1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Michael Conrad Murray, Respondent Below, Petitioner

vs) No. 12-0771 (Kanawha County 10-D-1183)

Kellie Marie Murray, Petitioner Below, Respondent



### MEMORANDUM DECISION

Petitioner Michael Conrad Murray, by couns el Ancil G. Ramey, Peter J. Raupp, Hannah C. Ramey, and Susan L. Shepard, appeals the Circuit Court of Kanawha County’s “Order Denying Petition for Appeal” entered on May 10, 2012. Responde nt Kellie Marie Murray, by counsel Deloris J. Nibert, filed a response. Petitione r 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 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 is appropriate under Rule 21 of the Rules of Appellate

Procedure.

Petitioner and respondent began living toge ther in 2001. They married on July 22, 2003, and separated on March 28, 2010. Respondent file d her petition for divorce on June 25, 2010, alleging irreconcilable differences, which petitioner admitted to in his answer. At the time of the divorce filing, petitioner was fifty-eight years ol d and respondent was forty-eight years old. Respondent has a daughter from a previous relations hip, who was twelve year s old at the time of the divorce filing. The parties have no children together.

By temporary order entered on Octobe r 12, 2010, the Kanawha County Family Court granted respondent temporary, in-kind spousal support from petitioner in the form of the mortgage payment on the marital home, plus paym ent of the water, gas, electric, and garbage bills. The court did not grant petitioner Conrad 1 credits for these bills, but designated them as spousal support. Petitioner was al so ordered to maintain health insurance for respondent and her daughter.

1 The Court in Conrad v. Conrad, 216 W.Va. 696, 612 S.E.2d 772 (2005), discussed a potential credit to a party in divorce proceedings where that party has payments of martial debt

or maintenance on the marital home between the time of separation and the divorce. 

### FILED

June 7, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 The final divorce hearing was held on A ugust 9, 2011, before Kanawha County Family Court Judge Sharon M. Mullens. At the time of th e hearing, petitioner worked in construction. His income in 2008 was $63,747.98, plus unemplo yment compensation in the amount of $7,296.00. His income in 2009 was $61,660.75, plus unemployment compensation in the amount of $5,637.00. He did not disclose his income for 2010 and 2011, but check stubs admitted into evidence showed an average ear ning capacity in the amount of $6,231.12 per month. In addition, petitioner received a 2009 tax ref und for $7,354, but alleged that he used this money to pay off

marital credit card debt.

Respondent worked part-time as a surgical nurse, earning a gross monthly income of approximately $2,237.52 at the time of the fina l hearing. In 2008, respondent’s annual gross income was $24,025.75 and her 2009 annual gross income was $4,792.49. Respondent testified that she worked full-time prior to the marriage a nd when the parties were first married, but quit working altogether after petitione r encouraged her to stay home to care for her daughter. When she did resume working, she worked part-time, in part, to care fo r her daughter, but also because

she had been unable to find full-time work. Th e evidence showed that respondent is solely responsible for the care of her da ughter, who at the time of the hearing, was in therapy due to behavior problems brought on by the divorce.

The evidence at the family court final hear ing also revealed that petitioner caused the breakup of the marriage because of his excessive alcohol use. The court found that petitioner’s drinking caused him to be mentally, emoti onally, and sometimes physically abusive to respondent.

The marital home was appraised in 2009 at $98,000, which did not account for the necessary replacement of the sep tic system at a cost of approximately $7,000. The mortgage on this home had a balance of $45,000, leaving $46,000 in equity when factoring in the cost of the needed septic system. After the separation, petiti oner began living rent-fre e in a home owned by his family.

The divorce also involved two houses on Ch rystal Lake in Doddridge County, West Virginia. The first, referred to as Lot 37, was pu rchased in 2001 and titled in petitioner’s name. He purchased the home at auction for $16,500, and this purchase price was rolled into the mortgage of the marital home when the part ies refinanced in 2004. The parties made improvements to Lot 37 during the marriage. The second lake house, refe rred to as Lot 41, was purchased in 2006. The loan on this home was re financed into the mortgage on the Tornado home in 2009. According to the most recent a ppraisals, Lot 37 was valued at $30,500, and Lot 41 at $34,000.

The evidence also revealed that petitioner owned stock that initially was his separate property, but was later commingled with marita l funds. Petitioner presented no documentation to (1) establish that the stock was his separate prop erty, or (2) the value thereof. Based on evidence submitted by respondent, the family court valued the stock at $65,000.3 Based upon the evidence presented at the final divorce hearing, the family court ordered that respondent receive the marital home valued at $46,000, a nd other items of personal property. The total value of the respondent’s property after distribution was $51,225.

The family court ordered that petitioner rece ive the lake house at Lo t 37, with the marital portion valued at $14,000; the lake house at Lot 41, valued at $34,000; st ock in Crystal Lake valued at $100; stock valued at $65,000; the 2009 income tax refund in the amount of $7,354;

and other items not contested by respondent. The total value of petitioner’s property after distribution was $125,281.27.

In order to equalize the dist ribution of marital property and debts, the court ordered that petitioner pay respondent a lump sum of $37,028.14 and granted respondent a judgment against petitioner for this amount. The c ourt ordered that such payment be made within thirty days.

The court then granted respondent rehabil itative spousal support for one year in the amount of $1,500 per month, unless respondent sooner died, remarrie d, or cohabitated in a de facto marriage. Petitioner was also ordered to continue to provide health insurance for respondent and her daughter under the COBRA pr ovisions of his employer’s health insurance policy. Petitioner was ordered to pay the premiu ms on the policy, while respondent was to be responsible for any deductibles and copayments.

Finally, the family court orde red that petitioner pay responden t’s attorney’s fees in the amount of $8,323.48 and granted re spondent a judgment against petitioner for this amount.

On November 14, 2011, petitioner appealed the family court’s final order of divorce to circuit court. The circuit court heard arguments from the parties on January 23, 2012. On May 9, 2012, the circuit court entered an “Order Denying Petiti on for Appeal.” It is from this order that petitioner appeals to this Court.

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, [the Supreme Court of Appeals] review[s] the findings of f act made by the family court judge under the clearly erroneous standard, and the a pplication of law to the facts under an abuse of discretion standard. [The Court] review[s] questions of law de novo

.

Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), see W.Va. Code § 51-2A-15(b). “Questions relating to alimony and to the mainte nance and custody of the children are within the

sound discretion of the cour t and its action with respect to su ch matters will not be disturbed on appeal unless it clearly app ears that such discretion has been abused.” Syl., Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).

Petitioner raises seven assignments of error in this appeal. First, he argues that the circuit court erred in affirming the family court’s determ ination that the stocks and the entire value of Lot 37 were not his separate property, and therefor e were subject to equi table distribution. West Virginia Code § 48-1-237 defines separa te property to include the following:4 (1) Property acquired by a person before marriage; (2) Property acquired by a person dur ing marriage in exchange for separate property which was acquired before the marriage; (3) Property acquired by a person during marriage, but excluded from treatment as marital property by a valid agreement of the parties entered into before or during the marriage; (4) Property acquired by a party duri ng marriage by gift, bequest, devise, descent or distribution; (5) Property acquired by a party during a marriage but after the separation of the parties and before ordering an a nnulment, divorce or separate maintenance;

or (6) Any increase in the value of separate property as defined in subdivision (1), (2), (3 ), (4) or (5) of this section wh ich is due to inflation or to a change in market value resulting from conditions outside the control of the parties.

With regard to the stock, petitioner’s mother testified that she inherited the stock from family members and transferred the stock to petitioner prior to his marriage to respondent. Petitioner testified that he neither purchased nor sold stocks during the marriage. Respondent disputed this testimony and intr oduced evidence in the form of a printout from “Microsoft Money” computer program that purported to show that he had in fact purchased and/or sold stocks during the marriage. We note that petitione r failed to disclose any documentation to prove that the stocks were not marital property, despite the respondent’s requests for such documentation in discovery.

Assets required to be disclosed shall incl ude, but are not limite d to, real property, savings accounts, stocks and bonds, mortga ges and notes, life insurance, health insurance coverage, interest in a partne rship or corporatio n, tangible personal property, income from employment, future interests whether vested or nonvested and any other financial interest or source.

W.Va. Code § 48-7-202, in part. The only documentati on that the family cour t had available to it

to determine the status and value of the stoc ks was the documentation presented by respondent. “[T]he Legislature ‘express[ed] a marked preferen ce for characterizing the property of the parties as marital property.’” Burnside v. Burnside, 194 W.Va. 263, 267 460 S.E.2d 26, 268 (1995)(quoting Whiting v. Whiting, 183 W.Va. 451, 459, 396 S.E.2d 413, 421 (1990)). Petitioner failed to rebut the presumption that the stocks were marital property. Based on the record, we do not find that the circuit court erred in affirming th e family court with regard to the classification

and valuation of the stock.

As for Lot 37, we believe the family court pr operly classified this property as petitioner’s separate property, but also pr operly found the $14,000 incr ease in value to be marital property. West Virginia Code § 48-1-233(2) defines “marital property” as

[t]he amount of any increase in value in th e separate property of either of the parties to a marriage, which increase re sults from: (A) an e xpenditure of funds5 which are marital property, including an expenditure of such funds which reduces indebtedness against separate property, ex tinguishes liens, or otherwise increases the net value of separate prope rty; or (B) work performed by either or both of the parties during the marriage.

Petitioner admitted the house was improved during the marriage and presented no evidence to rebut respondent’s va luation of the improvements. Ther efore, we do not find that the circuit court erred in affirming the family court as to the distribution of Lot 37.

Petitioner’s second assignment of error is that he should not have been assigned the entireamount of the 2009 tax refund because he used these funds to satisfy a marital debt and/or a postseparation debt of respondent. However, petitio ner introduced no credible evidence before the family court that he used the tax refund to pay off marital debt. He tes tified that he used the money from the tax refund to pay back a debt he owed to his mother, but he failed to establish that the money he received from his mother was used to satisfy a marital debt. The only documentation petitioner introduced was a copy of one page from a checking account statement that showed that he paid a Capitol One credit card bill, but no evidence that the bill was for a

marital debt. We cannot find that the circuit court erred in affirming the family court’s ruling that the entire 2009 tax refund be assigned to petitioner.

Third, petitioner argues that the family c ourt erred by (1) reducing the value of the marital home by $7,000 to account for the repair of th e septic system, and (2) by failing to take into account mortgage payments he made on the marital home after the parties separated. We do not agree. As respondent contends, the septic system repair was not included in the 2009 appraisal of the home and the estimates for the repair were obtained after the parties separated. The family court determined that this repair was necessary and consequently reduced the value of the home accordingly. As for the mortgage pa yments petitioner made after separation, these payments were ordered as temporary spous al support and petiti oner did not ask for Conrad

credits.

Fourth, petitioner argues that the fam ily court erred by failing to give him Conrad credits for payments made under the temporary suppor t order and/or not characterized as spousal support under that order. Petitione r now asks the Court to find payments he made on behalf of respondent to be designated as spousal support for which he receives a tax credit, and be designated at the same time as Conrad credits. If the payments are considered s pousal support and characterized as such, he cannot also get cr edit in equitable distribu tion. Petitioner failed to produce any documentation at the h earing that he paid anything th at could be considered in equitable distribution as Conrad credits. Therefore, we find no error by the circuit court in affirming the family court on this issue.

Fifth, petitioner argues that the family cour t erred in awarding re spondent rehabilitative alimony. The family court made nineteen findings of fact in its final divo rce order in support of its order for spousal support. The record show s that respondent became a stay-at-home mom during the marriage with petitioner’s approval. Re spondent has no one to care for her daughter at

a reasonable cost if she returns to full-time shif t work as a nurse. In addition, because of the divorce, respondent will be responsible for the full house payment, while petitioner has two lake6 houses debt-free because those debts were rolled into the house for which respondent is now paying. Petitioner earns about thr ee times what respondent earns. We see no error by the circuit court affirming the family court in aw arding respondent rehabilitative alimony.

Sixth, petitioner argues that the family c ourt erred in granting respondent a money judgment instead of distributing marital asse ts to equalize distri bution. Here, petitioner essentially makes the same argument that he makes in his first as signment of error, namely, that the $65,000 in stock and the entir e value of Lot 37 should not have been included in the distribution. The petitioner received two unencumbe red lake properties and stock with significant value. As West Virginia Code § 48-7-105 expresses a “prefere nce for effectuating equitable distribution through periodic or lump sum payments,” we do not fi nd that the circuit court erred in affirming the family court with regard to the money judgment gr anted to respondent.

In petitioner’s final assignment of error, he contends that the respondent should not have been awarded her attorney’s fees. This Court has held:

In divorce actions, an award of attorney’s fees rests initially within the sound discretion of the [family court judge] and should not be disturbed on appeal

absent an abuse of discreti on. 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 be neficial 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 degr ee of fault of either party making the divorce action necessary, and the reasonabl eness of the attorney’s fee request.

Syl. Pt. 4, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996) . Respondent presented her statement of attorney fees at the final di vorce hearing and petiti oner made no objection. Nevertheless, we find that the award of attorn ey fees in this case is warranted under West Virginia Code § 48-1-305. Therefore, we see no e rror in the circuit cour t’s order affirming the award of the attorney fees in this case.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: June 7, 2013

CONCURRED IN BY:

Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II

DISSENTING:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis