we decline to require any precise formula that would accurately segregate, allocate, or otherwise treat differently such services from those performed exclusively for the estate.
We specifically reject Maryam's suggestion that all fees be prorated based upon the amount and source of assets ultimately included in the augmented estate, because the raw dollar value of an asset is no reliable measure of services that were reasonably necessary to properly administer that asset.
Given both the complex circumstances involving the administration of Norman's estate and the nature of the duties imposed upon Lawrence, the district court's view of services performed by the executor and his attorneys was reasonable. To this end, Maryam's arguments on appeal are troubling, in that they appear to disregard the inherent overlap in duties imposed upon Lawrence. Moreover, she casts a negative shadow over Lawrence's decision, as executor, to defend the estate against her spousal election claim, characterizing Lawrence's actions as having been "done in an effort to advance the interests of recipients of non-probate transfers from the decedent." Although, undoubtedly, this probate matter became contentious, Maryam's characterization of Lawrence's underlying intentions in defending against her election claim is unsubstantiated in the record.
From a review of the extensive record, and based on the district court's reasonable characterization of the nature of services performed, we conclude the district court did not abuse its discretion in awarding and deducting from the probate estate the executor fee, attorney fees, costs, and expenses pursuant to K.S.A. 59-6a204.
Summary and Conclusion
The district court is to be commended for an overall fair and insightful resolution of complex factual and legal issues presented by this probate matter. We affirm the district court's conclusions regarding the valuation and inclusion in the augmented estate of Lawrence's HFLP interest, Norman's life estate in the Nebraska realty, and the awards of executor and attorney fees, costs, and expenses. We reverse only the district court's valuation of the Missouri realty and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings with directions.


text:
Are bicyle passenger trailers limited to child sizes? I have looked for larger sizes but most stores only offer trailers sized for children. It would be an inline trailer sized for a small to medium size female, 160 pounds (72kg) or less.
closed as not constructive by freiheit♦ May 13 '13 at 18:00
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1Would it also fit small males, 160 pounds and under? – Cascabel Oct 22 '12 at 16:02
How about a pedicab? – Glenn Nov 5 '12 at 22:05
Who is the trailer for? Also, would a tandem (a bicycle built for two) work? – unforgettableid Nov 11 '12 at 6:05
Equinox makes a larger version of a child carrier for passengers up to 200 lbs. See: http://www.equinoxtrailers.com/store/item/19
Wike trailers makes a Special Needs trailer: http://www.wicycle.com/special_needs_extra_large_bicycle_trailer.php
Pashley used to do something a bit like this that I thought went to adult sizes: http://www.cyclesense.co.uk/m17b0s435p7209/MISSION-Piggy-back-Mk11-special-needs-24-inch-wheel-2012 (And that might be big enough for you.)
Looking at http://www.castlecaremobility.com/pashleyaccessories2.htm maybe the Pashley was only child size anyway.
I've never seen a large equivalent of the sort of trailers that small children just sit in though.
If by "inline", you mean a single wheel trailer like the Bob Yak, I've never seen a passenger version of them, only two-wheeled.
Haven't seen a commercial trailer that allows for passive adult passengers. There are the Caboose Trailer Bike and home made Recumbent Bike Trailer as alternatives. Also, Xtracycle supports passengers up to 200 pounds.
I'm pretty sure I've seen photos of one of the heavy-duty eurobikes with a heavy trailer attached. Don't know any brands, though, or where you'd get one.
Blue Sky Cycle Carts makes one - we have had it for more than 10 years!

subset: commoncrawl


text:
About Last Night...
How do I say this, Orlando? I mean, last night you were simply...well...
Yeah, that's the word. :)
John and I arrived extremely nervous for my first-ever book signing, but you guys put us right at ease. It turns out you Wreckies are a kind, considerate bunch who are perfectly willing to patiently wait your turn in line for free cake. And oh, what a Wrecktastic cake it was!
This monster homage of Wreckiness was created by the lovely Johnnie of Something Sweet Cake Studio, located just outside of Orlando in Titusville.
In addition to the Wreck pile-up you see here, Johnnie also provided a yummy chocolate and caramel frosted sheet cake, which disappeared like hot...er...cakes. But, of course, that insane carrot jockey stole the show.
Later in the evening, when the sugar buzz was apparently affecting us all, we actually had a real live baby sitting on that fondant carrot. (Relax; we took it off the cake first.) Someone will have to send me that photo, though, because I didn't get it on my camera. [pouting]
In addition to the showpiece that Johnnie provided, we also had some truly astounding entries in our cupcake Wreckplica contest. Here's the grand prize winner, by Jackie Cochran:
(Yes, someone dared to bring a mini CCC [patooie!] to MY signing. The horror! Maybe that's why he or she left her name off. ;) Oh, and the mini order form says "please put vegan icing on it." Heh.)
You can find all of the cupcake entries in the Cake Wrecks FaceBook album.
Thanks again to Johnnie, Sharlene of Photo Art Works (who took all the pretty pics in this post), the Winter Park Borders staff (especially managers Jeff & Selene), and all the rest of you who braved the rain and 5:00 traffic to be there. Here's hoping you had even half as much fun as John and I did!


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Altogether too many of us suffer from high blood pressure and aren't even aware of it! Because of that it is often referred to as the "silent disease." Perhaps you haven't heard the statistics released by the American Heart Association, but it is estimated that as many as one-third of the adult population in the United States has elevated blood pressure. And of those people, as many as one-third of them don't even know they are suffering from it!
While there are prescription medications that treat the problem, there are also natural ways to help you keep your blood pressure within a healthy range. One, very important factor, is to reduce your daily intake of salt. And don't think that table salt is the only culprit. Whenever you see an ingredient that says "sodium" no matter what comes before or after, recognize that it is SALT, plain and simple. Reduce your intake of sodium and you pressure should naturally start to come down. The reason salt is so lethal is that it tends to cause fluid retention. This inflammation, or swelling, puts pressure on veins and arteries and they have to work harder to pump blood throughout the body.
Some foods and supplements are also known to be effective in combating high blood pressure.Did you know that garlic thins the blood and can help lower your pressure as well? It is recommended that if you supplement with garlic you do so under the care of a physician because it is that potent.
There are other foods and supplements that are also effective in helping to naturally control hypertension. Only a few were mentioned here to tell you that natural help is out there. It is not necessary to rely solely on chemical prescriptions. It is your health and you have a right to be proactive.


text: Fenton is the only women's basketball player in school history to have her number retired and holds three school records, including the single-season scoring mark with 490 points in 1989-90. She is the only women's basketball player in UMass Boston annals to be named Little East Conference Player of the Year (1989-90) and was an All-Conference selection three times, including twice a First Team All-Star. Fenton currently stands 19th on the NCAA III career rebounding list with 1,220 caroms and is fourth all-time among Division III New England players. Her career rebounding average of 12.4 is the 20th highest mark in NCAA III history as well. She finished her career, holding 11 school records and now ranks second on UMass Boston's career scoring list with 1,516 points and second on the school's career boards list. She is one of two players in the program's history to amass 1,000 or more points and rebounds. Fenton established the single-season standard for field goals made (196) for the Beacons in 1989-90 and has attempted more free throws (625) than any other women's player at UMB. She also stands second on UMass Boston's all-time list for career scoring average (15.5 ppg.), career free throws made (314), career field goal attempts (1,352), single-season points (453) and single-season rebounds (395). Her 24 rebounds on January 13, 1990 is the fifth-highest total in school-history and her 98 career games played ranks sixth all-time.


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ALL Entertainment Should Increase The Current Value Proposition/
Chris Dorr's recent post on MoviePass helped me recognize the world as it truly is today. It wasn't MoviePass that I needed to recognize. It was that the same thing that allowed Independent Film to flourish is the same thing that is now spurring on innovation everywhere. Once filmmakers stopped asking for permission to tell their stories, the floodgates opened to a far more diverse approach to culture generation. To the powers that be the end of permission looks like anarchy, but to the leaders to come, this is the stepping stone to necessary change. And we are seeing that now. MoviePass, for those yet to explore it, is essentially the Netflix of Theater-going: One price for access to an all you can eat buffet. MoviePass also has made a history of getting the stakeholders seriously bent out of shape. From the onset, MoviePass did not see a requirement to ask for permission to innovate. And they got shut out by the theaters subsequently as a result. But they found a work around and sustained. Now they have found a better way, and people are getting riled up again.
The first thing that bothered people about MoviePass was that the theater owners were not consulted. Unfortunately civil behavior falls by the wayside in the charge to innovate. Remember when you had to call everyone for a group meeting? And now you just send a group email. No one wants to move slow any more. They prefer to just get it done. Since MoviePass is paying the theaters for the tickets anyway, why is it such a big deal -- particularly if more people are now going to the movies, buying more popcorn, and shelling out for parking. Doesn't everyone win?
Oftentimes we know not what we do when we step ahead in line. Where does this path of efficiency lead. Virtually all social media and online activity serves one god: the mighty one of data mining. The aggregation of all our likes, wants, connections, and routes is generating new wealth and multiple hands into our wallets. Is it really theirs to take?
James Shamus, my former partner and head honcho at Focus Features, pointed out in his recent conversation with Christine Vachon at IFP's Independent Film Week (if you didn't tune in, you can watch it here, or read FilmmakerMag's 12 Tips here):
"Every time you click — on a "like" button, or a download link — you are producing. You're producing "exhaust data," information about yourself that is then used to market to you and others like you. Filmmakers need to be aware of this new model. Other people are monetizing it now, but they don't have the same relationship to film culture" as the previous generation of distributors."
Does the information about our wants, interests, and desires belong to us? Are others free to take it? Do they need to ask permission? What if they just use it, and don't display it? What if by using that information, they make our life better, or at least appear to be better? Do people care? Should they?
As evidenced by people's use of Facebook, Twitter, and many many other social media sites, I honestly don't think most people care about this sort of data mining privacy issue (which is not to say they shouldn't).
I also think many people LOVE the efficiency that comes from data mining . Honestly, if no one is now pairing film goers with discount dinner deals in the neighborhood, do we want to stop them from ever doing so? If data mining improves the value proposition of movie going, thus increasing attendance and generating wealth for the creators, their supporters, and many folks in between should we be shutting it down. Shouldn't increasing the value proposition of entertainment be something that all movie people want ?
You can count that many new services are being developed that aim to this, and I think theaters should encourage it as it will make moviegoing more enticing.
As a filmgoer, I tried MoviePass while I was still living in NYC. I shared my thoughts on the future of film business with them, and the company gave me a free trial membership. I am obviously already an avid moviegoer, but the MoviePass model increased even my attendance and reduced the value of things like Netflix. Why have a hamburger at home when you can have a filet minon in a palace. Because I felt that I had saved money, despite being tight with my cash, I coughed up for popcorn and other delights. I had about 7 theaters accessible to me that took MoviePass (prior to this new credit card thing they announced) and it got me to the theaters at least twice a week. The theaters all got paid the full price possible from my ticket — I saw that they regularly input $15 because they could.
I totally get the frustration about not being consulted, but I think Chris Dorr's article is right on: permission is not the business policy of today.
We in the film industry need to come up with ways that are not capital intensive that improve the value proposition of cinema. I think the easiest way to do that is to build more social events into movie going — audience needs to transform into community. Audiences need to be curated as much as films do. Ultimately increasing the social value and utility of movies is one of the services that film festivals play — as do community theaters.
There is huge value in community, well beyond ticket sales. As data mining demonstrates, it can generate wealth. MoviePass seems to realize that. I bet MoviePass can be moved to become a real ally of community theaters, as well as movie goers. Ultimately everyone wants to increase theater attendance — and that is the only way that I can think of that the MoviePass business model can work (and if it does, doesn't everyone win?). Filmgoers will get a better experience, theaters will sell more tickets & concessions, and MoviePass has direct access to the customers. Winwinwin. Yes?


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House leaders draw flak on farm bill
Fallout from the farm bill's failure is erupting behind closed doors.
Almost a week after Republicans failed to pass the nearly $1 trillion, five-year agricultural package through the House, Speaker John Boehner and other GOP leaders are feeling the heat from frustrated lawmakers sick of screw-ups.
Story Continued Below
Republican Reps. Kristi Noem of South Dakota and Kevin Cramer of North Dakota separately stood up at a GOP meeting Wednesday and confronted their leadership about its bumbling legislative strategy and inability to figure out a way forward on the massive legislation, according to multiple sources at the meeting.
( Also on POLITICO: Farm bill loss could hurt USDA budget)
Noem, who once served in Republican leadership, took aim squarely at Majority Leader Eric Cantor (R-Va.). She reminded him that he controls the House floor, and she drilled Cantor hard on his precise plans to mop up the mess, several Republicans who attended the meeting said. Cantor wasn't able to outline a plan that satisfied Noem, and he blamed Democrats for the bill's defeat.
Noem — usually a quiet figure in GOP circles — also warned the 61 Republicans who opposed the farm bill after voting for tougher work requirements for food-stamp recipients that she will not be supporting them in the future. Agriculture Committee Chairman Frank Lucas (R-Okla.) and other lawmakers were later heard on the floor backing Noem in her heated dispute with Cantor.
Cramer, a first-term lawmaker, read aloud an editorial to his colleagues from a North Dakota newspaper, arguing that failing to pass a farm bill could end his brief congressional career. In an interview with POLITICO, Cramer said Republicans — especially committee chairmen — who voted against the farm bill are "jeopardizing the whole majority."
It's just another problem for House Republican leadership that's had a rocky time governing in its second straight term in the majority.
After Boehner barely survived his reelection as speaker in January, he and his top lieutenants have worked to ease their relationship with rank-and-file conservatives. Up until Thursday, they seemed to have made some progress. But that all quickly crumbled when the farm bill went down.
Boehner and Majority Whip Kevin McCarthy are trying in their own ways to diffuse anger among the rank and file. Boehner told his members that he was " pissed off" about the farm bill's fate — he voted for it — and asked for ideas on the road ahead.
McCarthy, speaking first at a small meeting of his vote-counting team and later to the larger House Republican Conference, said he "[takes] responsibility" for the farm bill's failure.
The California Republican also made a round of calls to his top allies on the whip team late last week following the bill's demise, taking their temperature about the legislative meltdown. In addition, McCarthy contacted lawmakers who voted against the bill to express his disappointment, according to sources familiar with the discussions.
The surprising farm bill defeat has given way to new frustration with Republican leadership and skepticism about the prospect for legislative successes this Congress. House members close to GOP leadership — including those tasked with counting votes — are more skeptical than ever that their party will be able to avoid a government shutdown and debt downgrade. Not to mention the fact that Republicans will be under major pressure to act on some kind of immigration reform package after the Senate passes its bill this week. Cantor has also said he wants to reform the nation's education policy.


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Stakes rise for debate by Biden, Ryan tonight
Once anticipated as an entertaining sideshow between two feisty candidates, the vice presidential debate Thursday night has taken on higher, unexpected importance in the wake of President Obama's listless performance last week in Denver.
Democrats are nervous, Republicans sense a surge, and Vice President Joe Biden and GOP challenger Paul Ryan suddenly have a chance to influence the campaign in a substantive way when they meet at Centre College in Danville, Ky.
For Biden, voluble and aggressive, the goal is to steady the Democratic ship amid sinking polls and rising angst. For Ryan, a hard-line budget hawk, the game plan is to maintain or build on the bump that has buoyed Mitt Romney after the first presidential debate.
"After the president's performance last week, we know Joe Biden will be coming at us like a cannonball,'' said Brendan Buck, a spokesman for Ryan.
Polls released since the Denver debate, which was viewed by 67 million people, point to a significantly tighter race. The latest national Gallup survey shows that Romney has inched ahead of Obama, 49 to 47 percent.
In addition, the president's once-growing lead has narrowed in several swing states, including the critical battleground of Ohio, with Obama leading by just 4 points, according to a CNN poll released Tuesday.
Suffolk University pollster David Paleologos said Tuesday he has stopped polling in Virginia, Florida, and North Carolina because he said he believes Obama will lose those states.
The task for Biden, 69, is greater than simply avoiding the kind of verbal gaffes that he has committed in the past. The vice president, an aging veteran who served 36 years in the Senate, has been summoned from the bullpen to slow or stop the GOP's rally.
"It's a continuation of the presidential debate,'' said Todd Domke, a Republican consultant who is a political analyst for WBUR. "The Democrats hope that a Biden victory will establish the first presidential debate as an aberration, and the Republicans hope a Ryan victory will prove that the GOP has the momentum and the arguments for change.''
For a vice presidential debate, Domke said, such stakes are unprecedented.
Obama campaign officials predicted that Biden, who spent time this week preparing at his Delaware home, would be focused and effective.
"There's no more passionate advocate for the administration's approach to the last four years to the challenges the middle class is facing. And we expect he'll make the case for sending the president and himself back for another four years,'' Obama campaign spokeswoman Jen Psaki told reporters on Air Force One.
Many observers expect Biden to question Ryan, 42, about hot-button topics that Obama surprisingly avoided in Denver, including Romney's videotaped dismissal of the "47 percent'' of Americans who receive government assistance.
If he does not raise these issues, Domke said, voters will ask, " 'What is going on? They spend hundreds of millions of dollars advertising this stuff, and then they don't mention it?' It'd be political malpractice.''
The vice president also is expected to attack Ryan's controversial budget proposal, which would add a voucher option to Medicare and dramatically pare spending on social services.
For his part, Ryan is expected to continue hammering away with the Republican campaign theme that Obama has failed to fashion an economic recovery, the deficit has soared to dangerous and unsustainable levels, and his foreign policy, particularly toward the Middle East, has been meandering and weak.
Ryan is preparing for a fight.
In an interview on a Michigan radio show this week, Ryan said he expected that Obama and Biden "are just going to call us liars for a month . . . to descend down into a mud pit and, hopefully, with enough mudslinging back and forth and distortion, people will get demoralized and then they can win by default.''
The 90-minute debate, which will be moderated by foreign affairs correspondent Martha Raddatz of ABC News, will begin at 9 p.m. and include questions on domestic and foreign issues.
Marc Landy, a Boston College political science professor, said the debate will occur amid a "vulture phenomenon,'' in which the news media and TV comics have seized on Obama's debate performance with a kind of car-wreck fascination.
For Democrats, Landy said, "it's really important for Biden to change the story line, to get the press talking about something else so Obama can regain his footing.''
Ryan, however, should be a formidable opponent, Landy said.
"He is extremely knowledgable and makes a good presentation,'' Landy said. "He's not going to fall over for Biden. My sense is that Ryan will perform quite well in the debate.''
Perhaps because of his unpredictability, Biden attracts an audience. His 2008 debate with Sarah Palin is tied with the Perot-Clinton-Bush debate of 1992 as the second-most-watched debate — presidential or vice presidential — in history. (First place goes to Jimmy Carter and Ronald Reagan's in 1980.) This year, Biden recorded the highest viewer ratings of any speaker at the Democratic and Republican national conventions.
In all, Biden has participated in 18 presidential or vice presidential debates, including 14 in 2008.
Despite his populist persona, more voters view Biden unfavorably than favorably, according to a poll released this week by the Pew Research Center for the People & the Press. The survey found that 39 percent had a favorable impression of Biden, while 51 percent viewed him unfavorably.
Ryan's numbers were more evenly split: 44 percent favorable and 40 percent unfavorable.
The Wisconsin congressman "is unusual in being able to impress by being a policy wonk and also sounding very down to earth,'' Domke said. "The test for Ryan will be, 'Yeah, he didn't seem defensive, he had answers, he wasn't thrown by this guy.' ''
Ryan spent five days in debate rehearsals over the last two weeks in addition to reading every day to prepare, a campaign official said.
Ted Olson, who served as solicitor general for President George W. Bush, played Biden in those sessions.
Representative Chris Van Hollen of Maryland acted as Ryan in Biden's rehearsals.


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Sounds like a great bike!
I see you lave a Ribble Gran Fondo, a frame often praised for its cosseting ride. How do they compare to each other? Really interested to know your answer.
For those of you who've embraced electronic shifting and are after a titanium race bike without breaking the bank we give you...well actually, Van Nicholas give you the Aquilo.
With a full Ultegra Di2 group and FFWD's F6R-C carbon wheels added to the titanium frame the €3999 (roughly £3200 in real money) is a relative bargain, but yes, £3200 is still a lot of money.
So why go for a titanium frame anyway? Well, apart from the longevity, comfort is the main plus that's bandied about, and for good reason too. Even on a race bike like the Aquilo the natural absorbancy and flex of the material soaks up the majority of the vibrations from the road leaving you feeling a lot less fatigued on long ventures, especially in the upper body.
3Al/2.5V titanium alloy is the material of choice; the letters and numbers indicate 3 percent aluminium and 2.5 percent vanadium to strengthen the paent metal. Each tube is custom drawn to VN's spec creating the ride style and performance they're after, either through tube profile or butted wall thicknesses. Therefore, regardless of frame size the ride will be the inherently the same.
It's a simple looking frame which, in my eyes, is part of its charm. While carbon frames tend to get chunkier with paint and logos screaming for attention the understated hand polished titanium with narrow profile tubes looks elegant. Add small details like the etched headtube and rear brake bridge logos, chain hanger and welded bottle bosses, and the Aquilo looks more bespoke than mass produced. Finished off with CNC machined dropouts at the rear end this Van Nicholas is one beautiful looking bike.
The 73/73.5° angles highlight the racing nature and our 56cm frame has a 55cm top tube and a 17cm head. The Aquilo is a compact frame thanks to the slightly sloping top tube which allows the front and rear triangles to be smaller, therefore stiffer. A few years ago it seemed customary for every titanium frame to come with curved narrow seatstays to provide comfort. While Van Nicholas has kept the narrow tube profiles these seatstays are straight and look all the better for it.
Designed for Di2 only, the Aquilo's frame is predrilled at the head tube and mech areas for the internal wiring, which passes from the shifters along the down tube to the battery and splitter box. Speaking of the battery, there's no cable tie holding this one on. The Aquilo's driveside chainstay is drilled and tapped so that the battery mount can be fitted directly to the frame. Having the battery tucked in behind the chainset cleans the lines up and now makes the groupset look like part of the bike rather than an add-on.
Van Nick's in house VNT brand supply the forks, full carbon jobbies no less. The steerer is 1 1/8" from top to bottom and the legs have a pretty standard rake of 43mm. The matt black finish ties in nicely with the rest of the bike too.
It's true the Aquilo doesn't have quite the same amount of customisation on Van Nicholas's website as other bikes in the range but there is more to come. At the moment, it's pretty much just bar/stem sizes and crank lengths, but the level of kit is easily on a par with the frame so its no biggy.
VNT is again the moniker on the alloy bars and stem - oversized as you'd expect and finished in the same matt black as the forks. There is a choice of seatpost material though and our test bike has come with the 31.6mm titanium with zero setback and a titanium seat collar to match. It's the little things that count. Another VNT component is the saddle with a leather cover and titanium alloy rails.
As mentioned above the Aquilo will only work with electronic groupsets, and Ultegra Di2 is the only option. It's a full groupset of shifters, chainset, press fit bottom bracket, mechs and brakes finished off in dark grey to further complement the look of the bike.
A 50-34 compact is the only choice, with the option of selecting your required crank length paired with either a 12-23,12-25 or 11-28 cassette. Odd, you might say, not to offer a standard 53-39 on a bike with racing aspirations - but we'll see.
The handbuilt FFWD F6R-C aero wheelset is the limited edition version with black logos instead of the usual white and red and at 58mm deep will provide a true aero advantage when you take the tyre height into account as well. Front spoke count is 20 with 24 at the rear using Sapim's great CX-Ray spokes. The integrated alloy rim should bring a slightly more controllable braking surface than carbon's grabby tendency and also allows higher tyre pressures; carbon clincher rims are usually limited to 120psi.
Right then, the most important thing of all – how does it feel to ride? Quite simply the Aquilo is absolutely stunning. In this line of work you find yourself constantly adapting to different bikes but straight from the off the Van Nick fitted like a glove. Thanks in part to being able to spec bar width and stem length but also just down to sensible geometry. The steepish seat angle sits you nicely over the bottom bracket with the 170mm head tube positioning the bar height just right for comfort and aerodynamics.
Acceleration is brisk, not quite as quick as the similarly priced BMC Team Machine tested last year but then the Van Nicholas does carry an extra 1.4kg. That's not to say the Aquilo isn't quick, it's just that the magic happens once the wheels are rolling. A poke on the pedals sees the Van Nick surge forward and once up to 25-30mph on the flat it'll happily sit there all day with what feels like very little input.
How much FFWD's DARC (Double Arc) rim design has anything to do with this is difficult to measure but the F6R's do seem to roll better than my own more standard 58's. The only negative is that the F6R's can make the steering a little twitchy in a cross wind, but its a small trade-off for the aero performance.
Descending is an absolute joy and will soon see you heading off for your latest gravity-assisted fix. The steering is direct and quick and there's loads of feedback coming up through the forks. Push on and the quicker the Aquilo goes the more stable and planted it becomes, 50-55mph through the bends no problem. A 97cm wheelbase brings the rear wheel in tight to the seat tube and makes the whole bike feel very flickable as you dart about. The grippy Vreidstein Fortezza tyres reflect their top end price tag feeling supple like a tub and with massive amounts of grip, you can really bank the bike over without fear of it sliding out beneath you.
The VNT finishing kit also brings a lot to the overall feel. The alloy bar and stem are plenty stiff with just a touch of give when you're really cranking the bike from side to side under hard acceleration. The saddle is great straight out of the box, with similar levels of stiffness and comfort.
We couldn't do a review of a titanium bike without mentioning the so called 'absorbent' ride and it's safe to say the Aquilo has it. If you've never ridden a Ti frame then its a funny feeling at first, almost like your tyres are a little soft. The Aquilo is very stiff; sprint, climb, descend, try whatever you want and it won't be flustered, yet hit a rough section of tarmac and it'll just glide over without the slightest hint of vibration.
If you have got as far as riding an Aquilo you've already decided that you want to go electronic and I'll happily join you. The Ultegra Di2 is great to use and the look of those mechs is starting to grow on me. The shifting is quick and you do find yourself changing gear more often than with a mechanical group thanks to how easy it is. The narrow hoods are also comfier, and it's easier to change when in the drops as well.
The compact chainset wasn't really a problem for me. Paired with the 12-25 cassette, if you're happy spinning at 90-110rpm it's a good usable gear range. The Aquilo climbs well as it is thanks to the stiff responsive frame so paired with the low gear, steep gradients aren't a problem.
Put it all together and you've got a quick bike over virtually any terrain and personally I think the compact chainset works to bring the whole bike together for the majority of riders. Who's most likely to buy the Aquilo? Fast club riders, weekend warriors, the type of rider who is a bit useful and is going to use it for quick blasts and day rides either on his/her own or with a group, the odd sportiver maybe; and the compact opens this up to a lot of people.
If you're a big gear/low cadence rouleur there is nothing to stop you fitting a 53/39 but it is a shame it's not an option on Van Nicholas's website. The balance of comfort and aero means you can spend hours on the Aquilo pushing out a decent pace with very little fatigue. As an example, I spent 85 miles looping round the Mendips at an average of over 18mph and finished feeling - in the upper body at least - as if I'd only been out for a couple of hours.
At over three grand it's going to be an investment, but you won't be disappointed, especially when you divide that price by the years of riding you'll get out of it.
Out for an hour or five, the Aquilo will see you arrive home with a grin.
If you're thinking of buying this product using a cashback deal why not use the road.cc Top Cashback page and get some top cashback while helping to support your favourite independent cycling website
road.cc test report
Make and model: Van Nicholas Aquilo
Size tested: 56
About the bike
State the frame and fork material and method of construction. List the components used to build up the bike.
3Al/2.5V titanium alloy (3% aluminium, 2.5% vandium)
carbon fibre integrated forks with carbon steerer
Ultegra Di2 shifters
Ultegra Di2 front mech
Ultegra Di2 rear mech
Ultegra compact chainset 50-34
Ultegra cassette 12-25 10spd
Van Nicholas titanium seatpost
VNT alloy bars
VNT alloy stem
VNT leather saddle
FFWD F6R-C carbon clinchers with 58mm alloy rim
Vreidstein Fortezza 23mm clinchers
Tell us what the bike is for, and who it's aimed at. What do the manufacturers say about it? How does that compare to your own feelings about the bike?
It's a race bike; steep angles and a short wheelbase create a quick handling speed machine. One for the racers and fast club guys and girls.
Frame and fork
Tell us about the build quality and finish of the frame and fork?
It's a beautiful looking frame with loads of great finishing touches. The hand brushed finish completes it.
Tell us about the materials used in the frame and fork?
The 3Al/2.5V titanium has good corrosion resistance and allows Van Nicholas to offer a limetime warranty on manufacturing defects.
Tell us about the geometry of the frame and fork?
Everything you need to know is here:
How was the bike in terms of height and reach? How did it compare to other bikes of the same stated size?
It fitted like a glove!
Riding the bike
Was the bike comfortable to ride? Tell us how you felt about the ride quality.
Very much so, that titanium damped feel means the Aquilo is a joy to be aboard.
Did the bike feel stiff in the right places? Did any part of the bike feel too stiff or too flexible?
Yes, put the power down and it responds. The balance between comfort and stiffness is spot on.
How did the bike transfer power? Did it feel efficient?
Very well, as the speed increases the better it gets.
Was there any toe-clip overlap with the front wheel? If so, was it a problem?
How would you describe the steering? Was it lively, neutral or unresponsive? Lively.
Tell us some more about the handling. How did the bike feel overall? Did it do particular things well or badly?
The Aquilo handles great especially as the speed increases. Wind can effect the handling due to the deep section wheels though.
Which components had the most effect (good or bad) on the bike's comfort? would you recommend any changes?
Having a large amount of exposed titanium seatpost keeps the road buzz to a minimum. With a titanium frame you can go for very stiff components without creating an overly stiff bike.
Which components had the most effect (good or bad) on the bike's stiffness? would you recommend any changes?
The forks were stiff side to side and fore and aft which really helped with the handling. There was also very little flex in the wheels either.
Which components had the most effect (good or bad) on the bike's efficiency? would you recommend any changes?
The wheels and tyres come into their own here.
Nothing wasted here.
The wheel weight can blunt the acceleration from a stand still.
A mixture of stiffness and aerodynamics = a great sprint.
As the speeds increase the more stable it becomes.
The steering can be a touch twitchy.
The most fun I've had going downhill; beautifully poised.
Again the wheel weight of 1800g can take the shine off.
The drivetrain
The more you use it the better it becomes.
There are no reports of any major issues with Di2 yet.
Prices are dropping all the time.
Tell us some more about the drivetrain. Anything you particularly did or didn't like? Any components which didn't work well together?
We had a few issues with a loose connection on the front shifter but we were using Shimano's prototype levers. Production level shifters are great with an instant shift every time. I love the trim function on the front mech. Battery life was good as well - 500 miles and still showing >50%
Wheels and tyres
Very good especially at 25mph+.
Race tyres like the Fortezza's will pick up cuts easily on poor roads, the hanbuilt wheels though should last a long time.
1800g which isn't too bad for deep sections.
Stiff, and the rider could suffer if it wasn't for the titanium frame.
Wheels are around £900 so cheaper than Zipps but more expensive than some.
Tell us some more about the wheels and tyres.Did they work well in the conditions you encountered? Would you change the wheels or tyres? If so, what for?
The tyres had a very supple feel to them and the wheels are great for maintaining speed.
Tell us some more about the controls. Any particularly good or bad components? How would the controls work for larger or smaller riders?
Everything worked fine and complemented the frameset. The VNT bars are quite a shallow drop and should be fine for small hands.
Your summary
Did you enjoy riding the bike? Yes.
Would you consider buying the bike? Absolutely
Would you recommend the bike to a friend? Yes.
Anything further to say about the bike in conclusion?
The Aquilo is pretty much my perfect bike for the type of riding I do. The compact chainset is possibly the only sticking point for some though.
About the tester
Age: 34 Height: 180cm Weight: 78kg
I usually ride: Genesis Flyer My best bike is: Ribble Gran Fondo
I've been riding for: 10-20 years I ride: Every day I would class myself as: Expert
I regularly do the following types of riding: time trialling, commuting, club rides, sportives, fixed/singlespeed,
Stu knocked out his first road.cc review back in 2009 and since then he's chucked the best part of seventy test bikes around the West Country, a couple of them quite literally! With three alloy and two steel bikes in his fleet he's definitely a metal man (that'll be the engineering background) but is slowly warming to that modern carbon fibre stuff along with fat tyres & disc brakes.
It's not all nostalgia though, after spending the last few years in product design Stu keeps banging on about how 3D printing is going to be the next big thing and he's a sucker for a beautiful paint job too.
7 comments
Sounds like a great bike!
I see you lave a Ribble Gran Fondo, a frame often praised for its cosseting ride. How do they compare to each other? Really interested to know your answer.
The Aquilo has the edge on comfort and speed over the Gran Fondo which considering the Ribble is one of the best frames I've ridden shows what a cracking bike the Van Nick is.


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Next Episode of The Tonight Show with Jay Leno is
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The Tonight Show with Jay Leno is an American late-night talk show currently hosted by Jay Leno, on NBC. It made its debut on May 25, 1992, following Johnny Carson's retirement as host of The Tonight Show. The nightly broadcast at 23:35 (Eastern) originates from NBC's studios, in Burbank, California.
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Last night Orioles Gold Glove outfielder, Adam Jones reported via Twitter, that he had been detained in Canada. In the tweet Adam wrote:
By the looks of this message, Adam seems pissed! It looks that as if Adam and someone else had not been traveling with the team on their trip to play the Toronto Blue Jays tonight. Personally, I love the public out-lashes on Twitter from Jones. Not only has he bashed the Organization for not helping him out in this matter but he also made fun of Garret Atkins earlier this year.
Adam isn't the only "celebrity" to find themselves in a little immigration trouble as of late. My pick on the celebrity death pool for 2010, Lindsay Lohan has been having problems getting back into the country because of a "lost" passport while attending the Cannes film festival. Typically a lost passport wouldn't matter but when you haven't followed through with your probation for 2 DUI's, 2 counts of cocaine possession, transporting a narcotic into a custodial facility, driving on a suspended license, drinking underage and leaving the scene of an accident all in JULY OF 2007, you'd probably flip out about a lost passport too.
Personally, I think this is part of the new "Stay Out of the United States You Drunk Skank" campaign signed by President Barack Obama last week.
I don't think Adam Jones has nearly the rap sheet Lindsay Lohan does and shouldn't have been detained. Hopefully this was all just a misunderstanding but how funny if he was detained because the boarder patrol confused him with this other guy.


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