Cynthia White v. Mark White

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
December 23, 2024
CYNTHIA WHITE,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 24-ICA-319 (Fam. Ct. Fayette Cnty. Case No. FC-10-2013-D-202)

MARK WHITE,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Cynthia White (“Wife”) appeals the Family Court of Fayette County’s
July 17, 2024, final order denying her two petitions for contempt regarding Respondent
Mark White’s (“Husband”) alleged failure to provide complete federal income tax
disclosures as previously ordered. Husband responded in support of the family court’s
decision.1 Wife did not file 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 no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court’s order is appropriate
under Rule 21 of the Rules of Appellate Procedure.

By way of background, the parties separated in 2012 and divorced in 2013. Per the
divorce decree, Husband was ordered to pay Wife $3,000 per month in spousal support. In
2020, Husband retired at age 64 due to the COVID-19 pandemic and sought a modification
of the spousal support order. By agreed order entered on June 22, 2021, Husband agreed to
pay Wife a total of $100,000 in two $50,000 lump sums in exchange for the termination of
his monthly payments. Additionally, Husband agreed to pay Wife 10% of his total gross
income through the year 2026 if he earned over $100,000 in a given year. To keep track of
his earned income, Husband was ordered to “submit a copy of his filed income tax return
to [Wife] on or before April 15th each year up to and including the year 2026.” The order
specified that earned income did not include social security, investments, annuities,
interest, spouse’s income, rental income, or other like sources.

Events leading to this appeal began on June 8, 2022, when Wife filed a petition for
contempt alleging that Husband failed to provide his 2021 federal income tax return to her
as previously ordered. After the contempt petition was filed, Husband sent Wife written

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Both parties are self-represented.

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correspondence informing her that he had forgotten to send the tax return and stated that
he would send her a redacted copy of the return because the joint return included
information regarding his new wife’s income. On September 21, 2022, a contempt hearing
on Wife’s petition was held. The final order for that hearing was entered on September 27,
2022, and held that Husband failed to comply with the obligations under their June 2021
agreed order. Husband was held in contempt for the failure to provide to Wife his complete
2021 federal income tax return as filed and was given the opportunity to purge the contempt
by providing Wife an unredacted copy of his 2021 federal income taxes within thirty days
following the entry of the court’s order. Rather than providing the tax returns as ordered by
the family court, Husband appealed the September 27, 2022, final order to this Court. A
memorandum decision affirming the family court’s decision was issued on May 22, 2023,
after oral argument. See White v. White, No. 22-ICA-177, 2023 WL 3579066 (W. Va. Ct.
App. May 22, 2023) (memorandum decision).

On June 7, 2023, Wife filed another petition for contempt alleging that Husband
never purged himself of the first contempt related to his 2021 federal tax return and failed
to provide his 2022 federal tax returns. Husband filed a petition for modification on June
12, 2023, requesting relief from his obligation to provide his complete tax return. In his
petition, Husband requested that he be permitted to provide Wife with the front page of his
1040 along with W-2s or 1099s. A hearing on both petitions was held on January 25, 2024.
At that hearing, Husband’s new wife testified that she did not want her financial
information to be disclosed to Wife. Also at that hearing, Husband’s accountants testified
that the most accurate way for Wife to learn of Husband’s true earned income is to see the
full return. By order entered on February 12, 2024, the family court denied Husband’s
petition for modification but allowed Husband to redact his new wife’s personal identifying
information. Wife’s petition for contempt was granted and Husband was given a second
chance to purge his contempt by providing Wife with his 2021 and 2022 tax returns no later
than 30 days after the entry of the order. Husband then provided Wife his 2021 and 2022
tax returns but failed to include any additional statements or worksheets.

Wife filed her third and fourth petitions for contempt on March 12, 2024, and May
10, 2024, respectively, alleging that the 2021 and 2022 tax returns were not provided, as
ordered by the court, and that Husband also failed to provide his 2023 return along with
the attached statements and/or worksheets. A hearing was held on both of Wife’s petitions
on July 17, 2024. At the hearing, Husband admitted that he did not provide the statements
to Wife because those statements were not actually filed with his returns. Husband argued
that, under the order, he is only required to provide a copy of his “filed” returns to Wife.
During the hearing, the parties agreed to allow the judge to engage in general internet
research to see if statements and/or worksheets were electronically filed along with tax
returns. The judge determined that, according to his research, statements and/or worksheets
were not filed along with tax returns. The family court denied Wife’s petitions for contempt
and found “there has never been any evidence presented to show [that Husband] has

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attempted to defraud [Wife] by hiding earned income[.] . . .” The final order was entered
on July 17, 2024, and is the order which 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. Several assignments of error are
closely related, which we will consolidate. See generally Tudor’s Biscuit World of Am. v.
Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237 (2012) (allowing consolidation of
related assignments of error).

In her first, second, and third assignments of error, Wife asserts that the family
court’s order failed to incorporate certain evidence, including testimony showing that
Husband intentionally left out parts of his tax returns and included references to past
hearings and rhetoric that favored Husband but mentioned nothing that would discredit
him. We disagree. West Virginia Code § 51-2A-10(a) (2001) states as follows:

Any party may file a motion for reconsideration of a temporary or final order
of the family court for the following reasons: (1) Mistake, inadvertence,
surprise, excusable neglect or unavoidable cause; (2) newly discovered
evidence which by due diligence could not have been available at the time
the matter was submitted to the court for decision; (3) fraud,
misrepresentation or other misconduct of an adverse party; (4) clerical or
other technical deficiencies contained in the order; or (5) any other reason
justifying relief from the operation of the order.

Here, Wife alleges that the final order failed to include certain evidence and testimony and
instead included “rhetoric.” Wife is essentially asking this Court to reweigh evidence.
Because it is not this Court’s role to reweigh evidence, Wife’s proper course of action was
to file a motion for reconsideration, as she appears to allege that the final order includes
mistakes and/or clerical errors. See State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d
163, 175 n.9 (1995) (“An appellate court may not decide the credibility of witnesses or
weigh evidence as that is the exclusive function and task of the trier of fact.”). See also In
re Tiffany Marie S., 196 W. Va. 223, 231, 470 S.E.2d 177, 185 (1996) (A reviewing court

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may not overturn a family court’s finding simply because it would have decided the case
differently). Moreover, “the family court’s enforcement of [its orders] is within the sound
discretion of the family court.” James W. v. Ciara R., Nos. 23-ICA-237, 23-ICA-238, 23-
ICA-239, 2024 WL 1740353 (W. Va. Ct. App. April 22, 2024 (memorandum decision).
Here, the family court was within its discretion to find that Husband was not in contempt
for failing to provide Wife with his statements and worksheets. Therefore, we cannot
conclude that the family court abused its discretion by denying Wife’s petition for contempt
or for how it prepared the final order.

In her fourth assignment of error, Wife contends that the family court judge
erroneously conducted online research regarding whether tax statements and/or worksheets
must be filed with the required tax documents. On this issue, she argues that the family
court’s decision was impermissibly influenced by this research and that it stopped
researching once it found information that favored Husband. We disagree. Our review of
the hearing demonstrates that Wife agreed to allow the family court to research the issue.
Because Wife failed to object below, this issue was waived on appeal. Appellate courts
will not decide nonjurisdictional questions raised for the first time on appeal. See, e.g., Syl.
Pt. 1, Mowery v. Hitt, 155 W. Va. 103, 181 S.E.2d 334 (1971).

Accordingly, we affirm the family court’s July 17, 2024, order.

Affirmed.

ISSUED: December 23, 2024

CONCURRED IN BY:

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

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