Christopher M. v. Lucia M.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
October 24, 2025
CHRISTOPHER M.,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 25-ICA-39 (Fam. Ct. Harrison Cnty. Case No. FC-17-2024-D-97)

LUCIA M.,
Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner Christopher M. (“Husband”)1 appeals the Family Court of Harrison
County’s December 18, 2024, Amended Decree of Divorce. Respondent Lucia M.
(“Wife”) and the guardian ad litem for the children filed responses in support of the family
court’s order.2 Husband 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 that there is error in the family court’s decision but no
substantial question of law. For the reasons set forth below, a memorandum decision
affirming, in part, vacating, in part, and remanding this matter with instructions to enter an
amended order consistent with this decision is appropriate under Rule 21 of the West
Virginia Rules of Appellate Procedure.

The parties were married in 2008 and separated in early 2024, with Husband moving
approximately six hours away from the marital home to Virginia. The parties had four
children during their relationship, who were ages eighteen, fifteen, fourteen, and thirteen
at the time the final order on appeal was entered in this matter. As such, only the three
minor children are subject to this appeal.

In March of 2024, Wife filed a divorce petition and motion for temporary relief in
the Family Court of Harrison County. On April 10, 2024, the family court held a temporary

1
To protect the confidentiality of the juveniles involved in this case, we refer to the
parties’ last name by the first initial. See, e.g., W. Va. R. App. P. 40(e); State v. Edward
Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
2
Both parties are self-represented. The guardian ad litem for the children is Allison
McClure McManus, Esq.

1
hearing on the divorce petition and Wife’s motion. On April 15, 2024, the family court
entered a temporary order, which outlined, among other things, the final hearing date and
included filing deadlines. The order temporarily awarded possession of the marital home
to Wife, awarded Husband parenting time every weekend from Friday to Sunday, awarded
monthly child support to Wife in the amount of $1,400, ordered Husband to return Wife’s
Mazda vehicle to her, ordered Wife responsible for the debt and expenses associated with
the marital home and Mazda, ordered Husband to take the necessary steps to ensure that
Wife may speak with the mortgage company throughout the pendency of the proceeding
no later than April 12, 2024, and ordered Husband’s monthly child support obligation be
reduced to $903 upon his return of the Mazda to Wife. The order also appointed a guardian
ad litem for the minor children and ordered the guardian ad litem to investigate the matters
before the court. The family court ordered all updated financial information, witness lists,
and exhibits be filed by the parties no later than July 1, 2024.

On June 17, 2024, the guardian ad litem filed her investigative report with the family
court and the circuit clerk’s office mailed copies of the report to the parties. In her report,
the guardian ad litem stated that she interviewed the parties, their four children, and Wife’s
therapist. Based on her investigation, the guardian ad litem recommended that the children
remain in the primary care of Wife and that Husband receive parenting time every other
weekend, per the children’s request. She reported that the children were very respectful,
had good grades, and had valid responses for wanting to remain with Wife; she also
observed the children were “all older, have a life, and relationships here that they are not
willing to leave.”3 While the guardian ad litem noted that Wife’s mental health history was
concerning, she reported that Wife was being treated by a therapist.

On June 28, 2024, Wife filed a motion asking the family court to order Husband to
comply with the April 15, 2024, temporary order. Wife asserted that Husband had not taken
the steps necessary to allow her to speak with the mortgage company, had not paid child
support, and had not filed any financial disclosures. By order entered July 1, 2024, the
family court ordered Husband to file his financial information and witness list. On July 2,
2024, Wife filed a motion to compel Husband’s compliance with the family court’s
temporary order. On July 2, 2024, the family court ordered Husband to immediately
comply with all provisions in the April 15, 2024, temporary order.

3
The guardian ad litem reported that the oldest minor child was going into the tenth
grade, earned straight As, was in dance class, wanted to remain with her mother, and did
not want to travel to Virginia every weekend because of her friends and activities. The
guardian ad litem stated that the middle minor child was going into the eighth grade and
wanted to remain with his mother to be closer to his friends. Lastly, the guardian ad litem
reported that the youngest minor child was going into the seventh grade, played football,
earned all As and two Bs on his last report card, and wanted to remain with his mother as
his life and friends were near her, but wanted to visit his dad.

2
On July 17, 2024, Husband filed a petition for contempt alleging that Wife had failed
to make the mortgage payments and the Mazda payments. After a hearing on Husband’s
petition, the family court did not find Wife in contempt of the court’s April 15, 2024, order.
By order entered August 23, 2024, the court found that Wife presented definitive proof that
she contacted the mortgage lender and attempted to make the mortgage payments as
ordered but that the lender refused to accept payment without first paying five delinquent
mortgage payments, three of which were incurred prior to the parties’ separation. The court
also found that Wife was forced to rent a car because Husband had not returned the Mazda
as ordered. As such, the court reasoned that Husband’s failure to timely submit paperwork
required by the mortgage company to modify the mortgage, his failure to return the Mazda
to Wife resulting in having to rent a vehicle, and his failure to pay child support prevented
Wife from timely complying with the mortgage and Mazda payments.

On July 29, 2024, Wife filed a petition for contempt on the basis that Husband still
had not complied with the April 15, 2024, temporary order by filing his financial
disclosures and witness list. Thereafter, on August 16, 2024, Husband filed his financial
disclosures and witness list. On August 26, 2024, the day scheduled for the final divorce
hearing, Husband filed a motion to continue due to an illness. Husband appeared by phone,
and Wife and the guardian ad litem appeared in person. The family court granted
Husband’s motion to continue the final hearing. Prior to the conclusion of the hearing, the
guardian ad litem stated that she would be starting new employment as an assistant
prosecuting attorney. As such, the family court informed the parties that it would be
relieving the guardian ad litem of her duties and that if either party wanted her to testify at
the final hearing, they would need to subpoena her. The court noted that the guardian ad
litem’s report was filed on June 17, 2024, and that the guardian ad litem’s new place of
employment was in the same building as the family court. The family court informed the
parties that if they did not subpoena the guardian ad litem then her report would stand on
its own. Neither party objected and Husband congratulated the guardian ad litem on her
new job.

On October 7, 2024, the family court held a final divorce hearing in the matter. The
parties presented evidence and testimony regarding the value of marital property, Wife’s
mental health history, and custodial allocation. Wife testified and acknowledged her history
of mental health issues, as well as her treatment and rehabilitation. Wife explained that she
was doing much better as she was attending therapy and taking her prescribed medications.
Wife argued in favor of primary custodial allocation due to the distance between the
parties’ residences, the children’s preferences, and Husband’s abuse of alcohol. Wife also
presented evidence and argued for an award of spousal support. Conversely, Husband
testified that he should be awarded primary custody of the children due to Wife’s mental
health issues regarding her past suicide attempts and maintained that he did not abuse
alcohol.

3
On December 18, 2024, the family court entered an Amended Divorce Order.4 At
the outset, the family court noted that Husband’s past motions and behavior had “eroded
his credibility.” Regarding equitable distribution, the family court found that Wife owed
Husband $14,603 to equalize distribution, to be paid in full by December 31, 2025, which
was outlined in an exhibit attached to the court’s order. The court required Wife to
refinance the home to remove Husband’s name from the indebtedness no later than
December 31, 2025. The family court found that charges on Wife’s cell phone bill were
related to Husband’s cell phone, and he was ordered to pay Wife $150 per month no later
than the 5th of each month until he had remedied those charges.

Regarding custodial allocation, the family court found that although there is a
presumption that it is in the children’s best interest for parenting time to be divided equally,
pursuant to West Virginia Code § 48-9-209(f)(5)(A) (2024), the six hours of driving
distance between the parties made equal parenting impossible during the school year and
that pursuant to the guardian ad litem’s report, West Virginia Code § 48-9-209(f)(5)(E)
also justified deviating from the presumption of equal custody because it was the firm and
reasonable preference of the children to live primarily with Wife. The family court also
discussed Wife’s history of mental health issues. The court found that Wife was a patient
for two weeks following a late February 2024 suicide attempt but has since participated in
treatment, therapy, and takes medication as directed by her healthcare providers. The
family court stated that evidence adduced from the hearing established that Husband
developed a drinking problem during the parties’ marriage. The family court concluded
that the presumption of equal custody was overcome and that it was in the best interests of
the children to continue residing with Wife. The court reasoned that it was in the children’s
best interest to be close to their schools, friends, and activities in which they have been
accustomed. Husband was awarded parenting time every other weekend from Friday to
Sunday during the school year and three consecutive weeks during the summer. The court
ordered the parties to communicate information on all topics via AppClose and restricted
the parties from leaving the children home alone between 10:00 p.m. and 6:00 a.m. without
an adult present.

Regarding child support, the family court found that Husband’s regular gross
income was $3,418.57 per month based on the thirteen weeks’ pay history he provided,
from an average of thirty-five hours per week at a regular pay rate. The court separately
stated that Husband earned an average of ten hours per week at an overtime pay rate of
$33.81 per hour. The court found that Wife’s gross income was $3,600.13 per month.
Pursuant to the child support guidelines, the court ordered Husband to pay $867.34 per
month beginning on January 1, 2025.

4
The family court stated that the original divorce order was amended to add
additional equitable distribution language that was inadvertently omitted.

4
In determining spousal support, the family court first noted Husband’s objection to
Wife being awarded spousal support and, thereafter, considered the spousal support factors.
The court found the following: that the parties lived together for almost sixteen years
during their marriage; Wife stayed home to care for the children during some of the
marriage; Wife has an engineering degree from Slovakia that cannot be used in the United
States of America; Husband has a high school diploma and some technical college hours;
the parties’ standard of living was limited to necessities; Wife completed one semester of
a paramedic program during their marriage and has one semester remaining; Wife’s
monthly income was $3,600.13, Husband’s monthly income was $5,500.00, each of the
parties’ monthly expenses exceeded their income but both parties had at least one other
adult residing with them who should be able to contribute to living expenses; and Wife’s
monthly phone bill was $300.00 higher because Husband and three members of his family
remain on Wife’s account. The family court found that Husband waived any claim to
spousal support based upon his not requesting the same and ordered him to pay spousal
support in gross of $250 per month to Wife for twenty-four months. It is from this
December 18, 2024, Amended Decree of Divorce that Husband now appeals.

When reviewing the order of a family court, 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).

At the outset, we note that Husband’s brief contains an assignment of error section
which fails to set forth specific assignments of error. Rather, his assignment of error section
outlines eighteen unidentified assignments of error and instead contains lengthy
arguments.5 Notably, Husband’s brief contains no separate argument section. It was,

5
Husband’s brief failed to comply with Rule 10(c) of the West Virginia Rules of
Appellate Procedure. The Supreme Court of Appeals of West Virginia (“SCAWV”)
recently explained the importance of compliance with Rule 10 in providing for clear,
concise, and organized briefs and emphasized the significance of that rule and that parties,
including self-represented parties, should not anticipate that this Court will find or make
arguments for them. See Metro Tristate, Inc. v. Pub. Serv. Comm’n of W. Va., 245 W. Va.
495, 502-03, 859 S.E.2d 438, 445-46 (2021). Rule 10(c) provides that “the petitioner’s
brief shall contain the following sections in the order indicated[.]” (Emphasis added.) The

5
therefore, a challenge to understand Husband’s various contentions because of his
“lengthy, free-flowing argument” that failed to focus on any specific assignments of error.
However, as has been our past practice, we will be mindful that “[w]hen a litigant chooses
to represent himself, it is the duty of the [court] to insure fairness, allowing reasonable
accommodations for the pro se litigant so long as no harm is done an adverse party.” Joseph
B. v. Candie G., No. 24-ICA-425, 2025 WL 1604532, at *2 (W. Va. Ct. App. June 6, 2025)
(memorandum decision) (citing Bego v. Bego, 177 W. Va. 74, 76, 350 S.E.2d 701, 703
(1986)). The gist of Husband’s relevant arguments seems to be that he was improperly
denied primary custodial allocation and spousal support, his monthly income was incorrect,
and Wife’s student loans were improperly included in the equitable distribution calculation.
Therefore, we have examined the brief, the hearing discs, and appendix record provided,
and will address Husband’s arguments to the best extent possible.

On appeal, Husband appears to argue eighteen assignments of error. Because some
assignments of error are similar, we will consolidate them and address them out of order
for efficiency and clarity of our review. See generally Tudor’s Biscuit World of Am. v.
Critchley, 229 W. Va. 396, 402, 729 S.E.2d 231, 237 (2012) (stating that “the assignments
of error will be consolidated and discussed accordingly”).

First, Husband argues that the family court erred by considering the guardian ad
litem’s investigative report in its decision. In support of his argument, Husband asserts that
the family court failed to enter an order appointing the guardian ad litem, did not provide
him with the guardian ad litem’s report until the day of the final hearing, and denied him

rule goes on to specify, in order, nine different sections that must follow the cover page
beginning with a table of contents. Id. Rule 10(c)(3) requires that the brief “open with a list
of the assignments of error that are presented for review, expressed in terms and
circumstances of the case but without unnecessary detail.” (Emphasis added). “The
practice of opening a brief with a series of assignments of error serves to alert the Court to
the singular issue or issues that may have adversely affected the outcome before the trial
court.” Wilson v. Kerr, No. 19-0933, 2020 WL 7391150, at *3 (W. Va. Dec. 16, 2020)
(memorandum decision). Clearly defining the issues presented averts the danger that “the
Court and respondent may discern different issues from a petitioner’s lengthy, free-flowing
argument.” Id. While the brief must open with a list of assignments of error presented for
review, Rule 10(c)(7) mandates that the brief contain an argument section which has
separate, distinct headings corresponding to each of the aforementioned assignments of
error. Rule 10(c)(7) also requires the separate argument section to include “citations that
pinpoint when and how the issues . . . were presented to the [family court].”5 This Court
may disregard errors that are not adequately supported by specific references to the record.
Id.

6
the opportunity to question the guardian ad litem during the final hearing.6 The family court
appointed the children’s guardian ad litem by temporary order entered on April 15, 2024,
and her report was filed on June 17, 2024. The court informed the parties at the initial final
hearing on August 26, 2024, that the guardian ad litem would be available to subpoena for
the rescheduled final hearing and that it would be a simple process since her new place of
employment was two floors above the family court. There were no objections, and Husband
congratulated the guardian ad litem on her new job. The family court also noted that
Husband was provided a copy of the guardian ad litem’s report by the circuit clerk via
postal service on June 17, 2024, and recited Husband’s Virginia mailing address. Thus, we
are unable to find that the family court erred on this issue.

Next, Husband argues that the family court erred by deviating from the presumption
of equal custodial allocation. In support of his argument, Husband contends that the court
improperly considered the preference of the children. He maintains that the children were
too young to sufficiently appreciate which parent would act in their best interest. We
disagree. Pursuant to West Virginia Code § 48-9-209(f)(5)(E) (2024), when issuing a
parenting plan, a family court must consider whether equal custody is

[c]ontrary to the firm and reasonable preferences of a child who is 14 years
of age or older; and to accommodate, if the court determines it is in the best
interests of the child, the firm and reasonable preferences of a child under 14
years of age, but sufficiently matured that he or she can intelligently express
a voluntary preference for one parent[.]

Here, the children were fifteen, fourteen, and thirteen, and the family court determined that
it was in their best interest to continue residing with Wife and have proximity to their
schools, friends, and activities. The family court found that the guardian ad litem’s report
reflected the children’s custodial wishes and “the reasons each child offered for his/her
choice.” The guardian ad litem’s report reflected that all the children were “very respectful
. . . had good grades, and valid responses for wanting to remain where they are.” Further,
the family court also found that the six-hour distance between the parties additionally
justified deviating from the presumption of equal custody. See W. Va. Code § 48-9-
209(f)(5)(A).

6
We note that Husband neither objected to the family court’s consideration of the
guardian ad litem’s report, nor her unavailability for questioning at the October 7, 2024,
final hearing. “Generally the failure to object constitutes a waiver of the right to raise the
matter on appeal.” State v. Asbury, 187 W. Va. 87, 91, 415 S.E.2d 891, 895 (1992).
However, to ensure fairness and because no harm will be done to Wife, we will consider
Husband’s argument. See Joseph B. at *2.

7
As we have previously explained, a “family court may deviate from equal custodial
time if the court expressly finds that . . . a provision of West Virginia Code § 48-9-209(f)
necessitates another arrangement.” Jonathon F. v. Rebekah L., 247 W. Va. 562, 564, 883
S.E.2d 290, 292 (Ct. App. 2023). The SCAWV has said “[q]uestions relating to . . . custody
of the children are within the sound discretion of the [family] court and its action with
respect to such matters will not be disturbed on appeal unless it clearly appears that such
discretion has been abused.” Syl. Pt., in part, Nichols v. Nichols, 160 W. Va. 514, 236
S.E.2d 36 (1977). Because the family court found multiple factors of West Virginia Code
§ 48-9-209(f)(5) justified deviating from the presumption of equal custody and analyzed
the same, it is unnecessary for this Court to discuss Husband’s remaining arguments
pertaining to custodial allocation. Thus, we find that the family court acted within its
statutory authority and find no error or abuse of discretion in its allocation of custody.

Next, Husband argues that the family court erred in the amount of child support it
ordered him to pay. In support of his argument, he contends that Wife was dishonest
regarding her income and that the family court made incorrect calculations pertaining to
his monthly income. We disagree. The SCAWV has long held that “[i]t is within the sole
province of the family court, as fact-finder, to decide issues of credibility, and this Court
will not disturb those determinations. Even where testimony is uncontroverted, a fact-
finder is free to disregard such testimony if it finds the evidence self-serving, and not
credible.” Mulugeta v. Misailidis, 239 W. Va. 404, 408-09, 801 S.E.2d 282, 286-87 (2017).
The family court found that Husband’s gross income at thirty-five hours per week was
$3,418.57 per month. The court also found that he averaged ten overtime hours per week
at $33.81 per hour, resulting in approximately $4,880.00 total gross monthly income. Upon
review, the $867.34 child support obligation is consistent with Husband’s monthly gross
income. Our Legislature has proclaimed that “[t]here is a rebuttable presumption, in any
proceeding before a court for the award of child support, that the amount of the award
which would result from the application of these guidelines is the correct amount of child
support to be awarded.” W. Va. Code § 48-13-101 (2001). Giving due deference to the
family court’s factual findings and credibility determinations, we are unable to find an
abuse of discretion or clear error in the family court’s award of child support.

Next, Husband maintains that the family court erroneously found that he waived
spousal support and abused its discretion by awarding spousal support to Wife.7 In support
of his argument, Husband maintains that the family court improperly weighed the evidence,
failed to consider certain evidence, and made numerous erroneous findings regarding the
spousal support factors. We agree, in part. West Virginia Code § 48-6-301(b) (2018)
provides twenty factors that a family court is required to consider when determining the

7
We note that while Husband objected to Wife receiving spousal support, Husband
failed to argue that he is entitled to spousal support below during the final hearing.
Therefore, the family court did not err in finding Husband waived spousal support.

8
amount of spousal support to be awarded. See also Sloan v. Sloan, 219 W. Va. 105, 109,
632 S.E.2d 45, 49 (2006). The SCAWV has held that “[q]uestions relating to [spousal
support]” lie “within the sound discretion of the court” and those decisions will not be
disturbed on appeal “unless it clearly appears that such discretion has been abused.”
Mulugeta, 239 W. Va. at 405, 801 S.E.2d at 284, syl. pt. 2, in part.

Here, the family court articulated all twenty spousal support factors and analyzed
those relevant to the case at bar. However, as Husband argues, the family court based, in
part, its determination and award of spousal support on an income finding which is both
different and greater than the income finding in the child support calculation. As discussed
above, the family court found his monthly income to be approximately $4,880.00. In
determining spousal support, the family court found his monthly income to be $5,500.00
without any explanation as to how it arrived at this number.8 Based on this Court’s review
of the record, as well as the family court’s factual findings, conclusions of law, and
rationale, we find the family court erred in determining spousal support based on an
erroneous income finding. Therefore, we remand this issue to the family court to enter an
amended order determining the appropriateness of spousal support based upon the correct
income finding.9

Next, Husband argues that the family court erroneously included Wife’s student
loans in its equitable distribution calculation. We find merit in this argument. During the
final hearing, Wife testified that she agreed to take responsibility for her student loans. The
SCAWV “encourages the use of property settlement agreements to resolve the distribution
of marital property[.]” Warner v. Warner, 183 W. Va. 90, 95, 394 S.E.2d 74, 79 (1990).
As such, we conclude that Wife agreed to classify her student loan debt as her separate
debt, and it should not have been included in the family court’s equitable distribution
calculation. Thus, we remand this issue to the family court with instructions to enter an
amended order excluding Wife’s student loans and recalculating the equitable distribution
of the parties’ property.

Accordingly, we affirm in part, and vacate in part, the family court’s December 18,
2024, Amended Decree of Divorce. We remand this matter to the family court with
instructions to enter an amended order pertaining only to spousal support and the equitable
distribution chart excluding Wife’s student loans consistent with this decision.

The family court’s findings regarding income are distinctly different. Therefore,
8

we cannot assume the difference to be nothing more than a clerical error on appeal.
9
We do not comment on whether an award, or amount and duration, of spousal
support to Wife is appropriate on remand under the factors in West Virginia Code § 48-6-
301(b). We simply note that the family court must use the appropriate income amount in
its determination.

9
Affirmed in part, Vacated in part, and Remanded.

ISSUED: October 24, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

10