STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Matthew H.,
 FILED 

Respondent Below, Petitioner October 28, 2016
 

RORY L. PERRY II, CLERK 

vs) No. 15-1074 SUPREME COURT OF APPEALS (Harrison County 14-D-35) OF WEST VIRGINIA 

Heather H.,
 

Petitioner Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Matthew H.,1 pro se, appeals the October 1, 2015, order of the Circuit Court of 

Harrison County affirming the March 26, 2015, decree of divorce entered by the Family Court of 

Harrison County. In the March 26, 2015, decree of divorce, the family court granted Respondent 

Heather H. a divorce on the grounds of adultery and cruel and inhuman treatment. The family court 

also made rulings with regard to parenting time and equitable distribution, and ordered that each 

party was responsible for his or her own attorney’s fees. Respondent, by counsel Delby B. Pool, 

filed a response and cross-appeal, and petitioner filed a reply. 

The 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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the 

Rules of Appellate Procedure and is appropriate for a memorandum decision. 

For the reasons expressed below, we affirm, in part, and reverse, in part, the decision of the 

family court, and remand this case to the family court with directions to (1) apportion the 

previously undesignated payments in the total amount of $12,000 between equitable distribution 

and child support and to recalculate each party’s share of the marital estate, if necessary; and (2) 

reevaluate whether respondent is entitled to be awarded her attorney’s fees with specific findings 

1

Consistent with our long-standing practice in cases with sensitive facts, we use initials 

where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 

254, 773 S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v. 

Edward Charles L., 183 W.Va. 641, 398 S.E.2d 123 (1990). 

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regarding the factors listed in syllabus point four of Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 

465 (1996). 

The parties married on July 12, 2003, in Harrison County, West Virginia. During the 

marriage, the parties produced three children: M.H. (born September 6, 2006), E.H. (born October 

23, 2008), and G.H. (born June 1, 2011). The parties separated on October 3, 2013. While the 

parties dispute whether petitioner’s relationship with a coworker became sexual before or after the 

date of their separation, petitioner admits to a sexual relationship with his coworker prior to the 

filing of respondent’s petition for divorce on January 16, 2014. In her petition, respondent sought a 

divorce on grounds of (1) adultery; and (2) cruel and inhuman treatment. 

By an order pendent lite entered April 7, 2014, the family court made rulings with regard to 

temporary child custody and visitation, and temporary support payments. First, the family court 

ruled that the children would reside with respondent and that petitioner shall have visitation from 

Friday at 6:00 p.m. to Sunday at 6:00 p.m. each weekend except for the weekend which includes 

the third Friday of the month. The family court ordered that, if petitioner “is not present to pick up 

the children by 6:20 p.m.[,] . . . his pick[-]up time shall be Saturday morning at 10:00 a.m.” 

Regarding temporary support payments, the family court ordered that beginning on March 1, 

2014, petitioner shall pay respondent $3,000 per month and that “$1[,]800 shall be considered 

child support, and $1[,]200 shall be undesignated until the final hearing.” 

On June 23, 2014, respondent filed a motion to compel certain discovery responses from 

petitioner. Following a July 7, 2014, hearing, the family court ruled on the parties’ discovery 

disputes. By order entered July 18, 2014 order, the family court noted that respondent also 

requested to be awarded her attorney’s fees, but deferred ruling on that request until after “the trial 

on the merits.”2 

In July of 2014, the parties reached an agreement in their case during court-ordered 

mediation. However, petitioner subsequently filed a motion for leave to repudiate that agreement. 

By order entered October 7, 2014, the family court allowed petitioner to repudiate the parties’ 

agreement, but also found that the parties “were in agreement” that the April 7, 2014, order 

pendent lite should be modified to include the holiday schedule produced by the parties during the 

mediation. Accordingly, the family court modified the order pendent lite to include the holiday 

schedule to govern any holidays occurring before the final divorce hearing. 

A final divorce hearing was held on December 1, 2014. At that hearing, the parties, 

respondent’s parents, and various other witnesses testified. At the conclusion of the hearing, the 

family court made certain findings on the record.3 First, the family court found that the evidence 

2

Respondent then filed a motion for attorney’s fees on August 26, 2014. 

3

The family court made several findings and rulings following the final divorce hearing. 

Only those rulings which are the basis of either petitioner’s appeal or respondent’s cross-appeal 

are referenced herein. 

(continued . . .) 

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supported granting respondent a divorce on both of her asserted grounds. The family court 

determined (1) that petitioner committed adultery; and (2) that, by both alternatively lying and 

telling the truth about his affair with his coworker, petitioner engaged in cruel and inhuman 

conduct that rose “to the level of destroying [respondent]’s mental well-being.” The family court 

found that petitioner’s conduct made cohabiting with him “unendurable” and supported 

“[respondent’s] withdrawal from the marriage.” With regard to parenting time, the family court 

ruled that the parties would continue to divide holidays with the children pursuant to the schedule 

produced by them during the previous mediation. 

Next, the family court made rulings regarding the equitable distribution of the marital 

estate. The family court awarded a Nissan automobile to respondent, and directed her to sell that 

vehicle and apply the proceeds of the sale to make repairs to the basement of the marital home. The 

family court stated that it expected to freeze petitioner’s equity in the marital home as of the date of 

the final hearing. The family court found that, if it froze petitioner’s equity in the home, any 

windfall from a raise in property value would go to respondent and found that such a result would 

be equitable because respondent is “making the future payments and bearing the property taxes, 

insurance, etc. for the home.” Finally, the family court deferred making any rulings on other issues 

including respondent’s request for attorney’s fees.4 The family court noted that “all objections of 

either party” were preserved. 

The family court subsequently entered its decree of divorce on March 26, 2015, in which 

the court incorporated its oral rulings from the December 1, 2014, final hearing as well as 

additional rulings the court communicated to the parties in separate letters dated December 11, 

2014, and February 18, 2015. The family court granted respondent a divorce based upon adultery 

and cruelty on the part of petitioner. 

With regard to parenting time, the family court found that respondent performed at least 

80% of the pre-separation child rearing functions and designated her as the primary custodial 

parent. The family court awarded petitioner parenting time on the following schedule: (a) alternate 

weekends from 6:00 p.m. Friday to 6:00 p.m. Sunday; (b) Thursday evenings from 6:00 p.m. to 

9:00 p.m.; and (2) two ten-day periods during the summer for vacations. The family court also 

gave respondent one full week of uninterrupted vacation time and confirmed that parenting time 

on holidays shall be on the schedule produced by the parties during court-ordered mediation, 

including provisions that the children attend church on Christmas Eve and on Easter morning with 

respondent. The family court kept the provision from the April 7, 2014, order pendent lite that, if 

petitioner fails to pick up the children by 6:20 p.m. at the start of his parenting time, he will pick 

them up at 10:00 a.m. on Saturday morning. The family court noted that this provision would 

apply, “unless otherwise agreed” between the parties.5 

4

The transcript of the December 1, 2014, final divorce hearing reflects that respondent 

raised the issue of attorney’s fees after the family court did not rule on that issue. 

5

The family court further ruled that neither party would disparage the other in front of the 

(continued . . .) 

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With regard to the equitable distribution of marital property, the family court confirmed 

that “[petitioner]’s equity in the last marital home is frozen as of the date of separation” and that, if 

the house is sold for more than the stipulated value of $350,000, “any windfall goes to 

[respondent].” The family court ruled that the marital home had to be listed for sale by December 

31, 2016. Based on an attached worksheet of the parties’ debts and asserts, the family court 

awarded respondent $120,013 from the marital estate and awarded petitioner $110,219. The 

family court found that the distribution of the marital estate was “equitable” despite the fact that 

the division of assets and debts was “not exactly even[.]” The family court further found that the 

previously undesignated payments made by petitioner to respondent in the amount of $1,200 per 

month pursuant to the April 7, 2014, order pendent lite were both “equitable distribution and child 

support.”6 Finally, the family court ruled that each party was responsible for his or her own 

attorney’s fees. 

On April 27, 2014, petitioner filed a motion for the family court to reconsider the March 

26, 2015, decree of divorce. The family court denied the motion by order entered May 27, 2015. 

With regard to parenting time, the family court found that, to the extent that petitioner had more 

time with the parties’ children during the pendency of the case, “[t]emporary rulings are not the 

starting point, or minimum expectations, for either party, and neither party should expect his/her 

relief after [the final hearing] to be automatically enhanced.” Following the family court’s denial 

of his motion for reconsideration, petitioner appealed to the circuit court. Respondent filed a cross 

appeal regarding the denial of her attorney’s fees. By order entered August 28, 2015, the circuit 

court remanded the case to the family court with directions to file its December 11, 2014, and 

February 18, 2015, letter rulings. The family court filed its letter rulings on August 31, 2015. 

After the entry of the family court’s letter rulings, the circuit court affirmed the March 26, 

2015, decree of divorce. With regard to the grounds for divorce, the circuit court found that the 

family court did not err in finding that petitioner engaged in an adulterous relationship prior to the 

filing of respondent’s petition for divorce and that relationship “led to the breakdown of the 

parties’ marriage.” The circuit court further found that the family court did not clearly err in 

children, nor allow others to do so, and that the parties would not discuss court-related or financial 

matters in front of the children. On appeal, petitioner objects to these restrictions as a violation of 

his freedom of speech. Respondent counters that such restrictions are customarily imposed in 

family court cases involving minor children. We agree with respondent and find that petitioner’s 

objections are without merit. See Syl. Pt. 3, In Re Katie S., 198 W.Va. 79, 479 S.E.2d 589 (1996) 

(holding that “[a]lthough parents have substantial rights that must be protected, the primary goal . 

. . in all family law matters . . . must be the health and welfare of the children”); Michael K.T. v. 

Tina L.T., 182 W.Va. 399, 405, 387 S.E.2d 866, 872 (1989) (stating that “the best interests of the 

child is the polar star by which decisions must be made which affect children.”). 

6

The previously undesignated payments of $1,200 per month totaled $12,000 because 

those payments were made by petitioner to respondent from March 1, 2014, through the final 

divorce hearing on December 1, 2014. 

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determining that petitioner engaged in cruel and inhuman conduct towards respondent. The circuit 

court rejected petitioner’s argument that he was not provided with respondent’s mental health 

records because petitioner “filed a motion to compel her medical records, and an [o]rder that 

granted [the] same was entered.” The circuit court further rejected, as a ground for reversal, the 

family court’s refusal to admit the complete transcript of respondent’s November 6 and 7, 2014, 

deposition. The circuit court found that the family court erred in failing to admit the complete 

deposition transcript under Rule 32(a)(2) of the West Virginia Rules of Civil Procedure, but that 

the error was harmless because the substantially same material “was addressed in some fashion at 

the final . . . hearing.” 

With regard to parenting time, the circuit court found that the family court did not clearly 

err in finding that respondent performed at least 80% of the pre-separation child-rearing functions. 

In so ruling, the circuit court rejected petitioner’s argument that the testimony of respondent’s 

father was contrary to the family court’s finding. The circuit court further upheld the family court’s 

equitable distribution of marital property. Finally, the circuit court affirmed the family court’s 

refusal to award respondent her attorney’s fees and denied a motion filed by respondent to be 

awarded her attorney’s fees on appeal. The circuit court found that respondent was not entitled to 

attorney’s fees because petitioner “raised issues on appeal that necessitated this [c]ourt’s briefly 

remanding the case to the [f]amily [c]ourt for clarification of its rulings.” 

On November 2, 2015, petitioner appealed the circuit court’s October 1, 2015, order 

affirming the family court’s March 26, 2015, decree of divorce. Respondent subsequently filed a 

response and cross-appeal on April 8, 2016. On May 9, 2016, petitioner filed a reply brief. 

We review family court orders affirmed by a circuit court pursuant to the following 

standard: 

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. 

Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004). We will first address petitioner’s 

procedural challenges. We will then address petitioner’s challenges to the grounds on which the 

family court granted respondent a divorce and to the family court’s allocation of parenting time. 

Finally, we will address petitioner’s challenge to the family court’s distribution of the marital 

estate as inequitable, together with respondent’s cross-appeal of error regarding the denial of her 

request for attorney’s fees. 

Petitioner’s procedural challenges 

First, petitioner contends that respondent’s attorney, who prepared the March 26, 2015, 

decree of divorce, included rulings that the family court did not make. “As an appellate court, we 

concern ourselves not with who prepared the findings for the [family] court, but with whether the 

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findings adopted by the [family] court accurately reflect the existing law and the trial record.” 

State ex rel. Cooper v. Caperton, 196 W.Va. 208, 214, 470 S.E.2d 162, 168 (1996). Upon our 

review of the March 26, 2015, decree of divorce, we find that handwritten notations on the decree, 

initialed by the family court, established that the court read the decree prior to its entry. The family 

court’s notations reflect that the court added language, excised language, and made corrections. 

Therefore, we reject any argument by petitioner that the decree of divorce included provisions of 

which the family court was not aware. 

In his next procedural challenge, petitioner contends that the family court erred in allowing 

respondent to testify regarding how petitioner’s conduct affected her mental well-being. The 

circuit court found no error because petitioner had requested respondent’s mental health records 

and the family court granted that discovery request. However, petitioner asserts that, following the 

entry of the family court’s order compelling production, respondent failed to produce all of the 

records. “[R]ulings on the admissibility of evidence and the appropriateness of a particular 

sanction for discovery violations are committed to the discretion of the trial court.” Syl. Pt. 1, in 

part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995). At the final divorce 

hearing, the family court instructed respondent not to testify about what her doctor did or did not 

do. The family court further stated that it would disregard any testimony regarding a mental health 

diagnosis. The family court allowed respondent to testify only as to her layperson’s perceptions of 

how petitioner’s conduct affected her mental well-being. Therefore, given the limitations imposed 

by the family court, we conclude that the family court did not abuse its discretion in considering 

respondent’s testimony as to how her mental well-being was affected. 

In his last procedural challenge, petitioner contends that the circuit court incorrectly 

determined that the family court’s failure to admit the complete transcript of respondent’s 

deposition under Rule 32(a)(2) was harmless error. Respondent counters that the family court’s 

ruling was that the court would not read the entire transcript, but that petitioner could direct the 

court’s attention to portions of the deposition transcript that he wanted the court to consider. Given 

that respondent testified at the final divorce hearing and was cross-examined by petitioner—who 

had the family court’s permission to use portions of the deposition transcript he believed to be 

pertinent—we agree with the circuit court that any error on the family court’s part in refusing to 

admit the complete transcript of respondent’s deposition was harmless. See Rule 61, W.V.R.C.P. 

(providing that “[t]he court at every stage of the proceeding must disregard any error or defect in 

the proceeding which does not affect the substantial rights of the parties.”). 

Petitioner’s challenges to the grounds for divorce 

and the family court’s allocation of parenting time 

Having resolved petitioner’s procedural challenges, we now address and affirm the family 

court’s rulings with regard to the grounds on which respondent was entitled to a divorce and to the 

family court’s allocation of parenting time. We find that the only legal issue raised by petitioner 

regarding those rulings is his contention that, under West Virginia law, an extramarital affair does 

not constitute adultery if the adultery occurs after the date of separation. Respondent counters that 

the relevant date is the date on which the divorce petition was filed. We agree with respondent. We 

find that West Virginia Code § 48-5-301 clearly permits the granting of a divorce on the ground of 

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adultery if the adultery occurs within “three years before the institution of the action.” See Syl. Pt. 

3, in part, Michael D.C. v. Wanda L.C., 201 W.Va. 381, 497 S.E.2d 531 (1997) (holding that 

statutory defenses to granting divorce on ground of adultery include “. . . (3) [that] the last 

adulterous act occurred [more than] three years before the complaint for divorce was filed”)7 

(emphasis added). In the instant case, petitioner admits to a sexual relationship with his coworker 

between the parties’ October 3, 2013, separation and the January 16, 2014, filing of respondent’s 

divorce petition. Therefore, we conclude that the family court did not abuse its discretion in 

granting respondent a divorce on the ground of adultery. 

Similarly, the family court did not abuse its discretion in also granting respondent a divorce 

on the ground of cruelty. West Virginia Code § 48-5-203(a)(3) provides, in pertinent part, that a 

divorce may be granted on the ground of cruel and inhuman conduct when the conduct at issue 

“destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other 

and render continued cohabitation unsafe or unendurable.” The family court found that, by both 

alternatively lying and telling the truth about his affair with his coworker, petitioner engaged in 

behavior that rose “to the level of destroying [respondent]’s mental well-being.” The family court 

further found that petitioner’s behavior made cohabiting with him “unendurable.” Based on our 

review of the record, we find no reason to disturb these findings. See State v. Guthrie, 194 W.Va. 

657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (stating that “[a]n appellate court may not decide the 

credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of 

fact”). 

With regard to the allocation of parenting time, petitioner generally complains that he has 

less parenting time with the parties’ children than he had under the temporary visitation 

established by the April 7, 2014, order pendent lite. Based on our review of that order, we find the 

family court reduced petitioner’s parenting time with the parties’ children by one weekend per 

month in the March 26, 2015, decree of divorce.8 However, we further find that there is no reason 

to disturb the family court’s finding that respondent performed at least 80% of the pre-separation 

child rearing functions.9 

7

At the time of our decision in Michael D.C. v. Wanda L.C., 201 W.Va. 381, 497 S.E.2d 

531 (1997), the relevant statutory provision was found at West Virginia Code § 48-2-14. The 

Legislature moved the provision to its current location at West Virginia Code § 48-5-301 during 

the 2001 recodification of the chapter of the West Virginia Code relating to domestic relations. See 

2001 W.Va. Acts ch. 91. 

8

We note that, unlike the April 7, 2014, order pendent lite, the March 26, 2015, decree of 

divorce allocates parenting time to petitioner on Thursday evenings. 

9

Petitioner relies on the testimony of respondent’s father to establish that respondent 

performed less than 80% of the pre-separation child rearing functions. However, upon our review 

of that testimony, we determine that it was within the family court’s discretion to find that 

respondent’s father meant that he took care of the parties’ children while both parties were at work. 

As the family court was the trier of fact, we defer to its determinations of the context in which a 

(continued . . .) 

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We note that West Virginia Code § 48-9-206(a) requires the family court to allocate 

custodial responsibility so that the proportion of custodial time the children spend with each parent 

“approximates the proportion of time each parent spent performing caretaking functions for the 

child prior to the parents’ separation.” While West Virginia Code § 48-9-206(a) provides for 

certain exceptions, we find that the family court did not err in finding that “[t]emporary rulings are 

not the starting point, or minimum expectations, for either party, and neither party should expect 

his/her relief after [the final hearing] to be automatically enhanced.” See W.Va. Code § 

48-9-206(b) (providing that, “[i]n determining the proportion of caretaking functions each parent 

previously performed for the child under subsection (a) . . ., the court shall not consider the 

divisions of functions arising from temporary arrangements after separation[.]”). Therefore, we 

conclude that the family court did not abuse its discretion in the allocation of the parties’ parenting 

time in the March 26, 2015, decree of divorce. 

Petitioner also makes two specific objections to the family court’s allocation of parenting 

time, which we find merit discussion. First, petitioner objects to provisions in the holiday schedule 

that the children attend church on Christmas Eve and on Easter morning with respondent. We find 

that respondent having parenting time with the children to take them to Christmas Eve and Easter 

services was consistent with respondent’s testimony that she was heavily involved in her church 

and had involved the children in church activities for “their entire [lives].”10 We further find that 

petitioner previously agreed that respondent would have parenting time with the children to take 

them to church. By order entered October 7, 2014, the family court modified the April 7, 2014, 

order pendent lite, to include the holiday schedule in that order pursuant to the parties’ agreement 

that it do so. Therefore, we conclude that the family court did not abuse its discretion in carrying 

over the provisions that respondent will have parenting time with the children to take them to 

church services into the March 26, 2015, decree of divorce given that those provisions (1) are 

supported by respondent’s testimony; and (2) were previously agreed to by petitioner. 

Second, petitioner objects to the family court’s decision to also carryover the provision 

that, if petitioner fails to pick up the children by 6:20 p.m. at the start of his weekend visitation, he 

will pick them up at 10:00 a.m. on Saturday morning. We find that, in the decree of divorce, the 

family court noted that this provision would apply “unless otherwise agreed” between the parties. 

Based on our review of the record, we find that the provision to which petitioner objects is 

reasonable and conclude that the family court did not abuse its discretion including it in the decree 

of divorce. 

Petitioner’s challenge to equitable distribution and 

respondent’s cross-appeal regarding attorney’s fees 

witness’s testimony should be taken. See State v. Guthrie, 194 W.Va. 657, 669 n.9, 461 S.E.2d 

163, 175 n.9 (1995). 

10Respondent also testified that petitioner had been not allowing the children to participate 

in as many church activities. 

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We affirm, in part, and reverse, in part, the decision of the family court with regard to the 

equitable distribution of the marital estate and attorney’s fees based on the adequacy of findings 

regarding each issue. “Findings of facts are adequate only if they are sufficient to indicate the 

factual basis for the ultimate conclusion. If an order lacks adequate detail, the case will be 

remanded for additional specificity.” Burnside v. Burnside, 194 W.Va. 263, 275, 460 S.E.2d 264, 

276 (1995); see also Province v. Province, 196 W.Va. 473, 483, 473 S.E.2d 894, 904 (1996). 

(stating that where lower tribunals make “only general, conclusory or inexact findings,” case will 

be remanded for further findings and development) 

In his challenge to the equitable distribution, petitioner contends the family court erred in 

(1) awarding respondent a windfall from the sale of the marital home above its stipulated value of 

$350,000 (at which the court froze his equity in the house); and (2) failing to include the previously 

undesignated payments in the total amount of $12,000 in its calculations of each party’s share of 

the marital estate. We affirm the family court’s decision with regard to the freezing of petitioner’s 

equity in the marital home at $350,000. We find that the family court adequately explained that it 

was equitable that respondent receive any profit from the sale above $350,000 because respondent 

is “making the future payments and bearing the property taxes, insurance, etc. for the home,” 

which included making repairs to the basement as ordered by the court. 

However, we reverse the family court’s finding that the $12,000 was “equitable 

distribution and child support” because such finding is inexact. We find that the $12,000 cannot be 

both equitable distribution and child support because there are different consequences depending 

on the type of payment it was. For example, if the $12,000 constituted part of the equitable 

distribution, we find it should have been included on the worksheet used by the family court to 

calculate each party’s share of the marital estate. It was not. Therefore, we remand the case to the 

family court with directions to apportion the previously undesignated payments in the total amount 

of $12,000 between equitable distribution and child support. If the family court deems all or part of 

the $12,000 as equitable distribution, it is to include that amount in a recalculation of each party’s 

share of the marital estate with specific findings pursuant to West Virginia Code § 48-7-103 which 

provides that the court may alter an equal division of marital property if it considers factors set 

forth therein. 

We similarly reverse the family court’s denial of respondent’s motion for her attorney’s 

fees and remand the matter to that court with directions to make specific findings as to the factors 

listed in syllabus point four of Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996).11 In 

syllabus point four of Banker, we held, in pertinent part, as follows: 

11Petitioner contends that respondent failed to preserve the issue of her attorney’s fees for 

appeal. However, petitioner acknowledges that, at the conclusion of the final divorce hearing, 

respondent raised the issue after the family court did not rule on her motion for attorney’s fees. The 

family court again deferred ruling on the motion. The family court subsequently directed each 

party to pay his or her own attorney’s fees in the March 26, 2015, decree of divorce in a ruling 

which respondent appealed to the circuit court. Therefore, we conclude that respondent preserved 

the issue of her attorney’s fees for appeal. 

(continued . . .) 

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. . . In determining whether to award attorney’s fees, the family [court] 

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. 

Id. at 538, 474 S.E.2d at 468. We find that neither the family court nor the circuit court, in 

affirming the family court’s decision and denying respondent’s motion for attorney’s fees filed in 

that court, addressed the Banker factors. We direct the family court to reevaluate whether 

respondent is entitled to be awarded her attorney’s fees both in that court and in the circuit court.12 

See Quicken Loans, Inc. v. Brown, 236 W.Va. 12, 26-27, 777 S.E.2d 581, 595-96 (2014) (stating 

that lower court has authority to award attorney’s fees for appellate proceeding if directed to do 

so). 

In summary, and for the foregoing reasons, we reverse the circuit court’s October 1, 2015, 

order affirming the family court’s March 26, 2015, decree of divorce. With regard to the March 26, 

2015, decree of divorce, we affirm the family court’s decision with regard to the grounds upon 

which it granted respondent a divorce, the allocation of parenting time between the parties, and 

the freezing of petitioner’s equity in the marital home at its stipulated value of $350,000. We 

reverse the family court’s decision and remand the case to the family court with regard to the 

$12,000 in previously undesignated payments and respondent’s request for her attorney’s fees. On 

remand, we direct the family court to (1) apportion the $12,000 between equitable distribution and 

child support and to recalculate each party’s share of the marital estate, if necessary; and (2) 

reevaluate whether respondent is entitled to be awarded her attorney’s fees with specific findings 

regarding the factors listed in syllabus point four of Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 

465 (1996). 

Affirmed, in part, Reversed, in part, 

and Remanded with Directions. 

ISSUED: October 28, 2016 

12Respondent also seeks to be awarded her attorney’s fees in this Court. It is unclear 

whether respondent requests to be awarded her fees only with regard to her cross-appeal, or also 

for having to respond to petitioner’s assignments of error. We note that we do not rule on the 

merits of either issue on which we are remanding the case. Rather, we only direct the family court 

to reevaluate those issues and make more detailed findings with regard to each. Therefore, we 

decline to award respondent her attorney’s fees incurred in this Court. 

10 
 

 

 

 

 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

11