King

CHARLESTON -- The West Virginia Supreme Court of Appeals heard arguments Tuesday on a special judge's decision enforcing a divorce agreement in favor of Kanawha Circuit Judge Charles King's former wife, Judith King.

The Court now must decide how Judge King's pension is divided between his current wife and former wife.

Judith King is seeking about $45,000 in payments retroactive to Judge King's 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.

In 2008, Judge King decided to retire while running unopposed for re-election that November. He began drawing a pension, won re-election and took the bench again in January 2009.

He reportedly earns a judge's salary of $116,000 a year plus more than $80,000 a year from his pension.

Judge King's lawyer, Ancil Ramey of Charleston, called his client's case "straightforward."

Ramey told the justices that the Qualified Domestic Relations Order, often referred to during Tuesday's arguments as a QDRO, was the most important document in the case.

A QDRO, by definition, creates or recognizes the existence of an alternate payee's right to receive, or assigns to an alternate payee the right to receive, all or a portion of the benefits payable with respect to a participant under a retirement plan.

"What she's trying to do is dictate the election of benefits," Ramey said of Judith King.

The election of benefits remains with members under state law, Ramey explained to the Court.

Judge King's lawyer said to change that could mean "profound implications" for the state's Consolidated Public Retirement Board.

"You're opening up all of those other QDROs to non-spouses coming in and saying, 'I don't care if you've remarried,' and they're going to try to dictate how much a current spouse receives," Ramey said.

Clarksburg lawyer Delby Pool, who represented Judith King in Tuesday's arguments, told the Court the QDRO is "merely a tool" to execute a decree of divorce. It cannot be used to modify the decree, she said.

Pool said her client was simply denied the annuity that was bargained for. "He was to designate Judith as the 50 percent joint survivor," she said.

Instead, Judge King chose for his new wife, Phyllis Slack King, to receive 100 percent, Pool said.

Judith and Judge King divorced in 2003, at ages 55 and 56. At that time, they signed QDROs 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, Judge King petitioned the 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 then 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.

Meanwhile, her appeal of Anderson's earlier order had reached the state Supreme Court, and the justices had assigned senior status judge Thomas Steptoe Jr. to resolve the dispute.

Steptoe 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.

Judge King 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.

Judge King and Phyllis appealed, arguing that Anderson and Steptoe cast doubt on the retirement board's entire process of awarding benefits.

Justice Robin Davis and Chief Justice Margaret Workman didn't hear Tuesday's arguments. They disqualified themselves, and Jefferson Circuit Judge Gina Groh and retired Cabell Circuit Judge John Cummings sat in their places.

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