Brittany M. v. Bryan M.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
August 29, 2025
BRITTANY M.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Petitioner Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 25-ICA-13 (Fam. Ct. Upshur Cnty. Case No. FC-49-2024-D-17)

BRYAN M.,
Respondent Below, Respondent

MEMORANDUM DECISION

Petitioner Brittany M.1 (“Wife”) appeals the Family Court of Upshur County’s
December 10, 2024, final divorce order. Respondent Bryan M. (“Husband”) responded
with two cross-assignments of error.2 Wife filed a reply. The primary issues on appeal are
custody, equitable distribution, and attorney’s fees.

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. For the reasons set forth below, a memorandum decision
affirming, in part, vacating, in part, and remanding for further proceedings is appropriate
under Rule 21 of the Rules of Appellate Procedure.

By way of background, the parties were married on June 4, 2011. They share one
child who was born in 2015 and who has special needs. Wife filed for divorce on January
23, 2024, along with a proposed parenting plan requesting shared decision-making
authority (with Wife being the sole decision-maker for school-related activities due to her
daily involvement in the child’s care),3 that Father have parenting time every other
Saturday and Sunday from 8:30 a.m. to 6:00 p.m., and alternating holiday time. Husband’s

1
To protect the confidentiality of the juvenile 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
Wife is represented by Amy L. Lanham, Esq., Family Law Associates. Husband is
self-represented.

3
Wife transported Child to all medical appointments, autism services, and
participated in weekly family trainings for caregivers.

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proposed parenting plan requested shared decision-making, with Wife having all parenting
time except for one day each weekend from 7:30 a.m. to 4:30 p.m. and two hours each
Wednesday evening from 4:00 p.m. to 6:00 p.m. Husband also requested two, three-day
weekends during the summer, alternating holidays, and asked to be the designated
residential parent every year for tax purposes.

On May 7, 2024, Husband filed supplemental disclosures, which included the real
estate purchase agreement for the marital home and the mortgage loan information,
showing that the marital home was purchased for $225,277.00 on September 17, 2010,
prior to the parties’ marriage.

On June 11, 2024, a temporary order was entered setting Husband’s child support
obligation at $741.69 per month, effective July 1, 2023. On June 24, 2024, an Order
Pendente Lite was entered stating that the parties reached an agreement on all issues except
the allocation of parenting time. The family court granted Husband initial parenting time
in two-hour increments during the week with additional time on Saturday and added one
overnight visit starting on June 28, 2024. Husband was also directed to participate in
Applied Behavior Analysis (“ABA”) training to better assist with caretaking, which he
completed. Wife was granted exclusive use and possession of the marital home and was
ordered to pay the mortgage and utilities.

Husband filed a second proposed parenting plan on July 26, 2024, wherein he
requested a 2/2/5 visitation schedule with Wife having Monday and Tuesday night,
Husband having Wednesday and Thursday night, and the parties rotating weekends.

The final hearing was held over a series of three days, September 25-26, 2024, and
October 1, 2024. During the proceedings, Elizabeth Simons testified as an expert witness
in behavioral analysis and adapted curricula. Tamara Smithson, an Upshur County Board
of Education speech pathologist, testified that she sees the child every morning and that
the child requires consistency in her daily routine. Rhonda Bennett, one of the child’s
teachers, testified as an expert witness in special education. All experts testified that the
child required a consistent routine, and that Wife had been the child’s primary caretaker.

Wife testified that after the child had overnights with Husband, her behavior
changed, and she began to regress due to the changes in her routine. She further testified
that during their marriage, Husband controlled all finances, only allotted her $300.00 per
month for groceries, committed domestic violence against her, and called her names in
front of the child. Husband testified that he has attended the child’s Individualized
Education Program (“IEP”) meetings, has twelve weeks of unpaid Family Medical Leave
Act (“FMLA”) leave that he could use to help provide childcare, and expressed that he
wished he had the ability to attend all the child’s appointments and school activities.

2
Regarding the marital home, Husband argued that it was his separate property and
that the court should consider the value of the home at the time of purchase, which was
approximately $229,000.00, as opposed to the value at the time of separation, which was
$400,000.00. Wife, in contrast, argued that the home was purchased in anticipation of
marriage and that it should be considered marital property. Wife objected to the
consideration of the purchase price of the home, arguing that it was not properly introduced
into evidence.

The family court entered the final order on December 10, 2024, which included the
following relevant findings of fact and conclusions of law.

• The only applicable limiting factor was West Virginia Code § 48-9-
209(f)(2)(b), which addresses children with special needs.4
• Husband became very involved with the child after the parties separated.
• The 50-50 presumption5 was not rebutted.
• The court’s sixty-day phased-in parenting schedule was based on
Husband’s work schedule and the child’s needs, and the staff at ABA
should be consulted regarding how to implement plan.
• The parenting plan will result in a 3/4/4/3 parenting plan with Husband
having most weekends.
• The parties will share decision-making authority.
• Husband shall pay $487.85 per month in child support, effective
December 1, 2024.
• Husband will pay Wife $518.61 per month in rehabilitative spousal
support for twenty-four months.
• Wife had sixty days to move out of the marital home.
• Husband will retain exclusive use and possession of the marital home,
effective December 1, 2024.

West Virginia Code § 48-9-209 (2024) provides a list of factors that family courts
4

must consider when ruling on parenting time.
5
West Virginia Code § 48-9-102a (2022) addresses the 50-50 parenting presumption
and states as follows:

There shall be a presumption, rebuttable by a preponderance of the evidence,
that equal (50-50) custodial allocation is in the best interest of the child. If
the presumption is rebutted, the court shall, absent an agreement between the
parents as to all matters related to custodial allocation, construct a parenting
time schedule which maximizes the time each parent has with the child and
is consistent with ensuring the child's welfare.

3
• Each party shall pay their own attorney’s fees.

Regarding the marital home, the family court conducted a passive appreciation
analysis using the home’s value at the date of separation to determine its value and did not
consider any of the information contained in Husband’s financial disclosure. Under this
analysis, the family court held that Husband owed Wife $145,045.00 to equalize equitable
distribution. As to the value of the marital home, Husband was given credit for the $20,000
that he paid as a down-payment on the property, $805 in agreed Conrad credits,6 and $3,900
for mortgage payments that Wife failed to pay while she resided in the home post-
separation. Upon final calculation, Husband was ordered to pay Wife $120,340.00 in
equitable distribution and was given one year from October 1, 2024, to complete the
payment. The court noted in its order that it lacked the necessary information to conduct a
full analysis as to the value of the marital home, and stated on the record that, as a result,
Wife was unfairly receiving an extra $100,000 in equitable distribution.

It is from the December 10, 2024, final order that Wife 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.

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, Wife raises four assignments of error and Husband asserts two cross-
assignments of error. To succinctly address the issues on appeal, we will address Husband’s
cross-assignments of error with Wife’s corresponding assignment of error.

In Wife’s first assignment of error, she asserts that the family court abused its
discretion by finding that the 50-50 presumption was not rebutted based on the evidence
presented regarding the history of care for the child, Husband’s work schedule, the child’s
special needs, and Husband’s abusive and controlling behavior toward her during the
marriage. We disagree. Our review of the record reflects that the family court considered
the child’s best interest, that Husband completed ABA training and became very involved
in the child’s life after the parties separated, and the court determined that the only

6
See Conrad v. Conrad, 216 W. Va. 696, 612 S.E.2d 772 (2005) (holding that the
recoupment of payment of marital debt by one party prior to the ultimate division of marital
property is permitted upon final equitable distribution order).
4
applicable limiting factor was West Virginia Code § 48-9-209(f)(2)(b), which states, “[i]n
determining whether the presumption for an equal (50-50) allocation of physical custody
has been rebutted, a court shall consider all relevant factors including [. . .] [w]hether the
child [. . .] [h]as special needs, a chronic illness, or other serious medical condition and
would receive more appropriate care under another custodial allocation.” Because Husband
became very involved in the child’s life and complied with the court’s recommendation
that he complete ABA training, we cannot conclude that the family court abused its
discretion by finding that the 50-50 parenting presumption had not been rebutted.
Therefore, we affirm the family court on this issue.

In her second assignment of error, Wife contends that the family court abused its
discretion by failing to grant her weekend parenting time. We disagree. The family court’s
order states that the parties will operate on a phase-in 3/4/4/3 visitation schedule with
Husband having a majority of weekend time. The parenting plan was based upon the child’s
comfort level, Husband’s work schedule, and provided Wife with some weekend visitation.
Therefore, given the deference afforded to family courts in these matters, we cannot
conclude that there was an abuse of discretion regarding weekend parenting time. See
Jacob H. v. Siera G., No. 24-ICA-147, 2024 WL 4787833, at *3 (W. Va. Ct. App. Nov.
14, 2024) (memorandum decision) (internal citations and quotations omitted) (“A family
court’s decision is entitled to significant deference.”)

In Wife’s fourth assignment of error, she argues that the family court abused its
discretion by failing to award her attorney’s fees and costs. On this issue, the family court
was required to conduct an analysis pursuant to Syl. Pt. 4, Banker v. Banker, 196 W. Va.
535, 474 S.E.2d 465 (1996), which 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.

However, in the case at bar, the family court conducted no Banker analysis, but rather, held
that each party would be responsible for their own attorney’s fees “based upon the unfair
equitable distribution.” Therefore, we vacate the court’s ruling on this issue and remand
this matter to the family court with directions to conduct the requisite Banker analysis and
to decide this issue based upon that analysis.

5
Husband raised two cross-assignments of error on appeal, which we will consolidate
because they are similar. See generally Tudor’s Biscuit World of Am. v. Critchley, 229 W.
Va. 396, 402, 729 S.E.2d 231, 237 (2012) (stating that “the assignments of error will be
consolidated and discussed accordingly”).

Husband asserts that the family court’s erroneous refusal to consider his financial
disclosures regarding the value of the marital home resulted in him not being awarded
credit for the cash down-payment and mortgage payments made prior to the parties’
marriage, which resulted in inequitable distribution of approximately $100,000.00 to his
detriment. We agree with Husband on this issue. Rule 13(a) of the Rules of Practice and
Procedure for Family Court states, “[t]the petitioner and respondent shall file completed
financial statements with the circuit clerk [. . .].” Further, West Virginia Code § 48-7-201
(2001) states, “[i]n all divorce actions and in any other action involving child support, all
parties shall fully disclose their assets and liabilities. . . .” Husband complied with the
requirement to submit full financial disclosures, including his ongoing duty to submit
supplemental financial disclosures, which were used to determine his income for both child
and spousal support. A review of the record reveals that the evidence necessary for an
evaluation and calculation pursuant to Collisi v. Collisi, 231 W. Va. 359, 745 S.E.2d 250
(2013) was contained in Husband’s financial disclosures.7 As these disclosures operate as
evidence, they are entitled to review and an opportunity for cross-examination. The family
court was required to review the supplemental financial disclosure or exercise its authority
to “compel and supervise the production of evidence” pursuant to West Virginia Code §
51-2A-7 (2013). Because the family court did not compel and/or consider the evidence of
record necessary for equitable distribution, we vacate the ruling on this issue and remand
the matter with directions to consider all of Husband’s financial disclosures in determining
equitable distribution.

Lastly, in Wife’s third assignment of error, she argues that the family court abused
its discretion by permitting Husband to have one year to pay her share of equitable
distribution and by failing to award her interest on the payment. Because we are remanding
the case to the family court for further consideration of Husband’s financial disclosures as
to equitable distribution, we decline to rule on this assignment of error. However, if the
family court ultimately decides to again grant Husband a term of years to make his
equitable distribution payment to Wife, it must follow the law set forth in Bettinger v.
Bettinger, 183 W. Va. 528, 396 S.E.2d 709 (1990) (holding where the value of an equitable
distribution asset is payable over a term of years, interest should be paid at the going rate
in the absence of some special hardship factor shown by the obligor).

7
Although the information was contained in Husband’s financial disclosures, we
note that the family court inquired of the parties about the documentation and it was not
produced to the court.
6
Accordingly, we affirm, in part, vacate, in part, and remand the December 10, 2024,
order with directions to the family court for further proceedings consistent with this
decision.

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

ISSUED: August 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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