Justices rule against Jack Whittaker

By Jessica M. Karmasek | Mar 3, 2011


CHARLESTON -- The West Virginia Supreme Court has ruled that a Raleigh Circuit Court "erred" when it reversed the decisions of a family court in the divorce of Powerball winner Jack Whittaker and his wife of nearly 42 years.

The Court's per curiam opinion was filed Tuesday.

According to Court documents, Whittaker and his wife, Jewell, were married on May 7, 1966.

The two were divorced by a final order of a Raleigh family court on April 7, 2008, after which Jack Whittaker appealed the family court order with respect to the division of the couple's marital assets.

On Aug. 27, 2008, the Raleigh Circuit Court issued an order reversing the family court's order and remanding the matter to the family court for further proceedings. The circuit court found that the family court had exceeded its jurisdiction by ordering the distribution of assets of a limited liability company -- Whittaker LLC, Jack Whittaker's company.

Soon after, the parties reached an agreement as to the distribution of the marital assets. The agreement was set forth in an order entered by the family court on Nov. 7, 2008. Neither party appealed the order.

However, in January 2009, Jewell Whittaker filed a petition for order for rule/contempt with the family court, requesting Jack Whittaker be found in contempt of the Nov. 7, 2008 order.

Jewell Whittaker asserted that her ex-husband, who won more than $300 million in 2002, had failed to convey certain properties and assets to her as agreed in the November order.

A hearing was held on March 11, 2009, by the family court, and an order holding Jack Whittaker in contempt was entered by the court on March 25, 2009.

The Powerball winner then filed an appeal of the contempt order with the circuit court.

On Nov. 30, 2009, the circuit court held a hearing on the matter. On Dec. 2, 2009, it issued a final order reversing the March 25, 2009, family court order holding Jack Whittaker in contempt and also reversing the family court order entered on Nov. 7, 2008.

The Raleigh Circuit Court found that the November family court order "subsequent to this court's remand, is void for lack of subject matter jurisdiction for the same reason that its first order was void, to the extent that it purported to order the transfer or liquidation of the assets of an LLC to satisfy Ms. Whittaker's claim for distribution of the marital estate."

The circuit court reversed the family court's contempt order "to the extent that it (was) grounded on a finding that Mr. Whittaker did not comply with an order to transfer or liquidate an asset that is not a part of the marital estate because it is an asset belonging to an LLC."

The circuit court remanded the matter to the family court for further proceedings. The appeal before the state Supreme Court followed.

The Court, in its 14-page opinion, reversed the circuit court's Dec. 2, 2009 final order.

"The Nov. 7, 2008 order did not direct Whittaker, LLC, to transfer its assets to Ms. Whittaker. Rather, the Nov. 7, 2008 order memorializes the marital property settlement agreement entered into by the parties whereby Mr. Whittaker, as the sole member of Whittaker, LLC, agreed to transfer certain assets belonging to Whittaker, LLC, to Ms. Whittaker to satisfy her share of the equitable distribution of the marital estate," the Court wrote.

In this case, Jack Whittaker agreed to transfer certain properties belonging to his company to his ex-wife to satisfy her equitable share of the marital estate, the Court noted.

"Therefore, while we agree with circuit court that the family court does not have jurisdiction to order a limited liability company to transfer its assets, in this case, Mr. Whittaker voluntarily chose to make such a transfer as part of the marital property settlement agreement," it wrote. "He did so in order to satisfy Ms. Whittaker's share of equitable distribution and yet avoid dissolution of the company."

The family court "clearly" had jurisdiction to enforce the settlement agreement, the Court said.

However, it wrongly reversed the Nov. 7, 2008, and March 25, 2009, orders of the family court, the state's high court concluded.

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