Full Opinion (html_with_citations)

       IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
                                                                             FILED
CHRISTINA CAMPBELL,                                                     December 27, 2023
Petitioner Below, Petitioner                                              EDYTHE NASH GAISER, CLERK
                                                                        INTERMEDIATE COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs.) No. 23-ICA-149         (Fam. Ct. Kanawha Cnty. No. 20-D-629)

JAMES CAMPBELL,
Respondents Below, Respondents


                             MEMORANDUM DECISION

       Petitioner Christina Campbell (“Wife”) appeals the Kanawha County Family
Court’s February 7, 2023, “Final Order on Equitable Distribution.” In that order, the family
court held that $44,650.00 of marital waste would be attributed to the Wife for the purpose
of equitable distribution. Respondent James Campbell (“Husband”) filed a response in
support of the family court’s order. 1 Wife did not file a reply.

       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 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.

       The parties were married in Kanawha County, West Virginia, on May 26, 2012. No
children were born of the marriage, though both have children from prior relationships. On
August 12, 2020, Wife filed for divorce based on irreconcilable differences. On August 26,
2020, Husband filed his answer and counter-petition for divorce also asserting
irreconcilable differences. Husband is a disabled veteran. Wife received payment as the
caregiver for Husband and was the payee on the checks Husband received for his disability.

        On January 19, 2021, this matter came on for a hearing before the family court. At
the hearing, counsel for Husband raised the issue of marital waste by Wife. During
testimony by Wife, the family court became frustrated due to the lack of clarity in Wife’s
testimony regarding various transactions and the considerable amount of unexplained
expenditures made from the parties’ accounts. The family court made it clear on the record
that it wanted a clear picture of the parties’ finances and urged the parties to make full


       1
         Christina Campbell is represented by Chris Pritt, Esq. James Campbell is
represented by Erica Lord, Esq.

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financial disclosures immediately. Following the conclusion of Wife’s testimony, the
family court adjourned the hearing.

        The matter was next set for a hearing on June 2, 2021. However, at the outset of the
hearing, counsel for Husband argued that despite the family court’s prior order requiring
full disclosure of every financial account, Wife failed to provide statements for all
accounts. As a result, the family court admonished Wife, ordered her to turn over
statements from various accounts, and ordered Husband’s counsel to submit an invoice for
attorney’s fees for counsel’s preparation for the hearing. Following the hearing, on the
same day, the family court entered a Temporary Order which found that though Wife had
provided documents related to a Chase Bank account to Husband pursuant to a prior order
of the family court, 2 she did not provide documents related to numerous other accounts that
she should have known to provide because funds were transferred out of the Chase Bank
account to these other accounts. Based on Wife’s failure to provide these documents, the
family court ordered that she pay $1,500.00 in attorney’s fees within thirty days. Wife did
not object to the award of attorney’s fees on the record and the Temporary Order, which
was drafted by Wife’s counsel, does not note any objection to the award of attorney fees.

        On April 19, 2022, Husband filed his Motion Regarding Marital Waste which
alleged that: Wife was responsible for the parties’ finances during their marriage; in
December of 2017, Husband’s mother gifted him $64,497.05; Wife transferred $30,000.00
of the funds gifted to Husband by his mother to an account held only by Wife; Wife used
the $30,000.00 for personal expenditures for herself and her children; Wife racked up
thousands of dollars in credit card debt due to her excessive spending on things that did not
benefit the marriage; Wife failed to disclose retirement accounts, investments accounts,
and bank accounts; and Wife would play a “shell game” with marital funds by shuffling
money between multiple accounts, often times incurring overdraft fees on the accounts.

       On March 28, 2022, the family court held another hearing. Husband appeared for
the hearing with his counsel. Wife did not appear at the hearing, but her counsel did. Wife’s
counsel informed the family court that his office apparently failed to inform Wife of the
hearing. The family court noted that Wife previously testified and was cross-examined
during a prior hearing. The family court ruled that it would not continue the hearing due to
previous continuances granted by the family court. Counsel for Wife did not object to the
hearing going forward. During the hearing, Husband testified that Wife transferred
$30,000.00 from the $64,497.05 he was gifted by his mother into her own account and that
he received no benefit from the $30,000.00. He also testified that there were checks written
by Wife that he was unaware of and that he would probably never know the full extent of
Wife’s dissipation of marital assets. On cross examination, Husband denied seeing any of
the $30,000.00 being transferred back into the joint account. Wife’s counsel then spent

       2
         The referenced prior order, if reduced to writing, is not included in the record
before this Court.

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considerable time going over various transactions with Husband. When asked for
clarification by the family court, Wife’s counsel argued that of the $30,000.00 that was
transferred out, Wife transferred some of the funds back into the joint account, while others
she did not. Husband’s counsel pointed out that often, when transfers were made back into
the joint account, Wife would then withdraw that amount again. Husband further testified
that due to his disability, Wife would handle the parties’ finances.

        On August 15, 2022, the family court entered its Order Regarding Marital Waste.
In that order, the family court found that Wife: was in complete control of the parties’ bank
accounts; spent money excessively; moved money continually from account to account,
often times overdrawing accounts and incurring substantial insufficient funds fees; spent a
substantial amount of the parties’ marital funds on her children from a previous
relationship; transferred $30,000.00 of the money gifted to Husband by his mother into her
own account and spent that money excessively on herself and her children and did not
spend the monies for the benefit of the marital estate; wrote two checks in the amounts of
$6,000.00 and $7,000.00 that were for her benefit alone; and incurred insufficient funds
fees in the amount of $1,650.00 due to her excessive spending and the movement of monies
back and forth from account to account.

        As a result of these findings, the family court ordered that $43,000.00 of
unaccounted for funds, plus the total of $1,650.00 in accumulated overdraft fees, be
attributed to Wife as assets already received for the purpose of equitable distribution. The
family court then ordered the parties to attempt to work out the distribution of assets and
debts in light of the family court’s ruling regarding martial waste and to submit an agreed
order if the parties are able to come to an agreement. If the parties were unable to agree,
the family court ordered them to submit proposed distributions to the family court within
thirty days. The family court certified its August 15, 2022, order as a final appealable order.

       On September 17, 2022, Wife filed her notice of appeal of the August 15, 2022,
order with this Court. The matter was assigned case number 22-ICA-109. On December
21, 2022, Case No. 22-ICA-109 was dismissed as interlocutory since the marital waste
issue was a part of the larger equitable distribution issue that had not yet been resolved by
the family court.

        On February 7, 2023, the family court entered its “Final Order on Equitable
Distribution.” That order divided the assets and liabilities of the parties, attributing
$44,650.00 in marital waste to Christina. The distribution resulted in the family court
ordering Wife to pay Husband $7,460.05 to equalize the distribution. Wife now appeals.
Although this appeal is technically of the February 7, 2023, order, the assignments of error
concern the August 15, 2022, order regarding marital waste and the July 21, 2021,
Temporary Order which awarded $1,500.00 in attorney’s fees to Husband for Wife’s
failure to provide certain bank records.



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       For these matters, our standard of review is as follows:

              “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,
216 W. Va. 474
,
607 S.E.2d 803
 (2004).

Amanda C. v. Christopher P., __ W. Va. __, __,
887 S.E.2d 255
, 258 (Ct. App. Nov. 18,
2022); accord
W. Va. Code § 51
-2A-14(c) (2005) (specifying standards for appellate court
review of family court order).

        On appeal, Wife asserts three assignments of error. Because the first two
assignments of error concern the factual findings of the family court, we will discuss them
together. First, Wife asserts that the family court orders contain findings of fact that are not
supported by the evidence. Specifically, Wife asserts that the family court’s finding that
Wife transferred $30,000.00 into her own account and then spent that money on herself
and her children is not supported by the evidence. Next, Wife asserts that the family court’s
orders do not contain sufficient findings of fact. In this regard, Wife argues that the family
court’s orders fail to describe in detail how Wife spent the money and incurred overdraft
fees. Upon review, we disagree. “Under the clearly erroneous standard, if the findings of
fact and the inferences drawn by [the family court] are supported by substantial evidence,
such findings and inferences may not be overturned even if a [reviewing court] may be
inclined to make different findings or draw contrary inferences.” Stephen L.H. v. Sherry
L.H.,
195 W. Va. 384, 395
,
465 S.E.2d 841, 852
 (1995) superseded by statute on other
grounds. Here, although the account to which Wife transferred the $30,000.00 may have
been a jointly titled account, Wife does not point to any evidence in the record that
undermines Husband’s testimony and the family court’s finding that Wife was in complete
control of the parties’ finances. Further, the issue of how the account was titled is irrelevant
to the family court’s determination of the extent to which Wife “may have conducted . . .
herself so as to dissipate or depreciate the value of the marital property of the parties[.]”
W. Va. Code §48-7-103
(4) (2001). Husband’s uncontroverted testimony was that Wife had
control of the parties’ finances, the money was moved or spent, and that he saw no benefit
from the same. Regarding how exactly the money was dissipated, under the facts of this
case, it is difficult to imagine how the family court could make detailed findings about
exactly how Wife used the funds in question. The only person who could have provided
greater detail as to where the money went was Wife, who failed to appear for the March
28, 2022, hearing. 3 Therefore, the findings of the family court are not clearly erroneous.


       3
        Although Wife’s counsel informed the family court that his office failed to inform
Wife of the hearing, she does not assert on appeal that the failure of the family court to
grant a continuance was error. Since she does not assert that this was error and it is not

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        Finally, Wife asserts that the family court improperly awarded attorney’s fees in the
July 21, 2021, Temporary Order. Wife argues that since she was never specifically ordered
to turn over the financial records in question, the family court erred in awarding attorney’s
fees. However, “[t]o preserve an issue for appellate review, a party must articulate it with
such sufficient distinctiveness to alert a [lower court] to the nature of the claimed defect.”
Syl. Pt. 2 State ex rel. Cooper v. Caperton,
196 W. Va. 208
,
470 S.E.2d 162
 (1996). “A
litigant may not silently acquiesce to an alleged error, or actively contribute to such error,
and then raise that error as a reason for reversal on appeal.” Syl. Pt. 1, Maples v. W. Virginia
Dep’t of Com., Div. of Parks & Recreation,
197 W. Va. 318
,
475 S.E.2d 410
 (1996).
“Where objections were not shown to have been made in the trial court, and the matters
concerned were not jurisdictional in character, such objections will not be considered on
appeal.” Syl. Pt. 1, State Road Commission v. Ferguson,
148 W.Va. 742
,
137 S.E.2d 206
(1964). As previously mentioned, the Temporary Order of the family court, which was
drafted by Wife’s counsel, does not note any objection to the award of attorney’s fees.
Likewise, a review of the hearing recording reveals that no objection was made during the
hearing to the award of attorney’s fees. Wife does not point to anywhere in the record that
demonstrates that she objected to the award of attorney’s fees. Accordingly, since Wife did
not properly preserve the issue for appeal, we decline to consider this assignment of error.

      Accordingly, we affirm the family court’s February 7, 2023, “Final Order on
Equitable Distribution.”

                                                                                     Affirmed.


ISSUED: December 27, 2023

CONCURRED IN BY:

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




evident from the record that this was error, the Court declines to apply the plain error
doctrine.




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