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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2004 Term

No. 31598

FILED November 12, 2004
released at 10:00 a.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

GARY D. WACHTER, Petitioner Below, Appellant,

V.

SYLVIA L. WACHTER, Defendant Below, Appellee.

Appeal from the Circuit Court of Morgan County Honorable Gray Silver, III, Judge Civil Action No. 91-C-142 AFFIRMED

Submitted: September 15, 2004 Filed: November 12, 2004 Christopher D. Janelle Frank M. Aliveto Sutton & Janelle, PLLC Martinsburg, West Virginia Attorneys for the Appellant JUSTICE DAVIS delivered the Opinion of the Court. JUSTICE MCGRAW dissents. David P. Greenberg Greenberg & Scales, PLLC Martinsburg, West Virginia Attorney for the Appellee

SYLLABUS BY THE COURT

1.

"In reviewing challenges to findings made by a family court judge that

also were adopted by a circuit court, a three-pronged standard of review is applied. Under these circumstances, a final equitable distribution order is reviewed under an abuse of discretion standard; the underlying factual findings are reviewed under a clearly erroneous standard; and questions of law and statutory interpretations are subject to a de novo review." Syllabus point 2, Lucas v. Lucas, 215 W. Va. 1, 592 S.E.2d 646 (2003).

2.

"`When a statute is clear and unambiguous and the legislative intent is

plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.' Syllabus point 5, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959)." Syllabus point 4, Perito v. County of Brooke, 215 W. Va. 178, 597 S.E.2d 311 (2004).

3.

When a court is asked to determine whether a relationship rises to the

level of a de facto marriage under W. Va. Code

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