CHARLESTON - A Charleston physician is alleging a Kanawha family law judge overstepped his bounds in ordering her to sell her home before finalizing the divorce from her estranged husband.
Judge Robert Montgomery is named as a respondent in a writ of prohibition filed in Kanawha Circuit Court by Dr. Helen R. Ruiz Remolona. In her petition filed May 30, Remolona, 57, seeks a court order enjoining Montgomery from carrying out the temporary order he entered 10 days earlier directing her to sell the home she shared with her husband, Dr. Nathan M. Remolona, or face contempt charges if she doesn’t.
According to the petition, the Remolonas were married on Feb. 5, 1984, and legally separated on Jan. 25, 2011. After Helen filed a petition for separate maintenance the following December, Nathan, on an unspecified date, filed a counter-petition seeking divorce.
At a hearing on April 19, 2012, Montgomery determined the value of the Remolonas’ home on Chafton Rd. in the South Hills section of Charleston at $775,000. Prior to concluding the hearing, Montgomery ordered the Remolonas to contact a realtor to make arrangements to sell the property, and for Nathan to begin paying Helen $7,000 a month beginning the following May.
The petition says Montgomery’s order stated that if they could not agree upon one, he would appoint a realtor based on their recommendations. Also, he set May 20 for a final divorce hearing.
Helen says she used the bulk - $4,300 - of the monthly spousal support she received from Nathan to make the monthly house payments, which included the first mortgage and home equity loan. Four months ago, she made an application with Huntington Banks to refinance the first mortgage in her name only in hopes of remaining in the home.
Though Huntington Bank granted her preliminary approval to refinance the mortgage out of Nathan’s name, the petition says Helen was not given final approval due to the absence of a final spousal support order.
During the final hearing, the petition says Helen and Nathan informed Montgomery the home remained unlisted. He granted her motion to continue the final hearing until July 22.
However, Montgomery denied her request to refrain from listing the home until he could make a final ruling on alimony and equitable distribution of assets so she could get approval to refinance the mortgage. He ordered Helen to execute a listing agreement within seven days or be held in contempt.
In her petition, Helen states that while state law gives family law judge’s authority to issue them in certain circumstances, there is no statute giving them the authority to compel the sale of a marital residence via a temporary order.
Because temporary orders cannot be directly appealed, Helen says absent filing the writ, she’s left in the untenable position of facing contempt charges or losing the opportunity to obtain exclusive ownership of her home.
Along with an order granting her writ, Helen seeks recovery of attorneys fees, and court costs. She is represented by Charleston attorney Tim C. Carrico.
The case is assigned to Judge Louis H. “Duke” Bloom.
Kanawha Circuit Court, case number 13-P-297