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In re Marriage of Brown

Supreme Court of West Virginia

October 13, 2017

In Re: The Marriage of: Guy L. Brown II, Respondent Below, Petitioner
v.
Sarah Jarvis, formerly Sarah Brown, Petitioner Below, Respondent

         Wood County 00-D-699

          MEMORANDUM DECISION

         Petitioner Guy L. Brown II, pro se, appeals the order of the Circuit Court of Wood County, entered July 14, 2016, affirming a March 30, 2016, order of the Family Court of Wood County. In its March 30, 2016, order, the family court denied petitioner's motion to amend the parties' February 28, 2001, qualified domestic relations order ("QDRO") on the ground that he requested the retroactive application of W.Va. C.S.R. § 162-1-7.2.a, which sets forth the current method for calculating a former spouse's share of a member/retirant's pension. Respondent Sarah Jarvis, by counsel Richard A. Bush, filed a response in support of the circuit court's order. Petitioner filed a reply.

         The 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 circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner began employment as an officer of the West Virginia State Police in 1990. On December 29, 1990, the parties married. Subsequently, the parties separated on August 28, 2000, and respondent filed for divorce on September 13, 2000. The parties were divorced by a final order entered on February 21, 2001.

         A week later, on February 28, 2001, the QDRO was entered giving respondent her share of petitioner's retirement pension.[1] In the QDRO, respondent's share of the pension was calculated pursuant to W.Va. C.S.R. § 162-1-6.2.1 (2000), which provided as follows:

In cases of divorce or legal separation whereby the member's or retirant's interest in his or her retirement account is subject to division pursuant to domestic relations law, that portion of the member's or retirant's retirement account which is subject to division by the Court shall be determined by the Board by using the following formula, but only after the benefits are available to the member or retirant: a former spouse's interest shall be computed by the Board by multiplying the actual value of the retirement account by a fraction, the numerator being the number of years of contributing service incurred during the marriage, and the denominator being the total number of years of contributing service towards the pension.

(emphasis added). Accordingly, under this calculation method, the years a member works after the marriage are counted toward his or her former spouse's share of the pension because those additional years worked are included in the denominator.

         Several years later, in 2005, the West Virginia Consolidated Public Retirement Board ("Board") amended W.Va. C.S.R. §§ 162-1-1.1 through -1.9 through the legislative rulemaking process that concluded with the Legislature's approval of the regulatory amendments.[2] In those amendments, the Board set forth a new calculation method that became effective on September 1, 2005. The new calculation method is currently set forth in W.Va. C.S.R. § 162-1-7.2.a, which provides as follows:

In cases of divorce or legal separation where the member's or retirant's interest in his or her retirement account is subject to division as marital property pursuant to state domestic relation law, that portion of the member's or retirant's retirement account which constitutes marital property and which is subject to division by a [QDRO] shall be determined by the Board by using the following formula, but only after the benefits are available to the member or retirant at death, refund, disability retirement or retirement: the marital property portion of a member's or retirant's retirement benefit which is subject to division shall be computed by the Board by multiplying the Vested Accrued Retirement Benefit, less all benefits due to Exempt Service, by a fraction, the numerator being the number of years of contributing service incurred during the marriage, and the denominator being the total number of years of contributing service towards the pension at the date of separation or the date of divorce.[3]

         (emphasis added). Under the current calculation method, the years a member works after the marriage are not counted toward his or her former spouse's share of the pension.

         In 2015, petitioner retired from the state police after 25 years of service, almost ten years of which occurred during the parties' marriage while approximately 15 years of those occurred after the parties separated on August 28, 2000.[4] Upon his retirement, petitioner began receiving his retirement benefits and respondent began receiving the benefits to which she was entitled pursuant to the 2001 QDRO.

         On January 5, 2016, petitioner filed a motion to amend the 2001 QDRO to calculate respondent's share of his pension based on the current calculation method rather than the prior method that was in effect in 2000. The family court held a hearing on the motion on March 13, 2014. Neither party presented a calculation of the benefits due to respondent based on the current calculation method. However, the parties agreed that the difference in benefits between what respondent is receiving pursuant to the 2001 QDRO and what respondent would receive under the current calculation method is "substantial."[5]

         Respondent opposed petitioner's motion to amend the 2001 QDRO on the basis that the QDRO had already been implemented given the Board's 2015 decision to begin paying benefits to respondent. Respondent further argued that the January 5, 2016, motion to amend the 2001 QDRO was not timely filed given the length of time between the motion and entry of the QDRO it sought to amend. However, respondent conceded that there might be ways that the family court could reform the motion to make it procedurally proper. Accordingly, the family court ruled on the merits of petitioner's motion and denied it as requesting the retroactive application of W.Va. C.S.R. § 162-1-7.2.a to a valid QDRO from 2001. The family court memorialized its ruling in an order entered on March 30, 2016, which petitioner appealed to the circuit court.

         By order entered on July 14, 2016, the circuit court first found that the Board implemented the 2001 QDRO by commencing the payment of benefits due to respondent in 2015. Second, the circuit court determined that there was no evidence that the Legislature intended for the 2005 change to a new calculation method to have retroactive effect. Third, the circuit court found that more than four years lapsed between the entry of the 2001 QDRO and the September 1, 2005, effective date of the change to a new calculation method. Fourth, the circuit court noted that ten years lapsed between the 2005 change and the filing of petitioner's January 5, 2016, motion to amend the 2001 QDRO. Fifth, the circuit court found that the benefits due respondent would be substantially reduced if the 2001 QDRO would be amended. Sixth, the circuit court determined that nothing in the 2001 QDRO reflected an intent to have the level of benefits paid thereunder to be affected by subsequent changes to W.Va. C.S.R. §§ 162-1.1 through -1.9. Accordingly, ...


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