{ "id": 8353298, "name": "THERESA BROWN ROBERTSON (now BROWN), Plaintiff v. FLOYD VINCENT ROBERTSON, Defendant", "name_abbreviation": "Robertson v. Robertson", "decision_date": "2005-12-06", "docket_number": "No. COA05-229", "first_page": "784", "last_page": "790", "citations": [ { "type": "official", "cite": "174 N.C. App. 784" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "438 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2527047, 2526538, 2528399, 2527859, 2527927 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0176-03", "/nc/335/0176-04", "/nc/335/0176-05", "/nc/335/0176-02", "/nc/335/0176-01" ] }, { "cite": "432 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "725" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 321", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521878 ], "year": 1993, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0321-01" ] }, { "cite": "588 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "522" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958189 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0414-01" ] }, { "cite": "335 S.E.2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 543", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4689381, 4687407, 4695924, 4688661, 4687388 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0543-04", "/nc/314/0543-05", "/nc/314/0543-03", "/nc/314/0543-02", "/nc/314/0543-01" ] }, { "cite": "331 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "272" }, { "page": "272" }, { "page": "272" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526019 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "422" }, { "page": "422" }, { "page": "422" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0414-01" ] }, { "cite": "527 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2000, "pin_cites": [ { "page": "686", "parenthetical": "quoting Poore v. Poore, 75 N.C. App. 414, 422, 331 S.E.2d 266, 272, disc. review denied, 314 N.C. 543, 335 S.E.2d 316 (1985)" }, { "page": "686" }, { "page": "686" }, { "page": "687" }, { "page": "688" }, { "page": "686" }, { "parenthetical": "quotation marks and citation omitted" }, { "page": "688" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093030 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "292", "parenthetical": "quoting Poore v. Poore, 75 N.C. App. 414, 422, 331 S.E.2d 266, 272, disc. review denied, 314 N.C. 543, 335 S.E.2d 316 (1985)" }, { "page": "292" }, { "page": "294-95" }, { "page": "292" }, { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0289-01" ] }, { "cite": "561 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "577", "parenthetical": "footnote and citations omitted" }, { "page": "577-78", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 723", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9131533 ], "year": 2002, "pin_cites": [ { "page": "733", "parenthetical": "footnote and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0723-01" ] } ], "analysis": { "cardinality": 630, "char_count": 13585, "ocr_confidence": 0.757, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.3935185024300645 }, "sha256": "fdae04576e236c702b2bdb3243b973c06f82bfa4d905fcc016dc26438dd15236", "simhash": "1:0188443afc4f9ed7", "word_count": 2170 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and JACKSON concur." ], "parties": [ "THERESA BROWN ROBERTSON (now BROWN), Plaintiff v. FLOYD VINCENT ROBERTSON, Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nFloyd Vincent Robertson (\u201cdefendant\u201d) appeals the trial court\u2019s 15 June 2004 equitable distribution judgment (\u201cthe Judgment\u201d) awarding defendant\u2019s former spouse Theresa Brown Robertson (\u201cplaintiff\u2019) 37.7 % of the marital estate. For the reasons discussed herein, we vacate and remand the Judgment.\nPertinent procedural and factual background information includes the following: On 29 December 1984, plaintiff and defendant married in Rockingham County, North Carolina. During the marriage, defendant owned and operated Parsons Well Company, a well-drilling and excavation business (\u201cthe business\u201d). The parties divorced on 31 March 2003.\nFollowing a hearing, the trial court entered the Judgment which included, inter alia, the following findings of fact:\n2. The parties were married to each other December 29, 1984 in Rockingham County, State of North Carolina and separated from one another on or about December 31, 2001. The parties were granted an absolute divorce in the District Court of Forsyth County, North Carolina on March 31, 2003.\n4. On the date of separation the parties [\u2019] marital estate consisted of the following marital property:\nNet [fair market value] of the well-drilling business including the fixed assets and liabilities is $230,000.00 less $13,694.00 (Defendant\u2019s separate interest)[.]\nBased in part upon the foregoing findings of fact, the trial court concluded as a matter of law that \u201c[a] 50/50 division after weighing distributive factors is not equitable and [defendant] is entitled to 62.3% of the net marital estate and [plaintiff] is entitled to 37.7% of the net marital estate.\u201d After allocating a vehicle to plaintiff and deducting from her award payments received previously from defendant, the trial court ordered defendant to pay plaintiff the sum of $90,000.00. Defendant appeals.\nInitially, we note defendant has failed to present argument on one of his original six assignments of error. Pursuant to N.C.R. App. P. 28(b)(6) (2005), the omitted assignment of error is deemed abandoned. We therefore limit our present review to those assignments of error properly preserved for appeal. .\nDefendant\u2019s remaining assignments of error challenge the Judgment on grounds it is fatally infected by error in the trial court\u2019s valuation of the business. This assertion has merit.\n\u201cIn an equitable distribution proceeding, the trial court is to determine the net fair market value of the [parties\u2019] property based on the evidence offered by the parties.\u201d Walter v. Walter, 149 N.C. App. 723, 733, 561 S.E.2d 571, 577 (2002) (footnote and citations omitted). While there is no required method to follow in assessing the value of the parties\u2019 marital property, \u201cthe approach utilized must be \u2018sound[.]\u2019 In other words, the trial court must determine whether the methodology underlying the testimony offered in support of the value of a marital asset is sufficiently valid and whether that methodology can be properly applied to the facts in issue.\u201d Id. at 733, 561 S.E.2d at 577-78 (citations omitted). \u201cIn valuing a marital interest in a business, the task of the trial court is to arrive at a date of separation value which \u2018reasonably approximates\u2019 the net value of the business interest.\u201d Offerman v. Offerman, 137 N.C. App. 289, 292, 527 S.E.2d 684, 686 (2000) (quoting Poore v. Poore, 75 N.C. App. 414, 422, 331 S.E.2d 266, 272, disc. review denied, 314 N.C. 543, 335 S.E.2d 316 (1985)). The trial court\u2019s findings of fact regarding the value of a spouse\u2019s business should be specific, and the trial court should \u201c \u2018clearly indicate the evidence on which its valuations are based, preferably noting the valuation method or methods on which it relied.\u2019\u201d Offerman, 137 N.C. at 292, 527 S.E.2d at 686 (quoting Poore, 75 N.C. App. at 422, 331 S.E.2d at 272). Where it appears that the trial court has \u201c \u2018reasonably approximated the net value of the [business] ... based on competent evidence and on a sound valuation method or methods, the valuation will not be disturbed\u2019 \u201d on appeal. Offerman, 137 N.C. App. at 292, 527 S.E.2d at 686 (quoting Poore, 75 N.C. App. at 422, 331 S.E.2d at 272).\nIn Offerman, the trial court sought to value a candlestick manufacturing business owned equally by the parties. The plaintiff\u2019s evidence tended to show that, if capitalization of excess earnings was considered in valuating the business, the business had a fair market value of approximately $378,800.00 on the date of separation. However, the defendant\u2019s evidence tended to show that, where \u201ccapitalized earnings,\u201d \u201ccapitalized excess earnings,\u201d and \u201crevenue multiple\u201d methods of evaluation were applied, the business had a fair market value of approximately $37,391.00.\nAfter receiving evidence from both parties, the trial court engaged in what it deemed an \u201cindependent assessment of the value of the corporation based upon . . . facts and circumstances ... a reasonable buyer and seller would have considered on the date of separation,\u201d and it determined the value of the corporation was $365,000.00. 137 N.C. App. at 294-95, 527 S.E.2d at 687. On appeal, this Court concluded we were unable to determine whether the trial court\u2019s valuation \u201creasonably approxmiate[d]\u201d the value of the parties\u2019 business, noting that\n[o]ther than the . . . finding that its valuation was arrived at by considering the \u201cfull value of [a partially performed] contract,\u201d there [wa]s neither an indication of the valuation method relied upon by the trial court nor an indication as to what portion of the assigned value represented] the value of [the business\u2019] goodwill.\nId. at 296, 527 S.E.2d at 688. Consequently, the trial court\u2019s equitable distribution judgment was vacated and the case remanded for further findings.\nIn Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 588 S.E.2d 517 (2003), the plaintiff husband owned a share in a surgical practice which his expert witness valued at $89,500.00 on the date of separation. The defendant\u2019s expert witness claimed her husband\u2019s share of the practice should have a date of separation value of $170,000.00. The trial court set the date of separation fair market value of the plaintiff\u2019s share at $125,000.00. On appeal, this Court stated the trial court appeared to have \u201crejected both experts\u2019 valuations\u201d; however, because \u201cthe trial court failed to identify the evidence on which it based its valuation or the method it used to reach its [own] figure,\u201d it was necessary to reverse the court\u2019s judgment and remand the case \u201cfor further findings of fact on the valuation of [the] plaintiff\u2019s interest in his surgical practice.\u201d Id. at 420, 588 S.E.2d at 522.\nIn the case sub judice, the date of the parties\u2019 separation was disputed in their pleadings, defendant contending the date was 31 December 2001 and plaintiff asserting the date of 23 February 2002. Using both an \u201cincome approach\u201d and a \u201ccost approach,\u201d defendant\u2019s expert witness, Brian Napier (\u201cNapier\u201d), set the fair market value of the business on 31 December 2001 at $77,900.00 and $91,700.00 on 23 February 2002. However, plaintiff\u2019s expert witness, Kathy Diaz (\u201cDiaz\u201d), valued the business at $375,000.00 on 23 February 2002.-\nOn direct examination, Diaz testified regarding the \u201cfour major differences\u201d between her valuation and that of Napier, noting she and Napier examined different amounts of information, utilized different \u201cdiscount rates\u201d in reaching their conclusions, and made different adjustments regarding the appraisals and tax values of property. When asked whether there were \u201cany significant changes . . . observed in the information provided to [her] between [23 February 2002] and December 31st of 2001 that would have led to an appreciably different value[,]\u201d Diaz replied as follows:\nNo, not anything that I would have observed. Most of those items that I\u2019ve talked about, we took into account.\nAfter Diaz testified that she \u201cactually took the extra step of going back and looking at taking their methodology but our numbers and what the difference would be[,]\u201d and that \u201cthe value [of the business] still rose to well over two hundred thousand dollars [,]\u201d the following exchange occurred:\nQ. So you applied their alternate methodology\u2014\nA. Methodology to our numbers\u2014\nQ. \u2014to the same numbers?\nA. \u2014to the numbers that we had come up with for the adjustments that we had made, yes.\nQ. And that number was what?\nA. It was two hundred and \u2014 almost two hundred and thirty thousand dollars.\nQ. Okay.\nA. And the other \u2014 the second main difference\u2014\nDefendant\u2019s Counsel: Your Honor, I\u2019m going to object to that in that I\u2019ve been provided no documentation with respect to an expert opinion or any calculations. Pursuant to the rules of this Court and specifically stated in the pretrial order, they are required to provide me with fifteen days\u2019 notice of any alternate values that they propose. As such, I move to strike that information.\nPlaintiff\u2019s Counsel: We\u2019re not proposing that as a value.\nThe Witness: No.\nDefendant\u2019s Counsel: You Honor, she\u2019s testifying with respect to calculations she made and is testifying to a value therefrom. As such, I\u2019m [entitled to notice of that and including a written report regarding that.\nThe Court: I will deny your motion, and you may proceed with your witness.\nOn cross-examination, defense counsel questioned Diaz regarding her written report as follows:\nQ. [On page 1, the report reads,] \u201cOur analysis considers those facts and circumstances present at the company at the valuation date. Our opinion would most likely be different if another valuation date was used,\u201d correct?\nA. Yes.\nQ. Okay. And so you didn\u2019t value the business as of December 31st, did you?\nA. No.\nQ. So your value only deals with February 23rd, 2002, correct?\nA. Uh-huh.\nQ. And so [plaintiff\u2019s counsel] asked you, you know, is it about the same. You don\u2019t know whether it\u2019s \u2014 you didn\u2019t do this calculation for that date \u2014 for 12/31, did you?\nA. We did some in-house valuations that we did not include in these reports, but since it\u2019s not in this report, then [inaudible].\nAs noted above, the trial court set the parties\u2019 date of separation at \u201con or about\u201d 31 December 2001, and further fixed the fair market value of the business at $230,000.00 on that date. Although the Judgment recites that the trial court\u2019s valuation \u201cinclud[ed] the fixed assets and liabilities\u201d of the business, the Judgment contains no findings regarding the evidence used to reach the $230,000.00 figure.\nWe acknowledge that $230,000.00 is precisely the alternate figure proffered by Diaz on direct examination. However, Diaz qualified this number with testimony that all her alternate valuations were done \u201cin-house,\u201d and that neither the conclusions nor calculations regarding those alternate values were part of the report submitted to plaintiff or the trial court. Further, although Diaz stated she arrived at the $230,000.00 figure by employing the same methodology as Napier, she further indicated her own \u201cnumbers\u201d were utilized in reaching her conclusion. Finally, and most significantly, the record contains no indication Diaz intended her alternate figure to value the business as of 31 December 2001, the date of separation determined by the trial court. To the contrary, when viewed in its entirety, the testimony of Diaz reveals that each of her calculations was aimed at determining the fair market value of the business on 23 February 2002.\nIn light of the foregoing, we cannot say \u201cthe trial court . . . arrive [d] at a date of separation value which \u2018reasonably approximate^]\u2019 the net value,\u201d Offerman, 137 N.C. App. at 292, 527 S.E.2d at 686, of the business. In addition, the Judgment contains no findings which \u201cclearly indicate the evidence upon which [the trial court\u2019s] valuationf]\u201d was based or \u201cthe valuation method or methods on which [the trial court] relied[.]\u201d Id. (quotation marks and citation omitted).\nWe therefore vacate the Judgment and remand this case for entry of a new judgment, based upon the existing record, see Minter v. Minter, 111 N.C. App. 321, 329, 432 S.E.2d 720, 725, disc. review denied, 335 N.C. 176, 438 S.E.2d 201 (1993), and containing further and appropriate findings of fact regarding the fair market value of the business. We emphasize that our holding does not require voluminous findings from the trial court, but instead simply findings sufficiently adequate to reflect that it has performed the task imposed upon it by our case law. See, e.g., Offerman, 137 N.C. App. at 296, 527 S.E.2d at 688; Fitzgerald, 161 N.C. App. at 420, 588 S.E.2d at 522.\nVacated and Remanded.\nJudges TYSON and JACKSON concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Theodore M. Molitoris for plaintiff-appellee.", "John J. Korzenfor defendant-appellant." ], "corrections": "", "head_matter": "THERESA BROWN ROBERTSON (now BROWN), Plaintiff v. FLOYD VINCENT ROBERTSON, Defendant\nNo. COA05-229\n(Filed 6 December 2005)\nDivorce\u2014 equitable distribution \u2014 valuation of business\u2014 insufficient supporting findings\nAn equitable distribution order was remanded for further findings on the value of defendant\u2019s business where the court fixed the disputed separation date and then the fair market value of the business, but did not make findings regarding the evidence used to reach that figure. The court used a figure proffered by plaintiff\u2019s expert, but the expert used her own figures, which were not part of the report submitted to'plaintiff and the court, and her valuation did not reflect the separation date determined by the court.\nAppeal by defendant from judgment entered 15 June 2004 by Judge Charles M. Neaves in Stokes County District Court. Heard in the Court of Appeals 19 October 2005.\nTheodore M. Molitoris for plaintiff-appellee.\nJohn J. Korzenfor defendant-appellant." }, "file_name": "0784-01", "first_page_order": 814, "last_page_order": 820 }