STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Mark B. Shaffer,
 

Respondent Below, Petitioner
 FILED 

vs) No. 15-0860 (Jackson County 13-D-117) June 6, 2016 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS Deanna L. Shaffer, OF WEST VIRGINIA 

Petitioner Below, Respondent 

MEMORANDUM DECISION 

Petitioner Mark B. Shaffer (hereinafter “the husband”), by counsel Lee F. Benford II, 

appeals the Circuit Court of Jackson County’s July 28, 2015, order reversing the family court’s 

order that denied an award of attorney’s fees and costs. Respondent Deanna L. Shaffer 

(hereinafter “the wife”), by counsel Leah R. Chappell, filed a response in support of the circuit 

court’s order. On appeal, the husband argues that the circuit court erred in reversing the family 

court’s order denying the wife’s motion for attorney’s fees and costs.1 

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 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 in May of 1997. On February 14, 2013, the husband contacted police 

in response to the wife firing a gun near the marital home. Police arrived and arrested the wife. 

Thereafter, the parties separated. The husband remained in the martial home where he 

maintained possession of all of the couple’s assets with the exception of the wife’s vehicle, her 

clothing, and $4,000 in currency. The wife did not return to the marital home until after she filed 

for divorce in April of 2013. 

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At the outset of his brief to this Court, the husband lists seven distinct grounds for relief 

including that the circuit court erred in: (1) reversing the family court’s order; (2) ruling that the 

family court’s findings of fact were clearly erroneous; (3) finding that the family court’s order 

was an abuse of discretion; (4) awarding $29,379.32 in attorney’s fees and costs for the 

underlying family court proceedings; (5) awarding $2,000 in attorney’s fees and costs for the 

appeal to circuit court; (6) awarding $1,757.24 in prejudgment interest; and (7) awarding fees 

and costs that were excessive and unreasonable. While these grounds were listed as seven 

distinct assignments of error, the argument section of the brief discusses only five of those 

grounds (1, 2, 3, 4, and 7) and does so in one, undivided discussion. As such, we will address 

only those five related grounds properly presented to this Court, and we will address them as one 

assignment of error: Whether the circuit court erred in reversing the family court’s order denying 

the wife’s motion for attorney’s fees and costs. 

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In May of 2013, by agreed temporary order, the family court ordered the husband to 

permit the wife to inspect certain contents of the marital home and to review and copy records of 

a family construction business. The husband was also ordered to provide monthly business 

statements to the wife listing financial details of the on-going family business. At or around this 

time, it was determined that the parties had approximately $162,000 in joint bank accounts and, 

therefore, the family court ordered the husband to provide the wife with $40,000 to satisfy her 

short-term financial needs. 

In July of 2013, the wife filed a petition for contempt and enforcement of the May of 

2013 temporary order. In that petition, she alleged that the husband concealed and/or destroyed 

assets in violation of the family court’s order. The husband filed a verified response denying 

concealment and/or destruction of assets. 

In July and August of 2013, the family court held two hearings on the contempt petition. 

At those hearings, the husband testified that he had used prescription medication and forgotten to 

have the tool trailer at the marital home for the court-ordered inspection; that the flat trailer and 

dump trailers were his “personal stuff” and were at his friend’s residence; that there were seven 

or eight firearms in the home’s safe at the time of the inspection, but he had bought and sold five 

or six guns since the parties’ separation in February of 2013; that the parties purchased a truck in 

2012 for approximately $41,000, but he sold the truck to his brother the day following the 

parties’ separation for $4,000; that he had not completed a certain residential building project in 

2012 but had only done “bits and pieces” for the home owners; that he would not state the 

amount he was paid for the “bits and pieces” and claimed to have no contract for that work; that 

he had no substantial amount of cash from that 2012 project; that he failed to provide certain tax 

returns during the court-ordered inspection because he left them in a storage unit but that the 

family business made no income to report, although he did some work personally; and that he 

disclaimed all knowledge of his mandate to provide monthly business statements to the wife. 

The subsequent family court order found the husband’s testimony “incredible” and found 

him in contempt for failure to comply with the May of 2013 agreed order. However, in place of 

sanctions against the husband, the family court directed the parties to engage in discovery to 

“reconstruct” the records the husband failed to produce. A second inspection of the marital home 

was also ordered. The wife later paid for a transcript of this proceeding to be placed in the family 

court’s file. 

In September of 2013, the family court held a hearing following further discovery. 

Testimony revealed that the husband was paid more than $50,000 in 2012 to build a residence. 

Receipts showed that the payments were made directly to the husband. Evidence further 

demonstrated that the husband performed other work following the parties’ separation. 

Later that month, the husband was deposed. During his testimony, he acknowledged that 

he was paid more than $50,000 for the 2012 residential project; that he removed marital money 

from bank accounts and “keep[s] it hid”; and that he might retain as much as $25,000 cash in 

marital money. Following this deposition, the wife moved the family court to order that any 

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outstanding cash sums of marital assets be placed in a bank account pending further proceedings. 

In response, the husband admitted that he held approximately $162,000 in a safe. 

In December of 2013, the family court held a review hearing. The family court heard 

evidence and argument that it was revealed during the discovery process that the husband 

purchased a new gun safe sometime after the parties’ separation. In light of this new safe, the 

family court ordered that the wife be permitted to inspect and inventory the contents of the new 

safe immediately following the hearing. The wife and her counsel inventoried dozens of firearms 

and approximately $122,000 in cash located in that safe. 

In January of 2014, the family court entered an order directing the wife to receive more 

than $41,000 from the husband. That order further preserved the wife’s ability to tender a claim 

for attorney’s fees and costs for the August of 2013 hearing so as to submit a total claim at one 

time. 

In March of 2014, the family court held a final hearing in this matter. At that time, the 

parties entered into a property settlement agreement. In addition to accepting the property 

settlement, the family court heard evidence that the husband had concealed a safe in the marital 

home during the first two court-ordered inspections. Although the husband claimed the safe was 

“present” during the first two inspections, it was reportedly hidden under a large box labeled 

“truck parts” in a garage area. Further, the wife presented evidence that she had accrued 

considerable attorney’s fees and costs in this litigation. At the conclusion of the hearing, the 

family court ordered that the wife could access the marital home during a two-day period in 

April of 2014 to retrieve her belongings as awarded to her in the property settlement. The wife’s 

claim for spousal support remained pending at that time. 

In May of 2014, the wife filed a second petition for contempt and enforcement. In that 

petition, she alleged that the husband prevented her from retrieving all of her personal property 

during the two-day period in April of 2014, as ordered by the family court. The husband filed an 

answer and cross-petition for contempt alleging damage to the marital home. 

In August of 2014, the family court held a hearing on the cross-petitions. At that hearing, 

the husband admitted that he was not in compliance with the family court’s order arguing that he 

did not understand why he should have to re-arrange the marital home for the wife to access her 

items or why she could inspect items that were not awarded to her. By order entered in 

September of 2014, the family court again found the husband in contempt, but denied the crosspetition for contempt against the wife. In addition to that order, the family court also awarded the 

wife a lump-sum spousal support payment of $20,000. 

In late September of 2014, the wife moved for attorney’s fees and costs in the amount of 

$32,504.32 ($27,335 in attorney’s fees and $5,169.32 in litigation costs). The family court 

ultimately denied the wife’s motion for attorney’s fees and costs. In a three-page order, the 

family court found that (1) each party could pay their own attorney’s fees; (2) both attorneys 

obtained beneficial results for their clients; (3) the financial condition of the parties was equal 

because the wife had “limited financial needs” while the husband “could” potentially have high 

health care expenses; (4) requiring the husband to pay for the wife’s attorney’s fees and costs 

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would impact his standard of living more than hers because such a payment would come from 

his earned income, whereas she could pay out of her property settlement; (5) the husband 

committed intransigence but the wife was granted attorney’s fees in previous orders, and the wife 

was arrested and pled no contest to domestic assault at the outset of this case; (6) both parties 

participated in hiding income, if any was hidden, by the filing of inaccurate tax returns and there 

was no significant dispute over the guns that the husband hid during these proceedings; (7) the 

wife’s counsel submitted a reasonable per hour fee of $175 but many of the costs were for 

strategic decisions that should not be the basis of a costs award; and (8) the wife was not entitled 

to an award of attorney’s fees and costs.2 The wife appealed the family court’s denial order to the 

circuit court. 

In July of 2015, the circuit court held a hearing on the appeal. Following that hearing, the 

circuit court entered a final order granting the appeal and reversing the family court’s denial of 

attorney’s fees and costs to the wife. In that order, the circuit court found that the family court 

erred in making the eight findings detailed above. Moreover, the circuit court concluded, 

contrary to the family court’s findings, that the husband committed ongoing misconduct and 

contemptuous behavior that directly inflated the time and effort expended by the wife’s counsel 

in protecting her interests in this matter. Consequently, the circuit court found that the attorney’s 

fees and costs requested herein were reasonable and appropriate. Therefore, the circuit court 

awarded the wife $31,379.32 in attorney’s fees and costs ($29,379.32 for the underlying family 

court proceedings and $2,000 for the circuit court appeal). The circuit court also awarded the 

wife $1,757.24 in prejudgment interest. This appeal followed. 

In reviewing the circuit court’s order in this matter, this Court employs 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.” Syllabus, Carr v. Hancock, 216 

W.Va. 474, 607 S.E.2d 803 (2004). 

Syl. Pt. 1, Ware v. Ware, 224 W.Va. 599, 687 S.E.2d 382, 384 (2009). Further, this Court has 

previously held that 

[i]n divorce actions, an award of attorney’s fees rests initially within the 

sound discretion of the family law master and should not be disturbed on appeal 

absent an abuse of discretion. In determining whether to award attorney’s fees, the 

family law master should consider a wide array of factors including the party’s 

ability to pay his or her own fee, the beneficial results obtained by the attorney, 

2

The family court also noted that the wife received a credit for her litigation costs in the 

final settlement of the parties, and, therefore, her costs should be reduced by $3,125. This aspect 

of the family court’s order was not appealed to the circuit court and is not before this Court in the 

instant appeal. 

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the parties’ respective financial conditions, the effect of the attorney’s fees on 

each party’s standard of living, the degree of fault of either party making the 

divorce action necessary, and the reasonableness of the attorney’s fee request.” 

Syl. Pt. 4, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996). 

Syl. Pt. 2, in part, Paugh v. Linger, 228 W.Va. 194, 718 S.E.2d 793 (2011). 

On appeal, the husband argues that the circuit court erred in reversing the family court’s 

order because the family court properly considered the Banker factors in denying the motion for 

attorney’s fees and costs. He further asserts that the circuit court abused its discretion in 

reversing the family court’s order on appeal because the family court acted within its discretion 

to grant or deny attorney’s fees and costs based on the circumstances of the case. The wife, on 

the other hand, contends that the circuit court properly evaluated the evidence in this case in 

great detail and at great length in its final order, and correctly found that the family court was 

unwarranted in denying the award, given the continual unnecessary litigation created by the 

husband’s behavior. 

“As a general rule each litigant bears his or her own attorney’s fees absent a contrary rule 

of court or express statutory or contractual authority for reimbursement except when the losing 

party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.” Syl. Pt. 9, Helmick 

v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991). West Virginia Code § 48-1­

305(a), (b), and (c) provide as follows: 

(a) Costs may be awarded to either party as justice requires and in all cases 

the court, in its discretion, may require payment of costs at any time and may 

suspend or withhold any order until the costs are paid. 

(b) The court may compel either party to pay attorney’s fees and court 

costs reasonably necessary to enable the other party to prosecute or defend the 

action. An order for temporary relief awarding attorney’s fees and court costs may 

be modified at any time during the pendency of the action, as the exigencies of the 

case or equity and justice may require, including, but not limited to, a 

modification which would require full or partial repayment of fees and costs by a 

party to the action to whom or on whose behalf payment of such fees and costs 

was previously ordered. If an appeal is taken or an intention to appeal is stated, 

the court may further order either party to pay attorney’s fees and costs on appeal. 

(c) When it appears to the court that a party has incurred attorney fees and 

costs unnecessarily because the opposing party has asserted unfounded claims or 

defenses for vexatious, wanton or oppressive purposes, thereby delaying or 

diverting attention from valid claims or defenses asserted in good faith, the court 

may order the offending party, or his or her attorney, or both, to pay reasonable 

attorney fees and costs to the other party. 

See also Syl. pt. 3, Sally-Mike Props. v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986) (holding 

that “[t]here is authority in equity to award to the prevailing litigant his or her reasonable 

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attorney’s fees as ‘costs,’ without express statutory authorization, when the losing party has 

acted in bad faith, vexatiously, wantonly or for oppressive reasons.”). 

In this case, it is clear that the family court abused its discretion in denying an award of 

reasonable attorney’s fees and costs to the wife. The record on appeal is replete with instances of 

the husband’s vexatious, wanton, and oppressive conduct that hindered and/or prolonged the 

legal efforts of the wife in the settlement of her claims. At various times in the underlying 

litigation, the husband refused to comply with court orders, which necessitated legal intervention 

by the wife; concealed assets during multiple court-ordered inspections of the marital home, 

which created the need for further inspections and litigation; provided false information during 

the proceedings on at least two occasions; and was held in contempt of court, which resulted in 

extended discovery. Further, while the family court briefly mentioned each of the Banker factors 

in its order denying the wife’s motion for attorney’s fees and costs, we find no error in the circuit 

court’s conclusion that the family court, “in large part, ignored the application of the Banker 

factors.” (Emphasis added.) The family court provided little application or analysis of the facts of 

this case to the Banker factors. 

Following a thorough review of the parties’ argument, the record on appeal, and all 

pertinent legal authority, we find no merit to the husband’s assignment of error. The record is 

clear that the family court abused its discretion in failing to find that there was sufficient 

evidence that the husband’s misconduct directly resulted in the wife’s accumulation of attorney’s 

fees and costs and, therefore, triggered the shift of attorney’s fees and costs to him. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: June 6, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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