IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2018 Term 

No. 17-0125 

GLORIA COWGER,
 

Petitioner
 

v.
 

DENNIS COWGER,
 

Respondent
 

FILED
 

February 28, 2018
 

released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

Appeal from the Circuit Court of Webster County
 

The Honorable Richard A. Facemire, Judge
 

Civil Action No. 15-D-24
 

REVERSED AND REMANDED
 

WITH DIRECTIONS
 

Submitted: January 16, 2018 

Filed: February 28, 2018 

Dominque Razzook, Esq. Jared S. Frame, Esq. 

Legal Aid of West Virginia Sutton, West Virginia 

Charleston, West Virginia Attorney for the Respondent 

Attorney for the Petitioner 

JUSTICE WORKMAN delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “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). 

2. “‘A finding is clearly erroneous when, although there is evidence to 

support the finding, the reviewing court on the entire evidence is left with the definite and 

firm conviction that a mistake has been committed. However, a reviewing court may not 

overturn a finding simply because it would have decided the case differently, and it must 

affirm a finding if the circuit court’s account of the evidence is plausible in light of the record 

viewed in its entirety.’ Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 

177 (1996).” Syl. Pt. 3, Estate of Bossio v. Bossio, 237 W. Va. 130, 785 S.E.2d 836 (2016). 

3. “Under the clearly erroneous standard, if the findings of fact and the 

inferences drawn by a family [court judge] are supported by substantial evidence, such 

findings and inferences may not be overturned even if a circuit court may be inclined to make 

different findings or draw contrary inferences.” Syl. Pt. 3, Stephen L.H. v. Sherry L.H., 195 

W. Va. 384, 465 S.E.2d 841 (1995). 

i 
 

 

4. “Questions relating to alimony and to the maintenance and custody of the 

children are within the sound discretion of the court and its action with respect to such 

matters will not be disturbed on appeal unless it clearly appears that such discretion has been 

abused.” Syllabus, Nichols v. Nichols, 160 W. Va. 514, 236 S.E.2d 36 (1977). 

ii 
 

 

 

Workman, Chief Justice: 

This is the appeal of Petitioner Gloria Cowger (“the Wife”) from the January 

10, 2017, order of the Circuit Court of Webster County, West Virginia, reducing the amount 

of permanent alimony to be paid to her by Respondent Dennis Cowger (“the Husband”). 

The family court, after hearing the evidence, ordered the Husband to pay permanent alimony 

to the Wife in the amount of $1,500 per month. But the circuit court, upon the Husband’s 

appeal, reversed the permanent alimony award and remanded the case to the family court for 

calculation of spousal support “in accordance with” its order. On remand, the family court 

recalculated the permanent alimony award, ordering the Husband to pay the Wife $439.02 

per month. The Wife appealed the reduced permanent alimony award to the circuit court, 

which refused the petition by order entered January 10, 2017. The Wife contends that 

1)“[t]he Circuit Court erred when it forced the Family Court to find that Husband’s business 

earned zero cash income, when Husband admitted a substantial portion of his business’ 

income was received in cash[;]” and 2)“[t]he Circuit Court erred in holding that the 

Husband’s testimony about his unrecorded labor costs must be accepted despite the Family 

Court’s multiple findings of the Husband’s fraudulent representations and lack of 

credibility.” Based upon a review of the parties’ briefs and arguments, the appendix record, 

and all other matters submitted before the Court, we reverse the circuit court and remand the 

1
 
 

 

 

 

 

case for reinstatement of the family court’s December 16, 2015, order setting the permanent 

alimony award to be paid by the Husband to the Wife at $1,500 per month. 

I. Factual and Procedural History 

The permanent alimony award was the only issue litigated before the family 

court.1 The parties were married for almost thirty-four years. 2 They separated on April 18, 

2015, and were granted a divorce by the family court, based upon irreconcilable differences. 

The Wife has a GED and only worked outside the home for a period of about four years 

during the course of the marriage. Her jobs were part-time, minimum wage and sporadic. 

The Wife had been out of the workforce for eleven years at the time of the divorce. She 

testified that she had been a stay-at-home mom when their children were minors. Since that 

time she continued her work around the home, which included mowing the lawn, stacking 

hay, paying the bills, doing laundry and taking care of her horses. The Wife’s only income 

at the time of the final divorce hearing was the $500 a month she was receiving in temporary 

alimony as she had been unable to find employment despite her efforts. Nevertheless, the 

family court found that the Wife “has the ability to earn a minimum wage income of 

$1,386.67 gross per month (or about $1,178.67 net per month), which minimum wage 

1

The parties reached agreement regarding equitable distribution and attorney’s fees, 

so those were not issues before the courts below. 

2

At the time of the divorce, the Wife was fifty-six years old and the Husband was 

fifty-eight years old. There were no minor children at the time of the divorce. 

2
 
 

 

 

 

 

 

income should be imputed to her in the determination of her need for alimony from” the 

Husband. The family court also found the Wife’s monthly expenses to be $2,531.56. Thus, 

the family court found that the Wife still had a need of at least $1,352.89.3 

The Husband has worked as a school bus driver for the Webster County Board 

of Education (“Board”) for over thirty-two years, a job he performs ten months of the year. 

In 2015, the Husband earned $32,532.50 (gross)from his job with the Board, which, after 

deductions, netted a monthly income of $1,592.35 or total yearly net of $19,108.18. 4 The 

family court found the Husband’s monthly expenses to be $2,670. The Husband also has 

operated his business D.C. Services, which does all types of construction services, for the 

past twenty-eight years. 

The primary focus of the evidence introduced before the family court was 

directed at D.C. Services and how much income the Husband actually realized from his 

business. The Husband did not keep records regarding either his costs expended or income 

generated with his business. 

3

The Husband did not object to these findings regarding the Wife’s finances. 

4

The Wife testified that the income from the Husband’s Board employment was 

deposited directly into their joint checking account and all their bills were paid with this 

income. 

3
 
 

 

 

The Wife testified that she previously helped with the business, “[a]nd then he 

just refused to let me help.” She did not assist at all with the finances of the business. The 

Wife testified that the Husband’s business income was paid by both cash and check and was 

deposited into a checking account established for the business only. The Husband had sole 

5 access to the account, as the Wife was not named or a signatory on the account. The Wife

testified that she received an allowance from the Husband of $300 per week in cash, which 

6 was corroborated by the Husband’s testimony that in 2015 he was giving the Wife “roughly

three hundred a week.” 7 This allowance did not come from their joint checking account, 

according to the Wife. 

The Wife also provided an expert witness, C. Page Hamrick, who testified 

about the Husband’s business. Mr. Hamrick essentially took the monthly deposits into the 

account for D.C. Services in calendar years 2011, 2012, 2013 and 2014, and multiplied those 

yearlydeposits byfiftypercent to arrive at the yearly income (after business deductions) from 

D.C. Services. According to Mr. Hamrick, the fifty percent total was “a very typical . . . 

5

There was another account for the guttering services the Husband provided through 

his business. According to the Wife, she did have access to this account. There was no other 

specific evidence about this account offered at the hearing in family court. 

6

The parties last lived together on or about April 18, 2015. 

7

The Wife stated that she had been receiving $500 per week from the Husband, but 

that the amount had reduced. There was no specific time given by the Wife as to when the 

reduction had occurred. 

4
 
 

 

 

 

 

 

 

percentage for a small business like this.” But the family court found much of the Wife’s 

expert’s report and testimonynot credible because the expert failed to interview the Husband, 

who was the only person who operated and kept records for D.C. Services, failed to review 

actual deposits and withdrawals from the D.C. Services bank account and failed to support 

using a fifty percent formula to calculate what the Husband’s net income was in the years 

examined. The family court, however, did find reliable the expert’s recognition that the 

income for D.C. Services was underestimated because the Husband never reported his 

expenses and labor costs, that the records for the Husband’s business were sparse and the 

numbers were “utterly inaccurate[,]” and that the parties had inaccurately reported income 

from the business to both the state and federal governments. 

After hearing the expert’s testimony and recognizing the quagmire that existed 

regarding the Husband’s business income due to the woefully incomplete and inaccurate 

records, the family court directed the Husband to submit the bank statements from his 

8 business, showing all deposits and withdrawals for the business account for 2013. That year

was not in dispute by the parties, as the family court found it to be “the last year . . . [the 

Wife] signed the joint tax returns filed by the parties . . . .” 9 According to the family court, 

8

There was no objection raised by the Husband regarding either the production of the 

bank records of the business for 2013 requested by the family court or the review of those 

records by the family court. 

9

The Wife testified that she refused to sign the joint tax return for 2014 as she had 

(continued...) 

5
 
 

 

 

 

 

 

it simply could not “be determined with any certainty as to whether . . . [the Husband] 

deposited all of his gross receipts, both checks and cash, into the D.C. Services account.” 

Nonetheless, the family court “believe[d] the detailed review of the 2013 records (as well as 

the detailed review of the 2015 records through April, 2015) produce[d] a clearer (though 

still clouded) picture of . . . [the Husband’s] income from D.C. Services.” 

The Husband testified that he had reviewed the bank statements and 

“believe[d] that the 2013 bank account statements are an accurate reflection of the business 

that D[.]C[.] Services did in 2013[.]” The Husband testified that he paid his employees in 

cash. According to the Husband, he had four employees in 2013, three of whom earned $12 

an hour and one who earned $10 an hour; however, there were no records regarding how 

many hours these individuals worked or how much money they were paid for the work they 

did. Further, in 2013, the Husband submitted a letter to the Contractor’s Licensing Board in 

which he claimed that he only had part-time employees and that two individuals, who during 

hearing the Husband testified to being his employees, “‘occasionally volunteer to help 

Dennis Cowger as they are all good friends.’” The Husband confirmed that the letter was 

his company’s means of informing the agency that two of his employees were not paid in 

2013 and that he did this to protect his employees. Further, the Husband testified that he did 

9

(...continued) 

received the report from Mr. Hamrick and she “did not know there was that much money 

going through that account.” The Wife testified that she had found documents, invoices from 

previous years, which indicated discrepancies in what had been reported on tax returns. 

6
 
 

 

 

 

 

 

 

not identify any contract labor expenses or expenses for supplies for his business in his taxes 

for 2013. The Husband also testified that there were no 1099’s or W-4’s that were prepared 

by or for his employees. The Husband also did not file a Wage Bond Affidavit Status about 

his employees with the Department of Labor. But the Husband also testified that he paid his 

employees in cash and that his labor costs were $25,087 in 2013, or about 46.45 percent of 

his net income. 10 During cross-examination when the Husband was questioned, “But . . . 

now that[] it[’]s more in your favor you want to change your mind and say that you do have 

employees and you have had them since 2012[,]” he responded, “Correct.” 

Additionally, the Husband testified that he kept, on the average, about $400 a 

week in cash from his business for himself. Even though the Husband maintained that he 

was earning less in 2015, only taking home about $300 a week from the business, the family 

court found this unsupported testimony not credible.11 Despite the Husband’s testimony, he 

10The Wife argued that the Husband could not claim more than $6,000 from this 

income as labor costs, because under State law if an employer pays wages in excess of that 

amount per quarter, then certain documents must be filed. Thus, the Wife only attributed 

about 11.1 percent of the net taxable income available to labor costs. Just as the family court 

discounted the labor costs the Husband claimed from the business, the family court 

discredited the low percentage of labor costs offered by the Wife “[b]ecause . . . [the Wife] 

admitted her knowledge that . . . [the Husband] was paying his employees in cash ‘under the 

table,’ this Court seriously doubts that . . . [the Husband’s] labor costs were as low” as the 

percentage argued by the Wife. 

11The familycourt’s credibilitydetermination on this issue stemmed from the deposits 

made into the D.C. Services bank account for the first four months of 2015, which totaled 

$50,606.29. As the family court found, “factored over the course of the year [this amount] 

(continued...) 

7
 
 

 

 

indicated on his financial statement submitted as part of the divorce action that his selfemployment income each month was $0. The Husband also stated about the income he 

received and the costs he paid that he had “no documents” to show what kind of income he 

made from his business. 

The familycourt also undertook its own examination of the D.C. Services bank 

records for 2013 that the Husband was ordered to submit to the court and found that 

$132,243.56 was deposited into the business account that year, which amount was not 

disputed by the Husband. The family court further found that from this total, checks totaling 

$126,637.80 were written on this account and from that amount, checks totaling $46,159 

were written by the Husband to himself. Other checks totaling $68,249.90 were written to 

businesses such as Lowe’s, Casey’s Hometown Hardware and Nicholas County Solid Waste 

Authority. There were also checks totaling $9,986.54, which were written to entities like gas 

stations and insurance companies. The family court found that the amounts of $68,249.90 

and $9,986.54, respectively, should be deducted as business expenses, which left a total of 

$54,007.12. This total, however, did not reflect any labor costs. 

11(...continued) 

would average $151,818.87, which is well in excess of the 2013 deposits of $132,243.56[].” 

Further, the family court noted that from the 2015 deposits, the Husband had written checks 

to himself totaling $16,206.01, which when averaged for the year would be $48,618.63, 

which sum also exceeded the amount he wrote to himself from the business account in 2013. 

8
 
 

 

 

 

 

 

Because the family court did not find credible either the Wife’s or the 

Husband’s calculations and because there was simply no way to calculate actual labor costs 

due to the lack of records, the Court found “it fair to average the differing labor cost 

percentages (from the percentage offered by the Wife and the percentage offered by the 

Husband), resulting in a fair labor percentage of 28.775 percent.” As the family court 

reasoned: 

Applying that percentage to the net taxable income of 

$54,0071.21 leaves a labor cost of $15,540.57, which would 

reduce the net taxable income in 2013 from D.C. Services to 

$38,466.64 (or a gross per month of $3,205.55, or an 

approximate net monthly income of $2,404.16). The net taxable 

income of $38,466.64 realized in 2013 under this analysis is 

29.09 percent of the total 2013 receipts. 

The family court, multiplying the 29.09 percent figure to the gross receipts in 2011, 2012, 

2014, as well as the available receipts from 2015, determined that the average income for 

D.C. Services for the years 2011 through 2015 was $37,774.38, “which average amount is 

very close to the $38,466.64 amount realized in 2013 under the very detailed analysis” of that 

year undertaken by the family court. The family court therefore found that the Husband has 

and will have “in the future the ability to earn $37,774.38 per year from D.C. Services (or a 

gross per month of $3,147.86, which is an approximate net monthly income of $2,360.90).” 

The family court then determined the Husband’s total net income earning 

ability was “at least, approximately, $3,953.25 per month (i.e., bus driving net income of 

9
 
 

 

 

 

 

 

 

 

$1,592.35 and D.C. Services income of $2,360.90).” Further, the family court determined 

that the Husband had “excess income above his expenses of $1,283.25 per month (i.e., 

$3,953.25 income less expenses of $2,670.00 equals $1,283.25 per month).” Thus, the 

family court concluded that the Husband had the ability to pay $1,283.25 per month in 

alimony. Moreover, the family court found that it was “highly probable that . . . [the 

Husband] has not accounted for any cash income not deposited into the D.C. Services 

account.” The family court determined that Wife “should not be denied additional alimony 

merely because those amounts are hidden.” The family court then attributed an additional 

sum of $216.75 per month to the award for cash-based income, because the documentation 

before it “suggest[ed] a higher income amount tha[n] this Court’s average income 

analysis[.]” The total permanent alimony award ordered by the family court was $1,500 per 

month.12 

On appeal to the circuit court, the Husband argued that 1) the amount of 

spousal support he was ordered to pay was disproportionate to his ability to pay; 2) the family 

court improperly calculated Husband’s income from D.C. Services; and 3) the family court 

erred in awarding permanent alimony. The circuit court upheld the family court’s decision 

12The family court’s award of alimony to Wife was based upon its assessment of the 

statutory factors, which included the Wife’s need for alimony, the Husband’s ability to pay, 

the length of the marriage, the ages of the parties, the Husband’s ability to produce 

substantial income and the Wife’s ability to earn only minimum wage income. See W. Va. 

Code § 48-6-301 (2015). There is no error raised regarding the lower court’s application of 

these factors. 

10
 
 

 

 

 

 

 

to award permanent alimony, but found that alimony in the amount of $1,500 per month was 

in error. The circuit court determined that the “Family Court ignored the evidence, or lack 

of evidence, presented below that clearly showed that the . . . [Husband] was earning far less 

from the marital business” and that the Husband “consistently stated and testified that he 

averaged around $300 to $400 per week income from D[.]C[.] Services.” The circuit court 

found that “[t]he parties’ alleged misrepresentation of the nature of the business has no 

bearing on what . . . [the Husband] earned on a monthly basis.” The circuit court further 

upheld the Husband’s testimony on what his expenses were and found the family court’s 

“other number . . . for labor is speculation, and not based on testimony or evidence.” The 

circuit court found that there was no evidence of cash-based income supporting the $216.75 

portion of the alimony award. The circuit court remanded the case for calculation of spousal 

support “in accordance with” its order. 

Upon remand, the family court expressly found that its hands were tied by the 

circuit court’s dismissal of its credibility determination regarding the Husband’s business. 

The family court found that the circuit court “effectively forced this Court to accept only . 

. . [the Husband’s] testimony about the income he received from D[.]C[.] Services.” The 

family court then recalculated the spousal support award by taking an average of the $300 

to $400 per week that Husband testified he realized from his business. The family court 

11
 
 

 

 

 

 

 

 

determined that the Husband had a monthly excess net of $439.02 and that that amount 

should be paid to the Wife as support. According to the family court 

[a]warding such $439.02 amount would be a total travesty of 

justice under the factual findings previously made by this Court. 

[The Husband] . . . paid $500.00 per month under this Court’s 

temporary Order and made no valid argument that he could not 

make those temporary payments. Further, this Court should not 

be forced to accept a party’s testimony that this Court finds 

without merit and unsupported by any records. . . . Except for 

having to comply with a Circuit Court remand Order which 

places this Court in a position to believe testimony this Court 

finds not believable, this Court would find on further review that 

no change [in the $1500 per month award previously made] is 

proper. 

On the Wife’s appeal to the circuit court, the circuit court simply refused the 

appeal by order entered January 10, 2017. The instant appeal followed. 

II. Standard of Review 

We have previously held that 

[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. 

12
 
 

 

 

 

 

 

 

 

 

Syllabus, Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004); see also Syl. Pt. 1, 

Paugh v. Linger, 228 W. Va. 194, 718 S.E.2d 793 (2011). Keeping this standard of review 

in mind, we now examine the issues before us. 

III. Discussion 

The focus of both of the Wife’s assigned errors is that the circuit court 

supplanted its opinion for that of the family court concerning critical factual and credibility 

determinations. 13 The Wife first argues that the circuit court improperly overturned the 

family court’s finding that $216.75 should be attributed to the Husband for cash-based 

income from his business, D.C. Services. Instead, the circuit court found: 

9.	 The Family Court . . . attributed to the . . . [Husband] an 

additional $216.75 per month in cash income from 

D[.]C[.] Services, even though no evidence of cash 

income or the amount of cash income per month was 

presented. 

13The Wife also suggests that the circuit court erred in failing to issue its two orders 

within the statutory sixty-day period. See W. Va. Code § 51-2A-14(f) (“The circuit court 

must enter an order ruling on a petition for appeal [from a family court’s order] within sixty 

days from the last day a reply to the petition for appeal could have been filed. If the circuit 

court does not enter the order within the sixty-day period or does not, within the sixty-day 

period, enter an order stating just cause why the order has not been timely entered, the circuit 

clerk shall send a written notice to the parties that unless the parties both file an objection 

within fourteen days of the date of the notice, the appeal will be transferred to the Supreme 

Court of Appeals as provided in section fifteen [§ 51-2A-15] of this article due to the failure 

of the circuit court to timely enter an order. The appeal shall be transferred without the 

necessity of the filing of any petition or further document by the petitioner.”). But the Wife 

fails to raise any assignment of error regarding this issue and develop properly the matter for 

this Court’s consideration, choosing rather to only mention the failure in passing in her brief. 

We therefore decline to address the issue. 

13
 
 

 

 

 

 

 

 

 

10.	 The Family Court seems to have attributed the extra 

$216l75[sic] per month based solely on the fact that the 

. . . [Husband] allegedly did not properly report all of 

D[.]C[.] Service’s income to the appropriate agencies. 

11.	 The inclusion of the additional “cash income” appears to 

have been speculation on the part of the Family Court. 

The Wife argues that contrary to the circuit court’s finding that there was “no evidence of 

cash income,” the Husband acknowledged that “a lot” of the income received by his business 

was in cash; however, the amount was not documented. 

The Wife also argues that the circuit court erred in finding that “[t]he only 

testimony” offered regarding the labor costs of the Husband’s business was his testimonythat 

his employees were paid “approximately $25,087.00 in 2013.” Thus, the circuit court 

determined that “[a]s no other evidence of wages was offered by . . . [the Wife], the Family 

Court should have considered the . . . [Husband’s] testimony, regarding the wages paid in 

2013, in placing a value on the . . . [Husband’s] monthly income from D[.]C[.] Services.” 

The circuit court further found: 

As the only direct testimony of what the labor chargers were is 

the testimony of the . . . [Husband], any other number used by 

the Family Court for labor is speculation, and not based on 

testimony or evidence, and therefore, the Court finds the Family 

Court erred in calculating the monthly income from D[.]C[.] 

Services. 

The Wife contends that the circuit court’s determination that the Husband’s undocumented 

labor costs must be accepted as true, despite the family court’s determinations about 

14
 
 

 

 

 

Husband’s fraudulent representations and lack of credibility, was in error. The Wife 

emphasizes that the “unknown component” of the Husband’s business was his labor costs. 

The issues in this case are resolved byapplication of the standard of review that 

governs a circuit court’s review of a family court’s decision in a divorce case. Similar to the 

standard of review utilized by this Court that is set forth in Carr, West Virginia Code § 51­

2A-14(c) (2016) provides that “[t]he circuit court shall review the findings of fact made by 

the family court judge under the clearly erroneous standard and shall review the application 

of law to the facts under an abuse of discretion standard.” 

In syllabus point three of Estate of Bossio v. Bossio, 237 W. Va. 130, 785 

S.E.2d 836 (2016), we explained what is meant by clearly erroneous finding as follows: 

“A finding is clearly erroneous when, although there is 

evidence to support the finding, the reviewing court on the 

entire evidence is left with the definite and firm conviction that 

a mistake has been committed. However, a reviewing court may 

not overturn a finding simply because it would have decided the 

case differently, and it must affirm a finding if the circuit court’s 

account of the evidence is plausible in light of the record viewed 

in its entirety.” Syl. Pt. 1, in part, In re Tiffany Marie S., 196 W. 

Va. 223, 470 S.E.2d 177 (1996). 

Stated another way, we have explained that “[u]nder the clearly erroneous standard, if the 

findings of fact and the inferences drawn by a family [court judge] are supported by 

substantial evidence, such findings and inferences may not be overturned even if a circuit 

15
 
 

 

 

 

 

court may be inclined to make different findings or draw contrary inferences.” Syl. Pt. 3, 

Stephen L.H. v. Sherry L.H., 195 W. Va. 384, 465 S.E.2d 841 (1995); accord Syl. Pt. 2, 

Warren v. Garland, 235 W. Va. 115, 772 S.E.2d 214 (2015). 

Finally, we have previously held that “[q]uestions relating to alimony and to 

the maintenance and custody of the children are within the sound discretion of the court and 

its action with respect to such matters will not be disturbed on appeal unless it clearly appears 

that such discretion has been abused.” Syllabus, Nichols v. Nichols, 160 W.Va. 514, 236 

S.E.2d 36 (1977); accord Syl. Pt. 2, Mayle v. Mayle, 229 W. Va. 179, 727 S.E.2d 855 (2012). 

Further, like the circuit court, this Court “must give appropriate deference to the family 

court’s determination of the amount, nature and duration of the spousal support.” Id. at 185, 

727 S.E.2d at 861. 

In the instant matter, regarding the award by the family court of $216.75 for 

cash-based income, the circuit court simply found that there was “no evidence of cash 

income or the amount of cash income per month was presented.” This finding, however, 

ignores the Husband’s own testimony that indicated his business had cash income, he just 

failed to keep any records of how much cash income he had. The circuit court also 

disregarded the family court’s specific findings made concerning the Husband intentionally 

defrauding both state and federal authorities about his income, as well as hiding cash income 

16
 
 

 

 

 

 

 

 

 

from the government and his Wife by not reporting that component of his business. 

The circuit court failed to set forth how the family court’s findings regarding the cash-based 

income were not supported by substantial evidence, including the family court’s credibility 

determinations. As such, the circuit court’s overturning of these findings was in error. 

Moreover, review of the circuit court’s order on the issue of the Husband’s 

labor costs also reveals that with no real explanation the circuit court found the Husband’s 

testimony credible on this issue, which was also in direct contradiction to the family court’s 

findings. A review of the family court’s order shows it methodically examined all the 

evidence introduced before it, which failed to include any evidence of any labor costs 

actually paid out by the Husband due to the lack of records that he kept, and made credibility 

determinations based upon the evidence. In so doing, the family court was clear that the 

Husband was making more profit from his business than he was disclosing to the family 

court, as well as governmental agencies, and that he was overinflating his labor costs for 

purposes of the family court proceeding. The family court also found that the Husband had 

“intentionally defrauded State authorities,” that the Husband had “offered no documentation 

for” the $25,087 he testified to paying in labor costs, and that the Husband “admitted that he 

paid his employees in cash to avoid having to pay certain unemployment and workers’ 

compensation costs to the State, and to ‘help’ his employees who were ‘working under the 

table’ for cash.” Thus, the family court expressly found that it could not “conclusively 

17
 
 

 

 

 

 

conclude that . . . [the Husband’s] 46.45 percent labor cost . . . [was] correct. . . .” But the 

circuit court inexplicably ignored the credibility determinations made by the family court, as 

well as its reasoning supporting these determinations, and replaced those determinations with 

its own – something our law prohibits both the circuit court and this Court from doing. See 

Mulugeta v. Misailidis, 239 W. Va. 404, ___, 801 S.E.2d 282, 290 (2017) (determining that 

this Court will not disturb a family court’s credibility finding “because it was within the 

province of the family court to determine the weight according . . . [the Husband’s] 

testimony.”). Consequently, the circuit court’s decision directing the family court to take 

the Husband’s testimony regarding the labor costs of his business as true is simply 

inexplicable and in error. 

IV. Conclusion 

Based upon the foregoing opinion, the decision of the circuit court is reversed and the 

case is remanded for reinstatement of the family court’s December 16, 2015, order awarding 

the Wife permanent alimony in the amount of $1,500 per month. 

Reversed and remanded with directions. 

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