                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Rodney A. Kovach,
Respondent Below, Petitioner                                                      FILED
                                                                              November 4, 2019
vs) No. 19-0044 (Monongalia County 13-D-100)                                    EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Patricia A. Kovach,
Petitioner Below, Respondent1


                               MEMORANDUM DECISION

       Petitioner Rodney A. Kovach, by counsel Chelsea V. Prince, appeals the Circuit Court of
Monongalia County’s December 12, 2018, order affirming the Family Court of Monongalia
County’s order, which held that petitioner was not entitled to credit for amounts due under the
divorce decree for payments he made for the benefit of respondent. Respondent Patricia A.
Kovach, by counsel Michelle L. Bechtel, submitted a response to which petitioner submitted 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.

       The parties were married in 2007. They filed for divorce on February 25, 2013, and the
divorce was granted by order entered on April 23, 2015. Pursuant to the divorce decree, the parties
agreed that petitioner was to remit $4,000 per month to respondent for a period of forty-eight
months, to be considered as equitable distribution. On March 13, 2018, respondent filed a petition
for contempt in the Family Court of Monongalia County, alleging the following: (1) petitioner
owes respondent $10,000 pursuant to paragraph 4(b)(i) of the divorce decree; (2) petitioner owes
respondent $13,000 pursuant to paragraph 4(b)(iv) of the divorce decree; and (3) petitioner owes
respondent $20,368.50 pursuant to paragraph 4(b)(v) of the divorce decree. The family court held
a hearing on that motion on July 20, 2018, and then entered its order granting the petition for
contempt, finding petitioner in contempt of the divorce decree and awarding judgment to
respondent. Specifically, the family court judge ordered that respondent is awarded judgment

       1
         While the circuit court’s order refers to Ms. Kovach as the petitioner below, Mr. Kovach
actually filed the appeal to the circuit court. Therefore, it is unclear why Mr. Kovach was
considered the respondent before the circuit court.



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against petitioner in the amount of $27,681.56; that petitioner shall make payment in the amount
of $10,000 to respondent no later than September 1, 2018; that periodic payments in the amount
of $4,000 per month by petitioner to respondent shall continue until April 15, 2019, as set forth in
the divorce decree; and that effective July 20, 2018, respondent shall be solely responsible for all
costs and expenses related to the 2015 BMW identified by the family court.2

        Petitioner then filed the petition for appeal before the circuit court, alleging that the family
court erred by finding that payments to third-parties for the benefit of respondent were gifts and
not to be credited against amounts otherwise owed by petitioner as petitioner understood when
making said payments.3 Respondent submitted a response to which petitioner submitted a reply.
In that appeal, petitioner argued that the family court abused its discretion by finding that the
payments petitioner made to third-parties for respondent’s benefit were gifts and were not to be
credited against the amount petitioner otherwise owed to respondent as part of the agreed final
divorce decree. Petitioner further argued that the amount he is required to pay monthly to
respondent, pursuant to the divorce decree, should be reduced by the monies he expended on
automobile insurance and tires for respondent’s vehicle and health insurance for respondent. In its
decision, the family court reasoned that because petitioner was not required under the divorce
decree to provide such things to respondent, he did so of his own volition and without modifying
the divorce decree, so those payments were to be treated as gifts. The circuit court found that the
family court did not abuse its discretion in reaching that conclusion.

        According to the circuit court, during the hearing on the petition for contempt, the parties
offered differing information regarding the content of their extraneous agreements specific to the
auto insurance and tires for respondent’s vehicle and health insurance for respondent. Petitioner
asserted that the parties agreed that he would receive credits for those payments against the


        2
         The parties did not include any transcripts in the appendix record; however, they included
the video recording of the July 20, 2018, family court proceeding. During that hearing, petitioner
stated that respondent contended the payments were a gift. The family court corrected him,
reminding petitioner that the family court independently made that finding without such argument
from respondent. Respondent made certain requests pursuant to “side agreements,” but the family
court chose to strictly construe the divorce decree as to both parties. There was a subsequent
written agreement between the parties, which was not presented to the family court until that July
20, 2018, hearing and was not incorporated into any family court order. Respondent claimed
entitlement to certain household items under that agreement. However, the family court chose to
enforce its earlier order and informed respondent that she could file suit against petitioner under
that subsequent agreement if she desired to do so. The original decree required petitioner to pay
respondent’s tuition until she completed her nursing degree. However, because respondent
switched to a different degree program, the family court strictly adhered to the decree and did not
require petitioner to pay her tuition after she changed programs. The family court also declined to
issue sanctions against petitioner, though it stated that it would revisit that issue if petitioner failed
to make the required payments.
        3
         Petitioner filed with the family court his summary of payments and supporting
documents, dated July 18, 2018, setting forth payments he made on respondent’s behalf totaling
$30,732.91.
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amounts he owed, while respondent claimed that the parties never reached such an understanding.
The only evidence petitioner presented in support of the alleged agreement was his contested
testimony, and his attorney admitted that the alleged agreements were not memorialized in writing.
Further, then-counsel for petitioner informed the family court that she always “tells people to
follow the court order.” The circuit court found that when petitioner’s own counsel tells people to
strictly adhere to the agreed final divorce decree, “it is problematic for [the circuit court] to find in
accordance with [petitioner] . . . [Petitioner] cannot now claim that he deserves credit for going
above and beyond what was legally required of him by the Agreed Final Divorce Decree.”

        In its December 12, 2018, order refusing petitioner’s appeal, the circuit court stated that

        [i]t appears to th[e c]ourt, as it evidently did to the [f]amily [c]ourt, that the parties
        here desire certain clauses in the Agreed Final Divorce Decree to be narrowly
        construed, while also seeking that others be loosely interpreted in order to
        encompass their “side deals.” [The circuit court], like the [f]amily [c]ourt, is not
        willing to venture down that rabbit hole. It is equitable to hold both parties to the
        standards articulated in the Agreed Final Divorce Decree – nothing more and
        nothing less. [Petitioner] was not required under the Agreed Final Divorce Decree
        to pay for the health insurance, car insurance, and tires; thus the [f]amily [c]ourt
        did not abuse its discretion when it considered these “extras” as gifts. The [f]amily
        [c]ourt is not required to give [petitioner] credit for something that he was not
        legally required to do.

         The circuit court went on to find that it “is not left with a definite and firm conviction that
the [f]amily [c]ourt ignored a material factor deserving of significant weight, relied upon an
improper factor, or mistakenly weighed the factors in making the decision to strictly construe the
Agreed Final Divorce Decree . . . .” Based on that finding, the circuit court held that the family
court was not clearly erroneous in its decision to deem the payments at issue as gifts. Finally, the
circuit court found that the family court’s findings were not clearly wrong and that it did not abuse
its discretion. Therefore, it refused petitioner’s petition for appeal and affirmed the family court’s
final order. Petitioner appeals from that December 12, 2018, order.

        As this Court has found,

                “[i]n 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).

Syl. Pt. 2, In re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015).

        On appeal, petitioner asserts two assignments of error. First, he argues that the circuit court
abused its discretion by applying the incorrect burden of proof to affirm the family court’s decision
that the payments made to petitioner were gifts. He contends that prior to the divorce, he

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maintained health insurance for the benefit of the family, provided vehicle insurance for the family,
and took care of vehicle maintenance. He asserts that, in 2017 and 2018, respondent contacted him
and requested that he continue to maintain her health insurance and automobile insurance, along
with providing other incidental benefits, including automobile payments, tires, license, and
registration for her vehicle. He claims that he relied upon her assurances that the amounts he paid
for those items would be credited toward his monthly payment obligations under the divorce
decree.

        Citing a case from 1886, petitioner argues that the circuit court abused its discretion by
abdicating its responsibility to demand that respondent meet her burden of proof and ignoring
controlling case law. See Dickeschied v. Exchange Bank, 28 W. Va. 340, 360 (1886) (“[W]hether
the donee claims title to the chattel, as a gift . . . the burden of proof rests upon him to establish
every fact and circumstance necessary to show the validity of the gift, ‘of which the delivery of
possession is the strongest and the most essential’”). Petitioner also argues that respondent was
required to provide the establishment of a gift pursuant to Brewer v. Brewer, 175 W. Va. 750, 751-
52, 338 S.E.2d 229, 231 (1985):

       It is generally recognized that to have a valid inter vivos gift three requirements
       must be met: (1) there must be an intention on the part of the donor to make a gift;
       (2) there must be a delivery or transfer of the subject matter of the gift; and (3) there
       must be acceptance of the gift by the donee.

He contends, however, that respondent was never required to establish that the payments, totaling
over $31,000, were a gift. Petitioner argued before both the family court and circuit court that the
payments were not gifts and were, instead, payments made to benefit respondent that were to be
deducted from his monthly obligation under the divorce decree. He further points out that
respondent has not disputed the amounts of the payments or the fact that they were for her benefit.
He argues that the payments he made on respondent’s behalf exceeded the $4,000 per month
payments he was required to make pursuant to the divorce decree.

                “This Court may, on appeal, affirm the judgment of the lower court when it
       appears that such judgment is correct on any legal ground disclosed by the record,
       regardless of the ground, reason or theory assigned by the lower court as the basis
       for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466
       (1965).

Vanderpool v. Hunt, 241 W. Va. 254, __, 823 S.E.2d 526, 534 (2019). While petitioner’s
assignment of error is focused on the family court’s use of the term “gift,” in considering the record
before this Court, it is apparent that the family court chose simply to enforce the divorce decree
previously entered by it. As noted above, the parties did not provide a transcript of the family court
hearing, but they did provide a video recording of the July 20, 2018, proceeding at issue. During
that proceeding, the family court made it abundantly clear that it would not make any decisions
regarding alleged side agreements between the parties, including petitioner’s contention that the
parties agreed that in exchange for the payments for respondent’s benefit that the amount of his
monthly payment to respondent would be decreased by the amount of those payments. In enforcing
that decree, the family court also denied certain relief requested by respondent. The family court

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informed the parties that if they sought to enforce any alleged contracts entered into separate and
apart from the divorce decree, they could pursue such action in a separate proceeding outside of
family court. Therefore, we find that the family court did not abuse its discretion in finding
petitioner in contempt and the circuit court did not err in affirming the family court’s order.

        Petitioner next argues that the circuit court abused its discretion by failing to address the
alternative arguments of oral modification of contract, promissory estoppel, and unjust enrichment.
Without citing any authority for the proposition, petitioner argues that the failure to consider those
three separate legal bases proffered by petitioner constitutes an abuse of discretion by the circuit
court. As set forth by the circuit court in its order on appeal,

        when the [f]amily [c]ourt expressed its inclination to narrowly construe the Agreed
        Final Divorce Decree based upon the sheer lack of evidence it possessed as to the
        extraneous agreements, former counsel for [petitioner] agreed with the [f]amily
        [c]ourt, stating that she always “tells people to follow the court order.” Thus, it is
        problematic for [the circuit court] to find in accordance with [petitioner] . . .

As addressed hereinabove, the family court determined that it would enforce the divorce decree
entered by it, rather than disputed oral agreements. In affirming that decision, the circuit court
specifically stated in its order that “[i]t is equitable to hold both parties to the standards articulated
in the Agreed Final Divorce Decree – nothing more and nothing less. [Petitioner] was not required
under the Agreed Final Divorce Decree to pay for the health insurance, car insurance, and tires . .
. .” (emphasis in original)

        As this Court has set forth,

        “‘[i]n general, an abuse of discretion occurs when a material factor deserving
        significant weight is ignored, when an improper factor is relied upon, or when all
        proper and no improper factors are assessed but the circuit court makes a serious
        mistake in weighing them.’” [State v. Hedrick, 204 W. Va. 527, 553, 514 S.E.2d
        397, 403 (1999)] (quoting Gentry v. Mangum, 195 W.Va. 512, 520 n. 6, 466 S.E.2d
        171, 179 n. 6 (1995)).

Shafer v. Kings Tire Service, Inc., 215 W. Va. 169, 177, 597 S.E.2d 302, 310 (2004). Because both
the family court and circuit court enforced the divorce decree, which was the written agreement
entered by the family court, and the family court advised the parties that any other alleged
agreements would need to be handled in a separate non-family court proceeding, under the facts
of this case, we cannot find that the circuit court abused its discretion by affirming the family
court’s order based on its enforcement of the divorce decree without addressing other contractual
agreements and principles.

        For the foregoing reasons, we affirm.

                                                                                               Affirmed.

ISSUED: November 4, 2019

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CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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