                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Joel K.,                                                                          FILED
Respondent Below, Petitioner                                                     March 28, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0407 (Harrison County 09-D-358-5)                                   OF WEST VIRGINIA



Tina K.,

Petitioner Below, Respondent



                              MEMORANDUM DECISION
        Petitioner Joel K.1 (“Husband”), by counsel Daniel R. Grindo, appeals the Circuit Court
of Harrison County’s “Order Affirming Decree of Divorce and Modifying Equitable Distribution
Chart” entered on March 22, 2013. Respondent Tina K. (“Wife”), by counsel Gregory H.
Schillace, filed a 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 circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                                             FACTS

        Husband and Wife were married in 1994 and separated on or around June 28, 2009. They
have two children born of the marriage, a son born in 1998 and a daughter born in 2000.2 Wife
petitioned for and was granted a divorce on the ground of irreconcilable differences by Decree of
Divorce entered on April 30, 2012, by the Family Court of Harrison County.

        Husband appealed the family court’s order to circuit court. On March 22, 2013, the
circuit court entered an “Order Affirming Decree of Divorce and Modifying Equitable
Distribution Chart,” wherein the circuit court affirmed the family court’s determination that
Wife’s custodial time with the two children gradually increase from March 1, 2012, until

       1
         Due to the sensitive nature of the facts in this case, we do not utilize the last names of
the parties. See State ex rel. W.Va. Dept. of Human Services v. Cheryl M., 177 W.Va. 688, 689
n.1, 356 S.E.2d 181, 182 n.1 (1987).
       2
        The family court appointed a guardian ad litem to represent the interests of the two
children.


                                                1

September 3, 2012, at which time each party would share equal parenting time. Except for one
modification related to royalties from mineral rights, the circuit court affirmed the family court’s
distribution of marital assets and debts. We address the lower courts’ rulings with respect to
custodial allocation and equitable distribution3 as follows.

                                       Custodial Allocation

         The family court heard testimony from Dr. Edward Baker, who completed psychological
examinations on both parties. He testified that he diagnosed Wife as having a personality
disorder with borderline and histrionic features and alcohol abuse. With respect to Husband, he
testified that he diagnosed him as having a personality disorder (not otherwise specified) with
narcissistic and paranoid features. The family court found that

       [t]o place the children primarily in the care of one of their parents would not be in
       their best interest. The Court fears that if given a majority of the custodial time
       with the children, that either parent has the potential to cajole and manipulate the
       children in order to use them as pawns against the other.

        The family court also heard from the children’s counselor, who opined that the children’s
trepidation about being left unsupervised with Wife arises from the fact that there has been a
long period of separation during the divorce proceedings. Wife testified that prior to the
separation, she was primarily responsible for feeding, bathing, and disciplining the children, and
that she was solely responsible for the children while Husband was deployed on active military
duty. Husband did not testify to his caretaking responsibilities at any time. With these facts in
mind, the family court determined that

       [i]t is in the best interests of the children for the Court to work toward a schedule
       to have frequent and continuing contact with both parents, which ultimately
       results in equal time with both parents. The need for the gradual increase in the
       amount of time that the children spend with [Wife] stems from the need to
       reconcile the children with their mother given the nearly three-year period of
       reduced custodial time that has taken place during the pendency of this action.

        As the circuit court noted in its order affirming the allocation of custody, the family court
devoted approximately seven pages of the Decree of Divorce to analyzing the best interests of
the children. The family court cited several specific behaviors of each parent, the opinions of
expert witnesses, and the recommendations of professional counselors, two of whom were
witnesses called by the guardian ad litem. While the circuit court noted that Husband alleged that




       3
         We note that the circuit court’s order addresses property not specifically challenged by
Husband in his appeal to this Court. The only items relevant to Husband’s appeal with respect to
the distribution of the marital estate are (1) the mineral rights; (2) the GE and NEOM stocks; (3)
the Florida condominium; (4) the Ameriprise accounts; and (5) the USAA Credit Cards and
checking account.
                                                 2

the family court “blatantly ignored” the recommendations of the guardian ad litem,4 the circuit
court found that the family court weighed those recommendations and based its decision on the
evidence before it and what it deemed to be in the children’s best interest. Accordingly, the
circuit court ruled that Husband failed to show that the family court’s decision to gradually
increase Wife’s parenting time to ultimately be equal to Husband’s constituted an abuse of
discretion.

                         Equitable Distribution of Marital Property

A.     Mineral Rights

        The family court ordered that mineral rights associated with the marital estate be divided
equally. The circuit court did not disturb this ruling with respect to equal distribution of the
mineral rights, but found that the family court’s equitable distribution chart was incorrect with
respect to the 2010 mineral rights. Specifically, the circuit court found that the 2010 mineral
rights were included twice -- once under the heading “Mineral rights 2010,” with $10,000 to
Husband, and again under the heading “2010 oil and gas,” with another $10,000 to Husband. The
circuit court determined that the $10,000 associated with each of the years 2009, 2010, and 2011,
on the chart related to royalty checks received by Husband during each of the years of the
divorce action. Accordingly, the circuit court modified the family court’s equitable distribution
chart to more accurately reflect the family court’s ruling that the mineral interests be divided
equally, rather than allocating an additional $10,000 attributed to Husband. The modification
reduced the “equitable distribution needed” under Husband’s column by $5,000.

B.     The Florida Condominium

       The family court determined as follows regarding the Florida condominium:

       [E]ach of the parties is awarded a ½ interest in the marital portion of the Florida
       condominium.5 The rights and obligations of the parties shall be preserved and
       subject to any underlying contracts involving the parties’ rights and obligations
       with respect to that property. No credible evidence was presented at the hearing
       concerning the value of the Florida condominium and, accordingly, division in
       kind is the only viable option.

       On appeal to circuit court, Husband claimed that he had made the payments on the
condominium during the divorce proceedings and requested that the circuit court insert a
provision requiring that each party pay one-half of the condominium expenses. The circuit court

       4
         The guardian ad litem recommended a more restrictive visitation schedule for Wife.
Specifically, she recommended that Husband be the “sole custodian and primary decision maker
for the children,” and that Wife be allowed two hours of unsupervised contact per week and five
hours of unsupervised contact on the day before or after a holiday.
       5
        Husband and Wife owned a 50% interest in the condominium. Therefore, each received
a 25% interest as a result of the divorce.
                                                3

declined to address the issue of condominium expenses as it was not raised and presented before
the family court.

C.     The Ameriprise Accounts

      The family court ruled that two Ameriprise accounts were marital property, despite
Husband’s assertion that they were his separate property. Specifically, the family court found:

       Although [Husband] argued that the accounts were separate property, the
       Ameriprise account documentation introduced as evidence at the final hearing did
       not prove the separate nature of the account. The documentation showed that
       [Husband] had a pre-marital condominium in Florida; that he wrote a check to
       Ameriprise for $264,000 on July 24, 2004; and that the two Ameriprise accounts
       in question existed as of the date of separation. The source of funds that were
       placed into the Ameriprise accounts on July 24, 2004 was not shown. July 24,
       2004 [] was ten years into the marriage. Therefore, the court finds the accounts
       are marital. [Wife] is awarded the Ameriprise account ending in 8004. [Husband]
       is awarded the Ameriprise SPS account.

       An Ameriprise representative testified that he did not have documentation to support
Husband’s assertion that he put separate property into the accounts. On appeal, the circuit court
found that the family court did not abuse its discretion in its ruling that the accounts were marital
property.

D.     The GE and NEOM Stock

        The family court awarded certain GE and NEOM stock to Husband and assigned their
respective value in the equitable distribution chart. Husband argued to the circuit court that the
GE stock was sold in 2006 and the NEOM stock is “virtually worthless.” The circuit court
determined that because the stocks were listed in “[Wife’s] Proposed Equitable Distribution
Plan” and her testimony as to the stock’s value was not challenged by Husband, the family court
did not abuse its discretion in including them in the equitable distribution.

E.     The USAA Credit Cards and Checking Account

       With respect to the USAA checking account first, the family court had previously ordered
in 2009 that $7,500 be transferred from the account to Wife for payment of attorney fees. The
family court’s final distribution chart references a deduction of $7,500 from the same account for
Wife’s attorney fees. Husband contended on appeal to the circuit court that an additional $7,500
should have been deducted from the account, thereby reducing its value attributable to him, and a
corresponding increase in $7,500 should have been attributed to Wife. The circuit court rejected
his argument and found that the reference in the family court’s chart was simply to the 2009
award of fees, not an additional award. Accordingly, the circuit court did not amend the chart as
Husband requested.




                                                 4

        Concerning the USAA credit cards, the family court ruled that all of the credit cards
owned by the parties as of their separation were marital. The equitable distribution chart showed
two cards with a debt amount of $3,641.00 assigned to Wife. Husband contended on appeal to
the circuit court that the evidence proved that he paid off that debt as of the date of the final
divorce hearing and he should have been credited for that payment. Wife disputed Husband’s
payment of the credit card debt before the family court and argued that the time period to
evaluate the debt is at separation. The family court assigned the amount to Wife, and on appeal,
the circuit court found no abuse of discretion in that ruling given the disputed testimony.

        Husband now appeals the circuit court’s order to this Court, and raises two assignments
of error. First, he argues that the circuit court erred in its allocation of custodial responsibility.
Second, he argues the circuit court erred in its distribution of marital debts and assets.

                                          DISCUSSION

       Our standard of review for this appeal is as follows:

               “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).

Syl. Pt. 1, Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013). “[F]indings of
fact made by a trial court in a divorce proceeding based on conflicting evidence will not be
disturbed unless they are clearly wrong or are against the preponderance of the evidence.” Sellitti
v. Sellitti, 192 W.Va. 546, 551, 453 S.E.2d 380, 385 (1994).

        With regard to the allocation of custody, Husband agrees that there has been significant
turmoil between the parties preceding and during the divorce proceeding below. Husband
contends that the lower court should have followed the recommendation of the guardian ad litem,
and not awarded Wife equal parenting time, as doing so was not in the best interests of the
children. The record demonstrates the family court received and considered substantial input
from the guardian ad litem. However, the record also demonstrates that the family court heard
testimony from several expert witnesses, two of whom were called to testify by the guardian ad
litem. Based on all of the evidence presented, including the diagnoses of each parent, the family
court determined that the best interests of the children would be served by gradually increasing
Wife’s custodial time until each party shares equal parenting time. The family court is not
obligated to follow the guardian ad litem’s recommendations and is free to give whatever weight
and credibility it chooses to her report and testimony. See Storrie v. Simmons, 225 W.Va. 317,
326, 693 S.E.2d 70, 79 (2010). Moreover, we cannot agree with Husband that the lower court
disregarded the best interests of the children. Given the testimony concerning the negative
behaviors of both parties, we are hard-pressed to find an abuse of discretion in the lower court’s
allocation of equal custodial time to each parent.



                                                  5

        Turning to the distribution of the marital property, our review of the record reflects no
clear error or abuse of discretion by the circuit court. Having reviewed the circuit court’s “Order
Affirming Decree of Divorce and Modifying Equitable Distribution Chart” entered on March 22,
2013, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions
as to Husband’s second assignment of error raised in this appeal. The Clerk is directed to attach a
copy of the circuit court’s order to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: March 28, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




                                                6

