Mark V.H. v. Dolores J.M. ( 2013 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2013 Term
_______________ FILED
November 14, 2013
No. 13-0591 released at 3:00 p.m.
RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MARK V. H.,
Respondent Below, Petitioner
v.
DOLORES J. M.,
Petitioner Below. Respondent
____________________________________________________________
Appeal from the Circuit Court of Putnam County
The Honorable Phillip M. Stowers, Judge
Civil Action No. 11-D-516
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED, WITH
DIRECTIONS
____________________________________________________________
Submitted: November 5, 2013
Filed: November 14, 2013
Mark V. H. Dolores J. M.
Dunbar, West Virginia Hurricane, West Virginia
Pro se Pro se
The Opinion of the Court was delivered PER CURIAM.
JUSTICE KETCHUM concurs, in part, and dissents, in part, and reserves the right to file
a separate opinion.
SYLLABUS BY THE COURT
1. “In reviewing a final order entered by a circuit court judge upon a
review of, or upon a refusal to review, a final order of a family court judge, we review the
findings of fact made by the family court judge under the clearly erroneous standard, and
the application of law to the facts under an abuse of discretion standard. We review
questions of law de novo.” Syl., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803
(2004).
2. “In visitation as well as custody matters, we have traditionally held
paramount the best interests of the child.” Syl. pt. 5, Carter v. Carter, 196 W. Va. 239,
470 S.E.2d 193 (1996).
3. “In a contest involving the custody of an infant the welfare of the
child is the polar star by which the discretion of the court will be guided.” Syl. pt. 2, State
ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948).
4. “Equitable distribution under W. Va. Code, 48-2-1, [now 48-7-103]
et seq., is a three-step process. The first step is to classify the parties’ property as marital
or nonmarital. The second step is to value the marital assets. The third step is to divide
the marital estate between the parties in accordance with the principles contained in W.
i
Va. Code, 48-2-32.” Syl. pt. 1, Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413
(1990).
ii
Per Curiam:
This is the appeal by Mark H. of the May 3, 2013, order of the Circuit
Court of Putnam County in his divorce proceeding. The Circuit Court of Putnam County
affirmed in part and reversed in part the January 22, 2013, order of the Family Court of
Putnam County. Based upon the pleadings of the parties, the record designated for
review and the arguments of the parties, and for the reasons stated herein, we affirm that
portion of the circuit court order that affirmed the rulings and decision of the family court
in regard to equitable distribution. We reverse the Circuit Court of Putnam County
insofar as it reversed the family court’s allocation of custodial responsibility to the
Husband and reinstate the well-reasoned and legally supported order of the family court
in its entirety.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The petitioner, Mark H. (“Husband”),1 and the respondent, Dolores M.
(“Wife”), were married in Putnam County on August 29, 1998. The Wife filed a divorce
action against the Husband in November of 2011, although the parties resided in the same
household until March of 2012. One child was born of this marriage on August 29, 2007.
1
In cases involving sensitive facts, this Court adheres to our usual practice of
referring to the parties and other individuals by their initials. See State v. Edward
Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
1
The underlying proceedings were contentious and prolonged, in large part
because of the numerous filings by the Husband. We need not detail the protracted
nature of the proceedings, but we note that substantial attorney fees were awarded to the
Wife by the presiding family court judge, Mike Kelly.
After many days of hearings, the family court entered a forty-one page
order on January 22, 2013, that granted the parties a divorce on the grounds of
irreconcilable differences. The order extinguished any claim that the Husband had to the
former marital home and denied his request for reimbursement for improvements made
during the course of the marriage. The Wife was designated the custodian of the parties’
child. The Husband was granted parenting time with the child every other Saturday and
Sunday, beginning at 9 a.m. and ending at 8 p.m., with no overnights. The Husband was
prohibited from taking the child from the State of West Virginia. Relying upon the
Wife’s testimony and the psychiatric and psychological evaluations introduced into
evidence, the family court reasoned that allowing the child to spend any more time with
the Husband would subject the child to potential danger in the future because of the
Husband’s propensity to initiate conflict with other persons. Child support was awarded
to the Wife in the amount of $613.37 per month.
The Husband appealed this order to the Circuit Court of Putnam County.
The Husband asserted the following assignments of error: (1) the family court’s award of
2
custody of the child to the Wife, as well as limitations on his visitation; (2) the family
court’s award of attorney fees and costs to the Wife; (3) the family court’s equitable
distribution related to the value of the marital home; (4) the family court’s failure to
award him the value of improvements made to the marital home and (5) the family
court’s failure to include the Wife’s business income and failure to consider the reduction
in the Husband’s business income for calculation of child support. In a twenty-page
order entered on May 3, 2013, the circuit court affirmed most of the family court’s
rulings, with the exception of the limitations on the Husband’s visitation with the child.
The circuit court found that the family court abused its discretion when it limited the
Husband’s visitation because of potential conflicts with other persons. The circuit court
reversed the family court’s visitation time, and ordered that the Husband have parenting
time with the child every other weekend, beginning at 6 p.m. on Friday and ending
Sunday at 8 p.m. The circuit court also authorized the Husband to take the child out of
state, contingent upon the Wife being notified at least one week prior to the trip, the trip
not interfering with school and the Husband and child returning home on the same day.
The Husband timely appealed this order to this Court.
3
II.
STANDARD OF REVIEW
This Court’s well-established standard of review of domestic relations
proceedings was set forth in the syllabus of Carr v. Hancock, 216 W. Va. 474, 607
S.E.2d 803 (2004).
In reviewing a final order entered by a circuit court
judge upon a review of, or upon a refusal to review, a
final order of a family court judge, we review the
findings of fact made by the family court judge under
the clearly erroneous standard, and the application of
law to the facts under an abuse of discretion standard.
We review questions of law de novo.
We also note that complicating this appeal were numerous pleadings and
documents filed by the self-represented Husband that did not relate to the order being
appealed.2 This Court has weeded through many pleadings that relate to matters
2
We note, for example, that the Husband’s pleadings are often repetitive and not
necessarily on point for the subject task. The memorandum brief filed by the Husband is
styled as being in support of a motion for expedited hearing on Husband’s appeal, when it
is in fact the brief in support of his appeal. Contained therein are a number of allegations,
some of which are pertinent to the present appeal, but many relate to the various
modification attempts of the family court’s order and contempt proceedings in this
matter. There are many references to matters not contained in the record, including
references to postings by the Husband in his Internet blog. The New Oxford American
Dictionary 183 (3rd Ed. 2010) defines a blog as “a personal website or webpage on which
an individual records opinions, links to other sites, etc., on a regular basis.”
The record also contains a number of nonsensical pleadings, including a document
entitled “Order of Sanctions” authored by the Husband, in which the Husband “orders” in
part that the presiding judge pay to the Husband and his son an incredible and
unimaginable sum of money for various perceived wrongs to the Husband. For one such
“infraction,” the Husband demands that Judge Kelly pay “one million trillion dollars” for
(continued . . .)
4
occurring after date of the order being appealed, including additional citations for
contempt against the Husband and the Husband’s petitions for modifications and
contempt.
being a “total [sic] corrupt, arroganrt [sic], incompetent jackass.” For failing to require
the Wife to undergo a psychological evaluation, the Husband attempts to impose a $999
trillion per day sanction on the Wife for every day since the exam was ordered.
This particular document was accompanied by a document entitled “Order of Lien
and Garnishment” in which the Husband attempts to encumber Judge Kelly’s home
(identified by address) and attach his wages as payment of the aforesaid “Order of
Sanctions.”
On June 18, 2012, the Chief Justice of this Court entered an administrative order
regarding the Husband’s pattern and practice of directly e-mailing the Justices, sending
text messages to the Justices’ mobile telephones and making telephone calls (some of
them to the Justices’ home telephones) regarding the pending divorce case and especially
Judge Kelly. In this order, the Husband was directed to “comply with the appropriate
court rules, none of which permit litigants to contact court officials via personal
telephone calls, e-mails, or text messages.” The order further ordered that “any future
telephone calls, e-mails, e-mail attachments or text messages from [the Husband] to court
officials in this State may be disregarded.” Finally, this order directed that “any further
communications from [the Husband] to court officials or employees of the court system
that are vexatious, frivolous, or do not comply with the terms of this order will be
referred to the appropriate authorities for possible criminal prosecution.”
Despite these shortcomings, we believe the record is adequate for the purposes of
our review of the Husband’s appeal.
5
III.
ANALYSIS
The Husband’s three areas of appeal are as follows: (1) allocation of
custodial responsibility of the parties’ child to Wife; (2) equitable distribution of the
marital estate; and (3) failure of the Wife to undergo a psychological evaluation as
ordered by the family court. We will address each area separately.
A.
Allocation of custodial responsibility
In its final order, the family court allocated parental responsibility to the
Wife over the objections of the Husband. The Husband was granted visitation with his
child every other Saturday and Sunday for a set period of time with no overnights. The
Husband was also prohibited from taking the child out of state. The family court found
that it would be harmful to the parties’ child to have further parenting time with the
Husband.3 The family court relied upon the Wife’s testimony, the psychiatric and
psychological evaluations of the Husband and the Husband’s conduct during the
pendency of these proceedings in allocating parenting time.
3
The temporary order entered in the beginning of this case had granted additional
parenting time to the Husband in the form of a mid-week visit. Hence, the final order
represented a reduction in the Husband’s time with the child.
6
1. The Wife’s testimony
The Wife argued for restrictions on the Husband’s parenting time, citing the
Husband’s diagnosed personality disorder and his “inability to control his impulse to
generate interpersonal conflict.” The Wife detailed the Husband’s numerous arrests,4
anecdotal incidents of outbursts at hotels with his family present, and “sustained
harassment of private individuals and companies as well as various public officials and
entities.”
The family court order noted that the Husband’s and Wife’s application to
become foster parents was denied because of the Husband’s behavior. The family court
found that the Wife was concerned “not that [the Husband] will directly harm [the child],
but that he will create conflict with third parties which might scare or alarm or traumatize
[the child] or place the young child in reasonable apprehension of bodily harm caused by
others, or, [the Husband] is arrested yet again, might result in the child being placed in
the temporary care of unknown private or public third parties until [the Wife] can retrieve
him.”
4
The family court found that the Husband was arrested in 2007 for making
harassing, obscene and threatening phone calls. In 2008 the Husband was arrested for
trespassing and assault. In 2009 the Husband was arrested for trespassing. In October of
2012, at the conclusion of the first day of his final divorce hearing, the Husband was
arrested for making harassing phone calls. During his psychological evaluation by Dr.
Hudson, the Husband stated that these arrests were “small-town retaliation against
reporters.”
7
2. Psychiatric and psychological evaluations
A psychological evaluation of the Husband was conducted by Clifton R.
Hudson, Ph.D., in 2012. Dr. Hudson’s evaluation included reviewing a 2008 psychiatric
evaluation of the Husband performed by Daniel Thistlethwaite, M.D.,5 in an unrelated
civil litigation instituted by the Husband and Wife seeking damages against a major
retailer that built a store near the parties’ home in Putnam County.
The family court order noted that in 2008, Dr. Thistlethwaite found that the
Husband had a personality disorder, not otherwise specified, with narcissistic and
paranoid traits. He also found that the Husband was malingering, with significant
symptom exaggeration on psychological instruments designed to reveal exaggeration of
cognitive deficits. He concluded that there was no evidence that the Husband was
suffering from a psychiatric illness as a result of stress caused by the construction of a
retail outlet near his home. However, Dr. Thistlethwaite found that the Husband “has
been distressed, upset and angered by what he perceives as improper due process and
believe that he is the target of the authorities. All of this is the result of a severe
personality disorder which predates any of the alleged stressors.”
Dr. Thistlethwaite also found that [the Husband]’s “psychological profile
and behavior would suggest that he has a propensity for aggressive behavior. No history
5
Throughout the underlying orders, Dr. Thistlethwaite’s name is spelled Thistlewaite.
8
of overt violence is found; however, given his degree of agitation and volatility noted
during our examination, any threats made by [the Husband] should be taken seriously and
dealt with appropriately.” Dr. Thistlethwaite also found that the Husband “sees little need
for changes in his behavior.”
Dr. Hudson’s evaluation of the Husband made similar conclusions,
including a finding that the Husband has a personality disorder, not otherwise specified.
Dr. Hudson’s conclusions were not the same as Dr. Thistlethwaite’s regarding the
Husband’s potential for violence. While Dr. Hudson found that the Husband likely posed
no direct threat of harm to the child, he was concerned that the Husband’s continued
interpersonal conflicts presented an increased risk of harm. Dr. Hudson found:
[The Husband’s] clinical interview was most significant for
an apparent pattern of conflictual interpersonal relationships.
While [the Husband] frames these in terms of his tenacity in
standing up for his own rights and those of his family, it
appears that he has a persistent tendency to allow his
emotions to dictate certain aspects of his behavior, resulting
in circumstances counterproductive to his own stated goals.
He appears lacking in awareness of his own contribution to
these conflicts, instead focusing on his perceptions of the
inappropriate behavior of others and his expectations that
others should treat him fairly even when he has angered them.
It appears likely that [the Husband] will continue to generate
interpersonal conflict and that his son will ultimately have
some degree of exposure to that conflict.
Dr. Hudson’s opinion differed with that of Dr. Thistlethwaite regarding the
Husband’s potential for harm to the child because of his personality disorder. Dr,
9
Hudson stated that “while it is true that personality disorder characteristics such as those
that Dr. Thistlethwaite observed . . . constitute a risk factor for violence,” this would be
one of many such factors and in isolation could not be construed as “significantly
elevating violence risk in an individual without a known history of significant violence.”
He noted that while the Husband’s past behavior was the most valid indicator of future
behavior, he saw no sign that the Husband’s current behavior placed the parties’ son in
danger of mistreatment.
3. The Husband’s conduct during these proceedings
During the pendency of these proceedings, the family court was exposed to
evidence of the Husband’s personality disorder. Eighteen pages of the final order are
devoted to the Husband’s conduct during this time. The family court found that the
husband’s personality disorder became “even more bizarre, irrational and divorced from
reality” as the divorce proceeding continued. Judge Kelly found that the Husband’s
“mental unraveling” began with the entry of an uncontested temporary order on January
27, 2012, that contained the admonition that the Husband could not remove the child
from the State of West Virginia without the family court’s written permission. The
restriction was made part of the temporary order because of the Husband’s diagnosed
personality disorder.
10
Throughout these proceedings, the Husband has referred to Judge Kelly and
his court by pejorative names.6 The family court detailed these names as well as many
events and incidents involving the Husband’s behavior during the pendency of these
proceedings. One such event happened on April 27, 2012, when the Husband submitted
a fabricated letter to this Court, ostensibly from Judge Kelly, in which Judge Kelly
appeared to resign from office.7
6
The Husband has stated that Judge Kelly “writes checks his brain cannot cash”;
“is a menace to society that should be imprisoned”; “is the poster child for a lifetime
admittance to Mildred Mitchell Bateman,” a state-run hospital for the mentally ill; is a
“wacky judge”; is a “so-called judge”; “ignores reality”; “is anti-children, anti-fathers and
anti-reality”; “is subhuman excrement”; “has refused to recuse his sorry self from this
case and has refused to step down from the bench as he is incompetent and an
embarrassment to the legal profession” among other statements.
7
The letter, as included in the final order, was addressed to the Clerk of this Court
and stated as follows:
I Michael J. Kelly have violated the rights of [the
child] and [the Husband.] I allowed [the Wife’s counsel] to
repeatedly lied (sic) in court. I refused to allow [the
Husband] to correct [the Wife’s counsel’s] lies and
improperly threatened to throw [the Husband] out of a
conference call hearing. I have repeatedly refused to correct
my improper temporary order. I violated [the child’s] right to
a Spring Break vacation in Myrtle Beach. I am an
embarrassment to the legal profession. Therefore, I
immediately vacate my temporary order. I award [the
Husband] the marital home and full custody of [the child]
immediately. I then resign my position as Kanawha County
Family Court judge due to my incompetency and arrogance. I
agree to move to another state and never practice law or hold
public office again.
11
The disdain and rage of the Husband toward this Court, the entire court
system and especially toward Judge Kelly, has permeated a majority of his self-filed
pleadings. The Husband has made a number of impossible-to-achieve and nonsensical
requests and demands of the Family Court and this Court during the course of these
proceedings. The following is not an exhaustive list, but illustrative of the Husband’s
conduct: (1) that Judge Kelly reincarnate his deceased mother so that she, the Husband
and the child may have a final visit; (2) that after Judge Kelly reincarnates the Husband’s
deceased mother, that he pay for a trip for the Husband and his son to visit with her; (3)
that Judge Kelly build a zoo in West Virginia and move the Atlantic Ocean to the State of
West Virginia; and (4) that Judge Kelly pay for trips to amusement parks and other
attractions for the Husband, his child, the child’s classmates and his teachers.
The family court found that the Husband’s personality disorder not only
surfaced during the course of this litigation but that the Husband’s behavior became
“even more bizarre, irrational and divorced from reality as the case progressed, leading
the Court to conclude that the risk that [the Husband] will become violent.” The family
court’s final order detailed page after page of the Husband’s demands and requests of this
Court. Also detailed in the final order are incidents of name-calling of the Wife’s
12
counsel, Judge Kelly, and other persons who became involved in this case, such as
members of the Judicial Investigation Commission.8
4. Analysis of the lower courts’ orders
On the basis of all this evidence, the family court found that the parties’
child should live primarily with the Wife. The Wife was awarded all decision-making
authority, including the right to limit or eliminate the Husband’s contact with day care
providers, day care centers, schools, churches, doctors’ offices or other service
providers.9 The Husband was allocated parenting time every other weekend, for a set
period of time on Saturday and Sunday, with no overnight visitation. Further, the
Husband was prohibited from taking the child from West Virginia during his parenting
time.
8
The Husband has filed pleadings in this case seeking the disbarment,
imprisonment and imposition of monetary sanctions upon his wife’s former attorney,
Henry Glass.
9
The family court found that “there is no doubt that [the Husband] will bully,
degrade and infuriate every provider with whom he disagrees or who has refused to
accommodate his odious and malicious conduct.” This limitation was based on the
Husband’s persistent accusations of wrongdoing by the child’s day care provider. These
accusations were accompanied by “enraged, rude, disrespectful and excessively
demanding phone calls” to the day care center. The Husband was denied an order
prohibiting the child’s day care provider from being within 1,000 miles of the child. The
Husband called the child’s day care provider a danger to the child and someone who
engages in “erratic, mentally unstable behavior.” The day care provider sought and was
awarded a protective order against the Husband.
13
The family court concluded that
[the Husband]’s personality disorder has in the past,
and much more likely than not will in the future, put [the
child] at an increased risk of harm caused by third parties
reacting to [the Husband]’s belligerent, obnoxious and
provoking behavior. He simply is incapable of controlling
himself. [The Husband] may return to Court when the child
reaches the age of ten and is better able to protect himself
from his father’s tirades (e.g. by using a phone to call his
mother) and/or [The Husband] has completed a regimen of
psychotherapy, as recommended by Dr. Hudson, designed to
augment his ability to control himself and avoid the conflict
which he currently creates and revels in.”
Upon appeal to the Circuit Court of Putnam County, the Husband sought a
reversal of the family court’s allocation of custody to the Wife. Following a hearing the
circuit court did reverse the family court’s parenting time, finding that “there is little
evidence that [the Husband] actually poses a threat to the well-being of the child.”
(Emphasis in original). The circuit court relied upon Dr. Hudson’s findings and
testimony in increasing the Husband’s time with his child to include overnights from
Friday at 6 p.m. to Sunday at 8 p.m. every other weekend.
The circuit court’s order stated as follows:
In summary, the child has never been harmed or abused while
in the custody of [the Husband]. The Court does recognize a
potential risk of subjecting the child to observe [the
Husband’s] repeated engagement in conflict. However, this
Court does not find that the potential for the child to witness a
dispute between his father and another adult, with a lack of
violence in [the Husband’s] history, does not warrant
14
limitation of his parenting time with his child. Such potential,
by itself, does not make [the Husband] an unfit parent.
Both the family court and the circuit court based their findings and
conclusions on the best interests of the child. “In visitation as well as custody matters,
we have traditionally held paramount the best interests of the child.” Syl. pt. 5, Carter v.
Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).
Where the two orders differ is in the impact of the Husband’s
uncontroverted personality disorder and his bizarre conduct in judicial proceedings on his
interaction with the child. The family court, in analyzing the evidence in this case, found
that there was a potential for harm to the child because of the Husband’s conflict-filled
relationships with others. The family court cited anecdotal evidence of the Husband’s
behavior, including an incident in an out-of-state airport where the Husband, Wife and
child were escorted off the premises, as well as his recent arrests for harassment and
trespassing. The family court relied upon the Husband’s conflicted relationship with the
child’s day care provider, including the fact that the provider had obtained a protective
order against the Husband. The family court also relied upon its first-hand observations
and interactions with the Husband to reconcile the differences between the report of Dr.
Thistlethwaite, which suggested that the Husband’s personality disorder posed a danger
to those persons threatened, and the report of Dr. Hudson, which tended to discount the
purported danger because of no evidence of harm to the child.
15
Conversely, the circuit court focused on the lack of physical harm to the
child to date in reversing the family court’s limitations on the Husband’s parenting time
with the child. The circuit court placed a greater emphasis on the report of Dr. Hudson,
whereas the family court’s order was based more upon the recommendations and
opinions of Dr. Thistlethwaite.
We believe that the family court was in a superior position to gauge the risk
of harm to the child because of the Husband’s peculiar behavior. The family court
interacted with the Husband over an extended period of time, holding hours of hearings,
reviewing hundreds of pages of pleadings and evidence and interacting with the parties at
length. The circuit court’s interaction was more limited in nature, with limited pleadings
and one hearing on the appeal.
We are reminded that the circuit court’s standard of review of the family
court’s order is similar to our review of the circuit court’s order, and that “[i]n a contest
involving the custody of an infant the welfare of the child is the polar star by which the
discretion of the court will be guided.” Syl. pt. 2, State ex rel. Lipscomb v. Joplin, 131
W.Va. 302, 47 S.E.2d 221 (1948). We have further held that the circuit court cannot base
its decision to reverse the family court on its beliefs that it may have ruled differently
given the same evidence. A circuit court may not substitute its findings of fact for those
of a family court judge merely because it disagrees with those findings. See, syl. pt. 4, in
16
part, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995)(“[A] circuit
court may not substitute its own findings of fact for those of a [family court judge]
merely because it disagrees with those findings.”).
Applying that standard of review, we see no clear abuse of discretion on the
part of the family court in how it allocated parental responsibility to the parties. We find
the circuit court’s assessment of error on the part of the family court to be incorrect.
Because of the Husband’s confirmed propensity for interpersonal conflict, we agree that
the family court’s concerns for the child’s safety warrant restriction of the Husband’s
time with the child. While the circuit court was correct that there had been no actual
physical harm to the child thus far because of his father’s conflict-seeking tendencies, the
family court recognized and emphasized that there exists potential for grave harm to this
child if he is in the care, custody and control of the Husband when trouble arises. The
family court’s focus was keenly on the child’s best interests. The family court’s
limitations of the Husband’s contact are amply supported by the evidence, and it was an
abuse of the circuit court’s discretion to overrule the family court’s order in this regard.
We therefore reverse the order of the circuit court insofar as it relates to the Husband’s
parenting time and direct reinstatement of the order of the family court on allocation of
parenting.
17
B.
Equitable distribution of the marital residence
During the course of the parties’ marriage, the Husband and Wife resided in
a home that was purchased prior to the marriage by the Wife and her mother. At no time
during the parties’ marriage did the Wife undertake to place the Husband’s name on the
deed to the home. Neither the Husband nor the Wife had the marital home appraised for
its value at the time of the parties’ separation. The Husband asserted a claim for one-half
of the difference in value of the home from the date of the parties’ separation and the
asking price of the home, which was listed for sale during the pendency of these
proceedings, but cited no authority for this way of valuing any interest that he may have
had in the home. The Husband also sought to be reimbursed for $12,750 in improvements
allegedly made to the home by him, including an entertainment center, the child’s swing
set and photographs of the child.
The family court found that the marital home was not marital property. The
family court set the value of the home at $16,000, which figure represented the reduction
in the mortgage indebtedness on the marital home prior to separation. The family court
denied the request for reimbursement for improvements to the house alleged to have been
made by the Husband, finding that some of the requested reimbursements were for items
that were clearly not improvements to the real estate, and further finding that there was
no evidence to support the increase in value of the house as a result of these
improvements.
18
The family court awarded the marital home to the Wife, free and clear of
any claim of the Husband. The circuit court affirmed the family court’s order, finding that
there was no abuse of discretion in the value assigned to the marital home or the finding
that the home was not marital property. The circuit court also affirmed the family court’s
decision denying the Husband’s request for reimbursement for improvements to the
marital home.
W. Va. Code § 48-7-103 (2001) provides a statutory mechanism for
distributing the property acquired during the course of a marriage.10 The process was
10
W. Va. Code § 48-7-103 states
In the absence of a valid agreement, the court shall
presume that all marital property is to be divided equally
between the parties, but may alter this distribution, without
regard to any attribution of fault to either party which may be
alleged or proved in the course of the action, after a
consideration of the following:
(1) The extent to which each party has contributed to
the acquisition, preservation and maintenance, or increase in
value of marital property by monetary contributions,
including, but not limited to:
(A) Employment income and other earnings; and
(B) Funds which are separate property.
(2) The extent to which each party has contributed to
the acquisition, preservation and maintenance or increase in
value of marital property by nonmonetary contributions,
including, but not limited to:
(A) Homemaker services;
(B) Child care services;
(continued . . .)
19
explained in syllabus point 1 of Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413
(1990), in which we held that
Equitable distribution under W. Va. Code, 48-2-1, [now 48-7-
103] et seq., is a three-step process. The first step is to
classify the parties’ property as marital or nonmarital. The
second step is to value the marital assets. The third step is to
divide the marital estate between the parties in accordance
with the principles contained in W. Va. Code, 48-2-32.
(C) Labor performed without compensation, or for less
than adequate compensation, in a family business or other
business entity in which one or both of the parties has an
interest;
(D) Labor performed in the actual maintenance or
improvement of tangible marital property; and
(E) Labor performed in the management or investment
of assets which are marital property.
(3) The extent to which each party expended his or her
efforts during the marriage in a manner which limited or
decreased such party's income-earning ability or increased the
income-earning ability of the other party, including, but not
limited to:
(A) Direct or indirect contributions by either party to
the education or training of the other party which has
increased the income-earning ability of such other party; and
(B) Foregoing by either party of employment or other
income-earning activity through an understanding of the
parties or at the insistence of the other party.
(4) The extent to which each party, during the
marriage, may have conducted himself or herself so as to
dissipate or depreciate the value of the marital property of the
parties: Provided, That except for a consideration of the
economic consequences of conduct as provided for in this
subdivision, fault or marital misconduct shall not be
considered by the court in determining the proper distribution
of marital property.
20
In the case before us, the family court performed the Whiting analysis,
determining first that the home in which the parties resided was not a marital asset. The
circuit court affirmed that ruling. Our review of the case leads us to the same conclusion.
The marital home, in terms of classification as a non-marital asset or a marital asset, was
correctly determined to be a non-marital asset. The house was purchased by the Wife and
her mother prior to the marriage. The Wife took no steps to make this home a marital
asset.
The Husband asserts a claim for the value of the improvements, appearing
to argue that he is entitled to a dollar-for-dollar reimbursement for alleged improvements
he made to the home. The family court found that the Husband did not meet his burden
of proving to the court that there were in fact any improvements, or how those
improvements would have increased the value of the marital home. The circuit court
affirmed that ruling. Upon our review, we affirm the circuit court’s affirmation of the
family court on this assignment of error.
C.
Wife’s failure to undergo a psychological evaluation
The Husband contends that the family court erred when it held the Wife in
contempt for failing to undergo a psychological evaluation and fined her $100 for her
violation of the court’s order. The Husband posits that the Wife’s failure to undergo this
evaluation mandates that he be allocated the majority of custodial responsibility for the
21
parties’ child. In addition, he argues that “there is no way of knowing if the child is safe,
that is [sic] welfare is being attended to, or that he is happy” because the evaluation was
not performed. The Wife argued that she was unable to pay for the evaluation and
accepted the court’s sanctions.
In Deitz v. Deitz, 222 W.Va. 46, 54, 659 S.E.2d 331, 340 (2008), we
acknowledged that “[a]n integral part of the family court’s authority to enter final orders
of divorce is its corresponding power to enforce those orders through contempt
proceedings.” If the family court cannot enforce its orders, the court’s actions are
without meaning. The family court’s enforcement of those orders is within the discretion
of the family court.11
11
As we stated in Deitz v. Deitz, 222 W. Va. 46, 59, 59 S.E.2d 331, 344 (2008),
In this regard, we have observed that “the law is ... not to be
lightly mocked,” and a court may, therefore, “impos[e]
whatever legal sanctions it ch[ooses] to compel the
[contemnor’s] acquiescence to the court’s authority.”
Donahoe v. Donahoe, 219 W. Va. 102, 105, 632 S.E.2d 42,
45 (2006) (per curiam). Accord Armstrong v. Armstrong, 201
W.Va. 244, 248, 496 S.E.2d 194, 198 (1997) (per curiam)
(directing circuit court to determine whether contemnor had
ability to pay monies pursuant to divorce decree, and, if he
had such ability to pay, further instructing circuit court to
hold contemnor “in civil contempt with an appropriate
sanction until the monies owed under the divorce decree are
paid in full”).
22
Applying our standard of review to the instant appeal, we see no clear error
in the lower court’s findings of fact regarding the Wife’s failure to undergo the court-
ordered psychological testing. We further see no abuse of the court’s discretion in
assessing a modest monetary sanction against the Wife. While it was the Husband’s
motion for the parties to undergo psychological testing, our review of the underlying
record does not reveal any outward signs of psychological issues or strange behavior on
the part of the Wife that would have some bearing on her parenting of the child. The
Husband’s conduct throughout these proceedings, however, all viewed by Judge Kelly
over a period of months, is strongly supportive of his need for such an evaluation. This
assignment of error is without merit and we find no reversible error on this ground.
IV.
CONCLUSION
For the reasons set forth herein, we reverse the order of the Circuit Court of
Putnam County, insofar as it expanded the Husband’s parenting time with the parties’
child, and affirm the lower court’s affirmation of the remainder of the family court’s
well-reasoned, well-documented and legally sound order of January 22, 2013. 12 We
remand this case to the Circuit Court of Putnam County, with directions to remand this
12
At oral argument of this appeal, both parties acknowledged that the child
support established in the January 22, 2013, family court order has been reduced. The
amount of child support was not assigned as error by the Husband, and we do not address
the child support in this opinion.
23
matter to the Family Court of Putnam County for reinstatement of the January 22, 2013,
family court order, as set forth herein. The mandate of this Court shall be entered
forthwith.
Affirmed, in part, reversed, in part, and remanded, with directions.
24