Gregory E., by counsel Dennie S. Morgan Jr., appeals the
Circuit Court of Mercer County's July 20, 2016, order
affirming the Family Court of Mercer County's order
denying his motion for reconsideration. Respondent
Roxanna E., by counsel Robert E. Holroyd, filed a response.
On appeal, petitioner argues that the circuit court erred in
affirming the family court's denial of his motion for
reconsideration without conducting a hearing and without
considering his newly discovered evidence.
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.
January 12, 2016, the family court entered a "Divorce
Order." The order detailed that petitioner was receiving
temporary total disability payments amounting to $300 per
week and that "[i]t is unclear how long he will be
receiving these payments." This order itemized the
parties' monthly expenses and determined that petitioner
is deficient in the amount of $589.88. The parties agreed
that petitioner would retain the marital home, and stipulated
that the value of the home was $80, 000. After determining
the martial equity in the home, petitioner was ordered to pay
to respondent her martial share, which amounted to $250 per
month for sixty-eight months. Respondent was also awarded
certain household items purchased during the parties'
marriage. Because they were financed on respondent's
credit card, and because respondent had the ultimate
responsibility for making payments on that credit card, the
family court ordered that she retain those items. The order
also awarded to respondent two decretal judgments: one in the
amount of $1, 050, to represent her portion of a 2014 income
tax refund, and the other in the amount of $671.50, to
represent her portion of petitioner's 401K.
appealed this order to the Circuit Court of Mercer County.
Petitioner asserted that the family court overvalued the
martial home, which resulted in an overvaluation of
respondent's marital share. Petitioner also alleged that
the circuit court erred in awarding payments of
respondent's portion of the equity in the parties'
home where the family court recognized the deficiency in
petitioner's income. Petitioner took issue with the
family court's grant of certain household items to
respondent. Although petitioner acknowledged that the items
were purchased with respondent's credit card, he asserted
that he made payments on the account, but was not attributed
any equity in the items. Lastly, he asserted that the family
court erred in awarding respondent one-half of her
attorney's fees. On May 3, 2016, the circuit court
affirmed the family court's "Divorce Order."
The circuit court found that the family court's order was
"well-explained" and that petitioner had failed to
offer any authority establishing that the family court
committed clear error or abused its discretion.
after the circuit court entered its order affirming the
"Divorce Order, " petitioner filed a "Motion
for Reconsideration and Clarification of Order" in the
family court. In this motion, petitioner argued that his
medical issues were still present and complicating his
wage-earning ability, that he had "newly discovered
evidence" in the form of an appraisal of the marital
home, that the payment to respondent for her share of the
marital home was inaccurate as a result of the alleged
initial over-valuation, that petitioner made payments on
certain household items and should have been awarded equity
in them, and that the family court's award to respondent
of one-half of her attorney's fees was inequitable. The
family court denied petitioner's motion, finding that the
circuit court had already affirmed the family court's
prior rulings on these issues and that the family court has
no authority to overturn the circuit court.
appealed the denial of his motion for reconsideration to the
circuit court. The circuit court found that petitioner's
motion for reconsideration alleges errors very similar to
those previously decided by the circuit court, and that the
family court committed no clear error or abuse of discretion
in denying reconsideration. This appeal followed.
asserts on appeal that the lower courts erred in failing to
hold a hearing on his motion for reconsideration and in
failing to address the issues raised therein. Petitioner
specifically takes issue with the courts' failure to
address the new appraisal of the marital home and his
worsening health issues.
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
Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803
outset, we note that, although petitioner asserts that the
lower courts erred in failing to hold a hearing on his motion
for reconsideration, he has cited no law obligating a court
to hold a hearing on such motion. Accordingly, we do not find
that the lower courts erred in failing to hold a hearing on
Virginia Rule of Practice and Procedure for Family Court 25
and West Virginia Code § 51-2A-10 permit motions for
reconsideration of family court orders in certain instances.
One such instance is for "newly discovered evidence
which by due diligence could not have been available at the
time the matter was submitted to the court for
decision[.]" Id. at § 51-2A-10(a)(2).
Petitioner contends that the lower courts erred in failing to
consider the new evidence of the appraisal and his worsening
health issues, but fails to explain how this evidence
constitutes newly discovered evidence that "could not
have been available at the time the matter was submitted to
the court for decision[.]" The "Divorce Order"
stated that the parties stipulated to the value of the house.
The fact that petitioner later obtained an appraisal is not,
in and of itself, sufficient to entitle him to
reconsideration of the home's value.
respect to his worsening health issues, petitioner's
motion for reconsideration stated only that petitioner
"has extended and substantial medical issues that are
still present and further complicating his employment and
wage earning situations. He is still very badly injured from
a work-place injury and has to undergo surgeries relating to
this injury." No additional information is provided,
including any explanation as to how these health issues
differ from those already considered by the family court. The
"Divorce Order" detailed petitioner's temporary
total disability payments and the fact that "[i]t is
unclear how long he will be receiving these payments."
Petitioner's workplace injury was clearly considered by
the family court prior to its entry of the "Divorce
Order." In his motion for reconsideration, petitioner
failed to demonstrate that there was newly discovered
evidence relating to ...