IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
Anne Y., May 22, 2023
Petitioner Below, Petitioner EDYTHE NASH GAISER, CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 22-ICA-229 (Fam. Ct. Cabell Cnty. No. 21-D-493)
Daniel Y.,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Anne Y.1 appeals the Family Court of Cabell County’s October 6, 2022,
order denying her motion for reconsideration of the parties’ property settlement agreement,
which was ratified by the family court and incorporated in the parties’ final divorce order.2
Respondent Daniel Y. filed a timely response.3 Anne Y. filed a reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ oral and written arguments, the record on
appeal, and applicable law, this Court finds no substantial question of law, no prejudicial
error, and no abuse of discretion. 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 2003 and are the parents of three minor children. Daniel
Y. is an attorney in West Virginia. Anne Y. has worked as a financial analyst, realtor, and
previously served as a public official in Cabell County. In September of 2021, the parties
1
Consistent with our practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved in the case. See W. Va. R. App. Pro
40(e)(1); State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1
(1990).
2
We note that West Virginia Code § 51-2A-10(a) provides that a party to a family
court proceeding may seek a reconsideration of an order for a list of reasons almost
identical to that set forth in Rule 60(b) of the West Virginia Rules of Civil Procedure. See
David C. v. Mallory M., No. 15-0063, 2015 WL 7628825 (W. Va. November 23, 2015)
(memorandum decision).
3
Anne Y. is represented by Jennifer D. Ransbottom, Esq. Daniel Y. is represented
by Amy C. Crossan, Esq.
1
separated, and, on October 21, 2021, Anne Y. filed for divorce and filed a corresponding
financial disclosure.4 Thereafter, a settlement agreement was drafted to reflect the parties’
agreement as to all issues related to child custody, spousal support, and the parties’ assets.5
The settlement agreement, at Section 5, specifically referenced the parties’ interest in
Daniel Y.’s law firm, the parties’ debts and other assets (including marital home, vacation
home, rental property, vehicles, bank accounts, life insurance, retirement accounts, and
household goods). The settlement agreement further noted that Daniel Y. would pay
spousal support.
On January 13, 2022, a final divorce hearing was held before the family court.
During that hearing the parties were self-represented and participated in the hearing via
remote technology. While both parties were self-represented, it was understood by the
family court and both parties that Anne Y. and Daniel Y. had individually received advice
from separate legal counsel as to the settlement agreement and final divorce proceedings.6
At the January 13, 2022, hearing, the parties presented their settlement agreement
to the court and confirmed that the agreement embodied the terms to which they concurred.
The court asked both parties if there was anything not in the settlement agreement that the
parties believed should be talked about or brought up during the final divorce hearing, and
both parties responded, “No.” As neither party was represented by counsel, the family court
indicated that it would prepare the final order, within a week of receipt of parties’ executed
settlement agreement. Thereafter, Anne Y. delivered the parties’ executed settlement
4
In her financial disclosure, filed in conjunction with her petition for divorce, Anne
Y. listed Daniel Y.’s interest in his law firm as an asset but indicated that she did not know
the value of the interest by noting a “?’ as to the value. It is undisputed that Daniel Y. did
not file a financial disclosure with his response to Anne Y.’s petition for divorce.
5
There is a factual dispute between the parties as to which party actually drafted the
settlement agreement. In her Motion for Reconsideration Of The Final Order’s Property
Settlement Agreement, at paragraph 4, Anne Y. asserts that the settlement agreement was
drafted by Daniel Y. However, in his brief before this Court, at page 3, Daniel Y. states
that prior to filing for divorce, Anne Y. presented to him a proposed settlement agreement
that was “obviously prepared by” Attorney Jennifer Ransbottom, Anne Y’s current
counsel. Regardless of who prepared the settlement agreement there is no dispute that when
the settlement agreement was presented to the family court, both parties acknowledged
their agreement to the terms and conditions of the same.
6
In its October 6, 2022, order, the family court found that while Anne Y. was “self-
represented, it is apparent that she consulted with an experienced family law attorney as
she proceeded with the divorce.” Further, the court noted that while Daniel Y. is an
attorney, neither he nor his then law firm “practice family law.”
2
agreement to the court, and, on February 8, 2022, the family court’s Findings of Fact,
Conclusions of Law, and Final Order was entered.
In its February 8, 2022, order, the court found that the parties agreed upon a property
settlement and the court incorporated, without any changes or amendments, the parties’
settlement agreement as part of the final order. Thereafter, upon learning of Daniel Y.’s
departure from his law firm and his associated petition requesting a reduction in his child
support obligation (filed on June 28, 2022), Anne Y. filed a Motion For Reconsideration
Of The Final Order’s Property Settlement Agreement, pursuant to West Virginia Code §
51-2A-10(a)(5).7 By order entered on October 6, 2022, the family court denied Anne Y.’s
motion for reconsideration and found that “the parties represented to the court that they
had an agreement on all matters, which included parenting, spousal support, and equitable
distribution of property. Their agreement was placed upon the record for the court and
confirmed by the parties.”
The court further found that while Anne Y. was self-represented, it was apparent
“that she consulted with an experienced family law attorney as she proceeded with the
divorce.” The family court determined that the “parties went through their agreement at the
final hearing and confirmed their desire for their agreement to become the order of the
court and subsequently provided the court with a written executed copy of the agreement.”
The court also noted that Anne Y. “was the driving force pursuing the divorce[;]” that
Daniel Y. “did not appear to want the divorce and he was not rushing the divorce
through[;]” and that both “parties participated in the final hearing and were given an
opportunity to ask questions” of the court and each other. It is from the October 6, 2022,
order that Anne Y. now appeals.
Generally, we note that in reviewing petitioner’s claims, we consider such claims
under the same parameters as a motion to vacate a judgment made pursuant to Rule 60(b)
of the West Virginia Rules of Civil Procedure. Here, the motion that forms the basis of the
family court’s October 6, 2022, order, was made pursuant to West Virginia Code § 51-2A-
7
West Virginia Code § 51-2A-10(a)(2001) provides, in part, that:
[a]ny party may file a motion for reconsideration of a . . . 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.
3
10(a). The Supreme Court of Appeals of West Virginia (“SCAWV”) has addressed such
motions and found that:
In Ray v. Ray, 216 W. Va. 11, 14 n.13, 602 S.E.2d 454, 457 n.13 (2004),
overruled on other grounds by Allen v. Allen, 226 W. Va. 384, 701 S.E.2d
106 (2009), we found that motions pursuant to West Virginia Code § 51-2A-
10 have replaced motions for relief from judgment under Rule 60(b) of the
West Virginia Rules of Civil Procedure in the family court.
Robert Brumfield v. Christina McComas, No. 22-0037, 2023 WL 1798562 (W. Va.
February 7, 2023) (memorandum decision).
Additionally, the SCAWV has held that “[a] motion to vacate a judgment made
pursuant to Rule 60(b) . . . is addressed to the sound discretion of the court and the court’s
ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse
of such discretion.” Syl. Pt. 5, Toler v. Shelton, 157 W. Va. 778, 204 S.E.2d 85 (1974).
Moreover, in addressing such appeals, the SCAWV has reasoned that “‘[a]n appeal of the
denial of a Rule 60(b) motion brings to consideration for review only the order of denial
itself and not . . . the final judgment order’ Syllabus Point 3, Toler v. Shelton, 157 W. Va.
778, 204 S.E.2d 85 (1974).” Syl. Pt. 1, Builders’ Serv. and Supply Co. v. Dempsey, 224 W.
Va. 80, 680 S.E.2d 95 (2009).
As to settlement agreements in family law cases, West Virginia Code § 48-6-101(a)
(2001) defines “[p]roperty settlement or separation agreement[s]” to include “a written
agreement between a husband and wife whereby they agree to live separate and apart from
each other[,]” which could include the agreement to “[s]ettle the property rights of the
parties[.]” Further, the SCAWV has held “this Court favors fair and equitable contracts
between divorcing parties.” Nakashima v. Nakashina, 171 W. Va. 9, 11, 297 S.E.2d 208,
210 (1982).
West Virginia Code § 48-6-201(a) (2001) provides, in pertinent part, that:
[i]n cases where the parties . . . have executed a separation agreement, if the
court finds that the agreement is fair and reasonable, and not obtained by
fraud, duress or other unconscionable conduct by one of the parties, and
further finds that the parties, through the separation agreement, have
expressed themselves in terms which, if incorporated into a judicial order,
would be enforceable by a court in future proceedings, then the court shall
conform the relief which it is authorized to order . . . The separation
agreement may contractually fix the division of property between the parties
and may determine whether spousal support shall be awarded. . .
Further, West Virginia Code § 48-7-102 (2001) states that:
4
In cases where the parties . . . have executed a separation agreement, then the
court shall divide the marital property in accordance with the terms of the
agreement, unless the court finds: (1) That the agreement was obtained by
fraud, duress or otherwise unconscionable conduct by one of the parties; or
(2) That the parties, in the separation agreement, have not expressed
themselves in terms which, if incorporated into a judicial order, would be
enforceable by a court in future proceedings; or (3) That the agreement,
viewed in context of the actual contributions of the respective parties to the
net value of the marital property of the parties, is so inequitable as to defeat
the purposes of this section, and such agreement was inequitable at the time
the same was executed.
With these principals in mind, we now address Anne Y.’s two assignments of error
on appeal, which we will address in turn. In her first assignment of error, she argues that
the family court erred by approving the settlement agreement without requiring Daniel Y.
to file a financial disclosure. We disagree.
West Virginia Code § 48-7-206(1) (2001) provides, in part, that “[u]pon the failure
by either party timely to file a complete disclosure statement . . . , the court may accept the
statement of the other party as accurate.” In the instant case, that is exactly what the family
court did.
The petitioner argues that the family court erred in enforcing the settlement
agreement when Daniel Y. did not file a financial statement and because the financial
statement filed by Anne Y. indicated a “?” when noting the value of Daniel Y.’s law firm.
We, like the family court, find her argument in that regard to be without merit.8 Anne Y.
knew that Daniel Y. may have an interest in the law firm where he then worked. Her
understanding as to the same is evidenced by her inclusion of Daniel Y.’s law firm on her
disclosure form. We further agree with the family court’s reasoning that Anne Y. did not
have the law firm valued or pursue discovery as to this issue and “appeared more interested
in obtaining the divorce quickly and minimizing costs.” Accordingly, we find no error. The
family court did not abuse its discretion in denying Anne Y.’s motion for reconsideration.
In her second assignment of error, Anne Y. contends that the circuit court erred in
not setting aside the settlement agreement after Anne Y. pointed out the lack of financial
information in the record. Again, we disagree and find no error. In Clay v. Clay, 182 W.
Va. 414, 419, 388 S.E.2d 288, 293 (1989), the SCAWV considered:
8
Anne Y.’s argument that State ex rel St. Clair v. Howard, 244 W. Va. 679, 856 S.E.2d
638 (2021) is applicable was also found to be without merit by the family court. Unlike St. Clair,
Daniel Y., an attorney, was not the driving force behind the divorce and both parties participated
in the final hearing. We agree with the family court that St. Clair is distinguishable.
5
whether the trial court could look behind a written separation agreement to
determine its fairness where both parties were represented by counsel and
testified they were satisfied with the settlement . . . . [and] concluded that . .
. [West Virginia Code § 48-2-32(b) (1986) now West Virginia Code § 48-7-
102(2001)] was [sic] not “intended to force upon a trial court an affirmative
duty to question the wisdom of a spouse’s apparent satisfaction with the
terms of a property settlement agreement [.]” 182 W. Va. at 418, 388 S.E.2d
at 292.
Gangopadhyay v. Gangopadhyay, 184 W. Va. 695, 700, 403 S.E.2d 712, 717 (1991). The
same reasoning is applicable in the instant case. Here, while the parties were not
represented by counsel, the family court specifically found that it was clear that both parties
had the benefit of consulting with experienced counsel.9 The family court accepted the
parties’ settlement agreement because the parties represented that they were satisfied with
the agreement, which included Daniel Y.’s share in his law firm. The settlement agreement
states that Daniel Y. “will receive his interest in the law firm and the entity owning the real
property in which it operates.” Prior to the entry of the final order incorporating the
settlement agreement, neither party objected to any of the provisions of the agreement and
made no allegations that the agreement was obtained by fraud, duress, or any other type of
unconscionable conduct.
Further, the SCAWV has long held that “[o]nce a competent party makes a
settlement and acts affirmatively to enter into such settlement, his second thoughts at a later
time as to the wisdom of the settlement [do] not constitute good cause for setting it aside.”
Moreland v. Suttmiller, 183 W. Va. 621, 625, 397 S.E.2d 910, 914 (1990). In Fridley v.
Plum, No. 15-1140, 2016 WL 6678991 (W. Va. November 14, 2016) (memorandum
decision), the SCAWV reasoned that:
“[v]oluntary settlement agreements that address and reconcile the conflicting
interests of divorcing parties should be favored by the court; such
arrangements enable parties to freely resolve their marital controversies and
order their personal affairs.[”] See generally, Strangolagalli v.
Strangolagalli, 742 N.Y.S.2d 914, 915 (N.Y. App. Div. 2002) (recognizing
judicial review of settlement agreement in divorce action is to be exercised
sparingly, with goal of encouraging parties to settle their disputes on their
own).
Upon our review of the record submitted, we find no error or abuse of discretion in
the family court’s denial of Anne Y.’s Motion For Reconsideration Of The Final Order’s
9
The experienced counsel referred to by the family court are the parties’ current counsel,
Jennifer D. Ransbottom and Amy C. Crossan.
6
Property Settlement Agreement. The record supports the family court’s well-reasoned
findings and conclusions as to the denial of Anne Y.’s Motion For Reconsideration Of The
Final Order’s Property Settlement Agreement and the propriety of the parties’ settlement
agreement.
For the foregoing reasons, we affirm the Family Court of Cabell County’s October
6, 2022.
Affirmed.
ISSUED: May 22, 2023
CONCURRED IN BY:
Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge Thomas E. Scarr
7