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Lack of Evidence for Valuation of Property
(Provided by National Legal Research Group, Inc.)

It is surprising how many parties still attempt to appeal from the trial court’s decision to accept flawed expert testimony, without themselves having introduced any better evidence of value. In basketball, no matter how well a team plays on defense, it cannot win unless it scores at least one point. Likewise, in an equitable distribution trial, no matter how many flaws a party is able to find in the other party’s valuation evidence, that party cannot prevail on appeal unless he or she introduces at least some credible valuation testimony at trial. The appellate courts have made this point repeatedly over the past two decades, but the issue continues to arise:

After reviewing the record, it is clear that the parties failed to present evidence to the court that would establish the property’s value. This Court has held that when a chancellor makes a valuation judgment based on proof that is less than ideal, it will be upheld as long as there is some evidence to support his conclusion. Dunaway v. Dunaway, 749 So. 2d 1112, 1121 ( 29) (Miss. Ct. App. 1999). "To the extent that further evidence would have aided the chancellor in these decisions, the fault lies with the parties and not the chancellor." Ward, 825 So. 2d at 719 ( 21). Based on the evidence presented at trial, the chancellor did not abuse his discretion in his estimation of the property’s appreciation in value.

Messer v. Messer, 850 So. 2d 161, 170 (Miss. Ct. App. 2003).

It is the parties’ duty to present the trial court with the requisite data that would allow it to make a sufficient valuation of the retirement fund, and any failure by the parties in that regard should not provide them with grounds for review. In re Marriage of Smith, 114 Ill. App.3d 47, 69 Ill. Dec. 827, 448 N.E.2d 545 (1983). Accordingly, a party who fails to present sufficient evidence at trial should not be allowed on appeal to challenge the inadequacy of the evidence. Hartland v. Hartland, 777 P.2d 636 (Alaska 1989).

Here, not only did husband fail to present any evidence of the value of wife’s PERA pension, he also made no objection or argument challenging wife’s valuation during the permanent orders hearing. In addition, husband’s counsel informed the trial court that his client was eager to have the proceeding concluded and stated that he felt comfortable with the court resolving the issues based on the information before it.

A trial court is required to find the approximate current value of all property owned by the parties. In re Marriage of Weaver, 39 Colo. App. 523, 571 P.2d 307 (1977). Here, the trial court fulfilled that obligation by relying upon the only evidence available to it. See In re Marriage of Eisenhuth, 976 P.2d 896 (Colo. App. 1999) (in reaching an equitable division of marital property, the court is required to consider the evidence before it). Given husband’s failure to contest wife’s valuation or present any evidence whatsoever, including any evidence of a valuation conforming to the requirements set forth in In re Marriage of Kelm, supra, we hold that the trial court’s error provides no basis for reversal.

In re Marriage of Zappanti, 2003 WL 21403371, at **1-2 (Colo. Ct. App. 2003).

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National Legal Research Group, Inc.

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