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Domestic Relations – Equitable Distribution – Valuation – Owner’s Opinion – Substantiated – Distributional Award

Dalton v. Dalton (Lawyers Weekly No. 012-007-18, 14 pp.) (Robert Hunter Jr., J.) Appealed from Onslow County District Court (Sarah Seaton, J.) N.C. App. Unpub.

Holding: While an owner’s unsubstantiated opinion as to the value of his property is insufficient, plaintiff here based his opinion as to the value of the parties’ properties on previous appraisals and/or comparable sales; therefore, plaintiff’s opinion was substantiated, and the trial court erred when it concluded that it could only value the properties based on current appraisals.

The trial court’s equitable distribution order is vacated and remanded.

Even though the amortization schedule for the parties’ first rental property showed the payoff amount to be $72,244.43, plaintiff testified that he was behind on his loan payments, which was permitted because his parents held the note. He contends the actual amount due on the loan was $80,413. The trial court should have entered, but failed to enter, specific findings indicating how it determined the value of the property in light of the conflicting evidence presented.

With regard to the parties’ marital residence, plaintiff’s post-separation mortgage payments were active decreases in the marital debt, so – contrary to the trial court’s finding – these payments do not constitute divisible property. Of course, the trial court may properly consider plaintiff’s exclusive use of the marital home as a distributional factor.

Plaintiff next contends the trial court incorrectly concluded that it could only value the parties’ properties based on appraisals. Plaintiff cites Responsible Citizens v. City of Asheville, 308 N.C. 205, 302 S.E.2d 204 (1983), for the proposition that “an owner is entitled to testify to the value of his own property unless it affirmatively appears that the owner does not know the value. . . .”

While this may have been the general rule, our Supreme Court in United Community Bank (Georgia) v. Wolfe, 799 S.E.2d 269 (2017) (Lawyers Weekly No. 010-035-17) held, in the context of a summary judgment motion concerning application of the anti-deficiency statute, that merely “asserting an unsubstantiated opinion regarding the foreclosed property’s value is insufficient.” The same principle is true concerning the value of property in the context of an equitable distribution hearing – an unsubstantiated opinion is insufficient.

However, plaintiff based his opinion of the parties’ three properties on prior appraisals and/or comparable sales. Thus, his opinion was substantiated.

Finally, the trial court distributed nearly all the marital property to plaintiff and ordered him to make a distributional payment to defendant. The trial court erred when it failed to enter findings of fact indicating an in-kind distribution would not be equitable.

In sum, the trial court incorrectly valued several properties and erred in failing to make several findings of fact. Therefore, we vacate and remand.

 


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