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DIVORCE 57: Holding that the trial court’s factual findings were not supported by the record evidence, and thus could not stand, the court reversed, vacated the portion of the Amended Default JOD ordering defendant to pay $3,325 to plaintiff, and re

Plaintiff first testified that she and defendant purchased the marital home in 1995. At the time the first default judgment of divorce was entered in September 2017, plaintiff had the home appraised. The value of the home was determined to be $135,000. After the conclusion of plaintiff’s testimony, the trial court made findings of fact on the record. The trial court found: The equity, however, will be reduced by the cost that would be to sell the marital home, as that would be the distribution, should that be sold. And, although there are no other – there’s no other evidence as it relates to the costs set forth in the home, there is a commission that would normally be charged at 7%. That leaves the-each party would be awarded $9,912.00 from that equity. If you take the award and the values set forth, the-it would be $22,112.00 to [defendant] and $15,462 to [plaintiff], so I am going to divide that difference. [Defendant] will owe [plaintiff], $3,325.00, that will equalize the marital estate. And, the Judgment of Divorce may be – an amended Judgment of Divorce may be entered consistent with that distribution.

STANDARD OF REVIEW

This Court has explained the standard of review for distribution of marital property as follows: In deciding issues on appeal involving division of marital property, this Court first reviews the trial court’s findings of fact. Findings of fact, such as a trial court’s valuations of particular marital assets, will not be reversed unless clearly erroneous.

ANALYSIS

Defendant argues on appeal that the trial court’s factual findings are unsupported by the record evidence, and thus cannot stand. We agree. Defendant argues that the trial court erred by reducing the equity in the marital home by 7%, which would represent a realtor’s commission if the home were to be sold, and by assigning “arbitrary” and “speculative” values to four motor vehicles, a pontoon boat, defendant’s tools, and the furniture inside the marital home. In assigning factually unsupported values to these items, the trial court valued defendant’s portion of the marital estate at $22,112 to plaintiff’s $15,462, and ordered defendant to pay $3,325 to plaintiff in order to “equalize the marital estate.” We conclude that the trial court erroneously deducted a 7% realtor’s commission on the sale of the home if it were to sell for $135,000. This 7% commission figure was based off of plaintiff’s testimony that in September 2017, if plaintiff had been ordered to pay defendant his portion of the home’s equity, she would have been forced to sell the home. However, plaintiff offered no evidence that she was actually planning on selling the home, or that she had even met with a realtor. Moreover, plaintiff offered no evidence to substantiate her position that any realtor would have taken a 7% commission on the sale, if the 7% commission was a standard commission, if the home would be listed at $135,000, or if comparable homes in plaintiff’s area had sold for close to $135,000. Thus, the trial court’s finding that the parties’ equity in the home should be reduced by a hypothetical 7% realtor commission was speculative, and therefore inadequate. We conclude that the trial court’s original valuation of the marital home was accurate, and that parties’ joint equity in the marital home as of September 2017 was $29,273.58, or $14,636.79 each. Next, we agree with defendant that the trial court’s factual findings regarding the value of four motor vehicles, a pontoon boat, defendant’s tools, and the furniture inside the home were inadequate. Plaintiff sought to include all of the aforementioned items in the marital estate, yet failed to present any evidence regarding their value. Again, the trial court’s findings regarding the value of the aforementioned personal property is not based on any fact in evidence, and thus, is speculative. These findings are inadequate and therefore cannot stand. Accordingly, we conclude that where plaintiff sought to include all of the aforementioned property in the marital estate, yet failed to meet her burden of proving the property’s reasonably ascertainable value, the property should not have been “considered an asset with value subject to distribution” in the marital estate.

CONCLUSION

We conclude that where plaintiff failed to provide evidence of the reasonably ascertainable value of the four motor vehicles, the pontoon boat, defendant’s tools, and the furniture inside the marital home, these items of personal property should not have been considered assets with value subject to distribution  the equity in the marital home should not have been reduced by 7%. This leaves the marital home as the sole asset of value subject to equitable distribution. On the basis of the foregoing, we further conclude that the parties’ shares of the marital estate were equal, and had a value of $14,636.79 each. Therefore, defendant should  not be required to pay any monies to plaintiff to equalize the marital estate, as the estate is already equal. We reverse, vacate the portion of the Amended Default Judgment of Divorce ordering defendant pay $3,325 to plaintiff to equalize the marital estate, and remand for entry of a Second Amended Default Judgment of Divorce consistent with this opinion.

ADVICE TO CLIENTS FACING SPOUSAL SUPPORT ISSUES IN DIVORCE CASES

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