(Randolph County 08-D-176)
Kathy Ruth Coers, by counsel Christopher T. Pritt, appeals
the Circuit Court of Randolph County's February 9, 2017,
order denying her "request for reconsideration" and
petition for appeal. Respondent Franklin D. Phares, pro se,
filed a response in support of the circuit court's order.
On appeal, petitioner argues that the circuit court erred in
finding no authority to reconsider its prior decision
dismissing an earlier petition for appeal, in affirming the
adoption of a qualified domestic relations order
("QDRO"), and in affirming the finding that
petitioner was in contempt of court.
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.
parties were divorced by "Final Divorce Decree"
entered on November 17, 2008. Prior to the parties'
separation, in 2002, respondent retired, and he began
receiving his pension. The "Final Divorce Decree"
addressed respondent's pension and provided that
petitioner was entitled to one-half of his pension accrued
from the date of the parties' marriage until their
separation. The "Final Divorce Decree" further
provided that petitioner
shall continue to be designated as the [respondent's]
surviving spouse beneficiary of his state public employees
retirement system pension (option a) entitling [petitioner]
to 100% of the Joint and Survivor benefit in the event the
[respondent] predeceases the [petitioner]. Counsel for the
[petitioner] will prepare the appropriate [QDRO] to
accomplish this division and the Court retains jurisdiction
to enter such orders.
3, 2010, the family court entered an "Order Granting
60(a) Relief and Correcting Decree of Divorce"
("Rule 60(a) Order"). This order noted that the
"Final Divorce Decree" "failed to include
language requiring the [respondent] to pay to the
[petitioner] her share of the marital portion of the
[respondent's] net PERS pension check until the entry of
the QDRO[.]" Therefore, the family court ordered that
the following language be added to the "Final Divorce
The [respondent] shall pay to the [petitioner] her share (or
.1864406779) of the net PERS pension check that he receives
until the entry of the QDRO. Until such time as the QDRO is
entered, the [respondent] shall be responsible for the
federal and state income taxes associated with the gross
pension distribution, and the [respondent] shall pay to the
[petitioner] her share of the net pension benefit (gross
benefit minus normal taxes) he receives each month.
were to be made to petitioner
for her share of the respondent's net PERS pension
benefits as defined herein until the entry of the QDRO, at
which time [petitioner] shall bear any tax liability for the
amount that she is paid directly from the State Retirement
Board as alternate payee upon the entry of the approved QDRO.
compliance with this provision, respondent paid to petitioner
$368.80 per month.
years after the entry of the Rule 60(a) Order, petitioner had
not yet filed the required QDRO. Accordingly, on December 7,
2015, respondent filed a petition for a rule to show cause,
in which he asserted that petitioner should be found in
contempt of court due to the delay in submitting a QDRO. The
parties appeared for a hearing on this petition, and on
February 18, 2016, the family court entered its "Final
Order on Co[n]tempt Proceedings." The family court,
noting the seven-plus years that had passed since petitioner
was first directed to prepare a QDRO in the "Final
Divorce Decree, " found her in contempt of its prior
orders due to her failure to submit a pre-approved QDRO for
entry. Petitioner was further ordered to submit a draft QDRO
to the West Virginia Consolidated Public Retirement Board
("Board") for pre-approval prior to May 1, 2016.
appealed the family court's February 18, 2016, order to
the circuit court. The circuit court, by order entered on
August 30, 2016, found that the family court did not abuse
its discretion in making the findings or rulings contained
within the February 18, 2016, order, and it denied
petitioner's petition for appeal.
respondent prepared a draft QDRO and submitted it to the
Board for pre-approval. The draft QDRO contained the
(b) The Participant's[, respondent's, Vested Accrued
Retirement Benefit ("VARB")] is the benefit due the
Participant as of the QDRO Determination Date. If, at the
time benefit payout commences, the Participant elects a
benefit in the form of an annuity, then the VARB shall be the
annuitized benefit which would have been available to the
Participant as of the QDRO Determination Date, calculated
without regard to any minimum years of service requirement
and in the same form elected by the Participant at payout.
(The Alternate Payee[, petitioner, ] is not to be treated
as the surviving spouse of the Participant for purposes of
calculating benefits payable to the Participant or Alternate
Payee hereunder.) If, at the time benefit payout
commences, the Participant elects a return of contributions
(plus interest as ...