Nicholas County 16-D-145
Vernon M., by counsel Christopher T. Pritt, appeals the
Circuit Court of Nicholas County's December 18, 2017,
order affirming, with one modification, the family
court's final divorce order. Respondent Jan M., by
counsel Harley E. Stollings, filed a response in support of
the circuit court's order and a supplemental appendix. On
appeal, petitioner argues that the family court erred in (1)
finding that he sought to delay the proceedings; (2) finding
that he was not transparent regarding his sexual relations;
(3) finding that respondent's business interest did not
cease after petitioner removed her name from the filings with
the West Virginia Secretary of State; (4) finding that he
attempted to hide a tool trailer; (5) refusing to order the
sale or refinancing of the marital home; and (6) awarding
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.
parties were married in Nicholas County, West Virginia, in
August of 2003. Three children were born of the marriage
before the parties separated on or about July 17, 2016. That
same month, respondent filed a petition for divorce in which
she alleged irreconcilable differences, cruelty, and
adultery. Petitioner thereafter filed an answer and denied
the fault grounds of cruelty and adultery, although he
admitted the existence of irreconcilable differences.
Petitioner additionally filed a counter-petition wherein he
alleged irreconcilable differences and the fault ground of
cruelty by respondent.
August of 2016, the family court issued a temporary order,
followed by a second temporary order in September of 2016.
The family court then entered a "Bifurcated Order on
Certain Equitable Distribution Issues" on November 21,
2016. Following these orders, both parties filed multiple
petitions for civil contempt against the other. The family
court then held a final hearing on all the petitions for
contempt on March 7, 2017, before entering final orders on
the petitions later that same month. On April 4, 2017,
respondent filed a "Petition for Contempt Finding and
Seeking Criminal Prosecution of [Petitioner]" that
alleged that petitioner's actions constituted criminal
contempt of the family court's earlier bifurcated order.
The matter was transferred to the Circuit Court of Nicholas
County for further disposition.
March, April, and July of 2017, the family court held
hearings on the petition for divorce. During the hearings,
petitioner refused to admit the existence of irreconcilable
differences, despite his allegations and admissions contained
in his counter-petition and answer. During the proceedings,
petitioner's girlfriend testified that she met petitioner
through a dating website around June of 2016. She further
testified that, prior to July 17, 2016, she went on a date
with petitioner and had sexual relations with him. She
further testified that petitioner told her he was married at
the time. In relation to the adultery claim, respondent
additionally testified that petitioner admitted to having
extra-marital affairs and blamed her for them after she
confronted him with evidence of the affairs. Additionally,
respondent introduced photographs of a man's penis in
close proximity to a woman's genitals. According to
respondent's testimony, the penis depicted in the
photographs was, "without question,"
petitioner's and the woman's genitals were not hers.
Petitioner did not deny that the photographs "could
possibly depict his penis. . . ."
questioned about adultery, petitioner asserted his Fifth
Amendment right against self-incrimination "since the
crime of adultery is still 'on the books.'"
After the family court informed petitioner that it would make
an adverse inference in relation to his silence, in
accordance with West Virginia Department of Health and
Human Resources ex rel. Wright v. Doris S., 197 W.Va.
489, 475 S.E.2d 865 (1996), petitioner informed the family
court that he "wanted to have total transparency"
on the issue. The family court ultimately found, however,
that petitioner "was never transparent . . . concerning
these allegations." According to petitioner's
testimony, respondent condoned his affairs because she
voluntarily had sexual relations with him subsequent to the
adultery, although he provided inconsistent testimony
concerning the number of times such sexual relations
occurred. Respondent additionally admitted that the parties
engaged in sexual relations on three or four occasions after
they separated and at a time when she had knowledge of his
additionally testified in support of her allegation of
cruelty and, based on this testimony, the family court found
that petitioner "was physically abusive and mentally
abusive" of respondent. This finding was based upon
respondent's testimony that on July 17, 2016, petitioner
[b]roke furniture and furnishings in the marital home;
refused to allow [respondent] to leave their bedroom by
blocking the door; interfered with [respondent's] ability
to make a telephone call seeking help by taking the telephone
from [respondent's] sister and cancelling the
sister's call to the 911 operator; and disabling
[respondent's] vehicle with the intention of denying
[respondent] the ability to flee the marital domicile.
to the family court, petitioner's actions "resulted
in [respondent] . . . obtaining a domestic violence
protective order" against him. Based on this evidence,
the family court found that petitioner's behavior
constituted cruel and inhuman treatment and entitled
respondent to a divorce on grounds of cruelty.
family court additionally made extensive findings concerning
the allocation of custodial responsibility to the children
that are not relevant to this appeal. The family court
further found that evidence of e-mails "clearly prov[ed]
that [petitioner] . . . violated the Court's Order
entered on November 21, 2016, by communicating with sexual
partners during his parenting time with the children."
family court further undertook equitable distribution of the
parties' assets and debts, including a trucking business,
VLM Truck Lines, LLC, ("VLM") established during
the marriage. According to the family court, the business
"was in operation at the time of the parties'
separation and had assets at that time." Additionally,
"[a]t the time of separation, [respondent] was listed as
a member of the LLC on the records maintained by the West
Virginia Secretary of State." However, "[a]round
the date of separation, [petitioner] unilaterally removed the
name of [respondent]" from those records. Ultimately,
the family court found that petitioner "presented no
evidence to rebut the presumption that the assets of [the
business] are to be divided equally" between the
parties. As such, the family court found that the assets
should be ascertained, valued, and equitably divided.
family court also heard evidence concerning a tool trailer.
Petitioner testified that he last saw it on the property of
another individual and that ownership was transferred in
January of 2016 as payment for services rendered and the use
of a garage and tools. Respondent, however, testified that
she was not informed of this transaction and that the trailer
was parked below the parties' home after they separated.
On this issue, the family court found "the testimony of
[respondent] to be credible . . . and that [petitioner] . . .
attempted to hide this marital asset after the parties
separated." As such, petitioner was ordered to return
the trailer and its contents so that it could be sold in
accordance with the court's orders. The family court
further awarded respondent the ownership of the marital home,
"with compensation to [petitioner] for his interest
there in the amount of $20, 816.00."
as it relates to this appeal, the family court awarded
respondent attorney's fees, in part, due to "many
instances of [petitioner's] oppressive and otherwise bad
conduct." According to the family court,
petitioner's conduct resulted in "multiple contempt
petitions" in addition to "the delayed settlement
of an insurance claim and the delayed sale of personal
property" under the terms of the family court's
orders. As such, the family court awarded respondent $10,
452.05, which constituted seventy percent of her reasonable
October of 2017, petitioner appealed the family court's
order to the circuit court. Ultimately, the circuit court
affirmed the family court's order, although it also
modified the payment petitioner owed respondent in relation
to a vehicle. According to the circuit court, although the
family court did not err in finding that a vehicle was
marital property, "[i]t . . . appear[ed] however that
[petitioner] was charged with this money twice" which
resulted in respondent "receiving an extra award of
$2500.00." As such, the circuit court affirmed the
family court's order, with a modification "to the
extent that the equalizing payment [petitioner] owes