Kimberly Jo Cole v. Belinda Anderson, of the Estate of Dallas Ray Simons ( 2022 )

FILED
September 20, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Kimberly Jo Cole,
Petitioner Below, Petitioner
vs.) No. 21-0488 (Jackson County 21-D-AP-3)
Belinda Anderson, Executrix of the
Estate of Dallas Ray Simons, deceased,
Respondent Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Kimberly Jo Cole appeals the June 2, 2021, order of the
Circuit Court of Jackson County refusing her appeal from the April 26, 2021, agreed final order
of the Family Court of Jackson County that granted petitioner a divorce from Respondent Dallas
Ray Simons 1 and provided for the equitable distribution of marital assets between the parties. On
appeal, petitioner challenges the equitable distribution. Respondent, by counsel Leah R.
Chappell, filed a summary response. Petitioner filed a reply.
The Court has considered petitioner’s brief and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, petitioner’s brief, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
The parties were married in Jackson County on December 24, 1985, and they separated
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Petitioner’s former husband, Dallas Ray Simons, was the respondent in petitioner’s
appeal at the time of its filing. Thereafter, Dallas Ray Simons passed away, and, by order entered
on December 14, 2021, this Court substituted Belinda Anderson, Executrix of the Estate of
Dallas Ray Simons, as the respondent. As petitioner’s appeal arises out of a divorce proceeding,
for simplicity, this Court will treat Dallas Ray Simons as the respondent herein.
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on November 1, 2019. At the time of the parties’ separation, petitioner was sixty years old, and
respondent was seventy-nine years old. Thereafter, petitioner filed for divorce in the Family
Court of Jackson County and asserted that the marital residence constituted her sole and separate
property due to her purchase of the real property prior to the parties’ marriage.
On March 23, 2020, the family court held an evidentiary hearing to determine whether
the marital residence constituted marital property. Petitioner bought the real property known as
385 Panther Lane in 1982 prior to the parties’ marriage. Beginning in 1984, the parties lived
together on the property in a “trailer” that petitioner obtained from her father. Following the
parties’ marriage in 1985, a house was eventually constructed on the property. Respondent
testified at the March 23, 2020, hearing that he aided in the construction of the house. The family
court, by order entered on October 27, 2020, determined that the house constructed after the
marriage constituted marital property. Respondent had the marital residence appraised, and it
was valued at $20,000.
Also, at the March 23, 2020, hearing, respondent raised the issue of the marital portion of
the retirement benefits being paid to petitioner. Respondent asserted that approximately 75% of
petitioner’s retirement constituted marital property. The family court, by an order entered on
October 21, 2021, found that petitioner receives $1,520 per month in retirement benefits from the
West Virginia Consolidated Public Retirement Board (“retirement board”). The family court
further found that petitioner began her state employment in November of 1976 and retired in
November 2013. Accordingly, due to the parties’ marriage on December 24, 1985, the family
court determined that 75.5% of petitioner’s retirement 2 constituted marital property and that
75.5% of $1,520 is $1,146.85. Therefore, the family court directed petitioner to pay respondent
the monthly sum of $573.42, which represents his half of the marital portion of petitioner’s
retirement, until further order of the court. 3
On March 19, 2021, the family court held the final divorce hearing and noted that a
proposed agreed final order was before it. The family court inquired of the parties as to whether
they had reached an agreement to settle their divorce case. Petitioner informed the family court
that a property settlement agreement had been reached. Accordingly, after each party was sworn,
petitioner provided testimony regarding the terms of the property settlement agreement. Pursuant
to the parties’ agreement, petitioner would retain the following items as her sole personal
property: (1) petitioner’s jewelry; (2) funds in all bank accounts held in petitioner’s name other
2
The parties were married for approximately twenty-eight of petitioner’s thirty-seven
years of employment with the state, which constitutes approximately 75.5% of the time
petitioner was employed by the state.
3
The record reflects that at least one additional hearing occurred between the March 23,
2020, hearing and the entry of the family court’s October 21, 2021, and October 27, 2020,
orders. However, the March 23, 2020, hearing transcript is the only hearing transcript that
petitioner includes in her appendix record. This Court, on its own motion, has obtained the video
recording of the March 19, 2021, final divorce hearing.
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than the City National Bank account held jointly with respondent; (3) other personal property in
petitioner’s possession and furnishings at the marital residence, except as otherwise noted; and
(4) a Nissan Sentra that respondent would return to petitioner. Petitioner testified that the parties’
agreement further provided that the funds in the parties’ joint account at City National Bank
belonged to respondent and that respondent will be allowed to retrieve the following items from
the marital residence: (a) the remainder of respondent’s clothes; (b) a pumpkin cookie jar that
belonged to respondent’s mother; (c) respondent’s guns and gun cabinet; (d) a Ferguson 30
tractor; (e) a Suzuki Quad-Runner four-wheeler; and (f) a Toyota Tacoma.
Petitioner also affirmed that, pursuant to the parties’ agreement, petitioner would retain
the marital residence as her sole property, and the marital residence’s appraised value would be
included in the distribution of marital assets. Petitioner testified that, to equalize the distribution
of marital assets, she would owe respondent $8,485. However, petitioner inquired as to whether
the parties’ federal and state tax refunds for 2020 were still in respondent’s counsel’s trust
account. After checking with her staff, respondent’s counsel represented that the 2020 tax
refunds remained in her trust account and had not been included in the figures set forth in the
proposed agreed final order. 4 Therefore, the parties agreed at the hearing that they would need to
include the total amount of the 2020 tax refunds ($1,375) in the equitable distribution. Petitioner
proposed that respondent retain petitioner’s half of the 2020 tax refunds, provided that she could
make fewer payments to respondent to equalize the distribution of assets. Respondent agreed to
petitioner’s proposal.
The parties agreed that petitioner owed respondent $4,472 to equalize the distribution of
assets, excluding petitioner’s retirement. In order to account for petitioner’s monthly receipt of
her retirement benefits prior to the entry of the family court’s October 21, 2021, order, the parties
further agreed that petitioner owed respondent $4,013 for his half of the marital portion of
petitioner’s retirement for the time period that the October 21, 2021, order was not in effect.
Accordingly, petitioner testified that she understood that respondent would have a judgment
against her in the total amount of the equalization payments (i.e., $4,472 plus $4,013, which
equals $8,485). Thereafter, the parties agreed that petitioner received a credit in the amount of
her half of the 2020 tax refunds ($687.50). Thus, due to that credit, the judgment entered against
petitioner was $7,797.50 instead of $8,485 (i.e., $8,485 minus $687.50).
Accordingly, whereas the parties’ proposed agreed final order provided that petitioner
would make nineteen payments to respondent in the amount of $426.58 and a twentieth payment
in the amount of $379.18, the agreed final order as entered by the family court provided that
petitioner would make eighteen payments in the amount of $426.58 and a nineteenth payment in
the amount of $119.06. Therefore, the modification of the parties’ agreement at the final divorce
hearing resulted in petitioner having to make one fewer payment to respondent and having to pay
4
For the March 19, 2021, final divorce hearing, each of the parties appeared from his or
her respective counsel’s office via video conferencing.
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a lesser amount in the final payment to equalize the distribution of assets. 5
The parties agreed that there would be no interest on the judgment awarded to respondent
unless petitioner failed to make an equalization payment. In the event that petitioner failed to
make a payment, the parties’ agreement provided that an interest rate of 4% would apply to the
remaining judgment amount. Petitioner testified that, pursuant to the agreement, should she fail
to make a payment, respondent could use legal methods to collect the amount(s) that she owed
him.
Separate from the equalization payments, petitioner further testified that the parties
agreed that she would continue to comply with the family court’s October 21, 2021, order and
pay respondent the monthly sum of $573.42, representing his half of the marital portion of
petitioner’s retirement. Petitioner testified that, pursuant to the parties’ agreement, the family
court would enter, and the retirement board would implement, a qualified domestic relations
order (“QDRO”) to divide the marital portion of her retirement between the parties. Once the
QDRO was entered and implemented, petitioner’s obligation to pay respondent the monthly sum
of $573.42, pursuant to the October 21, 2021, order, would cease as respondent would receive
his half of the marital portion of petitioner’s retirement directly from the retirement board.
Finally, petitioner testified that she had ample opportunity to discuss the parties’
agreement with her counsel. Petitioner affirmed that she, her counsel, and her counsel’s paralegal
sat down and “ran the numbers.” Accordingly, petitioner further testified that she entered into the
parties’ agreement knowingly and intelligently. Respondent thereafter provided testimony which
was consistent with petitioner’s testimony regarding the parties’ agreement, including the
modification made at the final divorce hearing resulting in (1) a lower money judgment being
entered against petitioner; (2) petitioner having to make one fewer equalization payment to
respondent; and (3) petitioner having to pay a lesser amount in the final equalization payment.
Therefore, at the end of the hearing, in addition to granting the parties a divorce due to
irreconcilable differences, the family court found that the parties had placed their property
settlement agreement on the record and that they each entered into the agreement freely,
voluntarily, and intelligently. The family court determined that the parties’ property settlement
agreement was “fair and equitable within the meaning of West Virginia law.” Accordingly, the
family court adopted the parties’ property settlement agreement.
On April 26, 2021, the family court entered the agreed final order that reflects the
modifications the parties made to their property settlement agreement at the final divorce
hearing. The family court noted that, at the hearing, the parties announced that “they had reached
an agreement on all matters.” Specifically, the family court found that “[t]he parties have entered
into a property settlement agreement which was spread upon the record and is reduced to writing
in this [o]rder.” The family court further found:
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With regard to debts, the parties agreed that petitioner would carry no debts from the
marriage and that the only debt belonging to respondent was the cost of the appraisal of the
marital residence, which respondent stated was his sole debt.
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The parties understand the terms of the agreement. The agreement was entered
into voluntarily and was not obtained by fraud, duress, or other unconscionable
conduct. The agreement is judicially enforceable and is incorporated into this
order. 6 The agreement is fair and equitable[,] and the [c]ourt [o]rders the parties
to abide by its terms. The parties have made financial disclosures sufficient to
justify the court’s findings and conclusions and have negotiated their agreement
with the assistance of counsel.
(Footnote added.) On May 26, 2021, petitioner appealed the family court’s agreed final order to
the Circuit Court of Jackson County. The circuit court, by order entered on June 2, 2021, refused
petitioner’s appeal, finding that petitioner’s skeletal argument failed to raise “any cognizable
assignment of error committed by the [f]amily [c]ourt.”
In reviewing a circuit court order refusing an appeal from a family court order, “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., in part, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803(2004).
On appeal, the parties dispute whether petitioner has complied with Rule 10(c)(7) of the
West Virginia Rules of Appellate Procedure, which provides, in pertinent part:
Argument: The brief must contain an argument exhibiting clearly the points of
fact and law presented, the standard of review applicable, and citing the
authorities relied on, under headings that correspond with the assignments of
error. The argument must contain appropriate and specific citations to the record
on appeal, including citations that pinpoint when and how the issues in the
assignments of error were presented to the lower tribunal. The . . . Supreme Court
may disregard errors that are not adequately supported by specific references to
the record on appeal.
As we previously have stated, “[a] skeletal ‘argument,’ really nothing more than an assertion,
does not preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.”
State, Dep't of Health and Human Res., Child Advocate Office on Behalf of Robert Michael B. v.
Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (quoting United States v.
Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
Based upon our review of petitioner’s arguments, we find them to be disorganized and
confusing. In addition, respondent specifically argues that petitioner raises issues on appeal that
she failed to raise before the family court or circuit court. We have stated that “[t]his Court will
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Pursuant to the family court’s April 26, 2021, agreed final order, the parties’ property
settlement agreement “is binding on the parties’ heirs, successors, assigns, executors[,] and
administrators.”
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not pass on a nonjurisdictional question which has not been decided by the trial court in the first
instance.” Watts v. Ballard, 238 W. Va. 730, 735 n.7, 798 S.E.2d 856, 861 n.7 (2017) (quoting
Syl. Pt. 2, Sands v. Sec. Trust Co., 143 W. Va. 522, 102 S.E.2d 733 (1958)).
However, “[w]hen a litigant chooses to represent [her]self, it is the duty of the trial court
[and this Court] to insure fairness, allowing reasonable accommodations for the [self-
represented] litigant so long as no harm is done an adverse party[.]” State ex rel. Dillon v. Egnor,
188 W. Va. 221, 227, 423 S.E.2d 624, 630 (1992) (internal quotations and citations omitted).
Despite the disorganized and confusing nature of her arguments, it is obvious that petitioner
challenges the equitable distribution of marital assets. We address that single issue herein. See
Franklin v. Pence, 128 W. Va. 353, 356, 36 S.E.2d 505, 508 (1945) (recognizing that the
assignments of error were general in nature making it “difficult to determine the exact points
relied upon for reversal[,]” and causing the Court to rely upon “statements in the brief” that were
“considered as indicating the main grounds of attack upon the judgment”).
At the final divorce hearing, the family court had before it a proposed agreed final order
as the parties had reached a property settlement agreement. The parties spread the terms of their
agreement upon the record through the parties’ testimony. We have held that,
“[e]ven though there is an express legislative preference in divorce cases
for a separation agreement to be in writing and signed by the parties, we do not
prohibit per se the practice of orally placing on the record the terms of a
separation agreement if certain conditions are met.” Syl. Pt. 1, Gangopadhyay v.
Gangopadhyay, 184 W. Va. 695, 403 S.E.2d 712 (1991).
“Where an oral separation agreement is dictated on the record, additional
inquiries must be made by . . . the family [court] to ascertain that the parties
understand its terms and have voluntarily agreed to them without any coercion.
Furthermore, . . . the family [court] must find that the terms of the agreement are
fair and equitable. This latter inquiry requires a disclosure of the financial
background of the parties sufficient to justify the conclusion of . . . the family
[court].” Syl. Pt. 2, Gangopadhyay v. Gangopadhyay, 184 W. Va. 695, 403
S.E.2d 712 (1991).
Syl. Pts. 1 and 2, Summers v. Summers, 186 W. Va. 635, 413 S.E.2d 692 (1991).
Here, petitioner argues that the marital residence constituted her separate property—not a
marital asset—and she also complains about the payments she had to make to respondent for his
portion of petitioner’s retirement prior to the implementation of the QDRO. We find that
petitioner’s arguments on appeal are contrary to the property settlement agreement that,
according to petitioner’s testimony, she entered into knowingly and intelligently. Specifically,
petitioner testified that she, her counsel, and her counsel’s paralegal sat down and “ran the
numbers.” Respondent similarly testified that the parties came to an agreement regarding
“money matters.” After thoroughly reviewing the recording of the final divorce hearing and the
family court’s agreed final order, we find no cause to disturb the family court’s findings that
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“[t]he parties understand the terms of the [property settlement] agreement” and that “[t]he
agreement was entered into voluntarily and was not obtained by fraud, duress, or other
unconscionable conduct.”
We further concur with the family court’s findings that the parties’ property settlement
agreement was fair and equitable. Pursuant to an appraisal, the marital residence was valued at
$20,000. The family court, in its October 21, 2020, order, calculated the marital portion of
petitioner’s retirement. Upon inquiry from petitioner at the final divorce hearing, it was
discovered that the parties needed to include their 2020 tax refunds in the equitable distribution.
Thereafter, the parties agreed to modify the property settlement agreement in petitioner’s favor,
resulting in (1) a lower money judgment being entered against petitioner; (2) petitioner having to
make one fewer equalization payment to respondent; and (3) petitioner having to pay a lesser
amount in the final equalization payment. Accordingly, we find that the family court did not err
in determining that “[t]he parties have made financial disclosures sufficient to justify” its
findings that the property settlement agreement was fair and equitable. Thus, we conclude that
the family court properly adopted and incorporated the parties’ property settlement agreement, as
modified at the final divorce hearing, into the agreed final order. Therefore, we further conclude
that the circuit court properly refused petitioner’s appeal from the family court’s agreed final
order.
For the foregoing reasons, we affirm the circuit court’s June 2, 2021, order refusing
petitioner’s appeal from the family court’s April 26, 2021, agreed final order granting the parties
a divorce and providing for the equitable distribution of marital assets.
Affirmed.
ISSUED: September 20, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice C. Haley Bunn
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