                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Michael Conrad Murray,                                                            FILED
Respondent Below, Petitioner                                                      June 7, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-0771 (Kanawha County 10-D-1183)                                     OF WEST VIRGINIA



Kellie Marie Murray,
Petitioner Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Michael Conrad Murray, by counsel Ancil G. Ramey, Peter J. Raupp, Hannah
C. Ramey, and Susan L. Shepard, appeals the Circuit Court of Kanawha County’s “Order
Denying Petition for Appeal” entered on May 10, 2012. Respondent Kellie Marie Murray, by
counsel Deloris J. Nibert, filed a response. Petitioner filed a reply.

       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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner and respondent began living together in 2001. They married on July 22, 2003,
and separated on March 28, 2010. Respondent filed her petition for divorce on June 25, 2010,
alleging irreconcilable differences, which petitioner admitted to in his answer. At the time of the
divorce filing, petitioner was fifty-eight years old and respondent was forty-eight years old.
Respondent has a daughter from a previous relationship, who was twelve years old at the time of
the divorce filing. The parties have no children together.

        By temporary order entered on October 12, 2010, the Kanawha County Family Court
granted respondent temporary, in-kind spousal support from petitioner in the form of the
mortgage payment on the marital home, plus payment of the water, gas, electric, and garbage
bills. The court did not grant petitioner Conrad1 credits for these bills, but designated them as
spousal support. Petitioner was also ordered to maintain health insurance for respondent and her
daughter.



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        The Court in Conrad v. Conrad, 216 W.Va. 696, 612 S.E.2d 772 (2005), discussed a
potential credit to a party in divorce proceedings where that party has payments of martial debt
or maintenance on the marital home between the time of separation and the divorce.
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        The final divorce hearing was held on August 9, 2011, before Kanawha County Family
Court Judge Sharon M. Mullens. At the time of the hearing, petitioner worked in construction.
His income in 2008 was $63,747.98, plus unemployment compensation in the amount of
$7,296.00. His income in 2009 was $61,660.75, plus unemployment compensation in the amount
of $5,637.00. He did not disclose his income for 2010 and 2011, but check stubs admitted into
evidence showed an average earning capacity in the amount of $6,231.12 per month. In addition,
petitioner received a 2009 tax refund for $7,354, but alleged that he used this money to pay off
marital credit card debt.

        Respondent worked part-time as a surgical nurse, earning a gross monthly income of
approximately $2,237.52 at the time of the final hearing. In 2008, respondent’s annual gross
income was $24,025.75 and her 2009 annual gross income was $4,792.49. Respondent testified
that she worked full-time prior to the marriage and when the parties were first married, but quit
working altogether after petitioner encouraged her to stay home to care for her daughter. When
she did resume working, she worked part-time, in part, to care for her daughter, but also because
she had been unable to find full-time work. The evidence showed that respondent is solely
responsible for the care of her daughter, who at the time of the hearing, was in therapy due to
behavior problems brought on by the divorce.

       The evidence at the family court final hearing also revealed that petitioner caused the
breakup of the marriage because of his excessive alcohol use. The court found that petitioner’s
drinking caused him to be mentally, emotionally, and sometimes physically abusive to
respondent.

       The marital home was appraised in 2009 at $98,000, which did not account for the
necessary replacement of the septic system at a cost of approximately $7,000. The mortgage on
this home had a balance of $45,000, leaving $46,000 in equity when factoring in the cost of the
needed septic system. After the separation, petitioner began living rent-free in a home owned by
his family.

        The divorce also involved two houses on Chrystal Lake in Doddridge County, West
Virginia. The first, referred to as Lot 37, was purchased in 2001 and titled in petitioner’s name.
He purchased the home at auction for $16,500, and this purchase price was rolled into the
mortgage of the marital home when the parties refinanced in 2004. The parties made
improvements to Lot 37 during the marriage. The second lake house, referred to as Lot 41, was
purchased in 2006. The loan on this home was refinanced into the mortgage on the Tornado
home in 2009. According to the most recent appraisals, Lot 37 was valued at $30,500, and Lot
41 at $34,000.

        The evidence also revealed that petitioner owned stock that initially was his separate
property, but was later commingled with marital funds. Petitioner presented no documentation to
(1) establish that the stock was his separate property, or (2) the value thereof. Based on evidence
submitted by respondent, the family court valued the stock at $65,000.




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        Based upon the evidence presented at the final divorce hearing, the family court ordered
that respondent receive the marital home valued at $46,000, and other items of personal property.
The total value of the respondent’s property after distribution was $51,225.

        The family court ordered that petitioner receive the lake house at Lot 37, with the marital
portion valued at $14,000; the lake house at Lot 41, valued at $34,000; stock in Crystal Lake
valued at $100; stock valued at $65,000; the 2009 income tax refund in the amount of $7,354;
and other items not contested by respondent. The total value of petitioner’s property after
distribution was $125,281.27.

        In order to equalize the distribution of marital property and debts, the court ordered that
petitioner pay respondent a lump sum of $37,028.14 and granted respondent a judgment against
petitioner for this amount. The court ordered that such payment be made within thirty days.

        The court then granted respondent rehabilitative spousal support for one year in the
amount of $1,500 per month, unless respondent sooner died, remarried, or cohabitated in a de
facto marriage. Petitioner was also ordered to continue to provide health insurance for
respondent and her daughter under the COBRA provisions of his employer’s health insurance
policy. Petitioner was ordered to pay the premiums on the policy, while respondent was to be
responsible for any deductibles and copayments.

      Finally, the family court ordered that petitioner pay respondent’s attorney’s fees in the
amount of $8,323.48 and granted respondent a judgment against petitioner for this amount.

        On November 14, 2011, petitioner appealed the family court’s final order of divorce to
circuit court. The circuit court heard arguments from the parties on January 23, 2012. On May 9,
2012, the circuit court entered an “Order Denying Petition for Appeal.” It is from this order that
petitioner appeals to this Court.

       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, [the Supreme Court
       of Appeals] review[s] 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. [The Court] review[s] questions of law de novo.

Syl., Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004), see W.Va. Code § 51-2A-15(b).
“Questions relating to alimony and to the maintenance and custody of the children 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.” Syl., Nichols v. Nichols,
160 W.Va. 514, 236 S.E.2d 36 (1977).

       Petitioner raises seven assignments of error in this appeal. First, he argues that the circuit
court erred in affirming the family court’s determination that the stocks and the entire value of
Lot 37 were not his separate property, and therefore were subject to equitable distribution. West
Virginia Code § 48-1-237 defines separate property to include the following:



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                (1) Property acquired by a person before marriage;
                (2) Property acquired by a person during marriage in exchange for
       separate property which was acquired before the marriage;
                (3) Property acquired by a person during marriage, but excluded from
       treatment as marital property by a valid agreement of the parties entered into
       before or during the marriage;
                (4) Property acquired by a party during marriage by gift, bequest, devise,
       descent or distribution;
                (5) Property acquired by a party during a marriage but after the separation
       of the parties and before ordering an annulment, divorce or separate maintenance;
       or
                (6) Any increase in the value of separate property as defined in
       subdivision (1), (2), (3), (4) or (5) of this section which is due to inflation or to a
       change in market value resulting from conditions outside the control of the
       parties.

        With regard to the stock, petitioner’s mother testified that she inherited the stock from
family members and transferred the stock to petitioner prior to his marriage to respondent.
Petitioner testified that he neither purchased nor sold stocks during the marriage. Respondent
disputed this testimony and introduced evidence in the form of a printout from “Microsoft
Money” computer program that purported to show that he had in fact purchased and/or sold
stocks during the marriage. We note that petitioner failed to disclose any documentation to prove
that the stocks were not marital property, despite the respondent’s requests for such
documentation in discovery.

       Assets required to be disclosed shall include, but are not limited to, real property,
       savings accounts, stocks and bonds, mortgages and notes, life insurance, health
       insurance coverage, interest in a partnership or corporation, tangible personal
       property, income from employment, future interests whether vested or nonvested
       and any other financial interest or source.

W.Va. Code § 48-7-202, in part. The only documentation that the family court had available to it
to determine the status and value of the stocks was the documentation presented by respondent.
“[T]he Legislature ‘express[ed] a marked preference for characterizing the property of the parties
as marital property.’” Burnside v. Burnside, 194 W.Va. 263, 267 460 S.E.2d 26, 268
(1995)(quoting Whiting v. Whiting, 183 W.Va. 451, 459, 396 S.E.2d 413, 421 (1990)). Petitioner
failed to rebut the presumption that the stocks were marital property. Based on the record, we do
not find that the circuit court erred in affirming the family court with regard to the classification
and valuation of the stock.

       As for Lot 37, we believe the family court properly classified this property as petitioner’s
separate property, but also properly found the $14,000 increase in value to be marital property.
West Virginia Code § 48-1-233(2) defines “marital property” as

       [t]he amount of any increase in value in the separate property of either of the
       parties to a marriage, which increase results from: (A) an expenditure of funds

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       which are marital property, including an expenditure of such funds which reduces
       indebtedness against separate property, extinguishes liens, or otherwise increases
       the net value of separate property; or (B) work performed by either or both of the
       parties during the marriage.

        Petitioner admitted the house was improved during the marriage and presented no
evidence to rebut respondent’s valuation of the improvements. Therefore, we do not find that the
circuit court erred in affirming the family court as to the distribution of Lot 37.

        Petitioner’s second assignment of error is that he should not have been assigned the entire
amount of the 2009 tax refund because he used these funds to satisfy a marital debt and/or a post-
separation debt of respondent. However, petitioner introduced no credible evidence before the
family court that he used the tax refund to pay off marital debt. He testified that he used the
money from the tax refund to pay back a debt he owed to his mother, but he failed to establish
that the money he received from his mother was used to satisfy a marital debt. The only
documentation petitioner introduced was a copy of one page from a checking account statement
that showed that he paid a Capitol One credit card bill, but no evidence that the bill was for a
marital debt. We cannot find that the circuit court erred in affirming the family court’s ruling that
the entire 2009 tax refund be assigned to petitioner.

         Third, petitioner argues that the family court erred by (1) reducing the value of the
marital home by $7,000 to account for the repair of the septic system, and (2) by failing to take
into account mortgage payments he made on the marital home after the parties separated. We do
not agree. As respondent contends, the septic system repair was not included in the 2009
appraisal of the home and the estimates for the repair were obtained after the parties separated.
The family court determined that this repair was necessary and consequently reduced the value
of the home accordingly. As for the mortgage payments petitioner made after separation, these
payments were ordered as temporary spousal support and petitioner did not ask for Conrad
credits.

       Fourth, petitioner argues that the family court erred by failing to give him Conrad credits
for payments made under the temporary support order and/or not characterized as spousal
support under that order. Petitioner now asks the Court to find payments he made on behalf of
respondent to be designated as spousal support for which he receives a tax credit, and be
designated at the same time as Conrad credits. If the payments are considered spousal support
and characterized as such, he cannot also get credit in equitable distribution. Petitioner failed to
produce any documentation at the hearing that he paid anything that could be considered in
equitable distribution as Conrad credits. Therefore, we find no error by the circuit court in
affirming the family court on this issue.

        Fifth, petitioner argues that the family court erred in awarding respondent rehabilitative
alimony. The family court made nineteen findings of fact in its final divorce order in support of
its order for spousal support. The record shows that respondent became a stay-at-home mom
during the marriage with petitioner’s approval. Respondent has no one to care for her daughter at
a reasonable cost if she returns to full-time shift work as a nurse. In addition, because of the
divorce, respondent will be responsible for the full house payment, while petitioner has two lake

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houses debt-free because those debts were rolled into the house for which respondent is now
paying. Petitioner earns about three times what respondent earns. We see no error by the circuit
court affirming the family court in awarding respondent rehabilitative alimony.

        Sixth, petitioner argues that the family court erred in granting respondent a money
judgment instead of distributing marital assets to equalize distribution. Here, petitioner
essentially makes the same argument that he makes in his first assignment of error, namely, that
the $65,000 in stock and the entire value of Lot 37 should not have been included in the
distribution. The petitioner received two unencumbered lake properties and stock with significant
value. As West Virginia Code § 48-7-105 expresses a “preference for effectuating equitable
distribution through periodic or lump sum payments,” we do not find that the circuit court erred
in affirming the family court with regard to the money judgment granted to respondent.

       In petitioner’s final assignment of error, he contends that the respondent should not have
been awarded her attorney’s fees. This Court has held:

       In divorce actions, an award of attorney’s fees rests initially within the sound
       discretion of the [family court judge] 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). Respondent presented her
statement of attorney fees at the final divorce hearing and petitioner made no objection.
Nevertheless, we find that the award of attorney fees in this case is warranted under West
Virginia Code § 48-1-305. Therefore, we see no error in the circuit court’s order affirming the
award of the attorney fees in this case.

       For the foregoing reasons, we affirm.

                                                                                       Affirmed.
ISSUED: June 7, 2013

CONCURRED IN BY:

Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis

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