Tina M. Bible v. Gregory E. Bible

       IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
                                                                              FILED
TINA M. BIBLE,                                                           December 27, 2023
Petitioner Below, Petitioner                                                EDYTHE NASH GAISER, CLERK
                                                                          INTERMEDIATE COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
vs.) No. 23-ICA-159         (Fam. Ct. Grant Cnty. No. FC-12-2021-D-68)

GREGORY E. BIBLE,
Respondent Below, Respondent


                             MEMORANDUM DECISION

        Petitioner Tina M. Bible appeals the “Final Divorce Order” entered by the Family
Court of Grant County on March 30, 2023. Ms. Bible asserts that the family court abused
its discretion by using the wrong method to determine the value of the marital home and
that she was not given full credit for payments made on the mortgage. Mr. Bible filed a
response that included one cross assignment of error, asserting that the family court erred
by misinterpreting the section of the parties’ prenuptial agreement (“Agreement”) that
addressed his retirement.1 Ms. Bible filed a response to Mr. Bible’s cross assignment of
error.

        This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). 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(d) 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, reversed,
in part, and remanded to the family court with directions as set forth herein.

       The parties entered into the Agreement on November 24, 2009. Regarding the
marital home, the agreement stated the following in Section 4(c):

       In the event the parties divorce the real property will be retained by Greg
       Bible, with the exception that any payments made during the marriage
       ([principal] plus interest) will be split 50/50. The house is 2859 sq. ft. with
       replacement value of $125.00 sq. ft for a value of $357,375 plus 2.69 acres


       1
       Ms. Bible is represented by Erica Brannon Gunn, Esq. Mr. Bible is represented by
Nicholas T. James, Esq.


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       valued at $22,625.00, with the total value of the home and land at $380,000.
       The loan has 117 payments remaining and the payoff of the loan is
       acknowledged to be $80,000.00 at the time of marriage; monthly payment at
       [the] time of marriage is acknowledged to be $855.62. Should the home and
       land increase in value from the $380,000 base value, the increased value will
       be split 50/50 in the event of a divorce. Should the value decrease from the
       $380,000 the diminished value will not be split in the event of a divorce. Any
       improvements made to the home during the marriage will be split 50/50.

       Regarding retirement, the Agreement stated in Section 7, “[t]hat each party shall
waive any interest that they may have in the other parties’ retirement fund. Greg Bible has
approximately $16,500.00 at the time of marriage, and Tina Gilbert has no retirement at
the time of marriage.”

       The parties were married on December 5, 2009, and separated on September 30,
2021. No children were born of the marriage. Ms. Bible filed her petition for divorce on
October 14, 2021. A temporary hearing was held on December 16, 2021, during which the
family court held that the Agreement was presumptively valid. The family court also
determined that the marital home would be valued through the appraisal process rather than
a valuation by square footage. The final hearing was initially scheduled for September 28,
2022. Some testimony was taken on that date, but the case was continued to January 31,
2023, to allow the parties to attend mediation.

       In its September 28, 2022, hearing, the family court reiterated that the Agreement
was valid. Additionally, the parties submitted individual appraisals, both of which were
well below the $380,000.00 value that was included in the Agreement. Mr. Bible’s
appraisal valued the marital home at $275,000.00. Ms. Bible’s appraisal valued the marital
home at $345,000.00. The family court’s order further noted that 117 mortgage payments
were made at $855.62 each, and that only $16,500.00 of Mr. Bible’s $31,000.00 retirement
was excluded by the Agreement. Ms. Bible objected to the marital home’s value being
determined by appraisal rather than by replacement value, and Mr. Bible objected to his
retirement being subject to equitable distribution.

        At the January 31, 2023, final hearing the family court ordered that Mr. Bible’s
remaining $14,500.00 retirement amount be divided by Qualified Domestic Relations
Order (“QDRO”). Ms. Bible again objected to the family court’s decision to use the
appraisal value for the marital home rather than using a square footage replacement value
calculation, as provided in the Agreement. Additionally, the family court held that Ms.
Bible was entitled credit for 50% of 117 payments on the mortgage at $855.62 per payment,
for a total of $54,000.00. The final order was entered on March 30, 2023. It is from that
order that Ms. Bible now appeals.

       For these matters, we use the following standard of review:


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              “In reviewing . . . 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. Pt., [in part,] Carr v.
       Hancock, 

, 

 (2004).

Amanda C. v. Christopher P., __ W. Va. __, __, 

, 258 (Ct. App. Nov. 18,
2022); accord 

-2A-14(c) (2005) (specifying standards for appellate court
review of family court order).

       Ms. Bible raises two assignments of error on appeal, which we will address in turn.
For her first assignment of error, she argues that the family court abused its discretion when
it valued the marital home through a market appraisal process rather than by a square
footage calculated replacement value as implied by the Agreement. We disagree. While
the Agreement referenced square footage in expressing a pre-marriage value of the home,
the Agreement did not expressly require the parties to use a particular method of
determining the home’s value in the case of divorce. The family court properly used the
best evidence available (the parties’ appraisals) to reach its determination of the home’s
value.

        As to the family court’s role in determining the value of the marital home, we first
turn to Whiting v. Whiting, 

, 

 (1990), which states:

       Equitable distribution […] is a three-step process. The first step is to classify
       the parties’ property as marital or non-marital. The second step is to value
       the marital assets. The third step is to divide the marital estate between the
       parties in accordance with the principles contained in [

-
       103].

Whiting 

, 

, syl. pt. 1. Only step two is relevant here.
West Virginia Code § 48-7-104(1) (2001) provides further direction by stating “[t]he
[family] court shall: (1) [d]etermine the net value of all marital property of the parties as of
the date of the separation of the parties . . . .” “[Net] value equals the fair market value of
the property less the amount of any lien or encumbrance.” Tankersley v. Tankersley, 

, 

 (1990). Here, the family court determined the net
value of the marital home based upon both parties’ appraisals. Additionally, replacement
value does not consider the home’s depreciation, as does the appraisal process. Given the
limited evidence available to the family court, we find no error in how it determined the
marital home’s value considering the Agreement’s language.

      For her second assignment of error, Ms. Bible argues that the family court failed to
consider the full number of payments made toward the mortgage when crediting her half


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of the payments for equitable distribution. The Agreement stated “[t]he loan has 117
payments remaining and the payoff of the loan is acknowledged to be $80,000.00 at the
time of marriage; monthly payment at [the] time of marriage is acknowledged to be
$855.62” and also states “any payments made during the marriage ([principal] plus interest)
will be split 50/50.”

       In support of her assertion that she was not credited with 50% of the full number of
payments, Ms. Bible states that the marital home was refinanced in 2013 and the monthly
payment increased from $855.62 to $1,041.13. Therefore, the family court should have
given her credit for fifty percent of forty-five payments at $855.62 and ninety-seven
payments at $1041.13, which would make her share $69,746.25 rather than $54,000.00.
We agree with this assignment of error, as the Agreement did not consider refinancing the
mortgage but expressly provided that one-half of mortgage payments (including interest)
would be credited as marital contributions to Ms. Bible. Therefore, we reverse and remand
on this assignment of error with instructions for the family court to recalculate the parties’
mortgage payment credits pursuant to the Agreement and include the increased mortgage
payment amount in its determination as to what constitutes marital property subject to
equitable distribution.

        In his response brief, Mr. Bible included one cross assignment of error. Mr. Bible
asserts that the family court erred by finding that Section 7 of the Agreement did not apply
prospectively. Section 7 states “[t]hat each party shall waive any interest that they may
have in the other parties’ retirement fund. Greg Bible has approximately $16,500.00 at the
time of marriage, and Tina Gilbert has no retirement at the time of marriage.” The family
court held that only the premarital $16,500.00 portion of Mr. Bible’s retirement was
excluded by the Agreement and ordered that the remaining balance of $14,500.00 be
divided by Qualified Domestic Relations Order (QDRO). We agree with Mr. Bible for this
assignment of error. The Agreement clearly and unambiguously states that each party
waived any interest in the other’s retirement. Therefore, we reverse the family court’s
ruling as to Mr. Bible’s retirement. Pursuant to the Agreement, Ms. Bible should not
receive any of Mr. Bible’s retirement.

        Accordingly, as to the family court’s order entered on March 30, 2023, we affirm
the ruling regarding the marital home’s value being determined by the appraisal process.
But we reverse the family court’s ruling regarding Ms. Bible’s share of mortgage payments
and remand the matter to family court with directions to recalculate the amount owed to
Ms. Bible. Lastly, we reverse the family court’s ruling regarding Mr. Bible’s retirement.

                                       Affirmed, in part, Reversed, in part, and Remanded.



ISSUED: December 27, 2023


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CONCURRED IN BY:

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




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