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CourtListener opinion 11115616

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Machine-draft public headnote: CourtListener opinion 11115616 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to QDRO procedure / domestic relations order 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.

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Category: QDRO procedure / domestic relations order issues

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rther proceedings is appropriate under Rule 21 of the Rules of Appellate Procedure. Mr. Burgess and Ms. Burgess were married in 1982 and divorced in 2004. As part of the divorce, the family court awarded Ms. Burgess a portion of Mr. Burgess' PERS annuity. A Qualified Domestic Relations Order ("QDRO") was entered by the family court on June 25, 2004. By separate letters dated October 6, 2004, the Board informed petitioners that the QDRO had been received. PERS is governed by the West Virginia Public Employees Retirement Act (the "Act"). See W. Va. Code §§ 5-10-1 to -55. Mr. Burgess was employed by the West Virginia Department of Highways ("DOH

domestic relations order

eedings is appropriate under Rule 21 of the Rules of Appellate Procedure. Mr. Burgess and Ms. Burgess were married in 1982 and divorced in 2004. As part of the divorce, the family court awarded Ms. Burgess a portion of Mr. Burgess' PERS annuity. A Qualified Domestic Relations Order ("QDRO") was entered by the family court on June 25, 2004. By separate letters dated October 6, 2004, the Board informed petitioners that the QDRO had been received. PERS is governed by the West Virginia Public Employees Retirement Act (the "Act"). See W. Va. Code §§ 5-10-1 to -55. Mr. Burgess was employed by the West Virginia Department of Highways ("DOH

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N THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
 FILED
CHET BURGESS and KIMBERLY BURGESS, August 6, 2025
Applicants Below, Petitioners ASHLEY N. DEEM, CHIEF DEPUTY CLERK
 INTERMEDIATE COURT OF APPEALS
 OF WEST VIRGINIA
v.) No. 24-ICA-437 (W. Va. Consol. Pub. Ret. Bd. (In re: Chet Burgess))

WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD,
Respondent Below, Respondent

 MEMORANDUM DECISION

 Petitioners Chet Burgess and Kimberly Burgess appeal the October 9, 2024, order
of the West Virginia Consolidated Public Retirement Board ("Board"), which determined
that petitioners had received an overpayment from Mr. Burgess' Public Employees
Retirement System ("PERS") annuity, ended further annuity payments, and required
petitioners to reimburse the Board for all annuity funds disbursed to them. The Board filed
a response.1 Petitioners filed a reply.

 This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the record on appeal and the applicable law, we find that
deficiencies in the record prevent this Court from engaging in a meaningful appellate
review to determine whether there is a substantial question of law or prejudicial error. As
explained below, a memorandum decision vacating the order on appeal and remanding this
matter to the Board for further proceedings is appropriate under Rule 21 of the Rules of
Appellate Procedure.

 Mr. Burgess and Ms. Burgess were married in 1982 and divorced in 2004. As part
of the divorce, the family court awarded Ms. Burgess a portion of Mr. Burgess' PERS
annuity. A Qualified Domestic Relations Order ("QDRO") was entered by the family court
on June 25, 2004. By separate letters dated October 6, 2004, the Board informed petitioners
that the QDRO had been received.

 PERS is governed by the West Virginia Public Employees Retirement Act (the
"Act"). See W. Va. Code §§ 5-10-1 to -55. Mr. Burgess was employed by the West Virginia
Department of Highways ("DOH"), a PERS participating employer, from August 1987
until his retirement in November 2011. During a portion of this time, Mr. Burgess worked
in either a part-time or full-time capacity for the City of Madison ("Madison"), holding
such positions as a police officer, municipal judge, and eventually the chief of police.

 1
 Petitioners are represented by Lonnie C. Simmons, Esq. The Board is represented
by Ronda L. Harvey, Esq.
 1
 Madison also participates in PERS. The Board's records show that from November 2005
to October 2009, monthly PERS contributions were submitted for Mr. Burgess by both the
DOH and Madison. According to the Board, the PERS contributions during that time
period establish that Mr. Burgess was working full-time for both the DOH and Madison at
the same time. Mr. Burgess resigned from Madison in 2009 after his DOH supervisor
informed him that he could not work both jobs simultaneously.

 In 2011, Madison offered Mr. Burgess the full-time chief of police position. On
March 9, 2011, Madison faxed the Board a completed copy of its Verification of
Employment Status form ("Verification Form") reflecting this full-time employment. Mr.
Burgess testified below that he viewed this as an opportunity to retire from the DOH,
collect his PERS annuity, and earn additional income by working full-time for Madison.

 Mr. Burgess met with a Board retirement advisor around March 15, 2011, to discuss
his retirement from the DOH. Mr. Burgess testified that he discussed his plan to retire and
work for Madison with the retirement advisor. Mr. Burgess stated that the advisor informed
him that while he could not receive his PERS annuity if he accepted other State
employment, he could work full-time for any city or county government and still receive
his PERS annuity payments. Mr. Burgess could not recall the name of the retirement
advisor. Mr. Burgess also indicated that Madison city officials had contacted the Board and
were told the same information. Taking this information into consideration, Mr. Burgess
retired from the DOH on November 30, 2011, and thereafter, petitioners started receiving
their PERS annuity payments. Mr. Burgess began full-time employment with Madison on
December 1, 2011, however, Madison neither submitted reports listing Mr. Burgess as an
employee, nor did they remit PERS contributions on his behalf.

 Madison was audited by the state auditor's office in 2019 ("2019 Audit"). The 2019
Audit revealed, among other things, that Madison was not remitting mandatory PERS
contributions on behalf of certain employees, including Mr. Burgess, as required by the
Act. See W. Va. Code § 5-10-17 (2020) (mandating that all full-time employees of PERS
participating employers be PERS members); W. Va. Code R. § 162-5-2.3 (2014) (defining
full-time employment as: "Employment of an employee by a participating public employer
in a position which normally requires twelve (12) months per calendar year service and
requires at least one thousand forty (1,040) hours per calendar year service in that
position.").

 In March 2020, a Madison official generally informed the Board of the 2019 Audit
findings without identifying Mr. Burgess by name. On June 1, 2022,2 the Board sent a letter

 2
 On its face, this letter is temporally inconsistent. The letter is dated June 1, 2022;
however, it references Mr. Burgess' employment as of April 2023. Because the date upon
which the Board discovered the underlying error is a disputed factual issue and highly
 2
 to Mr. Burgess, advising him that an audit of his PERS account revealed that, pursuant to
West Virginia Code § 5-10-44 (2022),3 he may be eligible to purchase additional PERS
service credits from November 30, 2011, through April 1, 2023, which at the time, was the
length of Mr. Burgess' ongoing employment with Madison.

 By letter dated December 29, 2022, a Madison official informed the Board that Mr.
Burgess was a full-time employee who was not participating in PERS. This letter identified
Mr. Burgess by name. A Board investigation ensued, and in February 2023, the Board
determined that no PERS contributions had been made for Mr. Burgess since he was hired
by Madison in 2011.

 Around March 1, 2023, the Board suspended petitioners' PERS annuity payments.
Mr. Burgess contacted the Board and was informed that he was not eligible to receive his
annuity while he was employed full-time by Madison. He was also told that to the extent a
Board retirement advisor may have explained things differently in 2011, he was
misinformed.

 The Board formally notified Mr. Burgess of the cessation of his annuity benefits by
letter dated April 2, 2024. The letter explained that the payments were terminated on March
1, 2023, because since his DOH retirement, Mr. Burgess maintained full-time employment
with another PERS employer, Madison. It was further explained that due to this
ineligibility, petitioners had erroneously received annuity payments from December 2011
to February 2023, totaling more than $400,000, and that pursuant to West Virginia Code §
5-10-44, petitioners were responsible for repaying the amounts individually distributed to
them, and the letter included repayment options.

 Petitioners filed an administrative appeal on May 1, 2024, and a hearing was held
before the Board's hearing officer on August 6, 2024. At the hearing, petitioners testified,
as did Terasa Miller, the Board's Deputy Director and Chief Operating Officer. On October
7, 2024, the hearing officer provided the Board with a recommended decision, which the
Board adopted verbatim in its October 9, 2024, order.

 In its order, the Board offered no findings regarding Mr. Burgess' testimony, one
sentence regarding Ms. Burgess' testimony, and briefly addressed Ms. Miller's testimony.
The Board found that Ms. Miller testified that PERS members, including Mr. Burgess, had

relevant to issues at hand, the timeframe surrounding this letter must be further clarified
upon remand.
 3
 West Virginia Code § 5-10-44 provides guidelines for the Board to follow when
errors, overpayments, and underpayments are determined to have occurred with a PERS
retirement annuity account.

 3
 been mailed brochures after his DOH retirement, which included information about post-
retirement employment. Ms. Miller noted, and the Board found, that the brochures
specifically stated, "[i]f a retiree becomes regularly employed by a [PERS] participating
employer payment of his or her annuity shall be suspended during his or her [PERS]
employment, and he or she shall again become a contributing member of the [PERS]
retirement system." The Board determined that Mr. Burgess was not eligible to receive
payments from his annuity because he never severed his employment with a PERS
participating employer and, thus, never retired from the PERS system. See W. Va. Code §
5-10-2(24) (stating that "‘[r]etirement' means a member's withdrawal from the employ of
a participating public employer and the commencement of an annuity by the retirement
system[.]").

 The Board also rejected Mr. Burgess' contention that the doctrine of equitable
estoppel should be applied to his case. On this issue, the Board determined that estoppel
did not apply because Mr. Burgess never informed the Board of his post-DOH employment
with Madison and since Madison did not report Mr. Burgess' employment to the Board or
remit contributions on his behalf, the Board did not know that Mr. Burgess was engaged in
full-time employment with a PERS participating employer.

 Similarly, the Board rejected petitioners' objection to the requirement that they must
repay all annuity payments paid to them. The Board found that Mr. Burgess was ineligible
for his retirement annuity because he did not sever his PERS employment. Thus, pursuant
to West Virginia Code § 5-10-44, the Board was required to seek repayment, and had no
authority to deviate from the Act's requirements. This appeal followed.4

 Our review of this matter is governed by West Virginia Code § 29A-5-4(g) (2021),
which states:

 4
 The Board's order also found that Ms. Burgess did not have standing to challenge
the Board's demand for repayment because she was not a PERS retirant, but rather,
received annuity payments subject to a QDRO. For those reasons, the Board found her
involvement in the case to be purely derivative of Mr. Burgess. Ms. Burgess challenges
this finding on appeal, arguing that it denied her fundamental due process. However,
because Ms. Burgess was permitted by the Board to participate in the hearing below and
the Board's order includes findings with respect to Ms. Burgess' testimony, we conclude
that under the facts of this case, Ms. Burgess' participation mooted the issue of whether
she had standing to challenge the Board's determination, thereby removing the issue from
the Board's consideration. In other words, the Board's retrospective determination that Ms.
Burgess lacked standing was unfounded and, as a result, we do not need to further address
this argument in this appeal.

 4
 The court may affirm the order or decision of the agency or remand the case
 for further proceedings. It shall reverse, vacate, or modify the order or
 decision of the agency if the substantial rights of the petitioner or petitioners
 have been prejudiced because the administrative findings, inferences,
 conclusions, decision, or order are:

 (1) In violation of constitutional or statutory provisions;
 (2) In excess of the statutory authority or jurisdiction of the agency;
 (3) Made upon unlawful procedures;
 (4) Affected by other error of law;
 (5) Clearly wrong in view of the reliable, probative, and substantial evidence
 on the whole record; or
 (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
 unwarranted exercise of discretion.

 On appeal, petitioners present two assignments of error. First, they assert that the
Board should be required to consider what effect, if any, that our recent decision in Stemple
v. West Virginia Consolidated Public Retirement Board, 251 W. Va. 121, 909 S.E.2d 634
(Ct. App. 2024) has on the matter. Similarly, petitioners contend that the record in this case
is underdeveloped because the Board failed to consider our Supreme Court of Appeals'
prior application of West Virginia Code § 5-10-44 in West Virginia Consolidated Public
Retirement Board v. Clark, 245 W. Va. 510, 859 S.E.2d 453 (2021). Under these
authorities, petitioners assert that the Verification Form placed the Board on notice of Mr.
Burgess' forthcoming Madison employment and yet, the Board failed to discover and act
upon the error for approximately twelve years. Therefore, the Board should be prohibited
from prospectively adjusting petitioners' annuity payments. Conversely, the Board
maintains on appeal that it did not learn of Mr. Burgess' Madison employment until
December 2022 and that its investigation did not confirm the circumstances surrounding
Mr. Burgess' employment until February 2023 and, thus, it acted in a timely manner.
Moreover, the Board claims that record "is full of testimony regarding [the Board]'s
investigation and the time of [the Board]'s corrective action."5

 5
 The Board also noted that petitioners raised Stemple and Clark arguments in
support of their motion to stay, which this Court refused on November 25, 2024. The Board
contends that this Court's refusal of the motion moots petitioners' use of the same
arguments in their brief. We find this contention to be untenable. See W. Va. R. App. P.
5(h) ("After the response brief or summary response has been filed . . . and any reply brief
deemed necessary has been filed . . . the appeal will be deemed to be mature, and the
Intermediate Court . . . will fully consider the written arguments of all parties to the
appeal."). Pursuant to Rule 5 of the West Virginia Rules of Appellate Procedure, this
Court's grant or refusal of a motion to stay does not act as a decision on the merits regarding
any substantive arguments made by the parties.

 5
 Second, petitioners aver that the Board erred by failing to conclude that equitable
estoppel applied to bar any repayment obligation. On this issue, it is argued that Mr.
Burgess testified that he met with a Board retirement advisor, informed the advisor of his
intentions, was told by the advisor that he could receive his retirement and work full-time
for Madison, and that he acted in reliance upon the advisor's representations. According to
Mr. Burgess, this testimony was unrefuted below. On appeal, the Board contends that Mr.
Burgess' testimony on this issue was too vague to be credible, and it is improbable that a
Board retirement advisor would provide inaccurate advice regarding PERS policy.

 However, upon review, we conclude that the Board's October 9, 2024, order does
not contain sufficient findings of fact and conclusions of law, thereby impeding our ability
to engage in a meaningful appellate review. West Virginia Code § 29A-5-3 (1964) requires:

 Every final order or decision rendered by any agency in a contested case shall
 be in writing or stated in the record and shall be accompanied by findings of
 fact and conclusions of law. Prior to the rendering of any final order or
 decision, any party may propose findings of fact and conclusions of law. If
 proposed, all other parties shall be given an opportunity to except to such
 proposed findings and conclusions, and the final order or decision shall
 include a ruling on each proposed finding. Findings of fact, if set forth in
 statutory language, shall be accompanied by a concise and explicit statement
 of the underlying facts supporting the findings[.]

 Here, the Board's order contains several deficiencies. For one, the Board's ruling is
predicated upon its application of West Virginia Code § 5-10-44(e) (2022), which provides,
in part:

 If any error results in any member, retirant, beneficiary, entity or other
 individual receiving from the system more than he would have been entitled
 to receive had the error not occurred, the board, upon learning of the error,
 shall correct the error in a timely manner. If correction of the error occurs
 after annuity payments to a retirant or beneficiary have commenced, the
 board shall prospectively adjust the payment of the benefit to the correct
 amount. In addition, the member, retirant, beneficiary, entity or other person
 who received the overpayment from the retirement system shall repay the
 amount of any overpayment to the retirement system in any manner
 permitted by the board[.]

 After citing this statute, the Board summarily concluded that a statutory
overpayment was made to petitioners and repayment was required. Critically, however, the
order on appeal fails to articulate what facts from the record, if any, establish that an
overpayment was made. We note that the intended usage of the term overpayment is not
defined or otherwise limited by the Act. "In the absence of any specific indication to the

 6
 contrary, words used in a statute will be given their common, ordinary and accepted
meanings." Clark, 245 W. Va. at 518, 859 S.E.2d at 461 (citing Syl. pt. 1, Tug Valley
Recovery Ctr. v. Mingo Cnty. Comm'n, W. Va., 164 W. Va. 94, 261 S.E.2d 165 (1979)).
The common meaning of overpayment is "a payment that is more than the amount owed
or due." Overpayment, Black's Law Dictionary (12th ed. 2024). Here, the Board's order is
devoid of any analysis applying the term's plain meaning to the facts of the case. Moreover,
even if the Board's order had sufficiently established that an overpayment occurred, the
order is still insufficient because it fails to contemplate whether the overpayment
constitutes an "error" as previously defined by this Court in Stemple or how any error was
detrimental or injurious to the PERS system as a whole. See W. Va. Code § 5-10-44(a)
(2022) (stating that as a general rule, the Board "shall correct errors in the retirement system
. . . with the intent of placing the affected individual, entity[,] and retirement board in the
position each would have been in had the error not occurred.").6

 Similarly, the Board's order reflects that Ms. Miller and petitioners each testified
and that various exhibits were admitted during the administrative hearing. However, the
Board's order contains no findings detailing Mr. Burgess' testimony and only mentions the
testimony of Ms. Miller and Ms. Burgess and the admitted exhibits in passing. According
to the parties' briefs, they offered conflicting evidence on core factual issues; however, the
order fails to reconcile that evidence by providing findings and analysis regarding the
weight and credibility of any evidence presented below. Also noticeably absent from the
Board's order are any findings or analysis which reconciles the parties' arguments
regarding the Board's knowledge of Mr. Burgess' employment status given that the Board
had the Verification Form in its possession prior to Mr. Burgess' meeting with the Board
retirement advisor in 2011.

 As previously established, the Board adopted the hearing officer's recommended
decision as its order in this case. However, we take this opportunity to remind the Board
that according to its own regulations: "The hearing officer shall . . . prepare formal findings
of fact and conclusions of law, in which he or she states the reasons for his or her findings,
and noting with specificity the evidence considered in reaching a recommendation." W.
Va. Code R. § 162-2-7.2.6 (2016). While we also recognize that, pursuant to West Virginia
Code of State Rules § 162-2-7.3.1 (2016), the Board "shall accept the recommendation of
the hearing officer unless an abuse of discretion is found to have occurred, or unless the
recommendation is found to be based upon an error in facts or contrary to law", its final
order still must comply with West Virginia Code of State Rules § 162-2-7.2.6. Given the
paucity of findings and analysis in the hearing officer's recommended decision, we
conclude that the Board should have exercised its authority and rejected the hearing
examiner's findings of fact and conclusions of law as insufficient.

 6
 In other words, it is unclear from the Board's order as to how the PERS system
was adversely affected and needed to be made "whole" by the early distribution of PERS
annuity funds to Mr. Burgess and Ms. Burgess.
 7
 Simply put, without the Board providing sufficient findings of fact and conclusions
of law as required by its own regulations, this Court is left to speculate as to the reasonings
behind the Board's ruling. However, courts cannot engage in speculation, and we refuse to
do so here. As our state's highest court has recognized:

 Without findings of fact and conclusions of law, [an appellate court] is unable
 to determine the basis for the court's decision and whether any error has
 occurred. Consequently, in cases where there is an absence of adequate
 factual findings, it is necessary to remand the matter to the lower court to
 state or, at a minimum, amplify its findings so that meaningful appellate
 review may occur.

Mullins v. Mullins, 226 W. Va. 656, 662, 704 S.E.2d 656, 662 (2010). We find this rationale
equally instructive when considering the sufficiency of decisions issued by administrative
tribunals. Here, because the Board's decision makes insufficient findings of fact and
conclusions of law relevant to the evidence adduced at the administrative hearing, and also
fails to set forth sufficient analysis and rationale for any of its findings and conclusions
related to the issues present below, we are unable to determine the bases for the Board's
decision and whether any error has occurred.

 Therefore, we must vacate the Board's ruling and remand the matter to the Board
for further development of the issues set forth herein,7 as well as for the entry of a new
order, which shall set forth findings of fact and conclusions of law sufficient to allow for
meaningful appellate review should either party elect to file a new appeal.

 Accordingly, we vacate the Board's October 9, 2024, order and remand the matter
to the Board for further proceedings, consistent with this decision.

 Vacated and Remanded.

ISSUED: August 6, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

 7
 On remand, the Board and the parties may also seek to develop the record on other
issues which necessarily arise as part of its compliance with this Court's directives on
remand.
 8