Mulugeta v. Misailidis

Decision Date13 June 2017
Docket NumberNo. 16-0494,16-0494
Citation801 S.E.2d 282
CourtWest Virginia Supreme Court
Parties Yeshiareg MULUGETA, Respondent Below, Petitioner v. Dimitri MISAILIDIS, Petitioner Below, Respondent

Gregory A. Bailey, Esq., Arnold & Bailey, PLLC, Charles Town, West Virginia, Counsel for Petitioner

Cinda L. Scales, Esq., Scales Law Office, Martinsburg, West Virginia, Counsel for Respondent

WORKMAN, Justice:

This divorce action is before the Court upon the appeal of Petitioner Yeshiareg Mulugeta (hereinafter "Wife") from the April 15, 2016, order of the Circuit Court of Berkeley County, West Virginia, which affirmed the final order of the family court. On appeal, Wife contends the court abused its discretion with regard to the permanent spousal support award of $4,000.00 per month. She claims this figure was "grossly inadequate considering the enormous disparity in income" between the parties. Wife also disputes the court's equitable distribution findings, specifically, classification of certain retirement accounts of Respondent Dr. Dimitri Misailidis (hereinafter "Husband") as pre-marital, and classification of certain expenditures he made as marital expenses.

For the reasons set forth below, we affirm the circuit court's order with regard to the equitable distribution findings, with the exception of the finding on Husband's premarital portion of his 401K retirement account; we reverse that finding because the unrefuted evidence showed $249,685.00 of that account was premarital. We also reverse the award of spousal support, and remand this case to the circuit court with directions to enter an order remanding the case to the family court for further proceedings consistent with this opinion.


Husband and Wife hold medical degrees from a University in Greece. Husband is a principal with Martinsburg Radiology Associates, Inc. Wife has never worked outside the home. They were first married in 1982, and that marriage ended in 1990. Following their first divorce, Husband paid rehabilitative spousal support to Wife for five years, and financed Wife's efforts to obtain her Master's Degree in Public Health from George Washington University. The parties remarried in 2000, and their second marriage lasted fourteen years.

The parties have two adult children, and Husband has an adult child from another relationship. The parties lived comfortably in Martinsburg, West Virginia, on Husband's annual salary of approximately $500,000.00. The parties acquired real estate (the marital residence and three condominiums in Maryland), retirement accounts, automobiles, and incurred little debt.

Economic comfort, however, did not make for a successful marriage. They last lived together on or about August 28, 2014. Wife moved to one of the condominiums the parties owned in Maryland. Husband claims that at the time she moved out, she advised him that she was doing so to be close to her medical treatment.1 However, shortly thereafter Wife informed him that she no longer wanted to be married.

Husband filed for divorce in November 2014, on the grounds of irreconcilable differences. The family court held its final hearing the following year. Generally, the parties agreed upon the values of their assets, which approximate $4 million. On its Marital Property Allocation/Distribution of Property spreadsheet, the family court arrived at a net marital estate of over $2.1 million. This figure, however, does not take into consideration an Ameritrade stock account of $1.6 million that the parties divided equally, and the marital residence. The parties agreed to sell the marital home, and split those proceeds.2 The family court granted the divorce, distributed the marital property,3 and awarded Wife $4,000.00 a month in permanent spousal support.

When the family court entered its order, Wife was sixty-two years old, and Husband was sixty-three years old. Looking ahead to Husband's eventual retirement, the family court determined that his retirement would constitute a significant change in circumstances, subjecting the final order to modification.

Wife appealed portions of the family court's ruling to the circuit court, and it affirmed. The circuit court stated: "The conclusions of a trial judge, sitting without a jury, on questions of fact are entitled to peculiar weight and consideration because the judge is in the best position to determine the credibility of the witnesses." It concluded that the factual determinations made by the family court were not clearly erroneous, and it did not abuse its discretion in applying the law.

On appeal to this Court, Wife raises the same assignments of error she raised below. We will discuss the relevant facts in more detail below as they relate to our resolutions of the issues. Specifically, Wife contends the spousal support award was "grossly inadequate" because of the disparity of the parties' incomes. Wife also asks us to overturn four factual determinations that form the foundation of the family court's equitable distribution order. She contends the family court improperly classified an Individual Retirement Account (IRA), worth $76,363.00, and $271,115.00 of Husband's 401K,4 as Husband's premarital property. She also contends the family court improperly classified two payments Husband made from the marital bank account, after the parties separated but before the divorce action was filed, as marital expenditures: $33,700.00 to a family friend for the care of Husband's ailing parents; and $25,000.00 to the mother of his other child for that child's college expenses. We address these issues below.


This Court has held that:

"In reviewing challenges to findings made by a family court judge that also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review." Syl. Pt. 2, Lucas v. Lucas, 215 W.Va. 1, 592 S.E.2d 646 (2003).

Syl. Pt. 1, Conrad v. Conrad , 216 W.Va. 696, 612 S.E.2d 772 (2005).

With regard to spousal support, this Court has held: "Questions relating to alimony ... are within the sound discretion of the court and its action with respect to such matter[ ] 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).

Furthermore, with regard to the family court's factual findings that underlie its equitable distribution order, this Court will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous. See e.g. , Gordon v. Gordon, 174 Md.App. 583, 923 A.2d 149 (2007) (observing that identification of marital and non-marital property is question of fact and appellate court will not disturb factual finding unless it is clearly erroneous). Generally, if there is competent evidence to support factual findings, this Court will not reverse those findings as clearly erroneous. See Syl. Pt. 3, Estate of Bossio v. Bossio , 237 W.Va. 130, 785 S.E.2d 836 (2016) (" ‘A finding 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 re Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).").5 It is within the sole province of the family court, as fact-finder, to decide issues of credibility, and this Court will not disturb those determinations.6 Even where testimony is uncontroverted, a fact-finder is free to disregard such testimony if it finds the evidence self-serving, and not credible.

A. Spousal Support

In West Virginia Code § 48-6-301(b) (2015), the Legislature set forth a comprehensive list of factors that the family court "shall" consider in determining the amount of spousal support. These factors include:

(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties actually lived together as husband and wife;
(3) The present employment income and other recurring earnings of each party from any source;
(4) The income-earning abilities of each of the parties, based upon such factors as educational background, training, employment skills, work experience, length of absence from the job market and custodial responsibilities for children;
(5) The distribution of marital property to be made under the terms of a separation agreement or by the court under the provisions of article seven of this chapter, insofar as the distribution affects or will affect the earnings of the parties and their ability to pay or their need to receive spousal support, child support or separate maintenance: Provided, That for the purposes of determining a spouse's ability to pay spousal support, the court may not consider the income generated by property allocated to the payor spouse in connection with the division of marital property unless the court makes specific findings that a failure to consider income from the allocated property would result in substantial inequity;
(6) The ages and the physical, mental and emotional condition of each party;
(7) The educational qualifications of each party;
(8) Whether either party has foregone or postponed economic, education or employment opportunities during the course of the marriage;
(9) The standard of living established during the marriage;
(10) The likelihood that the party seeking spousal support, child support or

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