Matthew H. v. Heather H.

Matthew H., Respondent Below, Petitioner v. Heather H., Petitioner Below, Respondent

No. 15-1074

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

October 28, 2016

(Harrison County 14-D-35)

MEMORANDUM DECISION

Petitioner Matthew H.,¹ pro se, appeals the October 1, 2015, order of the Circuit Court of Harrison County affirming the March 26, 2015, decree of divorce entered by the Family Court of Harrison County. In the March 26, 2015, decree of divorce, the family court granted Respondent Heather H. a divorce on the grounds of adultery and cruel and inhuman treatment. The family court also made rulings with regard to parenting time and equitable distribution, and ordered that each party was responsible for his or her own attorney's fees. Respondent, by counsel Delby B. Pool, filed a response and cross-appeal, and 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. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the Rules of Appellate Procedure and is appropriate for a memorandum decision.

For the reasons expressed below, we affirm, in part, and reverse, in part, the decision of the family court, and remand this case to the family court with directions to (1) apportion the previously undesignated payments in the total amount of $12,000 between equitable distribution and child support and to recalculate each party's share of the marital estate, if necessary; and (2) reevaluate whether respondent is entitled to be awarded her attorney's fees with specific findingsregarding the factors listed in syllabus point four of Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996).

The parties married on July 12, 2003, in Harrison County, West Virginia. During the marriage, the parties produced three children: M.H. (born September 6, 2006), E.H. (born October 23, 2008), and G.H. (born June 1, 2011). The parties separated on October 3, 2013. While the parties dispute whether petitioner's relationship with a coworker became sexual before or after the date of their separation, petitioner admits to a sexual relationship with his coworker prior to the filing of respondent's petition for divorce on January 16, 2014. In her petition, respondent sought a divorce on grounds of (1) adultery; and (2) cruel and inhuman treatment.

By an order pendent lite entered April 7, 2014, the family court made rulings with regard to temporary child custody and visitation, and temporary support payments. First, the family court ruled that the children would reside with respondent and that petitioner shall have visitation from Friday at 6:00 p.m. to Sunday at 6:00 p.m. each weekend except for the weekend which includes the third Friday of the month. The family court ordered that, if petitioner "is not present to pick up the children by 6:20 p.m.[,] . . . his pick[-]up time shall be Saturday morning at 10:00 a.m." Regarding temporary support payments, the family court ordered that beginning on March 1, 2014, petitioner shall pay respondent $3,000 per month and that "$1[,]800 shall be considered child support, and $1[,]200 shall be undesignated until the final hearing."

On June 23, 2014, respondent filed a motion to compel certain discovery responses from petitioner. Following a July 7, 2014, hearing, the family court ruled on the parties' discovery disputes. By order entered July 18, 2014 order, the family court noted that respondent also requested to be awarded her attorney's fees, but deferred ruling on that request until after "the trial on the merits."²

In July of 2014, the parties reached an agreement in their case during court-ordered mediation. However, petitioner subsequently filed a motion for leave to repudiate that agreement. By order entered October 7, 2014, the family court allowed petitioner to repudiate the parties' agreement, but also found that the parties "were in agreement" that the April 7, 2014, order pendent lite should be modified to include the holiday schedule produced by the parties during the mediation. Accordingly, the family court modified the order pendent lite to include the holiday schedule to govern any holidays occurring before the final divorce hearing.

A final divorce hearing was held on December 1, 2014. At that hearing, the parties, respondent's parents, and various other witnesses testified. At the conclusion of the hearing, the family court made certain findings on the record.³ First, the family court found that the evidencesupported granting respondent a divorce on both of her asserted grounds. The family court determined (1) that petitioner committed adultery; and (2) that, by both alternatively lying and telling the truth about his affair with his coworker, petitioner engaged in cruel and inhuman conduct that rose "to the level of destroying [respondent]'s mental well-being." The family court found that petitioner's conduct made cohabiting with him "unendurable" and supported "[respondent's] withdrawal from the marriage." With regard to parenting time, the family court ruled that the parties would continue to divide holidays with the children pursuant to the schedule produced by them during the previous mediation.

Next, the family court made rulings regarding the equitable distribution of the marital estate. The family court awarded a Nissan automobile to respondent, and directed her to sell that vehicle and apply the proceeds of the sale to make repairs to the basement of the marital home. The family court stated that it expected to freeze petitioner's equity in the marital home as of the date of the final hearing. The family court found that, if it froze petitioner's equity in the home, any windfall from a raise in property value would go to respondent and found that such a result would be equitable because respondent is "making the future payments and bearing the property taxes, insurance, etc. for the home." Finally, the family court deferred making any rulings on other issues including respondent's request for attorney's fees.⁴ The family court noted that "all objections of either party" were preserved.

The family court subsequently entered its decree of divorce on March 26, 2015, in which the court incorporated its oral rulings from the December 1, 2014, final hearing as well as additional rulings the court communicated to the parties in separate letters dated December 11, 2014, and February 18, 2015. The family court granted respondent a divorce based upon adultery and cruelty on the part of petitioner.

With regard to parenting time, the family court found that respondent performed at least 80% of the pre-separation child rearing functions and designated her as the primary custodial parent. The family court awarded petitioner parenting time on the following schedule: (a) alternate weekends from 6:00 p.m. Friday to 6:00 p.m. Sunday; (b) Thursday evenings from 6:00 p.m. to 9:00 p.m.; and (2) two ten-day periods during the summer for vacations. The family court also gave respondent one full week of uninterrupted vacation time and confirmed that parenting time on holidays shall be on the schedule produced by the parties during court-ordered mediation, including provisions that the children attend church on Christmas Eve and on Easter morning with respondent. The family court kept the provision from the April 7, 2014, order pendent lite that, if petitioner fails to pick up the children by 6:20 p.m. at the start of his parenting time, he will pick them up at 10:00 a.m. on Saturday morning. The family court noted that this provision would apply, "unless otherwise agreed" between the parties.⁵

With regard to the equitable distribution of marital property, the family court confirmed that "[petitioner]'s equity in the last marital home is frozen as of the date of separation" and that, if the house is sold for more than the stipulated value of $350,000, "any windfall goes to [respondent]." The family court ruled that the marital home had to be listed for sale by December 31, 2016. Based on an attached worksheet of the parties' debts and asserts, the family court awarded respondent $120,013 from the marital estate and awarded petitioner $110,219. The family court found that the distribution of the marital estate was "equitable" despite the fact that the division of assets and debts was "not exactly even[.]" The family court further found that the previously undesignated payments made by petitioner to respondent in the amount of $1,200 per month pursuant to the April 7, 2014, order pendent lite were both "equitable distribution and child support."⁶ Finally, the family court ruled that each party was responsible for his or her own attorney's fees.

On April 27, 2014, petitioner filed a motion for the family court to reconsider the March 26, 2015, decree of divorce. The family court denied the motion by order entered May 27, 2015. With regard to parenting time, the family court found that, to the extent that petitioner had more time with the parties' children during the pendency of the case, "[t]emporary rulings are not the starting point, or minimum expectations, for either party, and neither party should expect his/her relief after [the final hearing] to be automatically enhanced." Following the family court's denial of his motion for reconsideration, petitioner appealed to the circuit court. Respondent filed a cross appeal regarding the denial of her attorney's fees. By order entered August 28, 2015, the circuit court remanded the case to the family court with directions to file its December 11, 2014, and February 18, 2015, letter rulings. The family court filed its letter rulings on August 31, 2015.

After the entry of the family court's letter rulings, the circuit court affirmed the March 26, 2015, decree of divorce. With regard to the grounds for divorce, the circuit court found that the family court did not...