P.A. v. T.A.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2016 Term
FILED
November 15, 2016
No. 15-0506 released at 3:00 p.m.
RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
P. A.,
Respondent Below, Petitioner,
V.
T. A.,
Petitioner Below, Respondent.
Appeal from the Circuit Court of Kanawha County
Honorable Charles King, Judge
Civil Action No. 11-D-1029
AFFIRMED
Submitted: September 7, 2016
Filed: November 15, 2016
James M. Cagle Lyne Ranson
Charleston, West Virginia Charleston, West Virginia
Attorney for the Petitioner Attorney for the Respondent
JUSTICE DAVIS delivered the Opinion of the Court.
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.” Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).
2. “‘[W. Va. Code § 48-1-233 (2001) (Repl. Vol. 2015)], defining all
property acquired during the marriage as marital property except for certain limited
categories of property which are considered separate or nonmarital, expresses a marked
preference for characterizing the property of the parties to a divorce action as marital
property.’ Syllabus point 3, Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990).”
Syllabus point 2, in part, Staton v. Staton, 218 W. Va. 201, 624 S.E.2d 548 (2005).
3. “In divorce actions, an award of attorney’s fees rests initially within the
sound discretion of the family [court] and should not be disturbed on appeal absent an abuse
of discretion. In determining whether to award attorney’s fees, the family [court] should
consider a wide array of factors including the party’s ability to pay his or her own fee, the
beneficial results obtained by the attorney, the parties’ respective financial conditions, the
i
effect of the attorney’s fees on each party’s standard of living, the degree of fault of either
party making the divorce action necessary, and the reasonableness of the attorney’s fee
request.” Syllabus point 4, Banker v. Banker, 196 W. Va. 535, 474 S.E.2d 465 (1996).
4. “Where attorney’s fees are sought against a third party, the test of what
should be considered a reasonable fee is determined not solely by the fee arrangement
between the attorney and his client. The reasonableness of attorney’s fees is generally based
on broader factors such as: (1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion
of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6)
whether the fee is fixed or contingent; (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in similar cases.”
Syllabus point 4, Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156
(1986).
ii
Davis, Justice:
P. A. (“Husband”),1 respondent below, appeals from an order entered May 15,
2015, in the Circuit Court of Kanawha County. By that order, the circuit court affirmed
various rulings made by the family court. On appeal, Husband claims error in the
classification of certain property as marital property, in the calculation of his gambling
losses, in denying him credit for payments he made during the parties’ separation, and in
ordering him to pay one-half of the attorney’s fees incurred by petitioner below, T. A.
(“Wife”). Wife has filed cross-assignments of error challenging the calculation of amounts
due her on one of the marital assets and the failure to award her a cash sum to equalize the
distribution of marital assets. Having considered the parties’ briefs and oral arguments, as
well as the relevant law, we find no error. Therefore, we affirm the May 15, 2015, order of
the Circuit Court of Kanawha County.
I.
FACTUAL AND PROCEDURAL HISTORY
Husband and Wife were married on September 29, 1994.2 During the course
of the marriage, in 1999, the couple acquired an interest in Komax, LLC (“Komax”), a
1
Consistent with our long-standing practice in cases with sensitive facts, we use
initials to protect the identities of the individuals involved in this case. See, e.g., Mark V.H.
v. Dolores J.M., 232 W. Va. 378, 388 n.1, 752 S.E.2d 409, 419 n.1 (2013) (per curiam). Cf.
W. Va. R. App. P. 40(e)(2).
2
The marriage produced one child who has attained the age of majority.
1
business equipment company of which Husband was a founding partner.3 In addition to
being a partner in Komax, Husband also was responsible for overseeing the service
department.
Husband and Wife separated in May of 2011, and Wife petitioned for divorce
during that same month.4 Sometime during the period between their separation and divorce,
Husband’s employment and partnership in Komax were both terminated by a vote of the
remaining partners. The record demonstrates that the business relationship was terminated
as a result of Husband’s inattentiveness to the business and continued problems resulting
from his frequent gambling, including his practice of using his Komax credit card to obtain
cash advances while at a local casino.5
3
At its founding, Komax was owned by four partners. At some point prior to
the time relevant to this case, the number of partners dropped to three.
4
Wife initially sought divorce based upon irreconcilable differences. She later
amended her asserted ground for divorce, and the divorce ultimately was granted based upon
the parties having lived separate and apart from each other for one year pursuant to W. Va.
Code § 48-5-202 (2001) (Repl. Vol. 2015). Wife alleges that husband refused to admit
irreconcilable differences.
5
One of the Komax partners states in an affidavit that, in a period of
approximately fourteen months, Husband took sixty-seven cash advances totaling
$100,717.50. The partner explained that Husband repaid the funds to the company over time
through payroll deductions, but contended that the advances “created a drain on cash flow
for Komax and created difficulty with meeting payroll and other business obligations.” The
card had been intended for business purposes only, and the partners had agreed to charge no
more than $300 per month each on their respective cards.
2
It is undisputed that the value of the partnership interest in Komax, which was
$768,240.00 at the time of the parties’ separation, had increased to $1,408,438 at the time of
Husband’s termination from the company. In addition, the Komax operating agreement
contained a clause stating that a partner who is terminated from the company involuntarily
shall continue to share in profits and losses for sixty days following the meeting at which the
partner is voted out. In accordance with this provision, Komax paid $102,905 in profits for
the sixty-day period. The remaining partners of Komax also agreed to buy the parties’ one-
third share of a beach condominium that had been jointly purchased by the Komax partners
approximately one year before Husband and Wife separated. The partners agreed on a price
of $90,000 payable in three installments of $30,000 each.
Husband and Wife were granted a divorce by final order of the family court on
March 11, 2014. Pertinent to this appeal, the order awarded Wife one-half of the value of
the parties’ share of Komax at the time of Husband’s termination from the company and also
divided the value of the beach condominium equally between the two. Although Husband
had requested credit for his payments of marital expenses during the pendency of the divorce,
the family court declined to award such credit. The grounds for the family court’s denial
related to Husband’s habitual gambling, which, the family court found, resulted in Husband
dissipating marital funds by an amount of at least $160,620. This amount was equal to
documented gambling losses Husband incurred at one casino from the year 2008 until the
3
parties’ separation in May 2011. Thereafter, by order entered on August 18, 2014, the family
court ordered Husband to pay Wife $50,689.05 as one-half of her attorney’s fees, and ordered
monthly payments to Wife in light of Husband’s failure to pay Wife her share of $60,000 in
installment payments he had received from Komax for the beach condominium.
Husband filed a timely appeal of the family court’s orders in the Circuit Court
of Kanawha County. By order entered October 10, 2014, the circuit court denied the appeal,
in part, and remanded the case to the family court for consideration of an apparent
mathematical error.6 The family court entered its final order on remand on March 9, 2015.
Following a denial of Wife’s motion to reconsider the March 9, 2105, order, Husband filed
a petition for appeal in the circuit court and Wife filed a cross petition for appeal. The circuit
court, finding no error, summarily denied both by order entered May 15, 2015. The instant
appeal, and Wife’s cross-assignments of error, followed.
II.
STANDARD OF REVIEW
Our review of this matter is well established:
6
The circuit court noted that, in making his argument that there was an error,
Husband referred to evidence not adduced during the family court hearings. Accordingly,
the circuit court remanded so that the family court could hear and consider the evidence.
4
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). Accord W. Va. Code § 51­
2A-15(b) (2001) (Repl. Vol. 2016). With the foregoing standards as our guide, we consider
the issues raised in this appeal.
III.
DISCUSSION
A. Determination of Marital Property
Husband first argues that the circuit court erred in determining that certain
assets were marital property. Specifically, Husband argues that the circuit court erred in
finding three specific assets were solely marital property: (1) the increase in value of Komax
during the period between the parties’ separation and divorce; (2) sixty-days worth of profits
paid following Husband’s termination from Komax; and (3) the total value of the one-third
ownership of the beach condominium. We address each of these assets in turn.
1. Komax. The circuit court affirmed the family court’s ruling that found the
increase in value of the Komax partnership between the time of the parties’ separation and
Husband’s termination was marital property insofar as the partnership itself was marital
5
property and the increase in value resulted from market forces that were beyond Husband’s
control and from the efforts of his partners with no contribution from him.7 In the
alternative, the circuit court found that valuing the partnership as of the date of Husband’s
termination from Komax provided a more equitable result pursuant to W. Va. Code § 48-7­
104(1) (2001) (Repl. Vol. 2015) due to Husband’s dissipation of marital funds.8
Husband argues that it was error to value Komax as of the date of his
termination from the company. Asserting that the lower courts ignored the fact that West
Virginia is a “dual property” jurisdiction, he contends that the date of the parties’ separation
7
The family court observed that “the evidence was clear and convincing that
the increase in value happened despite [sic] of him and not because of him.” Indeed there
was evidence presented that Husband frequently failed to come to work, sometimes for days
at a time; when he was there he often watched TV, slept at his desk, and/or failed to work a
full day; he was stripped of his oversight responsibilities for the service dispatchers due to
his work deficiencies that had left the department in disarray; he failed to return phone calls
from clients and employees; and his use of the company credit card for extremely large cash
advances, though they were repaid, created a cash flow problem for the company and
required it to move funds in order to make payroll.
8
In this regard, the family court found that Husband: encumbered the marital
home by refinancing it, resulting in a loss in wife’s share of the equity of an unknown
amount; drained a marital account of $16,446.68; emptied an IRA account, an unknown
portion of which was marital property; looted the parties’ primary retirement account of
between $75,000 and $87,000; took unauthorized cash advances on his company credit card
in the amount of $100,717.50, which was repaid from marital property; dissipated the marital
estate through provable gambling losses of $160,620 at one casino (the family court opined
that actual losses likely were higher); raided the marital estate to such an extent that it is
impossible to accurately determine how much was dissipated; and failed to perform work for
Komax prior to the parties’ separation, which undoubtedly diminished the value of the
parties’ most important asset, their interest in the company.
6
is the proper date upon which to value the company as a marital asset, rendering the increase
in value, which occurred after that date, separate property belonging solely to him. Husband
further contends that the circuit court’s factual finding that the increase in value of Komax
was a passive increase is “utter nonsense.” He contends that the increase was due to the post-
separation efforts of “people working together [to] solicit and bid for the contracts” that led
to the increased value of the company. Although he contends that his activity of running the
service department contributed to the company’s growth during the time following the
parties’ separation, and he asserts that the family court’s findings to the contrary are “against
the weight of the evidence,” he directs this court to no portion of the record to support his
assertion. As to the alternative reasoning by the family court that valuing the partnership as
of the date of Husband’s termination from Komax provided a more equitable result pursuant
to W. Va. Code § 48-7-104(1), Husband asserts that the resulting division is not equitable
insofar as it provides the wife with compensation over and above her portion of the amount
that Husband was found to have dissipated from the marital estate.
Wife responds that the partnership in Komax was obtained during the marriage
and is, therefore, clearly marital property. She points out that, pursuant to W. Va. Code § 48­
7-104, the family court was not limited to using the value of the business as of the date of the
parties’ separation, but may consider a later date when it is more appropriate for attaining an
equitable result. She reasons further that the partnership interest in Komax did not cease to
7
be marital property simply because the parties separated. With regard to husband’s active
participation toward increasing the value of the company, Wife directs this Court’s attention
to the testimony of one of the founding partners of Komax, who stated that, after the date of
the parties’ separation, Husband provided no contribution to the business that would increase
its value.
We find no error in the manner in which the value of the parties’ interest in
Komax was resolved below. The real issue here involves the classification and valuation of
property in connection with a divorce. In this regard, it has been observed that
it is important to draw a clear distinction between [the] date on
which the parties’ assets are classified and the date on which
they are valued– the date of valuation. These dates appear at
first to be similar, but the policies behind them are very
different. The date of classification should ideally be set at the
actual termination point of the marital partnership, so that assets
which are not actual fruits of the parties’ joint efforts are not
included in the marital estate. The date of valuation, by contrast,
should ideally be set as close to trial as possible, so that the
court’s division of property is based upon the most current
financial information available. These differing policies
frequently require that court[s] use different dates for purposes
of classification and valuation . . . .
1 Brett R. Turner, Equitable Distribution of Property § 5:28, at p. 423 (3d ed. 2005).
It is undisputed that, at the time of the parties’ separation, their one-third
interest in Komax was marital property. Husband, however, argues that, after the date of
8
separation, any increase in the value of Komax was “acquired” by him and thereby became
his separate property. To support his claim that the increased value of Komax belongs solely
to him, Husband relies on authority pertaining to separate property:
Passive appreciation of separate property of either of the
parties to a marriage, or that increase “which is due to inflation
or to a change in market value resulting from conditions outside
the control of the parties,” is separate property which is not
subject to equitable distribution. W. Va. Code § 48-2-1(f)(6)
(1986).
Syl. pt. 1, Shank v. Shank, 182 W. Va. 271, 387 S.E.2d 325 (1989) (emphasis added).
Expanding upon this authority, however, and contrary to Husband’s analysis, this Court has
concluded that,
if property is separate property, and it increases in value because
of market forces or inflation (beyond the control of either party),
then this passive increase in value is also separate property. It
is obvious to this Court that the corollary also holds true;
namely, if marital property increases in value due to market
forces or inflation, then that passive increase in value is also
marital property.
Dababnah v. Dababnah, 207 W. Va. 585, 589, 534 S.E.2d 781, 785 (2000) (per curiam)
(emphasis added). Accord McGee v. McGee, 214 W. Va. 36, 41 n.3, 585 S.E.2d 36, 41 n.3
(2003). In fact, the Dababnah Court went on to conclude that “any increase in the value of
a marital asset, whether that increase came from passive or active appreciation, should be
considered marital property.” 207 W. Va. at 590, 534 S.E.2d at 786 (finding post-separation
increase in value of investment account classified as marital property also was marital
property and wife entitled to half). See also Burch v. Burch, 395 S.C. 318, 717 S.E.2d 757
9
(2011) (finding that, where partnership in company was marital property, post-filing increase
in value of partnership that was passive, i.e. not the result of Husband’s activities, also was
marital property); 2 Turner, Equitable Distribution of Property § 7:2, at p. 617
(“Appreciation in existing marital assets after the date of classification should be marital
property if the appreciation is caused by inflation or market forces rather than by active
postmarital efforts.”).
The record in this case clearly establishes that the parties’ interest in Komax
was marital property. The record is equally clear that, after the parties’ separation, Husband
engaged in no activity directed to increasing the value of that asset. Accordingly, the circuit
court correctly ruled that the post-separation increase in value of Komax remained marital
property.
2. Post-Termination Komax Profits. A signed draft of the Komax operating
agreement in the record contains a paragraph, paragraph 4.8, pertaining to the termination
of a partner. A partner is referred to in the agreement as a “member.” The operating
agreement states at paragraph 4.8:
Termination of a Member Without Cause. The Company
may involuntarily terminate any Member at any time, with or
without cause, upon the affirmative vote of a majority of all
Units of the Company, inclusive of the Units of the Member
under consideration. An involuntary termination shall
commence immediately after the applicable Company meeting
10
except that the involuntarily terminated Member shall continue
to share in profits and losses for sixty (60) days after such
meeting.
(Emphasis added). On April 22, 2013, after the parties’ separation, a majority of the Komax
Members held a special meeting and voted to terminate Husband’s membership in the
company pursuant to the above quoted provision. The family court found that, because the
Komax partnership was a marital asset, and the contractual entitlement for profit sharing in
the event of an involuntary termination of the partnership had existed for many years during
the course of the marriage, the post-termination profits were a marital asset.
Husband contends that Komax paid $102,905 as Husband’s share of the
company’s profits for the sixty days following the special meeting terminating his
membership in the company. Husband argues that his share of profits, which he refers to as
severance, was acquired after the parties’ separation, as a result of his termination from
Komax, and is, therefore, his separate property.
Wife contends that Husband mischaracterizes the payment of $102,905 as
severance. She states that the funds represent the parties’ one-third share of Komax profits
as provided for in paragraph 4.8 of the operating agreement.
11
Based upon the same reasoning set out above in support of our conclusion that
the post-separation increase in value of the Komax partnership was marital property, we
likewise agree with the family court’s conclusion that profits paid as a result of the
termination of that marital asset, i.e., the partnership, also are marital property.
3. Condominium. In June of 2010, approximately a year prior to the date
upon which the parties separated, the Komax partners jointly purchased a beach
condominium (“condo”) with each of the three partners having a one-third ownership interest
therein.
Husband argues that the condo should have been classified by the family court
as dual property, part marital and part separate. He asserts that he made a total of thirty-three
monthly payments of $2,000 as payment for the one-third interest in the condo, with twenty-
two of those payments being made during the period the parties were separated.
Accordingly, he claims that one-third of the interest in the condo was marital (the portion for
which he made eleven mortgage payments during the course of the marriage), and two-thirds
of the interest in the condo were his separate property (the portion for which he made twenty-
two mortgage payments during the separation).
12
Wife argues that both the family court and the circuit court were correct in
concluding that the one-third ownership in the condo was marital property and correctly
divided the asset equally between Husband and Wife.
“Marital property” is defined in W. Va. Code § 48-1-233 (2001) (Repl. Vol.
2015), which provides in relevant part:
(1) All property and earnings acquired by either spouse
during a marriage, including every valuable right and interest,
corporeal or incorporeal, tangible or intangible, real or personal,
regardless of the form of ownership, whether legal or beneficial,
whether individually held, held in trust by a third party, or
whether held by the parties to the marriage in some form of
co-ownership such as joint tenancy or tenancy in common, joint
tenancy with the right of survivorship, or any other form of
shared ownership recognized in other jurisdictions without this
State, except that marital property does not include separate
property as defined in section 1-238 [§ 48-1-238] . . . .
(Emphasis added). This Court previously has recognized:
“[W. Va. Code § 48-1-233 (2001) (Repl. Vol. 2015)], defining
all property acquired during the marriage as marital property
except for certain limited categories of property which are
considered separate or nonmarital, expresses a marked
preference for characterizing the property of the parties to a
divorce action as marital property.” Syllabus point 3, Whiting
v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990).”
Syl. pt. 2, in part, Staton v. Staton, 218 W. Va. 201, 624 S.E.2d 548 (2005).
13
It is undisputed that the parties’ one-third interest in the condo was obtained
during the marriage, therefore the family court correctly classified it as marital property.
Payments toward the purchase price made by Husband after the parties’ separation do not
change the character of the property. Accordingly, we find no error in the family court’s
finding that the condo was marital property.
B. Gambling Losses
Relying on activity reports provided by the local casino where Husband
gambled, and testimony by the track’s representative stating the reports have an accuracy rate
of ninety-five to ninety-eight percent, the family court found that husband incurred a net loss
of $160,620 from 2008 through May 2011, by virtue of his gambling at just that one casino.
The family court found this gambling loss to be “a waste and dissipation of marital funds.”
The court went on to find that Husband had sole control over all of the parties’ financial
assets of more than nominal value, and that it was difficult to calculate the total amount of
his gambling losses. The family court additionally concluded that Husband had raided both
marital and separate assets in various ways to fund his gambling addiction, including
refinancing the marital home resulting in a loss of equity, refinancing rental property,
14
draining and emptying various financial/retirement accounts, and taking large cash advances
on his company credit card that were repaid from marital funds.9
Husband claims that the circuit court’s calculation of the amount of Husband’s
gambling losses was erroneous and against the weight of the evidence. Husband asserts that
he gambled using withdrawals from his BB&T account, and records of that account
demonstrate a small net loss for the years 2009 through 2011 of $40,102. He further claims
that his annual salary, as found by the family court, was $130,000 to $140,000 per year.
Based on these figures, Husband avers that he could not have gambled $913,721 as found
by the family court. He additionally argues that the casino records are not an accurate
representation of his gambling activities because they are “activity reports” and theoretically
would show $913,000 worth of activity if he gambled 913,000 times with the same dollar.
Wife responds that the testimony and documentary evidence clearly showed
that Husband regularly gambled during the marriage and lost marital money. She provides
a summary of the testimony of the casino director regarding Husband’s activities there and
the fact that the net losses are accurate to within ninety-five to ninety-eight percent. She
9
See supra note 8 for a more detailed description of Husband’s dissipation of
marital assets.
15
claims that Husband dissipated substantial marital property to support his gambling
addiction.
As previously noted, “we review the findings of fact made by the family court
judge under the clearly erroneous standard.” Syl., in part, Carr v. Hancock, 216 W. Va. 474,
607 S.E.2d 803. There is sufficient evidence in the record to support the family court’s
finding that Husband incurred a net gambling loss of $160,619.23. Although Husband urges
an isolated examination of his bank account records to calculate his gambling losses, such
an examination would not provide an accurate measure of Husband’s gambling losses insofar
it fails to account for the documented advances on his company credit card, which advances
were received at the casino and amounted to $100,717.50. This evidence refutes Husband’s
claim that he only “gambled using withdrawals from his BB&T account,” and demonstrates
that an isolated view of bank account records would not provide accurate portrayal of his
gambling activities. Moreover, Husband’s argument that his annual salary was insufficient
to support the level of gambling found by the family court ignores the family court’s findings
that Husband raided other assets and used his company credit card to obtain funds for
gambling. Accordingly, we find no clear error in the family court’s factual finding that
Husband sustained $160,620 in gambling losses.
16
C. Conrad Credits
The family court refused Husband’s request to receive credit pursuant to
Conrad v. Conrad, 216 W. Va. 696, 612 S.E.2d 772 (2005) (per curiam), for certain
payments he made after the parties’ separation. The family court provided the following
rationale for declining to grant Husband credit for the payments he made:
(a) Up until the time of his discharge[,] husband had
an annual salary of $80,000, plus a partner’s draw of $60,000
and, in addition to those monies, his state and federal taxes were
paid by Komax;
(b) Wife, on the other hand, was working at an hourly
rate of $12.84;
(c) Many of the payments for which he seeks
reimbursement (e.g. the mortgage on the home, his BB&T line
of credit, the purchase of a vehicle for their daughter) were
increased or incurred by his unilateral choice and/or in order to
provide him with gambling cash; and
(d) It would be fundamentally unfair to provide
Conrad credits to husband while denying wife dissipation
credits for the marital home, the retirement accounts and the
$100,000 “take back” by Komax for husband’s excessive cash
advances.
The family court further found that,
[w]hen there are substantial liquid assets to be divided
that will give each of the parties a secure income and allow their
individual development of other financial opportunities, and
when both parties would be entitled to credits in amounts that
are not at all certain due to the financial misconduct of one of
the parties, the Court should choose a method of property
distribution that disentangles the parties from one another as
17
fairly, quickly and cleanly as possible. Cross v. Cross, 178
W. Va. 563, 363 S.E.2d 449 (1987).
The circuit court, in finding no abuse of discretion by the family court, observed that
Husband does not dispute the facts as set out by the family court.
Husband argues that the family court abused its discretion by depriving him of
credit under Conrad for interim payments made on marital debt and home maintenance.
According to Husband, he made such payments in the amount of $83,419, and, therefore,
one-half of that amount should have been credited against the distribution of marital
property. He notes that the family court already had accounted for his “dissipation” of the
marital estate by granting Wife a one-half interest in the increased value of Komax that
occurred after the parties’ separation, one-half of the sixty days of post-termination profits
paid by Komax in accordance with the operating agreement, and a one-half interest in the
condo. Moreover, husband submits that wife had exclusive possession of the family home
during the separation while Husband paid the mortgage, Wife’s car payment, Wife’s credit-
card debt, lawn care, insurance, alimony, and child support. Finally, husband contends that
the family court refused to allow Husband credit for an overpayment of child support in the
amount of $17,673.56. Husband contends that the failure to grant him Conrad credits was
an abuse of discretion on the part of the lower courts.
18
Wife responds that the family court did not abuse its discretion by denying
Conrad credits for payments made by Husband10 between the parties’ separation and divorce
considering Husband’s dissipation of extensive marital assets during the marriage to support
his gambling addiction. Based upon Husband’s dissipation of marital assets, Wife asserts
that the circuit court did not abuse its discretion by denying Husband credit.
In Conrad, this Court recognized that,
[r]ecoupment of payment of marital debt by one party
prior to the ultimate division of marital property has often been
permitted upon a final equitable distribution order. See Jordan
v. Jordan, 192 W. Va. 377, 452 S.E.2d 468 (1994) (final
allocation of marital debt permitted husband to recoup his
expenses related to the marital home); Kapfer v. Kapfer, 187
W. Va. 396, 419 S.E.2d 464 (1992) (the parties agreed to allow
husband to recoup from home sale all mortgage principal he
paid on marital home after date of separation).
216 W. Va. at 702, 612 S.E.2d at 778. See also W. Va. Code § 48-5-508(c) (2001) (Repl.
Vol. 2015) (“The court may order either or both of the parties to pay the costs and expenses
10
Wife asserts that, during a hearing on November 6, 2013, Husband submitted
a demonstrative exhibit claiming he made payments and requesting credits for the following
expenses: homeowners insurance, home mortgage, BB&T line of credit, his credit cards, the
parties’ daughter’s car payment, automobile insurance for Wife’s and daughter’s cars, real
estate taxes, personal property taxes, and license renewal. These expenses totaled $91,219.
In addition, the exhibit also set out temporary alimony of $26,000 and child support payments
totaling $37,700 for which he also sought credit. Thus, Husband’s claimed expenses totaled
$154,919, one-half of which equals $77,459.50. Nevertheless, Husband now seeks credit in
the amount of $83,419, without any detailed explanation of how that figure was calculated.
In addition, Wife disputes that Husband overpaid any child support, and she asserts that
spousal support and child support payments are not subject to Conrad credits.
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of maintaining and preserving the property of the parties during the pendency of the action.
At the time the court determines the interests of the parties in marital property and equitably
divides the same, the court may consider the extent to which payments made for the
maintenance and preservation of property under the provisions of this section have affected
the rights of the parties in marital property and may treat such payments as a partial
distribution of marital property. . . .” (emphasis added)).
Upon considering the rulings of the family and circuit courts, we find no abuse
of discretion. Husband’s primary grounds for asserting an abuse of discretion is his claim
that the family court already had increased Wife’s equitable distribution share to offset his
dissipation of marital assets by granting her one-half of the increase in value of Komax that
occurred after the parties’ separation, one-half of the sixty days of post-termination profits
paid by Komax in accordance with the operating agreement, and one-half of the value of the
condo. Because we have determined all of these assets to be marital, they provided Wife
with nothing to counter Husband’s extreme dissipation of marital assets. Husband also fails
to respond to the family court’s finding that “[m]any of the payments for which he seeks
reimbursement (e.g. the mortgage on the home, his BB&T line of credit, the purchase of a
vehicle for their daughter) were increased or incurred by his unilateral choice . . . in order to
provide him with gambling cash.” Therefore, we affirm the circuit court’s ruling granting
no Conrad credits to Husband for payments he made after the parties’ separation.
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D. Attorney’s fees
Wife requested the family court to award her attorney’s fees and costs in the
amount of $101,378.11. By order entered August 18, 2014, the family court granted Wife
one-half of her attorney’s fees, and ordered Husband to pay $50,689.05 for said fees. The
family court based its ruling upon W. Va. Code §§ 48-1-305(a) and (c) (2001) (Repl. Vol.
2015). In making this award, the family court found that,
(a) A significant portion of this case concerned
[Husband’s] gambling losses; while the evidence of such losses
was clear and convincing, [Husband] persisted in asserting that
he had no such losses, thereby causing [Wife] to expend fees
and costs on an issue that was beyond all reasonable cavil;
(b) [Husband’s] gambling problem caused him to
pillage many of the marital assets and, therefore, [Wife] was
required to expend fees and costs discovering their current value
as well as any current encumbrances placed against them, many
of which were incurred without her approval or knowledge;
(c) [Husband’s] gambling problem caused him to lose
his interest in Komax, LLC[,] and created considerable tension
between him and his partners which spilled over into this
divorce and caused [Wife] to unnecessarily expend fees and
costs on discovery related to the value of [Husband’s] one-third
interest in the business; and
(d) Absent his gambling problem, a division of the
parties’ assets could have been quickly and cleanly
accomplished; instead, this case became protracted, difficult and
contentious.
The family court further declared that a significant portion of its time in this case was due
solely to Husband pursuing defenses that were without merit.
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Husband concedes that the family court considered numerous factors, but
argues that the court improperly weighed facts that militated significantly against the award
of attorney’s fees. Husband asserts that the family court wrongly concluded that Wife’s
standard of living would decrease tremendously if she paid her own fees and costs, and that
Husband bore sole responsibility for driving up the cost of the litigation. Husband contends
that awarding Wife one-half of her attorney’s fees and costs was an abuse of discretion on
the part of the family court.
Wife responds that there was no error made in awarding her one-half of the
amount she sought for attorney’s fees and costs. She contends that she had to file four
motions to compel to get discovery responses and documents she requested. In addition, she
claim she had to file three contempt petitions to get Husband to pay his child support
obligations, his share of their child’s non-insured medical expenses, and other obligations.
Furthermore, she asserts that tracking Husband’s gambling and dissipation of marital assets
was enormous work that required subpoenas to obtain financial documents and casino
records. Finally, Wife states that she had to obtain a domestic violence emergency protective
order in November 2011. Based on these facts, Wife asserts there was no abuse of
discretion.
22
As the family court noted:
(a) Costs may be awarded to either party as justice
requires and in all cases the court, in its discretion, may require
payment of costs at any time and may suspend or withhold any
order until the costs are paid.
....
(c) When it appears to the court that a party has incurred
attorney fees and costs unnecessarily because the opposing party
has asserted unfounded claims or defenses for vexatious, wanton
or oppressive purposes, thereby delaying or diverting attention
from valid claims or defenses asserted in good faith, the court
may order the offending party, or his or her attorney, or both, to
pay reasonable attorney fees and costs to the other party.
W. Va. Code § 48-1-305(a) & (c) (emphasis added). Furthermore, this Court has held:
In divorce actions, an award of attorney’s fees rests
initially within the sound discretion of the family [court] and
should not be disturbed on appeal absent an abuse of discretion.
In determining whether to award attorney’s fees, the family
[court] should consider a wide array of factors including the
party’s ability to pay his or her own fee, the beneficial results
obtained by the attorney, the parties’ respective financial
conditions, the effect of the attorney’s fees on each party’s
standard of living, the degree of fault of either party making the
divorce action necessary, and the reasonableness of the
attorney’s fee request.
Syl. pt. 4, Banker v. Banker, 196 W. Va. 535, 474 S.E.2d 465 (1996). In addition, the
Banker Court explained that, in determining the reasonableness of requested attorney’s fees,
a court may examine the factors set out in Syllabus point 4 of Aetna Casualty & Surety Co.
v. Pitrolo:
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Where attorney’s fees are sought against a third party, the
test of what should be considered a reasonable fee is determined
not solely by the fee arrangement between the attorney and his
client. The reasonableness of attorney’s fees is generally based
on broader factors such as: (1) the time and labor required; (2)
the novelty and difficulty of the questions; (3) the skill requisite
to perform the legal service properly; (4) the preclusion of other
employment by the attorney due to acceptance of the case; (5)
the customary fee; (6) whether the fee is fixed or contingent; (7)
time limitations imposed by the client or the circumstances; (8)
the amount involved and the results obtained; (9) the experience,
reputation, and ability of the attorneys; (10) the undesirability of
the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases.
176 W. Va. 190, 342 S.E.2d 156 (1986).
In deciding to award attorney’s fees, the family court analyzed each of the
factors set out in Banker and Pitrolo, and explained how each factor weighed in favor of
awarding some attorney’s fees to Wife. The family court ultimately concluded, based upon
its thorough examination of all the relevant factors, that Wife was entitled to only one-half
of her attorney’s fees. We find no abuse of discretion on the part of the family court. See
Syl. pt. 4, in part, Banker v. Banker, 196 W. Va. 535, 474 S.E.2d 465 (“In divorce actions,
an award of attorney’s fees rests initially within the sound discretion of the family [court] and
should not be disturbed on appeal absent an abuse of discretion.”). Accordingly, we affirm
the family court’s award of attorney’s fees.
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E. Cross-Assignment of Error: Condo Distribution
Wife argues that she has not received her share of the proceeds from the condo
buy-out and that the lower courts miscalculated when they determined that husband currently
owes wife only $16,960 for that asset. Husband responds that there has been no math error.
In its final order on remand, entered March 9, 2015, the family court concluded
that Wife was owed $15,721.00 for her share of the condo. Wife filed a motion to
reconsider. Thereafter, by order entered March 27, 2015, the family court correct its earlier
order to reflect that Wife was actually owed $16,960.00. By order entered May 15, 2015, the
Circuit Court found no error. Likewise, based upon the record submitted on appeal, we find
no error in the determination that Wife is owed $16,960.00 for her share of the condo.
F. Cross-Assignment of Error: Cash Equalization
Wife finally argues that the family court erred by not awarding her a cash sum
or property to equalize the distribution of marital assets and debts as required by W. Va.
Code § 48-7-103 (2001) (Repl. Vol. 2015) & W. Va. Code § 48-7-104 (2001) (Repl. Vol.
2015). Husband responds that Wife engages in some “odd math computations” to argue she
is owed a cash equalizer.
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We decline to address this issue finding it to have been inadequately briefed.
The parties arguments on this issue are comprised primarily of conclusory statements.
“Assignments of error that are not argued in the briefs on appeal may be deemed by this
Court to be waived.” Syl. pt. 6, Addair v. Bryant, 168 W. Va. 306, 284 S.E.2d 374 (1981).
See also State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although we
liberally construe briefs in determining issues presented for review, issues which
are . . . mentioned only in passing but are not supported with pertinent authority, are not
considered on appeal.”). Accord W. Va. R. App. P. Rule 10(c)(7) & (f).
IV.
CONCLUSION
As explained more fully in the body of this opinion, we find no error in this
matter. Accordingly, we affirm the May 15, 2015, order of the Circuit Court of Kanawha
County.
Affirmed.
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