                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Travis G.,
Husband, Respondent Below                                                             FILED
                                                                                    May 20, 2016
vs) No. 15-0661 (Kanawha County 14-D-93)                                           RORY L. PERRY II, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
Allyson H.,
Wife, Petitioner Below


                               MEMORANDUM DECISION

        Petitioner Travis G. (hereinafter referred to as “husband”), by counsel James Cagle,
appeals the March 5, 2015, order of the Circuit Court of Kanawha County that distributed
property between the parties in this divorce action.1 Respondent Allyson H. (hereinafter referred
to as “wife”), by counsel Mark Swartz filed a response. Husband filed a reply brief.

        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 that the circuit court erred in failing to properly consider the record,
that many of the lower courts’ findings of fact are clearly erroneous, and that the lower court
erred by refusing to allow husband the opportunity to cross-examine the court-appointed expert
in this matter. For these reasons, a memorandum decision reversing and remanding the order of
the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.2

       The parties married on August 16, 2003, and separated December 26, 2013. The parties
were divorced by bifurcated order on April 21, 2014. At that time, the family court ordered
discovery to be completed to determine the equitable distribution of the property of the parties.
Both parties are attorneys. At the time of their divorce husband was a member of a two person
law firm, (“husband’s law firm”), and wife was an associate at another small law firm.

       The family court conducted hearings regarding the equitable distribution of property on

       1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 254, 773
S.E.2d 20 (2015); In re Jeffrey R.L., 190 W.Va. 24, 435 S.E.2d 162 (1993); State v. Edward Charles
L., 183 W.Va. 641, 398 S.E.2d 123 (1990).
       2
         Petitioner husband filed a Motion to Supplement the Record pursuant to Rule 2 of the
West Virginia Rules of Appellate Procedure. Based upon our remand of this matter, we find
petitioner’s motion to be moot, and therefore, deny petitioner’s motion.


                                                   1

April 21, 2014, August 7, 2014, and August 18, 2014. At the conclusion of the August 18, 2014,
hearing, the only remaining, disputed issue between the parties was the marital value of
husband’s interest in his law firm. The parties originally selected their marital accountant to do
the valuation. That accountant subsequently testified that he was not comfortable serving in that
capacity, and the parties agreed to select a new expert. After the parties were not able to come to
an agreement as to an expert, the parties agreed to allow the court to appoint an expert. The court
appointed Kenneth Apple.

       Prior to the August 18, 2014, hearing, wife filed two motions to compel, seeking to
discover financial documents from husband’s law firm. In a scheduling order entered August 12,
2014, the family court ordered husband to turn over all of the pertinent financial documents
regarding his law firm to wife’s counsel. Husband’s law firm partner then filed a motion to
intervene, objecting to the disclosure of certain documents related to the internal workings of
husband’s law firm.3 At the August 18, 2013, hearing, Mr. Apple had not yet completed his
evaluation. However, the family court made a finding on the record that Mr. Apple had
everything he needed to do the valuation and that the parties would receive the report soon.

       After the August 18, 2014, hearing, husband obtained new counsel. The parties received
Mr. Apple’s report on September 23, 2014. Thereafter, husband filed a motion seeking the
opportunity to depose Mr. Apple. On October 9, 2014, that motion was noticed, by husband for
hearing on November 13, 2014. Wife also prepared a notice of the hearing for November 13,
2014, but stated that the purpose of the hearing was to lodge objections to Mr. Apple’s report.4

        At the November 13, 2014, hearing the family court expressed confusion about the
purpose of the hearing. Husband and wife referred the court to their dueling notices of hearing.
The family court, after hearing argument from wife’s counsel regarding wife’s desire to conclude
the matter, denied husband’s motion to depose the expert. Husband objected, stating that the
expert’s report could not be accepted as evidence without giving the parties the opportunity to
cross-examine him. In response, the family court stated that it had been frustrated by husband’s
failure to comply with providing financial disclosures, and disclosed that Mr. Apple called the
court multiple times to complain about husband’s non-compliance.

        Thereafter, the family court entered a final order on March 2, 2015.5 In that order, the
family court adopted the valuation of Mr. Apple who valued husband’s law firm at $265,000.00.
The family court also found that husband was in contempt for failure to comply with discovery
by failing to disclose financial documents as ordered. The court also granted “Conrad” credits to

       3
         This motion was still pending at the August 18, 2014, hearing. The record is not clear as
to the outcome of this Motion to Intervene.
       4
           Wife’s notice was filed October 17, 2014.
       5
           The final order entered by the family court mirrored the proposed final order submitted
by wife.



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wife in the amount of $8,618.12, and gave wife a tax credit of $5,332.00 for her 2013 IRS tax
obligation.6 Based upon the extensive record regarding the equitable distribution of the property
of the parties, including Mr. Apple’s valuation of the firm, and the additional credits, the family
court concluded that wife was entitled to a judgment against husband in the amount of
$99,350.00, which would accrue interest pursuant to the rates fixed by the West Virginia
Supreme Court.

        Husband filed objections to the family court order and appealed that order to the Circuit
Court of Kanawha County. The circuit court refused husband’s appeal, finding that husband
failed to provide his 2013 income information and failed to cooperate in the filing of a joint tax
return with wife, and negligently failed to take the deposition of Mr. Apple. The circuit court
also found that husband “admitted” that he failed to disclose the relevant financial information to
Mr. Apple or opposing counsel. The circuit court ruled that the findings of the family court were
not clearly erroneous. Husband now appeals the March 15, 2015, order of the Family Court of
Kanawha County, and the June 4, 2015, order of the Circuit Court of Kanawha County that
denied his appeal.

        Husband claims two assignments of error on appeal. Husband first asserts that the circuit
court erred by refusing to permit him to conduct a discovery deposition of the court appointed
expert. Husband also claims that in its final order, the family court adopted an equitable
distribution which conflicted with the court’s previous orders.

               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).

        Husband first claims that the circuit court erred by treating a written report received from
the court appointed expert as evidence and adopting its conclusions without allowing husband to
take the expert’s discovery deposition. In response, wife asserts that husband failed to depose the
expert in the time period prior to the November 13, 2014, hearing, which wife claims was a final
hearing. Wife cites the family court order, prepared by wife’s counsel, which found that husband
did not notice his discovery motion in advance of the hearing, and did not subpoena Mr. Apple
prior to the hearing. On appeal, the circuit court found that husband admitted that he failed to
provide documents to the family court, wife, and Mr. Apple as ordered by the family court, and
that as a result of husband’s failure, the only evidence before the family court was the valuation
report prepared by the court appointed expert. In making its ruling, the circuit court relied upon
Rule 13(b) of the West Virginia Rules of Practice and Procedure for Family Court, which states,



       6
           Conrad v. Conrad, 216 W.Va. 696, 612 S.E.2d 772 (2005).



                                                 3

               The failure to file or untimely filing of any required financial information
       shall not be grounds for a continuance. If a party fails to file or untimely files any
       required financial information, the court may refuse to grant requested relief to
       that party, and/or may accept the financial information of the other party as
       accurate.

The circuit court also found that husband failed to present the testimony of an expert witness,
failed to call Mr. Apple to testify as a witness at the November 13, 2014, hearing, and that as a
result of these failures, the only evidence available for the circuit court to review regarding the
valuation of the law firm was the report of Mr. Apple.

        We find based upon our review of the record that the circuit court’s findings regarding
the proceedings below are not supported by the record. As an initial matter, wife is mistaken in
her assertion that husband did not properly notice his motion to depose Mr. Apple. The record in
this matter contains a copy of husband’s notice “for a hearing on the motion to authorize the
discovery deposition of Kenneth W. Apple”, which was served on wife’s counsel October 9,
2014. There is no indication in the record that Mr. Apple’s report was delayed due to husband’s
alleged failure to provide information. Mr. Apple’s report does not in any way reference the need
for further documents that were not provided by husband. Further, the record reflects that Mr.
Apple indicated to the family court that he had all of the records necessary to conduct his
valuation, and that the circuit court specifically noted such at its August 18, 2014, hearing.

               A finding [of fact] is clearly erroneous when, although there is evidence to
       support the finding, the reviewing court on the entire evidence is left with the
       definite and firm conviction that a mistake has been committed. However, a
       reviewing court may not overturn a finding simply because it would have decided
       the case differently, and it must affirm a finding if the circuit court’s account of
       the evidence is plausible in light of the record viewed in its entirety.

Syl. Pt. 1, in part, In the Interest of Tiffany Marie S., 196 W. Va. 223, 470 S.E.2d 177 (1996).

        In the instant case, the circuit court found that at the November 13, 2014, hearing,
husband admitted that he had not provided certain requested documents to the court and to wife’s
counsel, and that husband did not present all of the requested documents to Mr. Apple. In fact, at
the November 13, 2014, hearing wife’s counsel argued against permitting the deposition of Mr.
Apple, and states that husband reportedly admitted, “I did not provide everything to Mr.
Apple[,]” to the family court at the August 18, 2014, hearing. However, a review of husband’s
full statement in the transcript for the August 18, 2014, hearing reveals that husband made no
such statements at that hearing. The transcript reveals the following exchange:

       Husband’s Counsel: “Did you provide your 2013 documentation to Mr. Swartz?

       Husband: I did not. I provided everything to Mr. Apple. It’s subject to the motion
       to intervene that’s been filed by my partner. I was given permission to give
       redacted ledgers, profit and loss statements, everything from two thousand—

       Family Court: Nobody wants to know who your clients are.
                                                 4

       Husband: Sometimes I don’t want to know actually.

       Family Court: Just the numbers was all we need.

        This particular finding of the family court is contradicted by the family court’s statements
to the parties during the August 18, 2014, hearing regarding whether Mr. Apple possessed all of
the necessary documents to complete his valuation of husband’s firm. At that hearing, the family
court stated to the parties,

                I have good news. Mr. Apple thinks that he does have everything he needs
       to make his evaluation now. And, of course, he hasn’t had time to complete an
       evaluation because he hasn’t had it long enough. So he’s going to prepare that for
       us, and we can incorporate that into the Order, whatever it might be when he gets
       it to us. Okay?

        In addition, wife’s counsel appeared to withdraw her request for additional 2013 financial
documentation prior to the November 13, 2014, hearing. At the August 18, 2014, hearing, wife’s
counsel complained to the court that he had not received husband’s tax information for 2013. In
response, wife’s counsel represented that husband would provide a K-17 after September 15,
2014. At the conclusion of this segment of the hearing, the circuit court stated, “[s]o, that’s all
we ask, is that Apple be given all the information he needs to value his business so that one-half
can be claimed as marital.” Later during the August 18, 2014, hearing, wife’s counsel admits to
the court that in husband’s initial financial disclosure, he provided his gross income for the year
2013. Subsequently, in a letter dated September 30, 2014, wife accepted the valuation of Mr.
Apple, in spite of her protestations that she did not receive all of the relevant financial documents
from husband, writing, “Please be advised that my client is prepared to accept the value an
analysis set forth in the Apple report.”8 Accordingly, we find that the circuit court abused its
discretion in upholding the family court’s refusal to allow husband to depose or examine Mr.
Apple.




       7
         A partnership uses a K-1 to report a partner’s share of the partnership’s income,
deductions, credits, etc. (IRS Partner’s Instructions for Schedule K-1(Form 1065).
       8
         During the November 13, 2014, hearing, the family court states that there are numerous
documents to support the contention that husband did not provide the necessary documentation
to Mr. Apple. In response, husband’s counsel states that he does not have any documentation to
support that assertion. The family court responds that the documentation is “in the court file in
Kanawha County.” In spite of this assertion by the family court, the parties did not provide to
this Court any written documentation that Mr. Apple did not receive the documents required to
complete the investigation. “The appellate review of a ruling of a circuit court is limited to the
very record there made and will not take into consideration any matter which is not a part of that
record.” Syl. Pt. 2, State v. Bosley, 159 W.Va. 67, 218 S.E.2d 894 (1975).


                                                 5

         Rule 706 of the West Virginia Rules of Evidence governs the appointment and
examination of court-appointed expert witnesses. Regarding the examination of these witnesses,
the rule states, “[a] witness so appointed shall advise the parties of his or her findings, if any; the
witness’ deposition may be taken by any party; and the witness may be called to testify by the
court or any party. The witness shall be subject to cross-examination by each party,
including a party calling the witness.” W.Va.R.Evid. 706(a), in part (Emphasis added.) Prior to
the hearing on November 13, 2014, both parties provided notice regarding the subject of said
hearing. Husband noticed the hearing as a Motion to Depose the Court Appointed Expert, while
wife noticed that the purpose of the hearing was for the parties’ to lodge objections to Mr.
Apple’s report. Importantly, neither wife nor the family court provided notice to the parties that
husband would be subject to contempt at this hearing for his failure to provide discovery. The
family court’s refusal to allow husband to depose or cross-examine Mr. Apple, without prior
notice of this potential action, effectively acted as a sanction pursuant to Rule 13(b) of the West
Virginia Rules of Practice and Procedure for Family Court due to husband’s alleged discovery
violations.

        It is well established that a court may sanction an offending party for discovery abuses. In
this case, the circuit court found that husband’s failure to provide discovery to the family court
and wife warranted the sanction of the adoption of Mr. Apple’s report without allowing husband
to examine or cross-examine the witness. We find the circuit court’s ruling in this regard to be an
abuse of discretion.

               The imposition of sanctions by a circuit court under W.Va.R.Civ.P. 37(b)
       for the failure of a party to obey the court’s order to provide or permit discovery is
       within the sound discretion of the court and will not be disturbed upon appeal
       unless there has been an abuse of that discretion.

Syl. Pt. 1, Bell v. Inland Mut. Ins. Co., 175 W.Va. 165, 332 S.E.2d 127 (1985). The circuit
court’s power to sanction is subject to the requirements of due process. Due process dictates that
a party receive a meaningful notice of hearing and be given an opportunity to respond to any
potential sanctions. See Syl. Pt. 6, Czaja v. Czaja, 208 W.Va. 62, 537 S.E.2d 908 (2000)
(“Before imposing sanctions for filing frivolous pleadings and advancing frivolous arguments, a
trial court must give the alleged contemnor notice and an opportunity to be heard on the
questions of frivolousness, appropriate sanctions, and, if an award of attorney’s fees is to be
made, on the necessity and reasonableness of such fees. At the conclusion of such hearing, the
trial court must make sufficient findings of fact and conclusions of law to enable the appellate
court to conduct a meaningful review.”).

       We have further reasoned that,
               [i]n formulating the appropriate sanction, a court shall be guided by
       equitable principles. Initially, the court must identify the alleged wrongful
       conduct and determine if it warrants a sanction. The court must explain its reasons
       clearly on the record if it decides a sanction is appropriate. To determine what
       will constitute an appropriate sanction, the court may consider the seriousness of
       the conduct, the impact the conduct had in the case and in the administration of
       justice, any mitigating circumstances, and whether the conduct was an isolated
       occurrence or was a pattern of wrongdoing throughout the case.

                                                  6

Syl. Pt. 2, Bartles v. Hinkle, 196 W. Va. 381, 472 S.E.2d 827 (1996).

        In the instant case, husband filed a notice of hearing regarding his motion to depose Mr.
Apple, and proceeded to the hearing under the assumption that his motion would be heard.
Although wife filed a notice indicating that the purpose of the hearing would be to lodge
objections to Mr. Apple’s report, it is disingenuous to assume that husband would be prepared to
lodge those objections prior to his deposition of Mr. Apple. No notice was given to husband prior
to the hearing that he would not be permitted to cross-examine Mr. Apple due to alleged
discovery violations. In fact, the record reflects that the family court informed husband’s counsel
on August 18, 2014, that he would be permitted to cross-examine Mr. Apple upon receipt of the
report. At that hearing, following the family court’s announcement that Mr. Apple had all of the
evidence he needed to prepare his report, husband’s counsel inquired of the court if husband
would have the opportunity to cross examine Mr. Apple. The family court replied,

        [i]f you feel the need, if you object. I mean, you may not object to his numbers.
        He’s got numbers. If he puts them in a little formula and in a format that you can
        agree with, there may not be—you don’t need to anticipate a problem when there
        isn’t one. So you look at it from one end, and I look at it from the other end. It’s
        like maybe it’ll be okay. Maybe nobody will object. Maybe we can get this case
        over with for these people and not drag this out any longer. . . .

While it is clear that the family court was frustrated by the protracted litigation between the
parties, the family court’s ruling did not give husband the opportunity to be heard on his alleged
failure to provide the necessary documentation to Mr. Apple, and to meaningfully consider the
appropriate sanction. This was an abuse of discretion and the circuit court’s order must therefore
be reversed.

        Husband finally alleges that the family court adopted a final order that does not reflect
previous orders of the family court. In support, husband cites that wife received $8,618.12 in
“Conrad credits”, which she should not have received because the parties previously agreed to
split this cost, and that wife improperly received a tax credit of $5,332.00 plus interest and
penalties due for her 2013 tax return. Wife responds that during the August 18, 2014, hearing,
husband had no documents to challenge the Conrad credit numbers, and did not lodge any
objections to the credits.9 The family court found that because husband failed to comply with



        9
            In the portion of the transcript referenced by wife, wife’s counsel asked husband,

        Wife’s Counsel: No. My question was what documents do you have to challenge
        any number on this spreadsheet, and you have yet to tell me that you have a
        document today that can challenge any of these numbers. Is that true?

        Husband: No. The fact is you have come up with a method of valuing a business
        that is not accepted.

(continued . . .)
                                                   7

discovery, that husband failed to provide evidence to dispute the family court’s findings. In fact,
husband presented evidence in his objections to the final proposed order, and in his appeal to the
family court that the parties had previously agreed by order entered June 30, 2014, to each pay
one half of that sum, and that the final order does not reflect this prior order. As the circuit
court’s refusal to consider husband’s argument is the result of the above mentioned sanction, we
likewise find that this ruling is an abuse of discretion.

       With respect to the tax credit, the circuit court found that husband paid taxes for 2013 in
the amount of $66,500.00, and that wife was entitled to her marital portion of that amount.
However, at the August 18, 2014, hearing, the family court ruled with respect to the parties’
2013 taxes,

       [y]ou can do separate returns. I’m not going to order you to do a joint return
       because you are well divorced now and you need to move on. And there’s no
       reason to do that. It’s perfectly okay for people to file separately, especially
       whenever they have financial entanglements that are well past due of being
       separated. So you file yours. She’ll file hers. You’re each responsible for your
       own tax liability. He’s already paid into his. I think [wife] has paid into hers. Let’s
       take it off.

        In light of the record we find that the circuit court order contains facts that are clearly
erroneous and that the circuit court abused its discretion in upholding the order of the family
court in this matter. For the foregoing reasons, we reverse the family court’s March 2, 2015,
order and the June 2, 2015, order of the Circuit Court of Kanawha County and this matter is
remanded to the Family Court of Kanawha County, Judge Deloris Nibert, sitting as a temporary
family court judge, for further proceedings consistent with this memorandum decision.



Wife also implies that husband responded to questions regarding these credits with the responses,
“I have none” and “I agree with those numbers”. However, these “admissions” are taken out of
context.

       Wife’s counsel: Okay. Show me your paperwork to suggest that the $500 value

       for [website domain name] is wrong.


       Husband: I have none.


       Wife’s counsel: Show me your paperwork with regard to the $472 for Carlyle.


       Husband: I have none.


       Wife’s counsel: Would the same be true of all the Morgan Stanley accounts? You

       have no paperwork to argue any of those numbers.


       Husband: I agree with those numbers Mark.



                                                 8

                                      Reversed and Remanded.

ISSUED: May 20, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Allen H. Loughry II

DISQUALIFIED:

Justice Margaret L. Workman
Justice Brent D. Benjamin




                                 9

