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Vladimirov v. Vladimirov

Supreme Court of Appeals of West Virginia

January 13, 2020

Desislava Vladimirov, Petitioner Below, Petitioner
v.
Nedeltcho Vladimirov, Respondent Below, Respondent

          Kanawha County 13-D-1714

          MEMORANDUM DECISION

         Petitioner Desislava Vladimirov, by counsel Christopher T. Pritt, appeals the Circuit Court of Kanawha County's June 28, 2018, order affirming the Family Court of Kanawha County's May 30, 2018, equitable distribution order in the divorce proceeding. Respondent Nedeltcho Vladimirov, by counsel Henry R. Glass III, submitted a summary response in support of the circuit court's order.

         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 is appropriate under Rule 21 of the Rules of Appellate Procedure.

         According to the May 30, 2018, "Order for Equitable Distribution" entered by the Family Court of Kanawha County, the parties owned both real estate and personal property, and one or both parties had bank accounts, PayPal accounts, medical bill refunds, workers' compensation claim benefits, and retirement accounts.[1] According to that order, subsequent to the final hearing the parties entered an agreed order regarding the marital home, granting exclusive ownership and possession of that home to respondent. In addressing gold coins the couple owned, the family court stated that petitioner contended they were subject to equitable distribution and had a value of $5, 000; however, she "provided no basis for such value." Respondent presented an exhibit showing that the sale of gold coins in January and February of 2012 was for $1, 308 and $8, 697.80, with the funds deposited into the couple's joint account. He testified that the remaining gold coins have a value of approximately $500 and proposed that they be divided equally. The family court found that the best evidence regarding the gold coins was that provided by respondent.

         The family court stated that "[r]espondent owns guns which he described and valued totaling $1, 100, and which remain in the residence occupied by [p]etitioner. Respondent valued the guns at $2, 000 but provided no basis for such value." Based on the assignments of error, it appears that petitioner was the one who valued the guns at $2, 000. The family court found that respondent provided the best evidence regarding the value of the guns, and he was awarded possession of those guns.

         The family court order provides that petitioner asserted a claim for "Conrad" credits.[2] However, that court found as a matter of law that the pronouncements in Conrad are inapplicable to this case since petitioner continued to reside in and benefit from mortgage payments made by her from the joint account during the relevant time period. It further found that "during the period of time aforementioned [p]etitioner continued to have her paychecks deposited into the joint bank account of the parties from which the expenses were paid, which creates a presumption of gift which she failed to rebut."

         In that order, the family court determined that, because it was unlikely that respondent could qualify for a loan sufficient to purchase a suitable residence for him and the parties' minor child in the immediate future, he should be awarded ownership of the former marital home, subject to him fully assuming and indemnifying petitioner for the existing mortgage indebtedness, refinancing the home in his name within two years, and immediately placing the home on the market for sale and promptly selling the home for an amount that results in full payment of the mortgage balance in the event he defaults on any monthly mortgage payment for a period exceeding thirty days.

         Petitioner appealed that distribution order to the Circuit Court of Kanawha County on June 27, 2018. By order entered June 28, 2018, the circuit court denied and dismissed petitioner's appeal. Petitioner appeals from that order.

         As this Court has found,

"[i]n 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." Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

Syl. Pt. 2, In re K.H., 235 W.Va. 254, 773 S.E.2d 20 (2015). Further, as this Court has set forth,

"'[i]n general, an abuse of discretion occurs when a material factor deserving significant weight is ignored, when an improper factor is relied upon, or when all proper and no improper factors are assessed but the circuit court makes a serious mistake in weighing them.'" [State v. Hedrick, 204 W.Va. 527, 553, 514 S.E.2d 397, 403 (1999)] (quoting Gentry v. Mangum, 195 W.Va. 512, 520 n. 6, 466 S.E.2d 171, 179 n. 6 (1995)).

Shafer v. Kings Tire Service, Inc., 215 W.Va. 169, 177, 597 S.E.2d 302, 310 (2004).

         On appeal, petitioner asserts five assignments of error. However, we will not address the merits of the assignments of error that do not comply with Rule 10(c)(7) of ...


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