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In re Marriage/Children of Charles H.

Supreme Court of West Virginia

May 3, 2019

In Re: The Marriage/Children of: Charles H., Respondent Below, Petitioner
v.
Ruby M., Petitioner Below, Respondent

          Berkeley County 16-D-530

          MEMORANDUM DECISION

         Petitioner Charles H., [1] pro se, appeals the August 7, 2017, order of the Circuit Court of Berkeley County affirming the January 13, 2017, order of the Family Court of Berkeley County. In the January 13, 2017, order, the family court granted the parties a divorce and awarded the marital home and accompanying real estate to petitioner's wife, Respondent Ruby M.[2] Respondent, pro se, filed a response. Petitioner filed a reply.

         The 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 married on December 23, 1988, [3] and last cohabitated together on June 13, 2016, in Berkeley County. Respondent filed a petition for divorce on June 24, 2016, and petitioner filed an answer on August 10, 2016, in the Family Court of Berkeley County. The family court held a final hearing on December 6, 2016. The parties informed the family court that the primary issue was that "both parties want[ed] the house." The parties agreed that they never actually lived in the marital home because it was under construction for a substantial portion of their marriage.[4]At the time of the December 6, 2016, hearing, construction was nearly complete and the parties stated that the necessary permits would be obtained to finish the house.

         Respondent's attorney stated that respondent would waive her claim for spousal support if she was awarded the marital home and that respondent's arguments for being granted possession of the house were set forth in a separate motion. The family court responded that it had reviewed respondent's motion. Petitioner made no objection to the family court's consideration of respondent's motion that she be awarded the marital home. Similarly, petitioner failed to object to the family court's decision to follow respondent's pretrial memorandum in addressing ownership of various assets. When questioned by the family court, both parties answered that the house constituted a marital asset that belonged in the equitable distribution of property. The parties agreed that the marital home's appraised value was $142, 000 and that the property was encumbered by a mortgage in the amount of $37, 250 and a personal loan in the amount of $6, 820.

         By order entered January 13, 2017, the family court granted the parties a divorce and, as part of the equitable distribution, awarded the marital home and accompanying real estate to respondent. Accordingly, the family court required respondent to "remove [petitioner]'s name from the lien indebtedness . . . by December 1, 2017," and ordered that respondent was responsible for repaying both the mortgage and the personal loan. The family court further ordered that, "[t]o equalize [the] equitable distribution[, respondent] shall pay to [petitioner] the sum of $28, 804.00, plus 5% statutory interest from the date of entry of [this order] with said payment due on or before December 1, 2017." Finally, the family court noted that both parties knowingly and voluntarily waived any claim for spousal support.

         Petitioner appealed the family court's January 13, 2017, order to the Circuit Court of Berkeley County, arguing that the recording of the December 6, 2016, hearing did not have the portion of the hearing where the parties presented their evidence with regard to the possession of the marital home and accompanying real estate. The circuit court rejected petitioner's request that the case be remanded to the family court for a new hearing, finding that the record was sufficiently developed regarding the disposition of the martial home that no remand was required and that the facts pertaining to that issue were not in dispute. The circuit court further found that petitioner's argument-that the family court erred in considering respondent's motion and pretrial memorandum because respondent failed to timely serve those documents on petitioner-was without merit. The circuit court concluded that the family court did not abuse its discretion in awarding the marital home to respondent as part of the equitable distribution and affirmed the family court's January 13, 2017, order.

         Petitioner now appeals the circuit court's August 7, 2017, order affirming the family court's January 13, 2017, order that awarded the marital home and accompanying real estate to respondent. We review this matter under the following standard:

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 argues that the circuit court erred in failing to remand this case for a new hearing before the family court because the recording of the December 6, 2016, hearing did not have the portion of the hearing where the parties presented their evidence with regard to the possession of the marital home. Rule 29 of the West Virginia Rules of Practice and Procedure for Family Court provides that:

If essential portions of the recording of proceedings before a family court are inaudible or unavailable, the circuit court may recommit the case to the family court. The family court may then take evidence; and/or may accept from any party a proposed statement of the pertinent facts. Such statements shall include the maker's certification the facts are accurately presented to the best of that person's knowledge and belief, and shall be served on all parties. Any party may object to a proposed statement of facts by filing written objections with the family court within ten days of the date of service of the statement upon them.

(Emphasis added.). "The . . . use of the word 'may' usually renders the referenced act discretionary, rather than mandatory, in nature." Syl. Pt. 1, Pioneer Pipe, Inc. v. Swain, 237 W.Va. 722, 791 S.E.2d 168 (2016). Based on our review of the record, we conclude that the circuit court did not abuse its discretion in rejecting petitioner's request that the case be remanded to the family court for a new hearing. Furthermore, upon our review of the appellate record, we concur with the circuit court's findings that the record was sufficiently developed regarding the disposition of the martial home and that the facts pertaining to that issue were not in dispute.

         The partial recording of the December 6, 2016, hearing reflects that the family court considered respondent's motion setting forth her reason for requesting possession of the marital home and accompanying real estate: that the property is adjacent to or near the properties of respondent's family members. Petitioner argues that he did not have an adequate time to review respondent's motion because that motion, together with her pretrial memorandum and witness list, were not timely served on him pursuant to Rule 6(d)(1)(A) of the West Virginia Rules of Civil ...


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