Finney v. Finney

736 S.E.2d 639, 225 N.C. App. 13, 2013 WL 150137, 2013 N.C. App. LEXIS 59
CourtCourt of Appeals of North Carolina
DecidedJanuary 15, 2013
DocketNo. COA12-292
StatusPublished
Cited by6 cases

This text of 736 S.E.2d 639 (Finney v. Finney) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Finney v. Finney, 736 S.E.2d 639, 225 N.C. App. 13, 2013 WL 150137, 2013 N.C. App. LEXIS 59 (N.C. Ct. App. 2013).

Opinion

GEER, Judge.

Plaintiff Mary H. Finney appeals from an equitable distribution order making an unequal distribution of the marital estate. Because we have concluded that the trial court misallocated the burden of proof with respect to the classification of certain property and because certain of the findings of fact are not supported by the record, we must reverse and remand for further proceedings.

Facts

Robert and Mary Finney were married on 29 May 1993. The two separated on 4 January 2006. Ms. Finney filed a complaint seeking divorce from bed and board, post-separation support, a writ of pos[15]*15session on the marital home, equitable distribution, and attorneys’ fees. Mr. Finney filed a verified answer on 15 February 2006.

The trial court entered an equitable distribution judgment on 15 July 2011. After making extensive findings regarding the identity, character, and value of the property at issue, the trial court determined the net value of the marital property for distribution to be $247,138.23. The court concluded that an unequal distribution of the marital property in favor of Mr. Finney was equitable. The court then divided the property with 60% of the value of the marital property ($148,283.00) awarded to Mr. Finney and 40% of the value of the marital property ($98,855.23) awarded to Ms. Finney. The court then ordered Mr. Finney to make a distributive award to Ms. Finney in the amount of $10,890.44. Ms. Finney timely appealed to this Court.

Discussion

“ ‘When the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts.’ ” Williamson v. Williamson, 217 N.C. App. 388, 390, 719 S.E.2d 625, 626 (2011) (quoting Oakley v. Oakley, 165 N.C. App. 859, 861, 599 S.E.2d 925, 927 (2004)). Those findings of fact not challenged on appeal are binding. Peltzer v. Peltzer, 222 N.C. App. 784, 787, 732 S.E.2d 357, 360, disc. review denied, 366 N.C. 417, 735 S.E.2d 186.

Equitable distribution is governed by N.C. Gen. Stat. § 50-20 (2011), which requires the trial court to conduct a three-step process: (1) classify property as being marital, divisible, or separate property; (2) calculate the net value of the marital and divisible property; and (3) distribute equitably the marital and divisible property. Cunningham v. Cunningham, 171 N.C. App. 550, 555, 615 S.E.2d 675, 680 (2005).

I

Ms. Finney first contends that the-trial court’s valuation of the marital home was not supported by competent evidence because that valuation was based upon Mr. Finney’s opinion of the value of the residence. The trial court made the following finding of fact as to the value of the marital home:

85. That at the time of separation of the parties the home had a fair market value of $249,000.00. The Defendant testified to his opinion of the FMV [fair [16]*16market value] based upon an appraisal. The Plaintiff did not offer evidence of the FMV on the DOS [date of separation], and the Court finds Defendant’s figure to be credible. The value of the home on the date of separation was $233,473.44 (FMV-mortgage balance). Due to current market conditions in Haywood County, North Carolina, the home had a fair market value of $189,000.00 at the time of trial, which was the amount the home was listed for with an experienced local real estate agent as of the date of hearing. The Defendant testified to this figure, and the Plaintiff did not offer evidence on this point, and the Court finds this figure to be credible. The depreciation in value was passive and not due to the fault or actions of either party. The total amount of depreciation is $44,473.44.

Ms. Finney does not challenge the trial court’s valuation of the marital home as of the date of separation. Nor does she dispute that Mr. Finney testified that the house, in his opinion, had a fair market value of $189,000.00 at the time of trial. And, as the trial court noted, Ms. Finney did not herself submit any evidence of the value of the home.

It is well established that “[l]ay opinions as to the value of the property are admissible if the witness can show that he has knowledge of the property and some basis for his opinion.” Whitman v. Forbes, 55 N.C. App. 706, 711, 286 S.E.2d 889, 892 (1982). Further, the owners of property have generally been held to have both a knowledge and basis for the testimony as to the value of their property. See Goodson v. Goodson, 145 N.C. App. 356, 361, 551 S.E.2d 200, 204-05 (2001) (holding co-owner of property competent to testify as to value even though she did not know value of surrounding property). See also N.C. State Highway Comm’n v. Helderman, 285 N.C. 645, 652, 207 S.E.2d 720, 725 (1974) (“Unless it affirmatively appears that the owner does not know the market value of his property, it is generally held that he is competent to testify as to its value . . . .”).

At trial Mr. Finney testified that since the date of separation, his efforts to sell the marital home had not been successful, and he had come to understand, in consultation with the listing agent, that the value of the home as of the date of the trial was $189,000.00:

Q. Okay. And have there been efforts since August 2008 to sell this home?
[17]*17A. Yes, several.
Q. Okay. And do you have an opinion as to the fair market value of this home, at this time?
A. Yes, I do have an opinion.
Q. What is your opinion?
A. I’ve talked that over with the realtor, and 189,000.
Q. 189-?

Mr. Finney was a co-owner of the property and, therefore, was competent to testify as to its market value in the absence of evidence that he had no knowledge of the value of the property. Mr. Finney’s testimony showed that he did have a basis for his valuation in that he had been engaged in a good faith effort to sell the home and his valuation was based on conversations with his real estate agent about the proper price for the house given market conditions. Mr. Finney satisfied the requirement that he have both a “knowledge of the property and some basis for his opinion” and, therefore, his testimony provided competent evidence for the trial court’s finding regarding the value of the marital home. Whitman, 55 N.C. App. at 711, 286 S.E.2d at 892.

II

Ms. Finney next contends that the trial court erred in determining that accounts at the North Carolina State Employees’ Credit Union (“SECU”) — (1) account # 7611644 and (2) account # 7414053— were separate property even though acquired during the marriage. Under N.C. Gen. Stat.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Harris v. McLeod
Court of Appeals of North Carolina, 2026
O'Brien v. O'Brien
Court of Appeals of North Carolina, 2025
Denis v. Chandler
Court of Appeals of North Carolina, 2025
Abdeljabar v. Khalil
812 S.E.2d 914 (Court of Appeals of North Carolina, 2018)
TD Bank, N.A. v. Williams
787 S.E.2d 74 (Court of Appeals of North Carolina, 2016)
Hill v. Sanderson
781 S.E.2d 29 (Court of Appeals of North Carolina, 2015)
Gien v. Gien
Court of Appeals of North Carolina, 2015

Cite This Page — Counsel Stack

Bluebook (online)
736 S.E.2d 639, 225 N.C. App. 13, 2013 WL 150137, 2013 N.C. App. LEXIS 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finney-v-finney-ncctapp-2013.