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CourtListener opinion 9962162
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Machine-draft headnote
Machine-draft public headnote: CourtListener opinion 9962162 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to ERISA / defined contribution issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.
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Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.
Category: ERISA / defined contribution issues
Evidence quotes
QDRO“on August 14, 2023. Relevant to this appeal, the final order held the following: 1. Husband owes Wife $152,919.42 for her share of equitable distribution. Husband will refinance marital home and pay Wife $76,459.70. The remainder will be paid to Wife via QDRO from Husband's 401(k). 2. The most equitable way for Husband to pay Wife's share of equitable distribution is to refinance the marital home and pay Wife $76,459.70 from the refinance balance, which will allow access to immediate cash. 3. The parties will alternate parenting time with a week-on/week-off schedule, with exchanges every Friday at 4:00. 4.”
401(k)“Relevant to this appeal, the final order held the following: 1. Husband owes Wife $152,919.42 for her share of equitable distribution. Husband will refinance marital home and pay Wife $76,459.70. The remainder will be paid to Wife via QDRO from Husband's 401(k). 2. The most equitable way for Husband to pay Wife's share of equitable distribution is to refinance the marital home and pay Wife $76,459.70 from the refinance balance, which will allow access to immediate cash. 3. The parties will alternate parenting time with a week-on/week-off schedule, with exchanges every Friday at 4:00. 4. The children will spe”
valuation/division“ns of law, but the family court chose to adopt Husband's and incorporated them into the final divorce order, which was entered on August 14, 2023. Relevant to this appeal, the final order held the following: 1. Husband owes Wife $152,919.42 for her share of equitable distribution. Husband will refinance marital home and pay Wife $76,459.70. The remainder will be paid to Wife via QDRO from Husband's 401(k). 2. The most equitable way for Husband to pay Wife's share of equitable distribution is to refinance the marital home and pay Wife $76,459.70 from the refinance balance, which will allow access to immediate cash. 3. The parti”
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- May 14, 2026
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Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.
Clean opinion text
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
April 22, 2024
ELIZABETH F.,
ASHLEY N. DEEM, DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 23-ICA-395 (Fam. Ct. Marshall Cnty. No. FC-25-2021-D-167)
MELVIN F.,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner Elizabeth F.1 ("Wife") appeals the Family Court of Marshall County's
August 14, 2023, final divorce order which she asserts failed to incorporate the parties'
stipulations regarding property allocation and child support, adopt her parenting plan, and
award spousal support. Wife also asserts that the final divorce order included various
mistakes and failed to properly consider all facts regarding her alleged adultery.
Respondent Melvin F. ("Husband") agrees with two of Wife's assignments of error but
otherwise is in support of the family court's order. The Bureau for Child Support
Enforcement ("BCSE") filed a brief addressing only the child support issue.2 Wife filed a
timely reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties' arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the family court's decision, but no
substantial question of law. This case satisfies the "limited circumstances" requirement of
Rule 21(d) of the Rules of Appellate Procedure for resolution in a memorandum decision.
For the reasons set forth below, the family court's decision is affirmed, in part, reversed,
in part, and remanded to the family court with directions as set forth herein.
The parties were married on March 24, 2007, and separated on October 29, 2021.
Two minor children were born of the marriage, D.F. and J.F. Husband filed for divorce on
November 22, 2021, alleging irreconcilable differences. A temporary hearing was held on
1
To protect the confidentiality of the juveniles involved in this case, we refer to the
parties' last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n. 1 (1990).
2
Elizabeth F. is represented by Holli Massey Smith, Esq. Melvin F. is represented
by Elgine Heceta McArdle, Esq. The Bureau for Child Support Enforcement is represented
by Allison C. Ojeda, Esq.
1
March 14, 2022, and the temporary order was entered on April 4, 2022, which gave
Husband exclusive use of the marital home and included a week-on/week-off parenting
schedule between the parties with exchanges taking place every Friday.
The final hearing was held on January 31, 2023, wherein the parties agreed and
stipulated to a marital property allocation summary, which allocated all assets and liabilities
of the marital estate. As part of the allocation summary, the parties agreed to divide mineral
rights royalties equally. Both parties submitted proposed findings of fact and conclusions
of law, but the family court chose to adopt Husband's and incorporated them into the final
divorce order, which was entered on August 14, 2023. Relevant to this appeal, the final
order held the following:
1. Husband owes Wife $152,919.42 for her share of equitable distribution.
Husband will refinance marital home and pay Wife $76,459.70. The remainder
will be paid to Wife via QDRO from Husband's 401(k).
2. The most equitable way for Husband to pay Wife's share of equitable
distribution is to refinance the marital home and pay Wife $76,459.70 from the
refinance balance, which will allow access to immediate cash.
3. The parties will alternate parenting time with a week-on/week-off schedule, with
exchanges every Friday at 4:00.
4. The children will spend equal time with parents during holidays, alternating
times every other year.
5. Husband will pay wife $300 per month in child support; Husband will pay 69%
and Wife will pay 31% of medical bills not covered by insurance.
6. Wife was denied spousal support for the following reasons: (1) she will receive
over $150,000 in equitable distribution; (2) she purchased a home without
assistance; (3) Husband will incur significant debt in equitable distribution; (4)
Wife receives $300 per month in child support as well as rental income, and (5)
Wife had an extramarital affair.
It is from the August 14, 2023, final divorce order that Wife now appeals.
For these matters, we apply the following standard of review:
"In reviewing . . . 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. Pt., [in part,] Carr v.
Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).
2
Amanda C. v. Christopher P., 248 W. Va. 130, 133, 887 S.E.2d 255, 258 (Ct. App. 2022);
accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review
of family court order).
As her first assignment of error, Wife asserts that the family court failed to adopt
the parties' agreements and stipulations in three ways. First, Wife argues that the parties
agreed that the equitable distribution equalizing payment would be reduced from
$152,919.42 to $152,000.00. We find that this argument lacks merit, as Wife was not
prejudiced by the family court's ruling on this issue, but, in fact, received more value. See
William M. v. W. Va. Bureau of Child Support Enf't, No. 20-0620, 2021 WL 3833867, at
*3 (W. Va. Aug. 27, 2021) (memorandum decision) (finding alleged error by family court
harmless where petitioners failed to show that they suffered prejudice or had their
substantial rights adversely affected by alleged error). Therefore, we affirm the family
court's ruling on the parties' equalizing payment and find that any error made was
harmless. Second, Wife argues that the parties agreed to equally divide all mineral rights
(including payments for leases and royalties), but the agreement was not included in the
final order. We agree. Not only does the property allocation summary reflect that the parties
agreed to evenly split mineral rights, but Husband agrees with Wife's assertion. Lastly,
regarding the income used to calculate child support, Husband, Wife, and the BCSE are in
agreement that the family court erred in its child support calculation. Therefore, with regard
to Wife's first assignment of error, we affirm the family court's ruling on the parties'
equalized payment amount. We remand the issue of mineral rights to the family court
because it was erroneously not included in the final order. With regard to the income used
to calculate child support, we reverse and remand to the family court with instructions to
recalculate child support using the agreed upon income values.
As her second assignment of error, Wife argues that the family court erroneously
failed to set a deadline for Husband to refinance the marital home. We agree. The family
court found that the most equitable method of paying Wife her share of equitable
distribution was to refinance the marital home, which would allow Wife to have access to
immediate cash. The record reflects that Husband received preapproval shortly after the
December 9, 2022, order was entered and that the delay in getting the home refinanced was
caused by Husband. Therefore, we remand to the family court with instructions to set a
reasonable deadline by which Husband must complete the refinancing of the marital home
and note that the family court is afforded wide discretion concerning structuring a
refinancing for equitable distribution purposes. See Vladimirov v. Vladimirov, No. 18-
0689, 2020 WL 201174 (W. Va. Jan. 13, 2020) (memorandum decision).
As her third assignment of error, Wife contends that the family court erred when it
failed to adopt her parenting plan and failed to attach a copy of the West Virginia Supreme
Court's required parenting plan form to the final order. We disagree. The family court's
order states, "At trial Mother sought a mid-week overnight. Father testified that the children
have become accustomed to the current plan of alternating weeks and that a mid-week
3
[overnight] was not necessary since both parties regularly attended the children's activities
and saw them throughout the week . . . ." Accordingly, the family court held that "for
consistency and stability, the parenting plan should remain on the same alternating week
schedule. . . ." The Supreme Court has consistently held that the best interest of the child
is the polar star by which all matters affecting children must be guided. Galloway v.
Galloway, 224 W. Va. 272, 275, 685 S.E.2d 245, 248 (2009) (citations omitted). Here, the
family court clearly considered the children's best interest in ruling that the parenting plan
should not change. Therefore, we affirm the family court's ruling on the parties' parenting
plan.
For her fourth assignment of error, Wife asserts that the family court did not award
spousal support consistent with the factors outlined in West Virginia Code § 48-6-301(b)
(2018)3 in four ways. First, Wife states that the family court allocated fault to her even
though Husband failed to meet his burden of proving adultery by clear and convincing
evidence. Second, Wife states that the family court failed to consider Husband's
condonation of the alleged adultery. Third, the family court found that Wife purchased a
home without the need for Husband's financial assistance. Lastly, the family court found
that Wife lives on a property that produces rental income sufficient to pay her mortgage.
We find that Wife's argument regarding spousal support lacks merit.
West Virginia Code § 48-6-301(b)(20) states that the family court shall consider
"[a]ny other factors as the court determines necessary or appropriate to consider in order
to arrive at a fair and equitable grant of spousal support . . . ." None of the twenty spousal
support factors for consideration require clear and convincing proof. It is not necessary to
prove fault (or adultery) by clear and convincing evidence when used as part of the
twentieth spousal support factor. Additionally, the Supreme Court of Appeals has
explained that as long as the family court fully considers the mandatory statutory factors
contained in West Virginia Code § 48-6-301, and the award of spousal support is within
the parameters of reasonableness, a reviewing court should not disturb the award on appeal.
Mulugeta v. Misailidis, 239 W. Va. 404, 410, 801 S.E.2d 282, 288 (2017). See also In re
Tiffany Marie S., 196 W. Va. 223, 231, 470 S.E.2d 177, 185 (1996) (A reviewing court
may not overturn a family court's finding simply because it would have decided the case
differently).
Accordingly, as to the family court's order entered on August 14, 2023, we affirm
the family court's ruling on the parties' $152,919.42 equalizing payment and find that any
error made was harmless. We remand on the issue of mineral rights with instructions to
issue an amended final order which correctly reflects the parties' agreement. With regards
to child support, we reverse and remand with instructions to issue an amended final order
which correctly reflects the parties' agreement. On the issue of the marital home refinance,
3
West Virginia Code § 48-6-301(b) provides a list of twenty factors family courts
must consider in awarding spousal support.
4
we remand to the family court with instructions to set a reasonable deadline by which
Husband must complete the refinancing process. We affirm the family court's parenting
plan ruling. Lastly, we affirm the family court's decision regarding spousal support.
Affirmed, in part, Reversed, in part, and Remanded.
ISSUED: April 22, 2024
CONCURRED IN BY:
Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear
5