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Durbin v. Durbin

Supreme Court of West Virginia

October 23, 2017

Shawn P. Durbin, Respondent-Appellant Below, Petitioner
v.
Dana L. Durbin, Petitioner-Appellee Below, Respondent

         Brooke County 14-D-11

          MEMORANDUM DECISION

         Petitioner Shawn P. Durbin, by counsel David F. Cross, appeals the Circuit Court of Brooke County's October 5, 2016, order denying his petition for appeal from a family court order on equitable distribution and attorney's fees. Respondent Dana L. Durbin, by counsel Robyn Ruttenberg, filed a response in support of the circuit court's order. On appeal, petitioner argues that the lower courts erred in finding that monies received by petitioner for a personal injury claim were marital assets, subjecting the monies received as a result of the personal injury claim to a fifty-fifty division, ordering petitioner to pay a portion of respondent's attorney's fees, and calculating equitable distribution.

         This 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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         On June 26, 1999, the parties married. No children were born of the marriage. On January 29, 2014, respondent filed a petition for divorce citing irreconcilable differences. On April 15, 2014, the family court entered a temporary order that, among other things, mutually enjoined the disposition of any property. On June 30, 2015, by "Final Divorce Order, " the parties were divorced. The issues of equitable distribution and attorney's fees were bifurcated from the divorce, however, and considered at a later date.

         On November 24, 2015, the parties appeared before the family court for a hearing on the remaining issues of equitable distribution and respondent's request for attorney's fees. The family court entered its "Final Order Regarding Equitable Distribution and [Respondent's] Prayer for Attorney Fees" on April 6, 2016. As memorialized in that order, the family court found that petitioner sustained a severe workplace injury in September of 2005. The parties retained an attorney to pursue a deliberate intent claim against petitioner's employer. The lawsuit included a loss of consortium claim by respondent. The lawsuit was settled for $350, 000. No amounts for any of the included damages, such as pain and suffering, future wages, past wages, or loss of consortium were specified in the settlement. Attorney's fees in the amount of $157, 500 and litigation expenses totaling $4, 184.74 were deducted from the settlement amount. The parties' attorney retained $53, 622.41 and placed it into a client trust account to pay the subrogation claim in favor of petitioner's employer's workers' compensation insurer (the "insurance escrow"). The remaining funds totaling $134, 692.85 were disbursed to the parties on December 23, 2009.

         Beginning in November of 2014 and continuing through September of 2015, petitioner requested disbursements from the insurance escrow totaling $18, 787.68. Respondent did not authorize these distributions. The remaining balance in the insurance escrow was found to be marital property and ordered to be divided equally following release of the insurance lien.

         The family court also found that the marital estate was diminished due to petitioner's personal injury, which has prevented him from working since the date of his September of 2005 injury. Petitioner received temporary total disability benefits from September of 2005 through August of 2007, but, aside from the parties' jointly-received settlement in December of 2009, he earned no income to contribute to the marital estate after August of 2007.

         The family court also considered respondent's request for attorney's fees. At the time of the hearing, respondent's attorney's fees amounted to $13, 691.59. In granting respondent's request, the family court noted that respondent's counsel was forced to single-handedly determine the nature, extent, and value of the marital property due to petitioner's failure to timely appear and file the required financial disclosure. Petitioner failed to answer or appear in the action for more than one year following proper service of process. Although the family court acknowledged that it would be inequitable and unjust to award attorney's fees to respondent due to petitioner's unemployment status, the court found it "equally inequitable and unjust" to deny the request for attorney's fees in light of petitioner's "egregious" conduct. For the additional reason that respondent was the parties' sole source of income for nearly seven years prior to separation and that the attorney's fee owed could be offset against the equitable distribution owed to petitioner, the family court awarded attorney's fees in the amount of $6, 500 to respondent. The family court also offset the postseparation medical insurance premiums respondent paid in the amount of $2, 616 against the sums she owed to equalize the marital estate.

         The parties agreed on the distribution of certain items in the marital estate. The remaining items were distributed by the family court. Ultimately, respondent owed $13, 205.66 to petitioner to equalize the marital estate; however, after deducting the $2, 616 credit for the medical insurance premiums and $6, 500 attorney's fee award, respondent owed $4, 089.66 to equalize the estate.

         Petitioner appealed the "Final Order Regarding Equitable Distribution and [Respondent's] Prayer for Attorney Fees" to the circuit court on April 21, 2016. Petitioner argued that the family court erred in finding the insurance escrow balance to be marital property, awarding respondent attorney's fees, and calculating the equitable distribution. By order entered on October 5, 2016, the circuit court denied petitioner's petition for appeal, finding that the family court's findings of fact were not clearly erroneous and that its application of law to the facts was not an abuse of discretion. It is from this order that petitioner appeals.

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 circuit 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., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

         On appeal, petitioner advances four arguments: first, he argues that the lower courts erred when they found that the monies placed in insurance escrow were marital assets subject to equal division; second, in the event this Court finds that a portion of petitioner's personal injury settlement proceeds were marital property, the lower courts abused their discretion in awarding fifty percent of the insurance escrow to respondent when she had already received a substantial settlement amount; third, the lower courts erred in awarding respondent a portion of her attorney's fees; and fourth, that errors were made in calculating the parties' equitable distribution.

         In arguing that the insurance escrow was not part of the marital estate, petitioner states first that the fact that this portion of the personal injury settlement was placed into an account for the purpose of paying any properly subrogated amounts to the insurance company does not render the funds marital property. Further, petitioner claims that the lower courts erred in concluding that the marital estate was diminished by any medical expenses paid because all medical expenses were either paid upfront or reimbursed by petitioner's employer's workers' compensation carrier. Third, the wage loss suffered by petitioner for the first two years after his workplace injury was covered by workers' compensation payments. Petitioner, therefore, contends that the marital estate was not diminished by wage loss. To the extent any wage loss occurred ...


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