### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

FILED Thomas C. Seletyn, Petitioner Below, Petitioner 

### April 9, 2018

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS vs.) No. 17-0319 (Fayette County 14-D-99)

OF WEST VIRGINIA

Teresa Rutherford-Bonifacio, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Thomas C. Seletyn, by his counsel, Kyle G. Lusk, Matthew A. Bradford, and Brandon L. Gray, appeals the March 7, 2017, orde r of the Circuit Cour t of Fayette County affirming a January 13, 2017, order of the Family Court of Fayette County. In its order, the family court suspended petitioner’s spousal sup port obligation, but declined to order that the marital residence be sold and the proceeds divi ded. Respondent Teresa Rutherford-Bonifacio, by her counsel Christopher D. Lefler, filed a response in support of the circuit court’s order. On appeal, petitioner argues that the family court erred when it refuse d to modify the final divorce decree pursuant to West Virg inia Code § 48-5-706, thereby cau sing an inequitable or unjust

result. 1

The Court has considered the parties’ briefs and the record on appe al. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affi rming the circuit court’s order is appropriate under Rule 21

of the Rules of A ppellate Procedure.

1 In his brief on appeal, petitioner also argues that the family court erred in failing to recognize that the final divorce decr ee did not incorporate the partie s’ agreement into its May 7, 2014, order. He further argues that it erred in failing to make a dditional inquiries and findings on the record that the parties’ oral agreement, which was dictated on the record, was understood by them, that they voluntarily agreed without coerci on, and that the terms were fair and equitable. To the extent that petitioner argues that the final divorce decree set forth in the May 7, 2014,

order was somehow deficient and seeks to cha llenge the order on appeal, we find that his opportunity to do so has passed. Rule 28 of the Ru les of Practice and Procedure for Family Court sets forth that a party “may file a petition for app eal to the circuit court no later than thirty days after the family court final order was entered in the circuit clerk’s office.” As petitioner abided by the order for over two years before challenging the sufficiency of its contents, he waived any right to appeal and we decline to addre ss any alleged errors concerning that order.

1In 2014, petitioner filed for divorce in the Fam ily Court of Fayette County after nearly thirty-eight years of marriage. Bo th parties proceeded pro se. The family court held a hearing on May 7, 2014, wherein the parties announced that th ey had reached an agreement on all issues relevant to their divorce. The family court memorialized the parties’ oral agreement in the final divorce decree, which indicated th at the parties separated thei r personal effects and had no marital estate that they cared to distribute. The parties agreed th at petitioner would pay respondent “$ 1,000.00 per month as alimony begi nning May 1, 2014, and which shall continue until the [r]espondent enters into a de facto marri age, remarries or dies.” Further, the final divorce decree set forth that the pa rties agree that, even if res pondent entered into a de facto marriage or remarried, petitione r agreed to pay her $400.00 per month “towards the mortgage payment, taxes, home owner’s insurance and maintenance” as long as she continued to reside in the marital residence. If respondent ceased to re side in the marital residence, petitioner could move into the home or the parties could agree to sell the property and divide the net proceeds.

In accordance with the final divorce decr ee, petitioner made payments of $ 1,000.00 per month to respondent until August of 2014, when respondent remarried. Petitioner’s payments were then reduced to $400.00 per month, as set forth in the final divorce decree.

In August of 2016, petitioner f iled a petition for modificati on, alleging that there had been a significant change in circumstances as the marital residence had been paid for, both parties remarried, and petitioner was unemploye d and experiencing hea lth issues. As such, petitioner requested that the monthly $400.00 payments be termin ated and that the marital residence be sold and the proceeds divided. A hearing on the matter was held in October of 2016. Petitioner proceeded pro se and respondent appear ed with her counsel. The family court found that the $400.00 monthly payments constituted spous al support and as such, could be modified pursuant to West Virginia Code § 51-2A-2(9). However, the family court determined that petitioner sought modification of equitable distribution regarding the marital residence and found that it did not have the authority to modify the same unless, pur suant to West Virginia Code § 48-5-706, a modification was necessary to avoid an inequitable or unjust result. The family court found that West Virginia Code § 48-5-706 was not applicable as the f acts of the case did not demonstrate an inequitable or unjust result. The fa mily court held any further rulings in abeyance pending a final hearing to allow pe titioner to produce further evid ence relevant to his motion to modify spousal support.

The family court held a hearing in Ja nuary of 2017 at which both parties were represented by counsel. The family court reiterated its finding th at respondent had no intentions of vacating the marital residence and there was insufficient evidence to conclude that modification of equitable distri bution was necessary to avoid an unjust result. Regarding petitioner’s monthly payments to respondent, the family court found that sufficient evidence existed to modify spousal support an d suspended petitioner’s obligation.

In February of 2017, petitioner appealed the de cision to the circuit court, which affirmed the family court’s order without holding a hear ing on the matter. It is from the March 7, 2017, order that petit ioner appeals.

2We review the matter under 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 orde r 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., Carr v. Hancock , 216 W.Va. 474, 607 S.E.2d 803 (2004).

Regarding the family court’s factual findings that underlie its equita ble distribution order, this Court will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous. Mulugeta v. Misailidis , 239 W.Va. 404, --, 801 S.E.2d 282, 286 (2017). Generally, if there is competent evid ence to support factual findings, this Court will not reverse those findings as cl early erroneous. Syl. Pt. 3, Estate of Bossio v. Bossio , 237 W.Va. 130, 785 S.E.2d 836 (2016) (“‘A finding is clearly erroneous when, al though there is evidence to support the finding, the reviewing cour t on the entire evidence is left with the definite and firm

conviction that a mistake has been committed. Ho wever, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it mu st affirm a finding if the circuit court’s account of the evidence is plau sible 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).”). It is within the sole province of the family court, as fact-finder, to decide issues of credibility, and

this Court will not disturb those determinations. Mulugeta at --, 801 S.E.2d at 286-87.

On appeal, petitioner contends that the family court erred in refusing to modify the May 7, 2014, order to distribute the marital property. A ccording to petitioner, the order setting forth

the final divorce decree failed to distribute the marital residen ce. As support for his argument, petitioner argues that para graph ten of the final divorce decree st ates that “[t]he parties have no marital estate that they care to distribute.” Paragraph twelve sets forth as follows:

The parties’ agree that even if the [r]espondent enters into a de facto marriage or remarries as long as she continues to reside in the marital residence the [p]etitioner agrees to pay her $400.00 per month towards the mortgage payment, taxes, home owner’s insurance and mainte nance on said home. If the [r]espondent ceases to reside in said marital home, th en the [p]etitioner has the option to move into said home or the parties’ agree to sell it and to equally divide the net proceeds.

The family court then ordered the equitable distribution “of the marital estate as set forth above” and ordered petitioner to pay respondent $1,000.00 per month as alimony until she entered into a de facto marriage, remarried, or died. According to petitioner, because paragraph ten indicated that the parties had no marital esta te to distribute and becau se the conclusions of law section in the final divorce decree did not specifically order that respondent be granted possession or use of the marital residence, it was erroneous to find during the modification proceedings that respondent was granted use a nd possession of the former marital residence. Based on these assertions, petitioner argues that the family court erred in determining that the

3marital residence had been equitabl y distributed and in finding that the facts of the case did not

warrant modification to avoid an inequitable or unjust result.

We do not agree. Again, to the extent th at petitioner argues th at the May 7, 2014, order was deficient, we find that he is barred from raising that issue on appeal because of his failure to timely appeal that order. Further, we find that neither the circuit court nor the family court erred in determining that petitioner failed to demonstrat e that modification of th e equitable distribution was necessary. Pursuant to We st Virginia Code § 48-5-706,

[i]n modifying a final divorce order, the court may, when other means are not conveniently available, alte r any prior order of the c ourt with respect to the distribution of marital propert y, if: . . . [t]he alterati on of the prior order as it

relates the distribution of ma rital property is necessary to avoid an inequitable or unjust result which would be caused by the manner in which the modification will affect the prior distribu tion of marital property.

Here, during the modification proceedings, the family court found that the marital residence had been previously categorized as equitable distribution during the 2014 divorce proceedings. It further found that there was insufficient evidence to conclude that a modification of the equitable distribution was necessary to avoid an unjust resu lt. The circuit court affirmed the family court’s order, finding that there was no clear error or abuse of discretion. We decline to disturb the family court’s factual findings regarding the insufficient evidence provided below

or its conclusion that modifica tion of equitable distribution was not warranted. Petitioner’s argument largely revolves around the deficiency of the final divor ce decree, yet he operated by its terms and conditions for over two years without issue and failed to file a timely appeal of the same. Further, petitioner provides no evidence on appeal other than the orders entered by the courts below. As such, we find that petitione r is entitled to no relief in this regard.

For the foregoing reasons, we affirm the circuit court’s March 7, 2017, order refusing petitioner’s appeal from the fa mily court’s January 13, 2017, orde r that suspended petitioner’s spousal support obligation and declined to order the sale of th e marital residence.

Affirmed.

ISSUED : April 9, 2018

CONCURRED IN BY :

Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Menis E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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