Mark Canterbury v. Angela Canterbury

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
October 28, 2024
MARK CANTERBURY,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 24-ICA-158 (Fam. Ct. Cabell Cnty. Case No. FC-06-2023-D-429)

ANGELA CANTERBURY,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Mark Canterbury (“Husband”) appeals the Family Court of Cabell
County’s March 12, 2024, final divorce order which denied him any portion of Respondent
Angela Canterbury’s (“Wife”) retirement account(s) and ordered him to pay $6,000 toward
her attorney’s fees. Wife responded in favor of the family court’s decision.1 Husband filed
a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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 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, vacated, in part,
and remanded to the family court with directions as set forth herein.

Husband and Wife are the parents of two adult children. They were married on
November 11, 1994, and separated on January 2, 2023, after Husband became angry at
Wife about a differing biblical viewpoint and ordered Wife to move in with her parents
who lived next door. On February 18, 2023, Husband called Wife more than thirty times in
a row and demanded that she come home and bring her Bible because she was going to
learn to be submissive. Wife refused.

On or about February 19, 2023, Husband purchased a gun, threatened to shoot and
kill Wife, and sent her pictures of the gun and bullets he purchased. Husband told Wife on
the phone that he was going to kill her, and that God told him to do it. After receiving that
threat, Wife and her parents went to the police station to get a domestic violence protection
order (“DVPO”). While at the police station, Husband called Wife’s Father and the police

1
Mark Canterbury is represented by Tyler C. Haslam, Esq. Angela Canterbury is
represented by Amy C. Crossan, Esq.

1
officer answered the phone. Husband told the officer there was nothing he could do to stop
him from killing Wife. Husband also called the parties’ children and told them he was going
to kill their mother.

Husband was criminally charged with attempted first-degree murder of Wife,
presentment of a firearm during the commission of a felony, and two counts of harassment
for harassing Wife’s parents. He was in jail for one or two days, and, upon release,
immediately violated the DVPO. He was then charged with violation of the DVPO and
incarcerated for approximately one month. He has been ordered to home confinement since
March 2023.

Wife filed for divorce on September 13, 2023, alleging mental cruelty. A temporary
hearing was held on November 14, 2023. Husband requested to buy out Wife’s interest in
the marital home. Wife refused Husband’s offer and requested that the home be sold
because it was next door to her parents’ residence. The family court entered its temporary
order on November 28, 2023, ordering the marital home sold. After the temporary hearing,
the family court appointed a special commissioner because Husband refused to sign
paperwork to assist with the sale of the home.

The final hearing was held on January 16, 2024. At that hearing, Wife testified that
during the marriage Husband had numerous extramarital affairs, called her names,
threatened to kill her, threw things at her, damaged her personal belongings, sent
inappropriate pictures to her while at work, and had anger outbursts which lasted from days
to weeks, among other things. The family court ruled that the $39,000 equitable interest
Husband had in Wife’s retirement was awarded to Wife as lump sum alimony under West
Virginia Code § 48-6-301 (2018).

On March 1, 2024, Wife’s counsel filed a request for Husband to pay $6,000 in
attorney’s fees, which the family court granted. Wife’s attorney then filed a proposed final
order on March 4, 2024, which included Wife’s $6,000 attorney’s fees award and directed
that such money would be paid to her from the marital home sale proceeds. On March 11,
2024, Husband filed objections and a motion for reconsideration to the spousal support
award, attorney’s fees award, and the appointment of a special commissioner. Wife filed a
response to Husband’s objections on March 12, 2024. The family court entered the
proposed final order on March 12, 2024. It is from that order that Husband now appeals.

For these matters, we apply the following standard of review.

When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review
the findings of fact made by the family court for clear error, and the family
court’s application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.

2
Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).

On appeal, Husband raises two assignments of error, which we will address in turn.
First, Husband asserts that the family court erred by awarding spousal support to Wife. In
support of his argument, Husband states that the award of spousal support was not
appropriate under Banker v. Banker, 196 W. Va. 535, 474 S.E.2d 465 (1996) and its
progeny, was designed to provide for the care and maintenance of the payee, results in an
inequitable distribution, and that the family court failed to properly apply the law to the
facts of this case. We disagree.

West Virginia Code § 48-6-301 provides a list of twenty factors to be considered
when weighing an award of spousal support. In its final order, the family court stated that
it specifically considered the following facts in making a determination of spousal support:
(1) the parties’ twenty-nine-year marriage; (2) the values of the marital home and Wife’s
retirement; (3) Husband’s poor health; (4) the fact that Husband chose not to save for
retirement; (5) the fact that Husband is charged with crimes against Wife; (6) Husband’s
extreme fault in the breakdown of the marriage; and (7) the fact that Wife can never benefit
from Husband’s social security due to his actions. The Supreme Court of Appeals of West
Virginia has explained that as long as the family court fully considers the mandatory
statutory factors, and if 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). Further, our Supreme Court
of Appeals has held that “[spousal support] may not be awarded solely for the purpose of
equalizing the income between spouses.” Stone v. Stone, 200 W. Va. 15, 19, 488 S.E.2d 15,
19 (1997) (per curiam). Additionally, the Supreme Court has noted that “it is not necessary
to make specific findings as to each statutory factor recited but only those applicable and
appropriate to the case.” Banker, 196 W. Va. at 549, 474 S.E.2d at 479 (quoting Burnside
v. Burnside, 194 W. Va. 263, 275 n. 30, 460 S.E.2d 264, 276 n. 30 (1995)). Lastly, West
Virginia Code § 48-8-104 (2001) states:

In determining whether spousal support is to be awarded, or in determining
the amount of spousal support, if any, to be awarded, the court shall consider
and compare the fault or misconduct of either or both of the parties and the
effect of the fault or misconduct as a contributing factor to the deterioration
of the marital relationship.

Because the family court fully considered all applicable spousal support factors in West
Virginia Code § 48-6-301, as well as Husband’s extreme fault in the breakdown of the
marriage, we conclude that the court did not abuse its discretion in awarding lump sum
spousal support to Wife.

3
In his second assignment of error, Husband contends that an award of attorney’s
fees to Wife was not appropriate under West Virginia Code § 48-5-611 (2001)2 or the
Banker case.3 While the family court was well within its discretion to award attorney’s fees
in this case, Syllabus Point 4 of Banker states that a “wide array of factors” must be
considered when granting a request for attorney’s fees, and the Supreme Court of Appeals
listed six factors which should be considered. Here, the family court’s order contained only
one conclusory sentence addressing attorney’s fees and failed to include any analysis.
Therefore, we vacate the family court’s order only as to attorney’s fees, and remand to

2
West Virginia Code § 48-5-611 states:

(a) Costs may be awarded to either party as justice requires, and in all cases
the court, in its discretion, may require payment of costs at any time and may
suspend or withhold any order until the costs are paid.
(b) The court may compel either party to pay attorney’s fees and court costs
reasonably necessary to enable the other party to prosecute or defend the
action. An order for temporary relief awarding attorney’s fees and court costs
may be modified at any time during the pendency of the action, as the
exigencies of the case or equity and justice may require, including, but not
limited to, a modification which would require full or partial repayment of
fees and costs by a party to the action to whom or on whose behalf payment
of such fees and costs was previously ordered. If an appeal be taken or an
intention to appeal be stated, the court may further order either party to pay
attorney fees and costs on appeal.
(c) When it appears to the court that a party has incurred attorney’s fees and
costs unnecessarily because the opposing party has asserted unfounded
claims or defenses for vexatious, wanton or oppressive purposes, thereby
delaying or diverting attention from valid claims or defenses asserted in good
faith, the court may order the offending party, or his or her attorney, or both,
to pay reasonable attorney’s fees and costs to the other party.
3
Syl. Pt. 4 of Banker states:

In divorce actions, an award of attorney’s fees rests initially within the sound
discretion of the family law master and should not be disturbed on appeal
absent an abuse of discretion. In determining whether to award attorney's
fees, the family law master should consider a wide array of factors including
the party's ability to pay his or her own fee, the beneficial results obtained by
the attorney, the parties' respective financial conditions, the effect of the
attorney's fees on each party's standard of living, the degree of fault of either
party making the divorce action necessary, and the reasonableness of the
attorney's fee request.

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family court with directions to issue a new order containing sufficient analysis under
Banker.4

Accordingly, we affirm, in part, vacate, in part, and remand the family court’s March
12, 2024, final divorce order.

Affirmed, in part, Vacated, in part, and Remanded with directions.

ISSUED: October 28, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

4
Upon completing its analysis on remand, the family court may reach the same
conclusion. However, it is imperative to include sufficient analysis of the Banker factors
to facilitate meaningful appellate review.

5