Jones v. W. Va. Pub. Emps. Ret. Sys.

Citation235 W.Va. 602,775 S.E.2d 483
Decision Date10 June 2015
Docket NumberNos. 14–0734,14–0764.,s. 14–0734
PartiesPatricia JONES (formerly Akers), Plaintiff Below, Petitioner v. WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT SYSTEM, a corporation, d/b/a West Virginia Public Consolidated Retirement Board, Defendant Below, Respondent, and Judy Vannoy Akers, Defendant Below, Respondent Judy Vannoy Akers, Defendant Below, Petitioner v. Patricia Jones (formerly Akers), Plaintiff Below, Respondent and West Virginia Public Employees Retirement System, a corporation, d/b/a West Virginia Public Consolidated Retirement Board, Defendant Below, Respondent.
CourtSupreme Court of West Virginia

Anthony R. Veneri, Esq., Veneri Law Offices, Princeton, WV, for Patricia Jones.

Lenna R. Chambers, Esq., Bowles Rice LLP, Charleston, WV, for West Virginia Public Consolidated Retirement Board.

Randal W. Roahrig, Esq., The Roahrig Law Firm, Princeton, WV, for Judy Vannoy Akers.


LOUGHRY, Justice:

Through this consolidated appeal, petitioners, Patricia Jones (“Patricia” or “Mrs. Jones”) and Judy Vannoy Akers (Mrs. Akers), challenge the decisions of the respondent, the West Virginia Public Employees Retirement System (PERS) d/b/a the West Virginia Consolidated Public Retirement Board (the Board), in connection with retirement benefits PERS owed to its former member, the decedent Danny Akers.1 By its ruling of July 10, 2014, the Circuit Court of Kanawha County granted the Board's motions for summary judgment against Mrs. Jones and Mrs. Akers. Mrs. Akers seeks to reverse the Board's issuance of disability retirement benefits to her as Mr. Akers' surviving spouse, arguing that she is entitled to preretirement death benefits instead.2 Mrs. Jones challenges the Board's ruling that she was not entitled to receive any retirement benefits despite the provision for those benefits in her divorce decree, due to the absence of a qualified domestic relations order (“QDRO”).3 Upon our exhaustive review of the submitted briefs, record, statutes, regulations, and pertinent case law, we reverse the circuit court's ruling on the issue of Mrs. Akers' entitlement to preretirement death benefits, finding the Board's posthumous grant of disability retirement benefits was in error. With regard to the circuit court's ruling on the issue of Mrs. Jones' entitlement to retirement benefits, we affirm the trial court's decision that the Board was correct in rejecting the domestic relations orders submitted by her counsel.4 In the interest of enforcing the equitable distribution rights previously awarded to Mrs. Jones in her final divorce decree, however, we invoke the equitable powers of this Court, as well as the continuing jurisdiction of the Family Court, to permit the posthumous entry of a QDRO that provides for distribution of Mrs. Jones' equitable interest in that portion of Mr. Akers' retirement assets recognized as marital property.5 Accordingly, we reverse the circuit court's ruling that Mrs. Jones has no entitlement to seek Mr. Akers' PERS benefits based on her failure to obtain an enforceable QDRO and remand this case for purposes of allowing her counsel to prepare a third, and hopefully final, domestic relations order that meets with the Board's approval and fulfills the statutory and regulatory requirements that govern this matter.

I. Factual and Procedural Background

After more than thirty years of marriage, Patricia and Danny Akers were divorced on June 30, 2008. In connection with the divorce proceedings, the Family Court entered a QDRO—an order designed to permit Patricia to obtain her proportionate interest in the PERS retirement benefits as agreed upon through the divorce decree.6 Upon the Board's review of the June 4, 2009, QDRO7 (June QDRO), the Board rejected the proposed document because it contained inconsistent directions, usurped the election of benefits statutorily reserved to the PERS member, and required an award of retirement benefits in excess of statutory and regulatory authorization. By letter of July 6, 2009, the Board notified counsel for Mr. Akers and Mrs. Jones regarding the non-qualification of the June QDRO. Whereas counsel for Mr. Akers received the Board's communication, counsel for Mrs. Jones, as well as Mrs. Jones herself, maintain they did not receive the subject correspondence.

On September 5, 2009, Judy Vannoy and Danny Akers were married. Ten days later, Mr. Akers submitted a disability retirement application to the Board. Mr. Akers died, due to renal failure

, on December 16, 2009.8 In January 2010, the Board sent Mrs. Akers an application for a preretirement death benefits annuity. After she submitted the completed paperwork, the Board discovered the pending disability retirement application. Mrs. Akers was informed by the Board that she would receive a preretirement survivor benefit only in the event the Board denied the disability retirement application. On March 3, 2010, the Board posthumously approved the disability retirement application, and Mrs. Akers was awarded benefits retroactive to January 1, 2010.

On January 19, 2010, counsel for Mrs. Jones corresponded with the Board to inquire, in light of Mr. Akers' death, when his client would begin receiving retirement benefits pursuant to the QDRO. The Board responded to this letter, indicating that the June QDRO had been rejected in July 2009 and further informing Mrs. Jones' counsel that his client was not entitled to any payments due to the lack of an enforceable QDRO in effect at the time when the survivor benefits were issued to Mrs. Akers.

On February 11, 2010, Mrs. Jones instituted a complaint against Mrs. Akers, individually and in her capacity as Administratix of the Estate of Mr. Akers, in the Circuit Court of Mercer County.9 By agreement of the parties, the lawsuit was subsequently dismissed.

On April 27, 2010, Mrs. Jones filed a new civil action in the Circuit Court of Kanawha County against Mrs. Akers and included the Board as a party. Through this action, she sought a writ of mandamus as well as injunctive relief. Upon the Board's motion, the circuit court dismissed the complaint for failure to state a claim.10 Mrs. Jones appealed the dismissal to this Court. During the pendency of the appeal, Mrs. Jones submitted a second QDRO to the Board on December 9, 2010 (December QDRO). The Board denied the December QDRO on grounds that it lacked any authority to enter such an order posthumously. When this Court reversed the dismissal11 and remanded the matter for further proceedings on the merits of the action, Mrs. Akers filed a cross-claim against the Board through which she averred that the Board should have awarded her a preretirement death benefit rather than a disability retirement benefit.

Following discovery, the Board filed motions for summary judgment against Mrs. Jones and Mrs. Akers. By order entered on July 10, 2014, the circuit court granted the Board's motions for summary judgment. Mrs. Jones appeals from the circuit court's rulings regarding the non-enforceability of the QDROs and her consequent lack of entitlement to Mr. Akers' retirement benefits. Mrs. Akers appeals from the circuit court's ruling that the Board properly issued a disability retirement annuity rather than a preretirement death annuity. It is from these rulings that Mrs. Jones and Mrs. Akers each seek respective relief.

II. Standard of Review

Axiomatically, our review of summary judgment rulings is de novo. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Also applicable to this case is syllabus point one of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) : “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” With these standards before us, we proceed to determine whether the circuit court committed error in its rulings in this matter.

III. Discussion
A. Mrs. Akers' Disability Retirement Award

Because the nature of the retirement award at issue necessarily affects the outcome of this case, we first address Mrs. Akers' appeal through which she challenges the Board's award of benefits to her pursuant to the disability retirement statute as opposed to the preretirement death statute. Cf. W.Va.Code § 5–10–25 (2013) to W.Va.Code § 5–10–27 (2013). In addressing this issue below, the circuit court determined the Board was required to process the disability retirement application pending at the time of Mr. Akers' death due to the “mandatory language of W.Va.Code § 5–10–25 and W.Va.Code R. § 162–5–19.2.” The circuit court, in choosing to adopt the Board's position on this issue, was decidedly misguided.

The Board contends that upon the filing of a disability application, the Board is obligated to consider and award a disability retirement if the PERS member qualifies as disabled. As support for its position, the Board emphasizes the introductory language of West Virginia Code § 5–10–25, which provides: Upon the application of a member of the retirement system ... any member ..., who has ten or more years of credited service ... and who becomes totally and permanently incapacitated for employment ..., may be retired by the board....” Id. at 25(a) (emphasis supplied). In stating its position, the Board completely disregards the legislative grant of discretion that occurs in that same statutory clause by virtue of the terms may be retired.” Id. (emphasis supplied).

Seeking to downplay its authority to make disability retirement determinations, the Board posits that it lacked discretion to consider an alternate type of retirement award due to the pending disability application. Essentially, the Board suggests it could not allow the disability retirement application to lie in perpetual administrative purgatory as it was mandated to make a disability retirement award notwithstanding the intervening death of Mr. Akers. We find this argument to be wholly lacking...

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