CHARLESTON – Justices of the West Virginia Supreme Court of Appeals must divide Kanawha Circuit Judge Charles King's pension between his wife and his former wife.
The Justices will hear oral arguments March 29 on a special judge's decision enforcing a divorce agreement in favor of former wife Judith King.
She seeks about $45,000 in payments retroactive to his retirement and a permanent increase from $961.83 a month to $2,547.97. She figures she should get $4,481.97 a month, if she outlives him.
Briefs burst with hard feelings.
Judith's lawyer, Delby Pool of Clarksburg, identified Phyllis Slack King as "another person to whom he has allegedly remarried."
"Judith is entitled to compensation and remedial sanctions against Charles as a result of his contemptuous conduct," Pool wrote.
In reply, Ancil Ramey of Charleston wrote that Judge King was "sarcastically referenced in Ms. King's brief as Charles."
"Ms. King's discussion of the procedural history and statement of facts departs so dramatically from the record that appellants submit that the only safe course is to disregard it," Ramey wrote. "Judge King agrees that there has been conduct in this case that is uncivil, unprofessional, and contemptible, but it is not his own."
Ramey wrote that the judge might take solace in the fact that Judith's brief didn't seek to have him confined in jail as her petition in circuit court did.
Chief Justice Robin Davis and Justice Margaret Workman won't hear the argument.
They disqualified themselves, opening seats for Jefferson Circuit Judge Gina Groh and retired Cabell Circuit Judge John Cummings.
Judith and the judge divorced in 2003, at ages 55 and 56. They signed qualified domestic relations orders entitling each to half of the other's future pension, calculated at such time as benefits would be calculated.
It provided that each would elect the form of the benefit at the time of payment. In 2008, the judge petitioned Kanawha County family court to move the calculation dates back to their separation or divorce.
Cabell County Family Court Judge Ronald Anderson ordered Judith and the judge to write a new pension agreement. While Judith prepared an appeal, Judge King exercised his right to begin receiving benefits.
He elected an annuity naming Phyllis Slack King as 100 percent 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 granted it in 2009, ordering the Retirement Board to answer her questions.
When she found the judge hadn't designated her for 50 percent, she petitioned the family court to find he violated the domestic orders.
Her appeal of Anderson's earlier order had reached the Supreme Court meanwhile, and the Justices had assigned senior status judge Thomas Steptoe Jr. to resolve the dispute.
He reversed Anderson and wrote, "This was a modification which the Family Court lacked jurisdiction to entertain."
Anderson held a hearing on the information from the Retirement Board, after granting a motion for Phyllis Slack King to intervene.
After the hearing, he ordered Judge King to resubmit his retirement option naming Judith as 50 percent survivor. 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," Anderson wrote. "His actions in naming his new wife as the 100 percent survivor is contrary to his previous agreement with the Petitioner."
He ordered the judge to buy an annuity in case he and his wife should die before Judith.
The judge filed an appeal, and Steptoe denied it last year.
He didn't agree that different standards should apply to circuit judges, but he found no ambiguity in the divorce decree.
The judge and Phyllis appealed, arguing that Anderson and Steptoe cast doubt on the Retirement Board's entire process of awarding benefits.
Ramey wrote that Judith received the benefits to which she was entitled.
"Only if both Judge King and his wife predecease Ms. King, will Ms. King suffer any loss of benefits," he wrote. "Yet, the Family Court has Judge King purchasing some unspecified annuity for Ms. King apparently paying her benefits for a contingency that not only may not happen, but because Judge King's wife is much younger than he and Ms. King, is actuarially very unlikely to happen."
He wrote that Judge King was born in 1947, Judith in 1948, and Phyllis in 1962.
"Charles does not dispute the Family Court's finding that Phyllis's rights are not relevant and do not elevate her over Judith's rights," Pool responded. "Therefore, it makes no sense to provide Judith a life insurance policy on the second wife's life.
"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."
Along with Ramey, David Lockwood of Huntington represents Judge King.
Andrew Nason of Charleston represents Phyllis Slack King.