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Vernon M. v. Jan M.

Supreme Court of West Virginia

February 15, 2019

Vernon M., Respondent Below, Petitioner
v.
Jan M., Petitioner Below, Respondent

          Nicholas County 16-D-145

          MEMORANDUM DECISION

         Petitioner 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.[1] 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 attorney's fees.[2]

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

         The parties were married in Nicholas County, West Virginia, in August of 2003.[3] 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.

         In 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.

         In 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. . . ."

         When 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 adultery.

         Respondent 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.

         According 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.

         The 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."

         The 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.

         The 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."

         Finally, 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 attorney's fees.

         In 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 ...


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