Judge must hear state pension case, Justices say

By Steve Korris | Sep 30, 2011

CHARLESTON – Kanawha Circuit Judge Tod Kaufman must hear a claim that state pension officials awarded benefits to a widow when they should have awarded them to a previous wife, the Supreme Court of Appeals says.

The Justices on Sept. 23 decided Kaufman improperly dismissed a petition from Patricia Jones for an injunction and a writ of mandamus against the Public Consolidated Retirement Board.

"Petitioner did state a proper claim," they wrote in an unsigned opinion.

They wrote that a court can compel an administrative officer to perform a duty where it appears that the official refuses to recognize the nature and scope of his duty.

"Clearly, the complaint alleged the board breached a nondiscretionary duty and acted under a misapprehension of law," they wrote.

Jones, formerly Akers, divorced Danny Akers in Mercer County in 2008. The marriage had lasted 31 years.

In 2009, a Mercer County family judge entered a qualified domestic relations order naming Danny as participant and Patricia as alternate payee.

The order stated, "The participant shall designate the alternate payee as the surviving spouse or the surviving beneficiary of his retirement benefits and shall elect a joint survivor annuity and name the alternate payee as the beneficiary thereof."

Patricia sent the order to the retirement board.

Before the board acted on it, Danny named future wife Judy Vannoy as beneficiary.

The Justices wrote, "This was done without the knowledge of petitioner or her lawyer."

The board rejected Patricia's order, finding the paragraph about the annuity internally inconsistent with the rest of the order.

The Justices wrote, "The petitioner and her lawyer deny receiving any notice from the board that it had rejected the family court's qualified domestic relations order."

Akers married Vannoy and died, without receiving any retirement benefits.

When the board began paying benefits to Judy, Patricia sued her and the board.

The board moved to dismiss, and Kaufman granted the motion.

He found there was no qualified domestic relations order in place when Danny died.

On appeal, all five Justices agreed he made a mistake.

"The motion to dismiss did not ask the circuit court to rule on the validity of the qualified domestic relations order," they wrote.

"This is a finding of fact outside the four corners of the complaint, and beyond the relief requested by the respondent," they wrote.

"A trial court must liberally construe the complaint so as to do substantial justice," they wrote.

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