Xandra Velenchik v. Alan Velenchik

VERMONT SUPREME COURT Case No. 25-AP-046
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SEPTEMBER TERM, 2025

Xandra Velenchik v. Alan Velenchik* } APPEALED FROM:
} Superior Court, Bennington Unit,
} Family Division
} CASE NO. 22-DM-02104
Trial Judge: Howard A. Kalfus

In the above-entitled cause, the Clerk will enter:

Husband appeals the property-division and maintenance portions of a final divorce order.
We affirm.

Following a three-day hearing, the family division issued an order containing the
following findings and conclusions. The parties married in 2001 and separated in 2021. They
are both well-educated and in good health. Wife is a dentist in a solo practice in Manchester,
Vermont. With husband’s support, she graduated from dental school in 2003. In 2017, she
purchased an existing dental practice and moved it to Manchester. Wife made physical
improvements to the office and purchased new dental equipment. Husband contributed some
labor to the physical improvements. The court credited wife’s expert’s testimony that the
practice was worth $440,000, but that ninety percent of its value was in human capital. To
realize the full sale price, wife would need to be willing to stay involved in the practice during
the transition to a new provider, and agree to a noncompete clause prohibiting her from
practicing dentistry within a twenty-mile radius. Absent these provisions, the value of the
practice was only $45,000.

Husband had worked for his current employer for five years. The court found that he was
able to increase his income through overtime and supplemental employment. Husband earned a
modest additional amount working at Stratton Mountain, but his primary benefit from that
employment was a free ski pass.

The parties have three children, who are twenty-one, eighteen, and fifteen years old
respectively. The two older children are in college and the fifteen-year-old attends a private ski
academy, as his siblings did when they were in high school. Wife provides almost all financial
support for the fifteen-year-old and is his primary care provider. Husband provides some
financial support for the oldest child, who stays with him when she is home from college.
The court found that wife earned $26,673 per month and had monthly expenses of
$26,534 per month, including $4852 to support the youngest son and $12,686 in taxes. Husband
earned $10,451 per month and had reasonable monthly expenses of $6619, including $1743 in
rent and living expenses for the oldest child. He also paid $3068 per month in taxes. The court
found that if husband were not paying for his adult daughter’s rent and living expenses, he would
have $2037 in surplus income each month.

The parties agreed that wife should be awarded the marital home and her dental practice,
along with associated debts, and that husband should be awarded the parties’ ski condominium
and his retirement accounts. The court found that this division resulted in wife receiving 59%
and husband receiving 41% of the marital assets. It concluded that this division was equitable
because the marital home, which was the youngest child’s primary home, needed significant
work and wife was providing all financial support for the youngest child, and because it reflected
wife’s contributions to the acquisition and development of her dental practice. The court denied
husband’s request for spousal maintenance, concluding that he had sufficient income and
property to provide for his reasonable needs while maintaining the standard of living established
during the marriage.

On appeal, husband first argues that the family division abused its discretion by admitting
opinion testimony from wife’s expert on the value of wife’s dental practice. Husband argues that
the expert’s testimony did not satisfy the requirements of Vermont Rule of Evidence 702. That
rule states:

If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.

V.R.E. 702. Husband challenges the expert’s qualifications and the reliability of the method she
used.

We review the trial court’s decision to admit expert testimony for abuse of discretion.
USGen New England, Inc. v. Town of Rockingham, 2004 VT 90, ¶ 24, 177 Vt. 193. “Absent a
clear showing of judicial error, we will affirm the trial court’s decision to admit or exclude the
proffered testimony.” Id.

We reject husband’s argument that wife’s expert was not qualified to offer an opinion on
the valuation of wife’s dental practice because she was a sales consultant who had never
previously testified as an expert in court. “[T]he trial court has wide discretion to determine the
qualifications of an expert witness.” Id. ¶ 38. Expertise “may arise from either training or from
experience,” and does not require professional certifications. Reporter’s Notes, V.R.E. 702.
Wife’s expert testified that she was a practice management consultant who had worked in the
dental industry for over forty-five years. Since 2007, she had worked for Paragon Dental
Practice Transitions, a national company that specializes in appraising and selling dental
practices. She advised dental practices on how to become more marketable and appraised and
marketed them for sale. She had appraised approximately 400 dental practices in the New
England area and sold over 300 practices. She had undergone training to become a consultant
2
and given talks at industry events. Based on this testimony, the court concluded that she
qualified as an expert for the purpose of valuing wife’s dental practice. The court’s
determination is supported by the record. See USGen New England, Inc., 2004 VT 90, ¶ 39
(affirming qualification of expert who had no formal training in appraisals, had not previously
testified in court as expert, and had not inspected property at issue in case, where court found he
had education and experience to undertake requisite economic analysis and testify on workings
of local electricity market).

Husband also argues that the testimony of wife’s expert was unreliable because she
assessed the value of the practice using a proprietary Excel spreadsheet and could not explain the
principles or methodology underlying the spreadsheet. We conclude that the trial court did not
abuse its discretion in admitting the testimony. Wife’s expert testified that she used the fair
market value method to assess the value of dental practices for clients. When conducting an
appraisal, she required the client to complete a dental practice profile and to provide three years
of tax returns. She examined whether the practice’s collections were consistent with the
information reported on their tax returns. She also examined doctor production versus hygiene
production, the insurance companies the practice worked with, the patient count, the types of
services rendered, and the practice’s fee schedule. She analyzed operating costs and overhead
and adjusted out costs that were not direct business expenses as well as loans that were personal
to the seller. She entered this information into the proprietary Excel spreadsheet, which
generated a report that was reviewed by a vice president at her company to ensure accuracy. She
testified that approximately 75% of the appraisals she had conducted resulted in sales, and that
the practices sold at the appraised price.

The trial court concluded that the methodology used by wife’s expert was reliable based
on her testimony that her company had been valuing dental practices for over forty years, that
she had been conducting appraisals since 2007 and 75% of the appraisals she had conducted
resulted in sales at the appraised value created by the proprietary spreadsheet, and that the
process was not used solely for litigation but was used to value dental practices in the
marketplace. The court found that the spreadsheet methodology had been relied upon
sufficiently to be reliable, and that wife’s expert used sufficient facts to generate her valuation of
wife’s dental practice using this method.

The court’s conclusion is reasonable and supported by the evidence. Wife’s expert’s
testimony was sufficient to establish the reliability of the expert’s methodology. She was not
required to have expertise in the underlying software or formulas. As we explained under similar
circumstances in State v. Pratt, “[w]hile an investigator must have specialized knowledge in the
use of the particular software or device, it is not required—nor is it practical—for an investigator
to have expertise in or knowledge about the underlying programming, mathematical formulas, or
other innerworkings of the software.” 2015 VT 89, ¶ 24. In Pratt, we affirmed the admission of
a forensic expert’s testimony regarding his use of specialized software to retrieve the contents of
the defendant’s cell phone. While the expert did not know how the software was programmed,
the evidence showed that the software was widely used and had produced reliable results based
on his own testing. Id. ¶ 38. Similarly, in this case wife’s expert’s testimony regarding the
inputs she used for the spreadsheet, the business context in which it was typically used, and its
track record of results was sufficient in this context to establish its reliability. “So long as
scientific or technical evidence has a sound factual and methodological basis and is relevant to

3
the issues at hand, it is within the purview of the trier of fact to assess its credibility and
determine the weight to be assigned to it.” Id. ¶ 30 (quotation omitted).*

Husband also contends that the court abused its discretion in subtracting the value of
goodwill from the overall valuation of the dental practice when adding up the marital assets. We
disagree. Wife’s expert opined that “a dental practice has extremely limited market value (if any
market value whatsoever) without the contractual guarantee that the current practice owner will
utilize his or her best efforts to fully transfer the ongoing relationship with the patients of the
practice to the buyer (the conveyance of the ‘Goodwill’).” Wife’s expert further opined that
goodwill has no value if not accompanied by a promise that the seller of the practice would not
compete with the buyer or solicit the buyer’s patients. She testified that, without conveyance of
the goodwill and a noncompete clause, the fair market value of the practice would be reduced to
$45,000. Wife testified that she intended to keep practicing dentistry in Manchester, where she
had worked hard to establish her business and reputation. The court evidently credited wife’s
stated intent and concluded wife would be unable to realize the full value of the practice if she
attempted to sell it. The court’s determination was reasonable and it did not abuse its discretion
in using the lower estimate of the value of wife’s dental practice as part of its calculation of
marital assets. See Semprebon v. Semprebon, 157 Vt. 209, 214 (1991) (upholding trial court’s
valuation of husband’s share of family business where “valuation was clearly within the range of
the evidence presented”).

Finally, husband argues that the court erred in denying his request for spousal
maintenance. The family court may order a spouse to pay maintenance, either permanent or
rehabilitative in nature, if the spouse seeking the award: “(1) lacks sufficient income or property,
or both . . . to provide for his or her reasonable needs; and (2) is unable to support himself or
herself through appropriate employment at the standard of living established during the civil
marriage or is the custodian of a child of the parties.” 15 V.S.A. § 752(a). “The trial court has
considerable discretion in ruling on maintenance,” and the party challenging a maintenance
decision “must show that there is no reasonable basis to support it.” Johnson v. Johnson, 155 Vt.
36, 40 (1990).

The court acknowledged that wife earned two-and-a-half times as much as husband but
found that her reasonable expenses nearly equaled her income. Both parties had suitable homes
that met their day-to-day needs. Neither party lived an extravagant lifestyle during or after their
separation. Rather, they had jointly decided to prioritize sending their three children to a costly
ski academy and had accumulated significant personal debts in doing so. The court found that
both parties spent their surplus income paying down those debts. The court found that husband
was well-educated, in good health, and able to earn additional income. Husband does not
challenge any of these findings, which support the court’s conclusion that the threshold criteria
for awarding maintenance were not satisfied. See Sochin v. Sochin, 2004 VT 85, ¶ 11, 177 Vt.
540 (mem.) (affirming denial of maintenance where court’s findings supported conclusion that
wife did not meet criteria for maintenance).

Husband argues that the court incorrectly concluded that he was able to support himself
at the standard of living established during the marriage because he was no longer able to pay

*Wife’s expert’s opinion of the fair market value of wife’s dental practice as of
December 2023—$440,000—was similar to husband’s expert’s valuation, which was $415,000.
Husband’s expert did not estimate how much the business could sell for without the goodwill
and noncompete provisions.
4
child-related expenses that he had previously. The record shows that although husband
previously contributed to the expense of sending the two oldest children to ski school, they were
now adults and had graduated from high school, and wife now provided all support for their
youngest child. Given that the children did not live with husband, he has failed to demonstrate
how the court erred in this aspect of its decision.

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

5