Harold Lee Weaver v. Barbara Jo Weaver ( 2022 )

FILED
April 15, 2022
released at 3:00 p.m.
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
Harold Lee Weaver,
Respondent Below, Petitioner
vs) No. 20-0690 (Barbour County 17-D-70)
Barbara Jo Weaver,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Harold Lee Weaver appeals the August 11, 2020, order of the Circuit Court of
Barbour County, West Virginia, that denied his appeal from the family court’s order. He raises
several assignments of error including the family court’s valuation of real property, spousal
support, and attorney fees awarded to his former wife, Respondent Barbara Jo Weaver. She
supports the circuit court’s ruling and claims that Harold contributed to many of the alleged errors
he raises by failing to provide proper financial disclosures.
We conclude the family court’s findings on equitable distribution are not clearly erroneous
and it did not abuse its discretion in awarding spousal support and attorney fees. Because we
discern no substantial question of law, a memorandum decision affirming the order of the circuit
court is the appropriate disposition under Rule 21 of the West Virginia Rules of Appellate
Procedure. 1
I. Factual and Procedural History
After fourteen years of marriage, Barbara filed for divorce in August 2017, citing
irreconcilable differences. The parties’ twin daughters had been born in February 2003, and
Harold had a son from a previous relationship. At the time of filing, Harold received social security
disability benefits. Barbara worked part-time at Barb’s Restaurant, a business they owned, and
was the primary caregiver to the parties’ children.
The family court entered a temporary agreed order in September 2017, where it noted that,
under the parties’ agreement, Harold was paying Barbara $3,500 per month for child support and
recurring family expenses since their separation; the family court approved that arrangement and
deferred ruling on those issues.
1
This Court has considered the parties’ briefs, oral argument, and the record on appeal.
Harold is represented by counsel, Phillip S. Isner and David C. Fuellhart. Barbara is represented
by counsel, Shannon R. Thomas.
1
After numerous continuances and a failed attempt at mediation, the family court conducted
a final hearing on January 14 and 16, 2019. Barbara stated that she still worked part-time at the
restaurant. Harold stated that he was receiving social security disability benefits; he had worked
as an electrician and was hoping to return to that line of work, part-time, when able. The parties
offered their opinions about the value of their personal and real property. They also discussed
their monthly expenses and income. Neither party presented witnesses. Barbara testified and
introduced twenty-three exhibits and Harold testified but offered no exhibits.
The family court entered its 44-page order on March 5, 2020, 2 and adopted the parties’
parenting agreement. 3 It admonished Harold for failing to provide full financial disclosures,
stating that “[h]e admitted that he did not list all of the assets, and admitted that he did not make
efforts to obtain values of said assets. He made no effort to obtain information about his retirement
accounts claiming he did not know he had to do that.”
The family court attached an equitable distribution spreadsheet to its order where it listed,
valued, and divided, the marital estate that exceeded $580,000. Relevant to the issues raised here,
the family court assessed the value of the marital home at $205,000 by crediting Barbara’s
evidence. She offered an appraisal and the appraised value from the assessor’s office. The family
court noted that Barbara owned the marital home prior to the marriage, but she executed a deed
conveying it to Harold and herself in 2007, to use it as collateral for a loan for the restaurant. At
2
It is unclear why more than a year passed between the final hearing and order. Rule 22(a)
of the West Virginia Rules of Practice and Procedure for Family Court provides, in part, that “[a]ll
orders shall be entered by the court within 20 days of the hearing, except a temporary support order
must be entered within one business day of the hearing[.]”
3
When discussing child support and spousal support, the family court noted that under the
parties’ agreement, Harold had paid Barbara $3,500 per month, until he reduced the amount to
$2,352 when she began receiving social security disability benefits for the children. The family
court noted that the record was not clear when those benefits began. It ruled that Harold would
have no child support obligation moving forward so long as Barbara received those benefits for
the children. The family court stated
that effective September 1, 2017, through March 31, 2020, for each $3,500.00
payment made by [Harold], to [Barbara], $1,148.00 of that is hereby categorized
and designated as child support. For the months that [Harold], paid $3,500.00, this
leaves a remainder of $2,352.00 per month for designation. For the months that
[Harold] paid $2,352.00 after having reduced the prior amount of $3,500.00 once
social security benefits began, that entire amount per month is available for
designation.
Later in its order, the family court stated that the “remainder of any undesignated monies
referenced herein paid” to Barbara by Harold, “from September 1, 2017, through February 28,
2019, shall be designated as temporary spousal support.”
2
that time, the home appraised at $205,000. While Harold stated that an addition had been added
to the home that enhanced its value, Barbara disputed that it added any value. She testified that
the improvements were started but not completed, and the value of the home had likely decreased
from the last appraisal.
The parties had remarkably different opinions about the value of the restaurant; Harold
valued it at $350,000, while Barbara valued it at only $75,000. The family court discredited
Barbara’s low assessment, considering the funds put into the business. It ultimately valued the
restaurant at $185,000, noting that the property for the restaurant was purchased in 2005 for
$25,000. An initial construction loan of $150,000 and another $185,000 loan was used to purchase
equipment, keep it operating, and to pay taxes. So, not all of their investments in the restaurant
went toward capital improvements.
The family court assessed the value of a residence that Harold purchased after the parties
separated (Jackson Street property) at $65,400, by crediting Barbara’s evidence. It noted that
Harold purchased the property in 2017 at a liquidation sale for $15,000 and conveyed the property
to his son without telling Barbara. Harold lived in this residence since the parties’ separation and
made significant improvements to it. He testified that the value of the property was $40,000, but
Barbara submitted property tax receipts that reflected its assessed value of $65,400.
The family court concluded that an IRA, valued at nearly $260,000, was marital property.
While Harold claimed that a portion of the IRA was his separate property because he paid into it
before the parties’ marriage, the family court found that he failed to meet his burden of showing
that any portion of it was separate property. The family court noted the various transfers of funds
of this account, including a 2017 transfer where Harold withdrew approximately $130,000 for
various reasons including improvements to the Jackson Street property, deposits to his son’s bank
account, and gifts for the children.
The family court devoted nine pages of its order to the issues of spousal support and
attorney fees. It noted that Barbara was 48 years of age and Harold was 63. The family court
stated that Harold was approved to receive social security disability benefits of $2,296 per month,4
and Barbara had a monthly income of less than $900. Listing the Banker factors, 5 the family court
awarded $6,440 in attorney fees to Barbara. It found that Harold “was less than cooperative with
4
At the time of the hearing, Harold was collecting $1,996 a month because $300 was being
deducted to recoup a prior overpayment.
5
See Syl. Pt. 4, Banker v. Banker, 196 W. Va. 535, 474 S.E.2d 465 (1996) (“In divorce
actions, an award of attorney’s fees rests initially within the sound discretion of the family law
master and should not be disturbed on appeal absent an abuse of discretion. In determining
whether to award attorney’s fees, the family law master 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.”).
3
this entire process[,]” and “[h]is failure to cooperate has significantly increased [Barbara’s]
attorney fees.” Considering the financial situation of the parties, it awarded Barbara $350 a month
in permanent spousal support, effective March 1, 2019.
Harold appealed the family court’s order to the circuit court, raising the same issues as in
this appeal. The circuit court denied the appeal by order entered August 11, 2020. The circuit
court stated that it had listened to the audiotape of the family court hearing and was unable to find
that the family court’s findings were clearly erroneous. It also determined that the family court
had not abused its discretion by awarding spousal support and attorney fees to Barbara.
On appeal to this Court, Harold raises six assignments of error. He argues that the circuit
court erred by upholding the family court’s ruling (1) denying his motion to continue the final
hearing, (2) arbitrarily assigning values to the real property of the parties without competent
evidence provided by either party as to the value as of the date of separation, (3) not permitting
him to testify regarding an appraisal of the restaurant, (4) arbitrarily determining a date before
which payments made to Barbara were designated as temporary spousal support and after which
were designated as advanced equitable distribution payments, (5) arbitrarily determining that his
IRA was entirely marital property instead of partially separate property, and (6) awarding Barbara
attorney fees.
II. Standard of Review
This Court reviews an appeal of a circuit court order adopting a family court’s equitable
distribution order under the following standard:
In reviewing challenges to findings made by a family court judge that also
were adopted by a circuit court, a three-pronged standard of review is applied.
Under these circumstances, a final equitable distribution order is reviewed under
an abuse of discretion standard; the underlying factual findings are reviewed under
a clearly erroneous standard; and questions of law and statutory interpretations are
subject to a de novo review. 6
Under the clearly erroneous rule, we do not reweigh the evidence and we will not reverse a family
court’s findings simply because we may have viewed the evidence differently. 7
Finally, an award of attorney fees and spousal support rests within the sound discretion of
the family court and will not be disturbed on appeal absent an abuse of discretion. 8
6
Syl. Pt. 2, Lucas v. Lucas, 215 W. Va. 1, 592 S.E.2d 646 (2003).
7
Mulugeta v. Misailidis, 239 W. Va. 404, 408, 801 S.E.2d 282, 286 (2017).
8
Syl. Pt. 4, Banker, 196 W. Va. 535, 474 S.E.2d 465; Syl., Nichols v. Nichols, 160 W. Va.
514, 236 S.E.2d 36 (1977).
4
III. Analysis
We first consider the assignments of error related to the family court’s equitable
distribution findings. Harold takes issue with the family court’s valuation of the marital residence,
restaurant, and the Jackson Street property. He also argues that a portion of his IRA should have
been considered separate property.
West Virginia Code § 48-7-101 provides that the family court “shall divide the marital
property of the parties equally between the parties.” To accomplish this directive, a family court
must first identify, then value and divide the marital estate.
Equitable distribution under W. Va. Code, 48-2-1, et seq., is a three-step
process. The first step is to classify the parties’ property as marital or nonmarital.
The second step is to value the marital assets. The third step is to divide the marital
estate between the parties in accordance with the principles contained in W. Va.
Code, 48-2-32. 9
This Court has also held that “[t]he burden is on both parties to the litigation to adduce
competent evidence on the values to be assigned in equitable distribution cases.” 10 Harold argues
that because no competent evidence was presented by either party to determine the value of the
marital residence and restaurant at the time the parties separated, the family court should have
ordered that those properties be sold. Barbara counters that the family court’s valuations were
supported by her evidence, and it would be inequitable to force the sale of the restaurant where she
works and the home where she lives, especially when she brought that home into the marriage.
Harold also argues that the family court’s valuation of the Jackson Street property was based on
property tax receipts, which are not competent evidence of its fair market value. Barbara counters
that Harold should not complain about her evidence showing the value of this property when he
failed to even disclose it. 11
Harold also contends that a portion of the IRA was separate property because it was
undisputed that he began work for the union that paid into his IRA “sometime between 1979 and
1984[,]” and this was sufficient to overcome the presumption that the entire IRA was marital
property. Barbara counters that the family court properly found that it was impossible to calculate
any separate nature of the IRA considering the various transfers and withdrawals from that
9
Syl. Pt. 1, Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990).
10
Syl. Pt. 8, Mayhew v. Mayhew, 197 W. Va. 290, 475 S.E.2d 382 (1996), overruled on
other grounds by Mayhew v. Mayhew, 205 W. Va. 490, 519 S.E.2d 188 (1999).
11
See Rule 13(b) of the W. Va. R. Prac. Pro. Fam. Ct. (“The failure to file or untimely
filing of any required financial information shall not be grounds for a continuance. If a party fails
to file or untimely files any required financial information, the court may refuse to grant requested
relief to that party, and/or may accept the financial information of the other party as accurate.”).
5
account. And while Harold claimed that he used money from the IRA to pay his temporary spousal
support and child support obligations, Barbara notes that he produced no evidence to support the
contention—he failed to even provide statements of the account. 12
Our review of the record uncovers no error by the circuit court in adopting the family
court’s equitable distribution findings regarding the marital residence, restaurant, Jackson Street
property, and IRA. This Court defers to the family court’s valuation of marital property when it
is not clearly erroneous and within the range of the evidence presented, 13 and parties in a divorce
action may offer their opinions as to the value of their property, both real and personal. 14 Here,
the family court resolved the conflicting evidence and fairly valued the marital estate based on the
testimony presented at the final hearing. 15 And its finding that the entire IRA was marital property
was not clearly erroneous when Harold failed to show what portion of the account was his separate
property.
Harold next argues that the circuit court erred in upholding the family court’s ruling
regarding spousal support; he claims that the family court arbitrarily classified money paid to
Barbara before March 1, 2019, as temporary spousal support. This argument lacks clarity, but he
appears to contend that since the family court awarded Barbara permanent spousal support of $350
a month effective March 1, 2019, that any money paid to her in excess of that amount before that
12
Although he failed to offer any evidence below to identify what portion of the IRA should
be considered his separate property, Harold claims that it would be “simple to calculate” that figure
based on the ratio of time that he was part of the union prior to the date of the marriage compared
to the length of marriage (prior to the date of separation). Harold also argues that because he
provided a full release to Barbara to obtain the records relating to the IRA, the “burden of proof
regarding whether any portion of the IRA was separate property should have shifted to [her] during
the pendency of the case.” Harold cites no authority for this proposition, nor do we find any. See
Dahl v. Dahl, 459 P.3d 276, 298-99 (Utah 2015) (stating appellate courts are not a depository in
which a party may dump the burden of argument and research).
13
See e.g., Mertz v. Mertz, 858 N.W.2d 292, 300 (N.D. 2015) (“[T]his Court defers to the
district court’s valuation of property if it is not clearly erroneous and is within the range of evidence
presented.”).
14
See Mulugeta, 239 W. Va. at 413, 801 S.E.2d at 291 (stating family court’s equitable
distribution findings can rest on testimony of a party, even when that party fails to provide
supporting documentation).
15
Although Harold claimed that an appraisal had been conducted of the restaurant around
2005, he did not provide the appraisal during discovery, nor did he present it at the hearing. We
find no merit to Harold’s claim that the family court committed reversible error by not allowing
him to testify to the contents of this appraisal when he failed to provide that document. See
generally Gentry v. Mangum, 195 W. Va. 512, 518, 466 S.E.2d 171, 177 (1995) (“A party
challenging a circuit court’s evidentiary rulings has an onerous burden because a reviewing court
gives special deference to the evidentiary rulings of a circuit court.”).
6
date should have been considered as advanced equitable distribution payments, not temporary
spousal support. Harold claims that the family court provided no reasoning for choosing the March
1 date, and it provided no justification for the disparity between the amount of temporary and
permanent spousal support. Harold fails to recognize that the family court categorized some of
the $3,500 payments to Barbara before the final hearing as child support. 16 In any event, Barbara
counters that the family court’s designation of March 1 as the date when permanent spousal support
was awarded was logical; the final hearing concluded in January 2019, the parties submitted
proposed final orders in February 2019, so the family court’s designation of payments was
effective the following month. Barbara also argues that the family court made substantial findings
regarding spousal support that are supported by the record.
The family court’s order reflects that it properly considered the 20 factors listed in West
Virginia Code § 48-6-301(b) when awarding Barbara temporary spousal support for the time she
was paying family expenses to maintain their standard of living pending the final hearing. We
agree with the circuit court that the family court’s temporary spousal support award was well
within its wide discretion. 17
Finally, Harold contends that the circuit court erred in upholding the family court’s award
of $6,440 in attorney fees to Barbara. He argues that the Banker factors 18 weigh against the award.
Harold questions Barbara’s claim that she was experiencing financial difficulties considering that
she testified to making an $800-a-month car payment. Harold also notes that she was awarded
permanent spousal support and a large equalizing payment in equitable distribution. Barbara
counters that the family court properly weighed the Banker factors. She notes that Harold had
historically higher income and sufficient funds to give substantial gifts to the children during the
pendency of the action while she experienced a deficit each month. Barbara also states that the
family court appropriately found that Harold’s failure to cooperate throughout the proceedings
significantly increased her attorney fees.
In Hillberry v. Hillberry, 19 we stated that the principal inquiry in determining whether to
compel one party in a divorce action to pay attorney fees to the other party was whether the
financial circumstances of the parties suggested that an award was necessary. This Court is unable
16
See note 3, above.
17
See Mulugeta, 239 W. Va. at 410, 801 S.E.2d at 288 (“We recognize that as long as the
family court fully considers the mandatory statutory factors, and its award of spousal support is
within the parameters of reasonableness, this Court should not disturb the award on appeal.”).
18
See note 4, above.
19
195 W.Va. 600, 466 S.E.2d 451 (1995).
7
to conclude that the family court abused its discretion in awarding attorney fees to Barbara
considering their respective financial conditions. 20
IV. Conclusion
For the reasons set forth above, we affirm the August 11, 2020, order of the Circuit Court
of Barbour County.
Affirmed.
ISSUED: April 15, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice William R. Wooton
Justice Alan D. Moats, sitting by temporary assignment.
20
We also agree with the circuit court that the family court did not abuse its discretion in
denying Harold’s motion to continue the final hearing. Harold claimed that he was served with
several exhibits by Barbara’s counsel immediately prior to the final hearing, but he does not
describe with any specificity what information was contained in the exhibits that he did not already
have or explain how he was prejudiced by going forward with the hearing. In contrast, Barbara
states that the exhibits were previously disclosed, and she simply provided them again in the order
she planned to present them to the family court, with labels and cover sheet, as a courtesy.
8