Pellom v. Pellom

669 S.E.2d 323, 194 N.C. App. 57, 2008 N.C. App. LEXIS 2158
CourtCourt of Appeals of North Carolina
DecidedDecember 2, 2008
DocketCOA08-113
StatusPublished
Cited by12 cases

This text of 669 S.E.2d 323 (Pellom v. Pellom) 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
Pellom v. Pellom, 669 S.E.2d 323, 194 N.C. App. 57, 2008 N.C. App. LEXIS 2158 (N.C. Ct. App. 2008).

Opinion

HUNTER, Judge.

Gary L. Pellom (“plaintiff’) and Beverley M. Pellom (“defendant”) were married on 30 December 1972 and physically separated on 9 June 2004. A complaint for equitable distribution, inter alia, was filed on 7 February 2005. The parties divorced on 1 September 2005. An equitable distribution judgment was entered 12 December 2006 in Durham County District Court. The court held that defendant was entitled to 54% of the couple’s net assets and ordered plaintiff to pay a distributive award in the amount of $839,964.32. Plaintiff appeals from the judgment. After careful review, we vacate in part, affirm in part, and remand for further proceeding.

On appeal, the two property interests in dispute are plaintiff’s 11.11% ownership interest in Durham Anesthesia Associates, P.A. (“DAA”), and the parties’ 25% ownership interest in Fitness Docs, Inc. (“Fitness Docs”). Plaintiff’s expert valued DAA at $183,000.00, while defendant’s expert valued the business at $1,267,000.00. The trial court accepted the valuation proposed by defendant’s expert. There is no dispute as to the value of Fitness Docs.

All assignments of error in the case relate to equitable distribution of property; therefore, the standard of review is abuse of discretion. Our State Supreme Court has held:

It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion. A trial court may be reversed for abuse of discretion only upon a *62 showing that its actions are manifestly unsupported by reason. A ruling committed to a trial court’s discretion is to be accorded great deference 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.

White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (internal citations omitted).

In conformity with the standard of review, this Court will not “second-guess values of marital . . . property where there is evidence to support the trial court’s figures.” Mishler v. Mishler, 90 N.C. App. 72, 74, 367 S.E.2d 385, 386, disc. review denied, 323 N.C. 174, 373 S.E.2d 111 (1988). We will now address plaintiff’s multiple arguments in turn.

A.

Plaintiff first argues that the trial court erred in using the defense expert’s valuation of DAA as the method was not sound nor properly applied to the facts at issue. Specifically, plaintiff alleges that in his use of the income approach, discounted cash flow method, defendant’s expert, Mr. Pulliam, used an incorrect figure for the “ ‘normalized’ income” of plaintiff. This figure is relevant since it is compared to similarly situated physicians to calculate the value of plaintiff’s interest in DAA. “The accuracy of [the income] approach depends significantly upon the accuracy of the ‘average’ statistics used in the comparison.” Carlson v. Carlson, 127 N.C. App. 87, 93, 487 S.E.2d 784, 787 (1997) (citation omitted).

Mr. Pulliam used a figure of $525,000.00 as plaintiff’s “ ‘normalized’ income,” which plaintiff claims was improperly based on his 2003 income alone — the highest salary he received between 1999 and 2005. The record shows that plaintiff’s income was steadily rising between 1999 and 2003. 1 Plaintiff is correct in stating that Mr. Pulliam’s report does not take into account plaintiff’s 2004 and 2005 2 earnings. Mr. Pulliam’s report is “[a]s of June 9, 2004,” the date the parties separated. This Court has held, “ ‘[i]n valuing a marital interest in a business, the task of the trial court is to arrive at a date of separation value which “reasonably approximates” the net value of the business interest.’ ” Fitzgerald v. Fitzgerald, 161 N.C. App. *63 414, 419, 588 S.E.2d 517, 521 (2003) (citations omitted; emphasis added). Mr. Pulliam properly valued the business at the date of separation with the data he had at the time.

The trial court addressed plaintiffs allegation in the judgment. The court found that “Mr. Pulliam based his projection on the best information he had at the time he prepared his report.” The fact that Mr. Pulliam’s projection did not prove completely accurate between the time of the report and the time of trial is not sufficient reason to find an abuse of discretion by the trial court in accepting the expert’s opinion.

Upon reviewing the record, we find the trial court’s findings of fact regarding plaintiff’s “normalized income” were based on competent evidence presented by Mr. Pulliam. Therefore, we find no error as to this portion of the valuation.

B.

Plaintiff also argues that Mr. Pulliam’s income figure for a “similarly situated anesthesiolgist [sic]” was incorrectly calculated and the trial court abused its discretion in utilizing it to form the distributive award. The figure accepted by the trial court was $275,000.00, putting plaintiff in the 75th percentile in compensation.

Plaintiff asserts that Mr. Pulliam was not justified in relying on the 2003 version of the Medical Group Management Association (“MGMA”) physician compensation data for anesthesiologists since the 2004 version was available at the time of his report, but he does not claim that the 2004 version would have changed the outcome. In fact, the report shows that Mr. Pulliam made a note that the “2004 MGMA corroborates with 73%.” Even if it would have been better practice to use a more recent version, accepting figures based on the 2003 report does not rise to an abuse of discretion on the part of the trial court.

Plaintiff further argues that there was a simple math error such that 84% rather than 70% should have been used as the percentage representing compensation for production. The testimony that is quoted in plaintiffs brief is taken out of context. Mr. Pulliam did say at trial that he divided thirty-seven weeks (the number of weeks plaintiff would work if he took all fifteen weeks of vacation allotted to him) by forty-four weeks (the number of weeks the 50th percentile anesthesiologists work). When the questioning attorney called his *64 attention to the fact that the result is .84, not .70, he stated that he thought those were the right numbers, but that he was unsure and would have to check his report.

In fact, the report shows that Mr. Pulliam placed plaintiff in the 75th percentile in compensation. He then took multiple factors into account, such as clinical hours worked and retirement benefits, and calculated $394,000.00. He then multiplied $394,000.00 by .70 since .70 is between the estimated portion of compensation in MGMA attributable to a compensation range of 60% to 80%. The result is $275,800.00, which was rounded down to $275,000.00. There was no math error that we can ascertain.

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

Related

O'Brien v. O'Brien
Court of Appeals of North Carolina, 2025
Scholl v. Scholl
Court of Appeals of North Carolina, 2025
Theuerkorn v. Heller
Court of Appeals of North Carolina, 2025
Read v. Read
Court of Appeals of North Carolina, 2023
Abdeljabar v. Khalil
812 S.E.2d 914 (Court of Appeals of North Carolina, 2018)
Medlin v. Medlin
798 S.E.2d 812 (Court of Appeals of North Carolina, 2017)
Peltzer v. Peltzer
732 S.E.2d 357 (Court of Appeals of North Carolina, 2012)
Burgess v. Burgess
698 S.E.2d 666 (Court of Appeals of North Carolina, 2010)
Bass v. Bass
683 S.E.2d 466 (Court of Appeals of North Carolina, 2009)
Plummer v. Plummer
680 S.E.2d 746 (Court of Appeals of North Carolina, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
669 S.E.2d 323, 194 N.C. App. 57, 2008 N.C. App. LEXIS 2158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pellom-v-pellom-ncctapp-2008.