Gien v. Gien ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-7
Filed: 15 September 2015
Mecklenburg County, No. 11 CVD 11022
KELLY-ANNE GIEN, Plaintiff,
v.
ANDRE GIEN, Defendant.
Appeal by Defendant from Order and Judgment entered 28 May 2014 by Judge
Gary Henderson in Mecklenburg County District Court. Heard in the Court of
Appeals 19 May 2015.
James, McElroy & Diehl, P.A., by Preston O. Odom, III, and Jonathan D. Feit,
for Plaintiff.
Mark Hayes for Defendant.
STEPHENS, Judge.
Defendant Andre Gien appeals from the Mecklenburg County District Court’s
Order and Judgment in an action filed by Plaintiff Kelly-Anne Gien for, inter alia,
equitable distribution. Andre argues that the district court erred in its valuation of
his company, Lightening In A Jar, and in its valuation of shares of stock held as
marital property in an Australian company called InMatrix. Andre also contends that
the district court erred in distributing those assets solely to him and in ordering him
GIEN V. GIEN
Opinion of the Court
to pay a distributive award by liquidating certain assets. After careful review, we
affirm in part, vacate in part, and remand the district court’s Order and Judgment
for further findings and proceedings consistent with this opinion.
I. Factual and Procedural History
Kelly-Anne and Andre are citizens of Australia and were married there on 26
November 2000. In 2001, they moved to the United States and eventually settled in
Mecklenburg County after living for a time in Florida. The parties planned to pursue
an investment strategy by which they hoped to accumulate sufficient savings to
finance their retirement and return to Australia. Andre has a background in business
and accounting, and at the time the parties first arrived in this country, he was
working for an Australian company called InMatrix, which he helped to co-found in
the early 1990s by creating a proprietary software application. At some point in the
mid-2000s, Andre left InMatrix and went to work for a company called CBIZ, where
he worked for three to four years and, with the help of his colleague Ken Fleishman,
developed a financial diagnostic software application called Global Financial Bridge
(“GFB”). Andre then left CBIZ and began working for a company called Lightening
In A Jar (“LIJ”), which is a Florida corporation that he and Kelly-Anne formed in
June 2005. Since 2005, Andre has provided business consulting services for LIJ,
which owns and markets the GFB software. Kelly-Anne assisted Andre during the
marriage by keeping records for his various business interests.
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The parties separated on 1 September 2009 and were divorced on 25 August
2011. There were two children born of the marriage, and, on 22 February 2011, the
parties executed a Support Agreement for Payment of Alimony & Child Support and
Interim Agreement for the Distribution of Marital & Divisible Property (“Separation
Agreement”). The Separation Agreement provided, inter alia, that Andre “shall pay
child support to [Kelly-Anne] for the benefit of the parties’ minor children in the sum
of $2,000 per month” in 25 installments beginning 1 April 2011. Kelly-Anne and the
children returned to Australia shortly thereafter while Andre continued to reside in
Mecklenburg County.
On 3 June 2011, Kelly-Anne filed a complaint in Mecklenburg County District
Court alleging that Andre had “failed and refused to pay any amount toward[] his
monthly $2,000 alimony obligation” and seeking money damages for Andre’s breach
of the Separation Agreement, specific performance of the Separation Agreement,
equitable distribution, and attorney’s fees. On 12 July 2011, Kelly-Anne served Andre
with her first request for production of documents and her first set of interrogatories.
Although Andre filed an answer denying any breach of the Separation Agreement
and counterclaimed for equitable distribution on 22 August 2011, he failed to provide
a timely response to Kelly-Anne’s initial requests for discovery. On 15 September
2011, Kelly-Anne filed a Motion to Compel. On 7 November 2011, the parties
consented to the trial court’s entry of an Order to Compel Andre to respond to Kelly-
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Anne’s initial requests for discovery within 14 days and also pay her attorney’s fees.
Kelly-Anne filed her Equitable Distribution affidavit on 14 November 2011. On 22
November 2011, Andre provided Kelly-Anne with his responses to her initial
discovery requests and then submitted an Equitable Distribution affidavit on 14
February 2012 which did not list a single asset, debt, or value and instead answered
“TBD” for all categories. After repeatedly informing Andre in the following months
that many of his responses to her discovery requests were significantly insufficient
and that numerous documents were missing, Kelly-Anne’s attorney filed a Motion for
Contempt against Andre on 28 November 2012, and an amended Motion for
Contempt on 16 January 2013. After entering an Order to Show Cause on 17 April
2013, the trial court granted Kelly-Anne’s motion on 30 July 2013 and entered an
Order for Contempt finding Andre in civil contempt of court for violating its 7
November 2011 Order to Compel. Andre then filed an amended Equitable
Distribution affidavit on 9 August 2013. Both parties sought an unequal distribution
of marital and divisible property in their own favor.
On 15 October 2013, the trial court entered a Consent Order to Withdraw
permitting Andre’s counsel of record to withdraw from representing him. Throughout
the course of the litigation, Andre had been represented by three separate law firms,
and this marked the second time the court had entered an order allowing his counsel
to withdraw for good cause. When Andre stated that he intended to represent himself
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at trial, the court warned him that the trial would involve complex and complicated
legal issues that would be difficult for a layperson to understand. Andre affirmed that
he understood this, but stated that although he had over $30,000 in the bank, he did
not believe he could afford another attorney.
After a Final Equitable Distribution Pretrial Order (“FPTO”) was entered on 3
December 2013, a three-day trial on the parties’ claims began in Mecklenburg County
District Court on 16 December 2013. During the marriage, the parties possessed two
homes in North Carolina, one home in Florida, and a significant number of bank
accounts, investment accounts, and equity interests in businesses. At trial, the
parties disagreed strenuously over the value of two assets that are relevant to this
appeal: the value of the parties’ shares of stock in InMatrix and the value of LIJ.
With regard to the InMatrix shares, Andre stipulated in the FPTO that the
shares were marital property, but also claimed in his amended Equitable Distribution
affidavit that their date of separation value was “zero” because InMatrix “was sold in
2001-2002, and there were [sic] no distribution from the sale as venture capitalist
which funded it received all funds.” However, Kelly-Anne testified that on 1 July
2009, she received an email from the company’s Director of Finance, David Byrne,
which stated that the “total holding value that [the parties] have is 95,524 shares
equating to a total share capital of $330,178.” Although this email was admitted into
evidence without objection, Andre argued that the stock had no value and attempted
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to introduce documents that purported to show the company had been losing money
and was sold shortly after the parties’ date of separation in a “debt free, cash free”
transaction that did not result in any significant distribution to its shareholders. The
trial court, however, ultimately excluded this evidence because Andre never produced
it in response to Kelly-Anne’s requests for discovery and was unable to lay a proper
foundation for the admission of the documents given his lack of familiarity with our
State’s rules of evidence and civil procedure. Kelly-Anne testified that, in light of
Andre’s longstanding relationship with the company and its principals, she would not
feel comfortable being a shareholder and therefore requested that all the shares be
distributed to Andre.
As for the parties’ respective interests in LIJ, Kelly-Anne testified that she
filed the articles of incorporation for the company, served as its registered agent and
incorporator, was also listed along with Andre as one of its two directors, and was
therefore surprised when Andre produced a document during discovery that was
dated 9 June 2009, signed only by Andre, and purported to make him the company’s
sole director by “unanimous consent of [the] shareholders.” In his trial testimony and
during a pretrial deposition, Andre acknowledged several times that Kelly-Anne is a
50% owner of the business, but also claimed that LIJ essentially functions as a one-
man operation that only earns money as a result of his personal efforts, explaining
“outside my capabilities, [LIJ] has no value.” Andre testified further that since the
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date of separation, he has frequently charged his personal expenses to the business’s
account for meals, coffee, cigars, a home mortgage, legal fees, and purchases from
Victoria’s Secret.
According to certified public accountant Christopher Mitchell of Dixon Hughes,
who testified as an expert on Kelly-Anne’s behalf, this intermingling of business and
personal expenses made it impossible to utilize the income approach to provide a
valuation for the business. However, Mitchell testified further that he was able to
arrive at a valuation of $350,000 for LIJ by applying the asset approach for business
valuations and calculating the cost it would take to recreate the company’s GFB
software. Mitchell explained that he based his valuation on information contained in
two documents Andre eventually produced during discovery. The first document
Mitchell relied on was an ownership agreement (“the Holly/Lloyd agreement”) dated
2 August 2013 that purported to convey two-thirds of Andre’s interest in LIJ to two
of his business associates, Mick Holly and Joshua Lloyd. Although this agreement
was never fully executed, it included a heading noting that “Investment in GFB”
consisted of “an amount of $350,000 incurred by Andre Gien in the development of
the GFB product up to the date of this arrangement.” The second document Mitchell
relied on was an agreement dated 30 July 2013 (“the Fleishman agreement”) that
purported to grant Ken Fleishman a 50% interest in the GFB software and entitled
him to claim up to $350,000 in proceeds on the occurrence of GFB’s sale to a third
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party as a result of Fleishman’s significant financial contributions to the software’s
development. During his deposition, Andre testified that he had reached this
agreement with Fleishman “five or six years ago” and that Fleishman had had
“[p]retty much very little” to do with the software or the business since that time.
Given her lack of financial background, lack of confidence in the limited
number of financial records Andre provided during discovery, and lack of involvement
in the business since 2009, Kelly-Anne requested that LIJ be distributed solely to
Andre, who in the FPTO had classified the company as marital, separate, and
divisible property, and requested an equal distribution.
The trial on the parties’ equitable distribution claims concluded on 18
December 2013. On 28 May 2014, the trial court entered an Order and Judgment
awarding alimony and attorney’s fees to Kelly-Anne and finding that an equal
division of the parties’ $2,190,509 distributable estate would be equitable. In its
findings of fact, the court determined that the shares of InMatrix stock had a value
of $330,178 and that the value of LIJ was $350,000 based on Mitchell’s application of
the asset approach. The court ordered that both these assets be distributed to Andre,
based on its finding that an in-kind distribution would not be appropriate because
a. The majority of the parties’ marital assets
distributed to [Andre] herein have been under the
exclusive control of [Andre] since the date of the
parties’ separation, approximately four and a half
years ago.
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Opinion of the Court
b. The business interests distributed to [Andre]
herein were controlled and managed by [Andre]
throughout the marriage and since the date of
separation. [Andre] is the party with knowledge of
the business interests, and with relationships with
other owners and partners in the businesses.
c. [Kelly-Anne] lives in Australia and is the full-time
custodian of the parties’ minor children. It is not
practical to distribute assets permanently located in
the United States to her.
Based on these findings, the court concluded that in order to effectuate an equitable
distribution, it would be necessary for Andre to pay a distributive award of $105,887
to Kelly-Anne, which the court found Andre had the ability to pay “through the
liquidation of real estate, accounts, stock, or business interests distributed to him
herein,” and thus ordered him to do so within six months of the entry of the Order
and Judgment. Through counsel, Andre gave written notice of appeal to this Court
on 23 June 2014.
II. Analysis
A. Valuation of InMatrix shares
Andre argues first that the trial court erred in its $330,178 valuation of the
parties’ shares of stock in InMatrix because this valuation was not supported by
competent evidence. We agree.
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Opinion of the Court
As this Court’s prior decisions make clear, section 50-20(c) of our General
Statutes requires that, in determining the value of marital property in an action for
equitable distribution,
the trial court is to determine the net fair market value of
the parties’ property based on the evidence offered by the
parties. While there is no required method to follow in
assessing the value of the parties’ marital property, the
approach utilized must be sound. In other words, the trial
court must determine whether the methodology underlying
the testimony offered in support of the value of a marital
asset is sufficiently valid and whether that methodology
can be properly applied to the facts in issue. In valuing a
marital interest in a business, the task of the trial court is
to arrive at a date of separation value which reasonably
approximates the net value of the business interest.
Robertson v. Robertson, 174 N.C. App. 784, 785-86, 625 S.E.2d 117, 119 (2005)
(citations, internal quotation marks, and brackets omitted); see also Robinson v.
Robinson, 210 N.C. App. 319, 323, 707 S.E.2d 785, 789 (2011) (explaining that section
50-20 of our General Statutes requires the trial court to determine the net value of
marital property by “consider[ing] the property’s market value, if any, less the
amount of any encumbrance serving to offset or reduce the market value”) (citation
omitted).
Furthermore, it is well established that, in an action for equitable distribution,
the party claiming that property is marital property has “[t]he burden of proof . . . to
show by a preponderance of the evidence that the property: (1) was acquired by either
spouse or both spouses; (2) during the marriage; (3) before the date of the separation
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Opinion of the Court
of the parties; and (4) is presently owned.” Young v. Gum, 185 N.C. App. 642, 647,
649 S.E.2d 469, 474 (2007) (citation omitted), disc. review denied, 362 N.C. 374, 662
S.E.2d 552 (2008). Marital property must be valued “as of the date of separation.” Id.
at 649, 649 S.E.2d at 475; see also N.C. Gen. Stat. § 50-21(b) (2013).
Our standard of review on appeal from a judgment entered after a non-jury
trial for equitable distribution is
whether there is competent evidence to support the trial
court’s findings of fact and whether the findings support
the conclusions of law and ensuing judgment. The trial
court’s findings of fact are binding on appeal as long as
competent evidence supports them, despite the existence of
evidence to the contrary.
The trial court’s findings need only be supported by
substantial evidence to be binding on appeal. We have
defined substantial evidence as such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.
As to the actual distribution ordered by the trial court,
when reviewing an equitable distribution order, the
standard of review is limited to a determination of whether
there was a clear abuse of discretion. A trial court may be
reversed for abuse of discretion only upon a showing that
its actions are manifestly unsupported by reason.
Clark v. Dyer, __ N.C. App. __, __, 762 S.E.2d 838, 839 (2014) (citation omitted).
In the present case, the trial court’s Order and Judgment lists the value of the
InMatrix shares at $330,178 but provides no additional factual findings to explain
how it arrived at this determination. Our review of the record indicates that the court
based this valuation on the email that Kelly-Anne testified she received from
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Opinion of the Court
InMatrix’s Director of Finance David Byrne on 1 July 2009. While Andre concedes
that, by failing to object to this email at trial when it was introduced into evidence,
he has waived any right on appeal to challenge its admissibility on hearsay grounds,
Andre nevertheless contends that the Byrne email is not competent evidence of the
InMatrix stock’s net value as of the date of separation.
The Byrne email states in pertinent part that
I will not be able to provide you with a value of the shares,
this should be done at your end.
The total holding value that we have is 95,524 shares
equating to a total share capital of $330,178[.]1
On direct examination, Kelly-Anne offered the following testimony about the Byrne
email and its effect on her opinion of the value of the parties’ InMatrix shares:
Q Okay. Now, I want you to leave that and go to the
other notebook and go to Exhibit 80. Are you there?
A Yes.
Q Who is David [Byrne]?
A He was the CEO of the company.
Q Of what company?
1 The Byrne email appears in the record as part of a longer chain that began when Kelly-Anne inquired
about the “current share value” of the parties’ InMatrix stock in a 25 June 2009 email to the company’s
chief executive officer Gary Challinor. In her email, Kelly-Anne stated that the parties were planning
to move some of their shares into one of the parties’ trust instruments. That same day, Challinor
replied to Kelly-Anne by providing the company’s audited 2008 accounts and balance sheet and
referring her to Byrne for more information about transferring the shares, but also cautioned that “[a]s
for valuing the shares, I think it is more appropriate that your accountant do this for you. As you will
see from the [2008 accounts and balance sheet] the business is up for sale and we are working with a
number of interested strategic parties.”
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A InMatrix.
Q And what’s the date of this email from David [Byrne]
to you and Mr. Gien?
A First of July of 2009.
Q Okay. So, in 2009 you got an email and Mr. Gien got
an email from Mr. [Byrne] saying that value, the
holding value for InMatrix was 95,524 shares
equating to a total share capital of $330,178; you see
that?
A Yes.
Q Okay. Is that 2009 email consistent with Mr. Gien’s
statement, sworn statement, in his Amended ED
Affidavit that the stock was sold in 2001 for zero?
A No.
Q So, at a minimum, do you believe that the 95,524
shares that Mr. Gien apparently has is worth
$330,178?
A Can you ask the question again?
Q At a minimum --
A Yes.
Q -- is the InMatrix stock that as of 2009 Mr. [Byrne]
says Mr. Gien had, some eight years after Mr. Gien
said it was gone --
A Yes.
Q -- is it worth, at minimum, $330,178?
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Opinion of the Court
A Yes.
However, when asked on cross-examination about the email and its impact on her
opinion of the value of the parties’ shares, Kelly-Anne testified as follows:
Q So, Ms. Gien, are you saying that the value of
InMatrix is $331,000.
A I'm saying --
Q Or 330 -- Sorry, pardon me, 330,000?
A Well, David [Byrne] is -- David [Byrne], the director
of finance is.
Q So is that what you’re claiming?
A Can you explain what you mean?
Q Is that -- Is that -- Is that your claim to the
value of InMatrix?
A It’s not the value that I believe in the ED.
Q So what value do you put in for InMatrix in your
opinion?
A I think it’s 200 in the ED. . . .
From our review of the record, Kelly-Anne’s testimony of “200” as the value of the
InMatrix shares appears to be in reference to the fact that the shares were listed at
a value of $205,000 for the years 2008, 2009, 2010, 2011, and 2012 on the balance
sheet of a trust instrument the parties owned.
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Opinion of the Court
In addition to the Byrne email, the court admitted into evidence InMatrix’s
annual financial report for the financial year ending 30 June 2009 and an email Kelly-
Anne said Andre had forwarded to her on 20 August 2009 from InMatrix’s Chairman,
David Smorgon, to the company’s shareholders advising them that InMatrix had
received a letter of intent from SunGard Data Systems, Inc., to acquire all the issued
share capital of InMatrix. Kelly-Anne’s counsel relied on these exhibits primarily to
demonstrate that Andre’s assertion that the parties’ InMatrix shares had no value
because the company was sold in 2001-02 was false. However, InMatrix’s 2009
financial report also includes an independent audit prepared by Deloitte stating that
the company had lost over six million Australian dollars (AUD) in 2008 and seven
million AUD in 2009; that the company had over 25 million AUD in liabilities and
only five million AUD in assets at the close of the 2009 financial year; and that total
equity attributable to equity holders amounted to a sum of negative 20,615,188 AUD.
In addition, under a heading titled “Issued capital,” the report noted that InMatrix
had a total of 844,564 “fully paid ordinary shares” in both 2008 and 2009 and that
the balance for these shares at the beginning and end of both financial years was
8,699,675 AUD. Finally, under a heading titled “Subsequent Events,” the report
stated that InMatrix had entered into a letter of intent to sell the company and its
subsidiaries in a transaction that “is anticipated to be on a debt free, cash free basis.”
Under cross-examination by Andre, Kelly-Anne acknowledged that InMatrix had
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been sold shortly after the parties’ date of separation. When Andre asked how much
they had received as shareholders from the proceeds of the sale, Kelly-Anne
answered, “Not much.”
Based on this record, we cannot conclude that the Byrne email constitutes
competent evidence of the net value of the parties’ InMatrix shares as of the date of
separation. We note first that the Byrne email explicitly refrains from offering any
opinion as to value, and instead provides information about “share capital.” Moreover,
no additional testimony or evidence was offered by either party as to how share
capital relates to the statutorily required net fair market value of the shares, or how
the share capital value quoted in the Byrne email relates to the “issued capital”
reported in the 2009 report, and the trial court provided no additional findings in its
Order and Judgment to clarify either of these points.
In his appellate brief, Andre contends—consistent with definitions of the term
provided by Investopedia.com and the Australian Securities & Investments
Commission—that share capital is simply a measure of the money used to purchase
shares of stock directly from a company and does not vary with market demand
because market forces have no impact on the historical fact that an owner paid a set
sum for a certain stock. Kelly-Anne contends in her brief that this does not necessarily
render the Byrne email incompetent as evidence of the net fair market value of the
InMatrix shares in light of this Court’s prior decisions in McManus v. McManus, 76
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N.C. App. 588, 334 S.E.2d 270 (1985) and Barton v. Barton, 215 N.C. App. 235, 715
S.E.2d 529, appeal dismissed, 365 N.C. 364, 719 S.E.2d 20 (2011), wherein we upheld
valuations of marital property that were based in part on the amounts originally paid
to purchase that property. However, this argument ignores the fact that in both
McManus and Barton, the property valuations at issue were also supplemented by
more recent, post-purchase data. See McManus, 76 N.C. App. at 592-93, 334 S.E.2d
at 273 (upholding the trial court’s valuation of a stock based in part on its original
purchase price, as well as the price the husband subsequently paid for more of the
same stock and the dividends earned therefrom); Barton, 215 N.C. App. at 245-46,
715 S.E.2d at 534-35 (upholding arbitrator’s valuation of real property based in part
on the original purchase price, as well as the cost of subsequent investments in the
property).
Here, even assuming arguendo that the Byrne email accurately states how
much the parties spent to acquire their shares in InMatrix at some point in time, it
makes no reference to when or how those shares were acquired or whether and to
what extent their value subsequently increased or decreased, which we find
particularly significant in light of the company’s 2009 financial report. We therefore
conclude that although the Byrne email might provide some evidence of how much
the parties paid to acquire their shares in InMatrix, it does not constitute competent
evidence of their net fair market value as of the date of separation. Furthermore,
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although it is well established that “[t]he owners of property have generally been held
to have both a knowledge and basis for the testimony as to the value of their
property,” Finney v. Finney, 225 N.C. App. 13, 16, 736 S.E.2d 639, 642 (2013)
(citations omitted), in this instance, we conclude that Kelly-Anne’s testimony is not
competent evidence to support the court’s valuation of the InMatrix shares, given
that her direct testimony appears to be based entirely on the Byrne email, which is
not competent evidence for the reasons already stated, and is contradicted by her
subsequent testimony on cross-examination that she believed the value of the shares
was actually “200.”
Finally, in reaching this conclusion, we also reject Kelly-Anne’s argument that
even if the Byrne email were deemed inadmissible hearsay, it would nonetheless
constitute competent evidence to support the trial court’s valuation of the InMatrix
shares given Andre’s failure to object when it was introduced at trial. In support of
this argument, Kelly-Anne cites our Supreme Court’s prior decision in Lambros v.
Zrakas, 234 N.C. 287, 66 S.E.2d 895 (1951), as well as this Court’s more recent
holding in In re F.G.J., 200 N.C. App. 681, 684 S.E.2d 745 (2009), both of which Kelly-
Anne contends demonstrate that when hearsay testimony is received into evidence
without objection, it carries full evidentiary value and must be considered competent
evidence. But this argument fails insofar as it conflates the concept of evidentiary
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admissibility with the concept of evidentiary competence and ignores critical
distinctions between the present facts and those at issue in Lambros and F.G.J.
In Lambros, for example, the plaintiff was a surgeon who brought suit against
his former patient and her husband, alleging that they had agreed to pay $3,000 for
his services but then refused to pay that amount in full. 234 N.C. at 289, 66 S.E.2d
at 896. At trial, the plaintiff testified without objection about several discussions he
had with the defendant-patient and her family before performing the surgery,
including a conversation in which her son agreed to certain terms after stating he
was acting on his mother’s behalf. Id. When the jury returned a verdict in the
plaintiff’s favor, the defendants appealed, arguing that the testimony that their son
had served as their agent was hearsay and should have been excluded. Id. However,
even though our Supreme Court agreed that the challenged testimony was hearsay,
it refused to disturb the jury’s verdict, in part because by failing to object the
defendants had waived their right to challenge the admissibility of the hearsay
testimony, and also because “when considered with the rest of the evidence in the
case, [the hearsay testimony] was sufficient to warrant the jury in finding the issue
of agency against” the defendant. Id. at 289, 66 S.E.2d at 897.
In F.G.J., this Court reviewed an appeal from an order terminating the
respondent-parents’ parental rights to their two minor children on the grounds of
willful abandonment and leaving the children in an outside placement for more than
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Opinion of the Court
one year without making reasonable progress to correct the conditions that led to
their removal from the home. 200 N.C. App. at 686, 684 S.E.2d at 749. The children
had been removed from the respondents’ home in 2005 due to repeated reports of
domestic violence and alcohol abuse, and although the termination order included
findings of fact that both respondents participated in classes addressing the issues
that led to removal of the children throughout 2007-08, the district court based its
conclusion that both respondents had failed to make reasonable progress on factual
findings that focused on additional reports of domestic violence and alcohol abuse
involving both respondents in early 2006. Id. at 692, 684 S.E.2d at 753. We therefore
agreed with the respondent-parents that the district court failed to support its
conclusion that grounds existed for termination with sufficient factual findings. Id.
However, we declined to reverse the termination order outright in light of testimony
offered during the termination hearing by the children’s maternal uncle and
guardian, who testified without objection that the respondent-mother had told him
about several additional instances of domestic violence and alcohol abuse involving
both respondent-parents in 2007 and 2008. Id. at 692-93, 684 S.E.2d at 753. Although
the respondent-father argued this testimony constituted inadmissible hearsay, we
observed that because “no objection on hearsay grounds was made by either parent
at trial. . . . any objection has been waived, and the testimony must be considered
competent evidence.” Id. at 693, 684 S.E.2d at 753-54 (citation omitted).
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Nevertheless, we also rejected the petitioner’s argument that this evidence standing
alone should be considered sufficient to uphold the order, which we vacated and
remanded for additional findings of fact. Id. at 693, 684 S.E.2d at 754.
It is clear from our review of these cases that if a party fails to object when
hearsay testimony is introduced at trial, she waives her right to challenge its
admissibility on appeal. When such hearsay testimony is competent to settle an issue
in dispute—such as whether the defendants’ son acted as their agent and agreed to
certain terms, as in Lambros, or whether the respondent-parents continued to engage
in domestic violence and alcohol abuse, as in F.G.J.—it carries “full evidentiary
value.” 234 N.C. at 289, 66 S.E.2d at 896. However, it does not logically follow that
such hearsay testimony is automatically rendered competent evidence of anything it
might be offered to prove, or that a party’s failure to object to its admissibility at trial
somehow immunizes an otherwise defective order based upon such evidence from
appellate review. In the present case, this means that although Andre waived his
right to challenge the Byrne email’s admissibility on appeal by failing to object when
Kelly-Anne offered it into evidence at trial, this Court remains obliged to review
whether the Byrne email constitutes competent evidence for settling the disputed
issue of the InMatrix shares’ value. For the reasons already discussed supra, we
conclude that the Byrne email does not settle the issue in dispute, and thus we cannot
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GIEN V. GIEN
Opinion of the Court
consider it competent evidence of the value of the InMatrix shares as of the date of
separation.
Accordingly, we hold that the trial court erred in its valuation of the parties’
InMatrix shares, and we consequently vacate its finding and remand this issue for
further findings of fact and, if necessary, the taking of additional evidence. We fully
recognize that actions for equitable distribution are often among the most complex
and cumbersome cases our State’s district courts must handle, and we note that apart
from its error in valuing the parties’ InMatrix shares, the trial court dealt thoroughly
and admirably with the particular challenges posed by this case, challenges which
were undoubtedly exacerbated by Andre’s pro se representation and repeated failures
to comply with discovery requests. We also note that despite Andre’s protestations
that the InMatrix shares had no value, there appears to be competent evidence in the
record upon which the trial court could properly base its valuation on remand. This
evidence includes the company’s 2009 financial report, which could provide the basis
for expert testimony, as well as the balance sheets from the parties’ trust instrument
listing the shares at a value of $205,000 for the years 2008, 2009, 2010, 2011, and
2012, which appears to be consistent with Kelly-Anne’s trial testimony that, in her
opinion, the shares were worth “200.” To be clear, we do not intend to opine and are
not opining as to the weight of this evidence, nor are we suggesting that these are the
only valid bases on which the trial court may rely for its valuation on remand.
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GIEN V. GIEN
Opinion of the Court
Whatever conclusion it reaches on this issue, we urge the trial court to adequately
support its determination with specific factual findings to explain the basis of its
reasoning.
Our decision to remand the case based on this issue also necessarily vacates
the Order and Judgment’s ultimate distribution of the parties’ marital property,
including its order for Andre to pay a distributive award by liquidating assets, and
therefore obviates any need for this Court to address Andre’s additional arguments
on that issue as well as his claims that the trial court erred because it failed to
distribute the diminished value of the InMatrix shares as a divisible asset, and
because its findings of fact did not support its decision to forego an in-kind
distribution.
B. Valuation of LIJ
Andre also argues that the trial court erred in its valuation of LIJ at $350,000
based on Mitchell’s application of the asset approach. Specifically, Andre contends
that Mitchell’s valuation was not supported by competent evidence of LIJ’s value as
of the date of separation. We disagree.
At trial, Mitchell offered the following testimony in support of his valuation of
LIJ:
Q And is there anything in [the Holly/Lloyd
agreement] that allows you to have some
information with respect to -- or how to utilize the
asset approach in valuing Lightening in a Jar Global
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GIEN V. GIEN
Opinion of the Court
Financial?
A There is, there’s a very important piece of
information in that document.
Q Okay. And, tell the Court what the important piece
of information is.
A Investment in Global Financial Bridge an amount of
350,000 incurred by Andre Gien in the development
of the Global Financial Bridge product up to the date
of this agreement.
Q Okay. And, why is $350,000 important -- why does
that number help you?
A In trying to figure out the value of this product that
Mr. Gien has created one of [the] techniques within
the asset approach would be the cost to recreate it.
So, if -- Chris Mitchell were to say, "Hey, I want to
develop some type of software that has the same
functionality of what Mr. Gien has created, how
much would it cost me to go and hire people or to do
it myself and to recreate that -- that -- that
software?" And so, this evidence says that it would
take about $350,000 for someone to embark on that
-- on that exercise and that is [an] indication of the
value of that software.
Q And then, if we also look, Mr. Mitchell, at [the
Fleishman agreement]. What does [the Fleishman
agreement] tell us with respect to the $350,000 and
what portion of the value of the asset $350,000
represents?
A Well it tells us that Mr. Fleishman will restrict his
portion of ownership to $350,000 which -- which is
the same number that we saw in -- in [the
Holly/Lloyd agreement].
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GIEN V. GIEN
Opinion of the Court
Q So, one could infer from that that the value of that
asset is $700,000 with Mr. Gien’s agreement to Mr.
Fleishman to get $350,000?
A I’m not sure.
Q Okay. Well, it’s possible that it’s more than
$350,000, correct, based on [the Fleishman
agreement]?
A That’s correct. If, if, if you sold that product for, you
know, $1,000,000, Mr. Fleishman would be
restricted to some amount, but -- So it could be sold
for more.
Q The $350,000 asset approach number would be,
again, the, the floor value, correct?
A For that particular asset.
Q Right. And, when looking at the business as a whole,
there might be other assets or if there would be other
assets that one would consider in doing the asset
approach, correct?
A That’s correct.
Q What other assets in addition to the $350,000
represented in [the Holly/Lloyd agreement] would
you look at to value the business?
A Any cash in the bank account, accounts receivable,
any good will; those type of things.
Q Okay. So, is it accurate to say that based on -- let me
ask you this, do you – you’ve been provided
information, documentation, from my office, correct?
A That’s correct.
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GIEN V. GIEN
Opinion of the Court
Q And is there documentation that you’ve been
provided that you’ve not been able to rely on that’s
been produced by Mr. Gien in order to use a
particular approach?
A Well, you know, looking at the profit information
from the financial statements, I don’t know if it has
a whole lot of meaning because there’s personal type
items in the expenses.
Q Okay. Is, is [the Holly/Lloyd agreement] the best
piece of evidence that you’ve been given to allow you
to come up with a portion of the asset approach
valuation?
A Yes, sir.
Q Okay. And, that number’s $350,000?
A Yes, sir.
In its Order and Judgment, the trial court found that LIJ had a date of separation
value of $350,000, explaining in a footnote that “[t]he [c]ourt, after considering the
testimony of Christopher Mitchell of Dixon Hughes, applied the asset approach in
determining the value of this asset.”
On appeal, Andre argues that the court’s LIJ valuation is not supported by
competent evidence of the company’s value as of the date of separation. In support of
this argument, Andre emphasizes Mitchell’s reliance on the Holly/Lloyd agreement,
which stated that Andre had incurred “an amount of $350,000” in the development of
the GFB software “up to the date of this agreement” and was dated 2 August 2013.
Andre therefore contends that we must vacate the court’s valuation of LIJ because
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GIEN V. GIEN
Opinion of the Court
Kelly-Anne failed to introduce any other evidence as to the timing of his investment
in the GFB software or its value before the date of separation. However, in light of
Mitchell’s testimony that he also relied on the Fleishman agreement in reaching his
determination of LIJ’s value, this argument fails.
The Fleishman agreement provides, in pertinent part:
It is agreed that the ownership of the [GFB] software is
equally owned by Ken Fleishman and Andre Gien.
Ken Fleishman will restrict his portion of the ownership to
$350,000 which is payable on the occurrence of
1. The outright sales of the GFB software to a third party[.]
2. Any other payment made to any other person that
relates to the value of GFB.
3. If the amount of the sales price per item 1 is less than
$700,000 Ken Fleishman shall receive 50% of the agreed
sales proceeds.
4. If any consideration is provided to any other person in
relation to the GFB product Ken Fleishman shall be paid
first, before any payment is made to any other person.
Furthermore, as Andre testified during his pretrial deposition on 28 October 2013:
Q. How about Ken?
A. Well, now I’ve still got an obligation to Ken. So I
eventually -- What we did was over the years I said:
Look, Ken, I’ve got the code. It’s starting to sell a
little bit but I can’t pay you your money, you know.
There is no loan agreement or no -- I can’t pay you
your money. However, what I can do is what if we
come to some kind of agreement? What if it’s -- if we
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GIEN V. GIEN
Opinion of the Court
sell this code, all the -- the -- you know, whatever --
whatever we can do with this piece of software at
some point and I give you a sum of money.
Q. When was this?
A. Oh, this was a long time ago. This must have been
-- whew -- oh, five, six years ago. Somewhere around
there.
Q. Okay. So --
A. So I’ll give you a sum of money if we can sell the code
because -- and so he said, look, you know, at the end
of the day, okay, I -- you know, the money is written
off, a lot of things have happened, you know, but we
came to a figure that we sort of agreed upon which
was if we sell it for I think it was more than $350,000
he will get the first $350,000. If it was sold for less
than $350,000 we would just split it half --
Q. And did you sign something?
A. Eventually I -- I there is a document somewhere that
I sent to him that because of this whole thing that I
said, okay, this -- you know, this is basically what
our verbal agreement --
Q. Has the document been signed?
A. I don’t know. I’m not sure. I can -- I can get it signed.
Q. Yeah. I’m not asking you whether you can get it
signed. I’m asking whether there’s a signed
document by Mr. Fleischman[].
A. I don’t believe today there’s a signed document, no.
Q. And, in fact, the document you sent is from July of
2013, correct?
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GIEN V. GIEN
Opinion of the Court
A. Correct. Yeah. No. It’s something recently that I
even would put this into writing.
Q. Right. But this is based on a conversation and an
agreement that you say you had reached five or six
years ago?
A. Correct. Yeah.
Q. And has Mr. Fleishman[] had anything to do with
the business, the software, the code, in the last five
or six years?
A. Pretty much very little.
Andre insists that the $350,000 referenced in the Fleishman agreement merely
recognizes an informal secured interest that has no relation to the $350,000 he
incurred in GFB’s development up through 2013 as referenced in the Holly/Lloyd
agreement. Nevertheless, Andre’s deposition testimony clearly indicates that
although he did not enter into any formal written agreement with Fleishman until
2013, the two men had reached an agreement “five or six years ago” regarding
Fleishman’s compensation for his financial support in the development of the GFB
software. Given the date of Andre’s deposition, and his testimony that Fleishman had
“[p]retty much very little” involvement after the two men reached their agreement,
we can infer that the events that gave rise to the Fleishman agreement occurred in
2007 or 2008. From this, we can further infer, based on the asset approach Mitchell
described in his testimony, that as of the date the parties separated on 1 September
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GIEN V. GIEN
Opinion of the Court
2009, it would have cost at least $350,000 to recreate the GFB software.
Consequently, we have no trouble in concluding that the trial court’s finding as to the
value of LIJ is sufficiently supported by “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Clark, __ N.C. App. at __, 762
S.E.2d at 839. Accordingly, we hold that the trial court did not err in its valuation of
this asset.
AFFIRMED in part, VACATED in part, and REMANDED in part.
Judges BRYANT and DIETZ concur.
Report per Rule 30(e).
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