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Lamm v. Lamm

Supreme Court of West Virginia

March 29, 2019

David Lamm, Petitioner
v.
Patricia Lamm, Respondent

          (Kanawha County 02-D-1861)

          MEMORANDUM DECISION

         Respondent Patricia Lamm ("Ms. Lamm") and Petitioner David Lamm ("Mr. Lamm") were divorced by final order entered by the family court in 2005 and affirmed by the circuit court in 2007. This appeal concerns a "Savings and Investment Plan" ("savings account") and a retirement plan that were addressed in the family court's 2005 final divorce order. The final divorce order provided that the "parties shall divide equally [Mr. Lamm's] retirement plan with a stipulated value of $88, 965.00." Further, the final divorce order awarded the savings account solely to Mr. Lamm. Approximately nine years after the circuit court's final order was entered, Ms. Lamm filed an amended qualified domestic relations order ("QDRO") with the family court, seeking a portion of Mr. Lamm's savings account. Protracted litigation followed in which Ms. Lamm submitted multiple QDROs to the family court regarding the savings account and the retirement plan. On July 12, 2017, the family court entered a QDRO that awarded Ms. Lamm 34.78% of Mr. Lamm's retirement plan. By order entered on October 17, 2017, the circuit court affirmed the family court's order.

         In this appeal, Mr. Lamm, by counsel Charles R. Webb, argues that the circuit court erred by affirming the family court's 2017 order that awarded Ms. Lamm 34.78% of the retirement plan. Ms. Lamm, by counsel C. Page Hamrick, urges this Court to affirm the circuit court's order. After review and for the reasons stated herein, we conclude that the circuit court erred by affirming the family court's order. We therefore reverse the circuit court's October 17, 2017, order, and remand this matter to the circuit court for further proceedings consistent with this decision. This case satisfies the "limited circumstances" requirement of Rule 21(d) of the West Virginia Rules of Appellate Procedure for disposition by memorandum decision.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This appeal concerns a savings account and a retirement plan that Mr. Lamm had through his employer.[1] Both of these accounts were at issue during the parties' initial divorce proceedings before the family court. The parties were married in 1975. According to the family court, their separation date was August 30, 2002. Both parties were represented by counsel throughout the divorce proceedings, which culminated with the family court entering a final divorce on January 4, 2005.

         The family court's January 4, 2005, final order addresses both the savings account and the retirement plan. Regarding the savings account, the family court's order provides:

12. [T]he Court finds that the following personal property is owned by the parties and concludes as a matter of law as the following values: . . . (s) Savings and Investment Plan $29, 322.
14. This Court grants unto David W. Lamm, the following personal items and liquid assets: . . . (g) savings and investment plan (includes debt).
19. That prior to the separation of the parties, the parties were possessed of a savings and investment plan of approximately $77, 122.00. [Mr. Lamm], who had exclusive use and control of the savings and investment plan liquidated a substantial portion of the plan in an effort to pay off loans for a variety of automobiles, credit card accounts, home mortgage and other debts and maintenance of the parties including taxes on the liquidation of the same whereby Thirty Six Thousand Three Hundred Fifty Eight Dollars ($36, 358.00) in loans were accrued.
20. That at the date of the separation of the parties there was a savings and investment plan balance of Twenty Nine Thousand Three Hundred Twenty Two Dollars ($29, 322.00).
21. The Court finds that the expenditures by [Mr. Lamm] prior to or about the time of separation of the parties was prudent, reasonable and for marital purposes. There should be no reimbursement of the monies expended back into the savings and investment plan.

(Emphasis added.)

         The family court's final order also addressed the retirement plan:

12. [T]he Court finds that the following personal property is owned by the parties and concludes as a matter of law as the following values: . . . (u) [Mr. Lamm's] retirement [plan] $88, 965.
27. The parties shall divide equally [Mr. Lamm's] retirement plan with a stipulated value of $88, 965.00. Such plan shall be divided by a Qualified Domestic Relations Order which shall be prepared by [Ms. Lamm's] counsel with the cooperation of [Mr. Lamm] and his counsel.

(Emphasis added.)

         Ms. Lamm appealed the family court's final order to the circuit court, raising a number of assignments of error including the family court's ruling that she "was not entitled to reimbursement of the monies expended" from the savings account.[2] Ms. Lamm did not challenge the family court's ruling that the retirement plan would be split by the parties, nor did she dispute the finding that it had a stipulated value of $88, 965.00. By order entered on March 28, 2007, the circuit court affirmed the family court's order. The circuit court specifically addressed the family court's ruling regarding the savings account and concluded that the family court's ruling was not clearly erroneous nor an abuse of discretion. The circuit court's order denied Ms. Lamm's appeal in "its entirety" and provided that "[t]his matter is removed from the active docket of the Court."

         After the circuit court's order was entered, counsel for Ms. Lamm prepared two QDROs. The first QDRO, dated December 3, 2007, was for Mr. Lamm's "Dupont Savings and Investment Plan." This QDRO named Ms. Lamm as the "alternate payee" and stated that she was entitled to 50% of Mr. Lamm's savings and investment plan as of December 31, 2004. This QDRO was not signed by the family court judge, nor was it entered. We note that the family court's final order, which was affirmed by the circuit court, did not award Ms. Lamm any portion of the savings account. Thus, it is unclear why counsel for Ms. Lamm prepared a QDRO for an account that was awarded solely to Mr. Lamm.

         The second QDRO, also prepared by counsel for Ms. Lamm and dated December 3, 2007, was for Mr. Lamm's "Dupont Pension and Retirement Plan." This QDRO named Ms. Lamm as the "alternate payee" and stated that she was entitled to 50% of Mr. Lamm's retirement plan as of August 30, 2002. The family court entered the "Dupont Pension and Retirement Plan" QDRO on February 15, 2008 ("2008 retirement plan QDRO"). Following entry of the 2008 retirement plan QDRO, no activity occurred in this case for approximately eight years.

         In March 2016, counsel for Ms. Lamm submitted a new QDRO to the family court seeking a portion of Mr. Lamm's savings account. This QDRO, entitled "Amended Qualified Domestic Relations Order (Dupont Savings and Investment Plan)," states that Ms. Lamm, as the alternate payee, is awarded 50% of Mr. Lamm's "accrued benefit" as of August 30, 2002. The family court entered this QDRO on the same date it was submitted. The family court did not hold a hearing on the QDRO prior to its entry.[3] There was no explanation provided by the family court or by the language contained in the QDRO explaining why it was granting relief-awarding Ms. Lamm a portion of the savings account-that is inconsistent with the final divorce order entered by the family court in 2005 and affirmed by the circuit court in 2007.

         On November 4, 2016, counsel for Ms. Lamm submitted an "Amended QDRO (Dupont Pension and Retirement Plan, Title I)" to the family court. This QDRO provides that Ms. Lamm is "awarded 50% of [Mr. Lamm's] monthly benefit from the Plan." This QDRO removed the accrual language that was contained in the 2008 retirement plan QDRO, which stated that Ms. Lamm was entitled to 50% of his retirement benefit "as of August 30, 2002." (Emphasis added.) This QDRO does not include any factual findings explaining why Ms. Lamm is entitled to 50% of Mr. Lamm's total retirement plan benefit. The family court entered this amended QDRO on November 15, 2016.

         Mr. Lamm retired on December 31, 2016. Because the November 2016 QDRO was entered and had been submitted to Mr. Lamm's employer, Ms. Lamm began receiving 50% of Mr. Lamm's monthly retirement benefit in January 2017.[4]

         Mr. Lamm filed a motion for emergency ex parte relief in the family court on February 2, 2017. This motion states that "[Ms. Lamm] had no claim to and was awarded no portion of [Mr. Lamm's] Savings and Investment Plan." Further, Mr. Lamm argued that the amended 2016 retirement plan QDRO awarding Ms. Lamm 50% of the total retirement plan was improper. Mr. Lamm's motion asserts that "as a result of the entry of the [amended 2016 retirement plan] QDRO prepared by [Ms. Lamm's] counsel and entered by this Court, the Plan is withholding fifty percent of [Mr. Lamm's] monthly benefit for payment to [Ms. Lamm]."

         In response to Mr. Lamm's motion, Ms. Lamm explained that she had inquired with Mr. Lamm's employer regarding his retirement account in March 2016 in order "to obtain her interest in the retirement account." Ms. Lamm alleged that "there were no funds available in the plan to fulfill the obligations of the QDRO, and that the plan account had been paid out in full in 2015. . . . A QDRO was entered to receive one-half of [Mr. Lamm's] Dupont Pension and Retirement Plan, Title I, since [Ms. Lamm] cannot get what [Mr. Lamm] illegally removed from his retirement plan."[5] At the conclusion of Ms. Lamm's response motion, she appears to concede that she is only entitled to the relief contained in the 2005 final divorce order entered by the family court, she stated: "WHEREFORE, Respondent Patricia A. Lamm requests the emergency motion be denied and that [Mr. Lamm] be ordered to pay over to [Ms. Lamm] the sum of $44, 982.50[6] plus interest thereon from the Final Order entered January 4, 2005, plus attorneys fees for this proceeding."

         The family court held a hearing on March 6, 2017. The hearing focused on the amount Ms. Lamm should be receiving from Mr. Lamm's retirement plan. Counsel for Mr. Lamm informed the court that Ms. Lamm had been receiving 50% of Mr. Lamm's total retirement benefit since January 2017. Ms. Lamm's counsel conceded that she was receiving 50% of Mr. Lamm's total retirement plan benefit, and told the court "the problem is, the [2005 final divorce] order . . . is written that she gets half of - half of $88, 000 and it's - you know, so she's, she's getting half of $88, 000, but, you know, she's getting it in a . . . different way than maybe she, you know, contemplated." The hearing ended without the family court making a ruling as to the amount ...


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