Patricia H. v. Gregory M.

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Patricia H.,
Petitioner Below, Petitioner FILED
June 3, 2016
vs) No. 15-0461 (Clay County 06-D-168) RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Gregory M.,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Patricia H., by counsel Charles R. Webb, appeals the order of the Circuit Court
of Clay County that refused her appeal from an order of the Clay County Family Court.1
Respondent Gregory P. Moore, by counsel Anita Harold Ashley, filed a response and counter­
claim. Petitioner filed a reply.
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.
The parties were married on August 30, 1997, and separated on October 18, 2006. A
divorce decree was entered December 7, 2007. During the parties’ marriage, respondent, a coal
miner, was involved in a labor dispute with Cannelton Mine in eastern Kanawha County, West
Virginia. In the dispute, Massey Energy acquired the Cannelton mine, and refused to hire a
number of miners who were previously employed at the mine. A class action suit filed on behalf
of respondent and other miners seeking back-pay was thereafter filed with the National Labor
Relations Board (“NLRB”) and a subsequent settlement agreement resulted in respondent
receiving a settlement of $181,695.29.
In October of 2014, petitioner learned of the settlement and filed a petition seeking her
1
Consistent with our long-standing practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 254, 773
S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v. Edward Charles
L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
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marital share of the settlement. The matter was heard by the Family Court of Clay County. The
court found that at the time of the divorce, respondent was required to disclose financial assets,
including the back-pay claim, but negligently failed to do so. Relying upon West Virginia Code
§ 48-5-706, the family court found it had jurisdiction to modify the distribution of marital
property in order to avoid an inequitable result.
The family court determined that petitioner was entitled to her marital portion of the
back-pay claim. The family court further determined that the relevant time period of the legal
dispute between Massey and respondent was ten years, and that the parties were married for
approximately two of those ten years. The family court determined that petitioner is entitled to
half of the proceeds from that time period, finding that petitioner’s ultimate portion was
$19,386.89 in gross proceeds, or $14,514.26 of the net proceeds received by respondent.
Following the family court hearing, petitioner’s counsel filed a supplemental brief with
the family court. Petitioner alleged, as she does in her brief to this Court, that she is entitled to a
larger share of the proceeds, claiming that the litigation ended at the time of the original NLRB
ruling. The circuit court rejected this argument in its final order.
Petitioner and respondent both appealed the order of the family court to the circuit court.
The circuit court refused both parties’ petitions for appeal pursuant to West Virginia Code § 51­
2A-14(a). The parties now appeal the family court order.
In this appeal, petitioner alleges that the family court improperly calculated the marital
portion of the back pay claim.2 On cross-appeal, respondent alleges that the lower courts failed to
give proper consideration to a waiver of further distribution which was included in the parties’
final divorce decree, and further argues that the family court did not have jurisdiction to hear
petitioner’s claims.
The standard of review with which we approach this matter has been explained as
follows:
2
Petitioner also asserts as an assignment of error that,
[t]his is a case of first impression which may affect many ex-spouses and
recipients of the “back pay” awarded former Massey miners of Cannelton via
NLRB ALJ decision in November 2007. It will decide the equitable distribution
for those recipients and their ex-spouses who divorced during the NLRB
proceeding. The total payout per former employee is estimated at approximately
$370,000 in back wages and benefits.
Not only does this assignment of error fail to allege any wrongdoing by the lower courts, but
petitioner curiously does not provide any argument regarding this alleged error. “Although we
liberally construe briefs in determining issues presented for review, issues which are not raised,
and those mentioned only in passing but are not supported with pertinent authority, are not
considered on appeal.” State v. LaRock, 196 W.Va. 294, 302, 470 S.E.2d 613, 621 (1996).
Accordingly, we decline to consider this assignment of error.
2
“In reviewing a final order entered by a circuit 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.” Syllabus, Carr v. Hancock, 216
W.Va. 474, 607 S.E.2d 803 (2004).
Syl. Pt 1, Staton v. Staton, 218 W.Va. 201, 624 S.E.2d 548 (2005). See also Syl. Pt. 2, Lucas v.
Lucas, 215 W.Va. 1, 592 S.E.2d 646 (2003) (holding that “[i]n reviewing challenges to findings
made by a family court judge that also were adopted by a circuit court, a three-pronged standard
of review is applied. Under these circumstances, a final equitable distribution order is reviewed
under an abuse of discretion standard; the underlying factual findings are reviewed under a
clearly erroneous standard; and questions of law and statutory interpretations are subject to a de
novo review.”). Mindful of these standards, we proceed to consider the parties’ arguments.
Petitioner complains that the circuit court improperly calculated the marital portion of the
back-pay settlement. In support, petitioner claims that the proper relevant time period for the
legal dispute is from December of 2004 (the effective date of termination according to the NLRB
decision) to September 21, 2007. Neither petitioner’s brief nor any documents contained in the
record satisfactorily explain why petitioner chose September 21, 2007, as the end date for the
NLRB litigation.3 More inexplicable is that petitioner asserts that this time period results in a
period of twenty-six months of pending litigation. In fact, the time period suggested by petitioner
encompasses approximately thirty-three months. Regardless, petitioner asserts that the parties
were married for twenty-three of the twenty-six months of pending litigation, and that she is
entitled to approximately half of the proceeds from that time period. Consequently, petitioner
claims she is entitled to $77,543.00 of respondent’s back-pay, plus interest. Petitioner asserts that
this figure is consistent with respondent’s wages during that period. In contrast, the family court
found that the relevant time period for the pending litigation was ten years, from September 1,
2004, (the date respondent was not hired by the successor employer) to August 10, 2014 (the
date the settlement was finalized), and that the parties were married for approximately two years
and one-half months of that time period.
We find that petitioner’s argument lacks merit. We have held, “[a] case is final only when
it terminates the litigation between the parties on the merits of the case and leaves nothing to be
done but to enforce by execution what has been determined.” Syl. Pt. 3, in part, James M.B. v.
Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995). In this matter, an appeal was pending for
approximately ten years, and was ultimately concluded with a settlement between the parties.
Further, not only is petitioner’s argument riddled with incorrect arithmetic, petitioner fails to
provide any authority to support her contentions. Rule 10(7) of the West Virginia Rules of
Appellate Procedure, in pertinent part, states,
[t]he argument must contain appropriate and specific citations to the record on
3
In her brief, petitioner references the February 9, 2015, hearing transcript, where
petitioner’s counsel asks respondent, “Mr. M., the decision by the administrative law judge was
literally handed out November 21, 2007, just two months after your final hearing in this matter?”
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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.
Consequently, petitioner’s claim that the relevant time period for the litigation of respondent’s
back-pay claim ended at the time of the National Labor Relations Board decision is unfounded,
and petitioner has failed to demonstrate that the family court abused its discretion. Accordingly
we decline to reverse on that ground.
Respondent’s Cross-Assignments of Error
Respondent first asserts on cross-appeal that in the final divorce decree, the parties
executed a waiver of further distribution that the family court failed to consider in its
determination that petitioner was entitled to a portion of respondent’s back-pay settlement in the
first instance. Respondent asserts that the waiver language is clear an unambiguous and should
act to bar petitioner’s claim to a portion of the settlement. Respondent asserts further that he and
petitioner were living together for approximately two years while the back-pay claim was
pending, and that, during that time, petitioner was aware that respondent was heavily involved in
a grievance with his former employer. However, the family court found that, although
respondent had specific knowledge of the pending back-pay claim at the time of the final divorce
decree, respondent failed to disclose the back-pay claim in his financial disclosure, or at any time
during the divorce proceedings, and that as a result, any waiver by petitioner was not made
knowingly. The family court held,
[a] party should not be bound to a waiver of a claim of which a party had no
knowledge, particularly where the other party failed to disclose the same when
required to do so, and particularly where, as here, upholding such a waiver would
result in unjust enrichment to the non-disclosing party.
We agree with the family court and find that as a result of respondent’s failure to disclose
this claim, the family court did not err in petitioner’s waiver of further distribution to be invalid
as to this settlement. West Virginia Code § 48-7-206(2) states,
If any party deliberately or negligently fails to disclose information which
is required by this part 2 and in consequence thereof any asset or assets with a fair
market value of five hundred dollars or more is omitted from the final distribution
of property, the party aggrieved by the nondisclosure may at any time petition a
court of competent jurisdiction to declare the creation of a constructive trust as to
all undisclosed assets, for the benefit of the parties and their minor or dependent
children, if any, with the party in whose name the assets are held declared the
constructive trustee, such trust to include such terms and conditions as the court
may determine. The court shall impose the trust upon a finding of a failure to
disclose such assets as required under this part 2.
W.Va. Code § 48-7-206(2).
Further, we have held, “[t]o effect a waiver, there must be evidence which demonstrates that a
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party has intentionally relinquished a known right.” Syl. Pt. 1, in part, Potesta v. U.S. Fid. &
Guar. Co., 202 W.Va. 308, 504 S.E.2d 135 (1998). Accordingly, we agree with the family court
that any waiver by petitioner was not knowingly made, and find no abuse of discretion.
Respondent also argues that the family court lacked jurisdiction to re-open the issue of
equitable distribution and modify the final divorce order. Respondent contends that petitioner
failed in her statutory burden under West Virginia Code § 48-5-706 to prove that modification of
the final order was necessary to avoid an inequitable or unjust result. West Virginia Code § 48-5­
706 allows for the alteration of an order concerning the distribution of marital property. The
family court found that pursuant to that Code section, it had the authority to alter a prior order if,
“[t]he alteration of the prior order as it relates to the distribution of marital property is necessary
to avoid an inequitable or unjust result which would be caused by the manner in which the
modification will affect the prior distribution of marital property.”
The family court found further that,
a significant portion of the back-pay award accrued during the parties’ marriage
and prior to their separation. [Petitioner] would have enjoyed the benefit of the
same had the wages (and insurance premiums) been paid during the parties’
marriage. If this court denies her marital share of the back-pay, the same amounts
to an unjust windfall to the respondent.
We agree with the family court and find respondent failed to prove that the family court
lacked jurisdiction to modify the equitable distribution of the marital property. Respondent had
specific knowledge of the back pay claim but either negligently or intentionally failed to disclose
it. As the family court held, “[respondent] cannot now reasonably argue that petitioner waived
her marital share of the same in the absence of that disclosure.” Similarly, respondent cannot
now claim that modification is unjust, considering petitioner would have enjoyed the benefit of
that income during the parties’ marriage. Accordingly, we find the family court did not abuse its
discretion in finding that it had jurisdiction to modify the final order of distribution of marital
property.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 3, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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