Shark Tank Star Loses His Appeal

Robert Herjavec, of Shark Tank and Dancing With the Stars fame, not surprisingly, lost his appeal to overturn a $125,000 per month spousal support order resulting from a 4-week trial in 2018. While Wikipedia and other sites claim his net worth is $200 million dollars, the actual number is far less. Schedule A of the trial reasons indicate a net worth of $42 million, with no excluded property, and an annual personal income of approximately $6 million.

Herjavec asserted three grounds of appeal:

1.   The trial judge erred in her assessment of the respondent’s needs and means.

2.   The trial judge erred in her determination of spousal support by failing to apply, or incorrectly applying, this court’s decision in Halliwell, and the SSAGs.

3.   The trial judge erred in her order for indefinite spousal support by refusing to stipulate a termination date or review terms.

Was his appeal bound to fail? I would say yes, but I can imagine how strident he might be in pursuing this course of action. His position on spousal support at trial was prophetic of his misguided appeal. At trial, in the context of a 24-year marriage, with three children and a wife who left her professional career to raise the children, he argued that after paying $124,000 a month in temporary support since 2015, his wife had been overpaid by $500,000 and he sought reimbursement. He also suggested that spousal support ought to be immediately terminated. With respect to property division he asserted that he was entitled to a $3 million dollar equalization payment from his wife. The trial judge ordered him to pay $2.7 million to Ms. Plese to equalize family property.

Given the standard of review in spousal support appeals, the only ground of appeal that I examined in detail was the appellant’s position that the court failed to apply the principles of support found in Halliwell v. Halliwell 2017 ONCA 349.

Halliwell was a high net worth case, although paling in comparison to the Herjavec case, where Mr. Halliwell presented multiple grounds of appeal regarding property division and spousal support. At trial Mr. Halliwell was ordered to pay an equalization payment of $3 million dollars over 5 years and spousal support of $29,000 a month, based on his income of $1 million dollars per annum.

The appeal court held that the trial judge was fully justified in finding entitlement based on compensatory and non-compensatory factors, but in setting the quantum he needed to take into consideration that the equalization payment went a considerable distance towards satisfying both bases for the award, but he failed to do so. The Halliwell trial judge awarded support at the highest end of the Spousal Support Advisory Guidelines range, which the appeal court identified as an error in law, as well as the lack of investment income attributed to Mrs. Halliwell as a result of the equalization payment.

As a result Mr. Halliwell’s spousal support was reduced to $20,000 per month.

So how did the Herjavec appeal panel distinguish Halliwell? The appeal court reviewed the trial judge’s analysis:

“Here, in her analysis of entitlement, the trial judge looked at the respondent’s capital base resulting from the equalization payment and the potential investment income. The trial judge understood that the ability of the respondent’s capital base to meet her future needs could not be examined in isolation. She attributed some of the respondent’s capital base to the costs of residences, which were not income-producing, and the remainder to income-generating vehicles at an appropriate rate of return. She also compared the capital base of the respondent to that of the appellant. She found that, after the equalization payment, the appellant still had a substantial capital base through THG, his income of more than $5.5 million per year, his “luxurious” home in California, and other assets and savings.”

With respect to Mr. Herjavec’s argument that the trial judge erred by not stipulating a termination or review date, the appeal court noted that the judge’s award was for an indeterminate period, subject to variation based on a material change of circumstance.

Lawdiva aka Georgialee Lang

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