STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Luis B., FILED 

Respondent Below, Petitioner April 7, 2017 

vs) No. 16-0303 (Cabell County 13-D-438) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Linda B., 

Petitioner Below, Respondent 

MEMORANDUM DECISION 

Petitioner Luis B., by counsel Amy C. Crossan, appeals the final order of the Circuit 

Court of Cabell County, entered on February 25, 2016, affirming in part, reversing in part, and 

remanding in part the order of the Family Court of Cabell County, entered on November 5, 2015, 

that addressed the division of marital assets subsequent to the parties’ divorce. Respondent, by 

counsel Jennifer Dickens Ransbottom, has filed a summary response. 

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 briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the order of the circuit court is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

The parties were married in 1987, separated in 2013, and divorced by order entered in the 

Family Court of Cabell County on June 11, 2015. They have five children, four of whom were 

emancipated at the time of the family court’s final hearing. Petitioner is an orthopedic surgeon, 

and respondent has worked as a nurse on a part-time basis. Petitioner’s annual income exceeds 

one-million dollars, and respondent derives income from the investment of inherited money. 

Throughout the marriage the parties participated in several business ventures related to 

petitioner’s occupation, and amassed substantial assets. 

The family court conducted a hearing on May 20 and 21, 2015, and subsequently entered 

an order on February 25, 2016, delineating the division of those assets and addressing parenting 

issues. Among other relief, the family court order: (1) permitted respondent to move to Texas 

and named her the residential parent of the parties’ minor daughter; (2) awarded respondent 

$7,099.85 per month to support the minor daughter, with any amount in excess of $2,500 

payable to a trust from which airfare for visitation, school tuition, and an automobile for the child 

would be paid; (3) retroactively modified temporary orders and directed petitioner to pay child 

support in the amount of $4,000 per month for a six-month period; (4) valued shares of the 

marital business Three Gables Surgery Center (“Three Gables”) at $1,047,411, thereby rejecting 

both parties’ experts’ opinions in favor of an internal valuation by the business made on April 

30, 2013, and directed petitioner to purchase respondent’s half-interest; (5) valued shares of the 

marital business Tri-State Surgical Properties (“Tri-State”) at $426,970, thereby accepting the 

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opinion of respondent’s expert witness, and directed petitioner to purchase respondent’s halfinterest; (6) awarded respondent half of one-third of petitioner’s 2013 income from Highlawn 

Property Management, Three Gables, and Tri-State (collectively, “the properties”), for a total of 

$49,046; (7) directed petitioner to pay respondent $45,000 for her attorney’s fees and $25,000 

for her accounting fees related to the proceedings; (8) awarded no spousal support through 

January 31, 2014, spousal support in varying amounts from February 1, 2014, through May 31, 

2015, and permanent spousal support in the amount of $14,000 per month; (9) awarded half of 

one-third of petitioner’s employer’s 2013 retirement account contribution to respondent; and (10) 

ordered petitioner to pay half of respondent’s tuition for nurse practitioner school. 

Both parties appealed the family court’s order to the Circuit Court of Kanawha County. 

The circuit court entered an order on February 25, 2016, specifically finding, among other things, 

that the family court did not err in: choosing not to deviate from the child support formula; 

retroactively awarding child support; valuing Three Gables and Tri-State as it did; awarding 

respondent a portion of the contribution to petitioner’s retirement account; awarding permanent 

alimony or tuition costs to respondent; and awarding respondent attorney and expert witness 

fees.1 

On appeal, petitioner asserts seven assignments of error: that the family court erred in (1) 

rejecting his expert’s valuation of two businesses; (2) awarding respondent 1/6 of respondent’s 

2013 income from the properties; (3) awarding respondent part of petitioner’s 2013 retirement 

contribution; (4) awarding more than $7,000 per month in child support; (5) modifying 

temporary orders after each was entered by increasing the amount of child support by $4,000 per 

month, thereby retroactively creating an arrearage of child support in the amount of $24,000, 

though petitioner already had paid the sums originally ordered to be paid pursuant to the 

temporary orders; (6) awarding respondent $14,000 per month in permanent spousal support and 

half of tuition for a nurse practitioner degree; and (7) awarding respondent $45,000 in attorney’s 

fees and $25,000 in expert witness fees. With respect to each of these assignments of error, 

petitioner further asserts that the circuit court erred in affirming the family court order. 

Concerning matters of equitable distribution, we have explained: 

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). 

1 The circuit court reversed the family court order on an issue involving rental income, 

and it reversed the family court order insofar as it directed petitioner to pay medical bills 

incurred by one of the emancipated children for injuries that occurred before that child reached 

the age of majority. It also remanded the matter to the family court for consideration of a motion 

for sanction of petitioner’s counsel that the family court failed to consider. Those issues are not 

before this Court. 

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We begin with petitioner’s first assignment of error, wherein he argues that the family 

court erred in (1) rejecting his expert witness’s valuation of Three Gables and establishing its 

own value and (2) accepting the value that respondent’s expert witness assigned to Tri-State 

Surgical, thereby rejecting petitioner’s expert witness’s valuation of that property. In syllabus 

point one of Bettinger v. Bettinger, 183 W.Va. 528, 396 S.E.2d 709 (1990), this Court held: 

A measure of discretion is accorded to a family law master in making 

value determinations after hearing expert testimony. However, the family law 

master is not free to reject competent expert testimony which has not been 

rebutted. This statement is analogous to the rule that “‘[w]hen the finding of a 

trial court in a case tried by it in lieu of a jury is against the preponderance of the 

evidence, is not supported by the evidence, or is plainly wrong, such finding will 

be reversed and set aside by this Court upon appellate review.’” Syllabus Point 1, 

in part, George v. Godby, 174 W.Va. 313, 325 S.E.2d 102 (1984), quoting 

Syllabus Point 4, Smith v. Godby, 154 W.Va. 190, 174 S.E.2d 165 (1970). 

See Syl. Pt. 5, Kimble v. Kimble, 186 W.Va. 147, 411 S.E.2d 472 (1991); Syl. Pt. 2, McGraw v. 

McGraw, 186 W.Va. 113, 411 S.E.2d 256 (1991). 

With respect to the valuation of Three Gables, petitioner argues that respondent’s expert 

witness testified regarding the value of the business without having performed a formal valuation 

of that business, as evidenced by the expert’s opinion letter. Regarding Tri-State Surgical, 

petitioner argues that the family court unreasonably rejected the opinion of his expert witness. 

We agree with the circuit court, however, that the family court “reviewed the pleadings, 

supporting documentation, and record, and, after due consideration of the issues raised,” made a 

decision firmly grounded in the evidence presented. We further acknowledge that the family 

court rejected petitioner’s expert witness’s opinion in favor of a valuation made by the business 

itself, within a week of the parties’ separation. The family court did not abuse its discretion, then, 

in considering the opinion of petitioner’s expert witness sufficiently rebutted on that issue. 

In his second assignment of error, petitioner argues that the family court erred in 

awarding respondent one-sixth (or, stated another way, half of one-third) of his 2013 income 

from the properties, based on the parties’ separation date of April 24, 2013. Petitioner’s position 

on this matter is that he had insufficient pre-hearing notice that respondent sought this income, 

that there is no evidence that the parties did not receive and use that portion of the income prior 

to their separation, and that the income was considered in the valuation of the businesses. 

Respondent argues that the income from these properties was not realized until June of 2013. 

Based on the evidence presented (which, notably, does not include a citation to the appendix 

record on appeal concerning the timing of the income distribution), we discern no erroneous 

finding on fact by the family court, and no abuse of discretion in the application of the law. We 

therefore reject petitioner’s assignment of error. 

Next, in his third assignment of error, petitioner argues that the family court erred in 

awarding respondent a portion of his retirement account contribution, though his employer made 

the contribution ten months after the date of the parties’ separation, and though petitioner was 

required to be employed on the last day of the year to qualify for the employer contribution. We 

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agree with respondent that petitioner has offered no evidence that petitioner’s employer required 

that he be employed at the end of the year in order to receive the benefit. We thus find no error in 

this regard. 

We turn to petitioner’s fourth assignment of error, wherein he argues that the family court 

erred in its strict adherence to the child support formula, ultimately awarding more than $7,000 

per month for support of the minor child. We have explained that 

“[t]he amount of support resulting from the application of the [statutory child 

support] guidelines is presumed to be the correct amount, unless the court, in a 

written finding or a specific finding on the record, disregards the guidelines or 

adjusts the award as provided for in section 13–702 [§ 48–13–702].” W.Va. Code 

§ 48–13–203 (2001) (Repl. Vol. 2004). Accord[] W.Va. Code § 48–13–101 

(“There is a rebuttable presumption, in any proceeding before a court for the 

award of child support, that the amount of the award which would result from the 

application of these guidelines is the correct amount of child support to be 

awarded.” ); W.Va. Code § 48–13–701 (“The guidelines in child support awards 

apply as a rebuttable presumption to all child support orders established or 

modified in West Virginia.”). 

Soulsby v. Soulsby, 222 W.Va. 236, 243, 664 S.E.2d 121, 128 (2008). We further explained in 

Soulsby that, “[a]lthough application of the guidelines is mandatory and results in a 

presumptively correct award of child support, courts nevertheless are permitted limited discretion 

to deviate from the established guidelines when the facts of a particular case do not fall squarely 

within the confines thereof.” Id. at 243, 664 S.E.2d at 128. Our statute suggests that a court may 

choose to deviate when the following conditions may exist: (1) special needs of the child or 

support obligor; (2) educational expenses for the child or the parent; (3) families with more than 

six children; (4) long-distance visitation costs; (5) a child resides with a third party; (6) the needs 

of another child or children to whom the obligor owes a duty of support; (7) the extent to which 

the obligor’s income depends on nonrecurring or nonguaranteed income; or (8) whether the total 

of spousal support, child support and child care costs subtracted from an obligor’s income 

reduces that income to less than the federal poverty level and conversely, whether deviation from 

child support guidelines would reduce the income of the child’s household to less than the 

federal poverty level. W.Va. Code § 48-13-802 (2015). The family court is also granted broad 

discretion to order, as the family court did here, the investment in a trust of any portion of the 

monthly child support obligation, and the family court is required to make a finding concerning 

such an investment if the monthly obligation exceeds $2,000. W.Va. Code § 48-13-802 (2015). 

In light of this broad discretion vested in the family court, and the family court’s compliance 

with the applicable statutes, we find no error and reject petitioner’s fourth assignment of error. 

In his fifth assignment of error, petitioner argues that the family court erred in 

retroactively modifying temporary support orders, thus creating for petitioner a $24,000 

arrearage. Respondent argues that the rapid entry of the temporary orders (to ensure that 

respondent’s needs were met at an early stage) necessitated the retroactive modification. We 

agree with the circuit court that the family court gave this matter ample consideration and did not 

abuse its discretion. 

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Petitioner’s sixth assignment of error attacks the family court’s award of $14,000 in 

permanent spousal support, together with half of respondent’s tuition costs associated with her 

return to college. “‘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 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, Pelliccioni v. Pelliccioni, 214 W.Va. 28, 30, 585 S.E.2d 28, 30 

(2003). Again, in reviewing the family court order, we find that the family court gave ample 

consideration to the factors at play. We therefore find no abuse of discretion. 

Finally, we address petitioner’s seventh assignment of error, in which he argues that the 

family court erred in awarding respondent attorney’s and expert witness fees. 

“In divorce actions, an award of attorney’s fees rests initially within the sound 

discretion of the family law master and should not be disturbed on appeal absent 

an abuse of discretion. 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). 

Syl. Pt. 3, Mayle v. Mayle, 229 W.Va. 179, 181, 727 S.E.2d 855, 857 (2012). Petitioner argues 

that respondent had the financial resources to pay her own fees, and that the family court order 

shows that the court considered only the factor of fault in making the award. We disagree. 

Though the family court addressed the issue of fault, it also devoted substantial discussion to 

income disparity and lifestyle. We find no abuse of discretion. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: April 7, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Margaret L. Workman 

Justice Elizabeth D. Walker 

DISSENTING: 

Justice Robin Jean Davis 

DISQUALIFIED: 

Justice Menis E. Ketchum 

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