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Surles v. Surles11/19/2002
ed to Mr. Surles' argument by finding as fact that:
If the Court had only wanted to give the cash value of life insurance policy to [Ms. Surles] the order would have spelled that out clearly and would have raised the amount of the distribution award.
The court also noted that it "did not award [Ms. Surles] alimony based in large part on giving her the ownership of the Protective Life Insurance Policy." Based on these findings of fact, we hold that the trial court did not abuse its discretion in failing to correct a nonexistent clerical error. Accordingly, we uphold the trial court's denial of Mr. Surles' Rule 60(b) motion.
Affirmed.
Judge BIGGS concurs.
Judge GREENE concurs in separate opinion.
GREENE, Judge, concurring.
I agree with defendant that every life insurance policy has a fair market value that can be determined by a consideration of the amount and terms of the policy, the policy's cash surrender value, the insured's age, and the insured's general health. I further agree that the fair market value of a life insurance policy may exceed its cash surrender value. The law in North Carolina requires a life insurance policy, like any other asset (marital, separate, or divisible), to be valued at its fair market value. See Patton v. Patton, 78 N.C. App. 247, 255, 337 S.E.2d 607, 612 (1985), rev'd in part on other grounds, 318 N.C. 404, 348 S.E.2d 593 (1986). If either party contends the fair market value of a life insurance policy exceeds its cash surrender value, an expert opinion is required. Cf. Thorpe v. Wilson, 58 N.C. App. 292, 298, 293 S.E.2d 675, 679 (1982) (expert testimony required in wrongful death action because of the necessary reliance on probabilities).
In this case, the record does not show either party presented any expert testimony on the fair market value of the life insurance policy at issue. Indeed, neither party contended at trial that the policy had a fair market value in excess of its cash surrender value. Accordingly, defendant cannot argue in a Rule 60(b) motion, or on appeal from the trial court's order in response thereto, that the trial court erred in distributing to plaintiff the ownership of defendant's life insurance policy with a value reflecting its cash surrender value. Thus, for this reason, the trial court correctly denied defendant's Rule 60(b) motion.
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