Opinion
No. 21496-6-III
Filed: August 31, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 01-3-00595-1. Judgment or order under review. Date filed: 09/18/2002. Judge signing: Hon. Ellen Kalama Clark.
Counsel for Appellant(s), Gary R. Stenzel, Gary R. Stenzel PS, 910 N Washington Ste 201, Spokane, WA 99201.
Counsel for Respondent(s), Justin Mathiason (Appearing Pro Se), 104 East Hoffman, Spokane, WA 99207.
Amy and Justin Mathiason were divorced after 15 years of marriage. Ms. Mathiason appeals the trial court's valuation of the family home. She contends the court based the value on a real estate appraisal improperly admitted without cross-examination of the appraiser. We find that the trial court properly exercised its discretion in valuing the property within the range of the testimony presented by the parties, and affirm.
Facts
In January 2001, David Sisco appraised the Mathiason family home for a refinance loan. At that time, Mr. Sisco assigned a value of $270,000 to the home, located in Nine Mile Falls. The Mathiasons separated one month later.
The value of the home became a point of dispute during division of the marital property. At trial in March 2002, Mr. Mathiason agreed to give Ms. Mathiason the home and to receive one-half the equity as part of the equalization payment. Ms. Mathiason, an account manager for a mortgage company, testified at trial that she evaluated appraisals in her job and was very familiar with real estate values. Based on recent sales and listings of comparable houses, she estimated the value of the home as $230,000. Although she agreed on direct examination that the Sisco appraisal was an objective appraisal of what the house could have sold for in January 2001, she asserted that the real estate market had flattened in the Spokane area since then. She submitted no documents to support her opinion.
During cross-examination of Ms. Mathiason, Mr. Mathiason sought admission of the Sisco appraisal. Ms. Mathiason objected, arguing the document was hearsay and could not be offered to prove the truth of the matter asserted without an opportunity to cross-examine Mr. Sisco. She agreed, however, that the appraisal could be admitted solely as a loan document. The trial judge stated that although she normally would not admit the appraisal because it was hearsay, she would admit it in this case because Ms. Mathiason referred to it when giving her valuation.
Mr. Mathiason, a contractor, testified that in his experience Mr. Sisco's appraisal was fair and maybe a little low. He noted that he designed the custom home, which included many special features that enhanced its value. Accordingly, he asserted that the value of the home was at least $270,000.
In its memorandum decision filed June 21, 2002, the court assigned a value of $270,000 to the home, referring to the testimony of the parties and the Sisco appraisal:
The parties have agreed that the wife will receive the family residence. She testified that the property is worth $230,000, based upon her experience and knowledge of the Spokane real estate market due to her job as a wholesale account manager dealing with the sale of mortgages and refinancing. She stated that she had reviewed some comparable properties, but did not submit those. The husband lists a value of $270,000, based upon an appraisal the parties had done for refinancing in January 2001. The parties separated in February 2001. Mrs. Mathiason challenges the accuracy of the appraisal, indicating that appraisers will usually set higher values on appraisal done for refinancing purposes to assure that the refinancing will be successful. She stated that the parties were seeking a loan of $160,000. It seems to this Court that the appraiser would not have had to 'overestimate' by $90,000 just to insure the success of the refinancing. The court will set the value of the residence at $270,000. Mrs. Mathiason will pay the outstanding debt, $158,335.
Clerk's Papers (CP) at 6-7.
Both parties moved for reconsideration or clarification of the court's final order. Ms. Mathiason argued that the Sisco appraisal was improperly admitted hearsay that was used by the trial court to value the family home. She offered an August 2002 appraisal by Anne Olson as newly discovered evidence justifying a new trial under CR 59. The Olson appraisal set the value of the home at $225,000. In a letter to the parties, the trial court denied reconsideration and refused to admit the Olson appraisal:
The parties presented their own testimony regarding the value of the family residence. The appraisal of Mr. Sisco, dated January 2001, was only admitted after Mrs. Mathiason referred to it in her testimony as part of the basis for her estimate. This Court did not accept the appraisal as a basis for this Court's determination of value, but used only the testimony of the parties and accepted Mr. Mathiason's value. . . .
. . . Mrs. Mathiason had every opportunity to present testimony other than her own to establish the value of the residence at the time of trial. She did not do so, and that is due to her own lack of due diligence. [The Olson appraisal] is not 'new' evidence. The Court had two numbers proposed for valuation of the residence, both based upon the testimony of the parties. A decision was made based upon the evidence presented. There is no reason to reconsider the value established by the Court.
CP at 91. Ms. Mathiason timely appeals.
Value of Marital Property
Ms. Mathiason contends the trial court's valuation of the family home is not supported by the evidence and is improperly based on hearsay. We review the trial court's valuation of property in a marital dissolution for abuse of discretion. In re Marriage of Gillespie, 89 Wn. App. 390, 403, 948 P.2d 1338 (1997). In determining whether substantial evidence supports the valuation, we examine the record in the light most favorable to the party who stands to benefit most. Id. at 404. We will not substitute our judgment for that of the trial court on a disputed factual issue such as the valuation of property. Worthington v. Worthington, 73 Wn.2d 759, 762, 440 P.2d 478 (1968).
Here, the trial court heard testimony from Ms. Mathiason that, based on her experience as a mortgage account manager, the family home was worth $230,000 at the time of trial (March 2002). She asserted that she based this figure on recent sales and listings of comparable houses, but she did not offer documents in support. Mr. Mathiason testified that, based on his experience as a contractor and as the designer of the custom family home, the house was worth at least as much as Mr. Sisco appraised it in January 2001: $270,000. He further testified that the special features of the home enhanced its value. The weight given a homeowner's valuation of his property is left to the trier of fact. Worthington, 73 Wn.2d at 763. On the basis of the testimony, the trial court's decision to value the home at $270,000 is within the range of the credible evidence and should not be disturbed.
If, however, the trial court based its valuation solely on hearsay, we would find abuse of discretion. See, e.g., In re Marriage of Martin, 22 Wn. App. 295, 297, 588 P.2d 1235 (1979). Unless the parties stipulate to the admission of an appraisal in lieu of testimony, admission of the appraisal without allowing cross-examination of the appraiser is hearsay. Id. Ms. Mathiason contends the trial court relied on the Sisco appraisal, which was admitted for the limited purpose of showing the refinance loan documents. The record does not support this allegation. Not only did the trial court rule that the appraisal would be admitted only as referenced by Ms. Mathiason, but the court in its ruling on the motion for reconsideration expressly stated that it did not use the appraisal as a basis for the value. Although both parties referred to the Sisco appraisal, they also supported their valuations with reference to their experience and to specific attributes of the house and the real estate market. The trial court had substantial evidence other than the appraisal to support its decision to adopt Mr. Mathiason's valuation. We find no abuse of discretion.
Finally, Ms. Mathiason contends the trial court should have granted her a new trial on the basis of CR 59. Under the rule, a trial court may grant a motion for reconsideration for specific reasons, including in part: accident or surprise that ordinary prudence could not have guarded against; newly discovered evidence that could not have been discovered with reasonable diligence during trial; lack of evidence to support the decision; and that 'substantial justice has not been done.' CR 59(a)(9). We review the trial court's decision on a motion for reconsideration for abuse of discretion. Weems v. N. Franklin Sch. Dist., 109 Wn. App. 767, 777, 37 P.3d 354 (2002).
Ms. Mathiason offered the August 2002 Olson appraisal in her motion for reconsideration. She argues that the trial court erred in rejecting the 'newly discovered' appraisal. But the Olson appraisal is not newly discovered evidence under CR 59(a)(4) because it could have been produced at trial with minimal diligence. And Ms. Mathiason cannot claim that the issue of the Sisco appraisal was a surprise she could not have guarded against: she was the first witness to refer to the Sisco appraisal at trial, yet she declined to submit a competing appraisal at that time. Her final argument, that substantial justice was not done, also fails. New trials based on the lack of substantial justice are rarely granted due to the eight other broad grounds found in CR 59(a). Knecht v. Marzano, 65 Wn.2d 290, 297, 396 P.2d 782 (1964). Because the trial court did not abuse its discretion in valuing the family home within the range of the evidence presented at trial, Ms. Mathiason cannot show that substantial justice was not done. Consequently, the trial court did not abuse its discretion in denying her CR 59 motion for reconsideration.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and BROWN, J., concur.