Gloria Cowger v. Dennis Cowger , 810 S.E.2d 921 ( 2018 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term
FILED
February 28, 2018
No. 17-0125 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
GLORIA COWGER,
Petitioner
v.
DENNIS COWGER,
Respondent
Appeal from the Circuit Court of Webster County
The Honorable Richard A. Facemire, Judge
Civil Action No. 15-D-24
REVERSED AND REMANDED
WITH DIRECTIONS
Submitted: January 16, 2018
Filed: February 28, 2018
Dominque Razzook, Esq. Jared S. Frame, Esq.
Legal Aid of West Virginia Sutton, West Virginia
Charleston, West Virginia Attorney for the Respondent
Attorney for the Petitioner
JUSTICE WORKMAN 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. “‘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. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d
177 (1996).” Syl. Pt. 3, Estate of Bossio v. Bossio, 237 W. Va. 130, 785 S.E.2d 836 (2016).
3. “Under the clearly erroneous standard, if the findings of fact and the
inferences drawn by a family [court judge] are supported by substantial evidence, such
findings and inferences may not be overturned even if a circuit court may be inclined to make
different findings or draw contrary inferences.” Syl. Pt. 3, Stephen L.H. v. Sherry L.H., 195
W. Va. 384, 465 S.E.2d 841 (1995).
i
4. “Questions relating to alimony and to the maintenance and custody of the
children are within the sound discretion of the court and its action with respect to such
matters will not be disturbed on appeal unless it clearly appears that such discretion has been
abused.” Syllabus, Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977).
ii
Workman, Chief Justice:
This is the appeal of Petitioner Gloria Cowger (“the Wife”) from the January
10, 2017, order of the Circuit Court of Webster County, West Virginia, reducing the amount
of permanent alimony to be paid to her by Respondent Dennis Cowger (“the Husband”).
The family court, after hearing the evidence, ordered the Husband to pay permanent alimony
to the Wife in the amount of $1,500 per month. But the circuit court, upon the Husband’s
appeal, reversed the permanent alimony award and remanded the case to the family court for
calculation of spousal support “in accordance with” its order. On remand, the family court
recalculated the permanent alimony award, ordering the Husband to pay the Wife $439.02
per month. The Wife appealed the reduced permanent alimony award to the circuit court,
which refused the petition by order entered January 10, 2017. The Wife contends that
1)“[t]he Circuit Court erred when it forced the Family Court to find that Husband’s business
earned zero cash income, when Husband admitted a substantial portion of his business’
income was received in cash[;]” and 2)“[t]he Circuit Court erred in holding that the
Husband’s testimony about his unrecorded labor costs must be accepted despite the Family
Court’s multiple findings of the Husband’s fraudulent representations and lack of
credibility.” Based upon a review of the parties’ briefs and arguments, the appendix record,
and all other matters submitted before the Court, we reverse the circuit court and remand the
1
case for reinstatement of the family court’s December 16, 2015, order setting the permanent
alimony award to be paid by the Husband to the Wife at $1,500 per month.
I. Factual and Procedural History
The permanent alimony award was the only issue litigated before the family
court.1 The parties were married for almost thirty-four years.2 They separated on April 18,
2015, and were granted a divorce by the family court, based upon irreconcilable differences.
The Wife has a GED and only worked outside the home for a period of about four years
during the course of the marriage. Her jobs were part-time, minimum wage and sporadic.
The Wife had been out of the workforce for eleven years at the time of the divorce. She
testified that she had been a stay-at-home mom when their children were minors. Since that
time she continued her work around the home, which included mowing the lawn, stacking
hay, paying the bills, doing laundry and taking care of her horses. The Wife’s only income
at the time of the final divorce hearing was the $500 a month she was receiving in temporary
alimony as she had been unable to find employment despite her efforts. Nevertheless, the
family court found that the Wife “has the ability to earn a minimum wage income of
$1,386.67 gross per month (or about $1,178.67 net per month), which minimum wage
1
The parties reached agreement regarding equitable distribution and attorney’s fees,
so those were not issues before the courts below.
2
At the time of the divorce, the Wife was fifty-six years old and the Husband was
fifty-eight years old. There were no minor children at the time of the divorce.
2
income should be imputed to her in the determination of her need for alimony from” the
Husband. The family court also found the Wife’s monthly expenses to be $2,531.56. Thus,
the family court found that the Wife still had a need of at least $1,352.89.3
The Husband has worked as a school bus driver for the Webster County Board
of Education (“Board”) for over thirty-two years, a job he performs ten months of the year.
In 2015, the Husband earned $32,532.50 (gross)from his job with the Board, which, after
deductions, netted a monthly income of $1,592.35 or total yearly net of $19,108.18.4 The
family court found the Husband’s monthly expenses to be $2,670. The Husband also has
operated his business D.C. Services, which does all types of construction services, for the
past twenty-eight years.
The primary focus of the evidence introduced before the family court was
directed at D.C. Services and how much income the Husband actually realized from his
business. The Husband did not keep records regarding either his costs expended or income
generated with his business.
3
The Husband did not object to these findings regarding the Wife’s finances.
4
The Wife testified that the income from the Husband’s Board employment was
deposited directly into their joint checking account and all their bills were paid with this
income.
3
The Wife testified that she previously helped with the business, “[a]nd then he
just refused to let me help.” She did not assist at all with the finances of the business. The
Wife testified that the Husband’s business income was paid by both cash and check and was
deposited into a checking account established for the business only. The Husband had sole
access to the account, as the Wife was not named or a signatory on the account.5 The Wife
testified that she received an allowance from the Husband of $300 per week in cash, which
was corroborated by the Husband’s testimony that in 20156 he was giving the Wife “roughly
three hundred a week.”7 This allowance did not come from their joint checking account,
according to the Wife.
The Wife also provided an expert witness, C. Page Hamrick, who testified
about the Husband’s business. Mr. Hamrick essentially took the monthly deposits into the
account for D.C. Services in calendar years 2011, 2012, 2013 and 2014, and multiplied those
yearly deposits by fifty percent to arrive at the yearly income (after business deductions) from
D.C. Services. According to Mr. Hamrick, the fifty percent total was “a very typical . . .
5
There was another account for the guttering services the Husband provided through
his business. According to the Wife, she did have access to this account. There was no other
specific evidence about this account offered at the hearing in family court.
6
The parties last lived together on or about April 18, 2015.
7
The Wife stated that she had been receiving $500 per week from the Husband, but
that the amount had reduced. There was no specific time given by the Wife as to when the
reduction had occurred.
4
percentage for a small business like this.” But the family court found much of the Wife’s
expert’s report and testimony not credible because the expert failed to interview the Husband,
who was the only person who operated and kept records for D.C. Services, failed to review
actual deposits and withdrawals from the D.C. Services bank account and failed to support
using a fifty percent formula to calculate what the Husband’s net income was in the years
examined. The family court, however, did find reliable the expert’s recognition that the
income for D.C. Services was underestimated because the Husband never reported his
expenses and labor costs, that the records for the Husband’s business were sparse and the
numbers were “utterly inaccurate[,]” and that the parties had inaccurately reported income
from the business to both the state and federal governments.
After hearing the expert’s testimony and recognizing the quagmire that existed
regarding the Husband’s business income due to the woefully incomplete and inaccurate
records, the family court directed the Husband to submit the bank statements from his
business, showing all deposits and withdrawals for the business account for 2013.8 That year
was not in dispute by the parties, as the family court found it to be “the last year . . . [the
Wife] signed the joint tax returns filed by the parties . . . .”9 According to the family court,
8
There was no objection raised by the Husband regarding either the production of the
bank records of the business for 2013 requested by the family court or the review of those
records by the family court.
9
The Wife testified that she refused to sign the joint tax return for 2014 as she had
(continued...)
5
it simply could not “be determined with any certainty as to whether . . . [the Husband]
deposited all of his gross receipts, both checks and cash, into the D.C. Services account.”
Nonetheless, the family court “believe[d] the detailed review of the 2013 records (as well as
the detailed review of the 2015 records through April, 2015) produce[d] a clearer (though
still clouded) picture of . . . [the Husband’s] income from D.C. Services.”
The Husband testified that he had reviewed the bank statements and
“believe[d] that the 2013 bank account statements are an accurate reflection of the business
that D[.]C[.] Services did in 2013[.]” The Husband testified that he paid his employees in
cash. According to the Husband, he had four employees in 2013, three of whom earned $12
an hour and one who earned $10 an hour; however, there were no records regarding how
many hours these individuals worked or how much money they were paid for the work they
did. Further, in 2013, the Husband submitted a letter to the Contractor’s Licensing Board in
which he claimed that he only had part-time employees and that two individuals, who during
hearing the Husband testified to being his employees, “‘occasionally volunteer to help
Dennis Cowger as they are all good friends.’” The Husband confirmed that the letter was
his company’s means of informing the agency that two of his employees were not paid in
2013 and that he did this to protect his employees. Further, the Husband testified that he did
9
(...continued)
received the report from Mr. Hamrick and she “did not know there was that much money
going through that account.” The Wife testified that she had found documents, invoices from
previous years, which indicated discrepancies in what had been reported on tax returns.
6
not identify any contract labor expenses or expenses for supplies for his business in his taxes
for 2013. The Husband also testified that there were no 1099’s or W-4’s that were prepared
by or for his employees. The Husband also did not file a Wage Bond Affidavit Status about
his employees with the Department of Labor. But the Husband also testified that he paid his
employees in cash and that his labor costs were $25,087 in 2013, or about 46.45 percent of
his net income.10 During cross-examination when the Husband was questioned, “But . . .
now that[] it[’]s more in your favor you want to change your mind and say that you do have
employees and you have had them since 2012[,]” he responded, “Correct.”
Additionally, the Husband testified that he kept, on the average, about $400 a
week in cash from his business for himself. Even though the Husband maintained that he
was earning less in 2015, only taking home about $300 a week from the business, the family
court found this unsupported testimony not credible.11 Despite the Husband’s testimony, he
10
The Wife argued that the Husband could not claim more than $6,000 from this
income as labor costs, because under State law if an employer pays wages in excess of that
amount per quarter, then certain documents must be filed. Thus, the Wife only attributed
about 11.1 percent of the net taxable income available to labor costs. Just as the family court
discounted the labor costs the Husband claimed from the business, the family court
discredited the low percentage of labor costs offered by the Wife “[b]ecause . . . [the Wife]
admitted her knowledge that . . . [the Husband] was paying his employees in cash ‘under the
table,’ this Court seriously doubts that . . . [the Husband’s] labor costs were as low” as the
percentage argued by the Wife.
11
The family court’s credibility determination on this issue stemmed from the deposits
made into the D.C. Services bank account for the first four months of 2015, which totaled
$50,606.29. As the family court found, “factored over the course of the year [this amount]
(continued...)
7
indicated on his financial statement submitted as part of the divorce action that his self-
employment income each month was $0. The Husband also stated about the income he
received and the costs he paid that he had “no documents” to show what kind of income he
made from his business.
The family court also undertook its own examination of the D.C. Services bank
records for 2013 that the Husband was ordered to submit to the court and found that
$132,243.56 was deposited into the business account that year, which amount was not
disputed by the Husband. The family court further found that from this total, checks totaling
$126,637.80 were written on this account and from that amount, checks totaling $46,159
were written by the Husband to himself. Other checks totaling $68,249.90 were written to
businesses such as Lowe’s, Casey’s Hometown Hardware and Nicholas County Solid Waste
Authority. There were also checks totaling $9,986.54, which were written to entities like gas
stations and insurance companies. The family court found that the amounts of $68,249.90
and $9,986.54, respectively, should be deducted as business expenses, which left a total of
$54,007.12. This total, however, did not reflect any labor costs.
11
(...continued)
would average $151,818.87, which is well in excess of the 2013 deposits of $132,243.56[].”
Further, the family court noted that from the 2015 deposits, the Husband had written checks
to himself totaling $16,206.01, which when averaged for the year would be $48,618.63,
which sum also exceeded the amount he wrote to himself from the business account in 2013.
8
Because the family court did not find credible either the Wife’s or the
Husband’s calculations and because there was simply no way to calculate actual labor costs
due to the lack of records, the Court found “it fair to average the differing labor cost
percentages (from the percentage offered by the Wife and the percentage offered by the
Husband), resulting in a fair labor percentage of 28.775 percent.” As the family court
reasoned:
Applying that percentage to the net taxable income of
$54,0071.21 leaves a labor cost of $15,540.57, which would
reduce the net taxable income in 2013 from D.C. Services to
$38,466.64 (or a gross per month of $3,205.55, or an
approximate net monthly income of $2,404.16). The net taxable
income of $38,466.64 realized in 2013 under this analysis is
29.09 percent of the total 2013 receipts.
The family court, multiplying the 29.09 percent figure to the gross receipts in 2011, 2012,
2014, as well as the available receipts from 2015, determined that the average income for
D.C. Services for the years 2011 through 2015 was $37,774.38, “which average amount is
very close to the $38,466.64 amount realized in 2013 under the very detailed analysis” of that
year undertaken by the family court. The family court therefore found that the Husband has
and will have “in the future the ability to earn $37,774.38 per year from D.C. Services (or a
gross per month of $3,147.86, which is an approximate net monthly income of $2,360.90).”
The family court then determined the Husband’s total net income earning
ability was “at least, approximately, $3,953.25 per month (i.e., bus driving net income of
9
$1,592.35 and D.C. Services income of $2,360.90).” Further, the family court determined
that the Husband had “excess income above his expenses of $1,283.25 per month (i.e.,
$3,953.25 income less expenses of $2,670.00 equals $1,283.25 per month).” Thus, the
family court concluded that the Husband had the ability to pay $1,283.25 per month in
alimony. Moreover, the family court found that it was “highly probable that . . . [the
Husband] has not accounted for any cash income not deposited into the D.C. Services
account.” The family court determined that Wife “should not be denied additional alimony
merely because those amounts are hidden.” The family court then attributed an additional
sum of $216.75 per month to the award for cash-based income, because the documentation
before it “suggest[ed] a higher income amount tha[n] this Court’s average income
analysis[.]” The total permanent alimony award ordered by the family court was $1,500 per
month.12
On appeal to the circuit court, the Husband argued that 1) the amount of
spousal support he was ordered to pay was disproportionate to his ability to pay; 2) the family
court improperly calculated Husband’s income from D.C. Services; and 3) the family court
erred in awarding permanent alimony. The circuit court upheld the family court’s decision
12
The family court’s award of alimony to Wife was based upon its assessment of the
statutory factors, which included the Wife’s need for alimony, the Husband’s ability to pay,
the length of the marriage, the ages of the parties, the Husband’s ability to produce
substantial income and the Wife’s ability to earn only minimum wage income. See W. Va.
Code § 48-6-301 (2015). There is no error raised regarding the lower court’s application of
these factors.
10
to award permanent alimony, but found that alimony in the amount of $1,500 per month was
in error. The circuit court determined that the “Family Court ignored the evidence, or lack
of evidence, presented below that clearly showed that the . . . [Husband] was earning far less
from the marital business” and that the Husband “consistently stated and testified that he
averaged around $300 to $400 per week income from D[.]C[.] Services.” The circuit court
found that “[t]he parties’ alleged misrepresentation of the nature of the business has no
bearing on what . . . [the Husband] earned on a monthly basis.” The circuit court further
upheld the Husband’s testimony on what his expenses were and found the family court’s
“other number . . . for labor is speculation, and not based on testimony or evidence.” The
circuit court found that there was no evidence of cash-based income supporting the $216.75
portion of the alimony award. The circuit court remanded the case for calculation of spousal
support “in accordance with” its order.
Upon remand, the family court expressly found that its hands were tied by the
circuit court’s dismissal of its credibility determination regarding the Husband’s business.
The family court found that the circuit court “effectively forced this Court to accept only .
. . [the Husband’s] testimony about the income he received from D[.]C[.] Services.” The
family court then recalculated the spousal support award by taking an average of the $300
to $400 per week that Husband testified he realized from his business. The family court
11
determined that the Husband had a monthly excess net of $439.02 and that that amount
should be paid to the Wife as support. According to the family court
[a]warding such $439.02 amount would be a total travesty of
justice under the factual findings previously made by this Court.
[The Husband] . . . paid $500.00 per month under this Court’s
temporary Order and made no valid argument that he could not
make those temporary payments. Further, this Court should not
be forced to accept a party’s testimony that this Court finds
without merit and unsupported by any records. . . . Except for
having to comply with a Circuit Court remand Order which
places this Court in a position to believe testimony this Court
finds not believable, this Court would find on further review that
no change [in the $1500 per month award previously made] is
proper.
On the Wife’s appeal to the circuit court, the circuit court simply refused the
appeal by order entered January 10, 2017. The instant appeal followed.
II. Standard of Review
We have previously held that
[i]n 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.
12
Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004); see also Syl. Pt. 1,
Paugh v. Linger, 228 W. Va. 194, 718 S.E.2d 793 (2011). Keeping this standard of review
in mind, we now examine the issues before us.
III. Discussion
The focus of both of the Wife’s assigned errors is that the circuit court
supplanted its opinion for that of the family court concerning critical factual and credibility
determinations.13 The Wife first argues that the circuit court improperly overturned the
family court’s finding that $216.75 should be attributed to the Husband for cash-based
income from his business, D.C. Services. Instead, the circuit court found:
9. The Family Court . . . attributed to the . . . [Husband] an
additional $216.75 per month in cash income from
D[.]C[.] Services, even though no evidence of cash
income or the amount of cash income per month was
presented.
13
The Wife also suggests that the circuit court erred in failing to issue its two orders
within the statutory sixty-day period. See W. Va. Code § 51-2A-14(f) (“The circuit court
must enter an order ruling on a petition for appeal [from a family court’s order] within sixty
days from the last day a reply to the petition for appeal could have been filed. If the circuit
court does not enter the order within the sixty-day period or does not, within the sixty-day
period, enter an order stating just cause why the order has not been timely entered, the circuit
clerk shall send a written notice to the parties that unless the parties both file an objection
within fourteen days of the date of the notice, the appeal will be transferred to the Supreme
Court of Appeals as provided in section fifteen [§ 51-2A-15] of this article due to the failure
of the circuit court to timely enter an order. The appeal shall be transferred without the
necessity of the filing of any petition or further document by the petitioner.”). But the Wife
fails to raise any assignment of error regarding this issue and develop properly the matter for
this Court’s consideration, choosing rather to only mention the failure in passing in her brief.
We therefore decline to address the issue.
13
10. The Family Court seems to have attributed the extra
$216l75[sic] per month based solely on the fact that the
. . . [Husband] allegedly did not properly report all of
D[.]C[.] Service’s income to the appropriate agencies.
11. The inclusion of the additional “cash income” appears to
have been speculation on the part of the Family Court.
The Wife argues that contrary to the circuit court’s finding that there was “no evidence of
cash income,” the Husband acknowledged that “a lot” of the income received by his business
was in cash; however, the amount was not documented.
The Wife also argues that the circuit court erred in finding that “[t]he only
testimony” offered regarding the labor costs of the Husband’s business was his testimony that
his employees were paid “approximately $25,087.00 in 2013.” Thus, the circuit court
determined that “[a]s no other evidence of wages was offered by . . . [the Wife], the Family
Court should have considered the . . . [Husband’s] testimony, regarding the wages paid in
2013, in placing a value on the . . . [Husband’s] monthly income from D[.]C[.] Services.”
The circuit court further found:
As the only direct testimony of what the labor chargers were is
the testimony of the . . . [Husband], any other number used by
the Family Court for labor is speculation, and not based on
testimony or evidence, and therefore, the Court finds the Family
Court erred in calculating the monthly income from D[.]C[.]
Services.
The Wife contends that the circuit court’s determination that the Husband’s undocumented
labor costs must be accepted as true, despite the family court’s determinations about
14
Husband’s fraudulent representations and lack of credibility, was in error. The Wife
emphasizes that the “unknown component” of the Husband’s business was his labor costs.
The issues in this case are resolved by application of the standard of review that
governs a circuit court’s review of a family court’s decision in a divorce case. Similar to the
standard of review utilized by this Court that is set forth in Carr, West Virginia Code § 51­
2A-14(c) (2016) provides that “[t]he circuit court shall review the findings of fact made by
the family court judge under the clearly erroneous standard and shall review the application
of law to the facts under an abuse of discretion standard.”
In syllabus point three of Estate of Bossio v. Bossio, 237 W. Va. 130, 785
S.E.2d 836 (2016), we explained what is meant by clearly erroneous finding as follows:
“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. 1, in part, In re Tiffany Marie S., 196 W.
Va. 223, 470 S.E.2d 177 (1996).
Stated another way, we have explained that “[u]nder the clearly erroneous standard, if the
findings of fact and the inferences drawn by a family [court judge] are supported by
substantial evidence, such findings and inferences may not be overturned even if a circuit
15
court may be inclined to make different findings or draw contrary inferences.” Syl. Pt. 3,
Stephen L.H. v. Sherry L.H., 195 W. Va. 384, 465 S.E.2d 841 (1995); accord Syl. Pt. 2,
Warren v. Garland, 235 W. Va. 115, 772 S.E.2d 214 (2015).
Finally, we have previously held that “[q]uestions relating to alimony and to
the maintenance and custody of the children are within the sound discretion of the court and
its action with respect to such matters will not be disturbed on appeal unless it clearly appears
that such discretion has been abused.” Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236
S.E.2d 36 (1977); accord Syl. Pt. 2, Mayle v. Mayle, 229 W. Va. 179, 727 S.E.2d 855 (2012).
Further, like the circuit court, this Court “must give appropriate deference to the family
court’s determination of the amount, nature and duration of the spousal support.” Id. at 185,
727 S.E.2d at 861.
In the instant matter, regarding the award by the family court of $216.75 for
cash-based income, the circuit court simply found that there was “no evidence of cash
income or the amount of cash income per month was presented.” This finding, however,
ignores the Husband’s own testimony that indicated his business had cash income, he just
failed to keep any records of how much cash income he had. The circuit court also
disregarded the family court’s specific findings made concerning the Husband intentionally
defrauding both state and federal authorities about his income, as well as hiding cash income
16
from the government and his Wife by not reporting that component of his business.
The circuit court failed to set forth how the family court’s findings regarding the cash-based
income were not supported by substantial evidence, including the family court’s credibility
determinations. As such, the circuit court’s overturning of these findings was in error.
Moreover, review of the circuit court’s order on the issue of the Husband’s
labor costs also reveals that with no real explanation the circuit court found the Husband’s
testimony credible on this issue, which was also in direct contradiction to the family court’s
findings. A review of the family court’s order shows it methodically examined all the
evidence introduced before it, which failed to include any evidence of any labor costs
actually paid out by the Husband due to the lack of records that he kept, and made credibility
determinations based upon the evidence. In so doing, the family court was clear that the
Husband was making more profit from his business than he was disclosing to the family
court, as well as governmental agencies, and that he was overinflating his labor costs for
purposes of the family court proceeding. The family court also found that the Husband had
“intentionally defrauded State authorities,” that the Husband had “offered no documentation
for” the $25,087 he testified to paying in labor costs, and that the Husband “admitted that he
paid his employees in cash to avoid having to pay certain unemployment and workers’
compensation costs to the State, and to ‘help’ his employees who were ‘working under the
table’ for cash.” Thus, the family court expressly found that it could not “conclusively
17
conclude that . . . [the Husband’s] 46.45 percent labor cost . . . [was] correct. . . .” But the
circuit court inexplicably ignored the credibility determinations made by the family court, as
well as its reasoning supporting these determinations, and replaced those determinations with
its own – something our law prohibits both the circuit court and this Court from doing. See
Mulugeta v. Misailidis, 239 W. Va. 404, ___, 801 S.E.2d 282, 290 (2017) (determining that
this Court will not disturb a family court’s credibility finding “because it was within the
province of the family court to determine the weight according . . . [the Husband’s]
testimony.”). Consequently, the circuit court’s decision directing the family court to take
the Husband’s testimony regarding the labor costs of his business as true is simply
inexplicable and in error.
IV. Conclusion
Based upon the foregoing opinion, the decision of the circuit court is reversed and the
case is remanded for reinstatement of the family court’s December 16, 2015, order awarding
the Wife permanent alimony in the amount of $1,500 per month.
Reversed and remanded with directions.
18