Grose v. Grose

• Citation: 671 S.E.2d 727
• Decision Date: 06 November 2008
• Docket Number: No. 33901.,33901.
• Court: Supreme Court of West Virginia
• Parties: In re: The Marriage of: Shirley E. GROSE, Plaintiff Below, Appellee, v. John H. GROSE, Defendant Below, Appellant.

671 S.E.2d 727

In re: The Marriage of: Shirley E. GROSE, Plaintiff Below, Appellee, v. John H. GROSE, Defendant Below, Appellant.

No. 33901.

Supreme Court of Appeals of West Virginia.

Submitted October 8, 2008.

Decided November 6, 2008.

Syllabus by the Court

1. "[When] reviewing a final order entered by a circuit court judge ... [with regard to] a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo." Syllabus, in part, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).

2. "Benefits that actually compensate for disability are separate property because such monies are personal to the spouse who receives them. In some cases, benefits will need to be separated into a retirement component and a true disability component, classifying the retirement component as marital property and the disability component as separate property." Syl. Pt. 4, Staton v. Staton, 218 W.Va. 201, 624 S.E.2d 548 (2005).

3. "Laches does not commence to run against a party complaining of a wrongful transaction of another until such complaining party has knowledge thereof, or knows facts sufficient to put him on inquiry with respect thereto." Syl. Pt. 2, Bank of Mill Creek v. Elk Horn Coal Corporation, 133 W.Va. 639, 57 S.E.2d 736 (1950).

4. "`In divorce actions, an award of attorney's fees rests initially within the sound discretion of the family ... [court] and should not be disturbed on appeal absent an abuse of discretion. In determining whether to award attorney's fees, the family ... [court] should consider a wide array of factors including the party's ability to pay his or her own fee, the beneficial results obtained by the attorney, the parties' respective financial conditions, the effect of the attorney's fees on each party's standard of living, the degree of fault of either party making the divorce action necessary, and the reasonableness of the attorney's fee request.' Syllabus Point 4, Banker v. Banker, 196 W.Va. 535, 474 S.E.2d 465 (1996)." Syllabus, Landis v. Landis, ___ W.Va. ___, ___ S.E.2d ___, 2007 WL 3318058 (2007).

James Wilson Douglas, Sutton, Counsel for the Appellant.

Harley E. Stollings, Summersville, Counsel for the Appellee.

PER CURIAM:¹

John H. Grose (hereinafter "Appellant") brings this appeal of the September 20, 2007, order of the Circuit Court of Nicholas County affirming the June 5, 2007, and June 26, 2007, orders of the Family Court of Nicholas County. The June 5 family court order directed that a portion of Appellant's pension benefits be divided with Appellant's former wife, Shirley E. Grose (hereinafter "Appellee"), in accordance with an August 6, 1990, equitable distribution order entered in relation to the couple's divorce. Appellant maintains that the circuit court should not have affirmed the family court's decision because it was based on the erroneous conclusion that any portion of his pension proceeds could be considered a retirement benefit. He further maintains that the pension he receives is a disability pension falling outside of the reach of the former spouse as marital property because it is a benefit arising from a work-related injury that he had sustained after the divorce was final. Additionally, Appellant contends that the circuit court should not have affirmed the family court's June 26, 2007, order awarding attorney fees to Appellee because that award was not supported by the evidence.

Appellee raises cross assignments of error alleging that the circuit court's affirmance in this case was wrong because the family court had improperly reduced the amount of the pension benefits due her by applying the principle of laches to her claim. Further, she maintains that the circuit court erred not only by upholding the award of attorney fees for an amount that was less than she incurred in proceeding on her claim in the family court, but also by denying award of attorney fees in connection with defending the appeal before the circuit court.

Having fully examined the record available in this appeal with respect to the briefs and arguments and in consideration of the pertinent law, we find no error and the order of the circuit court is affirmed.

I. Factual and Procedural Background

Appellant and Appellee were married in July 1964 and separated in January 1987. The marriage was dissolved by bifurcated divorce order entered on May 19, 1989. An August 6, 1990, order addressing equitable distribution of the marital property provided in pertinent part:

2. Any pension or retirement benefits which may be presently vested in the defendant[/Appellant], or which may in the future become vested in the defendant[/Appellant], are marital property to the extent that said benefits were earned or accrued during the period of time the parties were married to each other and living together, i.e. from the 11th day of July, 1964 to the 26th day of January, 1987. If and when any such benefits become vested in the defendant[/Appellant] or collected by him, the plaintiff[/Appellee] shall be entitled to a percentage of one-half of said benefits computed by applying a fraction in which the numerator is the amount of said benefits accrued during the time the parties were living together and in which the denominator is the amount of the benefits.

During the marriage, Appellant participated in a defined benefits pension plan with the United Mine Workers of America (hereinafter "UMWA") under its Health and Retirement Funds, 1974 Plan. The plan provided that Appellant could qualify for full retirement benefits if he attained the age of 62 years and worked continuously in a union mine for at least ten years. At the time of the divorce and equitable distribution, Appellant had met the years of service qualification for retirement as he had 20.07 qualifying years of service credit, but he did not meet the age criteria because in 1990 he was only 49 years old.²

On March 16, 1991, Appellant was injured in a mining accident. The accident occurred a year after the final equitable distribution hearing in the divorce. At that time, Appellant was 12 years away from the minimum retirement age of 62. Appellant applied for a disability pension also available through the UMWA Health and Retirement Funds 1974 Plan (hereinafter "1974 Plan"). He was subsequently declared permanently and totally disabled and was awarded a UMWA pension in May 1993, effective retroactively to April 1, 1991.

Appellee filed a petition for an accounting and a qualified domestic relations order (hereinafter "QDRO") on April 25, 2006, in order to begin receiving a distributive share of Appellant's pension pursuant to the equitable distribution order. Appellant responded with a motion to dismiss, arguing that his pension is a disability rather than a retirement pension. He maintained that Appellee was not entitled to share in the disability pension because the express language of the equitable distribution order only provided a distributive share of a pension that was "earned or accrued during the period of time the parties were married." He supported this argument by stating that his disability pension did not accrue until mining accident occurred, which was clearly after the parties had divorced. He added that a disability pension is compensation for the work-related injury and a substitute for the loss of future earnings, unlike a retirement pension which is a benefit maturing at a certain age and after a person has worked a particular number of years.

In the family court, the parties had stipulated to evidence provided in correspondence dated January 25, 2007, from a special payments analyst with the UMWA Health and Retirement Funds. Also appearing in the record is a UMWA publication, UMWA 1974 Pension Plan, Summary Plan Description. Express reference is made to both the UMWA correspondence and publication in the June 5, 2007, family court order as follows:

14. The letter from the UMW Health and Retirement Funds dated January 25, 2007 states at page 2 "... a Disability Pension is a retirement pension. ..."

15. From the 1974 Pension Fund Plan Summary appears the following:

A. The disability pension being paid to Mr. Grose is paid from the same account as a normal retirement pension would be paid from.

B. The disability pension being paid to Mr. Grose would never be converted to a normal retirement pension unless for some reason he was found to no longer be totally disabled.

C. The disability pension being paid to Mr. Grose will be paid to him for so long as he lives.

In relation to these findings, the family court judge concluded that Appellant's pension has both a disability and a retirement component and that the retirement component is marital property subject to distribution to Appellee.

The June 5, 2007, order then shows that the family court judge applied the formula set forth in the equitable distribution order to determine that 82% of the pension funds after Mr. Grose turned 62 was marital property. Appellee's share of this marital property was found to be 41%, which she was awarded along with back pay to the date of her April 2006 filing. It was explained in the family court order that the reason why the payment period did not begin to run as of Appellant's 62nd birthday was because the equitable distribution order did not place the burden on Appellant to notify his former spouse of the receipt of the payments. The lower court thereafter found that the doctrine of laches precluded Appellee from receiving any of the retirement benefits paid prior to the date she filed her petition for accounting.

Both parties had requested attorney fees in the family court. The record contains income, expense, bank and tax records for both Appellant and Appellee and detailed information substantiating the amount of attorney fees each side sought.³...