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In re Marriage of Joel K.

Supreme Court of West Virginia

September 1, 2017

In Re: The Marriage of: Joel K., Respondent Below, Petitioner
v.
Tina K., Petitioner Below, Respondent

         (Harrison County 09-D-358-5)

          MEMORANDUM DECISION

         Petitioner Joel K., [1] pro se, appeals the August 25, 2016, order of the Circuit Court of Harrison County refusing his appeal from two orders of the Family Court of Harrison County. In the first order, entered on May 27, 2016, the family court granted a motion filed by Respondent Tina K. to compel petitioner to pay the remainder of an equitable distribution award of $9, 091.61, plus 7% interest per annum. In the second order, also entered on May 27, 2016, the family court granted a motion filed by Respondent Tina K. to compel petitioner to pay an award of spousal support of $12, 000, plus 7% interest per annum. Respondent, by counsel Gregory H. Schillace, filed a response in support of the circuit court's order. Petitioner filed a reply.

         The Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, 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 married in 1994 and had two children together. On July 10, 2009, respondent filed a petition for a divorce and a motion for pendente lite support, which is temporary support for the recipient spouse during the pendency of the proceedings.[2] Following hearings on July 15, 2009, and August 10, 2009, the family court granted respondent's motion and ordered petitioner to pay her the net amount of $660 per month in temporary spousal support by order entered on August 20, 2009.[3]

         Following a subsequent hearing on September 8, 2009, the family court found that petitioner was paying his attorney's fees, of $7, 657, out of a jointly-held checking account that was ordered frozen by an order entered on September 2, 2009. Accordingly, the family court directed payment of respondent's attorney's fees out of the same account, in the amount of $7, 500, by order entered on September 22, 2009.

         Subsequently, the family court entered the decree of divorce on April 30, 2012, which again ordered payment of respondent's attorney's fees. The family court ordered petitioner to make the following additional payments to respondent:

• $796.97 per month in child support beginning on September 1, 2012, at which time the parties' children would start spending equal time with each parent.
• $23, 251.65 to equalize the distribution of marital assets and debts between the parties in monthly installments of $1, 000 beginning on April 1, 2012.
• A one-time, lump sum payment of $12, 000 in spousal support based on findings that respondent forewent employment opportunities during the parties' marriage to rear their children and that, following the parties' divorce, respondent would have a need for housing because the marital home was awarded to petitioner.

         In recognition of petitioner's obligations to pay "equitable distribution payments, spousal support[, ] and child support, " the family court denied respondent's motion for additional attorney's fees. The family court further permitted petitioner to satisfy the one-time, lump sum payment of $12, 000 in spousal support by paying monthly installments of $500 beginning after the last equitable distribution payment.

         Petitioner appealed the April 30, 2012, decree of divorce to the circuit court. Relevant to this appeal, petitioner sought clarification of whether the family court ordered an additional $7, 500 payment to respondent for her attorney's fees, disputed the equitable distribution ordered by the family court, and objected to his obligation to pay spousal support at the same time that he was required to pay child support. In an order entered on March 22, 2013, the circuit court found that the decree of divorce reiterated the 2009 directive to pay respondent's attorney's fees and that the family court gave petitioner credit for already making the $7, 500 payment on the equitable distribution chart attached to the decree.[4]

         With regard to the equitable distribution, the circuit court agreed with the family court's finding that all credit card debt was marital debt, except for a single $3, 000 charge by respondent after the parties' 2009 separation to pay her attorney's fees. Accordingly, the circuit court gave petitioner a $3, 000 credit on the equitable distribution chart for that post-separation charge. The circuit court further found that the equitable distribution chart did not accurately reflect that, in the decree of divorce, the family court ordered the equal division of the mineral rights owned by the parties, which amounted to another $5, 000 credit for petitioner. Accordingly, the circuit court reduced the equitable distribution payment owed by petitioner to respondent from $23, 251.65 to $15, 251.65. Finally, with regard to petitioner's objection to his obligation to pay spousal support at the same time he was required to pay child support, the circuit court found that, if petitioner believed that a modification in child support was warranted, he could file a petition for such a modification. Therefore, except for the reduction in the equitable distribution payment owed by petitioner, the circuit court affirmed the family court's decree of divorce.

         Petitioner appealed the circuit court's equitable distribution rulings to this Court, but did not raise any issue with regard to either spousal support or child support. In Joel K. v. Tina K., No. 13-0407, 2014 WL 1272542 (W.Va. March 28, 2014) (memorandum decision), [5] petitioner explained in his brief that he filed a petition for modification of child support and "[t]he family court did reduce the child support [obligation]." With regard to the equitable distribution, this Court affirmed the circuit court's rulings and adopted and incorporated that court's March 22, 2013, order. Id. at *5.

         Subsequently, on August 28, 2015, the family court held a hearing on motions filed by respondent to compel petitioner to pay the equitable distribution and spousal support payments owed to her pursuant to the April 30, 2012, decree of divorce. In its ...


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