P.A. v. T.A.

Decision Date15 November 2016
Docket NumberNo. 15-0506,15-0506
Parties P.A., Respondent Below, Petitioner, v. T.A., Petitioner Below, Respondent.
CourtWest Virginia Supreme Court

James M. Cagle, Charleston, West Virginia, Attorney for the Petitioner.

Lyne Ranson, Charleston, West Virginia, Attorney for the Respondent.

Davis, Justice:

P.A. ("Husband"),1 respondent below, appeals from an order entered May 15, 2015, in the Circuit Court of Kanawha County. By that order, the circuit court affirmed various rulings made by the family court. On appeal, Husband claims error in the classification of certain property as marital property, in the calculation of his gambling losses, in denying him credit for payments he made during the parties' separation, and in ordering him to pay one-half of the attorney's fees incurred by petitioner below, T.A. ("Wife"). Wife has filed cross-assignments of error challenging the calculation of amounts due her on one of the marital assets and the failure to award her a cash sum to equalize the distribution of marital assets. Having considered the parties' briefs and oral arguments, as well as the relevant law, we find no error. Therefore, we affirm the May 15, 2015, order of the Circuit Court of Kanawha County.


Husband and Wife were married on September 29, 1994.2 During the course of the marriage, in 1999, the couple acquired an interest in Komax, LLC ("Komax"), a business equipment company of which Husband was a founding partner.3 In addition to being a partner in Komax, Husband also was responsible for overseeing the service department.

Husband and Wife separated in May of 2011, and Wife petitioned for divorce during that same month.4 Sometime during the period between their separation and divorce, Husband's employment and partnership in Komax were both terminated by a vote of the remaining partners. The record demonstrates that the business relationship was terminated as a result of Husband's inattentiveness to the business and continued problems resulting from his frequent gambling, including his practice of using his Komax credit card to obtain cash advances while at a local casino.5

It is undisputed that the value of the partnership interest in Komax, which was $768,240.00 at the time of the parties' separation, had increased to $1,408,438 at the time of Husband's termination from the company. In addition, the Komax operating agreement contained a clause stating that a partner who is terminated from the company involuntarily shall continue to share in profits and losses for sixty days following the meeting at which the partner is voted out. In accordance with this provision, Komax paid $102,905 in profits for the sixty-day period. The remaining partners of Komax also agreed to buy the parties' one-third share of a beach condominium that had been jointly purchased by the Komax partners approximately one year before Husband and Wife separated. The partners agreed on a price of $90,000 payable in three installments of $30,000 each.

Husband and Wife were granted a divorce by final order of the family court on March 11, 2014. Pertinent to this appeal, the order awarded Wife one-half of the value of the parties' share of Komax at the time of Husband's termination from the company and also divided the value of the beach condominium equally between the two. Although Husband had requested credit for his payments of marital expenses during the pendency of the divorce, the family court declined to award such credit. The grounds for the family court's denial related to Husband's habitual gambling, which, the family court found, resulted in Husband dissipating marital funds by an amount of at least $160,620. This amount was equal to documented gambling losses Husband incurred at one casino from the year 2008 until the parties' separation in May 2011. Thereafter, by order entered on August 18, 2014, the family court ordered Husband to pay Wife $50,689.05 as one-half of her attorney's fees, and ordered monthly payments to Wife in light of Husband's failure to pay Wife her share of $60,000 in installment payments he had received from Komax for the beach condominium.

Husband filed a timely appeal of the family court's orders in the Circuit Court of Kanawha County. By order entered October 10, 2014, the circuit court denied the appeal, in part, and remanded the case to the family court for consideration of an apparent mathematical error.6 The family court entered its final order on remand on March 9, 2015. Following a denial of Wife's motion to reconsider the March 9, 2105, order, Husband filed a petition for appeal in the circuit court and Wife filed a cross petition for appeal. The circuit court, finding no error, summarily denied both by order entered May 15, 2015. The instant appeal, and Wife's cross-assignments of error, followed.


Our review of this matter is well established:

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). Accord W. Va. Code § 51–2A–15(b) (2001) (Repl. Vol. 2016). With the foregoing standards as our guide, we consider the issues raised in this appeal.

A. Determination of Marital Property

Husband first argues that the circuit court erred in determining that certain assets were marital property. Specifically, Husband argues that the circuit court erred in finding three specific assets were solely marital property: (1) the increase in value of Komax during the period between the parties' separation and divorce; (2) sixty-days worth of profits paid following Husband's termination from Komax; and (3) the total value of the one-third ownership of the beach condominium. We address each of these assets in turn.

1. Komax. The circuit court affirmed the family court's ruling that found the increase in value of the Komax partnership between the time of the parties' separation and Husband's termination was marital property insofar as the partnership itself was marital property and the increase in value resulted from market forces that were beyond Husband's control and from the efforts of his partners with no contribution from him.7 In the alternative, the circuit court found that valuing the partnership as of the date of Husband's termination from Komax provided a more equitable result pursuant to W. Va. Code § 48–7–104(1) (2001) (Repl. Vol. 2015) due to Husband's dissipation of marital funds.8

Husband argues that it was error to value Komax as of the date of his termination from the company. Asserting that the lower courts ignored the fact that West Virginia is a "dual property" jurisdiction, he contends that the date of the parties' separation is the proper date upon which to value the company as a marital asset, rendering the increase in value, which occurred after that date, separate property belonging solely to him. Husband further contends that the circuit court's factual finding that the increase in value of Komax was a passive increase is "utter nonsense." He contends that the increase was due to the post-separation efforts of "people working together [to] solicit and bid for the contracts" that led to the increased value of the company. Although he contends that his activity of running the service department contributed to the company's growth during the time following the parties' separation, and he asserts that the family court's findings to the contrary are "against the weight of the evidence," he directs this court to no portion of the record to support his assertion. As to the alternative reasoning by the family court that valuing the partnership as of the date of Husband's termination from Komax provided a more equitable result pursuant to W. Va. Code § 48–7–104(1), Husband asserts that the resulting division is not equitable insofar as it provides the wife with compensation over and above her portion of the amount that Husband was found to have dissipated from the marital estate.

Wife responds that the partnership in Komax was obtained during the marriage and is, therefore, clearly marital property. She points out that, pursuant to W. Va. Code § 48–7–104, the family court was not limited to using the value of the business as of the date of the parties' separation, but may consider a later date when it is more appropriate for attaining an equitable result. She reasons further that the partnership interest in Komax did not cease to be marital property simply because the parties separated. With regard to husband's active participation toward increasing the value of the company, Wife directs this Court's attention to the testimony of one of the founding partners of Komax, who stated that, after the date of the parties' separation, Husband provided no contribution to the business that would increase its value.

We find no error in the manner in which the value of the parties' interest in Komax was resolved below. The real issue here involves the classification and valuation of property in connection with a divorce. In this regard, it has been observed that

it is important to draw a clear distinction between [the] date on which the parties' assets are classified and the date on which they are valued —the date of valuation . These dates appear at first to be similar, but the policies behind them are very different. The date of classification should ideally be set at the actual termination point of the marital partnership, so that assets which are not actual fruits of the parties' joint efforts are not included in the marital estate. The date of valuation, by contrast, should ideally be set as close to trial as

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