Mark V.H. v. Dolores J.M.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2013 Term
_______________ FILED
November 14, 2013
No. 13-0591 released at 3:00 p.m.
RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA

MARK V. H.,
Respondent Below, Petitioner

v.

DOLORES J. M.,
Petitioner Below. Respondent

____________________________________________________________

Appeal from the Circuit Court of Putnam County
The Honorable Phillip M. Stowers, Judge
Civil Action No. 11-D-516

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED, WITH
DIRECTIONS

____________________________________________________________

Submitted: November 5, 2013
Filed: November 14, 2013

Mark V. H. Dolores J. M.
Dunbar, West Virginia Hurricane, West Virginia
Pro se Pro se

The Opinion of the Court was delivered PER CURIAM.

JUSTICE KETCHUM concurs, in part, and dissents, in part, and reserves the right to file
a separate opinion.
 SYLLABUS BY THE COURT

1. “In reviewing a final order entered by a circuit court judge upon a

review of, or upon a refusal to review, 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., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803

(2004).

2. “In visitation as well as custody matters, we have traditionally held

paramount the best interests of the child.” Syl. pt. 5, Carter v. Carter, 196 W. Va. 239,

470 S.E.2d 193 (1996).

3. “In a contest involving the custody of an infant the welfare of the

child is the polar star by which the discretion of the court will be guided.” Syl. pt. 2, State

ex rel. Lipscomb v. Joplin, 131 W. Va. 302, 47 S.E.2d 221 (1948).

4. “Equitable distribution under W. Va. Code, 48-2-1, [now 48-7-103]

et seq., is a three-step process. The first step is to classify the parties’ property as marital

or nonmarital. 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 W.

i
Va. Code, 48-2-32.” Syl. pt. 1, Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413

(1990).

ii
Per Curiam:

This is the appeal by Mark H. of the May 3, 2013, order of the Circuit

Court of Putnam County in his divorce proceeding. The Circuit Court of Putnam County

affirmed in part and reversed in part the January 22, 2013, order of the Family Court of

Putnam County. Based upon the pleadings of the parties, the record designated for

review and the arguments of the parties, and for the reasons stated herein, we affirm that

portion of the circuit court order that affirmed the rulings and decision of the family court

in regard to equitable distribution. We reverse the Circuit Court of Putnam County

insofar as it reversed the family court’s allocation of custodial responsibility to the

Husband and reinstate the well-reasoned and legally supported order of the family court

in its entirety.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The petitioner, Mark H. (“Husband”),1 and the respondent, Dolores M.

(“Wife”), were married in Putnam County on August 29, 1998. The Wife filed a divorce

action against the Husband in November of 2011, although the parties resided in the same

household until March of 2012. One child was born of this marriage on August 29, 2007.

1
In cases involving sensitive facts, this Court adheres to our usual practice of
referring to the parties and other individuals by their initials. See State v. Edward
Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).

1
 The underlying proceedings were contentious and prolonged, in large part

because of the numerous filings by the Husband. We need not detail the protracted

nature of the proceedings, but we note that substantial attorney fees were awarded to the

Wife by the presiding family court judge, Mike Kelly.

After many days of hearings, the family court entered a forty-one page

order on January 22, 2013, that granted the parties a divorce on the grounds of

irreconcilable differences. The order extinguished any claim that the Husband had to the

former marital home and denied his request for reimbursement for improvements made

during the course of the marriage. The Wife was designated the custodian of the parties’

child. The Husband was granted parenting time with the child every other Saturday and

Sunday, beginning at 9 a.m. and ending at 8 p.m., with no overnights. The Husband was

prohibited from taking the child from the State of West Virginia. Relying upon the

Wife’s testimony and the psychiatric and psychological evaluations introduced into

evidence, the family court reasoned that allowing the child to spend any more time with

the Husband would subject the child to potential danger in the future because of the

Husband’s propensity to initiate conflict with other persons. Child support was awarded

to the Wife in the amount of $613.37 per month.

The Husband appealed this order to the Circuit Court of Putnam County.

The Husband asserted the following assignments of error: (1) the family court’s award of

2
custody of the child to the Wife, as well as limitations on his visitation; (2) the family

court’s award of attorney fees and costs to the Wife; (3) the family court’s equitable

distribution related to the value of the marital home; (4) the family court’s failure to

award him the value of improvements made to the marital home and (5) the family

court’s failure to include the Wife’s business income and failure to consider the reduction

in the Husband’s business income for calculation of child support. In a twenty-page

order entered on May 3, 2013, the circuit court affirmed most of the family court’s

rulings, with the exception of the limitations on the Husband’s visitation with the child.

The circuit court found that the family court abused its discretion when it limited the

Husband’s visitation because of potential conflicts with other persons. The circuit court

reversed the family court’s visitation time, and ordered that the Husband have parenting

time with the child every other weekend, beginning at 6 p.m. on Friday and ending

Sunday at 8 p.m. The circuit court also authorized the Husband to take the child out of

state, contingent upon the Wife being notified at least one week prior to the trip, the trip

not interfering with school and the Husband and child returning home on the same day.

The Husband timely appealed this order to this Court.

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 II.

STANDARD OF REVIEW

This Court’s well-established standard of review of domestic relations

proceedings was set forth in the syllabus of Carr v. Hancock, 216 W. Va. 474, 607

S.E.2d 803 (2004).

In reviewing a final order entered by a circuit court
judge upon a review of, or upon a refusal to review, 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.

We also note that complicating this appeal were numerous pleadings and

documents filed by the self-represented Husband that did not relate to the order being

appealed.2 This Court has weeded through many pleadings that relate to matters

2
We note, for example, that the Husband’s pleadings are often repetitive and not
necessarily on point for the subject task. The memorandum brief filed by the Husband is
styled as being in support of a motion for expedited hearing on Husband’s appeal, when it
is in fact the brief in support of his appeal. Contained therein are a number of allegations,
some of which are pertinent to the present appeal, but many relate to the various
modification attempts of the family court’s order and contempt proceedings in this
matter. There are many references to matters not contained in the record, including
references to postings by the Husband in his Internet blog. The New Oxford American
Dictionary 183 (3rd Ed. 2010) defines a blog as “a personal website or webpage on which
an individual records opinions, links to other sites, etc., on a regular basis.”

The record also contains a number of nonsensical pleadings, including a document
entitled “Order of Sanctions” authored by the Husband, in which the Husband “orders” in
part that the presiding judge pay to the Husband and his son an incredible and
unimaginable sum of money for various perceived wrongs to the Husband. For one such
“infraction,” the Husband demands that Judge Kelly pay “one million trillion dollars” for
(continued . . .)
4
occurring after date of the order being appealed, including additional citations for

contempt against the Husband and the Husband’s petitions for modifications and

contempt.

being a “total [sic] corrupt, arroganrt [sic], incompetent jackass.” For failing to require
the Wife to undergo a psychological evaluation, the Husband attempts to impose a $999
trillion per day sanction on the Wife for every day since the exam was ordered.

This particular document was accompanied by a document entitled “Order of Lien
and Garnishment” in which the Husband attempts to encumber Judge Kelly’s home
(identified by address) and attach his wages as payment of the aforesaid “Order of
Sanctions.”

On June 18, 2012, the Chief Justice of this Court entered an administrative order
regarding the Husband’s pattern and practice of directly e-mailing the Justices, sending
text messages to the Justices’ mobile telephones and making telephone calls (some of
them to the Justices’ home telephones) regarding the pending divorce case and especially
Judge Kelly. In this order, the Husband was directed to “comply with the appropriate
court rules, none of which permit litigants to contact court officials via personal
telephone calls, e-mails, or text messages.” The order further ordered that “any future
telephone calls, e-mails, e-mail attachments or text messages from [the Husband] to court
officials in this State may be disregarded.” Finally, this order directed that “any further
communications from [the Husband] to court officials or employees of the court system
that are vexatious, frivolous, or do not comply with the terms of this order will be
referred to the appropriate authorities for possible criminal prosecution.”

Despite these shortcomings, we believe the record is adequate for the purposes of
our review of the Husband’s appeal.

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 III.

ANALYSIS

The Husband’s three areas of appeal are as follows: (1) allocation of

custodial responsibility of the parties’ child to Wife; (2) equitable distribution of the

marital estate; and (3) failure of the Wife to undergo a psychological evaluation as

ordered by the family court. We will address each area separately.

A.

Allocation of custodial responsibility

In its final order, the family court allocated parental responsibility to the

Wife over the objections of the Husband. The Husband was granted visitation with his

child every other Saturday and Sunday for a set period of time with no overnights. The

Husband was also prohibited from taking the child out of state. The family court found

that it would be harmful to the parties’ child to have further parenting time with the

Husband.3 The family court relied upon the Wife’s testimony, the psychiatric and

psychological evaluations of the Husband and the Husband’s conduct during the

pendency of these proceedings in allocating parenting time.

3
The temporary order entered in the beginning of this case had granted additional
parenting time to the Husband in the form of a mid-week visit. Hence, the final order
represented a reduction in the Husband’s time with the child.

6
 1. The Wife’s testimony

The Wife argued for restrictions on the Husband’s parenting time, citing the

Husband’s diagnosed personality disorder and his “inability to control his impulse to

generate interpersonal conflict.” The Wife detailed the Husband’s numerous arrests,4

anecdotal incidents of outbursts at hotels with his family present, and “sustained

harassment of private individuals and companies as well as various public officials and

entities.”

The family court order noted that the Husband’s and Wife’s application to

become foster parents was denied because of the Husband’s behavior. The family court

found that the Wife was concerned “not that [the Husband] will directly harm [the child],

but that he will create conflict with third parties which might scare or alarm or traumatize

[the child] or place the young child in reasonable apprehension of bodily harm caused by

others, or, [the Husband] is arrested yet again, might result in the child being placed in

the temporary care of unknown private or public third parties until [the Wife] can retrieve

him.”

4
The family court found that the Husband was arrested in 2007 for making
harassing, obscene and threatening phone calls. In 2008 the Husband was arrested for
trespassing and assault. In 2009 the Husband was arrested for trespassing. In October of
2012, at the conclusion of the first day of his final divorce hearing, the Husband was
arrested for making harassing phone calls. During his psychological evaluation by Dr.
Hudson, the Husband stated that these arrests were “small-town retaliation against
reporters.”

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 2. Psychiatric and psychological evaluations

A psychological evaluation of the Husband was conducted by Clifton R.

Hudson, Ph.D., in 2012. Dr. Hudson’s evaluation included reviewing a 2008 psychiatric

evaluation of the Husband performed by Daniel Thistlethwaite, M.D.,5 in an unrelated

civil litigation instituted by the Husband and Wife seeking damages against a major

retailer that built a store near the parties’ home in Putnam County.

The family court order noted that in 2008, Dr. Thistlethwaite found that the

Husband had a personality disorder, not otherwise specified, with narcissistic and

paranoid traits. He also found that the Husband was malingering, with significant

symptom exaggeration on psychological instruments designed to reveal exaggeration of

cognitive deficits. He concluded that there was no evidence that the Husband was

suffering from a psychiatric illness as a result of stress caused by the construction of a

retail outlet near his home. However, Dr. Thistlethwaite found that the Husband “has

been distressed, upset and angered by what he perceives as improper due process and

believe that he is the target of the authorities. All of this is the result of a severe

personality disorder which predates any of the alleged stressors.”

Dr. Thistlethwaite also found that [the Husband]’s “psychological profile

and behavior would suggest that he has a propensity for aggressive behavior. No history

5
Throughout the underlying orders, Dr. Thistlethwaite’s name is spelled Thistlewaite.

8
of overt violence is found; however, given his degree of agitation and volatility noted

during our examination, any threats made by [the Husband] should be taken seriously and

dealt with appropriately.” Dr. Thistlethwaite also found that the Husband “sees little need

for changes in his behavior.”

Dr. Hudson’s evaluation of the Husband made similar conclusions,

including a finding that the Husband has a personality disorder, not otherwise specified.

Dr. Hudson’s conclusions were not the same as Dr. Thistlethwaite’s regarding the

Husband’s potential for violence. While Dr. Hudson found that the Husband likely posed

no direct threat of harm to the child, he was concerned that the Husband’s continued

interpersonal conflicts presented an increased risk of harm. Dr. Hudson found:

[The Husband’s] clinical interview was most significant for
an apparent pattern of conflictual interpersonal relationships.
While [the Husband] frames these in terms of his tenacity in
standing up for his own rights and those of his family, it
appears that he has a persistent tendency to allow his
emotions to dictate certain aspects of his behavior, resulting
in circumstances counterproductive to his own stated goals.
He appears lacking in awareness of his own contribution to
these conflicts, instead focusing on his perceptions of the
inappropriate behavior of others and his expectations that
others should treat him fairly even when he has angered them.
It appears likely that [the Husband] will continue to generate
interpersonal conflict and that his son will ultimately have
some degree of exposure to that conflict.

Dr. Hudson’s opinion differed with that of Dr. Thistlethwaite regarding the

Husband’s potential for harm to the child because of his personality disorder. Dr,

9
Hudson stated that “while it is true that personality disorder characteristics such as those

that Dr. Thistlethwaite observed . . . constitute a risk factor for violence,” this would be

one of many such factors and in isolation could not be construed as “significantly

elevating violence risk in an individual without a known history of significant violence.”

He noted that while the Husband’s past behavior was the most valid indicator of future

behavior, he saw no sign that the Husband’s current behavior placed the parties’ son in

danger of mistreatment.

3. The Husband’s conduct during these proceedings

During the pendency of these proceedings, the family court was exposed to

evidence of the Husband’s personality disorder. Eighteen pages of the final order are

devoted to the Husband’s conduct during this time. The family court found that the

husband’s personality disorder became “even more bizarre, irrational and divorced from

reality” as the divorce proceeding continued. Judge Kelly found that the Husband’s

“mental unraveling” began with the entry of an uncontested temporary order on January

27, 2012, that contained the admonition that the Husband could not remove the child

from the State of West Virginia without the family court’s written permission. The

restriction was made part of the temporary order because of the Husband’s diagnosed

personality disorder.

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 Throughout these proceedings, the Husband has referred to Judge Kelly and

his court by pejorative names.6 The family court detailed these names as well as many

events and incidents involving the Husband’s behavior during the pendency of these

proceedings. One such event happened on April 27, 2012, when the Husband submitted

a fabricated letter to this Court, ostensibly from Judge Kelly, in which Judge Kelly

appeared to resign from office.7

6
The Husband has stated that Judge Kelly “writes checks his brain cannot cash”;
“is a menace to society that should be imprisoned”; “is the poster child for a lifetime
admittance to Mildred Mitchell Bateman,” a state-run hospital for the mentally ill; is a
“wacky judge”; is a “so-called judge”; “ignores reality”; “is anti-children, anti-fathers and
anti-reality”; “is subhuman excrement”; “has refused to recuse his sorry self from this
case and has refused to step down from the bench as he is incompetent and an
embarrassment to the legal profession” among other statements.
7
The letter, as included in the final order, was addressed to the Clerk of this Court
and stated as follows:

I Michael J. Kelly have violated the rights of [the
child] and [the Husband.] I allowed [the Wife’s counsel] to
repeatedly lied (sic) in court. I refused to allow [the
Husband] to correct [the Wife’s counsel’s] lies and
improperly threatened to throw [the Husband] out of a
conference call hearing. I have repeatedly refused to correct
my improper temporary order. I violated [the child’s] right to
a Spring Break vacation in Myrtle Beach. I am an
embarrassment to the legal profession. Therefore, I
immediately vacate my temporary order. I award [the
Husband] the marital home and full custody of [the child]
immediately. I then resign my position as Kanawha County
Family Court judge due to my incompetency and arrogance. I
agree to move to another state and never practice law or hold
public office again.

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 The disdain and rage of the Husband toward this Court, the entire court

system and especially toward Judge Kelly, has permeated a majority of his self-filed

pleadings. The Husband has made a number of impossible-to-achieve and nonsensical

requests and demands of the Family Court and this Court during the course of these

proceedings. The following is not an exhaustive list, but illustrative of the Husband’s

conduct: (1) that Judge Kelly reincarnate his deceased mother so that she, the Husband

and the child may have a final visit; (2) that after Judge Kelly reincarnates the Husband’s

deceased mother, that he pay for a trip for the Husband and his son to visit with her; (3)

that Judge Kelly build a zoo in West Virginia and move the Atlantic Ocean to the State of

West Virginia; and (4) that Judge Kelly pay for trips to amusement parks and other

attractions for the Husband, his child, the child’s classmates and his teachers.

The family court found that the Husband’s personality disorder not only

surfaced during the course of this litigation but that the Husband’s behavior became

“even more bizarre, irrational and divorced from reality as the case progressed, leading

the Court to conclude that the risk that [the Husband] will become violent.” The family

court’s final order detailed page after page of the Husband’s demands and requests of this

Court. Also detailed in the final order are incidents of name-calling of the Wife’s

12
counsel, Judge Kelly, and other persons who became involved in this case, such as

members of the Judicial Investigation Commission.8

4. Analysis of the lower courts’ orders

On the basis of all this evidence, the family court found that the parties’

child should live primarily with the Wife. The Wife was awarded all decision-making

authority, including the right to limit or eliminate the Husband’s contact with day care

providers, day care centers, schools, churches, doctors’ offices or other service

providers.9 The Husband was allocated parenting time every other weekend, for a set

period of time on Saturday and Sunday, with no overnight visitation. Further, the

Husband was prohibited from taking the child from West Virginia during his parenting

time.

8
The Husband has filed pleadings in this case seeking the disbarment,
imprisonment and imposition of monetary sanctions upon his wife’s former attorney,
Henry Glass.
9
The family court found that “there is no doubt that [the Husband] will bully,
degrade and infuriate every provider with whom he disagrees or who has refused to
accommodate his odious and malicious conduct.” This limitation was based on the
Husband’s persistent accusations of wrongdoing by the child’s day care provider. These
accusations were accompanied by “enraged, rude, disrespectful and excessively
demanding phone calls” to the day care center. The Husband was denied an order
prohibiting the child’s day care provider from being within 1,000 miles of the child. The
Husband called the child’s day care provider a danger to the child and someone who
engages in “erratic, mentally unstable behavior.” The day care provider sought and was
awarded a protective order against the Husband.

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 The family court concluded that

[the Husband]’s personality disorder has in the past,
and much more likely than not will in the future, put [the
child] at an increased risk of harm caused by third parties
reacting to [the Husband]’s belligerent, obnoxious and
provoking behavior. He simply is incapable of controlling
himself. [The Husband] may return to Court when the child
reaches the age of ten and is better able to protect himself
from his father’s tirades (e.g. by using a phone to call his
mother) and/or [The Husband] has completed a regimen of
psychotherapy, as recommended by Dr. Hudson, designed to
augment his ability to control himself and avoid the conflict
which he currently creates and revels in.”

Upon appeal to the Circuit Court of Putnam County, the Husband sought a

reversal of the family court’s allocation of custody to the Wife. Following a hearing the

circuit court did reverse the family court’s parenting time, finding that “there is little

evidence that [the Husband] actually poses a threat to the well-being of the child.”

(Emphasis in original). The circuit court relied upon Dr. Hudson’s findings and

testimony in increasing the Husband’s time with his child to include overnights from

Friday at 6 p.m. to Sunday at 8 p.m. every other weekend.

The circuit court’s order stated as follows:

In summary, the child has never been harmed or abused while
in the custody of [the Husband]. The Court does recognize a
potential risk of subjecting the child to observe [the
Husband’s] repeated engagement in conflict. However, this
Court does not find that the potential for the child to witness a
dispute between his father and another adult, with a lack of
violence in [the Husband’s] history, does not warrant

14
 limitation of his parenting time with his child. Such potential,
by itself, does not make [the Husband] an unfit parent.

Both the family court and the circuit court based their findings and

conclusions on the best interests of the child. “In visitation as well as custody matters,

we have traditionally held paramount the best interests of the child.” Syl. pt. 5, Carter v.

Carter, 196 W.Va. 239, 470 S.E.2d 193 (1996).

Where the two orders differ is in the impact of the Husband’s

uncontroverted personality disorder and his bizarre conduct in judicial proceedings on his

interaction with the child. The family court, in analyzing the evidence in this case, found

that there was a potential for harm to the child because of the Husband’s conflict-filled

relationships with others. The family court cited anecdotal evidence of the Husband’s

behavior, including an incident in an out-of-state airport where the Husband, Wife and

child were escorted off the premises, as well as his recent arrests for harassment and

trespassing. The family court relied upon the Husband’s conflicted relationship with the

child’s day care provider, including the fact that the provider had obtained a protective

order against the Husband. The family court also relied upon its first-hand observations

and interactions with the Husband to reconcile the differences between the report of Dr.

Thistlethwaite, which suggested that the Husband’s personality disorder posed a danger

to those persons threatened, and the report of Dr. Hudson, which tended to discount the

purported danger because of no evidence of harm to the child.

15
 Conversely, the circuit court focused on the lack of physical harm to the

child to date in reversing the family court’s limitations on the Husband’s parenting time

with the child. The circuit court placed a greater emphasis on the report of Dr. Hudson,

whereas the family court’s order was based more upon the recommendations and

opinions of Dr. Thistlethwaite.

We believe that the family court was in a superior position to gauge the risk

of harm to the child because of the Husband’s peculiar behavior. The family court

interacted with the Husband over an extended period of time, holding hours of hearings,

reviewing hundreds of pages of pleadings and evidence and interacting with the parties at

length. The circuit court’s interaction was more limited in nature, with limited pleadings

and one hearing on the appeal.

We are reminded that the circuit court’s standard of review of the family

court’s order is similar to our review of the circuit court’s order, and that “[i]n a contest

involving the custody of an infant the welfare of the child is the polar star by which the

discretion of the court will be guided.” Syl. pt. 2, State ex rel. Lipscomb v. Joplin, 131

W.Va. 302, 47 S.E.2d 221 (1948). We have further held that the circuit court cannot base

its decision to reverse the family court on its beliefs that it may have ruled differently

given the same evidence. A circuit court may not substitute its findings of fact for those

of a family court judge merely because it disagrees with those findings. See, syl. pt. 4, in

16
part, Stephen L.H. v. Sherry L.H., 195 W.Va. 384, 465 S.E.2d 841 (1995)(“[A] circuit

court may not substitute its own findings of fact for those of a [family court judge]

merely because it disagrees with those findings.”).

Applying that standard of review, we see no clear abuse of discretion on the

part of the family court in how it allocated parental responsibility to the parties. We find

the circuit court’s assessment of error on the part of the family court to be incorrect.

Because of the Husband’s confirmed propensity for interpersonal conflict, we agree that

the family court’s concerns for the child’s safety warrant restriction of the Husband’s

time with the child. While the circuit court was correct that there had been no actual

physical harm to the child thus far because of his father’s conflict-seeking tendencies, the

family court recognized and emphasized that there exists potential for grave harm to this

child if he is in the care, custody and control of the Husband when trouble arises. The

family court’s focus was keenly on the child’s best interests. The family court’s

limitations of the Husband’s contact are amply supported by the evidence, and it was an

abuse of the circuit court’s discretion to overrule the family court’s order in this regard.

We therefore reverse the order of the circuit court insofar as it relates to the Husband’s

parenting time and direct reinstatement of the order of the family court on allocation of

parenting.

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 B.

Equitable distribution of the marital residence

During the course of the parties’ marriage, the Husband and Wife resided in

a home that was purchased prior to the marriage by the Wife and her mother. At no time

during the parties’ marriage did the Wife undertake to place the Husband’s name on the

deed to the home. Neither the Husband nor the Wife had the marital home appraised for

its value at the time of the parties’ separation. The Husband asserted a claim for one-half

of the difference in value of the home from the date of the parties’ separation and the

asking price of the home, which was listed for sale during the pendency of these

proceedings, but cited no authority for this way of valuing any interest that he may have

had in the home. The Husband also sought to be reimbursed for $12,750 in improvements

allegedly made to the home by him, including an entertainment center, the child’s swing

set and photographs of the child.

The family court found that the marital home was not marital property. The

family court set the value of the home at $16,000, which figure represented the reduction

in the mortgage indebtedness on the marital home prior to separation. The family court

denied the request for reimbursement for improvements to the house alleged to have been

made by the Husband, finding that some of the requested reimbursements were for items

that were clearly not improvements to the real estate, and further finding that there was

no evidence to support the increase in value of the house as a result of these

improvements.

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 The family court awarded the marital home to the Wife, free and clear of

any claim of the Husband. The circuit court affirmed the family court’s order, finding that

there was no abuse of discretion in the value assigned to the marital home or the finding

that the home was not marital property. The circuit court also affirmed the family court’s

decision denying the Husband’s request for reimbursement for improvements to the

marital home.

W. Va. Code § 48-7-103 (2001) provides a statutory mechanism for

distributing the property acquired during the course of a marriage.10 The process was

10
W. Va. Code § 48-7-103 states

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:
(A) Employment income and other earnings; and
(B) Funds which are separate property.
(2) The extent to which each party has contributed to
the acquisition, preservation and maintenance or increase in
value of marital property by nonmonetary contributions,
including, but not limited to:
(A) Homemaker services;
(B) Child care services;
(continued . . .)
19
explained in syllabus point 1 of Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413

(1990), in which we held that

Equitable distribution under W. Va. Code, 48-2-1, [now 48-7-
103] et seq., is a three-step process. The first step is to
classify the parties’ property as marital or nonmarital. 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 W. Va. Code, 48-2-32.

(C) Labor performed without compensation, or for less
than adequate compensation, in a family business or other
business entity in which one or both of the parties has an
interest;
(D) Labor performed in the actual maintenance or
improvement of tangible marital property; and
(E) Labor performed in the management or investment
of assets which are marital property.
(3) The extent to which each party expended his or her
efforts during the marriage in a manner which limited or
decreased such party's income-earning ability or increased the
income-earning ability of the other party, including, but not
limited to:
(A) Direct or indirect contributions by either party to
the education or training of the other party which has
increased the income-earning ability of such other party; and
(B) Foregoing by either party of employment or other
income-earning activity through an understanding of the
parties or at the insistence of the other party.
(4) The extent to which each party, during the
marriage, may have conducted himself or herself so as to
dissipate or depreciate the value of the marital property of the
parties: Provided, That except for a consideration of the
economic consequences of conduct as provided for in this
subdivision, fault or marital misconduct shall not be
considered by the court in determining the proper distribution
of marital property.

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 In the case before us, the family court performed the Whiting analysis,

determining first that the home in which the parties resided was not a marital asset. The

circuit court affirmed that ruling. Our review of the case leads us to the same conclusion.

The marital home, in terms of classification as a non-marital asset or a marital asset, was

correctly determined to be a non-marital asset. The house was purchased by the Wife and

her mother prior to the marriage. The Wife took no steps to make this home a marital

asset.

The Husband asserts a claim for the value of the improvements, appearing

to argue that he is entitled to a dollar-for-dollar reimbursement for alleged improvements

he made to the home. The family court found that the Husband did not meet his burden

of proving to the court that there were in fact any improvements, or how those

improvements would have increased the value of the marital home. The circuit court

affirmed that ruling. Upon our review, we affirm the circuit court’s affirmation of the

family court on this assignment of error.

C.

Wife’s failure to undergo a psychological evaluation

The Husband contends that the family court erred when it held the Wife in

contempt for failing to undergo a psychological evaluation and fined her $100 for her

violation of the court’s order. The Husband posits that the Wife’s failure to undergo this

evaluation mandates that he be allocated the majority of custodial responsibility for the

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parties’ child. In addition, he argues that “there is no way of knowing if the child is safe,

that is [sic] welfare is being attended to, or that he is happy” because the evaluation was

not performed. The Wife argued that she was unable to pay for the evaluation and

accepted the court’s sanctions.

In Deitz v. Deitz, 222 W.Va. 46, 54, 659 S.E.2d 331, 340 (2008), we

acknowledged that “[a]n integral part of the family court’s authority to enter final orders

of divorce is its corresponding power to enforce those orders through contempt

proceedings.” If the family court cannot enforce its orders, the court’s actions are

without meaning. The family court’s enforcement of those orders is within the discretion

of the family court.11

11
As we stated in Deitz v. Deitz, 222 W. Va. 46, 59, 59 S.E.2d 331, 344 (2008),

In this regard, we have observed that “the law is ... not to be
lightly mocked,” and a court may, therefore, “impos[e]
whatever legal sanctions it ch[ooses] to compel the
[contemnor’s] acquiescence to the court’s authority.”
Donahoe v. Donahoe, 219 W. Va. 102, 105, 632 S.E.2d 42,
45 (2006) (per curiam). Accord Armstrong v. Armstrong, 201
W.Va. 244, 248, 496 S.E.2d 194, 198 (1997) (per curiam)
(directing circuit court to determine whether contemnor had
ability to pay monies pursuant to divorce decree, and, if he
had such ability to pay, further instructing circuit court to
hold contemnor “in civil contempt with an appropriate
sanction until the monies owed under the divorce decree are
paid in full”).

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 Applying our standard of review to the instant appeal, we see no clear error

in the lower court’s findings of fact regarding the Wife’s failure to undergo the court-

ordered psychological testing. We further see no abuse of the court’s discretion in

assessing a modest monetary sanction against the Wife. While it was the Husband’s

motion for the parties to undergo psychological testing, our review of the underlying

record does not reveal any outward signs of psychological issues or strange behavior on

the part of the Wife that would have some bearing on her parenting of the child. The

Husband’s conduct throughout these proceedings, however, all viewed by Judge Kelly

over a period of months, is strongly supportive of his need for such an evaluation. This

assignment of error is without merit and we find no reversible error on this ground.

IV.

CONCLUSION

For the reasons set forth herein, we reverse the order of the Circuit Court of

Putnam County, insofar as it expanded the Husband’s parenting time with the parties’

child, and affirm the lower court’s affirmation of the remainder of the family court’s

well-reasoned, well-documented and legally sound order of January 22, 2013. 12 We

remand this case to the Circuit Court of Putnam County, with directions to remand this

12
At oral argument of this appeal, both parties acknowledged that the child
support established in the January 22, 2013, family court order has been reduced. The
amount of child support was not assigned as error by the Husband, and we do not address
the child support in this opinion.

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matter to the Family Court of Putnam County for reinstatement of the January 22, 2013,

family court order, as set forth herein. The mandate of this Court shall be entered

forthwith.

Affirmed, in part, reversed, in part, and remanded, with directions.

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