Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Coers v. Phares

Supreme Court of West Virginia

April 9, 2018

Kathy Ruth Coers, Respondent/Appellant Below, Petitioner
v.
Franklin D. Phares, Petitioner/Appellee Below, Respondent

          (Randolph County 08-D-176)

          MEMORANDUM DECISION

         Petitioner 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.

         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 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.

         On May 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 Decree:"

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.

         Payments 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.

         In compliance with this provision, respondent paid to petitioner $368.80 per month.[1]

         Five 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.

         Petitioner 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.

         Meanwhile, respondent prepared a draft QDRO and submitted it to the Board for pre-approval. The draft QDRO contained the following language:

(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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.