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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

Emma S.,

Petitioner Below, Petitioner

vs.) No. 22-ICA-127 (Cir. Ct. Cabell Cnty. No. 20-D-291) 

Joe W.,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Emma S.1appeals the Circuit Court of Cabell County’s August 9, 2022, 

“Order Denying Appeal and Affirming Family Court Order.” Emma S. asserts that the 

circuit court abused its discretion in affirming the family court’s finding that the deed 

signed by Respondent Joe W. was a sham deed prepared at her request in contemplation of 

divorce. Joe W. responded in support of the circuit court’s order. Emma S. did not file a 

reply.2

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds no substantial question of law and no prejudicial error. For 

these reasons, a memorandum decision affirming the lower tribunal’s order is appropriate 

under Rule 21 of the Rules of Appellate Procedure. 

The parties were married in Cabell County on September 7, 2018. Joe W. purchased 

the real estate across from his family home prior to the marriage of the parties. Shortly 

before filing for divorce, Emma S. asked Joe W. to deed said property into her name for 

the purported purpose of bundling insurance. The deed also included the parties’ minor 

child as a grantee. On May 12, 2020, Joe W. signed a deed, prepared by Emma S., which 

transferred the property to her name. Joe W. testified that he never intended to give Emma 

S. the residence. The deed was never recorded. 

1 To protect the confidentiality of the parties involved in this case, we refer to the 

parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward 

Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). 

2 Emma S. is represented by Mark E. Hobbs, Esq. Joe W. is represented by Amy 

M. Herrenkohl, Esq. 

FILED

April 10, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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The underlying action began when Emma S. filed a petition for divorce with the 

Family Court of Cabell County, alleging irreconcilable differences. The parties appeared 

before the family court for hearings on the petition for divorce on January 14, 2021, April 

20, 2021, and September 21, 2021. Emma S. testified that she prepared the deed at Joe 

W.’s insistence. Joe. W. testified that his sole intent in signing the deed was to insure the 

property in case something happened to it, not to gift the property to Emma S. On May 17, 

2022, the family court entered a “Corrected Final Divorce Decree,” which divided the 

parties’ property. Regarding the property at issue in this case, the family court found that 

there was no evidence that Joe W. intended to gift the property to his wife or surrender 

property rights. The family court held that the deed was a sham deed and represented an 

attempt by Emma S. to take advantage of Joe W. in contemplation of divorce, as she filed 

for divorce approximately one month after the deed was signed. Further, the family court 

found that the home was the separate property of Joe W. and ordered that the deed 

transferring the property to Emma S. be set aside as null and void. 

Emma S. appealed the family court’s ruling to circuit court. By order entered on 

August 9, 2022, the circuit court affirmed the findings of the family court and concluded 

that the deed was invalid, and that the home was the separate property of Joe W. It is from 

this order that Emma S. now appeals. Our standard of review is as follows:

“In reviewing a final order entered by a circuit court judge upon 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. Pt., Carr v. 

Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P., No. 22-ICA-2, __ W. Va.__ S.E.2d __, 2022 WL 17098574, 

at *3 (Ct. App. Nov. 18, 2022); accord W. Va. Code § 51-2A-14(c) (2005) (specifying 

standards for appellate court review of family court order).

On appeal, Emma S. raises a single assignment of error, arguing that the family

court abused its discretion in finding that the deed was nothing more than a sham attempt 

to take advantage of Joe W. in contemplation of divorce, and the circuit court erred in 

affirming these findings. Emma S. asserts that the deed was signed before a notary public, 

and that the property was also conveyed to the parties’ child. Further, she argues that Joe 

W. stated that the transfer was a good investment for their son, indicating that the transfer 

was voluntary. Emma S. cites West Virginia Code § 39-1-2 (1933)3and argues that the 

3 West Virginia Code § 39-1-2 provides that:

[t]he clerk of any county in which any deed, contract, power of 

attorney, or other writing is to be, or may be, recorded, shall admit the same 
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deed is valid because it contains the signature of the grantor, a valid description, and an 

acknowledgement by a notary public of Joe W.’s signature. 

With regard to conveyances between spouses, West Virginia Code § 48-29-201 

(2001) states:

[t]he burden of proof in any proceeding questioning the validity or lawfulness 

of any conveyance or transfer of property or any interest in property from 

one spouse to the other spouse by the spouse making the conveyance or 

transfer. . . is on the spouse in whose favor the conveyance or transfer was 

made.

Further, West Virginia Code § 48-29-202 (2001) provides that in the case of an 

action “wherein the court is required to determine what property of the parties constitutes 

marital property and equitably divide the same, the presumption created by this section 

does not apply, and a gift between spouses must be affirmatively proved.” 

The family court found that Joe W. did not intend to transfer ownership of the 

property when he signed the deed. It is generally recognized that to have a valid inter vivos

gift, three requirements must be met “(1) there must be an intention on the part of the donor 

to make a gift; (2) there must be a delivery or transfer of the subject matter of the gift, and 

(3) there must be acceptance of the gift by the donee.” Brewer v. Brewer, 175 W. Va. 750, 

751-52, 338 S.E.2d 229, 230, 231 (1985) (per curiam). The Supreme Court of Appeals of 

West Virginia has stated that “[t]o constitute a valid gift inter vivos, the donor must intend 

at the time to part with his title to the property and his power over it and to bestow upon 

the donee a complete and irrevocable title thereto.” Id. at 752, 338 S.E.2d at 231 (1985)

(citation omitted). Further, Emma S. represented that the purpose of the transfer was to 

bundle insurance, but such insurance was never obtained. 

West Virginia Code § 48-1-237 (2001) defines separate property in part as, 

“[p]roperty acquired by a person before marriage.” There is not dispute that Joe W. 

purchased the subject property several years before the parties were married, which 

qualifies the home as separate property. The record indicates that Emma S. approached Joe 

W. about the deed transferring the property to her only one month prior to filing for divorce, 

and that she represented that the deed was solely for the purpose of bundling insurance. 

Such evidence is clearly inconsistent with an intent by Joe W. to gift her the property.

Further, the circuit court weighed evidence about the intent of the parties and the 

to record in his office, as to any person whose name is signed thereto, when 

it shall have been acknowledged by him, or proved by two witnesses as to 

him. . . .”
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surrounding circumstances before affirming the family court’s finding that the deed was 

invalid. 

For these reasons, we find that the circuit court did not abuse its discretion in 

affirming the findings of the family court that the deed was a sham prepared in anticipation 

of divorce. Accordingly, we affirm the Circuit Court of Cabell County’s August 9, 2022, 

order.

Affirmed.

ISSUED: April 10, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear

Judge Thomas E. Scarr

Judge Charles O. Lorensen