Kanawha County 16-D-361
Teddy Atkins II, by counsel Tim C. Carrico, appeals the
Circuit Court of Kanawha County's December 15, 2017,
order denying his petition for appeal from a family court
order on equitable distribution following the parties'
divorce. Respondent Angela Atkins, by counsel Mark A. Swartz,
filed a response in support of the circuit court's order.
Petitioner filed a reply. On appeal, petitioner argues that
the lower courts erred in determining that two businesses,
Angela's Salon LTD ("Angela's Salon") and
Rare Form LLC ("Rare Form"), were not marital
assets subject to equitable distribution.
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.
October 10, 2009, the parties married. Respondent
initiated divorce proceedings on March 11, 2016, and by
"Agreed Bifurcated Divorce Order," the parties were
divorced on December 22, 2016. The issue of equitable
distribution of the marital estate was bifurcated from the
divorce, however, and considered at a final hearing before
the family court on June 7, 2017. At this hearing, both
parties testified to their involvement with and purported
interest in the two businesses that are the subject of this
explained that she incorporated Angela's Salon in 2006,
more than three years prior to the parties' marriage. At
the time of incorporation, all shares in the salon were
issued to respondent, and she continuously owned those shares
throughout the marriage. Respondent was diagnosed with
leukemia in 2011, and became very ill. Following
respondent's diagnosis, petitioner obtained his
cosmetology license and began working at Angela's Salon.
Petitioner received wages from the salon for his services.
Additionally, petitioner signed tax returns as sole
shareholder during respondent's illness, but respondent
made clear that she did not transfer stock in the business to
Q. Okay. At any time during your marriage, up from the start
of your marriage to today, did you sign anything, a stock
certificate, an assignment, a bill of sale, any kind of
document transferring any bit of your stock to [petitioner]?
Petitioner confirmed that there was no stock transfer:
Q. . . . Can you show me a piece of paper, today, that
[respondent] signed where she transferred stock in
Angela's [S]alon to you?
A. I cannot[.]
also testified that she formed Rare Form in July of 2010,
approximately one year after the parties married but prior to
her cancer diagnosis, in order to purchase the building out
of which Angela's Salon operates. Respondent was Rare
Form's sole member at the time of its formation. To
purchase the building and capitalize Rare Form, respondent,
who was married prior to her marriage to petitioner, used the
proceeds from the sale of her prior marital home.
Specifically, respondent received $62, 626.27 following the
sale of this prior marital home. She used $29, 533.52 to
close on the building owned by Rare Form and used most of the
remaining funds to make improvements to the
building. Petitioner invested no funds into Rare
time the Rare Form building was purchased, respondent signed
a "Declaration of Limited Liability Company or Limited
Liability Partnership and Authority to Borrow" form as
Rare Form's member, and she is listed on that document as
owning 100% of the company. Petitioner's name is not on
this form or the closing documents, including the promissory
note. Petitioner did, however, personally guarantee the loan
to Rare Form. Additionally, the parties refinanced the loan
in 2015, and each signed the refinancing documents as members
of Rare Form. Respondent indicated that she added petitioner
as a member of Rare Form in 2011 following her diagnosis, but
she removed him in 2016 at the time of the parties'
her testimony regarding Angela's Salon, respondent
confirmed that she did not transfer equity in Rare Form to
Q. Did you sign any kind of assignment, transfer or deed or
anything of that nature transferring any piece of your equity
contribution to ...