                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-346

                              Filed: 17 January 2017

New Hanover County, No. 12 CVD 4706

ALLEN G. EDWARDS, Plaintiff,

            v.

CHRISTINE L. EDWARDS, Defendant,

            v.

BRANDON EDWARDS, Third-Party Defendant.


      Appeal by Plaintiff from order entered 10 December 2015 by Judge Melinda H.

Crouch in New Hanover County District Court. Heard in the Court of Appeals 5

October 2016.


      The Lea/Schultz Law Firm, P.C., by James W. Lea, III, for the Plaintiff-
      Appellant.

      J. Albert Clyburn for the Defendant-Appellee.


      DILLON, Judge.


      Allen Edwards (“Husband”) appeals from an equitable distribution order. For

the following reasons, we affirm in part and reverse and remand in part.

                                  I. Background
                                      EDWARDS V. EDWARDS

                                         Opinion of the Court



        Husband and Christine Edwards (“Wife”) were married in 1989, separated in

2012, and were divorced in 2013. Mr. and Ms. Edwards had one child during their

marriage, Brandon Edwards.1

        This appeal concerns the equitable distribution of (1) two parcels of real

property (one located on St. Mary Church Road and the other on Pointer Lane) and

(2) the rental value of both properties during the period of separation.

        In its equitable distribution order and judgment, the trial court assigned a net

fair market value of $193,195 to the property on St. Mary Church Road and a net fair

market value of $109,439 to the property on Pointer Lane. Further, the trial court

found that Husband exclusively possessed these properties during the period of

separation (approximately 36 months) and that the total fair market rental value of

the properties during this period was $72,000 for the entire period ($2,000/month).

The trial court distributed this fair market rental value to Husband as divisible

property.

        Following entry of the trial court’s equitable distribution order, Husband

timely appealed.

                                      II. Standard of Review




        1 Brandon Edwards was added to this action as a third-party Defendant because he held title
to certain property that could have been classified as marital property. He is not a party to this appeal
and has not submitted any documents to this Court.

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                                 EDWARDS V. EDWARDS

                                    Opinion of the Court



      In an equitable distribution proceeding, “the trial court is to determine the net

fair market value of [a] property based on the evidence offered by the parties.”

Fitzgerald v. Fitzgerald, 161 N.C. App. 414, 419, 588 S.E.2d 517, 521 (2003). “A trial

court’s findings of fact in an equitable distribution case are conclusive if supported by

any competent evidence.”      Id.     “The mere existence of conflicting evidence or

discrepancies in evidence will not justify reversal.” Mrozek v. Mrozek, 129 N.C. App.

43, 48, 496 S.E.2d 836, 840 (1998).

                                       III. Analysis

               A. Fair Market Value of St. Mary Church Road Property

      Husband first argues that the trial court’s use of the tax value in calculating

the fair market value of the St. Mary Church Road property constituted an abuse of

discretion.   We disagree.    Based on well-established Supreme Court precedent,

although a real property’s tax value is generally not competent to establish the value

of the real property, it may be considered by the fact-finder if its introduction is not

properly objected to.

      Marital property is valued as of the date of separation, Davis v. Davis, 360 N.C.

518, 526-27, 631 S.E.2d 114, 120 (2006), which, in this case, was in 2012.

      At trial, Husband presented the expert opinion of a real estate appraiser that

the value of the St. Mary Church Road property was $61,000 as of the time of trial in

2015. Wife presented Wilson County tax records showing that the tax value of the



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                                      EDWARDS V. EDWARDS

                                         Opinion of the Court



property was determined to be $193,195 as of January 1, 2008. After considering this

evidence, the trial court found that the fair market value of the St. Mary Church Road

property on the date of separation was $193,195, the same amount as the tax value

assigned to the property.

       Our Supreme Court has held that ad valorem tax records are not competent to

establish the market value of real property. Star Mfg. Co. v. Atlantic Coast Line R.R.,

222 N.C. 330, 332-33, 23 S.E.2d 32, 36 (1942); Bunn v. Harris, 216 N.C. 366, 373, 5

S.E.2d 149, 153 (1939); Hamilton v. Seaboard, 150 N.C. 193, 194, 63 S.E. 730, 730

(1909); Cardwell v. Mebane, 68 N.C. 485, 487 (1873) (“The ‘tax lists’ [are] not

competent evidence to show the value of the land[.]”);2 see also Craven County v. Hall,

87 N.C. App. 256, 258, 360 S.E.2d 479, 480 (1987). This is so because “in the valuation

of [] land, for taxation, the owner is not consulted. . . . It is well understood that it is

the custom of the assessors to fix a uniform, rather than an actual, valuation.” Bunn,

216 N.C. at 373, 5 S.E.2d at 153. Further, “the assessors were not witnesses in the

case, sworn and subject to cross-examination in the presence of the [fact-finder].”

Cardwell, 68 N.C. at 487. See also Suffolk & C. R. Co. v. West End Land & Imp. Co.,

137 N.C. 330, 332-33, 49 S.E. 350, 351 (1904).3


        2 Authored by Richmond Mumford Pearson, who served as North Carolina’s Chief Justice from

1858-1878. Justice Pearson was our first popularly elected Chief Justice, first elected in 1868.
        3 We note that our Court has previously stated that “the ad valorem tax value assessed by a

county is [] allowed as evidence of the value of real property.” Clay v. Monroe, 189 N.C. App. 482, 487,
658 S.E.2d 532, 536 (2008) (emphasis added); see also Brock v. Stone, 203 N.C. App. 135, 136, 691



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                                    EDWARDS V. EDWARDS

                                       Opinion of the Court



       However, Husband did not object at trial to Wife’s introduction of the ad

valorem tax value of the St. Mary Church Road property. And our Supreme Court

has long held that “it is a well established rule that evidence admitted without

objection, though it should have been excluded had proper objection been made, is

entitled to be considered for whatever probative value it may have.” Quick v. United

Ben. Life Ins. Co., 287 N.C. 47, 59, 213 S.E.2d 563, 570 (1975). In a fuller explanation

of this rule, our Supreme Court has stated:

               It is generally recognized in this jurisdiction that evidence
               admitted without objection is properly considered by the
               court in determining the sufficiency of the evidence and by
               the jury in determining the issue, even though the evidence
               is incompetent and should have been excluded had
               objection been made. . . . The objection to the admission of
               this evidence must be made at the time of its introduction,
               and where testimony sufficient to establish a fact at issue
               has been received in evidence without objection, a nonsuit
               cannot be sustained even if the only evidence tending to
               establish the disputed fact is incompetent.

Reeves v. Hill, 272 N.C. 352, 362, 158 S.E.2d 529, 537 (1968) (internal marks and

citations omitted); see also Jackson v. N.C. Dept. of Commerce, ___ N.C. App. ___, ___,

775 S.E.2d 687, 689 (2015).

       Here, the trial court’s finding regarding the fair market value of the St. Mary

Church Road property was supported by the property tax report submitted by Wife




S.E.2d 37, 39 (2010). However, we are compelled to follow precedent from our Supreme Court on this
issue.

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                               EDWARDS V. EDWARDS

                                  Opinion of the Court



with no objection from Husband. Therefore, we affirm the trial court’s valuation of

the property. See Mrozek, 129 N.C. App. at 48, 496 S.E.2d at 840.

                            B. Fair Market Rental Value

      Husband’s second argument relates to the trial court’s calculation of the fair

market rental value of the properties during the 36-month period of separation. Wife

concedes that Husband is correct in his argument.

      For the St. Mary Church Road property, the trial court imputed and

distributed a fair market rental value of $43,200 to Husband based on a fair rental

value of $1,200 per month times 36 months. Husband argues that the trial court’s

findings concerning the fair market value is not supported by competent evidence,

and Wife makes no argument to the contrary. Rather, the parties agree that the

proper calculation should be the actual amount of rent received by Husband during

this period minus the expenses paid by Husband for the upkeep of the property during

this period. The parties concede that competent evidence in the record shows that

Husband received gross rental income of $15,200 during the period of separation and

that the matter should be remanded in order to allow the trial court to determine

what reduction in this value, if any, Husband is entitled to for the $6,833 he claims

he expended for the upkeep of the property during the period of separation.

Accordingly, we reverse and remand the trial court’s valuation of this divisible

property as set forth in the Conclusion. See N.C. R. App. P., Rule 28.



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                                EDWARDS V. EDWARDS

                                  Opinion of the Court



      For the Pointer Lane property, the trial court imputed and distributed a fair

market rental value of $28,800 ($800/month) to Husband. Husband testified that in

his opinion, a fair market rental value for the Pointer Lane property would be

approximately $800 per month. Husband further testified that the parties’ son was

occupying Pointer Lane and was not paying rent. Wife testified that their son was

paying approximately $300 per month. On appeal, Husband argues that the trial

court abused its discretion in valuing this divisible property at $28,800. Wife makes

no argument to support the trial court’s valuation, but rather concedes that their

adult son lived at Pointer Lane during the relevant time period and that the imputed

rental value should only be the amount Husband actually received. We note that the

trial court made no findings to show its reasoning in using a fair rental value number

when the parties’ son was living in the property. We further note that there is

conflicting evidence in the record as to how much rent, if any, Husband actually

received. Accordingly, we reverse and remand this valuation, as set forth in the

Conclusion. See N.C. R. App. P., Rule 28.

                                   IV. Conclusion

      The trial court’s valuation of the St. Mary Church Road property based on the

tax value evidence is affirmed. Though tax value evidence is generally not competent

to prove value, the evidence offered by Wife was not objected to and could therefore

be considered by the trial court in its valuation of the St. Mary Church Road property.



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                                EDWARDS V. EDWARDS

                                   Opinion of the Court



      The trial court’s valuation of certain divisible property – namely, the rental

value of the St. Mary Church Road and Pointer Lane properties during the period of

separation – is reversed and remanded. On remand, the trial court shall determine

the rental value of the St. Mary Church Road property at the rent actually received

by Husband (which the parties concede to be $15,200.00) minus Husband’s expenses

as allowed by the trial court. The trial court shall determine the rental value of the

Pointer Lane property based on the rent actually received by Husband minus any

expenses paid by Husband as allowed by the trial court. In doing so, the trial court

shall make findings concerning Husband’s expenses for both properties and may, in

its discretion, receive additional evidence if necessary. Finally, after the trial court

has re-valued this divisible property, the trial court may redistribute any marital and

divisible property to achieve an equitable distribution.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

      Judges ELMORE and HUNTER, JR., concur.




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