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CourtListener opinion 11115608
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Machine-draft headnote
Machine-draft public headnote: CourtListener opinion 11115608 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to pension / defined benefit issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.
Retrieval annotation
Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.
Category: pension / defined benefit issues
Evidence quotes
QDRO“echtel, Esq. 2 During his employment, Husband obtained retirement accounts in the form of a Thrift Savings Plan ("TSP") and a Federal Employees Retirement Systems ("FERS") account. Many retirement accounts are distributed in equitable distribution through a Qualified Domestic Relations Orders ("QDRO"), but federal accounts are distributed through a COAP. 1 There is an FBI TSP, which is the Respondent's [Husband's] through his employment. That is awarded to him, subject to a Qualified Domestic Relations Order to the Petitioner [Wife] awarding her one-half (1/2) of the amount allocated therein for the period of the marriage, which is March 1”
retirement benefits“2008, and included the following directives regarding Husband's retirement account(s): 1 Husband is represented by James M. Cagle, Esq. Wife is represented by Alyson A. Dotson, Esq., and Michelle L. Bechtel, Esq. 2 During his employment, Husband obtained retirement accounts in the form of a Thrift Savings Plan ("TSP") and a Federal Employees Retirement Systems ("FERS") account. Many retirement accounts are distributed in equitable distribution through a Qualified Domestic Relations Orders ("QDRO"), but federal accounts are distributed through a COAP. 1 There is an FBI TSP, which is the Respondent's [Husband's] through his”
pension“ys following the conclusion of the objection period. If objections are received, the court shall enter an order and findings no later than ten days after the receipt of the objections. 2 percent of Husband's annuities, a marital portion of any disability pension available, a cost- of-living adjustment, and survivor benefits, none of which were addressed in the parties' divorce order. On June 15, 2024, Husband filed objections to the COAP arguing that Wife allowed the marital home's foreclosure; his wages were garnished due to Wife's failure to pay her half of the mortgage payments; Wife had her nursing license susp”
401(k)“act and conclusions of law which are summarized as follows: • Husband's FERS account was a defined benefit retirement4 plan with the monthly benefit determined based upon the highest three years of earnings. 4 There are two types of retirement accounts—defined contribution and defined benefit plans. A defined contribution plan provides benefits solely upon the monetary contributions to the plan by the employee and sometimes by the employer; these plans grow by active appreciation with each contribution and are simple to divide. A defined benefit plan provides benefits based on other criteria, such as years of employment, and”
Source and provenance
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- courtlistener_qdro_opinion_full_text
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- US
- Deterministic extraction
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- May 14, 2026
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Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.
Clean opinion text
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
August 6, 2025
JAMES SUMMERS,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Respondent Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 24-ICA-493 (Fam. Ct. Monongalia Cnty. Case No. FC-31-2007-D-295)
NANCY SUMMERS,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner James Summers ("Husband") appeals the Family Court of Monongalia
County's November 15, 2024, order approving and adopting a Court Order Acceptable for
Processing ("COAP"), which was filed approximately sixteen years after the parties'
divorce. Respondent Nancy Summers ("Wife") responded in support of the family court's
decision and included one cross-assignment of error.1 Husband filed a reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties' arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the family court's order is appropriate
under Rule 21 of the Rules of Appellate Procedure.
By way of background, the parties were married on March 18, 1989, and divorced
by order entered September 3, 2008. Husband became employed by the Federal Bureau of
Investigation ("FBI") beginning on July 10, 1994, while the parties were married, and was
employed there during the family court proceedings.2 The divorce order was entered on
September 3, 2008, and included the following directives regarding Husband's retirement
account(s):
1
Husband is represented by James M. Cagle, Esq. Wife is represented by Alyson
A. Dotson, Esq., and Michelle L. Bechtel, Esq.
2
During his employment, Husband obtained retirement accounts in the form of a
Thrift Savings Plan ("TSP") and a Federal Employees Retirement Systems ("FERS")
account. Many retirement accounts are distributed in equitable distribution through a
Qualified Domestic Relations Orders ("QDRO"), but federal accounts are distributed
through a COAP.
1
There is an FBI TSP, which is the Respondent's [Husband's] through his
employment. That is awarded to him, subject to a Qualified Domestic
Relations Order to the Petitioner [Wife] awarding her one-half (1/2) of the
amount allocated therein for the period of the marriage, which is March 18,
1989[,] through June 20, 2007.
There is a Federal FERS account, which is the Respondent's [Husband's]
retirement plan through his employment. That is awarded to him subject to a
Qualified Domestic Relations Order to the Petitioner [Wife] awarding her
one-half (1/2) of the amount allocated therein for the period of the marriage,
which is March 18, 1989[,] through June 20, 2007.
...
Counsel for both parties are to prepare Qualified Domestic Relations Orders
accordingly. Both parties are under an obligation to complete any and all
documents necessary to implement this distribution.
In the final divorce order, the parties were further directed to each pay half of the
mortgage and home equity loan payments on the marital home until it could be sold, with
proceeds to be split evenly. The final order also noted that Wife had committed marital
waste due to gambling.
Wife failed to pay her share of the mortgage and home equity loan, which resulted
in foreclosure of the former marital home. As such, the parties' pay was garnished to satisfy
the deficiency judgment. Wife obtained her share of Husband's TSP retirement but failed
to submit a COAP to divide Husband's FERS account.
On June 10, 2024, almost sixteen years after the entry of the divorce order, Wife
filed the COAP along with a Rule 22(b) notice3 of submission of the proposed order to
obtain her share of Husband's FERS account. The proposed COAP awarded Wife fifty
3
Rule 22(b) of the West Virginia Rules of Practice and Procedure for Family Court
addresses the preparation of orders and states, in part:
An attorney assigned to prepare an order or proposed findings shall deliver
the order or findings to the court no later than ten days after the conclusion
of the hearing giving rise to the order or findings. Within the same time
period the attorney shall send all parties copies of the draft order or findings
together with a notice which informs the recipients to send written objections
within five days to the court and all parties. If no objections are received, the
court shall enter the order and findings no later than three days following the
conclusion of the objection period. If objections are received, the court shall
enter an order and findings no later than ten days after the receipt of the
objections.
2
percent of Husband's annuities, a marital portion of any disability pension available, a cost-
of-living adjustment, and survivor benefits, none of which were addressed in the parties'
divorce order. On June 15, 2024, Husband filed objections to the COAP arguing that Wife
allowed the marital home's foreclosure; his wages were garnished due to Wife's failure to
pay her half of the mortgage payments; Wife had her nursing license suspended during the
marriage after stealing medication which caused extreme financial hardship; Wife now
earns more than Husband; and Wife squandered at least $153,000 and did not deserve a
share of his FERS retirement, particularly after waiting sixteen years to file the proposed
COAP.
On August 1, 2024, Husband filed a petition for contempt against Wife for her
failure to pay her share of the mortgage on the marital home, resulting in its foreclosure.
On September 24, 2024, Husband filed a motion for summary judgment arguing that Wife
was barred by the statute of limitations and the equitable doctrine of laches from collecting
her share of his FERS retirement account.
In October 2024, Wife filed a motion to dismiss Husband's petition for contempt
arguing that Husband had notice of Wife's missed mortgage payments and could have paid
them himself and then sought reimbursement from the court. Wife further argued that both
parties' pay was garnished due to the foreclosure; she paid a total of $15,750.65 on the
foreclosure judgment; and that Husband's contempt action was barred by the statute of
limitations. Wife also filed a response to Husband's motion for summary judgment arguing
that the statute of limitation does not apply to the entry of a COAP and that the Supreme
Court of Appeals of West Virginia ("SCAWV") has consistently held that the late
submission of a QDRO/COAP was not barred by laches when the delay did not prejudice
the former employee.
A final hearing on all issues was held on October 24, 2024. The final order was
entered on November 15, 2024. The family court made findings of fact and conclusions of
law which are summarized as follows:
• Husband's FERS account was a defined benefit retirement4 plan with the
monthly benefit determined based upon the highest three years of
earnings.
4
There are two types of retirement accounts—defined contribution and defined
benefit plans. A defined contribution plan provides benefits solely upon the monetary
contributions to the plan by the employee and sometimes by the employer; these plans
grow by active appreciation with each contribution and are simple to divide. A defined
benefit plan provides benefits based on other criteria, such as years of employment, and
are usually not paid until the employee retires. Defined benefit plans generally require the
use of an expert witness, agreement of the parties, or use of the coverture fraction. A
coverture fraction is a mathematical tool used to determine the portion of a retirement
3
• During the divorce, neither party sought to have the FERS account
valued. Therefore, it had to be defined using the coverture fraction (the
period during the marriage that Husband was employed by the FBI
divided by the total period of his employment with the FBI).
• The COAP should provide that any benefit related to a military credit is
Husband's sole benefit.
• Neither West Virginia Code § 55-2-6 nor § 38-3-18 apply to the entry of
a QDRO or COAP.5
benefit that is considered marital property in a divorce and is calculated by dividing the
total period of time the pension holder participated in the plan during the marriage by the
total period of time the pension holder participated in the plan as of the date of separation.
Husband's FERS account was a defined benefit plan.
5
West Virginia Code § 55-2-6 (2025) addresses actions to recover on an award or
contract other than a judgment or recognizance.
West Virginia Code § 38-3-18 (2008) addresses limitations on enforcement of judgments,
and states:
(a) On a judgment, execution may be issued within ten years after the date
thereof. Where execution issues within ten years as aforesaid, other
executions may be issued on such judgment within ten years from the
return day of the last execution issued thereon, on which there is no return
by an officer, or which has been returned unsatisfied.
(b) For any order for child support in an action filed on and after the
amendment and reenactment of this section during the legislative session
of two thousand eight, an execution may be issued upon a judgment for
child support, as those terms are defined in chapter forty-eight of this
code, within ten years after the emancipation of the child: Provided, That
in cases where the support order is for more than one child, the limitations
set forth in subsection (a) of this section commence when the youngest
child who is the subject of the order on which the execution is based
reaches the age of eighteen or is otherwise legally emancipated.
(c) An action, suit or scire facias may be brought upon a judgment where
there has been a change of parties by death or otherwise at any time within
ten years next after the date of the judgment; or within ten years from the
return day of the last execution issued thereon on which there is no return
by an officer or which has been returned unsatisfied. But if such action,
suit or scire facias be against the personal representative of a decedent, it
shall be brought within five years from the qualification of such
representative.
4
• In a laches claim, delay alone is insufficient; the moving party also must
prove that he was prejudiced by the delay.
• Husband has not shown that he was prejudiced by the delay.
• Had the COAP been prepared immediately after the entry of the divorce
order as opposed to sixteen years later, Wife would receive the same
proportion utilizing the coverture fraction.
• No evidence was presented by Husband that relevant evidence was lost
by virtue of Wife's delay.
• Use of the coverture fraction is the court's only choice when neither party
presented testimony valuing the pension during the divorce case.
• Cost of living adjustment ("COLA") increases are appropriate to include
in the COAP because neither party will incur any costs related to the
benefit.
• If Husband receives an annuity supplement, it should be allocated
between the parties based upon their share of the basic annuity.
• The proposed COAP should be amended to reflect that Wife may only
receive survivor benefits if Husband elects it and Husband's new wife
agrees in writing.
• Paragraph 4(C) of the COAP which addresses the cost of former spouse
annuity shall be deleted.
• Husband's claim that any award of his FERS benefit should be offset by
Wife's failure to pay her share of the mortgage and home equity loan on
the marital home is not actionable because the events related to the marital
home occurred at least fourteen years ago and contempt actions on a
monetary award are subject to a ten-year statute of limitations.
It is from the November 15, 2024, order that Husband now appeals.
For these matters, we apply the following standard of review:
When a final order of a family court is appealed to the Intermediate Court of
Appeals of West Virginia, the Intermediate Court of Appeals shall review the
findings of fact made by the family court for clear error, and the family
court's application of law to the facts for an abuse of discretion. The
Intermediate Court of Appeals shall review questions of law de novo.
Syl. Pt. 2, Christopher P. v. Amanda C., 250 W. Va. 53, 902 S.E.2d 185 (2024); accord W.
Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate court review of family
court orders).
On appeal, Husband raises three assignments of error. First, he asserts that the
family court erred by permitting the case to proceed with the Rule 22(b) notice that Wife
5
submitted with her proposed COAP because Husband should have had more than the five
days allotted by Rule 22(b) to respond. Because this issue was not raised below or
preserved for appeal during the family court proceeding, we decline to address it on appeal.
See Noble v. W. Va. Dep't of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653
(2009) (per curiam) (citations and quotations omitted) ("Our general rule is that
nonjurisdictional questions ... raised for the first time on appeal, will not be considered.");
PITA, LLC v. Segal, 249 W. Va. 26, 40, 894 S.E.2d 379, 393 (Ct. App. 2023) (noting that
as a general rule, an appellate court will not consider an issue raised for the first time on
appeal).
In his second assignment of error, Husband contends that Wife's claims violate the
ten-year statute of limitations in West Virginia Code § 38-3-18. We disagree. Upon our
review of West Virginia Code § 38-3-18, we note that it addresses judgments and child
support and is, therefore, inapplicable to a QDRO or COAP. Additionally, the Supreme
Court of Appeals of West Virginia ("SCAWV") has routinely held that "the distribution of
retirement benefits [. . .] to a former spouse is accomplished through a QDRO and not
through the terms of the final order of divorce." Jones v. W. Va. Pub. Employees Ret. Sys.,
235 W. Va. 602, 613, 775 S.E.2d 483, 494 (2015). The Court also has emphasized that "a
QDRO is merely the vehicle by which a former spouse seeks to enforce an interest in a
pension plan that has already been determined to exist." Id. at 617, 775 S.E.2d at 498.
Because Wife is enforcing her interest in Husband's FERS account that was determined in
the final divorce order to exist, we cannot conclude that the family court's ruling was
erroneous or an abuse of discretion on this assignment of error.
Third, Husband argues that the award to Wife was contrary to public policy which
supports finality and certainty. In support of his argument, he states that it would be unfair
for Wife to benefit from Husband's highest three years of pay after sitting on her rights for
sixteen years and that the family court erroneously found that Husband was not prejudiced
by Wife's delay—essentially, Husband argues that the doctrine of laches6 should have
barred Wife's claim. We disagree, as this argument has been consistently denied by the
SCAWV. See Syl. Pt. 3, Carter v. Carter, 107 W. Va. 394, 148 S.E. 378 (1929) (stating
"[d]elay alone does not constitute laches; it is delay which places another at a
disadvantage."); Grose v. Grose, 222 W. Va. 722, 728, 671 S.E.2d 727, 733 (2008) (finding
that a sixteen year delay between the equitable distribution order and the QDRO did not
bar wife from submitting the QDRO and obtaining benefits); Syl. Pt. 4, State ex rel. DHHR
v. Carl Lee H., 196 W. Va. 369, 472 S.E.2d 815 (1996) ("Mere delay will not bar relief in
equity on the ground of laches."). Here, the family court provided a thorough analysis and
determined that (1) Husband presented no evidence to suggest that relevant evidence was
6
The doctrine of laches is "an equity doctrine to the effect that unreasonable delay
will bar a claim if the delay is a prejudice to the defendant." Kinsinger v. Pethel, 234 W.
Va. 463, 467, 766 S.E.2d 410, 414 (2014) (quoting 1 Dan B. Hobbs, Handbook on the Law
of Remedies § 2.4(4) (2d ed. 1993)).
6
lost by virtue of Wife's delay; (2) neither party would incur additional costs if a COLA is
included in the COAP; (3) Wife would receive the same proportion as she would have
sixteen years ago; and (4) Husband failed to show that he was prejudiced by the delay.
Given these findings and the deference7 that must be afforded the family court, we cannot
conclude that the family court's factual determinations are erroneous or an abuse of
discretion.
Wife raised one cross-assignment of error on appeal. She contends that the family
court erred when it held that her interest in a survivor annuity was contingent upon the
consent of Husband's current wife. We disagree. Pursuant to 5 U.S.C.A. § 8417(b)(3)(B)
(1986), an employee spouse who has a former spouse "may elect" a reduction in their
annuity "to provide a survivor annuity for such former spouse." It further states, "an
election under this subsection [. . .] shall not be effective, in the case of an employee or
Member who is then married, unless it is made with the spouse's written consent." Because
the applicable Code sections specifically state that Husband's current wife must provide
written consent, we affirm the family court on this issue.
Accordingly, we affirm the family court's November 15, 2024, order.
Affirmed.
ISSUED: August 6, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White
7
See, e.g., Porter v. Bego, 200 W. Va. 168, 173, 488 S.E.2d 443, 448 (1997) ("We
have repeatedly stated that we will accord great deference to findings of fact by a family
[court]."); Jacob H. v. Siera G., No. 24-ICA-147, 2024 WL 4787833, at *3 (W. Va. Ct.
App. Nov. 14, 2024) (memorandum decision) (internal citations and quotations omitted)
("A family court's decision is entitled to significant deference.")
7