Robert Hurley v. Krystle Hurley ( 2022 )

FILED
August 31, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Robert Hurley,
Appellant Below, Petitioner
vs.) No. 21-0281 (Ohio County 19-D-154-MJO)
Krystle Hurley,
Appellee Below, Respondent
MEMORANDUM DECISION
Petitioner Robert Hurley, by counsel Robert M. Williams, appeals the Circuit Court of
Ohio County’s March 11, 2021, order denying his petition for appeal and affirming the rulings
made by the Family Court of Ohio County in the parties’ divorce case. Respondent Krystle Hurley,
by counsel David F. Cross, filed a response in support of the lower tribunals’ orders and a
supplemental appendix. In this appeal, petitioner argues that the family court erred in 1) ordering
him to pay spousal support to respondent; 2) issuing a protective order to respondent against
petitioner; 3) issuing a requirement that petitioner pay a portion of respondent’s marital debt; and
4) finding that petitioner had engaged in cruel and inhuman treatment of respondent.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.
In May of 2010, petitioner and respondent were married in Ohio County, West Virginia.
After a period of separation, respondent filed a petition for divorce in September of 2019, alleging
irreconcilable differences and, further, that petitioner had engaged in conduct or treatment of
respondent which destroyed her mental or physical wellbeing, happiness, and welfare and rendered
continued cohabitation with petitioner unendurable. Respondent further alleged that petitioner
committed adultery during the course of the marriage—a claim that petitioner disputes.
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The family court held a contested divorce hearing in December of 2020 in which petitioner,
respondent, and petitioner’s sister testified. 1 According to the circuit court’s findings, respondent
testified that petitioner engaged in several acts of belittling or degrading her throughout their
marriage, including calling her derogatory names and making insulting comments about her
appearance. Petitioner admitted at the hearing that he took nude photographs of respondent while
she was incoherent without her knowledge and consent. Respondent testified concerning her past
employment and expenses that she had incurred during the marriage. It appears from the record
that respondent also testified as to her belief that petitioner attempted to “spike” a drink she was
consuming on at least one occasion to poison or murder her and that he pushed her down a flight
of stairs while they were residing in her parents’ home. Petitioner also testified concerning his
monthly expenses, property owned, and the marital debt. Under questioning, petitioner further
admitted to taking funds that respondent held in her sole bank account after the parties had
separated and using those funds for his own personal purposes.
After considering the evidence, the family court issued a final divorce order in January of
2021 which granted respondent spousal support and a protective order against petitioner. The order
also required that petitioner pay a portion of respondent’s marital debt and found that petitioner
had engaged in cruel and inhuman treatment of respondent. In determining whether spousal
support was appropriate, the family court noted that respondent was “currently employed with a
monthly gross income of $3,000, which employment began in September of 2020.” The family
court also found that respondent was previously employed “for a period of 9 years prior to August
of 2019,” “had a gross income from her employment . . . of $58,075.00 per year” and that she had
“two master’s degrees; one in Business Administration and one in Accounting.” However, the
family court made findings that respondent “left her employment, and lost her income” because
petitioner’s “treatment . . . caused her a reduction in income, and shall be construed as part of the
fault perpetrated” by petitioner.
Next, the family court noted that although respondent was entitled to a divorce from
petitioner on grounds of cruel and inhuman treatment pursuant to West Virginia Code § 48-5-203,
it stated that “[t]his finding does not include attempts to murder [respondent] for life insurance
proceeds. [She] has not sufficiently proven that [petitioner] intended to murder her.” The family
court also concluded that there were irreconcilable differences between the parties. As to finances,
the court noted that petitioner had used funds that the parties had in a joint checking and savings
account, in addition to his admission to taking funds that respondent held in her sole bank account
after the parties had separated and using those funds for his own personal purposes. Finally, the
court concluded that three credit card debts were marital debt and that respondent had made
payments towards those debts.
Based on testimony and evidence, the court further found that petitioner was responsible
for paying all of the debts of the parties during the marriage, despite also finding that all the debts
were marital and the same be equitably divided. However, based upon its finding of cruelty in the
marriage that resulted in respondent’s lost employment and wages, the court determined that part
of the award of spousal support to respondent would be in the form of petitioner paying
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Petitioner did not include a transcript of this proceeding in the appendix record.
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respondent’s one half of the debt structure. 2 In rendering its findings, the court considered financial
documents filed by the parties, the testimony of witnesses during the final contested divorce
hearing, and law concerning the equitable division of marital property.
Thereafter, petitioner appealed the family court’s order to the circuit court. In his petition
for appeal, petitioner set forth ten grounds for relief, including that it was error to: order him to
pay spousal support to respondent; require that he pay a portion of respondent’s marital debt; and
find that he engaged in cruel and inhuman treatment of respondent. On March 11, 2021, the circuit
court entered an order denying the appeal. The circuit court concluded that “it is evident that [the
family court judge] performed an exhaustive review and set forth an accurate rendition of the facts
supporting her ruling. [The] judge also set forth extensive detail regarding the legal reasoning upon
which she relied in rendering her determination.” For those reasons, the circuit court concluded
that petitioner’s appeal lacked merit. This appeal followed.
This Court has explained the appropriate standard of review in these matters as follows:
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). Further,
“[q]uestions relating to [spousal support] . . . are within the sound discretion
of the court and its action with respect to such matter[ ] will not be disturbed on
appeal unless it clearly appears that such discretion has been abused.” Syl., in part,
Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).
Syl. Pt. 2, Mulugeta v. Misailidis, 239 W. Va. 404, 801 S.E.2d 404 (2017). In the context of spousal
support awards, this Court has provided the following direction in regard to abuse of discretion:
An abuse of discretion occurs in three principal ways: (1) when a relevant factor
that should have been given significant weight is not considered; (2) when all
proper factors, and no improper ones, are considered, but the family [court] in
weighing those factors commits a clear error of judgment; and (3) when the family
[court] fails to exercise any discretion at all in issuing the order.
Banker v. Banker, 196 W. Va. 535, 548, 474 S.E.2d 465, 478 (1996).
On appeal, petitioner first argues that the family court erred in granting respondent spousal
support. West Virginia Code § 48-6-301(b) requires that a court consider the following factors in
making an award of spousal support: (1) the length of time the parties were married; (2) the period
of time during the marriage when the parties actually lived together as husband and wife; (3) the
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Petitioner was also ordered to make direct monthly payments to respondent as spousal
support.
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present employment income and other recurring earnings of each party from any source; (4) the
income-earning abilities of each of the parties; (5) the equitable distribution of marital property;
(6) the ages and the physical, mental, and emotional condition of each party; (7) the educational
qualifications of each party; (8) foregone or postponed economic, education, or employment
opportunities of either party during the course of the marriage; (9) the standard of living established
during the marriage; (10) the likelihood that the party seeking spousal support can substantially
increase his or her income-earning abilities within a reasonable time by acquiring additional
education or training; (11) any financial or other contribution made by either party to the education,
training, vocational skills, career, or earning capacity of the other party; (12) the anticipated
expense of obtaining the education and training described in West Virginia Code § 48-6-
301(b)(10); (13) the costs of educating minor children; (14) the costs of providing health care for
each of the parties and their minor children; (15) the tax consequences to each party; (16) the extent
to which it would be inappropriate for a party, because that party will be the custodian of a minor
child or children, to seek employment outside the home; (17) the financial need of each party; (18)
the legal obligations of each party to support himself or herself and to support any other person;
(19) costs and care associated with a minor or adult child’s physical or mental disabilities; and (20)
any other factors as the court determines necessary or appropriate to consider in order to arrive at
a fair and equitable grant of spousal support and separate maintenance.
According to petitioner, it was error to award spousal support because of respondent’s
education, past employment, and prior income, among other factors. However, the record reflects
that the family court made extensive findings in regard to these issues in its final divorce order,
which the circuit court then reviewed on appeal. Indeed, in the final divorce order, the family court
found that respondent was “currently employed with a monthly gross income of $3,000, which
employment began in September of 2020.” The family court also noted that respondent was
previously employed “for a period of 9 years prior to August of 2019,” “had a gross income from
her employment . . . of $58,075.00 per year” and that she had “two master’s degrees; one in
Business Administration and one in Accounting.” The court further made findings about
petitioner’s education, his employment and annual income, and his expenses. However, the family
court determined that respondent “left her employment, and lost her income” because of
petitioner’s “treatment[.]” Accordingly, petitioner “caused [respondent] a reduction in [her]
income, and shall be construed as part of the fault perpetrated” by petitioner. As such, petitioner’s
argument that the lower courts did not consider this information is without merit. Further, to the
extent that petitioner argues that the family court considered this evidence but did not properly
weigh the same, we have previously held that the “trier of fact is uniquely situated to make such
determinations and this Court is not in a position to, and will not, second guess such
determinations.” Michael D.C. v. Wanda L.C., 201 W. Va. 381, 388, 497 S.E.2d 531, 538 (1997);
see also State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (“An appellate
court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function
and task of the trier of fact.”) (emphasis added). Given the family court’s findings, this Court
cannot conclude, based upon the record before it, that the family court abused its discretion in
granting respondent an award of spousal support.
Next, petitioner argues that the family court erred in granting respondent a divorce on the
grounds of cruel and inhuman treatment in accordance with West Virginia Code § 48-5-203, and
that respondent’s testimony demonstrates “that she was less than truthful in her allegations.” We
find, however, that the family court did not abuse its discretion in granting respondent a divorce
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on the ground of cruelty and inhuman treatment. West Virginia Code § 48-5-203(a)(3) provides,
in pertinent part, that a divorce may be granted on the ground of cruel and inhuman conduct when
the conduct at issue “destroys or tends to destroy the mental or physical well-being, happiness and
welfare of the other and render continued cohabitation unsafe or unendurable.” The family court
found that petitioner engaged in several acts of belittling or degrading respondent throughout their
marriage, including calling her derogatory names and making insulting comments about her
appearance. Further, petitioner admitted that he took nude photographs of respondent while she
was incoherent without her knowledge and consent. The family court concluded that this behavior
constituted cruel or inhuman treatment, which met the requirements of § 48-5-203. Based on our
review of the record, we find no reason to disturb these findings. See Guthrie, 194 W. Va. at 669
n.9, 461 S.E.2d at 175 n.9 (stating that “[a]n appellate court may not decide the credibility of
witnesses or weigh evidence as that is the exclusive function and task of the trier of fact”). While
petitioner claims that there was no corroborating evidence for some of respondent’s claims—
including incidents involving a fall down the stairs and an attempted poisoning—the family court
did not rely on these incidents when it ruled that petitioner had engaged in conduct that would
constitute cruel or inhuman treatment. Indeed, the court specifically noted in its final divorce order
that its finding of cruel and inhuman treatment did not include respondent’s allegations that
petitioner attempted to murder her, as she had “not sufficiently proven” that petitioner “intended
to murder her.” Accordingly, we find no error.
Next, petitioner argues that the circuit court erred in affirming the family court’s order
which granted a protective order to respondent. In support of this assignment of error, petitioner
argues, without citation to the appendix record on appeal or to any supporting legal authority, that
the family court’s issuance of the protective order could wrongly lead to termination from his
current employment. In addition to offering this argument without support, petitioner does not
pinpoint anywhere in his brief that the circuit court was presented with the question before it was
presented to this Court. Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides,
in part, that a petitioner’s argument “must contain appropriate and specific citations to the record
on appeal, including citations that pinpoint when and how the issues in the assignments of error
were presented to the lower tribunal. The Court may disregard errors that are not adequately
supported by specific references to the record on appeal.” This basic rule of practice serves a
gatekeeping function for “[o]ur general rule . . . that nonjurisdictional questions . . . raised for the
first time on appeal, will not be considered.” Shaffer v. Acme Limestone Co., 206 W. Va. 333, 349
n.20, 524 S.E.2d 688, 704 n.20 (1999). Because petitioner has failed to demonstrate that this
nonjurisdictional question was presented to the circuit court, we decline to address the issue further
in this appeal.
Finally, petitioner argues that the family court erred in ordering him to pay respondent’s
share of the marital debt. Petitioner contends that such a ruling was in clear violation of this Court’s
longstanding cases addressing the issue. In support of his claims, petitioner avers that the marital
debt should have been equitably divided between the parties and cites Maxey v. Maxey, 195 W.
Va. 158, 464 S.E.2d 800 (1995).
This Court has held that
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“[e]quitable distribution under W.Va. Code, 48-2-1, 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.” Syl. Pt. 1, Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990).
Maxey, 195 W. Va. at 158, 464 S.E.2d at 800. Further, we have held that,
“[i]n the absence of a valid agreement, the trial court in a divorce case shall
presume that all marital property is to be divided equally between the parties, but
may alter this distribution, without regard to fault, based on consideration of certain
statutorily enumerated factors, including: (1) monetary contributions to marital
property such as employment income, other earnings, and funds which were
separate property; (2) non-monetary contributions to marital property, such as
homemaker services, child care services, labor performed without compensation,
labor performed in the actual maintenance or improvement of tangible marital
property, or labor performed in the management or investment of assets which are
marital property; (3) the effect of the marriage on the income-earning abilities of
the parties, such as contributions by either party to the education or training of the
other party, or foregoing by either party of employment or education; or (4) conduct
by either party that lessened the value of marital property. W.Va.Code § 48-2-32(c)
(1986).” Syllabus point 1, Somerville v. Somerville, 179 W.Va. 386, 369 S.E.2d
459 (1988).
Syl. Pt. 1, Sellitti v. Sellitti, 192 W. Va. 546, 453 S.E.2d 380 (1994).
Notwithstanding petitioner’s argument to the contrary, the family court made extensive
findings regarding the distribution of the marital estate, as set forth above, including that petitioner
admitted to taking respondent’s personal funds and converting the same for his own personal
purposes. Further, based upon clear evidence that petitioner’s conduct resulted in lost employment
and wages for respondent, the court ordered petitioner to pay respondent’s portion of the debt.
Petitioner contends this ruling was in violation of Maxey, but he fails to address our holding in
Sellitti. As set forth above, a court can adjust equitable distributions based on the “the effect of the
marriage on the income-earning abilities of the parties.” Sellitti, 192 W. Va. at 546, 453 S.E.2d at
380. We, therefore, conclude that petitioner failed to satisfy his burden of proof and find that the
family court did not abuse its discretion in its division of marital property and debts.
Based upon the foregoing, we find no error in the circuit court’s March 11, 2021, order,
and we hereby affirm the same.
Affirmed.
ISSUED: August 31, 2022
CONCURRED IN BY:
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Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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