DAN CHARLES PETTICREW, APPELLANT,
v.
BONNIE L. PETTICREW, APPELLEE
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In this dissolution of marriage case, the Florida Fifth District Court of Appeal reversed the trial court's judgment, finding that the court abused its discretion by valuing the family business at $600,000 based on speculation rather than competent evidence, and by awarding lump sum alimony without showing unusual circumstances to justify it.
The court reversed, holding that the trial court abused its discretion by valuing the business at $600,000 based on the expert's speculative statements about his ability to broker the business for a higher price rather than on competent evidence, and by awarding lump sum alimony without identifying any unusual circumstances to justify a nonmodifiable award.
[1] A trial court abuses its discretion when it values marital property based on speculation or conjecture rather than competent evidence.
[2] A trial court must consider tax consequences when determining the fair market value of a business for equitable distribution.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The expert's expression of confidence in his ability to broker property was obviously speculation. Speculation and conjecture are inadmissible to prove the value of property.”
Establishes that the trial court erred by relying on the expert's speculative statements about selling the business for more than the appraised value.
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Join FLexlaw to unlock all legal intelligenceDan and Bonnie Petticrew married in 1967 and separated in 1989. Both parties were in their mid-to-late forties with adult children. Dan was employed b…
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ANTOON, J., Associate Judge.
Dan Charles Petticrew appeals the trial court’s final judgment of dissolution of marriage. He argues no evidence was presented supporting the court’s valuation of the family business, and no evidence was presented justifying an award of lump sum alimony. We agree, and after reviewing the overall scheme of property distributed and alimony awarded, conclude the trial court abused its discretion and reverse.
The parties married in September of 1967 and lived together until January, 1989. Two children were born of the marriage, both of whom have reached the age of majority. At the time the lower court entered its final judgment the husband was forty-eight years old and the wife, forty-seven years old. The husband was employed by the family business, Dixie Shower Doors, Inc., and earned $155,000 in 1988 and $139,000 in 1989.
The trial court found Dixie Shower Doors, Inc., to be a marital asset. Both parties presented testimony as to the fair market value of the business. The husband’s expert testified that Dixie Shower Doors, Inc., had a fair market value of $340,000, while the wife’s expert presented a written report and testified that fair market value was $500,000. In making the $500,000 valuation, however, the wife’s expert failed to consider the tax consequences the husband would suffer upon his sale of the business. He also stated, notwithstanding his expert opinion of the business’ fair market value, that he could sell the business for more than $500,000. He testified:
You’re talking about two different things. When I’m asked to do an appraisal, which I did, I did an acceptable appraisal standards. I came up with what I thought was a fair and reasonable value of $500,000. If you’re asking me as a business broker what I could sell the business for, that’s a different story.... I’m saying that there is a buyer out there that is willing to buy it for more than my appraised value, that’s what I’m saying.
Based upon this testimony, the trial court determined Dixie Shower Doors, Inc., to have a minimum fair market value of $600,-000. The husband was then awarded the family business, and the trial court ordered him to pay the wife half of its value.
The expert’s expression of confidence in his ability to broker property was obviously speculation. Speculation and conjecture are inadmissible to prove the value of property. Walters v. State Road Department, 239 So. 2d 878 (Fla. 1st DCA 1970). Because the record does not include any competent evidence establishing the fair market value of Dixie Shower Doors, Inc., to be $600,000, and because the trial court failed to consider tax implications in determining fair market value, we find the $600,000 value to be arbitrary and in error. See Calamore v. Calamore, 555 So. 2d 1302 (Fla. 4th DCA 1990).
In addition to the $325,000 equitable distribution amount, the court awarded the wife $250,000 in lump sum alimony for her support to be paid at the rate of $2,083.33 per month. Lump sum alimony may be used as a tool to effect equitable distribution of assets or for the purpose of awarding support. Ledford v. Ledford, 469 So. 2d 828 (Fla. 5th DCA 1985). However, in order for lump sum alimony to be an acceptable method of providing support to a former spouse, there must be some unusual circumstance to justify a nonmodifiable lump sum award instead of modifiable periodic alimony. Lynch v. Lynch, 437 So. 2d 234 (Fla. 5th DCA 1983). The record is void of any unusual circumstances justifying the lump sum award.
REVERSED and REMANDED for further proceedings consistent with this opinion.
COWART and PETERSON, JJ„ concur.
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Lou Jean Miller v. Miller, 625 So. 2d 1320 (Fla. 5th DCA 1993)…nother method of distribution if the findings of the court warrant it. The court and the parties should consider the advantages and disadvantages of lump sum alimony and permanent periodic alimony or some combination thereof. Petticrew v. Petticrew, 586 So. 2d 508 (Fla. 5th DCA 1991) (lump sum alimony is not modifiable); Pimm v. Pimm, 601 So. 2d 534 (Fla.1992) (permanent alimony can be subject to modification where obligor spouse over age 65 voluntarily retires); Hamlet v. Hamlet, 552 So. 2d 210, 211 (Fla. 5t…
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Polley v. Polley, 588 So. 2d 638 (Fla. 3d DCA 1991)…inder, 538 So. 2d 925 (Fla. 1st DCA 1989); Sheffield; Addington; see also Rogers v. Rogers, 296 N.W. 2d 849, 853 (Minn.1980). The trial court’s valuation is, at best, a speculative evaluation of the parties’ PPC interest. See Petticrew v. Petticrew, 586 So. 2d 508 (Fla. 5th DCA 1991). “[T]he starting point for equitable distribution is an award of half [the marital assets] to each party; only upon a showing of extraordinary circumstances will an unequal division of assets be appropriate.” Eckroade, 570 So. 2…
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SUN Bank/North Florida v. Edmunds, 624 So. 2d 753 (Fla. 1st DCA 1993)…because the trial court erred both in failing to disqualify expert Nord or to strike his testimony, and in failing to preclude or strike the testimony of the property owner. Nord’s testimony should have been precluded under Petticrew v. Petticrew, 586 So. 2d 508 (Fla. 5th DCA 1991), Walters v. State Rd. Dep’t, 239 So. 2d 878 (Fla. 1st DCA 1970), Boynton v. Canal Auth., 311 So. 2d 412 (Fla. 1st DCA 1975), and Division of Administration v. Samter, 393 So. 2d 1142 (Fla.3d DCA 1981), rev. denied, 402 So. 2d 612…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re The Marriage of Lynn Earl Lynch v. Lynch, 437 So. 2d 234 (Fla. 5th DCA 1983)
- Walters v. The State Rd. Dep't of Fla., 239 So. 2d 878 (Fla. 1st DCA 1970)
- Calamore v. Calamore, 555 So. 2d 1302 (Fla. 4th DCA 1990)
- McGAHEE v. State, 239 So. 2d 878 (Fla. 1st DCA 1970)
- Ledford v. Ledford, 469 So. 2d 828 (Fla. 5th DCA 1985)