Bowers v. Bowers

• Citation: 561 S.E.2d 610,349 S.C. 85
• Decision Date: 25 February 2002
• Docket Number: No. 3449.,3449.
• Court: Court of Appeals of South Carolina
• Parties: Linda Dennis BOWERS, Respondent, v. Gregory S. BOWERS, Appellant.

349 S.C. 85

561 S.E.2d 610

Linda Dennis BOWERS, Respondent, v. Gregory S. BOWERS, Appellant.

No. 3449.

Court of Appeals of South Carolina.

Heard February 5, 2002.

Decided February 25, 2002.

Rehearing Denied April 18, 2002.

J. Falkner Wilkes, of Meglic, Wilkes & Godwin; and Kimberly F. Dunham, both of Greenville, for appellant.

David M. Collins, Jr., of Inman, for respondent.

ANDERSON, Judge:

In this domestic action, Gregory S. Bowers ("Husband") appeals from several aspects of the Family Court's order. We affirm in part, reverse in part, and modify in part.

FACTS/PROCEDURAL BACKGROUND

Husband and Linda Dennis Bowers ("Wife") were married in December 1991 and separated in the fall of 1997. No children were born to the marriage.

Wife instituted this divorce action against Husband in October 1997. At the time of the final hearing, the issues before the court for disposition included: divorce, alimony, equitable distribution of marital assets, allocation of marital debts, disposition of pending allegations of contempt against Wife, and attorney's fees.

By order dated April 10, 2000, the Family Court awarded Wife a divorce on the ground of adultery, rehabilitative alimony of $1,000 per month for twelve months, and $8,915 in attorney's fees. The judge also identified, valuated, and equitably apportioned the parties' marital property and debts. Specifically, the court:

(1) valued the parties' marital home at $260,000, awarded ownership to Husband, and awarded one-half of the equity ($17,932.03) to Wife;

(2) valued and apportioned the furniture in the marital home;

(3) identified Husband's 401(k) account as marital, valued the asset at $39,395.38, and awarded one-half of the account to Wife;

(4) identified Husband's 10,000 shares of Southern Water Treatment stock as marital property, valued the stock at $50,000, and awarded Wife one-half the value of the asset; and

(5) ordered Husband to repay Wife $20,611 for loans made between the parties' corporations.

To effectuate the award of equitable distribution, the court ordered Husband to pay Wife $70,990.72, payable in three $23,663.57 monthly installments with payments due on May 1, 2000, June 1, 2000, and July 1, 2000. The court additionally ordered Husband to pay Wife $8,915.00 in reasonable attorney's fees, payable in three $2,971.67 monthly installments with payments due on April 1, 2000, May 1, 2000, and June 1, 2000.

Husband appeals the Family Court's: (1) inclusion of cash disbursements in the court's scheme of equitable distribution; (2) valuation of several marital assets; (3) failure to consider tax consequences in arriving at its award of equitable distribution; (4) identification of marital debts; and (5) award of attorney's fees.

STANDARD OF REVIEW

On appeal from the Family Court, this Court has jurisdiction to find the facts in accordance with its view of the preponderance of the evidence. Murdock v. Murdock, 338 S.C. 322, 526 S.E.2d 241 (Ct.App.1999). This tribunal, however, is not required to disregard the Family Court's findings. Badeaux v. Davis, 337 S.C. 195, 522 S.E.2d 835 (Ct.App.1999). Likewise, we are not obligated to ignore the fact the Family Court judge, who saw and heard the witnesses, was in a better position to evaluate their testimony. Smith v. Smith, 327 S.C. 448, 486 S.E.2d 516 (Ct.App.1997); see also Dorchester County Dep't of Soc. Servs. v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct.App.1996)

(ruling that because the appellate court lacks the opportunity for direct observation of witnesses, it should accord great deference to the Family Court's findings where matters of credibility are involved); Terwilliger v. Terwilliger, 298 S.C. 144, 378 S.E.2d 609 (Ct.App.1989) (holding the resolution of questions regarding credibility and the weight given to testimony is a function of the Family Court judge who heard the testimony).

LAW/ANALYSIS

I. Valuation of the Marital Home

Husband asserts the Family Court's valuation of the marital home is not supported by the evidence. We agree. In arriving at its valuation of the parties' marital home, the Family Court noted the parties listed the home for sale at $252,500 and that a contemporaneous appraisal assigned the same value to the home. The court further noted Wife valued the home at $265,000 on her marital assets sheet. In ultimately valuing the home at $260,000, the Family Court took "judicial notice of the increase of the value of homes in Greenville County, particularly on the eastside of Greenville County where this property is located." This was error.

We agree with Husband that Wife's valuation of the marital home was so unsubstantiated as to be useless for purposes of assigning a value for equitable distribution. Wife offered no credible explanation of her $265,000 estimate of the home's value. Her failure in this regard is particularly telling since the home failed to sell at a $252,500 listing price. In fact, Wife admitted her valuation of the home was "a guesstimate based on just some conversation I had with Prudential Company. But they would not, again, give me a firm answer."

As a general principle, a landowner, who is familiar with her property and its value, is allowed to give her estimate as to the value of the land and damages thereto, even though she is not an expert. Seaboard Coast Line R.R. v. Harrelson, 262 S.C. 43, 202 S.E.2d 4 (1974). However,

[s]econd hand testimony of a "ball park figure" given by some unidentified (and not necessarily knowledgeable or reliable) "real estate agent" as to what he "thought" the property could be sold for, would obviously be entitled to small weight, if competent at all. There is no presumption that a person is competent to give his opinion as to the value of real property. His competency must be shown. City of Spartanburg v. Laprinakos, 267 S.C. 589, 230 S.E.2d 443 (1976). If the person is someone other than the owner of the property, the source of his knowledge must be revealed to remove his opinion from the realm of mere conjecture. A bare declaration of his knowledge of the value of the property is insufficient. [Id.]

Rogers v. Rogers, 280 S.C. 205, 209, 311 S.E.2d 743, 745-746 (Ct.App.1984)

.

Here, Wife's valuation was clearly not based on any personal knowledge she possessed regarding the true value of the home. Rather, the value she assigned was admittedly bottomed and premised entirely upon the unsupported and unsubstantiated advice of an unknown third party. There being nothing to take Wife's parroting of an unknown third party's valuation of the home out of the realm of pure speculation, we hold the Family Court erred in assigning any weight to the valuation.

Moreover, we hold the court's act of taking "judicial notice" of increased property values in the area where the parties' home was located was highly improper.

Rule 201, SCRE, which governs the taking of judicial notice of adjudicative facts, provides:

(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.

(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When Discretionary. A court may take judicial notice, whether requested or not.

(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing Jury. The court shall instruct the jury to accept as conclusive any fact judicially noticed.

See also Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 201App.01[2] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.2001) (stating subsection (e) of Fed.R.Evid. 201 is a useful safeguard to protect a party's right to be heard in matters relating to judicial notice).

Furthermore,

[a] trial court may take judicial notice of a fact only if sufficient notoriety attaches to the fact involved as to make it proper to assume its existence without proof. Moss v. Aetna Life Ins. Co., 267 S.C. 370, 228 S.E.2d 108 (1976). A fact is not subject to judicial notice unless the fact is either of such common knowledge that it is accepted by the general public without qualification or contention, or its accuracy may be ascertained by reference to readily available sources of indisputable reliability. Masters v. Rodgers Dev. Group, 283 S.C. 251, 321 S.E.2d 194 (Ct.App.1984).

Eadie v. H.A. Sack Co., 322 S.C. 164, 171-172, 470 S.E.2d 397, 401 (Ct.App.1996).

Here, the valuation of the marital residence, or any appreciation therein, was one of the primary issues in dispute. Any finding concerning the value of the home, particularly a valuation outside the realm of competent evidence offered at trial, required proof. The record is completely devoid of any such proof. There exists no competent evidence in the record establishing even a range by which such homes generally appreciated during the time period relevant to this case, let alone by how much the parties' home would have appreciated. We reject the application of the doctrine of judicial notice to valuations of marital residence.

Based on our own review of the competent evidence in the record before us, we reverse the Family Court's valuation of the marital home and modify the court's order by assigning a value of $252,500 to the home.

II. Cash Disbursements

Husband contends the Family Court erred in ordering him to make three equal monthly cash disbursements to Wife in realization of...