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Barrett v. Barrett4/26/2005
293, 295 (1990)).
Here, the record establishes the commissioner, after hearing husband's arguments to exclude Dubay's and Etherton's testimony, concluded that the testimony of each was relevant to his inquiry directed by the decree of reference and that husband would not be prejudiced by taking their testimony. The record reflects that husband was fully familiar with Dubay, his competency to value husband's legal practice, and the likelihood that he would be called as a witness. Prior to the commissioner's hearing, husband had filed a motion to quash wife's subpoena duces tecum of Dubay's records related to the case files husband took with him when Dubay fired him for misconduct. Husband and Dubay had previously engaged in a financial dispute over compensation that husband claimed Dubay owed to him, and over the value of the cases husband took with him. The commissioner determined that Dubay's testimony was necessary to aid him in the valuation of the marital estate. Moreover, husband did not object to Dubay's qualifications as an expert either as to valuation of the case files husband took with him, or in the valuation of husband's law practice. We conclude that the trial court did not err in failing to exclude the testimony of Dubay.
Husband also argues that the trial court erred in relying on Dubay's expert opinion on valuation because he did not establish that it was "held by him to within a reasonable degree of probability or certainty." See Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980) (requiring expert opinions to be "brought out of the realm of speculation and into the realm of reasonable probability"). We will not substitute form over substance by requiring an expert to use the magic words "to a reasonable degree of certainty," when the opinion expressed by the expert is in the realm of reasonable probability. See Island Creek Coal v. Breeding, 6 Va. App. 1, 11-12, 365 S.E.2d 782, 788 (1988).
Reasonable degree of certainty requires only that Dubay's valuation of the files and husband's law practice "is at least more probable than not." Piedmont Mfg. Co. v. East, 17 Va. App. 499, 506, 438 S.E.2d 769, 774 (1993) (citation omitted) (emphasis in original). Valuation of property must be based on more than speculation or "mere guesswork." Bosserman v. Bosserman, 9 Va. App. 1, 5, 384 S.E.2d 104, 107 (1989). Expert opinion is not speculative if it is "based upon facts within [the expert's] knowledge or established by other evidence." Gilbert v. Summers, 240 Va. 155, 160, 393 S.E.2d 213, 215 (1990). Where there is conflicting evidence given as to value, as occurred here, the trier of fact may choose that evidence which it finds more credible and probable. See Reid v. Reid, 7 Va. App. 553, 563, 375 S.E.2d 533, 539 (1989) (commissioner may find one of several conflicting expert appraisals more credible so long as credible evidence supports selected appraisal).
Here, the commissioner and the trial court determined that Dubay's opinion as to the value of the case files in issue and of husband's legal practice was based on an accurate understanding of the relevant facts, was not speculative, and was more probable than not. The record reflects that Dubay based his expert opinion on his twenty-three years of experience as a personal injury attorney, his experience in evaluating personal injury cases, and on his specific knowledge of the cases husband took from his firm. In rebuttal to Dubay's valuation testimony, appellant testified that his law practice had a negative value on the valuation date. The trial court was not required to reject Dubay's valuation merely because husband believed his "evidence might be more accurate, convincing, desirable, or per
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