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James v. James

Supreme Court of West Virginia

May 14, 2018

George E. James, Respondent Below, Petitioner
v.
Vanessa D. James, Petitioner Below, Respondent

          Braxton County 14-D-49

          MEMORANDUM DECISION

         Petitioner George E. James, by counsel Shannon R. Thomas, appeals the February 13, 2017, order of the Circuit Court of Braxton County that modified, in part, reversed, in part, and affirmed, in part, the family court's Final Divorce Decree. Respondent Vanessa D. James, by counsel Kenneth J. Barnett, filed a response in support of the circuit court's order. Petitioner filed a reply. On appeal, petitioner alleges that the family court erred in (1) considering a certain certificate of deposit to be marital property; (2) holding that a savings account with the Bank of Gassaway was marital property; (3) addressing alimony without considering the parties' financial realities; (4) awarding attorney's fees; (5) addressing the division of the firearms and ammunition in equitable distribution; (6) valuing certain assets; and (7) including respondent's separate debt as a marital debt in equitable distribution.

         This Court has considered the parties' briefs and the record on appeal. Under the limited circumstances presented in this case, we find a memorandum decision affirming in part and reversing and remanding in part for further proceedings appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure. As explained below, the Court finds that the lower courts committed no reversible error as pertains to petitioner's appeal on six of his assignments of error. However, we find that the circuit court's denial of relief in regard to petitioner's claim that the family court included separate debt as marital debt in equitable distribution was erroneous and therefore reverse, in part, the lower court's orders and remand to the family court with instructions to exclude the debt in question from the marital debt.

         The parties were married in July of 1997 and separated in April of 2014. No children resulted from the marriage. Throughout the marriage, petitioner owned and operated his own trucking business and respondent was employed in various retail positions. In April of 2014, the parties separated. Thereafter, respondent filed a petition for divorce, to which petitioner filed a response and counter-petition. Respondent subsequently obtained an emergency domestic violence protective order against petitioner in magistrate court. However, upon a hearing before the family court, the protective order was denied. Further, mediation between the parties was unsuccessful.

         Beginning in March of 2015 and continuing into May of 2015, the family court held hearings on the petition for divorce. During these proceedings, the family court heard testimony from bank officials, expert witnesses, and other individuals related to certificates of deposit, bank accounts, and the parties' other assets. Previously, the parties stipulated to a method for obtaining a value for certain firearms so that they could be equitably distributed. However, respondent later decided against this method of distribution, and the family court eventually assigned value to the firearms for purposes of distribution. Ultimately, the family court granted the parties' divorce on the grounds of irreconcilable differences and distributed the marital assets. At some point, the family court made changes to the final order by way of handwritten notations.

         Thereafter, petitioner appealed the family court's final order to the circuit court. Respondent also filed a cross-petition for appeal. After granting a limited stay pending appeal, the circuit court ultimately entered an order in February of 2017 that modified the family court's order, in part, reversed the order, in part, and affirmed the order, in part. It is from the circuit court's order that petitioner appeals.

We apply the following standard of review to the circuit court's order:
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.

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

         On appeal, petitioner raises seven assignments of error challenging specific findings and conclusions from the family court, all of which were raised in his appeal to the circuit court. First, petitioner alleges that the family court erred in its consideration of a specific certificate of deposit and its decision to classify the same as marital property. In support of this assignment of error, petitioner argues that the certificate of deposit was funded with money held exclusively by him prior to the marriage. According to petitioner, the family court confused the testimony of two different witnesses who testified about separate accounts in reaching its determination that the specific certificate of deposit at issue was marital property. As such, petitioner argues that the certificate of deposit should be excluded from the parties' marital property. We do not agree.

         We have previously held that "[t]he party seeking to exclude property from the marital estate that is presumptively marital property, has the burden of persuasion on that issue." Syl. Pt. 4, in part, Mayhew v. Mayhew, 205 W.Va. 490, 519 S.E.2d 188 (1999). As the circuit court found on appeal, petitioner "did not meet his burden on proving that this [certificate of deposit] was separate property." This was based on the family court's finding regarding the difficulty in tracing the certificate of deposit's origins, given that certain records were not kept beyond seven years and the account was transferred among several banks, among other issues. In ruling that the family court did not err in finding that petitioner failed to meet his burden in excluding the certificate of deposit from the marital property, the circuit court specifically found that the testimony regarding it "was not clearly presented[.]" Accordingly, we find no error in the decision to classify the certificate of deposit as marital property.

         Next, petitioner argues that the family court erred in considering as marital property a savings account with the Bank of Gassaway. In support, petitioner asserts that this account, while opened during the marriage, was funded exclusively by money he held separately prior to the marriage. According to petitioner, respondent's name was not on the account and she made no contributions to it during the marriage. Again, we do not agree. As set forth above, petitioner had the burden of establishing that the saving account, opened during the marriage, was not marital property. As both the family and circuit courts found, petitioner failed to satisfy this burden. According to the circuit court, the only fact petitioner established was that the "account was started with funds from a different account, " while he failed to "sufficiently prove that this was separate property." The circuit court further found that petitioner "provided no documents or receipts to support" his claim that he relied on this account to pay for marital expenses incurred after respondent left the marital home. Accordingly, we find no error in the decision to classify the savings account at issue as marital property.

         Petitioner's third assignment of error is that the family court erred in addressing alimony without considering the financial realities of the parties. Specifically, petitioner contends that the family court "went through the motions" of evaluating the criteria necessary for awarding alimony without actually considering petitioner's ability to pay the same. Based on petitioner's assertion that he suffers from diabetes and other major health issues, he claims that the family court erred in its ...


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