King

CHARLESTON – Kanawha Circuit Judge Charles King didn't cheat former wife Judith King out of pension benefits, the Supreme Court of Appeals has decided.

The Justices on May 16 reversed Family Court Judge Ronald Anderson and senior status judge Thomas Steptoe Jr., who ordered Judge King to submit a new pension option.

Facing a contradiction between a divorce agreement and a qualified domestic relations order that followed it, they found that Judith's lawyer, Deny Pool of Clarksburg, prepared both.

"To the extent the ambiguity between the settlement agreement and the qualified domestic relations order was created by the drafter of both of these documents, we must interpret the documents against the appellee in this case," they wrote.

They wrote that the settlement agreement "provides nothing with respect to appellant's right to elect the form of benefit at the time of payment upon his retirement."

They wrote that the domestic order entitled her to half of the marital property portion of the judge's benefits.

"We find that under this language, appellee is entitled to only 50 percent of the marital property portion of appellant's retirement benefits," the Justices wrote. "She is not, pursuant to the terms of the qualified domestic relations order, entitled to dictate what retirement benefits are received by appellant to which she is to receive a 50 percent distribution.

"If appellee wanted her spousal share of appellant's retirement benefits and wanted to preclude appellant from naming any subsequent spouse as beneficiary, her attorney could have placed such language in the qualified domestic relations order.

"However, the express terms of the qualified domestic relations order granted appellee 50 percent of the marital property portion of appellant's retirement benefits, and provided that the form of benefit at the time of payment shall be elected by appellant."

Judith and the judge divorced in 2003, at ages 55 and 56.

In 2008, the judge petitioned Kanawha County family court to move the dates for pension calculation back to their separation or divorce.

Anderson ordered Judith and the judge to write a new agreement.

Judge King retired and elected an annuity naming wife Phyllis Slack King as beneficiary.

The Retirement Board approved it and calculated Judith's monthly payment at $961.83.

The board wouldn't tell her how it figured her amount, so she filed for relief in family court.

Anderson ordered the board to answer her questions.

From the information she obtained, she alleged the judge violated the domestic order.

The Supreme Court of Appeals assigned Steptoe to the case, and he reversed Anderson.

He wrote, "This was a modification which the Family Court lacked jurisdiction to entertain."

Anderson held a hearing and ordered Judge King to resubmit his retirement option.

He found Phyllis had no rights superior to Judith's pre existing rights.

"The Respondent is a Circuit Court Judge knowledgeable in legal matters and, therefore he knew or should have known what he was agreeing to," he wrote. "His actions in naming his new wife as the 100 percent survivor is contrary to his previous agreement with the Petitioner."

Judge King appealed to Steptoe, who upheld Anderson.

Judge King appealed to the Supreme Court of Appeals, claiming Judith received everything to which she was entitled.

Pool responded that she was entitled to $2,547.97 a month.

He wrote, "Judith is entitled to compensation and remedial sanctions against Charles as a result of his contemptuous conduct."

The judge's lawyer, Ancil Ramey of Charleston, wrote that Pool's statement of facts departed so dramatically from the record that the only safe course was to disregard it.

Pool replied, "Appellants are deliberately trying to divert the Court's attention from Charles's own deliberate wrongdoing to benefit and prefer his second wife, Phyllis, over his first wife, Judith."

Chief Justice Margaret Workman and Justice Robin Davis disqualified themselves.

Circuit Judge Gina Groh and retired circuit judge John Cummings replaced them.

The three Justices and the two substitutes, all finding in favor of Judge King, remanded the case to Steptoe for further proceedings.

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