DIXIE LEE FRANKS,
Plaintiff,
v
.
BILLY EUGENE FRANKS,
Defendant.
Ronald C. True, Attorney for defendant-appellant.
Howard McGlohon, Attorney for plaintiff-appellee.
WYNN, Judge.
Defendant Billy Eugene Franks, appealing from an equitable
distribution judgment entered 23 May 2001, presents two issues for
our review: (I) Did the trial court err in considering valuation
opinions outside of those expressed in plaintiff's pleadings; and
(II) did the trial court err in its methods of valuation. We find
no error and affirm the equitable distribution judgment.
Billy and Dixie Franks were granted an absolute divorce on 29
January 1998, with only equitable distribution issues remaining.
The parties filed inventory affidavits in accordance with N.C. Gen.
Stat. § 50-21 (2001). In Ms. Franks' affidavit, several assets,
including racing stuff and the business Franks' Painting
Service, were listed with an unknown value at the date of
separation. At trial, Ms. Franks presented an expert who gave anopinion assessing the value of Franks' Painting Service at the date
of separation as $450,000. However, Mr. Franks' subjective
impression was the business's value was $60,000. The court
attributed a $450,000 value to the business, found an equal
division was equitable, and ordered defendant to pay the plaintiff
a distribution award of $131,240 within 90 days. The execution of
this judgment was stayed pending appeal.
We first consider Mr. Franks' contention that the parties to
an equitable distribution action are bound by the values stated in
their inventory affidavits. N.C. Gen. Stat. § 50-21(a)
specifically provides: [t]he inventory affidavits prepared and
served pursuant to this subsection shall be subject to amendment
and shall not be binding at trial as to completeness or value.
At trial, Mr. Franks objected to the admission of the expert's
opinion as to value of the painting business because Ms. Franks
blind-sided him by not supplementing or amending her valuation
affidavit. However, the records show that Mr. Franks received a
copy of the expert opinion prior to trial. Accordingly, Ms. Franks
was not restricted to her affidavit; was free to present expert
testimony at trial; and defendant received appropriate notice of
the expert opinion.
Mr. Franks also challenges the valuation methods used by the
trial court to determine the value of the painting business. In
his brief, he makes the following argument:
. . . Edward Fidelman, admitted as an expert in business
evaluations, . . . provided the following standard and
customary definition of fair market value: It's a price
at which property would change hands between a willingbuyer and a willing seller . . . Mr. Fidelman conceded
that Mr. Franks had reasonable knowledge of the relevant
facts. Mr. Franks was, and is, willing to sell his
interest in the business for $30,000.00, and was, and is,
will to buy Mrs. Franks' interest in the business for
$30,000.00.
Thus, Mr. Franks concludes that his method of valuing the painting
business is the best evidence that the trial court had as to
valuation.
However, in contrast to Mr. Franks' naked testimony, Ms.
Franks presented the testimony of Mr. Fidelman, an expert in
forensic accounting and business valuation, who provided lengthy
testimony about Franks' Painting Service. Based upon the
expert's analysis of business and tax records which included
information about accounts receivables, fixed assets, tax
liabilities, expenses, customers, and other business components,
the expert opined the fair market value of the business to be
$450,000. The expert used the asset approach, the market approach
and the income approach to reach his conclusion; and, he explained
in great detail how he analyzed the data.
Based upon this evidence, the trial court found that Franks'
Painting Service:
had on the date of separation accounts
receivable of $243,727. It had fixed assets
valued at $77,749. And the goodwill of the
company may be personal to the defendant
himself, but it still has value. There is
clearly no way the Court could value the
company at $60,000, as contended by defendant.
The Court accepts Mr. Fidelman's [plaintiff's
expert] value of $450,000. The Court will
reduce that by the tax liability he has
already paid ($68,000) for a net value of
$382,000.
We hold that the trial court properly relied upon the
testimony of Ms. Franks' expert to determine valuation of the
painting business. Indeed, in Poore v. Poore, 75 N.C. App. 414,
331 S.E.2d 266 (1985), this Court specifically mentioned the
utilization of each of the methods used by Ms. Franks' expert as an
appropriate method to use to determine business value. 75 N.C.
App. at 419-22, 331 S.E.2d at 270-72. In addition, the expert,
based upon the excess earnings method, gave an opinion about the
value of the business's goodwill. In Poore, this Court stated the
value of goodwill should be made with the aid of expert testimony
and specifically mentioned the excess earnings method as an
appropriate measure of goodwill. 75 N.C. App. at 421, 331 S.E.2d
at 271. Thus, the record shows that plaintiff's expert used
valuation methods that complied with the standards established by
law.
Accordingly, we uphold that trial court's order of equitable
distribution.
Affirmed.
Judge McGEE concurs.
Judge GREENE concurs with separate opinion.
GREENE, Judge, concurring.
I concur with the majority that the trial court did not err in
considering valuation opinions outside the scope of the pleadings;
however, for the reasons stated below, I would not address the
second issue raised by defendant. As recently stated by this Court in an equitable distribution
case:
A party believing the methodology used by a
witness is not valid or, if valid, is not
properly applied to the facts at issue, has an
obligation to object to its admission. See
N.C.G.S. § 8C-1, Rule 103(a)(1) (1999). If a
timely objection is not lodged at trial, it
cannot be argued on appeal that the trial
court erred in relying on this evidence in
determining the value of the asset at issue.
See N.C.R. App. P. 10(b)(1); State v. Lucas,
302 N.C. 342, 349, 275 S.E.2d 433, 438 (1981)
(admission of evidence without an objection is
not a proper basis for appeal).
Walter v. Walter, 149 N.C. App. 723, 733, 561 S.E.2d 571, 578
(2002).
In this case, defendant did not challenge the valuation
methodology of plaintiff's expert at trial. Accordingly, he cannot
argue on appeal that the trial court erred in relying on that
expert's methodology. Thus, for this reason, I agree with the
majority that the trial court properly relied upon the testimony
of [plaintiff's] expert.
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