Matthew H. v. Heather H. ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Matthew H.,
FILED
Respondent Below, Petitioner October 28, 2016
RORY L. PERRY II, CLERK
vs) No. 15-1074 (Harrison County 14-D-35) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Heather H.,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Matthew H.,1 pro se, appeals the October 1, 2015, order of the Circuit Court of
Harrison County affirming the March 26, 2015, decree of divorce entered by the Family Court of
Harrison County. In the March 26, 2015, decree of divorce, the family court granted Respondent
Heather H. a divorce on the grounds of adultery and cruel and inhuman treatment. The family court
also made rulings with regard to parenting time and equitable distribution, and ordered that each
party was responsible for his or her own attorney’s fees. Respondent, by counsel Delby B. Pool,
filed a response and cross-appeal, and petitioner filed a reply.
The 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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision.
For the reasons expressed below, we affirm, in part, and reverse, in part, the decision of the
family court, and remand this case to the family court with directions to (1) apportion the
previously undesignated payments in the total amount of $12,000 between equitable distribution
and child support and to recalculate each party’s share of the marital estate, if necessary; and (2)
reevaluate whether respondent is entitled to be awarded her attorney’s fees with specific findings
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).
1
regarding the factors listed in syllabus point four of Banker v. Banker, 196 W.Va. 535, 474 S.E.2d
465 (1996).
The parties married on July 12, 2003, in Harrison County, West Virginia. During the
marriage, the parties produced three children: M.H. (born September 6, 2006), E.H. (born October
23, 2008), and G.H. (born June 1, 2011). The parties separated on October 3, 2013. While the
parties dispute whether petitioner’s relationship with a coworker became sexual before or after the
date of their separation, petitioner admits to a sexual relationship with his coworker prior to the
filing of respondent’s petition for divorce on January 16, 2014. In her petition, respondent sought a
divorce on grounds of (1) adultery; and (2) cruel and inhuman treatment.
By an order pendent lite entered April 7, 2014, the family court made rulings with regard to
temporary child custody and visitation, and temporary support payments. First, the family court
ruled that the children would reside with respondent and that petitioner shall have visitation from
Friday at 6:00 p.m. to Sunday at 6:00 p.m. each weekend except for the weekend which includes
the third Friday of the month. The family court ordered that, if petitioner “is not present to pick up
the children by 6:20 p.m.[,] . . . his pick[-]up time shall be Saturday morning at 10:00 a.m.”
Regarding temporary support payments, the family court ordered that beginning on March 1,
2014, petitioner shall pay respondent $3,000 per month and that “$1[,]800 shall be considered
child support, and $1[,]200 shall be undesignated until the final hearing.”
On June 23, 2014, respondent filed a motion to compel certain discovery responses from
petitioner. Following a July 7, 2014, hearing, the family court ruled on the parties’ discovery
disputes. By order entered July 18, 2014 order, the family court noted that respondent also
requested to be awarded her attorney’s fees, but deferred ruling on that request until after “the trial
on the merits.”2
In July of 2014, the parties reached an agreement in their case during court-ordered
mediation. However, petitioner subsequently filed a motion for leave to repudiate that agreement.
By order entered October 7, 2014, the family court allowed petitioner to repudiate the parties’
agreement, but also found that the parties “were in agreement” that the April 7, 2014, order
pendent lite should be modified to include the holiday schedule produced by the parties during the
mediation. Accordingly, the family court modified the order pendent lite to include the holiday
schedule to govern any holidays occurring before the final divorce hearing.
A final divorce hearing was held on December 1, 2014. At that hearing, the parties,
respondent’s parents, and various other witnesses testified. At the conclusion of the hearing, the
family court made certain findings on the record.3 First, the family court found that the evidence
2
Respondent then filed a motion for attorney’s fees on August 26, 2014.
3
The family court made several findings and rulings following the final divorce hearing.
Only those rulings which are the basis of either petitioner’s appeal or respondent’s cross-appeal
are referenced herein.
(continued . . .)
2
supported granting respondent a divorce on both of her asserted grounds. The family court
determined (1) that petitioner committed adultery; and (2) that, by both alternatively lying and
telling the truth about his affair with his coworker, petitioner engaged in cruel and inhuman
conduct that rose “to the level of destroying [respondent]’s mental well-being.” The family court
found that petitioner’s conduct made cohabiting with him “unendurable” and supported
“[respondent’s] withdrawal from the marriage.” With regard to parenting time, the family court
ruled that the parties would continue to divide holidays with the children pursuant to the schedule
produced by them during the previous mediation.
Next, the family court made rulings regarding the equitable distribution of the marital
estate. The family court awarded a Nissan automobile to respondent, and directed her to sell that
vehicle and apply the proceeds of the sale to make repairs to the basement of the marital home. The
family court stated that it expected to freeze petitioner’s equity in the marital home as of the date of
the final hearing. The family court found that, if it froze petitioner’s equity in the home, any
windfall from a raise in property value would go to respondent and found that such a result would
be equitable because respondent is “making the future payments and bearing the property taxes,
insurance, etc. for the home.” Finally, the family court deferred making any rulings on other issues
including respondent’s request for attorney’s fees.4 The family court noted that “all objections of
either party” were preserved.
The family court subsequently entered its decree of divorce on March 26, 2015, in which
the court incorporated its oral rulings from the December 1, 2014, final hearing as well as
additional rulings the court communicated to the parties in separate letters dated December 11,
2014, and February 18, 2015. The family court granted respondent a divorce based upon adultery
and cruelty on the part of petitioner.
With regard to parenting time, the family court found that respondent performed at least
80% of the pre-separation child rearing functions and designated her as the primary custodial
parent. The family court awarded petitioner parenting time on the following schedule: (a) alternate
weekends from 6:00 p.m. Friday to 6:00 p.m. Sunday; (b) Thursday evenings from 6:00 p.m. to
9:00 p.m.; and (2) two ten-day periods during the summer for vacations. The family court also
gave respondent one full week of uninterrupted vacation time and confirmed that parenting time
on holidays shall be on the schedule produced by the parties during court-ordered mediation,
including provisions that the children attend church on Christmas Eve and on Easter morning with
respondent. The family court kept the provision from the April 7, 2014, order pendent lite that, if
petitioner fails to pick up the children by 6:20 p.m. at the start of his parenting time, he will pick
them up at 10:00 a.m. on Saturday morning. The family court noted that this provision would
apply, “unless otherwise agreed” between the parties.5
4
The transcript of the December 1, 2014, final divorce hearing reflects that respondent
raised the issue of attorney’s fees after the family court did not rule on that issue.
5
The family court further ruled that neither party would disparage the other in front of the
(continued . . .)
3
With regard to the equitable distribution of marital property, the family court confirmed
that “[petitioner]’s equity in the last marital home is frozen as of the date of separation” and that, if
the house is sold for more than the stipulated value of $350,000, “any windfall goes to
[respondent].” The family court ruled that the marital home had to be listed for sale by December
31, 2016. Based on an attached worksheet of the parties’ debts and asserts, the family court
awarded respondent $120,013 from the marital estate and awarded petitioner $110,219. The
family court found that the distribution of the marital estate was “equitable” despite the fact that
the division of assets and debts was “not exactly even[.]” The family court further found that the
previously undesignated payments made by petitioner to respondent in the amount of $1,200 per
month pursuant to the April 7, 2014, order pendent lite were both “equitable distribution and child
support.”6 Finally, the family court ruled that each party was responsible for his or her own
attorney’s fees.
On April 27, 2014, petitioner filed a motion for the family court to reconsider the March
26, 2015, decree of divorce. The family court denied the motion by order entered May 27, 2015.
With regard to parenting time, the family court found that, to the extent that petitioner had more
time with the parties’ children during the pendency of the case, “[t]emporary rulings are not the
starting point, or minimum expectations, for either party, and neither party should expect his/her
relief after [the final hearing] to be automatically enhanced.” Following the family court’s denial
of his motion for reconsideration, petitioner appealed to the circuit court. Respondent filed a cross
appeal regarding the denial of her attorney’s fees. By order entered August 28, 2015, the circuit
court remanded the case to the family court with directions to file its December 11, 2014, and
February 18, 2015, letter rulings. The family court filed its letter rulings on August 31, 2015.
After the entry of the family court’s letter rulings, the circuit court affirmed the March 26,
2015, decree of divorce. With regard to the grounds for divorce, the circuit court found that the
family court did not err in finding that petitioner engaged in an adulterous relationship prior to the
filing of respondent’s petition for divorce and that relationship “led to the breakdown of the
parties’ marriage.” The circuit court further found that the family court did not clearly err in
children, nor allow others to do so, and that the parties would not discuss court-related or financial
matters in front of the children. On appeal, petitioner objects to these restrictions as a violation of
his freedom of speech. Respondent counters that such restrictions are customarily imposed in
family court cases involving minor children. We agree with respondent and find that petitioner’s
objections are without merit. See Syl. Pt. 3, In Re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996)
(holding that “[a]lthough parents have substantial rights that must be protected, the primary goal .
. . in all family law matters . . . must be the health and welfare of the children”); Michael K.T. v.
Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989) (stating that “the best interests of the
child is the polar star by which decisions must be made which affect children.”).
6
The previously undesignated payments of $1,200 per month totaled $12,000 because
those payments were made by petitioner to respondent from March 1, 2014, through the final
divorce hearing on December 1, 2014.
4
determining that petitioner engaged in cruel and inhuman conduct towards respondent. The circuit
court rejected petitioner’s argument that he was not provided with respondent’s mental health
records because petitioner “filed a motion to compel her medical records, and an [o]rder that
granted [the] same was entered.” The circuit court further rejected, as a ground for reversal, the
family court’s refusal to admit the complete transcript of respondent’s November 6 and 7, 2014,
deposition. The circuit court found that the family court erred in failing to admit the complete
deposition transcript under Rule 32(a)(2) of the West Virginia Rules of Civil Procedure, but that
the error was harmless because the substantially same material “was addressed in some fashion at
the final . . . hearing.”
With regard to parenting time, the circuit court found that the family court did not clearly
err in finding that respondent performed at least 80% of the pre-separation child-rearing functions.
In so ruling, the circuit court rejected petitioner’s argument that the testimony of respondent’s
father was contrary to the family court’s finding. The circuit court further upheld the family court’s
equitable distribution of marital property. Finally, the circuit court affirmed the family court’s
refusal to award respondent her attorney’s fees and denied a motion filed by respondent to be
awarded her attorney’s fees on appeal. The circuit court found that respondent was not entitled to
attorney’s fees because petitioner “raised issues on appeal that necessitated this [c]ourt’s briefly
remanding the case to the [f]amily [c]ourt for clarification of its rulings.”
On November 2, 2015, petitioner appealed the circuit court’s October 1, 2015, order
affirming the family court’s March 26, 2015, decree of divorce. Respondent subsequently filed a
response and cross-appeal on April 8, 2016. On May 9, 2016, petitioner filed a reply brief.
We review family court orders affirmed by a circuit court pursuant to the following
standard:
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). We will first address petitioner’s
procedural challenges. We will then address petitioner’s challenges to the grounds on which the
family court granted respondent a divorce and to the family court’s allocation of parenting time.
Finally, we will address petitioner’s challenge to the family court’s distribution of the marital
estate as inequitable, together with respondent’s cross-appeal of error regarding the denial of her
request for attorney’s fees.
Petitioner’s procedural challenges
First, petitioner contends that respondent’s attorney, who prepared the March 26, 2015,
decree of divorce, included rulings that the family court did not make. “As an appellate court, we
concern ourselves not with who prepared the findings for the [family] court, but with whether the
5
findings adopted by the [family] court accurately reflect the existing law and the trial record.”
State ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996). Upon our
review of the March 26, 2015, decree of divorce, we find that handwritten notations on the decree,
initialed by the family court, established that the court read the decree prior to its entry. The family
court’s notations reflect that the court added language, excised language, and made corrections.
Therefore, we reject any argument by petitioner that the decree of divorce included provisions of
which the family court was not aware.
In his next procedural challenge, petitioner contends that the family court erred in allowing
respondent to testify regarding how petitioner’s conduct affected her mental well-being. The
circuit court found no error because petitioner had requested respondent’s mental health records
and the family court granted that discovery request. However, petitioner asserts that, following the
entry of the family court’s order compelling production, respondent failed to produce all of the
records. “[R]ulings on the admissibility of evidence and the appropriateness of a particular
sanction for discovery violations are committed to the discretion of the trial court.” Syl. Pt. 1, in
part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995). At the final divorce
hearing, the family court instructed respondent not to testify about what her doctor did or did not
do. The family court further stated that it would disregard any testimony regarding a mental health
diagnosis. The family court allowed respondent to testify only as to her layperson’s perceptions of
how petitioner’s conduct affected her mental well-being. Therefore, given the limitations imposed
by the family court, we conclude that the family court did not abuse its discretion in considering
respondent’s testimony as to how her mental well-being was affected.
In his last procedural challenge, petitioner contends that the circuit court incorrectly
determined that the family court’s failure to admit the complete transcript of respondent’s
deposition under Rule 32(a)(2) was harmless error. Respondent counters that the family court’s
ruling was that the court would not read the entire transcript, but that petitioner could direct the
court’s attention to portions of the deposition transcript that he wanted the court to consider. Given
that respondent testified at the final divorce hearing and was cross-examined by petitioner—who
had the family court’s permission to use portions of the deposition transcript he believed to be
pertinent—we agree with the circuit court that any error on the family court’s part in refusing to
admit the complete transcript of respondent’s deposition was harmless. See Rule 61, W.V.R.C.P.
(providing that “[t]he court at every stage of the proceeding must disregard any error or defect in
the proceeding which does not affect the substantial rights of the parties.”).
Petitioner’s challenges to the grounds for divorce
and the family court’s allocation of parenting time
Having resolved petitioner’s procedural challenges, we now address and affirm the family
court’s rulings with regard to the grounds on which respondent was entitled to a divorce and to the
family court’s allocation of parenting time. We find that the only legal issue raised by petitioner
regarding those rulings is his contention that, under West Virginia law, an extramarital affair does
not constitute adultery if the adultery occurs after the date of separation. Respondent counters that
the relevant date is the date on which the divorce petition was filed. We agree with respondent. We
find that West Virginia Code § 48-5-301 clearly permits the granting of a divorce on the ground of
6
adultery if the adultery occurs within “three years before the institution of the action.” See Syl. Pt.
3, in part, Michael D.C. v. Wanda L.C., 201 W.Va. 381, 497 S.E.2d 531 (1997) (holding that
statutory defenses to granting divorce on ground of adultery include “. . . (3) [that] the last
adulterous act occurred [more than] three years before the complaint for divorce was filed”)7
(emphasis added). In the instant case, petitioner admits to a sexual relationship with his coworker
between the parties’ October 3, 2013, separation and the January 16, 2014, filing of respondent’s
divorce petition. Therefore, we conclude that the family court did not abuse its discretion in
granting respondent a divorce on the ground of adultery.
Similarly, the family court did not abuse its discretion in also granting respondent a divorce
on the ground of cruelty. 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, by both
alternatively lying and telling the truth about his affair with his coworker, petitioner engaged in
behavior that rose “to the level of destroying [respondent]’s mental well-being.” The family court
further found that petitioner’s behavior made cohabiting with him “unendurable.” Based on our
review of the record, we find no reason to disturb these findings. See State v. Guthrie, 194 W.Va.
657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (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”).
With regard to the allocation of parenting time, petitioner generally complains that he has
less parenting time with the parties’ children than he had under the temporary visitation
established by the April 7, 2014, order pendent lite. Based on our review of that order, we find the
family court reduced petitioner’s parenting time with the parties’ children by one weekend per
month in the March 26, 2015, decree of divorce.8 However, we further find that there is no reason
to disturb the family court’s finding that respondent performed at least 80% of the pre-separation
child rearing functions.9
7
At the time of our decision in Michael D.C. v. Wanda L.C., 201 W.Va. 381, 497 S.E.2d
531 (1997), the relevant statutory provision was found at West Virginia Code § 48-2-14. The
Legislature moved the provision to its current location at West Virginia Code § 48-5-301 during
the 2001 recodification of the chapter of the West Virginia Code relating to domestic relations. See
2001 W.Va. Acts ch. 91.
8
We note that, unlike the April 7, 2014, order pendent lite, the March 26, 2015, decree of
divorce allocates parenting time to petitioner on Thursday evenings.
9
Petitioner relies on the testimony of respondent’s father to establish that respondent
performed less than 80% of the pre-separation child rearing functions. However, upon our review
of that testimony, we determine that it was within the family court’s discretion to find that
respondent’s father meant that he took care of the parties’ children while both parties were at work.
As the family court was the trier of fact, we defer to its determinations of the context in which a
(continued . . .)
7
We note that West Virginia Code § 48-9-206(a) requires the family court to allocate
custodial responsibility so that the proportion of custodial time the children spend with each parent
“approximates the proportion of time each parent spent performing caretaking functions for the
child prior to the parents’ separation.” While West Virginia Code § 48-9-206(a) provides for
certain exceptions, we find that the family court did not err in finding that “[t]emporary rulings are
not the starting point, or minimum expectations, for either party, and neither party should expect
his/her relief after [the final hearing] to be automatically enhanced.” See W.Va. Code §
48-9-206(b) (providing that, “[i]n determining the proportion of caretaking functions each parent
previously performed for the child under subsection (a) . . ., the court shall not consider the
divisions of functions arising from temporary arrangements after separation[.]”). Therefore, we
conclude that the family court did not abuse its discretion in the allocation of the parties’ parenting
time in the March 26, 2015, decree of divorce.
Petitioner also makes two specific objections to the family court’s allocation of parenting
time, which we find merit discussion. First, petitioner objects to provisions in the holiday schedule
that the children attend church on Christmas Eve and on Easter morning with respondent. We find
that respondent having parenting time with the children to take them to Christmas Eve and Easter
services was consistent with respondent’s testimony that she was heavily involved in her church
and had involved the children in church activities for “their entire [lives].”10 We further find that
petitioner previously agreed that respondent would have parenting time with the children to take
them to church. By order entered October 7, 2014, the family court modified the April 7, 2014,
order pendent lite, to include the holiday schedule in that order pursuant to the parties’ agreement
that it do so. Therefore, we conclude that the family court did not abuse its discretion in carrying
over the provisions that respondent will have parenting time with the children to take them to
church services into the March 26, 2015, decree of divorce given that those provisions (1) are
supported by respondent’s testimony; and (2) were previously agreed to by petitioner.
Second, petitioner objects to the family court’s decision to also carryover the provision
that, if petitioner fails to pick up the children by 6:20 p.m. at the start of his weekend visitation, he
will pick them up at 10:00 a.m. on Saturday morning. We find that, in the decree of divorce, the
family court noted that this provision would apply “unless otherwise agreed” between the parties.
Based on our review of the record, we find that the provision to which petitioner objects is
reasonable and conclude that the family court did not abuse its discretion including it in the decree
of divorce.
Petitioner’s challenge to equitable distribution and
respondent’s cross-appeal regarding attorney’s fees
witness’s testimony should be taken. See State v. Guthrie, 194 W.Va. 657, 669 n.9, 461 S.E.2d
163, 175 n.9 (1995).
10
Respondent also testified that petitioner had been not allowing the children to participate
in as many church activities.
8
We affirm, in part, and reverse, in part, the decision of the family court with regard to the
equitable distribution of the marital estate and attorney’s fees based on the adequacy of findings
regarding each issue. “Findings of facts are adequate only if they are sufficient to indicate the
factual basis for the ultimate conclusion. If an order lacks adequate detail, the case will be
remanded for additional specificity.” Burnside v. Burnside, 194 W.Va. 263, 275, 460 S.E.2d 264,
276 (1995); see also Province v. Province, 196 W.Va. 473, 483, 473 S.E.2d 894, 904 (1996).
(stating that where lower tribunals make “only general, conclusory or inexact findings,” case will
be remanded for further findings and development)
In his challenge to the equitable distribution, petitioner contends the family court erred in
(1) awarding respondent a windfall from the sale of the marital home above its stipulated value of
$350,000 (at which the court froze his equity in the house); and (2) failing to include the previously
undesignated payments in the total amount of $12,000 in its calculations of each party’s share of
the marital estate. We affirm the family court’s decision with regard to the freezing of petitioner’s
equity in the marital home at $350,000. We find that the family court adequately explained that it
was equitable that respondent receive any profit from the sale above $350,000 because respondent
is “making the future payments and bearing the property taxes, insurance, etc. for the home,”
which included making repairs to the basement as ordered by the court.
However, we reverse the family court’s finding that the $12,000 was “equitable
distribution and child support” because such finding is inexact. We find that the $12,000 cannot be
both equitable distribution and child support because there are different consequences depending
on the type of payment it was. For example, if the $12,000 constituted part of the equitable
distribution, we find it should have been included on the worksheet used by the family court to
calculate each party’s share of the marital estate. It was not. Therefore, we remand the case to the
family court with directions to apportion the previously undesignated payments in the total amount
of $12,000 between equitable distribution and child support. If the family court deems all or part of
the $12,000 as equitable distribution, it is to include that amount in a recalculation of each party’s
share of the marital estate with specific findings pursuant to West Virginia Code § 48-7-103 which
provides that the court may alter an equal division of marital property if it considers factors set
forth therein.
We similarly reverse the family court’s denial of respondent’s motion for her attorney’s
fees and remand the matter to that court with directions to make specific findings as to the factors
listed in syllabus point four of Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996).11 In
syllabus point four of Banker, we held, in pertinent part, as follows:
11
Petitioner contends that respondent failed to preserve the issue of her attorney’s fees for
appeal. However, petitioner acknowledges that, at the conclusion of the final divorce hearing,
respondent raised the issue after the family court did not rule on her motion for attorney’s fees. The
family court again deferred ruling on the motion. The family court subsequently directed each
party to pay his or her own attorney’s fees in the March 26, 2015, decree of divorce in a ruling
which respondent appealed to the circuit court. Therefore, we conclude that respondent preserved
the issue of her attorney’s fees for appeal.
(continued . . .)
9
. . . 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.
Id. at 538, 474 S.E.2d at 468. We find that neither the family court nor the circuit court, in
affirming the family court’s decision and denying respondent’s motion for attorney’s fees filed in
that court, addressed the Banker factors. We direct the family court to reevaluate whether
respondent is entitled to be awarded her attorney’s fees both in that court and in the circuit court.12
See Quicken Loans, Inc. v. Brown, 236 W.Va. 12, 26-27, 777 S.E.2d 581, 595-96 (2014) (stating
that lower court has authority to award attorney’s fees for appellate proceeding if directed to do
so).
In summary, and for the foregoing reasons, we reverse the circuit court’s October 1, 2015,
order affirming the family court’s March 26, 2015, decree of divorce. With regard to the March 26,
2015, decree of divorce, we affirm the family court’s decision with regard to the grounds upon
which it granted respondent a divorce, the allocation of parenting time between the parties, and
the freezing of petitioner’s equity in the marital home at its stipulated value of $350,000. We
reverse the family court’s decision and remand the case to the family court with regard to the
$12,000 in previously undesignated payments and respondent’s request for her attorney’s fees. On
remand, we direct the family court to (1) apportion the $12,000 between equitable distribution and
child support and to recalculate each party’s share of the marital estate, if necessary; and (2)
reevaluate whether respondent is entitled to be awarded her attorney’s fees with specific findings
regarding the factors listed in syllabus point four of Banker v. Banker, 196 W.Va. 535, 474 S.E.2d
465 (1996).
Affirmed, in part, Reversed, in part,
and Remanded with Directions.
ISSUED: October 28, 2016
12
Respondent also seeks to be awarded her attorney’s fees in this Court. It is unclear
whether respondent requests to be awarded her fees only with regard to her cross-appeal, or also
for having to respond to petitioner’s assignments of error. We note that we do not rule on the
merits of either issue on which we are remanding the case. Rather, we only direct the family court
to reevaluate those issues and make more detailed findings with regard to each. Therefore, we
decline to award respondent her attorney’s fees incurred in this Court.
10
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
11