IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA FILED Spring 2024 Term _____________________ March 14, 2024 released at 3:00 p.m. C. CASEY FORBES, CLERK No. 23-ICA-370 INTERMEDIATE COURT OF APPEALS _____________________ OF WEST VIRGINIA BRADLEY BOWE, Plaintiff Below, Petitioner, v. MELISSA BOWE, Defendant Below, Respondent. ___________________________________________________________ Appeal from the Family Court of Fayette County Honorable Matthew D. England, Judge Case No. FC-10-2021-D-199 AFFIRMED _________________________________________________________ Submitted: January 10, 2024 Filed: March 14, 2024 James M. Cagle, Esq. R. Brandon Johnson, Esq. Cagle Law Office, Wooton, Davis, Hussell & Johnson, Charleston, West Virginia PLLC Counsel for Petitioner Lewisburg, West Virginia Counsel for Respondent CHIEF JUDGE SCARR delivered the Opinion of the Court. SCARR, CHIEF JUDGE: Petitioner Bradley Bowe appeals the Final Divorce Order entered by the Family Court of Fayette County on July 20, 2023. Mr. Bowe contends that the family court violated the Supremacy Clause of the United States Constitution by subjecting to equitable distribution a personal account in which he commingled his Veteran’s Administration disability benefits (“VA benefits”) with marital property from a business account. According to Mr. Bowe, VA benefits are not subject to equitable distribution because they are protected from attachment by federal law, so he is entitled to the entirety of the VA benefits he received during the marriage. The family court disagreed with Mr. Bowe, finding that the federal protections did not apply in this case because his VA benefits were commingled and indistinguishable from other funds, and therefore equitably distributed the bank account as marital property after subtracting as separate property what money he had in his personal account and business account prior to the marriage. Having reviewed the parties’ arguments, the record on appeal, and the controlling law, we affirm the decision of the family court. The law is clear that although the federal protections under 38 U.S.C. § 5301 typically would protect VA benefits from equitable distribution, that protection only exists when the VA benefits remain immediately available for the beneficiary’s needs and are not commingled with marital assets. See Griffith-Ball v. Ball, No. M202000509COAR3CV, 2022 WL 1509675, at *3 (Tenn. Ct. App. May 13, 2022); In re Marriage of Green, 169 P.3d 202, 204 (Colo. App. 2007); Bischoff v. Bischoff, 987 S.W.2d 798, 799 (Ky. Ct. App. 1998); Gray v. Gray, 922 P.2d 1 615, 619–20 (Okla. 1996); Porter v. Aetna Cas. & Sur. Co., 370 U.S. 159, 160–61 (1962). Applying the guidance of other courts considering when VA benefits are subject to equitable distribution, we hold that when VA benefits are commingled with marital property, they are subject to equitable distribution unless the commingling party can establish by reliable tracing methods that a source of funds analysis can be performed to distinguish the VA benefits from the other funds. Here, Mr. Bowe did not provide sufficient financial information to trace the amount in his account solely attributable to his VA benefits, so the family court was correct to subject the account to equitable distribution as marital property. Accordingly, this Court …
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