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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

TERRI M.,

Petitioner Below, Petitioner

v.) No. 24-ICA-125 (Fam. Ct. Marion Cnty. No. FC-24-2023-D-267) 

BRANDON M.,

Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Terri M.1appeals the Family Court of Marion County’s February 22, 

2024, final divorce order, which held that she must pay Respondent Brandon M. 

$11,516.37 for his share of equitable distribution. Brandon M. responded in favor of the 

family court’s decision.2 Terri M. did not file a reply. 

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

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds that there is error in the family court’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 resolution in a memorandum decision. For 

the reasons set forth below, the family court’s decision is affirmed, in part, and reversed, 

in part. 

Terri M. (“Wife”) and Brandon M. (“Husband”) were married on July 7, 2017. Two 

children were born of the marriage. Throughout the marriage, Husband subjected Wife to 

acts of physical violence and inflicted damage to the parties’ vehicle and marital home. 

Husband was incarcerated for his acts of physical violence at the time of the final divorce 

hearing, which was held on February 20, 2024. During the hearing, Wife asked the family 

court to account for Husband’s deliberate destruction of their marital property—a 2020 

GMC Acadia and the parties’ marital home—by assessing the destruction and adjusting 

equitable distribution accordingly. 

1 To protect the confidentiality of the juveniles involved in this case, we refer to the 

parties’ last names by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward 

Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990). 

2 Terri M. is represented by James L. Lindsay, Esq., and Molly A. Russell, Esq. 

Brandon M. is represented by David B. DeMoss, Esq.

FILED

September 4, 2024

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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The 2020 GMC Acadia had a lien balance of $24,895 at the time of the parties’ 

separation. However, during the hearing, the parties disagreed as to the vehicle’s current 

value. Wife argued that Husband, in a fit of anger, purposely drove the Acadia into their 

other vehicle, ripping off part of the Acadia’s grill and denting the hood, thus, causing a 

reduction in the vehicle’s value. Wife testified that the Kelly Blue Book value of the Acadia

was $17,000 due to the vehicle being in “fair” condition and provided pictures of the 

damage to the vehicle. Husband, by counsel, argued that the Acadia was in “great” 

condition and provided documentation of a Kelly Blue Book value for the Acadia of 

$25,034. There is no dispute that damage to the Acadia caused by Husband had not been 

repaired (at the time of the hearing) and Wife testified that she did not seek an estimate 

regarding the repair costs because she could not afford to have it repaired. The family court 

found Husband’s documentation to be more credible than Wife’s testimony and pictures. 

Regarding the marital home, the family court found that it was Wife’s separate 

property, the monthly mortgage payments were $422.28, and that the parties paid 

$31,248.72 toward the mortgage during the marriage. Wife presented multiple photos of 

the damage done to the home, most of which depicted drywall damage. Wife testified that 

Husband punched holes in the walls of the home, threw her through a wall, kicked in both 

the bathroom door and front door, punched her in the face (which caused her to bleed on 

the carpet), damaged door frames, and threw various items at her, which hit and damaged 

the walls. Husband admitted to causing some damage to the marital home but also testified 

that he made various repairs to the home. Wife offered no evidence of the cost to repair the 

damage depicted in the photographs she presented. Based upon the evidence before it, the 

family court held that Husband was entitled to $15,624.36 of the marital home’s equity as 

his share of equitable distribution. 

On February 21, 2024, Wife filed a proposed equitable distribution analysis, which 

included an analysis of Husband’s marital waste, wherein she argued that she should be 

credited $7,236.00 for the vehicle’s damage, which reflects the difference in the Kelly Blue 

Book values of the Acadia in “fair” versus “great” condition. Wife also requested a further 

reduction in Husband’s share of equitable distribution due to the damage he caused to the 

marital home. 

The final order was entered by the family court on February 22, 2024. In that order, 

the court determined that Wife owed Husband $11,516.37 as his share of equitable 

distribution and ordered her to pay at least $100 per month to Husband during his 

incarceration. Wife was given two years from the date of Husband’s release from 

incarceration to pay the remaining balance of the $11,516.37. The family court valued the 

Acadia to be in “great” condition and did not consider Wife’s marital waste argument 

regarding the marital home. It is from the February 22, 2024, order that Wife now appeals. 

For these matters, we apply the following standard of review: 
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When a final order of a family court is appealed to the Intermediate Court of 

Appeals of West Virginia, the Intermediate Court of Appeals shall review 

the findings of fact made by the family court for clear error, and the family 

court’s application of law to the facts for an abuse of discretion. The 

Intermediate Court of Appeals shall review questions of law de novo. 

Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W. 

Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family 

court orders).

On appeal, Wife raises two issues. First, she contends that the family court erred in 

calculating the fair market value of the 2020 GMC Acadia because the court failed to 

consider undisputed evidence of the vehicle’s damaged physical condition. We agree. The 

record establishes that Wife provided testimonial evidence of how the vehicle was 

damaged, and the specific damages it sustained. Further, she provided photographs

showing damage. Husband merely provided a Kelly Blue Book estimated value of the 

vehicle with his counsel’s assistance while he was incarcerated and stated that he believed 

the vehicle to be in “great” condition. Further, Husband did not deny damaging the vehicle. 

See Syl. Pt. 2, Evans v. Mut. Min., 199 W. Va. 526, 485 S.E.2d 695 (1997) (holding that, 

under the West Virginia Rules of Evidence, a lay witness is qualified to give lay testimony 

as to the value of destroyed or damaged personal property based on his or her personal 

knowledge). Because Wife provided undisputed evidence that Husband damaged the 

vehicle, offered pictures showing the extent of damages sustained, and provided a Kelly 

Blue Book value for the vehicle in a “fair” condition, we hold that the family court 

committed clear error with respect to the fact findings affecting the value of the vehicle 

and reverse as to this assignment of error, with directions for the family court on remand

to use Wife’s suggested value for the 2020 GMC Acadia. 

In her second assignment of error, Wife asserts that the family court abused its 

discretion in its equitable distribution findings by failing to properly apply the marital waste 

provisions of West Virginia Code § 48-7-1033after Husband admitted to engaging in 

3 West Virginia Code § 48-7-103(4) (2001) states: 

In the absence of a valid agreement, the court shall presume that all marital 

property is to be divided equally between the parties, but may alter this 

distribution, without regard to any attribution of fault to either party which 

may be alleged or proved in the course of the action, after a consideration of 

the following:

. . .

(4) The extent to which each party, during the marriage, may have conducted 

himself or herself so as to dissipate or depreciate the value of the marital 

property of the parties: Provided, That except for a consideration of the 
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conduct that reduced the value of the parties’ marital home. We disagree. Here, although 

Wife testified as to the extent of damage that Husband caused to the marital home and 

provided pictures, Husband testified that he made some repairs to the home and that Wife’s 

first husband caused some of the alleged damage to the home. Because Wife provided no 

receipts or estimates showing the cost of repairs, or any other documentation that showed 

the decrease in the home’s value, the family court had no way to calculate a reduction in 

Husband’s share of equitable distribution.4 Therefore, we find no error in the family court’s 

ruling as to equitable distribution of the parties’ marital home. 

Accordingly, we affirm, in part, and reverse, in part, the family court’s February 22, 

2024, final divorce order and remand this matter to family court with directions for the 

court to use Wife’s suggested value for the 2020 GMC Acadia when determining equitable 

distribution between the parties. 

Affirmed, in part, and Reversed, in part, with Directions.

ISSUED: September 4, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr

Judge Charles O. Lorensen

Judge Daniel W. Greear

economic consequences of conduct as provided for in this subdivision, fault 

or marital misconduct shall not be considered by the court in determining the 

proper distribution of marital property.

4 Although we affirm the family court’s ruling as to this assignment of error, we 

note that there are other civil remedies available to Wife outside the jurisdiction of family 

court. For example, West Virginia Code § 50-2-1 (2016) directs that “[e]xcept as limited 

herein and in addition to jurisdiction granted elsewhere to magistrate courts, [magistrate] 

courts shall have jurisdiction of all civil actions wherein the value or amount in controversy 

or the value of property sought, exclusive of interest and cost, is not more than $10,000.”