Opinion
No. COA03-1505
Filed 4 January 2005 This case not for publication
On writ of certiorari filed by defendant to seek review of judgment and order filed 28 May 2002 and subsequent amended judgment and order filed 26 June 2002 by Judge Regan A. Miller in Mecklenburg County Superior Court. Heard in the Court of Appeals 1 September 2004.
A. Marshall Basinger, II for plaintiff-appellee.
Horack, Talley, Pharr Lowndes, PA, by Kary C. Watson and Elizabeth T. Hodges, for defendant-appellant.
Mecklenburg County No. 99 CVD 16304.
Louvenia Jones (defendant) appeals from an equitable distribution judgment and order filed 28 May 2002 and subsequent amended judgment and order filed 26 June 2002 awarding Johnnie A. Jones (plaintiff) an unequal share of marital property.
Plaintiff and defendant were married 1 June 1978 and separated 4 February 1999. During their marriage, they acquired at least twoparcels of real property in Mecklenburg County, a business known as "Lil' Star Day Care," (day care center) and five life insurance policies.
Incident to their separation the parties filed competing claims for equitable distribution. Plaintiff filed a complaint dated 28 October 1999 and defendant filed an answer and counterclaim on 6 January 2000. Each party filed affidavits, detailing their positions on classification, valuation, and distribution of their marital and separate assets.
On 9 January 2002, the parties filed a joint proposed Final Equitable Distribution Pretrial Order. Schedule A of the proposed equitable distribution pretrial order contained a list of insurance policies as items for which both parties agreed to their value and distribution. In reliance on the proposed order and before taking testimony, the court distributed the assets listed in Schedule A, among other things. In an order dated 28 May 2002, the court awarded defendant-wife $179,985.00 and plaintiff-husband a distributive award of $200,000.00. Thereafter it was determined that defense counsel miscalculated the insurance policies by using the death benefit or face value instead of the cash value, an error resulting in a benefit to plaintiff of approximately $90,000.00. The trial court then entered an amended judgment and order requiring defendant to pay plaintiff a distributive award of $145,883.92 as opposed to the nearly $250,000.00 previously calculated. Both parties filed notice of appeal, however, plaintiff failed to perfect his appeal and it is therefore deemed abandoned. See N.C.R. App. P. 28 (2004).
As a preliminary matter, defendant argues she received ineffective assistance of counsel such that the 28 May 2002 judgment and order and subsequent 26 June 2002 amended judgment and order of the trial court should be vacated based on the trial court's improper reliance on the erroneous valuation of the parties' property. We note plaintiff does not contest the issue of ineffective assistance of counsel; however, plaintiff contends, and we agree, that judgment should be reversed on other grounds.
The dispositive issue is whether the trial court's judgment and order dated 28 May 2002 and subsequent 26 June 2002 amended judgment and order should be vacated where the trial court failed to make sufficient findings of fact in distributing the marital property.
Proper appellate review of an equitable distribution order requires the trial court's findings of fact to be specific enough that the appellate court can determine from reviewing the record whether the judgment represents a correct application of the law. See Coble v. Coble, 300 N.C. 708, 714, 268 S.E.2d 185, 190 (1980)."Although the trial court [is] not required to recite in detail the evidence considered in determining what division of the property would be equitable, it [is] required to make findings sufficient to address the statutory factors and support the division ordered." Armstrong v. Armstrong, 322 N.C. 396, 405, 368 S.E.2d 595, 600 (1988). The equitable distribution of property is ultimately vested within the wide discretion of the trial court and "`will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.'" Wall v. Wall, 140 N.C. App. 303, 307, 536 S.E.2d 647, 650 (2000) (citation omitted). Pursuant to N.C. Gen. Stat. § 50-20(c) (2003):
There shall be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably. The court shall consider all of the following factors under this subsection[.]
Under N.C.G.S. § 50-20(c), the pertinent factors are:
(6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker.
. . . (9) The liquid or nonliquid character of all marital property and divisible property. (10) The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party.
Id.
This Court has also held that in compliance with N.C.G.S. § 50-20(c) when valuing a spouse's professional practice:
[A] court should make specific findings regarding the value . . . and the existence and value of its goodwill, and should clearly indicate the evidence on which its valuations are based, . . . noting the valuation method[s] on which it relied. On appeal, if it appears that the trial court reasonably approximated the net value of the practice and its goodwill, if any, based on competent evidence and on a sound valuation method or methods, the valuation will not be disturbed.
Offerman v. Offerman, 137 N.C. App. 289, 293, 527 S.E.2d 684, 686 (2000) (quotations omitted); Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 419, 588 S.E.2d 517, 521-22 (2003). "The requirements and standard of review set forth [above] apply to valuation of other business entities as well[.]" Offerman at 293, 527 S.E.2d at 686 (quoting Smith v. Smith, 111 N.C. App. 460, 433 S.E.2d 196 (1993)).
Pursuant to N.C. Gen. Stat. § 50-20(e) (2003):
Subject to the presumption of subsection [N.C.G.S. § 50-20](c) of this section that an equal division is equitable, it shall be presumed in every action that an in-kinddistribution of marital or divisible property is equitable. This presumption may be rebutted by the greater weight of the evidence, or by evidence that the property is a closely held business entity or is otherwise not susceptible of division in-kind. In any action in which the presumption is rebutted, the court in lieu of in-kind distribution shall provide for a distributive award in order to achieve equity between the parties. The court may provide for a distributive award to facilitate, effectuate or supplement a distribution of marital or divisible property. . . .
Id.
In the 28 May 2002 judgment and order, the trial court articulated the following findings of fact:
11. [The day care center] was started by both parties. . . . [Plaintiff] provided $16,000.00 . . . [toward a total purchase] price of $112,000.00. On the date of separation, the business had long-term obligations of $36,000.00. As indicated . . . the business has a net value of $218,000.00 and has poor liquidity. . . . Because of [defendant's] management efforts the business . . . [had] gross revenues in 1999 of $301,304.00, a 12% increase from the previous year.
In the same order, the trial court concluded:
10. An unequal division of the marital and divisible property and [debts] is equitable because the day care business has poor liquidity and depends on the personal services of [defendant]. . . . 13. The valuation methods accepted and applied by the [c]ourt in determining the value ofassets are reasonable and accurate methods for determining such values.
In its 26 June 2002 amended judgment and order, the trial court incorporated by reference its findings of fact and conclusions of law from the 28 May 2002 judgment and order, affecting the equitable distribution accordingly:
After making a further review of the [c]ourt's calculation of the marital estate, the [c]ourt noted that there was a miscalculation [which] resulted in a miscalculation of the distributive award to which the husband would have been entitled. . . . An equal distribution . . . would result in a distributive award to [plaintiff] in the amount of $145,883.92 as opposed to the nearly $250,000.00 that the [c]ourt had previously calculated.
At trial, plaintiff presented testimony of two expert appraisers as to the value of the day care center. One expert valued the physical structure at $151,000.00. Another expert appraiser testified the day care center was worth $118,000.00 based on a weighted comparison of both the income and market approach. Yet, Schedule A, as incorporated into both the 28 May and 26 June 2002 orders, lists the day care as having a value of $218,000.00. The trial court, however, made no specific findings as to how $218,000.00 was derived as the value of the day care center. Further, there were no findings regarding the expert testimony of the appraisers and their valuation methods. Therefore, absent anyfindings of fact as to valuation, it is impossible to determine what method the trial court relied upon to calculate the value of the day care center. As in Offerman, we cannot determine from the findings whether the $218,000.00 reasonably approximates the value of the day care center.
Because the trial court erred in failing to make sufficient findings of fact as to the valuation of the day care center, we reverse the judgment of the trial court.
Reversed and remanded for new trial.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).