                          STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

William Bowen,

                                                                                    FILED
Petitioner Below, Petitioner                                                    January 11, 2016

                                                                               RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
vs) No. 14-1283 (Jefferson County 09-D-232)                                      OF WEST VIRGINIA


Kathryn Bowen,

Respondent Below, Respondent



                               MEMORANDUM DECISION

        Pro se petitioner William Bowen1 appeals the Circuit Court of Jefferson County’s
November 10, 2014, order denying his petition for appeal from a final order of the Family Court
of Jefferson County that directed him to continue to pay monthly spousal support to his former
wife, respondent Kathryn Bowen. Respondent, by counsel J. Daniel Kirkland and Gregory A.
Bailey, filed a response in support of the lower tribunals’ orders, a supplemental appendix, and a
cross-assignment of error. Petitioner filed replies to both respondent’s response and her cross-
assignment of error. In this appeal, petitioner argues that the lower tribunals erred in failing to
consider additional payments he made as “advance payments” of his outstanding spousal support
obligation. In her cross-assignment of error, respondent requests that this Court order petitioner
to pay attorney’s fees for the proceeding below.

        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.

        By final divorce order entered in the family court in July of 2009, petitioner was ordered
to pay spousal support to respondent in the amount of $2,500 per month for sixty consecutive
months for a total amount of $150,000. Although the parties disagree as to its characterization, it
is clear from the record on appeal that the parties maintained a post-divorce relationship.2 The
       1
       Petitioner was represented below and at the outset of this appeal by David A. Camilletti.
Mr. Camilletti was relieved as petitioner’s counsel of record by order of this Court entered on
August 11, 2015.
       2
        In her response brief, respondent claims that the parties “engaged in a consensual
romantic relationship” following their divorce. In his reply, petitioner refers to respondent’s
claim as an “allegation[.]”
(continued . . .)
                                                1

parties stipulated below that petitioner made fifty-three consecutive monthly spousal support
payments between 2009 and January of 2014 for a total payment of $132,500. Between the
divorce in 2009 and January of 2014, petitioner made several payments to respondent in addition
to his monthly spousal support obligation that totaled $25,460.15.

        In January of 2014, when petitioner had completed fifty-three consecutive monthly
spousal support payments, he filed a “Notice of Filing” with the family court listing his
completed monthly spousal support payments and listing additional payments made to
respondent between 2009 and 2013. In that filing, petitioner calculated his total payments made
to respondent as $150,262.26. Thereafter, because petitioner determined that his total payments
made to respondent were greater than the total spousal support obligation under the final divorce
order ($150,000), he ceased making monthly spousal support payments at that time. Petitioner
filed two additional “Notice of Filing[s]” in May of 2014 listing other payments made by him to
respondent between 2009 and 2014.

        In March of 2014, respondent filed a petition for contempt against petitioner alleging that
he ceased making spousal support payments in January of 2014 in violation of the final divorce
order. Respondent argued that he had seven monthly payments remaining for a total remaining
spousal support obligation of $17,500. Petitioner responded that he paid $25,460.15 in “personal
loans” in addition to his monthly spousal support obligation, which satisfied that obligation when
respondent failed to repay those loans. Thus, according to petitioner’s argument, he paid
respondent more than the $150,000 ordered in spousal support in the final divorce order.

        In August of 2014, the family court held a hearing on the contempt petition. At the time
of that hearing, the parties signed a stipulation agreement to the amount of monthly spousal
support petitioner paid for fifty-three consecutive months through January of 2014 ($132,500)
and the amount he paid in additional payments between 2009 and 2013 ($25,460.15).3 However,
respondent argued that the additional payments were not spousal support and did not fulfill the
clear terms of the divorce order, which required sixty consecutive monthly payments in the
amount of $2,500. Respondent noted that petitioner’s accountant wrote a letter in May of 2014
referencing petitioner’s use of those additional payments as “loans” for income tax purposes and
not spousal support. Respondent also moved for petitioner to pay her attorney’s fees for the
contempt proceeding. Petitioner responded that the additional payments were loans, but he
argued that the loans were made with the express condition that they would be applied to his
outstanding spousal support obligation, if not repaid. Given that express condition and
respondent’s failure to repay those loans, petitioner asserted that the total loan amount should be
credited toward his spousal support obligation.

        By order entered on September 9, 2014, the family court ruled that the additional
payments would not operate as a credit toward his outstanding spousal support. The family court
also found that petitioner’s accountant considered the additional payments to be “loans” and not



       3
       The parties also stipulated to a third monetary sum petitioner paid “on behalf of
respondent” for various bills that is not at issue in this appeal.


                                                2
spousal support for income tax purposes. The family court further found that petitioner cited no
controlling legal authority for the proposition that payments made by one spouse to another in
addition to the ordered payment method must be credited toward an outstanding spousal support
obligation. Although the family court denied the contempt petition because petitioner had not
acted in bad faith, the family court ordered petitioner to make the remaining monthly spousal
support payments as previously ordered and with interest. Because it found that petitioner did not
act in bad faith and that he was not in contempt, the family court also ruled against respondent’s
request for attorney’s fees. Finally, the family court noted that any dispute over unpaid “loans”
between the parties could be litigated in a separate civil action.4

       Petitioner appealed the family court’s order to the circuit court on the ground that the
family court erred in ruling that the additional payments were not a credit toward his total
spousal support obligation. On November 10, 2014, the circuit court entered an order denying
the appeal. The circuit court found that petitioner’s accountant categorized the additional
payments as loans and not spousal support. Further, the circuit court found that petitioner had
another remedy at law to recover his alleged unpaid loans by means of a civil action. For those
reasons, the circuit court concluded that petitioner’s appeal lacked merit. This appeal followed.

       This Court has explained the appropriate standard of review in these matters 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).

        On appeal, petitioner argues that the lower tribunals erred in failing to credit his
outstanding spousal support obligation with the additional payments he made to respondent.
Petitioner argues that principles of equity require this Court to credit his spousal support
obligation with the additional payments he made to respondent. We disagree. West Virginia
Code § 48-5-602 provides that “[t]he court, in ordering a divorce[,] may require either party to
pay spousal support in accordance with the provisions of article 8-101, et seq., of this chapter.”
In turn, West Virginia Code §§ 48-8-101, 102, and 103 provide that family courts have
jurisdiction to impose spousal support and to direct terms for the payment thereof. Pursuant to
West Virginia Code § 48-8-101(a), “[a]n obligation that compels a person to pay spousal support
may arise from the terms of a court order[.]” Further, West Virginia Code § 48-8-103(a) provides
that “[u]pon ordering a divorce . . . the court may require either party to pay spousal support in
the form of periodic installments[.]” Also, this Court has held that “[q]uestions relating to
       4
         Following the contempt hearing, petitioner filed a civil action in the Circuit Court of
Jefferson County against respondent based on her failure to repay the subject additional
payments. According to the parties, petitioner received a default judgment against her in that
civil action, and she subsequently filed a motion to set aside the default judgment. The status of
that civil action is unclear from the record on appeal.


                                                3

[spousal support] . . . 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., in part, Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d 36 (1977).

        In this case, petitioner acknowledges that the final divorce order directed him to make
monthly spousal support payments of $2,500 for sixty consecutive months. He also admits that
he did not make sixty consecutive monthly payments of $2,500 in spousal support. Moreover,
petitioner noted in his brief that he received a default judgment against respondent for that
amount of money he now claims should be credited toward his spousal support obligation. In this
matter, it is clear that petitioner’s additional payments were separate and apart from the
installment payments of spousal support ordered by the family court in the parties’ final divorce
order. We find no merit to petitioner’s argument that his additional payments, which were clearly
separate from the method of payment designated by the family court, should be credited toward
his total spousal support obligation. Therefore, we find that the lower tribunals committed no
error in this regard.

        In her cross-assignment of error, respondent requests that this Court order petitioner to
pay her attorney’s fees for the underlying contempt proceeding. As noted above, the family court
ruled against her request for attorney’s fees in its final order following the contempt hearing on
the ground that petitioner did not act in bad faith and that he was not in contempt of the final
divorce order. The record on appeal reveals that respondent did not file a notice of intent to
appeal directly to this Court, pursuant to Rule 26 of the West Virginia Rules of Practice and
Procedure for Family Court,5 or a petition for appeal or cross-petition for appeal to the circuit
court, pursuant to Rule 28 of the West Virginia Rules of Practice and Procedure for Family
Court.6 While Rule 28 also provides that “the time period for filing an appeal is suspended



        5
        Rule 26(a) of the West Virginia Rules of Practice and Procedure for Family Court
provides, in pertinent part, as follows:

        (a) Filing Notice and Waiver. If, within fourteen days after entry of a family court
        final order, both of the parties file, either jointly or separately, a notice of intent to
        appeal directly to the supreme court of appeals and waiver of the right to appeal to
        the circuit court, either party aggrieved by a final order of a family court judge
        may file a petition for appeal to the supreme court of appeals.
        6
        Rule 28(a) and (f) of the West Virginia Rules of Practice and Procedure for Family
Court provides, in pertinent part, as follows:

        (a) Time for Petition. A party aggrieved by a final order of a family court may file
        a petition for appeal to the circuit court no later than thirty days after the family
        court final order was entered in the circuit clerk’s office.

        ...

(continued . . .)
                                                    4

during the pendency of the motion for reconsideration,” the record before this Court shows that
no motion for reconsideration was filed. As such, the appeal period was never suspended.
Respondent first sought appellate review on the issue of her attorney’s fees in the instant cross-
assignment of error—more than six months after the entry of the family court’s final order.
Therefore, for these reasons, respondent failed to timely appeal the denial of her motion for
attorney’s fees for the underlying contempt proceeding, and she is not entitled to appeal the
family court’s ruling on that issue at this time.

        Based upon the foregoing, we find no error in the circuit court’s November 10, 2014,
order, and we hereby affirm the same.


                                                                                           Affirmed.

ISSUED: January 11, 2016

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




       (f) Cross-Petition for Appeal. Within fifteen days after the filing of the petition for
       appeal, the respondent may file a cross-petition for appeal.


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