Raymond H. v. Cammie H. ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2019 Term
_____________________ FILED
No. 18-0875 November 19, 2019
released at 3:00 p.m.
_____________________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Raymond H.
Respondent Below, Petitioner
v.
Cammie H.,
Petitioner Below, Respondent
___________________________________________________________
Appeal from the Circuit Court of Mercer County
The Honorable William J. Sadler, Judge
Civil Action No. 15-D-24
REVERSED, IN PART; AFFIRMED, IN PART, AND REMANDED
_________________________________________________________
Submitted: November 6, 2019
Filed: November 19, 2019
Anthony R. Veneri, Esq. Debra Kilgore, Esq.
Veneri Law Offices Burton & Kilgore, PLLC
Princeton, West Virginia Princeton, West Virginia
Counsel for Petitioner Counsel for Respondent
JUSTICE WORKMAN delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “Where the issue on an appeal from the circuit court is clearly a
question of law or involving an interpretation of a statute, we apply a de novo standard of
review.” Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
2. “When endeavoring to construe the meaning of an ambiguous statute,
we must be mindful that [t]he primary object in construing a statute is to ascertain and give
effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen’s Comp. Comm’r,
159 W. Va. 108, 219 S.E.2d 361 (1975).
3. Under West Virginia Code § 43-1-2, where a spouse conveys a
security interest in his or her separate real property by deed of trust and fails to give notice
of the conveyance to the non-title holding spouse within thirty days of the transaction, then
in the event of a subsequent divorce within five years of the conveyance, said separate real
property shall be deemed a part of the conveyancer’s marital property for purposes of
determining equitable distribution or awards of support, and assigned a value equal to its
fair market value, net of debt, at the time of the conveyance.
i
WORKMAN, JUSTICE:
In this divorce proceeding we are called upon to determine the standard for
valuation of real property, where said property was acquired by the respondent wife prior
to the parties’ marriage but is included in the marital estate for purposes of equitable
distribution by operation of W. Va. Code § 43-1-2(a) – (e). The family court judge initially
concluded that the fair market value of the wife’s separate property was attributable as a
marital asset because during the marriage and within five years prior to divorce, she
refinanced existing debt and incurred new debt, executing deeds of trusts secured by the
properties, without giving notice to petitioner husband of these transactions prior to or
within thirty days thereof. On appeal, the circuit court affirmed, in part, and reversed, in
part, concluding that while the wife’s separate party was properly included in the marital
estate, “[a] deed of trust grants rights to the mortgagee only up to the value of the secured
interest, no more,” and thus, the value of the real estate conveyed by a deed of trust “is not
the total market value of the property but only the value of the security interest.”
On remand, the family court recalculated equitable distribution pursuant to
the circuit court’s directive, with the result that the three properties subject to equitable
distribution were valued at $450,000.00, the combined value of the notes secured by the
deeds of trust, rather than $800,500.00, the combined fair market value of the properties.
The family court’s order was affirmed on appeal by the circuit court. It is from this order
1
that the husband now appeals. The wife cross-appeals on the factual issue of whether she
gave notice to the husband prior to or within thirty days of the transactions.
After careful review of the appendix record, the parties’ briefs and oral
arguments, and the applicable law, we reverse, in part, and affirm, in part, and remand with
directions.
I. Facts and Procedural Background
Petitioner Raymond H. (“the husband”) and Cammie H. (“the wife”)1 were
married on June 3, 2006, and separated on January 8, 2015. On January 9, 2015, the wife
filed a petition for divorce, and on April 9, 2015, the family court entered a bifurcated
divorce order, divorcing the parties but reserving financial issues for future proceedings.
The relevant facts underlying the financial issues are as follows. Prior to the marriage, the
wife acquired two pieces of real estate: the “Green Valley” property, purchased on
September 22, 2003, and the “Shenandoah Estates” property, purchased on August 2, 2004.
The Green Valley property was a business property which the wife used for operation of
her daycare business, Imagination Station, while the Shenandoah Estates property was a
1
Because this case involves sensitive matters, we follow our longstanding practice
of using initials to refer to the parties. See, e.g., State v. Edward Charles L., 183 W. Va.
641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
residential property which ultimately became the parties’ marital home.2 The parties agree
that both Shenandoah Estates and Green Valley would be classified as the wife’s separate
property but for the application of the statute at issue in this case, W. Va. Code § 43-1-2(a)
to -(e).
On May 5, 2011, while the parties were married, the wife purchased a third
parcel of real estate, the “Lyndale Avenue” property, for $15,000.00. The property is titled
in wife’s name only, and she made improvements thereto in order to establish another
daycare business, Creation Station, at the location. The parties agree that the Lyndale
Avenue property is, and has always been, marital property.
On June 15, 2012, during the marriage and within five years of the parties’
eventual divorce, the wife borrowed $200,000.00 from MCNB Bank. The funds borrowed
were used to refinance the debt then owing on the Shenandoah Estates property and to
provide approximately $39,000.00 to build an in-ground pool thereon. The $200,000.00
note was secured by a deed of trust which conveyed all of the Shenandoah Estates property
to a trustee “IN TRUST FOREVER to secure the payment of the Note which is payable to
the order of Lender, the beneficial owner of said Note….” The husband was not a party to
the transaction and did not sign the deed of trust, and the family court found as a fact, after
2
The parties dispute what percentage of improvement to the Shenandoah Estates
property was completed after the marriage, with the husband claiming 25% and the wife
claiming 1%. In light of our resolution of this case, see text infra, this issue is moot.
3
hearing all the evidence, that the wife did not notify him of the conveyance prior to or
within thirty days thereof. At the time of the parties’ separation, the balance owing on the
note was $151,810.38.
On May 9, 2013, again during the marriage and within five years of the
parties’ divorce, the wife borrowed $250,000.00 from MCNB Bank. With this money,
wife refinanced the debt then owing on the Green Valley property; refinanced the debt then
owing for improvements made on the Lyndale Avenue property; paid off a note secured by
other separate property owned by wife,3 and borrowed additional money to make
improvements to the Green Valley property. The $250,000.00 note was secured by a deed
of trust conveying both the Green Valley and Lyndale Avenue properties to the trustee in
language identical to that cited in the Shenandoah Estates refinancing transaction. Again,
the husband was not a party to the transaction and did not sign the deed of trust, and again,
the family court found as a fact that the wife did not notify him of the conveyance prior to
or within thirty days thereof. At the time of the parties’ separation, the balance owing on
the note was $220,093.00.
During the course of the parties’ divorce proceedings, the family court found
as a fact that at the time of execution of the June 15, 2012, deed of trust, the fair market
value of the Shenandoah Estates property was $370,500.00, and that at the time of
3
This property is not at issue in this case.
4
execution of the May 9, 2013 deed of trust, the fair market value of the Green Valley
property was $325,000.00 and the fair market value of the Lyndale Avenue property was
$105,000.00. The parties do not dispute these valuations.
In its initial order of June 15, 2017, the family court found as a fact that the
wife had not carried her burden of proof to show that she gave notice to petitioner husband
of either of the above transactions prior to or within 30 days thereof, as required by W. Va.
Code § 43-1-2(b) & (c). The court then held as a matter of law that the transactions were
“conveyances” of the Shenandoah and Green Valley properties pursuant to W. Va. Code §
43-1-2(a); and that accordingly, the “value of the real estate conveyed, as determined at the
time of the conveyance, shall be deemed a part of the conveyancer’s marital property for
purposes of determining equitable distribution,” W. Va. Code § 43-1-2(d). Finally, the
court held that the value of the real estate conveyed was the fair market value of the
properties, reasoning that “[t]he wife did not convey only a percentage of each property or
its value, but conveyed all of the property in trust as collateral for the loans.” (Emphasis in
original)
On appeal, the circuit court reversed solely on one ground:4 that the family
court abused its discretion in determining the value of the real estate conveyed by the deeds
of trust. The circuit court concluded that,
4
The circuit court held that the family court’s finding of fact on the issue of notice
was not clearly erroneous, and agreed that as a result, the wife’s separate property was to
5
The value of interest that conveyed real estate is not the
total market value of the property but only the value of the
security interest. A deed of trust grants rights to the mortgagee
only up to the value of the security interest, no more. Under
this statute, only the value of the real estate conveyed should
have been included in the marital property of the parties.
(Emphasis in original.)
On August 7, 2018, the family court issued its “Order on Remand,” setting the value
of all three properties, whose fair market value together totaled $800,500.00, as the amount
of the two notes secured by the two deeds of trust, which together totaled $450,000.00.
The family court again found as a fact that the wife did not give notice to the husband of
the deed of trust conveyances. On appeal, the circuit court affirmed, and this appeal and
cross-appeal followed.
II. Standard of Review
We have held that “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.” Stanley v. Stanley, 233 W. Va. 505, 507, 759 S.E.2d
be treated as marital property for purposes of equitable distribution pursuant to W. Va.
Code § 43-1-2(d).
6
452, 454 (2014) (citing Syl. Pt. 1, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803(2004)). In this latter regard, determining the meaning of language contained in W. Va.
Code § 43-1-2(d) “presents a pure question of law. Therefore, this court’s review is de
novo. ‘Where the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard of review.’ Syl. Pt. 1,
Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).” Davis Mem. Hosp.
v. State Tax Comm’r, 222 W. Va. 677, 681, 671 S.E.2d 682, 686 (2008).
III. Discussion
I.
Since this case presents an issue of statutory construction, we begin with the
text of the statute at issue, W. Va. Code § 43-1-2, Notice of Conveyance.
(a) For purposes of this section, ‘conveyance’ means a dispositive act
intended to create a property interest in land and includes the
creation of a security interest in real estate.
(b) Any married person who conveys an interest in real estate shall
notify his or her spouse prior to or within thirty days of the time of
the conveyance if the conveyance involves an interest in real estate
to which dower would have attached if the conveyance had been
made prior to the date of enactment of this statute.
(c) A person making a conveyance described in the previous sections
shall have the burden of proof to show compliance with this
section. Such burden shall be met either by:
(1) The signature of the spouse of the conveying party on the
conveyance instrument; or
(2) Such other forms of competent evidence as are admissible in a
court of general jurisdiction in this state under the rules of
evidence.
7
(d) When a married person fails to comply with the notification
requirements of this section, then in the event of a subsequent
divorce within five years of said conveyance, the value of the real
estate conveyed, as determined at the time of the conveyance, shall
be deemed a part of the conveyancer’s marital property for
purposes of determining equitable distribution or awards of
support, notwithstanding that any consideration for said interest in
the real estate may already be included in the marital property.
(e) Nothing in this section shall be construed to create a lien or claim
against the interest in real estate conveyed in violation of this
provision.
With respect to subsection (a) of the statute, the eminent West Virginia
property scholar John W. Fisher, II, notes that,
the statute specifically makes the creation of a security interest
in real estate a conveyance for the purpose of the statute.
Therefore, if a title holding spouse borrows money and uses
real estate as security, the non-title holding spouse must be
given notice. In other words, a scoundrel title holding spouse
cannot avoid the notification requirement by a loan transaction
as opposed to a sale.
John W. Fisher, II, Statutory Reform Revisited: Toward a Comprehensive Understanding
of the New Law of Intestate Succession and Elective Share, 96 W. Va. L. Rev. 85, 94
(1993). In the instant case, the parties agree that the wife’s execution of the deeds of trust
constituted a conveyance within the meaning of W. Va. Code § 42-1-2(a).
With respect to subsection (b) of the statute, in Stanley v. Stanley, 233 W.
Va. 505, 509, 759 S.E.2d 452, 456 (2014), this Court traced the statute’s history as set forth
in the above-cited law review article. Of particular relevance to the instant case, Dean
8
Fisher explained the concerns raised when the abolition of statutory dower, W. Va. Code
§ 43-1-1, was proposed:
It was not the at-death ‘benefits’ of dower the objectors wished
to preserve, but rather the marital leverage it provided. These
members of the Advisory Committee [of the West Virginia
Law Institute] were concerned that if dower were abolished it
would make it easier for a title holder of real property to sell
the property in anticipation of divorce and ‘hide’ the
replacement asset from his or her spouse …
In order to get the support of the entire advisory group on this
issue, it became important to find a solution that retained the
benefit discussed above without a corresponding detriment …
The important role that dower had played in marital situations
in which there was a possibility of divorce, namely,
notification to the non-title holding spouse of a conveyance of
real estate, was preserved in the provision of section 43-1-2.
(Emphasis in original); see also Rosier v. Rosier, 227 W. Va. 88, 105, 705 S.E.2d 595, 612
(2010) (“Prior to the effective date of this statute, a surviving spouse had an interest in his
or her spouse’s real estate holdings to the extent that he or she would be granted a lifetime
interest in one-third of the holdings upon the spouse’s death. The intent of the notice
provision was to make certain that transfers of real estate holdings solely in one spouse’s
name were known to the other spouse.”). In the instant case, the parties agree that the
properties at issue were those to which dower would have attached, and that the wife was
therefore required to give notice prior to or within thirty days of the conveyances.
With respect to subsection (c) of the statute, the parties agree that the wife
has the burden of proof to show her compliance with the notice requirement of subsection
(b), but disagree factually as to whether the wife carried the burden. The family court
9
found as a fact that she had not, and the circuit court held that this finding was not clearly
erroneous. This is the issue raised on cross-appeal by the wife; see Section II, infra.
With respect to subsection (d) of the statute, and specifically the statutory
language “the value of the real estate conveyed, as determined at the time of the
conveyance,” the family court initially construed “the value of the real estate conveyed” to
mean the fair market value of the real estate at the time the wife conveyed a security interest
therein by deed of trust, while the circuit court construed the words to mean the amount of
the security interest conveyed by the deed of trust, “nothing more.”5 A reasonable
argument can be made for both constructions of the statutory language, and we conclude
5
In this latter regard, this Court has held that “a ‘deed of trust’ is a deed that conveys
title to real property in trust as security until the grantor repays the loan. This type of deed
resembles a mortgage.” Arnold v. Palmer, 224 W. Va. 495, 502, 686 S.E.2d 725, 733
(2009) (citation and footnote omitted). Respondent wife argues that under West Virginia
law, a deed of trust is not a conveyance of property because “a trust creditor has no estate
in, or right of possession to, the trust property by virtue of the deed of trust. He has merely
a chose in action secured by the trust, which may be enforced only be sale of the property.”
Id. at 502-03, 686 S.E.2d at 732-33. See also Syl. Pt. 2, in part, Souders v. Leatherbury,
97 W. Va. 31 (1924) (“Creditors secured by deed of trust on the debtor’s property are
purchasers for value to the extent of their debts secured.”) The problem with this statement
is that it is correct but immaterial, as the issue in this case is not whether a deed of trust is
a conveyance of property to the trust creditor; in that regard, since before the founding of
this State and up to the present day, it has been the law that “[n]o estate of inheritance or
freehold, or for a term of more than five years, in lands … shall be created or conveyed
unless by deed or will.” W. Va. Code § 36-1-1. Rather, the issue herein is whether a deed
of trust falls within the definition of a “conveyance” as set forth in W. Va. Code § 43-1-
2(a): “a dispositive act intended to create a property interest in land and includes the
creation of a security interest in real estate.” As noted earlier, the parties agree that a deed
of trust is such a conveyance.
10
that “[i]n this case, the parties’ dueling, but reasonable, interpretations are indicative of the
statute’s ambiguity.” United Services Automobile Ass’n. v. Lucas, 233 W. Va. 68, 73, 754
S.E.2d 754, 759 (2014). Which construction of the statutory language is correct, if either,
is an issue of first impression for this Court.
We have held that “courts may not find ambiguity in statutory language
which laymen are readily able to comprehend, nor is it permissible to create an obscurity
or uncertainty in a statute by reading in an additional word of words.” Dunlap v.
Friedman’s, Inc., 213 W. Va. 394, 398, 582 S.E.2d 841, 845 (2003). We have further
explained that “a statute is open to construction only where the language used requires
interpretation because of ambiguity which renders it susceptible of two or more
constructions or of such doubtful or obscure meaning that reasonable minds might be
uncertain or disagree as to its meaning.” Davis Mem. Hosp. v. State Tax Com’r, 222 W.
Va. 677, 682-83, 671 S.E.2d 682, 687-88 (2008) (citing Sizemore v. State Farm Gen. Ins.
Co., 202 W. Va. 591, 596, 505 S.E.2d 654, 659 (1998)); see also United Services
Automobile Ass’n v. Lucas, 233 W. Va. 68, 72, 754 S.E.2d 754, 758 (2014) (“[a] statute is
ambiguous when the statute’s language connotes ‘doubtfulness, doubleness of meaning or
indistinctness or uncertainty of an expression’”) (internal citation omitted). In this case,
the ambiguity arises because W. Va. Code § 43-1-2(a) specifically includes “the creation
of a security interest” in the definition of “a dispositive act intended to create a property
interest in land,” while the “value of the real estate conveyed” language contained in the
11
remedy section of the statute, W. Va. Code § 43-1-2(d), seems to describe a fee simple
conveyance.
We begin our analysis with the well-established principle that when
endeavoring to construe the meaning of an ambiguous statute, we must be mindful that
“[t]he primary object in construing a statute is to ascertain and give effect to the intent of
the Legislature.” Syl. Pt. 1, Smith v. State Workmen’s Comp. Com’r, 159 W. Va. 108, 219
S.E.2d 361 (1975); see also Syl. Pt. 1, Ohio County Com’n v. Manchin, 171 W. Va. 552,
301 S.E.2d 183 (1983) (“Judicial interpretation of a statute is warranted only if the statute
is ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative
intent.”). In this case, thanks to the scholarly analysis of Dean Fisher, we have specific
information as to the intent behind the enactment of W. Va. Code § 43-1-2: “Dean Fisher’s
article makes it abundantly clear that the emphasis of [the statute] is on the non-title holding
spouse receiving notice when a title holding spouse conveys real estate…,” Stanley, 233
W. Va. at 509, 759 S.E.2d at 456, in order to preserve the benefit of “[t]he important role
that dower had played in marital situations in which there was a possibility of a divorce.”
Id. at 510, 759 S.E.2d at 457. Further, and of significance to our analysis, “[i]n order to
get the support of the entire advisory group on this issue [the abolition of dower], it became
important to find a solution that retained the benefit discussed above without a
corresponding detriment.” (Emphasis supplied.) With this framework in mind, we now
consider the lower courts’ dueling interpretations, which have been adopted by the
respective parties in this appeal.
12
The circuit court determined that when a deed of trust is given on property
to secure a loan, “the value of the real estate conveyed” under W. Va. Code § 43-1-2(d) is
the amount of the security interest, i.e., the loan. There are multiple problems with this
construction of the statutory language. First and foremost, the court’s construction totally
negates the beneficial purpose of subsection (d) of the statute, since the value of the title-
holding spouse’s real estate under this construction, the amount of the loan minus the
principal amount of the loan still outstanding, will be far less than the fair market value of
the property, net of debt; as a result, the transmutation of the title-holding spouse’s separate
property adds a negligible benefit, if any, to the other spouse’s share of equitable
distribution. Further, the circuit court’s construction of the statutory language not only fails
to give any benefit to the non-title holding spouse, as the Legislature intended, but also
effects a significant detriment, since he or she loses the benefit of any debt reduction and/or
appreciation of the spouse’s separate real estate during the marriage. The facts of the
instant case illustrate this point. Had the Shenandoah Estates and Green Valley properties
been treated as separate property, the husband’s share of equitable distribution would have
included principal reduction on the loans during the 8 ½ years of the marriage, as well as
any increased value to the properties due to marital efforts and expenditures. Additionally,
he would have been entitled to one half of the fair market value of the Lyndale Avenue
property at the time of separation. In short, the husband would have received substantially
more in the equitable distribution of the parties’ property if the wife’s separate properties
had not been transmuted into marital properties pursuant to the statute.
13
Second, adopting the logic of the circuit court, that a deed of trust conveys
only “a chose in action secured by the trust, which may be enforced only by sale of the
property…,” Arnold, 224 W. Va. at 502-03, 686 S.E.2d at 732-33 (emphasis supplied),
then a literal reading of the language of W. Va. Code § 43-1-2(d) would suggest that the
value of the real estate conveyed is zero. The circuit court attempted to solve this dilemma
by finding a middle ground: that the value of the real estate conveyed isn’t zero, but rather
is the amount of the loan secured by the deed of trust. The court cited no precedents from
this Court, or from any other court, holding that the value of real property is the amount of
its encumbrance, “no more,” and this Court declines to adopt such a rule.
Third, the circuit court’s construction of W. Va. Code § 43-1-2(d) requires
that in any case involving a conveyance by deed of trust, the statutory language of
subsection (d) must be rewritten to substitute “the value of the security interest conveyed”
for “the value of the real estate conveyed.” This violates our longstanding rule of statutory
construction that “[i]t is not for this Court arbitrarily to read into [a statute] that which it
does not say. Just as courts are not to eliminate through judicial interpretation words that
were purposely included, we are obliged not to add to statutes something the Legislature
purposely omitted.” Assoc. Press v. Canterbury, 224 W. Va. 708, 713, 688 S.E.2d 317,
322 (2004) (quoting Banker v. Banker, 196 W. Va. 535, 546-47, 474 S.E.2d 465, 476-77
(1996)).
14
Fourth, the circuit court’s construction renders the security interest language
in subsection (a) a superfluity: defining a conveyance as including a security interest in
subsection (a) serves absolutely no purpose if the conveyance thereof is treated differently
under subsection (d). We have held that “[i]t is always presumed that the legislature will
not enact a meaningless or useless statute.” Syl. Pt. 4, State ex rel. Hardesty v. Aracoma-
Chief Logan No. 4523, Veterans of Foreign Wars of the United States, 147 W. Va. 645, 129
S.E.2d 921 (1963). See also Foster Foundation v. Gainer, 228 W. Va. 99, 109, 717 S.E.2d
883, 893 (2011) (“This Court refuses to afford a statute an illogical construction.”)
In summary, the circuit court’s construction of the language at issue in W.
Va. Code § 43-1-2(d) is totally inconsistent with the intent of the Legislature, inconsistent
with established principles of statutory construction, and not supported by logic, Although
the family court’s approach has a certain round hole/square peg feel, since the
“conveyance” described in W. Va. Code § 43-1-2(a) & (d) does not fall neatly within the
analytical framework of our property law cases,6 we find that “taken in its entirety, [it] is
grammatically and logically plausible. It is not strained and it is reasonable.” Brooks v.
City of Weirton, 202 W. Va. 246, 257, 503 S.E.2d 814, 825 (1998). Indeed, it is the only
6
As noted previously, a literal reading of the language of W. Va. Code §43-1-2(d)
would suggest that the value of the real estate conveyed is zero, since a deed of trust
conveys only “a chose in action secured by the trust, which may be enforced only be sale
of the property.” Arnold, 224 W. Va. at 502-03, 686 S.E.2d at 732-33. This literal reading
would do violence to the intent of the Legislature and nullify a significant portion of the
language contained in subsection (a).
15
construction of the language found in subsection (b), “the value of the real estate
conveyed,” that does not nullify the specific provision in subsection (a), that a conveyance
“includes the creation of a security interest in real estate.” Further, it is the only
construction of the language that is faithful to the intent of the Legislature, specifically,
that “a spouse cannot avoid the notification requirement by a loan transaction as opposed
to a sale.”
Accordingly, we hold that under the provisions of West Virginia Code § 43-
1-2(a) – (e), where a spouse conveys a security interest in his or her separate real property
by deed of trust and fails to give notice of the conveyance to the non-title holding spouse
within thirty days of the transaction, then in the event of a subsequent divorce within five
years of the conveyance, said separate real property shall be deemed a part of the
conveyancer’s marital property for purposes of determining equitable distribution or
awards of support, and assigned a value equal to its fair market value, net of debt, at the
time of the conveyance. We therefore remand this case to the Circuit Court of Mercer
County, West Virginia, for remand to the Family Court of Mercer County for a
recalculation of equitable support as follows: The wife’s assets shall include the
Shenandoah property, valued at $370,500.00, the Green Valley property, valued at
$325,000.00, and the Lyndale Avenue property, valued at $105,000.00; the wife’s debts
shall include the Shenandoah mortgage, $151,810.38 at time of separation, and the Green
Valley/Lyndale mortgage, $220,093.00 at time of separation. All other calculations shall
remain unchanged.
16
II.
In her cross-appeal, the wife alleges that she gave notice of the Shenandoah
Estates and Green Valley transactions to the husband prior to or within thirty days thereof,
and that family court’s factual finding to the contrary, affirmed on appeal by the circuit
court, is clearly erroneous. In this regard, we have held that,
[a] finding is clearly erroneous when, although there is
evidence to support the finding, the reviewing court on the
entire evidence is left with the definite and firm conviction that
a mistake has been committed. However, a reviewing court
may not overturn a finding simply because it would have
decided the case differently, and it must affirm a finding if the
circuit court’s account of the evidence is plausible in light of
the record viewed in its entirety.
Syl. Pt. 4, in part, In re L.M., 235 W. Va. 436, 774 S.E.2d 517 (2015) (citing Syl. Pt. 1, In
the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996)).
This issue requires little discussion. In her brief and at oral argument, the
wife marshalled the evidence which supports her position, including evidence that she told
the husband she was going to refinance, that the paperwork was left in areas of the home
to which the husband had easy access, and that the husband worked in banking.
Additionally, the wife recounted evidence which, if accepted as true, tended to impeach
the husband’s testimony that he didn’t know anything about the transactions until he visited
the county record room during the course of the proceedings. Most if not all of this
evidence, even if accepted as true, may be relevant to whether the husband should have
17
known of, or might have learned of, the loans and deeds of trusts; however, none of it
proves that the wife notified him of the transactions prior to or within thirty days thereof,
which is what is required under W. Va. Code § 43-1-2(b).
In both the initial and final orders issued by the family court, the court
exhaustively detailed the parties’ evidence on the issue of notice, finding in relevant part
that (1) prior to visiting the Office of the County Clerk with his attorney, the husband did
not know that the deeds of trust existed; (2) the wife testified during the final hearing that
she did not discuss the deeds of trust with her husband;7 (3) the wife testified in deposition
that she could not remember any discussions with the husband about refinancing; (4) the
wife never established that she gave the husband notice of the conveyances; (5) the
reliability of the wife’s testimony was suspect on the notice issue, because “if the wife
could not remember obtaining a $65,000.00 loan in July 2014 or signing a deed of trust
regarding the same, how could she remember discussing ‘refinancing’ and deeds of trust
for the older loans?; (6) the fact that husband saw an appraiser at the marital residence does
not prove knowledge about the new deed of trust on the property; and (7) the husband’s
Q: How about with regard to the refinancing? We’ve got all of the Deeds of Trust.
7
Did you do all that on your own?
A: I did.
Q: Can you even remember discussing any of this with him?
A: No.
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testimony and evidence established that he learned about the refinancing after the parties’
separation, which was long after the thirty day statutory window for notice.
Our review of the appendix record, and our review of the family court’s
discussion of the relevant evidence on the notice issue (occupying seventeen pages of the
court’s opinion), demonstrates that the “court’s account of the evidence is plausible in light
of the record viewed in its entirety,” Syl. Pt. 4, in part, In re L.M., and was therefore
properly affirmed by the circuit court.
IV. Conclusion
Accordingly, the decision of the Circuit Court of Mercer County is reversed,
in part, affirmed, in part, and remanded for further proceedings consistent with this opinion.
Reversed, in part; affirmed, in part, and remanded.
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