                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Janice Hope Smith, Respondent Below,                                                 FILED
Petitioner                                                                         June 15, 2015
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 14-0759 (Tucker County 13-D-31)                                           OF WEST VIRGINIA


Eric Scott Smith, Petitioner Below,
Respondent


                               MEMORANDUM DECISION
       Petitioner Janice Hope Smith, by counsel Paul S. Detch, appeals the Circuit Court of
Tucker County’s July 7, 2014, order denying her petition for appeal from the Family Court of
Tucker County. Respondent Eric Scott Smith, by counsel Pat A. Nichols, filed a response in
support of the circuit court’s order.1 Petitioner filed a reply. On appeal, petitioner alleges that the
lower courts erred in failing to order equitable distribution of the parties’ marital assets.

        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.

       In October of 1994, the parties were married in Virginia. Respondent filed a petition for
divorce with an accompanying financial statement in the Family Court of Tucker County, West
Virginia, on July 26, 2013. Petitioner was served on July 31, 2013, in Summers County, West

       1
         Respondent also filed eight “exhibits” attached to, and cited throughout, his response. As
respondent filed no motion with these “exhibits” and the same do not comply with the Rules of
Appellate Procedure, we decline to consider those items not provided in the appendix record and
all references thereto in respondent’s brief. We refer respondent’s counsel to Rule 7 of the Rules
of Appellate Procedure regarding appendix records and supplemental appendix records. We also
note that petitioner’s signed appendix certification page certifies only that “the concerns [sic] of
this appendix are true and accurate copies of the original documents; [petitioner’s] counsel has
forwarded to Pat Nichols, respondent’s counsel, the contents of this appendix.” We refer
petitioner’s counsel to Rule 7(c)(2) of the Rules of Appellate Procedure, which provides that a
signed appendix certification page must certify (1) that the contents are true and accurate copies
of items contained in the record of the lower tribunal and (2) that “petitioner has conferred in
good faith with all parties to the appeal in order to determine the contents of the appendix.”

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Virginia. In the petition, respondent alleged, inter alia, that he was a bona fide resident of the
State of West Virginia, residing in Tucker County; that petitioner was a resident of the State of
Washington; that the parties last cohabitated together in 2008 in the Commonwealth of Virginia;
that the parties had lived separate and apart since 2008; and that the parties had acquired real and
personal property throughout the marriage, but, at the time of the petition’s filing, the parties had
separated that property between them. Petitioner’s financial statement disclosed approximately
$270,000 in assets owned by both parties. The financial statement disclosed, inter alia, a Valic
account listed at $60,000 and attributed to petitioner; an American Funds account listed at
$100,000 and attributed to respondent; and the sale of a condo in Lynchburg, Virginia, in 2013 for
$125,000, with net proceeds of $67,000. Petitioner filed no answer or other responsive pleading to
the petition for divorce. Petitioner’s only filing prior to the final divorce hearing in this matter was
an “amended motion to continue” the final divorce hearing set for October of 2013, which was
granted.2

        After granting petitioner’s “amended motion to continue,” the family court set the final
divorce hearing for December of 2013. However, by order, the family court rescheduled the
December date and set the final hearing for January of 2014. A copy of that order was mailed to
petitioner’s counsel.

        In January of 2014, the family court held the final divorce hearing in this matter.
Respondent and his counsel appeared, but petitioner failed to appear either in person or by
counsel. The family court noted that petitioner’s counsel contacted the clerk’s office on that date,
presumably concerning the hearing on that date, but the family court had received no written
motion from petitioner and proceeded with the final hearing. Respondent testified that he was a
bona fide resident of West Virginia, having resided in Tucker County for over one year, and that
he worked as a correctional officer in the state at that time. He further stated that he and petitioner
separated in May or June of 2007 and had lived separate and apart since that time. Respondent
also testified that the parties had previously separated their real and personal property, had their
own property in their possession, and had no real property in both names at that time. The family
court also heard another witness’s testimony regarding the parties’ separation.

        By order entered on February 5, 2014, the family court granted respondent’s petition for
divorce and awarded each party the property currently in their possession. On February 7, 2014,
petitioner filed motions to amend and to reconsider the February 5, 2014, final order. Respondent
objected. The family court held a hearing on petitioner’s motions on March 25, 2014. Petitioner
argued that the family court lacked jurisdiction over the matter because the parties were not
residents of this State; that respondent’s counsel agreed that petitioner could file a late answer;
that the parties had been involved in negotiations and discovery at the time of the final hearing;
and that the parties had previously arranged for property distribution in Virginia. Petitioner stated
that, if jurisdiction were proper, she did not contest the divorce and did not seek alimony.
However, she requested that the family court reconsider property distribution and permit her to
hire new counsel to litigate the same. The family court explained that no answer, motion, or

       2
         Although filed as an “amended motion for continuance,” we note that the docketing sheet
in this matter shows no original motion for continuance requiring amendment.
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discovery request had been filed prior to the final hearing, with the exception of an amended
motion for continuance. At the conclusion of the March 25, 2014, hearing, the family court denied
petitioner’s motions, but its written denial order was not entered until April 22, 2014.

       On April 21, 2014, petitioner filed a second motion to reconsider, seeking reconsideration
of the family court’s March 25, 2014, ruling from the bench denying her original motion to
reconsider and motion to amend the final order. Without holding a hearing, the family court
denied petitioner’s second motion to reconsider.

        On May 20, 2014, petitioner filed a petition for appeal in the Circuit Court of Tucker
County alleging that respondent committed fraud in his financial disclosure and that respondent’s
counsel agreed that petitioner could file a late answer before moving forward with the case.
Petitioner also claimed that she submitted questions to respondent’s counsel about the parties’
property distribution, and she had not yet received responses to those questions when
respondent’s counsel went “ahead with the hearing.” Respondent filed a response. By order
entered in July of 2014, the circuit court denied petitioner’s petition for appeal. The circuit court
denied petitioner’s appeal as untimely; however, the circuit court also stated that the family court
did not err because petitioner failed to file any responsive pleadings to the petition for divorce.
This appeal followed.

        We have previously established the following standard of review:

              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).

        On appeal, petitioner assigns error to the lower courts’ failure to order equitable
distribution of marital assets. While the circuit court found the timeliness issue dispositive in this
matter, it further correctly concluded that the family court committed no error in granting
respondent’s petition for divorce or awarding property when petitioner failed to file a responsive
pleading or appear at the final hearing. The family court heard respondent and another witness
testify as to the parties’ separation, and the uncontested evidence presented at the final divorce
hearing showed that the parties had previously separated their property and each had possession
thereof. As such, based upon the evidence presented at the final divorce hearing, the circuit
court’s judgment was correct. Petitioner’s appeal to the circuit court from the family court’s final
order was without merit. See Shortt v. Damron, 220 W.Va. 710, 649 S.E.2d 283 (2007) (holding
that “[t]his 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.”). Therefore, given the
record before us in this matter, we cannot find reversible error in the family court’s distribution of
property or the circuit court’s order refusing this appeal.

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       As to petitioner’s claim that respondent committed fraud in his filings and perjury in his
testimony, petitioner fails to satisfy her burden on appeal to prove that such error affirmatively
appears in the appellate record. The general rule with regard to proof of fraud was stated in
syllabus point 2 of Work v. Rogerson, 152 W.Va. 169, 160 S.E.2d 159 (1968):

               [t]he law does not presume fraud, and he who alleges it must clearly and
       distinctly prove it; but fraud may be legally inferred from facts and circumstances
       calculated to establish it, and in a case where a fiduciary relationship exists and an
       inference of fraud arises, the burden of proof is then on the alleged feasor to
       establish the honesty of the transaction. (citations omitted)

However, we have held that absent a showing that there has been a transfer or conveyance of
property or some other agreement or transaction of a contractual nature between spouses, the
burden on proving fraud remains upon the moving spouse. See Divel v. Divel, 178 W.Va. 558,
559-60, 363 S.E.2d 243, 244-45 (1987). While petitioner argues that respondent’s only means to
the American Funds account must have been the proceeds from the sale of the Lynchburg,
Virginia, condo, to which she was entitled equal distribution, we find no support in the record for
such an assertion. Petitioner failed to file responsive pleadings to the petition for divorce, failed to
provide testimony of any witnesses at any stage of these proceedings, failed to appear at the final
hearing, and failed to provide an affidavit or other potential evidence to support her broad
accusations of fraud. “An appellant must carry the burden of showing error in the judgment of
which he complains. This Court will not reverse the judgment of a trial court unless error
affirmatively appears from the record. Error will not be presumed, all presumptions being in favor
of the correctness of the judgment.” Syl. Pt. 7, State ex rel. Hatcher v. McBride, 221 W.Va. 760,
656 S.E.2d 789 (2007) (internal citations omitted). Based on the record before this Court, we find
no reversible error in the circuit court’s order.

       For the foregoing reasons, we hereby affirm the circuit court’s July 7, 2014, order.


                                                                                             Affirmed.


ISSUED: June 15, 2015

CONCURRED IN BY:

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



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