IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2022 Term

_______________

No. 21-0166

_______________

DONNA S.,

Petitioner Below,

Petitioner,

v.

TRAVIS S.,

Respondent Below,

Respondent.

____________________________________________________________

Appeal from the Circuit Court of Mercer County

The Honorable Derek C. Swope, Judge

Civil Action No. 19-D-97

AFFIRMED

____________________________________________________________

Submitted: March 1, 2022

Filed: May 6, 2022

Anthony R. Veneri, Esquire

Veneri Law Offices

Princeton, West Virginia

Counsel for Petitioner

David R. Karr, Jr., Esquire

Charleston, West Virginia

Counsel for Respondent

JUSTICE ARMSTEAD delivered the Opinion of the Court.

JUSTICE BUNN did not participate in the decision of this case.

FILED

May 6, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

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. “It is always to be presumed that the Legislature designed 

the statute to take effect, and not to be a nullity.” Syllabus Point 2, Slack v. Jacob, 8 W. 

Va. 612 (1875).

3. “When a statute is clear and unambiguous and the legislative intent is 

plain, the statute should not be interpreted by the courts, and in such case it is the duty of 

the courts not to construe but to apply the statute.” Syllabus Point 5, State v. General 

Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 

(1959). 

4. “A meeting of the minds of the parties is a sine qua non of all 

contracts.” Syllabus Point 1, in part, Burdette v. Burdette Realty Improvement, Inc., 214 

W. Va. 448, 590 S.E.2d 641 (2003). 
1

Armstead, Justice:

Donna S. (“Petitioner”) appeals the Circuit Court of Mercer County’s order 

which affirmed the Family Court of Mercer County’s order setting aside a Mediated 

Settlement Agreement (“MSA”) between Petitioner and Travis S. (“Respondent”) on the 

grounds that it was unenforceable because there was no meeting of the minds. After 

review of the briefs and arguments of the parties, and all other matters of record, we affirm

the circuit court.

I. FACTUAL AND PROCEDURAL BACKGROUND

The parties to this action were married on August 19, 2000, and two children 

were born of the marriage. On February 15, 2019, Petitioner filed for divorce in Mercer 

County, West Virginia, on the grounds of irreconcilable differences. On May 15, 2019, 

the family court granted the parties joint custody of the children and named Petitioner as 

the primary residential parent, utilizing the statutory child support formula to determine 

child support responsibilities. Thereafter, on November 6, 2019, the family court entered 

an “Agreed Bifurcated Order of Divorce.” This bifurcated order directed the parties to 

engage in mediation to attempt to reach an agreement on the equitable distribution of the 

marital estate, appointed a guardian ad litem for the children, granted Petitioner a name 

change, and set the matter for another hearing following mediation to finalize equitable 

distribution.
2

After entry of the bifurcated order, the parties participated in mediation and 

entered into the MSA that gives rise to this action. This MSA detailed the equitable 

distribution of marital property, including the marital residence. Pertinent to this appeal, 

the MSA also included the parties’ agreement to transfer three acres of marital property to 

Respondent’s parents.1

 In exchange, Respondent agreed that his parents would transfer a 

right of way across the parents’ land to Petitioner. This was memorialized in the December 

17, 2019, Corrected Agreed Final Bifurcation Order:

8. The parties agree that they will deed [three] acres of 

the marital real estate to [Respondent’s parents] as discussed 

and specifically agreed to in the mediation. The parties agree 

to have an independent surveyor to survey the [three] acres to 

obtain a legal description and [Respondent’s parents] have 

agreed to pay the surveyor to survey the [three] acres to obtain 

the legal description and costs of the deed and transferring the 

property to them.

9. [Respondent] will have a right of way deeded to 

[Petitioner] to her home. As part of the transaction, 

[Respondent] shall pay for the preparation and conveyance of 

the right of way to the property.

Following entry of the Corrected Agreed Final Bifurcation Order, the parties 

endeavored to divide the property according to its terms. However, Petitioner filed a 

petition for contempt on March 26, 2020, alleging Respondent refused to execute a deed 

transferring the marital home, refused to convey his ownership interest in the three acres

of marital property to Respondent’s parents, and refused to have a survey of the three acres.

1 The parties agree that Respondent made a rough sketch of the area to be 

conveyed to his parents at the mediation. This sketch was estimated to contain three acres. 

The mediator took possession of the sketch and ultimately destroyed it as a matter of 

course. Thus, that rough sketch no longer exists. 
3

Respondent’s response2 sought modification of the MSA for various reasons. 

First, Respondent alleged that the conveyance of the three acres involved his parents, who 

were not parties to the action.3

 Second, Respondent argued that Petitioner had “defected 

from the agreement reached with [Respondent’s parents].” Third, Respondent alleged that 

the MSA should be rendered void due to uncertainty based upon the lack of agreement as 

to the size and location of the three acres.

The family court conducted a hearing on these issues. During that hearing, 

the family court took testimony from Petitioner and Respondent and heard detailed 

argument from their counsel. Following this hearing, the family court concluded that the 

parties did not have a “meeting of the minds” in reaching the MSA and determined that the

entirety of the MSA was unenforceable, specifically finding as follows:

7. The Court concludes:

a. There was no meeting of the minds with respect to the 

overall [MSA] which was attached to and incorporated into the 

Corrected Agreed Final Bifurcation Order, entered on 

December 17, 2019.

2 The response was contained as part of a Petition for Modification. As the 

other issues raised in that Petition are not relevant to this appeal, they are not discussed 

herein.

3 We note that the parents filed a petition to intervene in the divorce 

proceeding, which was denied by the family court. Also, pending in the circuit court is a 

declaratory judgment action filed by the parents regarding the alleged easement. From the 

record, the declaratory judgment action was set for a bench trial on March 31, 2021. We 

do not know the outcome, if any, of that action.
4

b. The diagram of the real estate to be transferred to 

[Respondent’s] parents is unavailable to the Court because the 

mediator destroyed it.

c. The [MSA] made an attachment (Exhibit A) to the 

Corrected Agreed Final Bifurcation Order is hereby FOUND 

and CONCLUDED to be UNENFORCEABLE as a contract or 

other agreement and VOID to that effect.

d. The clear and sole purpose of the Corrected Agreed 

Final Bifurcation Order was the ratification, adoption[,] and 

enforcement of the [MSA].

e. The December 17, 2019, Order in this matter, and in 

particular the nineteen (19) several specific terms of that Order 

putting into effect the [MSA] should be and hereby are 

VACATED and SET ASIDE.

8. Based upon the conclusions and ruling that the parties 

did not have a meeting of the minds, [Petitioner’s] petition for 

contempt pending against [Respondent] is hereby DENIED 

and the same is hereby DISMISSED with prejudice.

9. The vacation of the December 17, 2019, Order in this 

matter and the complete rejection of the [MSA] as a property 

settlement agreement, therefore, fully REINSTATES this 

Court’s jurisdiction as it existed on and before December 17, 

2019, with respect to its duty to perform equitable distribution 

of the parties’ marital property.

10. The Court shall take up this matter for an all-day hearing 

for consideration of the parties’ contested presentation of 

evidence on equitable distribution of the parties’ marital 

property. . . .

Petitioner then appealed the family court’s ruling to the circuit court arguing 

that there was a meeting of the minds, that there was no timely appeal of the Corrected 

Agreed Bifurcation Order, and that the entire MSA should not be rendered void. However, 

the circuit court disagreed and affirmed the family court’s decision. The circuit court held:
5

The provisions of the [MSA] surrounding the proposed 

easement, and the term obligating [Respondent’s parents] to 

pay for the surveying of the disputed three acres, are illusory 

promises. These terms are illusory because they create an 

obligation to third parties who are not bound by the [MSA]. 

The presence of these illusory terms renders the formation of 

the [MSA] defective. The [f]amily [c]ourt cites this in the 

written order and makes mention of it on the electronic record 

wherein the [f]amily [c]ourt found that there was “no meeting 

of the minds” because the [MSA] obligated nonparties to the 

contract. Therefore, the [c]ourt finds that the [f]amily [c]ourt

did not abuse its discretion in finding that the [MSA] lacked 

mutual assent.

It is from the circuit court’s order affirming the family court’s decision to set aside the 

MSA that Petitioner appeals.

II. STANDARD OF REVIEW

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).

III. ANALYSIS

Petitioner essentially raises two arguments in support of her position. First, 

she alleges that the family court lacked jurisdiction to reconsider its Corrected Agreed Final 

Bifurcation Order and then invalidate the MSA. Second, Petitioner maintains that the 
6

family court should have only invalidated portions of the MSA, enforced the remaining 

provisions, and held a hearing solely on the invalid portions of the MSA. 

I. Jurisdiction 

Under our law, “a family court has the right and authority to adjudicate 

actions for divorce and the power to carry its judgment and order into execution.” W. Va. 

Code § 48-5-102 (2001). This jurisdiction includes actions for divorce and proceedings 

for property distribution. See W. Va. Code § 51-2A-2 (2018). Division of marital property 

shall be equitable. See W. Va. Code § 48-7-101 (2001). Parties to a divorce may agree to 

an MSA that provides for equitable distribution of marital property and a family court may 

accept such agreements and incorporate them into a final order. Rule 44, W. Va. R. Fam. 

Ct.

4

4 Rule 44 of the Rules of Practice and Procedure for Family Courts provides:

Upon receipt of a mediated agreement the court shall 

review the agreement to determine if it is knowing, voluntary, 

and in the best interests of the parties' children. The court shall 

cause the child support formula to be calculated based on the 

allocation of custodial responsibility in the parenting plan 

contained in the mediated agreement; and by way of 

comparison, shall cause the child support formula to be 

calculated in accordance with W. Va. Code, §§ 48-13-401 to 

404, 501, and 502. After being informed on the record of the 

mediated agreement's child support implications, if the parties 

assent to the agreement on the record, and if the court 

determines there is no impediment to the validity of the 

agreement, the court shall incorporate the mediated agreement 

in an order.
7

Once a final divorce order has been entered, family courts may modify that 

final order in certain situations:

In modifying a final divorce order, the court may, when 

other means are not conveniently available, alter any prior 

order of the court with respect to the distribution of marital 

property, if:

(1) The property is still held by the parties;

(2) The alteration of the prior order as it relates the 

distribution of marital property is necessary to give effect to a 

modification of spousal support, child support or child custody; 

or

(3) The alteration of the prior order as it relates the 

distribution of marital 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 

distribution of marital property.

W. Va. Code § 48-5-706 (2001). Petitioner argues that the “or” at the end of subsection

(2) is a drafting error by our Legislature and it should be read as an “and,” requiring all 

three conditions to be met before a family court can modify a final order.5

 In support of 

this position, Petitioner points us to the case of Segal v. Beard, 181 W. Va. 92, 380 S.E.2d 

444 (1989). As we discuss below, we disagree and decline to write into the statute that 

which the Legislature did not.

5 Respondent urges this court to apply the provisions of Rule 60 of the West 

Virginia Rules of Civil Procedure to affirm the family court and circuit court. However, 

we believe West Virginia Code § 48-5-706 is directly on point.
8

“It is always to be presumed that the Legislature designed the statute to take 

effect, and not to be a nullity.” Syllabus Point 2, Slack v. Jacob, 8 W. Va. 612 (1875). 

“‘[T]he Legislature is presumed to intend that every word used in a statute has a specific 

purpose and meaning,’ State ex rel. Johnson v. Robinson, 162 W. Va. 579, 582, 251 S.E.2d 

505, 508 (1979)[.]” Stone v. United Eng’g, a Div. of Wean, Inc., 197 W. Va. 347, 355, 475 

S.E.2d 439, 447 (1996). See also Bullman v. D & R Lumber Co., 195 W. Va. 129, 133, 

464 S.E.2d 771, 775 (“[E]very word used is presumed to have meaning and purpose, for 

the Legislature is thought by the courts not to have used language idly.”). Even so, 

Petitioner urges this Court that the Legislature committed a clerical error and it is this 

Court’s duty to correct it. We acknowledge we have the authority in limited circumstances 

to correct statutory clerical errors. “Clerical errors in a statute will be disregarded, or read 

as corrected, where the true intention of the Legislature is manifest from the language used 

and the purpose sought to be attained.” Syllabus Point 1, Anderson v. Town of Friendly, 86 

W.Va. 554, 104 S.E. 48 (1920). There are a number of examples of clerical errors this 

Court has corrected. See St. Mary’s Hosp. v. State Health Planning and Dev. Agency, 178 

W. Va. 792, 796 n.3, 364 S.E.2d 805, 809 n.3 (1987) (incorrect citation to another statute);

McClanahan v. Putnam County Com’n, 174 W. Va. 478, 482, 327 S.E.2d 458, 462 (1985)

(correcting a clear transcription error from the then-existing Uniform Vehicle Code);

Boggess v. Workers’ Compensation Div., 208 W. Va. 448, 453, 541 S.E.2d 326, 331 (2000)

(List contained in a Legislative Rule was misnumbered). 
9

Here, there is no evidence demonstrating a clerical mistake, as Petitioner 

urges us to find. In fact, the entirety of Chapter 48 of the West Virginia Code was 

recodified in 2001. See W. Va. Code § 48-1-101 (2001) (“The recodification of this chapter 

during the regular session of the Legislature in the year 2001 is intended to embrace in a 

revised, consolidated, and codified form and arrangement the laws of the State of West 

Virginia relating to domestic relations at the time of that enactment.”). In the West Virginia 

Code as it read immediately prior to the 2001 revision, the general provisions now 

contained in West Virginia Code § 48-5-706 were found in West Virginia Code § 48-2-15 

(1999), which provided:

In granting relief under this subsection, the court may, 

when other means are not conveniently available, alter any 

prior order of the court with respect to the distribution of 

marital property, if such property is still held by the parties, and 

if necessary to give effect to a modification of alimony, child 

support or child custody or necessary to avoid an inequitable 

or unjust result which would be caused by the manner in which 

the modification will affect the prior distribution of marital 

property.

W. Va. Code 48-2-15(e) (1999) (emphasis added) superseded by statute, W. Va. Code § 

48-5-706 (2001). In comparing these two enactments, the Legislature left the disjunctive 

“or” in the same location in the 2001 reenactment as where it was located in the prior

enactment. 

Turning to Petitioner’s argument regarding Segal, a case that interpreted an 

even earlier version of 48-2-15(e) (1986), we find it to be inapplicable to the current version 

of the statute. Segal held that the subsection allowing for modification of divorce decrees 
10

only applies to modifications for alimony, child support and child custody. See Syllabus 

Point 2, Segal. The Court in Segal reached this conclusion:

[B]y giving effect to the words at the beginning of the second 

sentence, referring to the relief authorized by the first sentence: 

“In granting such relief, ...” The remainder of the second 

sentence, including the language relied upon by the appellee, 

is thus expressly hinged upon a modification involving 

alimony, child support or child custody, and the redistribution 

of the former marital property, if still held by the parties, is 

allowed either to (1) give effect to a modification of alimony, 

child support or child custody or to (2) avoid an inequitable or 

unjust result which would be caused by the manner in which 

the modification of alimony, child support or child custody will 

affect the prior distribution of the former marital property.

Segal, 181 W. Va. at 98, 380 S.E.2d at 450 (emphasis in original). In 1990, the Legislature, 

following this Court’s opinion in Segal, amended the statute and removed the language 

“[i]n granting such relief,” replacing that language with “[i]n granting relief under this 

subsection,” completely eliminating the word “such.” Compare W. Va. Code § 48-2-15(e) 

(1986) with W. Va. Code § 48-2-15(e) (1990). This change was carried forward to the 

1999 provision quoted above. See W. Va. Code § 48-2-15(e) (1999). Further, this language 

was completely removed from the 2001 recodification, also quoted above. Compare W. 

Va. Code § 48-5-706 (2001) with 48-2-15(e) (1986) and W. Va. Code § 48-2-15(e) (1990). 

The Legislative history leads us to the conclusion that Segal does not support the 

proposition urged by Petitioner and that the provisions of West Virginia Code 48-5-706 

are not limited to modifications involving alimony, child support, or child custody. 
11

Having declined to find and correct an alleged clerical mistake in West 

Virginia Code § 48-5-706, and having further concluded that its application is not limited 

to modifications involving alimony, child support, or child custody, we now apply the rules 

of statutory construction. “The primary object in construing a statute is to ascertain and 

give effect to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen’s 

Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). See also Syllabus Point 8, Vest 

v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953) (“The primary rule of statutory 

construction is to ascertain and give effect to the intention of the Legislature.”). 

Accordingly, “[w]hen a statute is clear and unambiguous and the legislative intent is plain, 

the statute should not be interpreted by the courts, and in such case it is the duty of the 

courts not to construe but to apply the statute.” Syllabus Point 5, State v. General Daniel 

Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959). 

Based upon our analysis of the statute in question, we reach the inescapable 

conclusion that the clear and unambiguous provisions of West Virginia Code § 48-5-706 

(2001) provide a family court jurisdiction to modify a final divorce decree if any of the 

requirements contained in its subsections are met. Here, the family court had jurisdiction 

to modify the divorce decree under the catch-all provision contained in subsection (3) 

because the inability to consummate the exchange of the three acres for the right of way 

directly impacts the equitable distribution of marital property. 

II. Mediated Settlement Agreement
12

Having found that the family court had jurisdiction to set aside the MSA, we 

now analyze whether the entire MSA should have been set aside, as was done by the family 

court and affirmed by the circuit court, or whether, as Petitioner urges, only the invalid 

portions of the agreement should be relitigated, leaving the other portions of the MSA 

undisturbed. 

On this issue, the family court found there was no meeting of the minds and 

the circuit court agreed. The circuit court accordingly found that the promises requiring 

Respondent’s parents – who were not parties to the divorce – to transfer a right of way to 

Petitioner and to pay the costs associated with transferring the three acres from the marital 

estate to them rendered the entire agreement illusory. We agree with the lower tribunals. 

We have stated:

A promise becomes consideration for another promise only 

when it constitutes a binding obligation. Unlike a binding 

obligation, an “illusory promise” appears to be a promise, but 

it does not actually bind or obligate the promisor to anything. 

Because an illusory promise is not binding on the promisor, 

an illusory promise cannot constitute consideration. Hill v. 

Peoplesoft USA, Inc., 412 F.3d 540, 543 (4th Cir. 2005).

Toney v. EQT Corp., No. 13-1101, 2014 WL 2681091, at *4 (W. Va. June 13, 2014)

(memorandum decision). “If one party to a contract is not bound to do the act which forms 

the consideration for the promise, undertaking, or agreement of the other, the contract is 

void for want of mutuality.” Syllabus Point 5, Eclipse Oil Co. v. S. Penn Oil Co., 47 W. 

Va. 84, 34 S.E. 923 (1899). Accord Samuel Williston & Richard A. Lord, Williston on 

Contracts § 7.7 (4th ed 2008) (“Where an illusory promise is made, that is, a promise 
13

merely in form, but in actuality not promising anything, it cannot serve as consideration. 

Even if it were recognized by law, it would impose no obligation, since the promisor always 

has it within his power to keep his promise and yet escape performance of anything 

detrimental to himself or beneficial to the promisee.”).

Further, “[a] meeting of the minds of the parties is a sine qua non of all 

contracts.” Syllabus Point 1, in part, Burdette v. Burdette Realty Improvement, Inc., 214 

W. Va. 448, 590 S.E.2d 641 (2003). “[A] court may only enforce a settlement when there 

has been a definite meeting of the minds.” State ex rel. Evans v. Robinson, 197 W.Va. 482, 

485, 475 S.E.2d 858, 861 (1996), cert. denied, 519 U.S. 1121 (1997). Similarly, in Riner 

v. Newbraugh, 211 W. Va. 137, 144, 563 S.E.2d 802, 809 (2002), we stated, “[i]t is wellunderstood that ‘[s]ince a compromise and settlement is contractual in nature, a 

definite meeting of the minds of the parties is essential to a valid compromise, since a 

settlement cannot be predicated on equivocal actions of the parties.” (internal citation 

omitted).

The purpose of mediation is for the parties to the dispute to give up something 

in exchange for something else to reach a resolution of their disagreements. Here, no party 

to the agreement had the authority to transfer the right of way. Respondent’s parents were 

not parties to the divorce and the family court had no mechanism to enforce the agreement 

against the parents. Nonetheless, Petitioner urges that the parents are third-party 

beneficiaries and that the MSA is binding upon them, citing us to the case of Eastern Steel 
14

Constructors, Inc. v. City of Salem, 209 W. Va. 392, 549 S.E.2d 266 (2001). However, we 

do not believe this case supports Petitioner’s position as its holdings apply to special 

relationships between design professionals and contractors, clearly inapplicable in this 

matter. See Syllabus Points 6, 7, and 9, id. Further, the facts show that Respondent’s 

parents were not third-party beneficiaries to the MSA. They were an integral part of the 

consideration of the parties’ agreement, yet as non-parties to such agreement, could not be 

bound by its terms.

A third-party beneficiary may enforce a contract only if it is made for its sole 

benefit:

If a covenant or promise be made for the sole benefit of 

a person with whom it is not made, or with whom it is made 

jointly with others, such person may maintain, in his own 

name, any action thereon which he might maintain in case it 

had been made with him only, and the consideration had 

moved from him to the party making such covenant or promise.

W. Va. Code § 55-8-12 (1923). To establish a person as a third-party beneficiary to a 

contract, we have held, “[w]here plaintiff seeks recovery as a third party beneficiary under 

a contract to which he is not a party under W.Va. Code, 55-8-12 (1923), it is necessary that 

plaintiff demonstrate that the contracting parties intended to confer a benefit upon the 

plaintiff by their contract.” Syllabus Point 2, Woodford v. Glenville State Coll. Hous. 

Corp., 159 W. Va. 442, 225 S.E.2d 671 (1976). “The fundamentals of a legal “contract” 

are competent parties, legal subject–matter, valuable consideration, and mutual assent. 

There can be no contract, if there is one of these essential elements upon which the minds 
15

of the parties are not in agreement.” Syllabus Point 5, Virginian Exp. Coal Co. v. Rowland 

Land Co., 100 W. Va. 559, 131 S.E. 253 (1926). “While the promise of a third-party 

beneficiary to a contract may serve as the requisite consideration to form a binding contract 

. . . that conclusion is premised on such consideration being bargained for in exchange for 

the return promise.” State ex rel. Saylor v. Wilkes, 216 W. Va. 766, 776, 613 S.E.2d 914, 

924 (2005).

The promise of a party to a contract, in order to be a

good consideration for the undertaking of the other party 

thereto, must be such as to impose a legal liability. Where the 

promise relied upon as constituting the consideration for the 

contract does not impose any legal liability upon the promisor, 

it will not ordinarily be held to be a sufficient consideration on 

the part of the other party.

Syllabus Point 2, Banner Window Glass Co. v. Barriat, 85 W. Va. 750, 102 S.E. 726 

(1920).

Even if there was consideration in the MSA for the exchange, the provisions 

in the MSA were not made for Respondent’s parents’ sole benefit. Its purpose was to 

equitably divide the marital estate between the parties to the divorce. The illusory promise 

to transfer three acres to the parents in exchange for their conveyance of the right of way 

was integral and inextricably intertwined as part of the consideration for the entire MSA

and the requirement that Respondent’s parents convey a right of way they solely owned to 

Petitioner and pay the sundry costs associated with the transfer of the three acres was to 

the parents’ detriment. Accordingly, the parents are not third-party beneficiaries as they 
16

were required to give up something in the MSA rather than benefitting from it, making 

them an integral part of the bargained-for exchange forming the MSA. 

Because we agree with the lower tribunals that the MSA was invalid, we note 

our law requires equitable distribution of marital assets. Where, as here, the conveyance 

of the land and right of way were integral parts of the overall MSA, we are unable to 

conclude that the remaining portions can stand alone. Without making such determination 

at this stage, we recognize that any modification or removal of the land agreements from 

the MSA may also require modification of the remaining terms of the MSA in order to 

ensure an equal distribution of the marital property. “Except as provided in this section, 

upon every judgment of annulment, divorce or separation, the court shall divide the marital 

property of the parties equally between the parties.” W. Va. Code § 48-7-101 (2001). “In 

order to achieve the equitable distribution of marital property, the court shall, unless the 

parties otherwise agree, order, when necessary, the transfer of legal title to any property 

of the parties. . . .” W. Va. Code § 48-7-105 (2001) (emphasis added). We have previously 

held that:

“‘Equitable distribution ... is a three-step process. The 

first step is to classify the parties’ property as marital or 

nonmarital. The second step is to value the marital assets. The 

third step is to divide the marital estate between the parties in 

accordance with the principles contained in [former] W.Va. 

Code, 48-2-32 [now W.Va. Code § 48-7-103].’ Syllabus Point 

1, Whiting v. Whiting, 183 W.Va. 451, 396 S.E.2d 413 (1990).”

Syl. Pt. 2, Stuck v. Stuck, 218 W.Va. 605, 625 S.E.2d 367 

(2005).
17

Syllabus Point 3, Mulugeta v. Misailidis, 239 W. Va. 404, 801 S.E.2d 282 (2017). We 

have also held that, “[t]he burden is on both parties to the litigation to adduce competent 

evidence on the values to be assigned in equitable distribution cases.” Syllabus Point 8, 

Mayhew v. Mayhew, 197 W. Va. 290, 475 S.E.2d 382 (1996), overruled on other grounds 

by Mayhew v. Mayhew, 205 W. Va. 490, 519 S.E.2d 188 (1999). 

Clearly, family courts have a duty to ensure that a division of marital assets 

is equitably accomplished. If the Court were to accept Petitioner’s argument that the 

remainder of the MSA should be enforced and only the illusory portions be litigated, such 

could result in an unequitable resolution of the distribution of marital property as the entire 

MSA represented the parties’ bargained-for exchange. Thus, the family court was 

obligated to reopen the entire distribution of marital assets to recalculate equitable 

distribution. 

IV. CONCLUSION

For the forgoing reasons, we affirm the circuit court.

Affirmed.