COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank Argued at Salem, Virginia

JAMES DOUGLAS GARDNER MEMORANDUM OPINION * BY v. Record No. 0468-04-3 JUDGE ROBERT P. FRANK JANUARY 11, 2005 SHEILA JEANES GARDNER

FROM THE CIRCUIT COUR T OF WASHINGTON COUNTY Charles B. Flannagan, II, Judge Michael A. Bragg (B ragg Law, PLC, on briefs), for appellant. Ralph M. Dillow, Jr . (Dillow & Esposito, on brief), for appellee.
James Douglas Gardner, appellant/husband, app eals the trial court’s equitable distribution award contending the trial court er red in (1) making an award to a ppellee/wife; (2) the valuation of his medical practice; (3) fi nding his pension from his medical practice was marital property; and (4) considering the accounts receivable fr om the medical practice separate from the valuation of the practice. For the reasons stat ed, we affirm in part and reverse in part. BACKGROUND The parties were married on August 12, 1989 and separated on June 26, 1994. Husband practiced medicine in Abingdon, Virginia th rough a professional corporation, Abingdon Pediatrics, P.C. Abingdon Pediatrics received articles of incorporation in 1992, with husband being the sole stockholder. He ceased pract icing medicine with Abingdon Pediatrics in November 1996, but the corporation remained charte red although it had ceased seeing patients.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - The corporation had income for part of 1992, all of 1993, and part of 1994 when the parties separated. Appellant presented the testimony of Robe rt N. Pulliam, C.P. A., A.B.V., who is accredited in business valuation. He has valued 200 to 250 businesses, of which 25 to 50 were professional practices. Pulliam valued the corporation at $27,000 us ing a net asset value analysis. He took the assets, ca sh, value of equipment and acc ounts receivable and subtracted the liabilities of the corporati on. Pulliam rejected an excess ear nings analysis, which is “based on how much income is generated over and above a fa ir return on assets.” The “excess” return is used in determining the goodwill portion of a prac tice’s value. Pulliam concluded there were “no excess earnings with which to capitalize and therefore implies that there was no goodwill within the practice.” He conc luded the practice had no value unde r this method of valuation. Pulliam also addressed the “direct market data method,” arriving at a value of $13,000. This approach “values practices based on what si milar types of practices have sold for in the market.” Pulliam opined that, based on this pr actice’s “high overhead, low compensation, doctor turnover, longer than normal hours, ” the value of the practice shoul d be twenty five percent of the annualized revenues, less debt. Husband had employed Thomas H. Hicok, 1 a C.P.A., to estimate the fair market value of the practice as of December 31, 1994, for th e purpose of a possible sale. Using the Capitalization of Excess Earnings Method and the I.R.S. Formula Method, Hicok opined the fair market value to be $195,016, excluding “trade accounts receivable and [a] note payable [to] NationsBank.” Hicok found there were excess ear nings and “going concern value” and set a fair market value of $159,152 under the cap italization of excess earnings method. Under the I.R.S.

1 Hicok did not testify, but his report was introduced wit hout objection. Appellant now argues the trial court should have rejected the report.- 3 - formula method, he found a greater goodwill value of excess earnings and arrived at a fair market value of $230,879. Pulliam testified that Hicok’s valuation was in correct in that it was simply a “negotiating tool” and that it contained many accounting errors. For reasons stated in this opinion, we will not detail these issues. The trial court issued a le tter opinion dated January 23, 2003, in which the court assigned values to a number of assets, including $125,000 for the practice and $33,784 for the pension. The trial court found each of thes e assets was marital property. The trial court awarded wife a monetary sum of $30,000. In the le tter opinion, the court concluded: “upon consideration of the evidence presented and the factors set forth in § 20-107.3 et seq. of the Code of Virginia , I conclude as follows: In making this award, I have spec ifically considered the testimony relative to the valuations of Abingdon Pediatrics, the accounts receivable, the corporate debt to Highlands Union Bank, the advancement of $20,000.00 to Sheila Gardner, and the testimony that Dr. Gardner reimbursed Ab ingdon Pediatrics the sum of $50,000.00 in December, 1994. This award includes any interest Mrs. Gardner may have in the procee ds from the sale of the marital home and Dr. Gardner may direct th at any escrowed funds be used in satisfaction of this award. ANALYSIS I. VALUATION OF MEDICAL PRACTICE Husband contends the trial court erred in awarding wife $30,000 because the award was based upon an erroneous valuation of the medical practice. He also challenges the award because the trial court considered the practice’ s accounts receivable in arriving at the award. Husband contends the accounts r eceivable is a component in th e valuation of the practice and should not again be considered in the monetary award. Essentially, he ar gues those receivables were “double counted.”- 4 - We first address the valuation of the pract ice. Mr. Pulliam valued the practice at $27,000. Mr. Hicok determined the value to be $195,016. The trial court determined the value to be $125,000, within the para meters of the conflicting testimony of the experts. Much of husband’s valuation argument addresse s the credibility of Hicok and the weight to be afforded that testimony. “Conflicting expert opinions constitute a question of fact.” Frazer
v. Frazer , 23 Va. App. 358, 366, 477 S.E.2d 290, 293 ( 1996) (quoting McCaskey v. Patrick Henry Hospital , 225 Va. 413, 415, 304 S.E.2d 1, 5 (1983)). Th e trial court’s “province alone, as the finder of fact, [is] to assess the credibility of the witnesses and the probative value to be given their testimony.” Richardson v. Richardson , 242 Va. 242, 246, 409 S.E.2d 148, 151 (1991). Additionally, the trial court, as fact finder, “‘has a right to weigh the testimony of all the witnesses, experts and otherwis e.’” Bell Atlantic Network Servs. v. Virginia Employment Comm’n , 16 Va. App. 741, 746, 433 S.E.2d 30, 33 (1993) (quoting Pepsi-Cola Bottling Co. v. McCullers , 189 Va. 89, 99, 52 S.E.2d 257, 261 (1949)). In determining the value of marital property, “‘the fact finder is not required to accept as conclusive the opinion of an expert.’” Stratton v. Stratton , 16 Va. App. 878, 883, 433 S.E.2d 920, 923 (1993) (quoting Lassen v.
Lassen , 8 Va. App. 502, 507, 383 S.E.2d 471, 474 (1989)). Pulliam valued the practice based on a net asset value analysis, excluding any income-based analysis. Pulliam testified there were no “excess earnings” because “the practice reports losses in every year.” He conclude d there was no goodwill within the practice. “This makes sense given that the practice was new and di d not have an operating history or significant time in existence in order to buildup any goodwill value.” Hicok disagreed. His valuation was pr emised on “excess earnings,” concluding the practice had a goodwill value. We mu st note that his valuation was the fair market value for the purpose of a possible sale of the practice to a third party.- 5 - It is clear that the trial c ourt did not accept either expert’s valuation, but did not explain the basis for the $125,000 valuation. Thus, we mu st examine the record to determine if the evidence supports th e court’s finding. Code § 20-107.3(A) directs that th e trial court value all property of the parties, but it does not define the term “value” for e quitable distribution purposes. See Howell v. Howell , 31 Va. App. 332, 338, 523 S.E.2d 514, 517 (2000) (“The m eaning of the term, ‘value,’ depends on what is being valued, who is interested, and why it is being valued.”). In Bosserman v.
Bosserman , 9 Va. App. 1, 384 S.E.2d 104 (1989), we defi ned “value” for equitable distribution purposes. “Trial courts valuing marital propert y for the purpose of making a monetary award must determine from the evidence that value whic h represents the property’s intrinsic worth to the parties.” Id. at 6, 384 S.E.2d at 107. Because intrinsic value must depend on the fact s of the case, we give great weight to the findings of the trial court. Howell , 31 Va. App. at 339, 523 S.E.2d at 517. “We affirm if the evidence supports the findings a nd if the trial court finds a reasonable evaluation based on proven methodology and on the application of it to the particular facts of the case.” Id. (citation omitted). The “value of property is an issue of fact, not of law.” Id. at 340, 523 S.E.2d at 518. We will not disturb a trial court’s finding of th e value of an asset unless the finding is plainly wrong or unsupported by the evidence. Rowe v. Rowe , 24 Va. App. 123, 140, 480 S.E.2d 760, 768 (1997); Traylor v. Traylor , 19 Va. App. 761, 763-64, 454 S.E.2d 744, 746 (1995). Further, absent clear evidence to the contrary in the re cord, the judgment of a trial court comes to an appellate court with a presumpti on that the law was correctly app lied to the facts. Yarborough v. Commonwealth , 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977).
In Bosserman we noted that “valuation based upon th e corporation’s net assets has gained wide acceptance in cases where the corporation is a real estate holding company . . . .”- 6 - Bosserman , 9 Va. App. at 8, 384 S.E.2d at 109. Bosserman further opined, “[ g]enerally, greater weight will be given to earnings factors for those companies that sell products or services . . . .” Id. at 9, 384 S.E.2d at 109. Here, the medical practic e provides services and is not a real estate holding company. We cannot say, as a matter of law, that the trial court erre d in rejecting a “net asset” valuation. Equally, we cannot say that the trial court erred in not accepting Hicok’s valuation. That evaluation was performed to determine fair market value for a potential sale. More importantly, Hicok’s excess earnings approach ignored the fact that the practice had not been paying rent to husband’s father. According to Pulliam, this debt was not reflected in the financial statements of the practice. The unpaid rent was $65,000. Pulliam further testif ied Hicok did not adjust the earnings to reflect the debt. In Traylor , we upheld the trial court’s valuati on which was an amount between the high and low of experts’ conflicting testimony of gross value. A trial judge may select a value within the range of conflicting expert opinions. In Zipf v. Zipf , 8 Va. App. 387, 395, 382 S.E.2d 263, 268 (1989), we concluded: The trial judge did not adopt the th irty percent discount for lack of marketability but did apply the seventeen percent discount from the formula price in arriving at the dollar value of the shares subject to equitable distribution. We conclude that in choosing a figure somewhere between the ce iling price of $800,000 and the lowest estimate provided by th e husband’s expert of $423,500 the trial judge appropriately balan ced the risks and probabilities accompanying such a potential transaction. Once the trial court determines valuation, the decision whether to make a monetary award and the amount of the award is governed by the right s and equities of the parties and the factors designated in Code § 20-107.3(E). Artis v. Artis , 4 Va. App. 132, 136, 354 S.E.2d 812, 814 (1987). The award will not be disturbed on appe al unless plainly wrong or without evidence to support it. Frye v. Spotte , 4 Va. App. 530, 537, 359 S.E.2d 315, 319-20 (1987).- 7 - Here, the trial court had cred ible evidence of value to s upport its valuation of $125,000. That amount was within the range of valu es expressed by conflicting expert testimony. II. PENSION The trial court included appellant’s pensi on as marital property at a value of $33,784. The corporation established and funded a 401(K) pension plan in September of 1995. The parties separated on June 26, 1994. Appellant received a total of $33,784 in 1996 as a refund of the retirement account established in 1995, after the par ties’ separation. Appellant cont ends the trial court erred in classifying the $33,784 as marital property. At oral argument, appellee con ceded the trial court erred, but contended th e error is harmless. Our determination of whether the error is harmless is guided by familiar principles. Non-constitutional error “is harmless ‘[w]hen it pl ainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.’” Lavinder v. Commonwealth , 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) ( en banc ) (quoting Code § 8.01-678) (e mphasis added in Lavinder ). To determine whether an error is harmless, the Court “mus t review the record and the evid ence and evaluate the effect the error may have had on how the finder of fact resolved the contested issues.” Id. at 1007, 407 S.E.2d at 912. The pension comprised nearly ten percent of the marital assets as determined by the trial court. Applying the standard articulated in Lavinder , we cannot say that including this item in the division of marital property did not affect the trial court’s determination of the marital award. We remand to the trial court for a redeterminatio n of the equitable distribution award consistent with this opinion.- 8 - III. ACCOUNTS RECEIVABLE Finally, appellant maintains the trial court e rred in considering the corporation’s accounts receivable as marital property when the same amount was factored in the valuation of the practice. In awarding a moneta ry sum of $30,000, the trial cour t specifically considered a number of factors, including accounts receivable. However, the trial court did not list the accounts receivable as marital property on the “Distr ibution of Property” exhibit attached to the January 23, 2003 letter opinion. Appellee concedes th e trial court erred, but contends the error is harmless. For the reasons stated above, we conclude th e error was not harmless, particularly since the accounts receivable constituted thirty-one percen t of the marital estate. From the record, we cannot determine the impact of the misclassifi cation on the equitable distribution award. We remand to the trial court for a redetermination of the equitable distribution award consistent with this opinion. IV. DEFAULTED ISSUES Appellant raises two additional issues that are defaulted and will not be addressed. Appellant contends the trial court failed to consider each statutory factor under Code § 20-107.3(E). In its letter opin ion, the trial court noted that it considered “the evidence presented and the factors set fort h in Code § 20-107.3 . . . .” Howe ver, this issue was not one of the issues presented to the Court for review. Thus, under Rule 5A:20(c), we decline to consider this issue. See Clements v. Riverside Walter Reed Hosp. , 40 Va. App. 214, 228 n.9, 578 S.E.2d 814, 820 n.9 (2003). Appellant argues the trial c ourt erred in classifying a di stribution of $65,000 made by the practice to appellant as marita l property. Again, this i ssue was not among the questions- 9 - presented. Further, in support of his position, ap pellant simply made a conclusionary statement that this classification was error. He cites no cases, and makes no argument. Rule 5A:20 requires appellants to brief the “principles of law, the argument, and the authorities relating to each question presented.” Questions “unsupported by argument, authority, or citations to the record do not merit appe llate consideration.” Buchanan v. Buchanan , 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992). CONCLUSION For the foregoing reasons, we find the trial court did not err in valuing Abingdon Pediatrics. The trial court erred in classifying the pension as mar ital property and in considering the value of the accounts receivable in determining the marital award. We remand to the trial court for a redetermination of the equitable di stribution award consiste nt with this opinion. Affirmed, in part, reversed, in part

and remanded.