                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


James H. Smailes,                                                                FILED
Petitioner Below, Petitioner                                                   February 22, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 12-0155 (Kanawha County 09-D-920)                                     OF WEST VIRGINIA



Peggy Morris Smailes,
Respondent Below, Respondent


                               MEMORANDUM DECISION
        Petitioner James H. Smailes appeals the Circuit Court of Kanawha County’s “Final Order
Refusing Appeal” entered on January 6, 2012, which affirmed the Family Court of Kanawha
County’s “Order Regarding Motion for Reconsideration” entered on November 10, 2011.
Petitioner is represented by Robert M. Williams. Respondent Peggy Morris Smailes appears pro
se.

       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 were married in December of 2001 and were divorced by
amended order entered on March 21, 2011. Petitioner argued in a motion for reconsideration that
the family court erred by distributing the couple’s marital property in an inequitable manner. In
particular, petitioner argued that the family court erroneously counted his separate, pre-marital
real property as marital property, resulting in respondent receiving a more valuable distribution.
The family court rejected this argument in its order denying the motion for reconsideration, and
the circuit court affirmed on appeal.

        Petitioner’s arguments concern the family court’s findings of fact. “In reviewing a final
order entered by a circuit 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[.]” Syl., in part, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803
(2004).

        The family court recognized that petitioner owned a hunting camp in Randolph County
and a residence in Kanawha County prior to the marriage. The family court classified these as
petitioner’s separate, pre-marital property, although the court discussed them because respondent
alleged that a significant amount of marital funds had been spent to make improvements to these

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properties. Unfortunately, neither party provided sufficient evidence on the value of their marital
properties, the value of their respective pre-marital properties, or on the amount of marital money
spent to improve and/or maintain their respective pre-marital properties. Based upon the dearth
of evidence provided by the parties, the family court did its best to make an equitable
distribution. Petitioner retained his pre-marital properties and was awarded an unimproved
marital lot and an easement. Respondent was awarded the marital residence and garage, while
also retaining her separate pre-marital property. After a careful review of the parties’ arguments
and the appendix record, we cannot find that the family court committed clear error.
Accordingly, we affirm.

                                                                                        Affirmed.

ISSUED: February 22, 2013

CONCURRED IN BY:

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




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