Robert Gene Hitt II v. Kimberly Fae Seabolt (Judge White, concurring in part and dissenting in part)

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

ROBERT GENE HITT II,
Petitioner Below, Petitioner

v.) No. 25-ICA-220 (Fam. Ct. Nicholas Cnty. Case No. FC-34-2023-D-160)
FILED
KIMBERLY FAE SEABOLT,
Respondent Below, Respondent April 29, 2026
released at 3:00 p.m.
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

MEMORANDUM DECISION

Petitioner Robert Gene Hitt II (“Husband”) appeals a May 2, 2025, final divorce
order entered by the Family Court of Nicholas County holding that Husband’s separate
funds deposited into a new, jointly titled bank account (“account 6921”) constituted marital
property to be divided equally between the parties. Kimberly Fae Seabolt (“Wife”)
responded in support of the family court’s decision. Husband did not file a reply.1

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ oral and written 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. For the reasons set forth below, a memorandum decision
affirming, in part, and vacating, in part, the family court’s order and remanding the matter
for further proceedings consistent with this decision is appropriate under Rule 21 of the
West Virginia Rules of Appellate Procedure.

Husband and Wife were married on August 4, 2022, and separated on October 15,
2023. Husband is sixty-one years old, and Wife is sixty years old. Prior to the marriage,
Husband started a business operating as Metal Craft, Inc. (“Metal Craft”). Husband was
the president and sole shareholder of Metal Craft, which was classified by the family court
as separate property.2 In 2023, Wife became vice president and secretary of Metal Craft.3

1
Husband is represented by Tim C. Carrico, Esq. Wife is represented by Amber R.
Hinkle, Esq.
2
Husband started Metal Craft in 1999 and sold the business operations to his
daughter pursuant to an August 1, 2023, agreement.
3
By email dated May 31, 2023, to Husband’s attorney, Wife submitted her
resignation as Metal Craft’s vice president and secretary, but she continued to perform
business related duties until sometime in October of 2023.

1
On September 22, 2023, Husband transferred $400,000 from a Metal Craft business
account to account 6921, a newly opened personal bank account titled in Husband’s name
with Wife named as the payable on death (“POD”) beneficiary. On September 27, 2023,
Husband changed the ownership designation on account 6921 by adding Wife as a joint
owner with the right of survivorship. On October 4, 2023, Husband wired an additional
$662,306.35 into account 6921, which were proceeds from the auction liquidating Metal
Craft’s equipment, making the balance on account 6921 of $1,062,306.35 at the time.

On October 15, 2023, after an argument with Husband, Wife stayed overnight in a
hotel and did not return to the marital home. On October 16, 2023, and October 20, 2023,
without informing Husband, Wife transferred a total of $641,900 from account 6921 to
three of her separately owned bank accounts. Wife spent the money transferred from
account 6921 in various ways. For example, Wife purchased a home (titled solely in Wife’s
name) in Nicholas County, West Virginia, paid off the remaining mortgage debt on her
separately titled South Carolina townhouse, and added money to a separate money market
account.

Husband filed a petition for divorce on November 16, 2023, and Wife filed her
answer on November 30, 2023. Wife did not disclose the money she withdrew from
account 6921 in her financial statement. The family court held a temporary hearing on
January 8, 2024, at which Husband argued that the money Wife withdrew from account
6921 on October 16, 2023, and October 20, 2023, was a Metal Craft asset, not a marital
asset. Wife countered that the account funds were marital property, and that she took the
one-half share to which she was entitled. Further, the parties disputed the date of separation.
Husband asserted that the date of separation was October 15, 2023, and Wife argued it was
October 16, 2023.

After the temporary hearing, the family court ordered the parties to open a new
Metal Craft account and ordered Wife to deposit $550,000 of the $641,900 into the newly
opened account pending the final order. However, Wife had not disclosed to the family
court that she had spent much of the money she had withdrawn and that it would not be
possible for her to deposit $550,000 into this newly opened account.

On January 12, 2024, Husband filed a motion for an expedited status hearing.
Thereafter, the family court held a status hearing on January 22, 2024, during which Wife
informed the court that she had spent over $500,000 of the $641,900. As such, Wife
asserted that she could not deposit $550,000 into the new Metal Craft bank account as
previously ordered. As reflected in the court’s January 26, 2024, temporary order, the court
ordered Wife to deposit $100,000 into a new Metal Craft account which was to serve as an
escrow account.

The family court conducted the final hearing over three days, hearing the testimony
of the parties and other duly called witnesses, admitting documentary evidence from both

2
parties, and hearing arguments of counsel. Husband argued that account 6921 was a
business account and that he had opened it for the benefit of Metal Craft, to receive and to
hold Metal Craft funds to protect them from his daughter, son-in-law, and creditors during
the pendency of the sale of the business. Husband continued to argue that the $641,900 was
his separate property because it was a Metal Craft asset. Husband asserted that Wife’s
transfers from account 6921 to her separate bank accounts constituted embezzlement of
Metal Craft’s funds and that Wife had committed fraud and breached her fiduciary duties
as an officer of Metal Craft. Wife stated that she believed that Metal Craft was being
liquidated for their retirement and that Metal Craft’s business operations were “winding
down.” Thus, she argued that the funds in account 6921 constituted marital property.
Husband argued that he was not winding down the business and that he intended to open a
new business with the proceeds.

In its final order entered May 2, 2025, the family court determined that the parties’
date of separation was October 15, 2023, and found that Husband failed to rebut the
presumption that he had gifted the funds to the marriage; therefore, account 6921 was
marital property subject to equitable distribution. Relying on West Virginia Code § 31A-4-
33, Smith v. Smith, 187 W. Va. 645, 420 S.E.2d 916 (1992), and Whiting v. Whiting, 183 W.
Va. 451, 396 S.E.2d 413 (1990), the court specifically found that Husband made account
6921 marital property when he retitled the account as a joint account adding Wife as a joint
owner.

As to Husband’s argument that he opened account 6921 as a Metal Craft account
for the sole benefit of Metal Craft, the court found that Husband “fails to recognize the
overwhelming evidence otherwise.” Further, the court found based upon the evidence
presented, specifically the testimony of Husband’s tax attorney, that despite Husband’s
assertions to the contrary, Metal Craft was winding down, and the auction was part of that
process. Accordingly, the court found that “[a] winding up supports a finding that the
Husband intended to accumulate the corporate assets liquidated to cash by the auction into
cash held in Husband’s personal name. It is reasonable to find that [Husband] willingly
shared the liquidated assets with the Wife.”

Moreover, the court found that the bank’s account manager who met with Husband
and Wife on September 27, 2023, informed Husband that account 6921 was not a Metal
Craft corporate account, and that Husband made no attempt to change account 6921 to a
Metal Craft business account. Instead, Husband added Wife to account 6921 as joint owner.
The family court also found that there was no evidence of Wife encouraging or enticing
Husband to change the accounts to jointly owned or to add her name to account 6921 with
an intent to defraud Husband but rather that Husband voluntarily changed the ownership
of the accounts.

Lastly, the court determined that Wife would have to pay Husband $31,001 to
accomplish equal division of marital property. The family court order did not address or

3
consider whether deviation from equal division of marital property would be appropriate,
which Husband raised as an alternative argument should the family court find that funds
deposited to account 6921 constituted marital property. The court ordered the $31,001 be
paid to Husband from the escrow account and that the remaining balance in the escrow
account be released to Wife. It is from this order that Husband now appeals.

When reviewing the order of a family court, 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.

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).

Husband raises two assignments of error on appeal. First, Husband argues that the
family court erred when it found that Husband failed to rebut the presumption that Husband
intended to gift the funds in account 6921 to the marriage and that it was error for the family
court to find that the funds constituted marital property subject to equitable distribution.4
We disagree. The Supreme Court of Appeals of West Virginia (“SCAWV”) has held that:

Where, during the course of the marriage, one spouse transfers title to his or
her separate property into the joint names of both spouses, a presumption that
the transferring spouse intended to make a gift of the property to the marital
estate is consistent with the principles underlying our equitable distribution
statute.

Syl. Pt. 4, Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990). The SCAWV further
explained that taking joint title to separate property creates a “rebuttable presumption of
gift to the marital estate” and this “presumption may be overcome by a showing that the
transferring spouse did not intend to transfer the property to joint ownership or was induced
to do so by fraud, coercion, duress, or deception.” Id. at 459, 396 S.E.2d at 421 (citations
and footnote omitted).

4
Husband references other bank accounts in his brief. However, Husband limited
his assignments of error and prayer for relief to the family court’s rulings regarding account
6921. Accordingly, we will not directly address the other bank accounts.

4
Later, in Burnside v. Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995), the SCAWV
“reaffirm[ed]” its “belief in the wisdom of Whiting,” and “explicitly adopt[ed] the marital
gift presumption established therein . . . This presumption is rebuttable only by clear,
cogent, and convincing evidence that a gift was not intended or that the transaction under
scrutiny was the result of coercion, duress, or deception.” Id. at 269, 460 S.E.2d at 270.
However, the SCAWV also acknowledged that “there are no bright-line rules in
determining what type of evidence is sufficient to rebut the presumption . . .
[C]ircumstances existing at the time of the transfer indicative of the owner’s intention are
considered crucial by the courts in determining whether a gift was made to the marital
estate.” Id. at 272, 460 S.E.2d at 273.
The family court found that while it “may have been Husband’s intention” to open
account 6921for the benefit of Metal Craft, there was insufficient evidence to overcome
the presumption of a gift to the marriage when Husband added Wife as a co-owner of the
bank account.5 Husband has not however established clear error and we defer to the family
court’s factual determination and discretion in applying the facts to the law. Accordingly,
we affirm the family court’s finding that Husband failed to rebut the presumption that the
funds transferred into account 6921 were a gift to the marital estate constituting marital
property.
Second, Husband presents an alternative argument that, even if the evidence does
not support that the presumption of a gift is rebutted, this Court should find that the family
court erred when it did not alter the division of marital property pursuant to West Virginia
Code § 48-7-103(1)(B).6 We find merit in this argument insofar as the family court’s order
does not address this issue. West Virginia Code § 48-7-103(1)(B) provides in part that:

5
In determining whether the presumption of gift to the marriage was rebutted, we
may have weighed the evidence differently and arrived at a different conclusion given the
record below. However, we recognize the SCAWV’s high standard of proof needed to
rebut the presumption of gift to the marriage in such circumstances. Moreover, we are
mindful of deference afforded to the family court’s fact finding incorporated into the
standard of review on appeal.
6
While Husband’s alternative argument could have been more thoroughly presented
below and on appeal, we find that Husband preserved this argument below by notifying
the family court on multiple occasions that he had an alternative argument and included it
in his proposed order to the family court. The hearings below were predominately
conducted by the family court to gather evidence and take testimony, not to hear legal
arguments. The record reflects that Husband worked within the framework of the hearings
established by the family court to express and preserve his argument. Husband again
presented the issue on appeal by setting forth a separate assignment of error supported by
argument and citation to statutory and case law. In our view, the dissent mistakenly asserts
that the second assignment of error was not preserved in the record and would have this

5
In the absence of a valid agreement, the court shall presume that all marital
property is to be divided equally between the parties, but may alter this
distribution, without regard to any attribution of fault to either party which
may be alleged or proved in the course of the action, after a consideration of
the following:
(1) The extent to which each party has contributed to the acquisition,
preservation and maintenance, or increase in value of marital property by
monetary contributions, including, but not limited to:
…
(B) Funds which are separate property.

In Stuck v. Stuck, 218 W. Va. 605, 609, 625 S.E.2d 367, 371 (2005) (per curiam), the
SCAWV reiterated that equitable distribution is a three-step process, which includes: (1)
classifying the parties’ property as marital or nonmarital; (2) valuing the marital assets; and
(3) dividing the marital estate in accordance with the principles in West Virginia Code §
48-7-103. In Stuck, the SCAWV remanded the family court’s order, holding that it failed
to complete the third step of the equitable distribution process. Id. The SCAWV determined
that since the petitioner raised the third step of equitable distribution as an issue, the family
court was required to address it.
In the present case, Husband raised the third step of equitable distribution as in issue
below and on appeal offering evidence supporting his claim. Accordingly, after the family
court determined that account 6921 was marital property subject to equitable distribution,
the family court was then required to address West Virginia Code § 48-7-103 to determine
whether the equal division presumption should be altered considering that all funds
deposited to account 6921 were Husband’s separate property prior to the account being
retitled just weeks before such separation and that such funds were never used for marital
purposes. The May 2, 2025, order fails to address this statutory presumption and analyze
whether it is rebutted considering the source of funds deposited in account 6921 and the
source of other property that constituted marital property during the short duration of the
marriage.

Court on its own accord dismiss consideration of Husband’s second assignment of error.
Further, the lengthy dissent fails to acknowledge that Wife did not argue that Husband
waived or abandoned his second assignment of error in her brief or at oral argument. We
are mindful of our responsibility to issue a written decision on the merits in properly filed
appeals within our jurisdiction. See W. Va. Code § 51-11-9(a) (2021).

6
Accordingly, based on our deferential standard of review, we affirm the family
court’s holding that Husband failed to rebut the caselaw derived presumption of a marital
gift as to account 6921, but we vacate the May 2, 2025, order and remand this matter for
an analysis pursuant to Stuck v. Stuck and West Virginia Code § 48-7-103 to consider in a
new order whether the statutory presumption of equal division of marital property is
rebutted by a preponderance of the evidence considering the entirety of the unique facts of
this case.

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

ISSUED: April 29, 2026

CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Charles O. Lorensen

CONCURRING, IN PART, AND DISSENTING, IN PART:

Judge S. Ryan White

WHITE, J., concurring, in part, and dissenting, in part:

I concur with the majority’s decision to affirm the family court’s order determining
that Husband failed to rebut the presumption that he gifted the funds previously held in
account 6921 to the marriage by clear, cogent, and convincing evidence. Therefore, the
funds previously held in account 6921 were marital property subject to equitable
distribution, and not Husband’s separate property. However, I dissent from the majority’s
decision to vacate the family court’s order regarding equitable distribution and to remand
to the family court to conduct an analysis as to West Virginia Code § 48-7-103(1)(B)
because Husband did not properly preserve that issue for appellate review. Accordingly, I
would affirm the family court’s final order in its entirety.

The Supreme Court of Appeals of West Virginia (“SCAWV”) has held that it “will
not consider an error which is not properly preserved in the record nor apparent on the face
of the record.” Syl. Pt. 4, State v. Browning, 199 W. Va. 417, 485 S.E.2d 1 (1997). Further,
in State ex rel. Cooper v. Caperton, 196 W. Va. 208, 216, 470 S.E.2d 162, 170 (1996), the
SCAWV explained that,
To preserve an issue for appellate review, a party must articulate it with such
sufficient distinctiveness to alert a circuit court to the nature of the claimed

7
defect. The rule in West Virginia is that parties must speak clearly in the
circuit court, on pain that, if they forget their lines, they will likely be bound
forever to hold their peace. See State v. Miller, 194 W. Va. 3, 17, 459 S.E.2d
114, 128 (1995). The forfeiture rule that we apply today fosters worthwhile
systemic ends and courts will be the losers if we permit the rule to be easily
evaded. It must be emphasized that the contours for appeal are shaped at the
circuit court level by setting forth with particularity and at the appropriate
time the legal ground upon which the parties intend to rely.
Id. See also State v. Costello, 245 W. Va. 19, 26, 857 S.E.2d 51, 58 (2021) (“Indeed, if any
principle is settled in this jurisdiction, it is that, absent the most extraordinary
circumstances, legal theories not raised properly in the lower court cannot be broached for
the first time on appeal. We have invoked this principle with a near religious fervor.”);
Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 349 n. 20, 524 S.E.2d 688, 704 n. 20
(1999) (“Our general rule is that nonjurisdictional questions not raised at the circuit court
level, but raised for the first time on appeal, will not be considered.” (citing Whitlow v. Bd.
of Educ. of Kanawha Cnty., 190 W. Va. 223, 226, 438 S.E.2d 15, 18 (1993))). This Court
also follows this general rule. See PITA, LLC v. Segal, 249 W. Va. 26, 40, 894 S.E.2d 379,
393 (Ct. App. 2023) (noting that as a general rule, an appellate court will not consider an
issue raised for the first time on appeal);Phebus v. Smith, No. 25-ICA-240, 2026 WL
688262 at *3 (W. Va. Ct. App. Feb. 27, 2026) (memorandum decision) (“Generally, we will
not consider nonjurisdictional questions raised for the first time on appeal.” (citing Whitlow
v. Bd. of Educ. of Kanawha Cnty., 190 W. Va. 223, 226, 438 S.E.2d 15, 18 (1993))).
The record on appeal demonstrates that Husband did not sufficiently articulate the
argument that he rebutted the statutory presumption that courts shall divide marital property
equally between the parties pursuant to West Virginia Code § 48-7-103, or the argument
that the facts warranted an altered distribution of the marital estate as West Virginia Code
§ 48-7-103(1)(B) permits. Accordingly, Husband did not preserve those issues for appellate
review; thus, this Court should not address them on appeal.

Contrary to Husband’s argument, the record establishes that the parties argued their
respective positions on various issues at the final hearing; however, they concentrated on
the issue of whether the funds previously held in account 6921 were Husband’s separate
property or marital property subject to equitable distribution. Husband asserted that those
funds were his separate property because Metal Craft was his separate property and account
6921 was a Metal Craft, Inc. (“Metal Craft”) business account. He also denied gifting those
funds to the marriage. Conversely, Wife argued that those funds were marital property
subject to equitable distribution because Husband gifted them to the marriage when he
added her name to account 6921, a personal checking account, making her a joint owner
with the right of survivorship.

8
Only after these lengthy arguments and pointed questions from the family court
judge suggesting that the evidence did not fully support Husband’s arguments that the funds
in account 6921 were his separate property, did Husband, by counsel, state, “[Husband]
does have a secondary argument,” and explained, “[r]ebutting a presumption of a 50/50
split on the account and—Because 100% of the monies going into that account came from
a separate property.” That was the full extent of Husband’s “secondary argument” during
the hearing. Thereafter, the parties resumed arguing whether the funds in account 6921
were marital or separate property.

Near the conclusion of the hearing, the family court instructed the parties to submit
memoranda of law addressing the following issues: whether the funds held in account 6921
were marital or separate property; the statutory presumption that those funds were marital
and whether Husband rebutted that presumption; and, the statutory presumption that a
jointly titled bank account is the property of those named as owners on the bank signature
card pursuant to West Virginia Code § 31A-4-33, and whether Husband rebutted that
presumption.7 However, by the end of the hearing, the family court had directed the parties
to address all of their arguments in their memoranda, citing legal authority.

Husband, however, did not submit a memorandum of law. Instead, he submitted a
“corrected final memorandum divorce order” (“memorandum order”) largely drafted as a
proposed order. Husband included some narrative sections in his memorandum order
discussing the facts of the case, but other than including a section in which he quoted the
full text of West Virginia Code §§ 48-7-101-103, and 48-7-105-106, and some of the
syllabus points in Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990), Burnside v.
Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995), and Kanawha Valley Bank v. Friend,
162 W. Va. 925, 253 S.E.2d 528 (1979), Husband did not include any discussion of the law
or legal analysis. Importantly, Husband did not argue that he rebutted the presumption that
family courts are to divide marital property equally or that the court should alter the
distribution of the marital assets. Because Husband drafted his memorandum order in the
form of a proposed order, he drafted it stating that the family court accepted and adopted
his primary arguments—that the funds previously held in account 6921 were his separate

7
The court’s December 20, 2024, Order Scheduling Written Submissions of Issues
states, in part, that the court “directed counsel for the parties to prepare written proposed
equitable distribution plans reflecting [their] respective positions,” and “granted the parties
leave to submit written [memoranda] of law with respect to the burden of proof required
of the petitioner to overcome the statutory presumption that a jointly titled bank account is
the property of the persons named as owner on the bank signature card . . . as opposed to a
business account owned by [Metal Craft] . . . a corporate entity contended by the petitioner
to be his separate property.” The court further ordered that “the parties may submit
proposed findings of fact and conclusions of law if they so desire.”

9
property, therefore, not subject to equitable distribution, and that he did not gift those funds
to the marriage. Other than including the full text of West Virginia Code § 48-7-103 in his
memorandum order, Husband mentions West Virginia Code § 48-7-103(1)(B) once, stating
as follows:

The Court further notes that under West Virginia Code [§] 48-7-103(1)(B)[,]
the Court may alter a 50/50 split on a marital asset after consideration of the
fact that the asset was acquired by funds which are separate property. It is
undisputed that Truist Account 6921 was funded by Metal Craft, Inc., funds
which [are] his separate property. In addition, Wife’s name was only on the
account 6921 for (19) days before she removed said monies. However,
further analysis is not required under this statute in light of the Court’s
FINDING that the $641,900 removed by Wife from account 6921 was
Husband’s separate property.

Given this, Husband acknowledged the existence of West Virginia Code § 48-7-103(1)(B),
but he did not articulate an argument that this statute applied or that the court should apply
it in the case. Therefore, Husband did not raise a “secondary argument” in his post-hearing
submission below.8

Husband now argues on appeal that if this Court concludes that the family court did
not err in finding that he failed to meet his burden of rebutting the presumption that he
gifted the funds in account 6921 to the marriage, which this Court has done, then the family
court erred by “rejecting” his secondary argument—that he rebutted the presumption of an
equal division of the funds in account 6921 because those funds were derived from Metal
Craft, Inc., his separate property, pursuant to West Virginia Code § 48-7-103(1)(B). Yet
Husband did not raise that argument below, either during the final hearing or in his
memorandum order.9

8
Additionally, Husband did not file a motion to reconsider pursuant to Rule 25 of
the Rules of Practice and Procedure for Family Court and West Virginia Code § 51-2A-10
to bring to the family court’s attention his belief that the family court erred by not
exercising its discretionary authority to alter distribution of the marital estate pursuant to
West Virginia Code § 48-7-103(1)(B). While a motion for reconsideration is not necessary
to preserve an issue for appellate review, such a motion would have clearly provided the
family court notice that Husband sought such a determination.
9
West Virginia Code § 48-7-103 requires family courts to “presume that all marital
property is to be divided equally between the parties,” but it grants family courts discretion
to alter that presumed equal distribution after considering factors including, “the extent to
which each party has contributed to the acquisition, preservation and maintenance, or
increase in value of marital property by monetary contributions, including, but not limited

10
Lastly, the majority’s reliance on Stuck v. Stuck, 218 W. Va. 605, 625 S.E.2d 367
(2005) is misplaced. In Stuck, the family court failed to complete the third step of equitable
distribution by refusing to rule on the equitable distribution of the parties’ residential
property. That order stated, in part, “[t]his court, under the circumstances and controlling
law stated, does specially not rule on the equitable aspects of the transfer,” but concluded
“the residential real estate is owned by the parties as joint tenants.” The SCAWV found
this order inadequate because the family court refused to issue a ruling dividing an asset,
the third step of equitable distribution. The SCAWV further found that the family court’s
order was neither detailed nor specific enough to meet the requirement that “the court shall
set out in detail its findings of fact and conclusions of law, and the reasons for dividing the
property in the manner it adopted.” See W. Va. Code § 48-7-106 (2001); Syl. Pt. 5, Burnside
v. Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995).
The order on appeal demonstrates that the family court considered the evidence
presented at the three-day final hearing and the parties’ post-hearing submissions, then
made detailed, specific findings of fact and conclusions of law addressing each of the three
steps of equitable distribution and explained its reasoning for dividing the property as it
did. Notably, this order reflects that the court assessed the parties’ credibility which was a
factor in its decision. As stated in the order, the family court classified the parties’ property
as either marital or separate, valued the marital assets, and divided the marital estate
between the parties pursuant to West Virginia Code § 48-7-103. Accordingly, this Court
should not disturb the order of the family court.
For these reasons, I respectfully concur, in part, and dissent, in part.

to . . . funds which are separate property.” W. Va. Code § 48-7-103(1)(B). Accordingly,
even if Husband had properly raised this argument before the family court, West Virginia
Code § 48-7-103 does not require the family court to alter the distribution. Given the family
court’s thorough analysis of the issues in this case and Husband’s failure to succinctly
notify the family court that he was requesting the family court to perform such an analysis,
it is my opinion, that the family court’s failure to specifically state in the final order that it
was not exercising its discretion to alter the distribution presumed by law, is harmless error,
at best.

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