Finney v. Finney: The court remanded the case against the trial court’s classification of the State Employee’s Credit Union accounts as a separate property.
By Carole Gailo, family lawyer
Main Issue: Valuation of marital residence based on the owner’s opinion is sufficient; misallocation of the burden of proof regarding the classification of separate property requires reversal and remand for further proceedings.
Plaintiff-wife appealed the trial court’s unequal distribution ruling on Equitable Distribution. The trial court granted an unequal distribution of the marital estate to the defendant-husband awarding him 60% of the marital estate. Wife appealed the trial court’s ruling: (1) based on a lack of evidence supporting the valuation of the marital home; (2) that the trial court’s classification of the State Employee’s Credit Union accounts as the separate property of defendant was incorrect, and (3) that the trial court should not have awarded an unequal distribution of property in favor of the husband.
Finney v. Finney: Co-owner Competent to Testify About Property Value
The wife contended that the husband’s opinion regarding the value of the marital residence of $189,000 was not competent evidence. The Court of Appeals held the husband was co-owner of the property and under well- established case law is deemed competent to testify about the property value even absent knowledge of the property. The Court of Appeals said there was evidence to support a finding the husband had knowledge of the property’s value because he had been engaged in a good faith effort to sell the home and discussed pricing and market conditions with his real estate agent.
The wife further appealed the trial court’s ruling that two credit union accounts acquired during the marriage were the separate property of the husband. The Court reiterated the rule regarding the shifting burden of proof articulated in Fountain v. Fountain, 148 N.C. App. 329, 332, 559 S. E. 2d 25, 29 (2002). The Court of Appeals held that the trial court’s finding the wife did not meet her burden of proof of showing the credit union accounts were marital property was erroneous and that since the wife met her burden of proof the burden of proof had shifted to the husband to prove by a preponderance of the evidence that the accounts were his separate property. The Court of Appeals reversed and remanded regarding the classification of these accounts. The court held that once the trial court correctly applies the burden of proof and makes appropriate findings of fact and conclusions of law it then can determine what is an appropriate distribution of marital property.
_______________________________________________________________________________
Carole Gailor is the founding and managing member of Gailor, Hunt, Jenkins, Davis & Taylor, PLLC in Raleigh, North Carolina. She is a Board Certified Family Law Specialist, Fellow in the American Academy of Matrimonial Lawyers and President of the North Carolina Chapter. Carole has been selected for Best Lawyers in America for multiple years, and one of the Top Fifty Women Lawyers in North Carolina by Super Lawyers. Her website: http://www.gailorwallis.com/cgailor.htm
Related Article
Property Appraisal: Uncovering the Hidden Value
An explanation of the method used to appraise the hidden potential of a property, paying specific attention to determining highest best use of the property and whether the property has excess or surplus acreage.
Published on:
