Opinion
Record No. 1486-93-4
April 5, 1994
FROM THE CIRCUIT COURT OF CULPEPER COUNTY LLOYD C. SULLENBERGER, JUDGE
(C. Waverly Parker, on briefs), for appellant.
(John K. Taggart, III; Patricia D. McGraw; Tremblay Smith, on brief), for appellee.
Present: Judges Baker, Elder and Fitzpatrick
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Horace D. Douty (husband) appeals the decision of the trial court determining the equitable distribution of the marital estate shared with Madeline G. Douty (wife). Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the trial court. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Husband challenges several determinations made by the commissioner and accepted by the trial court: (1) whether the commissioner erred by allowing wife's appraiser to testify as an expert witness; (2) whether the commissioner erred in setting $45,000 as a value for the south car wash; and (3) whether the commissioner erred by accepting evidence of the "intrinsic value" of the south car wash.
On appeal, we construe the evidence in the light most favorable to the prevailing party, granting that party "all inferences fairly deducible therefrom." McGuire v. McGuire, 10 Va. App. 248, 250, 319 S.E.2d 344, 346 (1990). Evidence regarding the equitable distribution of the marital estate was heard by a commissioner in chancery. "The commissioner's report is deemed to be prima facie correct." Brown v. Brown, 11 Va. App. 231, 236, 397 S.E.2d 545, 548 (1990). "The decree confirming the commissioner's report is presumed to be correct and will not be disturbed if it is reasonably supported by substantial, competent, and credible evidence." Brawand v. Brawand, 1 Va. App. 305, 308, 338 S.E.2d 651, 652 (1986).
I.
The commissioner accepted wife's real estate appraiser, Michael Bogg, as an expert witness for the purpose of determining the value of husband's two ongoing car wash businesses. Boggs was a licensed real estate appraiser and had previously appraised several car washes. Boggs testified as to his training and methodology and was vigorously cross-examined.
"It is well established that the admissibility of expert testimony is within the sound discretion of the trial court, and that court's decision will not be disturbed absent an abuse of discretion." Patterson v. Commonwealth, 3 Va. App. 1, 11, 348 S.E.2d 285, 291 (1986). The record discloses no abuse of discretion in the admission of the testimony of wife's real estate appraiser as an expert.
II.
"Expert testimony is the most expedient, and in fact, the preferable method for [valuing marital property] . . . . But the finder of fact is not required to accept as conclusive the opinion of an expert." Lassen v. Lassen, 8 Va. App. 502, 507, 383 S.E.2d 471, 474 (1989).
There was credible evidence that the south car wash had value, notwithstanding the fact that the operation was on land subject to an oral month-to-month lease. While husband's appraiser was "flabbergasted" by the lack of a written lease and gave the property no value for that reason, he nonetheless was able to compute values for the site of $39,362 on a cost approach and $87,000 on an income approach. Wife's appraiser valued the business at $90,000, after computing values of $55,725 on a cost approach and $128,500 on an income approach.
In light of this evidence, the decision to value the south car wash at $45,000 was reasonably supported by substantial, credible and competent evidence and will not be disturbed on appeal.
III.
Under Code § 20-107.3, the trial court "must determine from the evidence that value which represented the property's intrinsic worth to the parties upon dissolution of the marriage."Bosserman v. Bosserman, 9 Va. App. 1, 6, 384 S.E.2d 104, 107 (1989). The trial court's goal always is to obtain
the most current and accurate information available which avoids inequitable results. The function of the Court is to arrive at a fair and equitable monetary award based upon the equities and the rights and interests of each party in the marital property. In order to accomplish this purpose, the Court must value the assets in a manner that is fair and equitable to both parties.
Mitchell v. Mitchell, 4 Va. App. 113, 118, 355 S.E.2d 18, 21 (1987). Moreover, a trial court must use its discretion to assess the reliability of evidence purporting to give a property's true value. Stainback v. Stainback, 11 Va. App. 13, 22, 396 S.E.2d 686, 692 (1990) (corporate buy-back offer undervalued stock); Bosserman, 9 Va. App. at 9, 384 S.E.2d at 109 (by-laws' book value undervalued stock).
The south car wash was a going concern generating income. The business had operated without interruption on the same site for more than twelve years. There was no evidence that the land owner was contemplating terminating the oral lease. Therefore, there was no error in the admission of evidence regarding the intrinsic worth of the south car wash business.
Accordingly, the decision of the trial court is affirmed.
Affirmed.