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Domestic Relations – Equitable Distribution – Unequal Division – Distributive Award – Valuation

Peltzer v. Peltzer (Lawyers Weekly No. 12-07-0948, 28 pp.) (Donna S. Stroud, J.) Appealed from Catawba County District Court (C. Thomas Edwards, J.) N.C. App.

Holding: Even though the equitable distribution order does not explicitly state what percentage of the marital estate is distributed to which party, the unchallenged findings and a little math show that the defendant-husband was awarded 55 percent of the marital estate, rather than the 20 percent he claims to have been awarded.

We affirm the equitable distribution order except as to one finding, which we remand for clarification.

Also contrary to the husband’s arguments, the trial court concluded that “an unequal distribution of the net marital estate is equitable.” In support of this conclusion, the court made findings of fact related to several of the equitable distribution factors listed in G.S. § 50-20(c). The husband has not identified any distributional factor for which evidence was presented that the trial court failed to address.

The trial court ordered the husband to pay the plaintiff-wife a distributive award. The court found that the husband’s disposable monthly income was sufficient to make payments toward the award for 18 months, during which time the husband could sell or refinance the marital home to fund the remainder of the distributive award. As sufficient liquid assets can be ascertained from the record to pay the distributive award, we must affirm this portion of the trial court’s order.

Although the trial court did not give a total figure for post-separation mortgage payments made by the husband, the trial court’s findings and simple arithmetic produce a total of $114,500 in post-separation mortgage payments. The trial court found that it had “considered those payments in equitable distribution.”

As for the routine maintenance of the marital residence, the husband cites no law to support his argument that the trial court was required, in its consideration of factor G.S. § 50-20(c)(11a), to include exact money values for payment of routine maintenance, including lawn care services, extermination services, natural gas bill, and utilities from the date of separation in October 2004 until the date of trial.

The trial court also found that the husband had been living at least part-time in that residence during that period of time and from January 2006 forward the husband had lived full-time in the marital residence. The fact that the husband was living in the marital residence and thus benefitting personally from his maintenance of the home is also a proper consideration pursuant to factor G.S. § 50-20(c)(11a). The trial court gave proper consideration to the husband’s contributions to maintain and preserve the marital residence, pursuant to § 50-20(c)(11a).

In the pretrial order, the parties agreed that the husband’s shares in his medical practice were to be distributed to him, but they disagreed as to the value of this marital property. The husband knew his witness, Mark Snell, would be the only expert called to provide evidence as to the valuation of his practice. Any error in the trial court’s reliance on Mr. Snell’s valuation or methodology is invited error.

Furthermore, where a party failed to present evidence as to a value of an item of marital property, he cannot claim on appeal that the trial court erred by failing to assign a value to it. To the extent that there are any deficiencies in Mr. Snell’s evidence, this amounts only to the husband’s failure to carry his burden of proof and not to reversible error.

The trial court did not order the husband’s medical practice to be sold to satisfy the distributive award. Also, the distributive award could be covered by the husband’s disposable income and the proceeds from the refinancing or sale of the marital residence.

Therefore, the trial court found that it was unlikely that the practice would be sold. As the trial court was not required to make a finding regarding speculative or hypothetical tax consequences of the sale of defendant’s medical practice, we find no abuse of discretion.

Finally, in discussing valuation of the husband’s medical practice, the trial court found that “a discount is appropriate considering the unwritten, informal nature of the Newton Family Physician business.” It is unclear what “discount” the trial court applied to determine the value of the practice. We remand to the trial court for clarification regarding the “discount” in the valuation of the medical practice.

Affirmed in part, remanded for clarification in part.

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