Unpublished Conits opinion reveals the dangers of lackadaisical litigating

Posted Monday, May 7th, 2018 by Gregory Forman
Filed under Equitable Distribution/Property Division, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Appellate Decisions, South Carolina Specific

After three published opinions in Conits v. Conits, one a refiled Supreme Court opinion, on May 2, 2018 the Court of Appeals issued an unpublished opinion on the remanded issue of the value of Husband’s Greek farm. Either Spiro Conits is a pants-on-fire liar who is finally getting his just desserts or a foolish litigant who allowed inadequate trial preparation to cost him almost $700,000.

At trial, the parties presented conflicting evidence about the size and value of the farm in Greece. Husband claimed a one-half interest in a three-acre farm with a fair market value of $43,750. Wife claimed the farm is thirty acres with a fair market value of $1,420,200. In dividing the marital estate the family court determined a 50/50 division of assets was equitable. It valued the farm at $1,420,200, and awarded it to Husband. Thus, Husband essentially paid Wife $710,100 to compensate for his interest in that farm. If Husband was correct about the size and value of the farm he is overpaying by $688,225.

On remand the Court of Appeals accepted Wife’s valuation. It detailed both parties’ trial evidence on the value and size of the farm. Wife’s evidence was summarized:

Wife testified she and her counsel prepared the schedule and it reflected the assets and debts of the parties as of 2009. The schedule listed a thirty-acre family farm valued at $1,420,200. Wife testified without objection regarding the schedule, stating it reflected her opinion of the value of the parties’ assets. Wife based her opinion of the value of the marital assets on valuations made by others, including an architect she hired in Greece and an appraiser who appraised property in South Carolina. The court admitted into evidence the architect’’s written estimates of two buildings in Greece. According to Wife, she could not afford to pay the architect to travel to the United States to testify for her. Wife also testified Husband refused during the marriage to discuss the parties’ real estate with her. Wife testified her lawyer requested she get a copy of the records of the parties contained in “the red books.” According to Wife, the red books disappeared from the parties’ den after she told her friend, Angela McNutt, her lawyer wanted them. Wife testified she later found out McNutt had an affair with Husband.

Husband’s evidence was summarized:

Husband listed a one-third interest in a nonmarital, thirty-acre farm as worth $60,000 on his financial declaration dated September 14, 2009 and valued his interest at $20,000. Wife moved to admit this financial declaration without objection, and the court admitted it. On Husband’s financial declaration dated June 25, 2012, Husband disclosed a fifty percent interest in a three-acre orange farm as marital property valued at “$21,875 (50%).” During trial, he testified the parties owned three acres in Greece, it was purchased after the marriage, he conceded it was marital property, and he valued it at “no more than 35 or 40,000 [dollars].” Finally, Husband admitted during cross-examination that he omitted some assets from his financial declaration and valued numerous properties less than he valued them on a financial declaration submitted to the bank.

A footnote listed Husband’s omissions and valuation discrepancies:

Omissions: Bank Account in Greece; Traveler’s Rest Bank Account; and Carolina Fine Foods Restaurant. Valuations of Bank Compared to Family Court: Traveler’s Rest – $750,000:$550,000; Milano’s – $400,000:$275,000; Simpsonville – $1.8 million: $1.3 million; Warehouse – $375,000: $183,000; Laurens County – $410,000: $340,000; etc.

Given the inconsistencies in Husband’s assertions about the Greek farm and his omissions on his financial disclosure, one understands why the family court accepted Wife’s evidence on the size and value of the Greek farm. As the Court of Appeals explained in affirming the family court’s valuation:

Both Husband and Wife’s financial declarations list a thirty-acre farm in Greece. Although Husband changed the description of the farm on subsequent financial declarations to three acres, he was on notice that Wife continued to describe the farm as thirty acres. Although the family court in this case found the financial declarations were not evidence, Wife’s testimony that she and her counsel prepared the schedule and it reflected the assets and debts of the parties as of 2009 was evidence. … Based on our own view of the evidence, we find no legal error and likewise find Husband has failed to meet his burden of proving the preponderance of the evidence is against the finding of the family court.

There are two aspects to this issue that make the Conits case highly unusual. First, while a number of disputes in family court resolve upon issues of the parties’ relative credibility, the size of the Greek farm should not have been one of them. That farm is either three acres or thirty acres and some publically available record in Greece would be conclusive evidence of that farm’s size. Further this wasn’t some minor issue where going to the trouble and expense of obtaining definitive evidence wasn’t justifiable, so relying on the parties’ testimony and hoping a favorable credibility finding made sense: this was a $688,225 dispute.

One assumes–because Husband could have easily provided evidence of the size of the farm but failed to do so, and because his testimony on the farm was inconsistent–that this is a thirty-acre farm and this result is just. However Wife took a rather large risk in not conducting discovery to compel Husband to provide a copy of the deed to (and any other public records from Greece on the size and value of) this farm. If the court found against her on credibility, she was out almost $700,000. Moreover, if this is actually a three-acre farm, Husband’s failure to provide the trial court a copy of the deed cost him almost $700,000. If this was an equitable distribution case in which the parties had few other assets, Husband could have been left with an equitable distribution award he had no ability to comply with.

I’m sure my clients are frequently annoyed when I harp on the importance of accurate financial declarations and adequate trial prep. This unpublished Conits opinion is a useful reminder of why such advice is vital.

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