STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

John M., FILED Petitioner Below, Petitioner June 3, 2016 

RORY L. PERRY II, CLERK vs) No. 15-0656 (Kanawha County 00-D-1154) SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Stephanie M.,
 

Respondent Below, Respondent
 

MEMORANDUM DECISION 

In this post-divorce action, Petitioner John M.1 (“husband”), by counsel Stephen L. 

Gaylock, appeals the order of the Circuit Court of Kanawha County, entered June 4, 2015, that 

affirmed, in part, and reversed, in part, the final order of the Family Court of Kanawha County, 

entered May 20, 2015. Respondent Stephanie M. (“wife”), by counsel Richard L. Vital, filed a 

response in support of the circuit court’s order. Husband filed a reply. 

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 were married on April 25, 1981; three children were born of the marriage. 

The parties separated on May 22, 2000. Thereafter, a divorce action was filed. On February 5, 

2001, the family court entered a temporary order that awarded wife custody of the parties’ 

children, child support, and temporary alimony. Husband responded with a motion to reconsider 

on the ground that his financial condition made it impossible for him to meet the obligations set 

out in the temporary order. Wife also filed various motions. 

On February 16, 2001, the family court held a hearing on all outstanding motions. By 

order entered February 22, 2001, the family court found that wife had withdrawn $58,000 from a 

line of credit that was in both parties’ names and secured by the marital home; that she had 

expended $23,000 of the $58,000; that she was to use $15,000 for “interim fees and costs” and 

$6,000 for “family and household” support for March through June of 2001; and that the 

remaining $14,000 was to be returned to the bank. The court also ordered that, on a temporary 

basis, each party was to pay half of the monthly payment on the line of credit debt. The family 

1 Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 

W.Va. 254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State 

v. Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990). 

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court based the order upon a review of the parties’ finances and the fact that wife did not work 

outside the home. This temporary order is the family court’s only pronouncement regarding the 

line of credit debt during the lengthy pendency of this case. 

In 2002, while the divorce was pending, wife and the parties’ youngest child moved to 

the State of New York, with the approval of husband and the family court. Wife bought a home 

in New York and obtained employment. 

The parties were divorced by final order entered November 24, 2003, upon a finding of 

irreconcilable differences. In accordance with the parties’ settlement agreement, the order 

provided (1) that husband agreed to pay wife permanent alimony in the amount determined by 

the family court, (2) that, in consideration of wife’s “age, income and expenses and the cost of 

living in New York, and [husband’s] age, income, and debt load,” wife’s monthly permanent 

alimony award would be $2,500 per month; (3) that wife agreed to waive any interest in the 

marital home and husband’s business; and (4) that husband assumed all outstanding marital 

indebtedness which did not include “any debts incurred by the parties subsequent to the date of 

their separation.” The order also provided that “[a]ny and all debts incurred individually . . . after 

the date of separation shall be the responsibility of the person making such debt.” The final 

divorce order did not mention the line of credit debt. Neither party appealed the 2003 final 

divorce order to this Court. 

In 2005, the parties’ youngest child returned to West Virginia to live with her father. The 

family court entered an order reflecting that change on November 23, 2005. However, in 2007, 

the youngest child returned to New York to again reside with her mother. Wife thereafter filed a 

family court action in New York that apparently sought to enforce the provisions of the parties’ 

final divorce order. A hearing was held in New York in May of 2007. Husband claims that (1) 

the New York action was wrongfully filed given that West Virginia retained jurisdiction over the 

child; and (2) he was required to hire counsel to appear on his behalf at that New York hearing. 

Wife later agreed to dismiss the New York action. 

Also in 2007, husband filed a petition to modify custody, a petition for declaratory relief, 

and a contempt petition against wife. In his contempt petition, husband—for the first time since 

the entry of the parties’ 2003 final divorce order—sought to have wife pay the line of credit 

debt.2 Following a May 14, 2007, hearing, the family court, by order entered June 1, 2007, ruled 

that West Virginia had exclusive jurisdiction over the case and granted wife custody of the 

youngest child. The remaining matters were disposed via an agreement between the parties 

which was memorialized in a September 24, 2007, order. That order dismissed husband’s 

contempt petition “without prejudice.” Neither the June 1, 2007, nor the September 24, 2007, 

order mentions the line of credit debt. Neither party appealed these orders. 

The next seven years passed without any activity in this case. Then, in 2014, eleven years 

after the entry of the final divorce order, husband claims he first learned that, while the divorce 

2 Although husband’s contempt petition is not included in the record on appeal, wife 

admits husband’s claim that he sought relief regarding the line of credit debt in his contempt 

petition. 

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was pending (from 2000 to 2003), wife approached persons she perceived to be husband’s 

enemies and told them that husband had abused two of the parties’ children when they were 

young. Husband claims that wife also told two of the parties’ children and members of his 

church about the alleged abuse. 

In response, on May 1, 2014, husband filed a motion pursuant to Rule 60(b)(6) of the 

West Virginia Rules of Civil Procedure that sought to terminate wife’s permanent alimony award 

and/or to modify it back to the date of the 2003 final divorce order. Husband also sought relief 

with regard to the line of credit debt, which he claimed was owed by wife as a post-separation 

debt and was still unpaid. Husband averred that he had paid $35,000 in interest on that debt 

between 2001 and 2014 and that wife had wrongfully converted about $20,000 which was to be 

used to pay college tuition for the two younger children. Husband asserted that, as a result, he 

had to pay the children’s college costs. Lastly, husband claimed that wife’s New York action was 

fraudulently filed; that he was forced to hire an attorney to defend against that action at a cost of 

$8,500; and that wife had not reimbursed him for those attorney’s fees. 

At the family court hearings on husband’s petition, husband’s accountant testified that 

husband’s average income from 1999 through 2001 (upon which wife’s alimony award was 

based) was 30% greater than his 2013 income and 67% greater than his expected 2014 income. 

By order entered October 24, 2014, the family court found that husband’s income had 

diminished and his business’s income was “in a decline that may not be recoverable,” while 

wife’s income had increased. Based on that finding, the family court reduced wife’s monthly 

permanent alimony award from $2,500 to $1,000 per month. However, the family court declined 

husband’s motion to terminate wife’s permanent alimony award or to modify that award back to 

the date of the 2003 final divorce order. With regard to the line of credit debt, the family court 

noted that the issue had been pending for fourteen years, that the issue was not set out in the final 

divorce order, and that husband had assumed the debt in the parties’ equitable distribution 

agreement which was set out in the final divorce order. As for the $20,000 for the younger two 

children’s college expenses, the family court denied relief and found that the “college fund” was 

established and funded by wife’s family inheritance and in her name only and that college 

expenses are not a legal obligation under West Virginia law. With regard to the New York case, 

the family court granted husband a $4,500 attorney’s fee award on the ground that husband 

incurred $8,500 in attorney’s fees and that wife admitted her filing of the New York action was 

“improper.” 

Husband appealed the family court’s order to the circuit court, which held a hearing on 

the matter on April 23, 2015. By order entered April 29, 2015, the circuit court remanded the 

case to the family court for clarification of its October 24, 2014, order. 

The family court responded with a May 20, 2015, order that included various exhibits and 

the following additional findings of fact: With regard to the line of credit debt, the family court 

found that, at the time that debt was incurred, wife was in a “significantly inferior position” to 

husband and took on the debt “out of desperation.” The family court also noted that husband was 

advised of the debt at the time; that he had paid on the indebtedness for ten or more years; that if 

he believed the line of credit debt was not part of his assumption of the marital debt, he should 

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have “swiftly” brought the issue before the court; and that wife gave up all interest in the marital 

home and husband’s business as consideration for husband’s assumption of all debts that 

included the line of credit debt. 

With regard to the children’s college fund, the family court found that wife used the 

funds to help purchase a home in New York for herself and her youngest child, and if husband 

was relying upon the fund, he should have so noted this fact in the 2003 final divorce order that 

memorialized the parties’ settlement agreement. The family court further found that, under West 

Virginia law, the payment of a child’s college costs is voluntary, and that no contractual 

obligation regarding college expenses was set forth in the 2003 final divorce order. 

The family court made no new findings with regard to the portion of its original order 

that required wife to pay husband $4,500 in attorney’s fees. 

By order entered June 8, 2015, the circuit court found that many of the “factual 

representations” in this case were “not factual,” but, instead, had been repeated so many times 

during the lengthy pendency of this case that new counsel and the various judges who had heard 

it assumed that those representations were “fact” without ever substantiating them with the 

record. Following extensive efforts to reconstruct a complete and accurate record from all of the 

filings found in the circuit clerk’s office, the circuit court reversed the family court order with 

regard to the decrease in wife’s alimony award and husband’s attorney’s fees award, but 

affirmed the family court order with regard to the “college fund” and the line of credit debt. 

Husband now appeals the circuit court’s order. 

We review such appeals 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 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., Carr v. Hancock, 216 

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

Mayle v. Mayle, 229 W.Va. 179, 181, 727 S.E.2d 855, 857 (2012). 

Husband raises four assignments of error on appeal. Husband first argues that both the 

family court and the circuit court erred in finding that he “assumed” the line of credit debt. 

Husband highlights that the 2003 final divorce order specifically states that husband would 

assume only “outstanding marital indebtedness.” (Emphasis added.) Thus, husband argues that 

because wife borrowed from the parties’ line of credit after they had separated, wife was solely 

responsible for the line of credit debt. Alternatively, husband argues that because the line of 

credit debt is mentioned only in the 2001 temporary order (that required each party to 

temporarily make half of the monthly payment on the line of credit debt), that order is still in 

effect and, therefore, wife is liable for half of that debt. 

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Wife counters that husband clearly assumed the line of credit debt as part of the parties’ 

separation agreement, which was memorialized in the 2003 final divorce order. Wife also points 

to an April 24, 2003, letter sent to the family court by a mediator who attempted settlement 

negotiations below. In that letter, the mediator found (1) that the parties’ marital residence was 

“now solely in [husband’s] name”; (2) that husband had “assumed” the first and second 

mortgages on the marital residence creating “a zero net asset”; and (3) that husband had “rolled 

other debt into the current mortgage.” Finally, wife argues that husband assumed the line of 

credit debt given that it was part of the mortgages he voluntarily accepted in exchange for wife’s 

agreement to give up any interest in the marital home and husband’s business. 

In the order on appeal, the circuit court cites to the following findings made by the family 

court with regard to the line of credit debt. First, wife borrowed the money from the parties’ line 

of credit “out of desperation” when she was in a “significantly inferior income position.” Second, 

the line of credit debt has not been addressed in any order since the 2001 temporary family court 

order. Third, although husband raised the line of credit debt in his 2007 contempt petition, in 

2008, he consented to the entry of an agreed order which did not address that debt. Fourth, since 

the entry of the parties’ 2003 final divorce order, husband alone has made payments on the line 

of credit debt. Fifth, the line of credit debt was a “marital debt” which husband assumed when he 

received the marital home as part of the parties’ settlement agreement. Based on these findings, 

the circuit court concluded that “it was hard-pressed to find that the [f]amily [c]ourt committed 

error when it found that [husband] ‘assumed the debt.’” 

We agree with both the family court’s and the circuit court’s findings. Since 2003, 

husband has failed to raise, in any significant manner, the issue of the line of credit debt. For 

example, husband did not appeal either the 2003 final divorce order or the 2007 order that 

resolved his contempt petition against wife, nor did he request any further relief with regard to 

the line of credit until 2014, when he filed the instant action. Further, husband’s payments on the 

line of credit debt since 2003 strongly supports the family court and circuit court’s findings that 

husband assumed the line of credit debt as part of the parties’ marital debt. On this record, we 

cannot say that the circuit court clearly erred in concurring with the family court’s findings that 

husband assumed the line of credit debt. 

Husband next argues that both the family court and the circuit court erred in refusing to 

terminate wife’s permanent alimony award pursuant to Rule 60(b)(6) of the West Virginia Rules 

of Civil Procedure given that wife attempted to destroy his character and undermine his business. 

Husband claims that he never would have agreed to pay wife alimony in 2003 had he known 

about wife’s allegations of abuse. In response, wife denies that she accused husband of abuse, 

but argues that even if she had made such accusations, they would be irrelevant to the issue of 

whether an alimony award was proper in this case. Both parties admit that they agreed in 2003 

that wife should receive permanent alimony. Thereafter, the family court found that alimony was 

proper and set the amount at $2,500 per month based on the parties’ incomes and their property 

settlement agreement. 

With regard to this assignment of error, the circuit court found that husband’s claims 

regarding wife’s alleged statements have no basis or relevancy to the determination of whether 

alimony should have been awarded in this case. 

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We review husband’s claim under the following standard: 

“A motion to vacate a judgment made pursuant to Rule 60(b), W.Va. 

R.C.P., is addressed to the sound discretion of the court and the court’s ruling on 

such motion will not be disturbed on appeal unless there is a showing of an abuse 

of such discretion.” Syl. pt. 5, Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 

(1974). 

Syl. Pt. 1, Fernandez v. Fernandez, 218 W.Va. 340, 624 S.E.2d 777 (2005). 

As the circuit court correctly found, even if wife did make the statements husband 

alleges, they are not relevant to the factors a family court must consider in awarding 

alimony/spousal support. Those factors, found in West Virginia Code § 48-6-301, regard issues 

related to the length of the marriage, the education and abilities of the parties, their income and 

other financial factors, the distribution of the marital estate, and the care and maintenance of the 

parties’ minor children. Given that allegations of abuse are not included among these factors, we 

cannot say that the circuit court abused its discretion in affirming the family court’s denial of 

husband’s Rule 60(b)(6) motion. 

Husband’s third assignment of error is that the circuit court erred in reversing the family 

court’s $1,500 per month reduction of husband’s alimony payment and reinstating the original 

award of $2,500 per month. Husband highlights that his accountant testified at the hearing about 

his finances and presented bar graphs that tracked husband’s decreasing income. Wife counters 

that husband no longer pays child support, which saves him more than $900 a month; that he is 

financially more secure than wife; that the cost of living in New York is much higher than that in 

West Virginia; and that she has reached her potential earning cap. 

In the order on appeal, the circuit court found as follows: First, husband’s bar graphs 

reveal that husband’s gross estimated business revenue for 2014 ($401,879) was significantly 

higher than husband’s average gross business revenue at the time wife’s alimony award was 

calculated in 2003 ($271,206). Second, husband’s business’s net earnings changed by less than 

$9,000 between 2003 and 2013. Third, husband’s alimony payment had not increased since 

2003, yet his average net shareholder earnings had “soared to over $372,000.” Finally, the circuit 

court found that although wife’s income had increased by about fifty-three percent since 2003 

(from about $48,000 to about $76,000 per annum), that increase in wife’s income alone could not 

support a sixty-percent reduction in wife’s alimony given the data presented by husband. 

Therefore, the circuit court concluded (1) that it was error for the family court to modify wife’s 

alimony award absent the parties’ actual tax returns; and (2) the family court’s reduction of 

alimony was based on mere “assumptions and assertions and not the actual facts regarding 

income in 2014.” 

We review such assignments of error under the following standard: 

“Questions relating to alimony . . . are within the sound discretion of the 

court and its action with respect to such matters will not be disturbed on appeal 

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unless it clearly appears that such discretion has been abused.” Syllabus, Nichols 

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

Syl. Pt. 2, Lambert v. Miller, 178 W.Va. 224, 225, 358 S.E.2d 785, 786 (1987). Furthermore, 

We have stated that “the primary standard to determine whether or not a 

trial court should modify an order awarding alimony is a substantial change of 

circumstances.” Zirkle v. Zirkle, 172 W.Va. 211, 217, 304 S.E.2d 664, 671 

(1983). We have placed the burden of showing a substantial change of 

circumstances on the party petitioning for modification of the alimony award. 

Syllabus Point 3, Goff v. Goff, 177 W.Va. 742, 356 S.E.2d 496 (1987). To 

determine if there has been a substantial change of circumstances, the circuit court 

must “consider the financial needs of the parties, their incomes and income 

earning abilities and their estates and the income produced by their estates in 

determining the amount of alimony to be awarded in a modification proceeding.” 

Syllabus Point 2, in part, Yanero v. Yanero, 171 W.Va. 88, 297 S.E.2d 863 

(1982). 

Adkins v. Adkins, 208 W.Va. 364, 367, 540 S.E.2d 581, 584 (2000). 

Here, husband failed to produce the necessary tax returns in support of his motion to 

reduce wife’s alimony award. Further, husband’s own exhibits indicated that his income had 

either minimally decreased, or, under some measures, had actually increased. Thus, we concur 

with the circuit court’s findings that husband failed to carry the burden of proof on his motion to 

reduce wife’s alimony award. Hence, we find that the circuit court did not abuse its discretion in 

reversing the family court’s sixty-percent deduction of wife’s alimony award. 

Husband’s fourth and final assignment is that the circuit court erred in reversing the 

family court’s award of $4,500 for his New York attorney’s fees. Husband argues that the award 

was not erroneous given that wife admitted below that her filing of the New York action was 

filed in bad faith. Husband also claims that he proved he retained New York counsel when he 

twice testified under oath at a May 14, 2007, family court hearing that he had paid his New York 

counsel $8,500. 

With regard to the family court’s award of attorney’s fees, the circuit court found that 

wife’s 2007 New York action was not intended to harass husband and was not brought in bad 

faith given that (1) husband was not making his child support and alimony payments to wife; (2) 

wife agreed to withdraw the action as soon as she received payment from husband; and (3) 

wife’s action was brought “out of desperation” due to her “significantly inferior income 

position.” The circuit court also found (1) that husband asserted in 2014 that he had incurred 

$8,500 in attorney’s fees in defending against wife’s New York action, yet, in 2007, husband 

testified that he had only incurred $6,000 in such fees; and (2) that there was not a “scintilla” of 

documentary evidence in the record that husband had incurred any attorney’s fees even though 

the family court had requested such documentary evidence in 2007. Finally, the circuit court 

noted that the family court failed to make the requisite findings with regard to an award of 

attorney’s pursuant to Syllabus Point 3, in part, of Mayle, which provides: 

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“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, 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). 

229 W.Va. at 181, 727 S.E.2d at 857. 

As the circuit court noted, there is no documentary evidence in the record on appeal 

showing that husband incurred $8,500 in attorney’s fees in defending against wife’s New York 

filing. Further, the record on appeal contains sufficient evidence to support the circuit court’s 

finding that wife did not bring the New York action in bad faith or for oppressive reasons. See 

Syl. Pt. 3, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 49, 365 S.E.2d 246, 247 (1986) 

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

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

acted in bad faith, vexatiously, wantonly or for oppressive reasons.”). Hence, we cannot say that 

the circuit court clearly erred in finding that wife did not bring the New York action in bad faith, 

or in reversing the family court’s $4,500 attorney’s fees award to husband. 

Accordingly, for the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: June 3, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Brent D. Benjamin 

Justice Allen H. Loughry II 

DISQUALIFIED: 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

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