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John M. v. Linda M.

Supreme Court of West Virginia

June 16, 2017

John M., Respondent Below, Petitioner
v.
Linda M., Petitioner Below, Respondent

         Kanawha County 09-D-2433

          MEMORANDUM DECISION

         Petitioner John M. ("petitioner husband"), by counsel Shawn D. Bayliss, appeals the Circuit Court of Kanawha County's February 4, 2016, order affirming the Family Court of Kanawha County's October 23, 2015, order dividing marital portions of petitioner's retirement accounts. Respondent Linda M. ("respondent wife"), by counsel Mark W. Kelley, filed a response in support of the circuit court's order. On appeal, petitioner husband argues that (1) the lower courts erred in finding that the parties' Property Settlement Agreement ("PSA") is unambiguous as to the division of petitioner's retirement accounts, and (2) alternatively, if this Court finds no ambiguity, the lower courts erred in allocating respondent wife portions of each of petitioner's retirement accounts under the PSA's unambiguous language.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.

         The parties married in May of 1996 and divorced in 2010.[1] A final divorce order was entered in the Family Court of Kanawha County, West Virginia, which adopted the parties' PSA. In paragraph 13A, the PSA provides as follows:

Husband and Wife shall each retain as their sole and separate property all retirement accounts held prior to the marriage in their sole and separate name, and will divide 50/50 via Qualified Domestic Relations Order any interest in any retirement account held which was acquired between the date of the marriage and the date of separation.

While this paragraph (entered into in 2010) references a QDRO, no QDRO was entered in this case until 2015. The parties' financial statements filed during the divorce proceedings listed the following retirement accounts: (1) respondent wife's IRA/SEP accounts in the amount of $2504.55; (2) petitioner husband's 401K/403B accounts in the amount of approximately $262, 000; and (3) petitioner husband's IRA/SEP accounts in the amount of approximately $50, 000. The parties agree that petitioner husband currently has three retirement accounts, one of which is apparently from his current employer, but that only two of those three accounts are at issue in this appeal.[2]

         In February of 2015, respondent wife filed a motion to modify child support. Petitioner husband moved for additional discovery on the child support issue. His discovery motion provided that additional discovery "is necessary for the [family] [c]ourt to fairly and accurately calculate child support herein, and to approve qualified domestic relations order(s) allocating each party their respective portion of the other's account(s)." Respondent wife contested the need for discovery, but agreed that a court may need to enter "outstanding qualified domestic relations orders."

         In March of 2015, the family court granted petitioner husband's motion for additional discovery, in part, by permitting the "[u]tilization of [i]nterrogatories . . . limited to the [w]itness [d]isclosure and information requests necessary for the preparation of [q]ualified [d]omestic [r]elations [o]rders." Thereafter, petitioner husband filed a response to the motion to modify child support in which he asked that respondent wife be ordered to "disclose all of her retirement, stocks [sic], pension and 401k accounts with supporting documentation[.]"

         In April of 2015, the family court held a hearing on the motion to modify child support. At that hearing, the parties expressed their intent to enter a settlement of the child support claims. By subsequent order, in addition to resolving the child support issue, the family court ordered the parties to "exchange all pertinent information, records [sic] regarding to [sic] their respective retirement, stock, pension, 401k, SEP, [and] defined[-] contribution plans within thirty (30) days of entry of this order."

         In July of 2015, respondent wife filed a motion for contempt. In her motion, she asserted that petitioner husband failed to comply with the family court's order to exchange account information.[3] Petitioner husband responded that he provided respondent wife with partial account information but had a medical issue that delayed his ability to receive all pertinent records.

         In September of 2015, on the day of the contempt hearing, petitioner husband filed a motion to dismiss the contempt proceeding. In his motion to dismiss, he argued that the language of paragraph 13A of the PSA precluded respondent wife from receiving "any portion of his Union Carbide pension account" because it was "acquired" prior to the marriage.[4] Noting that he may be entitled to a portion of respondent wife's retirement account, he requested that the parties simply maintain their separate retirement accounts and that the action be dismissed.

         At the hearing, petitioner husband testified that he had three retirement accounts: (1) a defined-benefit account from Union Carbide; (2) a defined-contribution account from Union Carbide; and (3) a defined-contribution account from his current employer.[5] He produced documentation in support thereof. It appears from the record on appeal that petitioner husband argued that the PSA was ambiguous and should be construed to exclude any division of his defined-benefit account from Union Carbide because it was acquired prior to the marriage.

         By final order entered on October 23, 2015, the family court found that petitioner husband was not in contempt of court because he produced account records as directed (albeit at the contempt hearing). Further, the family court found that the "language in the property settlement agreement could only be deemed ambiguous if read in a perverse manner, is in fact not ambiguous and is consistent with West Virginia law regarding the recognition that pension benefits which between [sic] the date of marriage and date of separation constitute marital assets."

         Based on these findings, the family court concluded that respondent wife could claim an interest in petitioner husband's defined-benefit accounts from Union Carbide "based upon the standard coverture factor." The family court further concluded that petitioner husband's "defined-contribution plan is wholly marital and [respondent wife] is entitled to 50% of the value of that plan." The motions for contempt and to dismiss ...


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