Wilbur Lafayette Thompson,III vRoberta F. Thompson

• Court: Court of Appeals of Virginia
• Decided: February 8, 2000
• Docket: 1779992
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Frank

WILBUR LAFAYETTE THOMPSON, III MEMORANDUM OPINION * v. Record No. 1779-99-2 PER CURIAM FEBRUARY 8, 2000 ROBERTA FRENCH THOMPSON

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge

(Alexandra D. Bowen; Bowen, Bryant, Champlin & Carr, on brief), for appellant.

(Graham T. Jennings, Jr.; Graham T. Jennings, Jr., P.C., on brief), for appellee.

Wilbur Lafayette Thompson, III (husband) appeals from the

final decree of divorce entered by the circuit court. Husband

contends that the trial court erred when valuing the marital

estate by admitting into evidence the testimony of an expert

witness called by Roberta French Thompson (wife) as to the value

of Cavalier Vending Corporation (Cavalier). Upon reviewing the

record and briefs of the parties, we conclude that this appeal is

without merit. Accordingly, we summarily affirm the decision of

the trial court. See Rule 5A:27.

"The admission of expert testimony is committed to the

sound discretion of the trial court, and this Court will reverse

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. a trial court's ruling only where that court has abused its

discretion." Virginia Elec. & Power Co. v. Dungee, 258 Va. 235,

258, 520 S.E.2d 164, 177 (1999). "Where experts offer

conflicting testimony, it is within the discretion of the trial

court to select either opinion." Rowe v. Rowe, 24 Va. App. 123,

140, 480 S.E.2d 760, 768 (1997) (citing Reid v. Reid, 7 Va. App.

553, 563, 375 S.E.2d 533, 539 (1989)). "It is well established

that the trier of fact ascertains [an expert] witness'

credibility, determines the weight to be given to their

testimony, and has the discretion to accept or reject any of the

witness' testimony." Street v. Street, 25 Va. App. 380, 387,

488 S.E.2d 665, 668 (1997) (en banc) (citation omitted). "We

will not disturb a trial court's finding of the value of an

asset unless the finding is plainly wrong or unsupported by the

evidence." Shooltz v. Shooltz, 27 Va. App. 264, 275, 498 S.E.2d

437, 442 (1998).

Citing Code § 8.01-401.3(B), husband contends that the

testimony of wife's expert witness, Carlson Woo, was

inadmissible because it was speculative and not based upon facts

or sound methodology. Husband further contends that the trial

court erred by considering Woo's determination of a

"liquidation" value of Cavalier despite the fact that there was

no indication that Cavalier was to be liquidated. We find no

merit in these contentions.

- 2 - Husband's expert witness, Stephen Ragland, prepared a

written report based upon the financial records of Cavalier and

certain assumptions. Ragland opined that Cavalier had a fair

market value of $150,000, using a capitalized future return

method and asset based approach. Ragland noted that his report

contained certain limitations and departures from generally

accepted accounting principles. Wife's expert reviewed and

critiqued Ragland's written report and the assumptions on which

it was based, noting with specificity assets which Woo believed

were undervalued or otherwise inaccurately reported. Neither

Woo nor Ragland physically examined the assets of Cavalier and

both relied upon certain representations made by husband.

Nothing in Code § 8.01-401.3(B) barred the introduction by

wife of the testimony of an expert witness designed to impeach

the valuation testimony of husband's witness. Woo's testimony

addressed only questions of fact and drew no conclusions of law.

The facts upon which Woo relied were those set out in Ragland's

report. Using the data set out in Ragland's report, Woo found

that Cavalier had a net asset based or "liquidation" value of

$500,918. Woo noted that Ragland's report was ambiguous

concerning the ongoing viability of Cavalier. While there was

no evidence that husband intended to liquidate Cavalier, we find

no error in the trial court's consideration of Woo's testimony

concerning the company's value.

- 3 - The trial court was entitled to weigh the testimony of the

respective expert witnesses and assign a value to Cavalier based

upon the evidence and its determination of the witnesses'

credibility. The trial court's finding that the business was

worth $300,000 was within the range of values supported by the

evidence. Therefore, we cannot say that the trial court's

determination was clearly erroneous.

Accordingly, the decision of the circuit court is summarily

affirmed.

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