1 

### I N THE 

### I NTERMEDIATE 

### C OURT OF 

### A PPEALS OF 

### W EST 

### V IRGINIA

CHRISTOPHER BARBOT

, Respondent Below, Petitioner

vs.) No. 22

- ICA

- 13 ( Fam. Ct. Jefferson C nty . No. FC

- 19

- 2020

- D

- 357 )

CLAUDIA BARBOT

, Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Christopher Barbot appeals the Family Court of Jefferson County ’s July

1 4 , 2022

, Order Denying Reconsideration of the F inal D ivorce O rder entered December 20, 2021. Mr. Barbot asserts that the family court erroneously awarded all of the parties’ assets to Respondent Claudia Barbot and abused its discretion by awarding spousal support without conducting the required statutory analysis. Ms. Barbot filed a response in support of the family court’s order s . Mr. Barbot filed a reply. 1

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51

- 11

- 4 (2022). After consi dering the parties’ arguments, the record on appeal, and the applicable law, this Court finds that there is error in the lower tribunal’s decision but no substantial question of law. This case satisfies the “limited circumstances” requirement of

Rule 21 of the Rules of Appellate Procedure for disposition in a memorandum decision. For the reasons set forth below, the family court’s final order is vacated

, in part, and this case is remanded for further proceedings consistent with this decision.

The parties were married on November 25, 1995, in Laurel

, Maryland. The parties

have two adult children. Ms. Bar b ot filed her p etition for d ivorce on December 2, 2020, alleging irreconcilable differences. On January 26, 2021, Mr. Bar b ot filed his a nswer admitt ing irreconcilable differences.

The final hearing was held on November 16, 2021. Ms. Barbot appeared at the hearing with her counsel. Mr. Barbot , who was not represented by counsel at that time, failed to appear. A special commissioner appeared telephonically for the hearing. At the hearing, Ms. Barbot testified as to when the parties married ; where she resides ; whether the parties were incarcerated, incompetent, or in the armed services ; and the reason the parties were divorcing

. Ms. Barbot further testified that the parties had a s tate tax debt in

1 Mr. Barbot is represented by Brendan Doneghy , Esq. Ms. Bar b ot is represented by Christopher D. Janelle, Esq

. 

### FILED January 10, 2023

EDYTHE NASH GAISER, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA2 the amount of $12,000

, homeowner’s association debt in the amount of $5,000

, a bass fishing boat titled to both parties

, a wrecked BM W automobile titled to Mr. Barbot

, a Toyota R AV 4 in her possession

, a camper trailer that Mr. Barbot live d in

, and a timeshare

that was in arrears

. Ms. Barbot’s counsel proffered that Mr. Barbot had a retirement account

with a value of $140,992 as of Decembe r 2020, with a loan taken out against it in the amount of $37,000. Ms. Barbot’s counsel also proffered that the estimated value of the marital home was approximately $350,000 to $400,000

, with abo ut a $293,000 mortgage
on the home.

On December 20, 2021, the family court entered the f inal d ivorce o rder. In that order, t he family cour t award ed Ms. Barbot sole ownership of the marital hom e ; the entire

balance of Mr. Barbot’s retirement account

, less any outstanding loan balance ; the camper Mr. Barbot was living in ; the parties’ automobiles ; the parties’ boat ; and $5,250 per month in spousal support. The final order made Mr. Barbot responsible for the parties’ state and

federal tax debt ; any outstanding lo an balance on his retirement account ; the parties’

timeshare ; Ms. Barbot’s attorney’s fees in the amount of $8,500 ; and payment of the special commissioner’s fee in the amount of $2,000

.

On January 10, 2022, Mr. Barbot , through counsel, filed a m otion for

r econsideration of the f inal d ivorce o rder in family court. After more than thirty days had passed without the family court ruling on the m otion for r econsideration, Mr. Barbot

, through counsel, filed an appeal of the f inal d ivorce o rder in circuit court on February 3,

2022

. On June 8, 2022, the circuit court entered an order concluding that the appeal was not ripe due to the pending m otion for r econsideration in family court. T he circuit court

remand ed the matter to family court for a rul ing on the m otion for r econsideration. On July 14, 2022, the family court issued a n order denying the m otion for r econsider ation

. Mr. Barbot now appeals.

“In reviewing . . . 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 question s of law de novo .” Syl. Pt., [in part,] Carr v.

Hancock , 216 W. Va. 474, 607 S.E.2d 803 (2004).

Amanda C. v. Christopher P. , No. 22

- I C A

- 2, __ W. Va. __, __ S.E.2d __, 2022 WL 17098574, *3 (Ct. App. 2022); accord W. Va. Code § 51

- 2A

- 14(c) (2005) (specifyin g standards for appellate court review of family court order).

Mr. Barbot raises two assignments of error on appeal. First, that the family court

erred in awarding essentially all the parties’ assets to Ms. Barbot instead of conducting equitable distribution

. Second, that the family court abused its discretion by awar d ing spousal support without considering the statutory factors outlined in West Virginia Code §

48

- 6

- 301 (20 18 )

. In response, Ms. Barbot argues that a n y perceived inequity arising from3 the family court’s order, or any evidentiary insufficiency

, is the result of Mr. Barbot’s failure to participate in the underlying proceedings.

In regard to the family court’s division of the parties’ assets, t he Supreme Court of Appeals of West Virginia has explained that

“‘ [e] quitable 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

. . . [West Virginia 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).

Syl. Pt. 3, Mulugeta v. Misailidis

, 239 W. Va. 404, 801 S.E.2d 282 (2017).

Here, the family court ’s f inal divorce order d oes no t address the steps outlined in Whiting

. Of the eight findings of fact in the family court’s Final Divorce O rder, none concern marital or separate property, the value of assets, or the principles contained in West Virginia Code § 48

- 7

- 103 (2001)

. Further more , a f amily court ha s a duty to ensure that

the division of marital assets is equitably accomplished. Donna S. v. Travis S. , 246 W. Va. 634,

__, 874 S.E.2d 746, 756 (2022). There is nothing in the family court’s order s indicating th at the family court attempted to equitably divide the parties’ assets and

liabilities. To the contrary, the family court inequitably divide d the parties’ assets and

liabilities , seemingly to punish Mr. Barbot for his failure to obey court orders and participate in the proceedings.

Turning to the issue of spousal support, t he Supreme Court of Appeals has explained

that as long as the family court fully considers the mandatory statutory factors contained in West Virginia Code § 48

- 6

- 301 , and the award of spousal support is within the parameters of reasonableness, a reviewing court should not disturb the award on appeal. Mulugeta

, 239 W. Va. at 410, 801 S.E.2d at 288

. Here, the family court’s f inal d ivorce

o rder does not reflect that the family court considered any of the mandatory factors contained in West Virginia Code § 48

- 6

- 301.

Both the family court in its order denying the motion for reconsideration, and Ms. Barbot on appeal, cite to Syllabus Point 2 of Robinson v. Robinson , 169 W. Va. 425, 288

S.E.2d 161 (1982), fo r the proposition that evidentiary insufficiency arriving exclusively from the failure of one party to appear and offer evidence is not a “judicially cognizable

and harmful circumstance” to permit a collateral attack on a judgment. However, nothing

in Robinson authorizes a family court to completely disregard its dut y to equitably divide

marital assets and to consider mandatory statutory factors. Further, Robinson is distinguishable from the present case in that evidentiary insufficiency in this matter was4 not exclusively the result of Mr. Barbot’s failure to appear . R ather, the evidence that was adduced from Ms. Barbot at the final hearing was insufficient for the family court to adequate ly address the statutory factors contained in West Virginia Code § § 48

- 6

- 301 and

48

- 7

- 103.

Accordingly, the family court abused its discretion by denying the motion for

reconsideration of the final divorce order. W e vacate the December 20, 2021, f inal d ivorce

o rder only as it pertains to equitable distribution and spousal support and remand to the Family Court of Jefferson County with directions to hold a new hearing on the issues of equitable distribution and spousal support an d issue an order consistent with this

decision

. 2 The Clerk is hereby directed to issue the mandate contemporaneously with this

memorandum decision.

Vacated , in Part, and Remanded with D irections

.

ISSUED: 

### January 10, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear Judge Thomas E. Scarr Judge Charles O. Lorensen

2 This decision does not relieve M r . Barbot of his attorney fee obligations as outlined in the family court ’ s orders. Mr. Barbot did not appeal the f amily c ourt ’s award of attorney fees. Moreover, the record reflects that Mr. Barbot failed to follow f amily c ourt orders, and he did not attend the final hearing. As a result, the f amily c ourt did not abuse its discretion when it ordered Mr. Barbot to pay Ms. Barbot ’ s attorney fees of $8,500 (at an annual rate of 4% interest) and the special commissioner ’ s attor ney fees incurred (at an annual rate of 4% interest)

.