Family Values
November 28, 2017 § 2 Comments
A point I have harped on often around here is that you should not spare your effort to produce proof on valuation of assets — particularly retirement funds, equity, and the like. It can make a huge difference in what your client takes away in equitable distribution and/or alimony, and if you have to appeal it may be the difference between affirmance and reversal.
A recent example is the COA’s decision in Inge v. Inge, decided October 3, 2017. Denise Inge appealed, complaining that the chancellor had erred by not finding the present value of the parties’ future retirement benefits. The COA found no error. Judge Wilson succinctly rejected her argument for a 10-0 court:
¶19. Moreover, to the extent that Denise’s complaint is that the chancellor failed to make findings as to present values of the parties’ respective future benefits, we simply note that Denise failed to present such evidence or calculations. The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. See Pruitt v. Pruitt, 144 So. 3d 1249, 1252-53 (¶11) (Miss. Ct. App. 2014). The chancellor received evidence of the future payments that each party could expect to receive under their respective retirement plans and concluded that it was fair and equitable for each party to keep his/her own benefits. Again, we cannot say that the chancellor abused her discretion. The division of assets, as a whole, was fair and equitable. Dogan [v. Dogan], 98 So. 3d [1115] at 1124 (¶20) [(Miss. Ct. App. 20120]. [My emphasis]
Let that sink in: The chancellor is not expected to go beyond the evidence that the parties present in order to value the marital assets. In other words, it’s up to you to make a record. The more thoroughly you do that the better equipped you will be on appeal.
A few other points to ponder (with links to some previous posts):
- Another post making the same point is here.
- If you don’t give the judge enough to tip the scales your client’s way, the judge may average competing values.
- The date applied by the court to valuation can cost or gain you client big bucks.
- 8.05’s should not be an afterthought or thrown together. They should be carefully crafted with the attorney’s help because they are the “gold standard” of financial proof in chancery litigation.
The Better Chancery Practice Blog 
One issue that frequently arises involves the point in time at which the Chancellor makes the demarcation date determination. If you wait for the court to make that decision during the course of the trial on the merits, you run the risk of the court picking a date that is different from the date that you (and your client) have chosen to provide values for the assets. For instance, if you have values (including appraisals) based upon the separation or Temporary Order date, and the Judge picks the date of the trial, or the date of the entry of the Judgment of Divorce, all of the valuation info that you have submitted to the court could be significantly different, arguably even useless to the court. Depending on which side of the equation you are on, this could be a great benefit, but it could also be a great detriment. Therefore, I have found it useful in appropriate cases to first attempt to get a stipulation from the other side, well before trial, as to the demarcation date to be utilized. If you can’t get an agreement on that issue, I would suggest the filing of a motion to have the court make that determination well before trial. I think that in every instance I have encountered after filing such a motion, the court has understood the need to have the date determined prior to trial, and will choose a demarcation date at that time, even if it means putting on some evidence to assist the court in making its selection.
Excellent points. I think that’s a very productive approach.