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CourtListener opinion 9962149
Date unknown · US
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Machine-draft headnote
Machine-draft public headnote: CourtListener opinion 9962149 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“oner Toni McKinney appeals the Family Court of Raleigh County's August 15, 2023, order granting Respondent Gary McKinney's motion to require asset division, which sought either an order compelling Ms. McKinney to prepare a Qualified Domestic Relations Order ("QDRO") or in the alternative an order declaring her interest in Mr. McKinney's pension plan waived. The family court concluded that, because Ms. McKinney failed to appear for a status hearing, her interest in the pension proceeds were waived. Mr. McKinney filed a response in favor of the family court's order.1 Ms. McKinney did not file a reply. This Court has”
pension“, order granting Respondent Gary McKinney's motion to require asset division, which sought either an order compelling Ms. McKinney to prepare a Qualified Domestic Relations Order ("QDRO") or in the alternative an order declaring her interest in Mr. McKinney's pension plan waived. The family court concluded that, because Ms. McKinney failed to appear for a status hearing, her interest in the pension proceeds were waived. Mr. McKinney filed a response in favor of the family court's order.1 Ms. McKinney did not file a reply. This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51- 11-4 (2022). Af”
Source and provenance
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- courtlistener_qdro_opinion_full_text
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- Generated status
- machine draft public v0
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- gold label pending
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- US
- Deterministic extraction
- pending
- Generated at
- May 14, 2026
Related public corpus pages
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
April 22, 2024
TONI MCKINNEY,
ASHLEY N. DEEM, DEPUTY CLERK
Petitioner Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
v.) No. 23-ICA-408 (Fam. Ct. Raleigh Cnty. No. FC-41-2008-D-294)
GARY MCKINNEY,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Toni McKinney appeals the Family Court of Raleigh County's August
15, 2023, order granting Respondent Gary McKinney's motion to require asset division,
which sought either an order compelling Ms. McKinney to prepare a Qualified Domestic
Relations Order ("QDRO") or in the alternative an order declaring her interest in Mr.
McKinney's pension plan waived. The family court concluded that, because Ms.
McKinney failed to appear for a status hearing, her interest in the pension proceeds were
waived. Mr. McKinney filed a response in favor of the family court's order.1 Ms.
McKinney did not file a reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties' arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the family court's decision but no
substantial question of law. This case satisfies the "limited circumstances" requirement of
Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.
For the reasons set forth below, the family court's order is reversed, and this case is
remanded for further proceedings consistent with this decision.
The parties were divorced by order entered on January 27, 2010. In that order, Mr.
McKinney's pension was to be divided by a QDRO. The family court entered a QDRO on
September 8, 2014, but it was done incorrectly and was not approved by the pension plan
administrator. On August 16, 2019, Mr. McKinney filed a motion to require asset division,
wherein he sought either an order compelling Ms. McKinney to quickly prepare the QDRO
or, alternatively, an order declaring Ms. McKinney's interest in the pension waived for her
lack of diligence in completing the QDRO.
1
Toni McKinney is represented by Matthew A. Bradford, Esq., and Brandon L.
Gray, Esq. Gary McKinney is represented by Anthony M. Salvatore, Esq.
1
The parties appeared for a hearing on Mr. McKinney's motion on October 16, 2019.
At that time, Ms. McKinney was self-represented, and the family court continued the
matter to allow her to retain counsel to assist with QDRO preparation. Ms. McKinney
retained counsel,2 who, throughout the next several hearings advised the family court that
he had sent multiple subpoenas in an effort to obtain required information for the QDRO
and that he was awaiting additional information from the plan administrator.
The family court conducted a total of seven hearings from June 22, 2020, to July
12, 2023. The last two hearings led to the issue raised on appeal.
One of those hearings was a December 6, 2022, status hearing, wherein the family
court directed the parties to work toward finally resolving the lingering QDRO matter.
Thereafter, another status hearing was scheduled for July 12, 2023. The Notice of Status
Hearing was sent to Ms. McKinney's counsel but not to Ms. McKinney. On the date of the
hearing, neither Ms. McKinney nor her attorney appeared. Due to their failure to appear,
Mr. McKinney moved the family court to enter an order declaring Ms. McKinney's portion
of the pension waived, which the family court granted. Pursuant to Rule 22(b)3 of the Rules
of Practice and Procedure for Family Court, Mr. McKinney's counsel mailed a 22(b) notice
of his proposed order to both Ms. McKinney and her counsel on August 4, 2023. Ms.
McKinney received notice of the proposed order and filed a pro se objection wherein she
requested that the family court reconsider its ruling on August 8, 2023, arguing that she
had retained two attorneys and neither completed the QDRO and that she never received
notice of the July 12, 2023, status hearing. On August 15, 2023, the family court entered
its order denying Ms. McKinney's objection and request for reconsideration. It is from that
order that Ms. McKinney now appeals.
For these matters, we use the following standard of review:
2
Ms. McKinney retained new counsel for the appeal.
3
Rule 22(b) of the Rules of Practice and Procedure for Family Court 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
In reviewing . . . a final order of a family court judge, we review the findings
of fact made by the family court judge under the clearly erroneous standard,
and the application of law to the facts under an abuse of discretion standard.
We review questions of law de novo. Syl. Pt., [in part,] Carr v. Hancock, 216
W. Va. 474, 607 S.E.2d 803 (2004).
Amanda C. v. Christopher P., 248 W. Va. 130, 133, 887 S.E.2d 255, 258 (Ct. App. Nov.
18, 2022); accord W. Va. Code § 51-2A-14(c) (2005) (specifying standards for appellate
court review of family court order).
On appeal, Ms. McKinney raises one assignment of error. She asserts that her due
process rights were violated when she did not receive notice of the July 12, 2023, hearing
and that the hearing notice identified the hearing as a status hearing, not a final hearing.
We agree.
In considering issues raised by this case, various interests must be weighed
including the interest in judicial efficiency, the rights of plaintiffs to have their day in court,
any prejudice that might be suffered by defendants, and the value of deciding cases on the
merits. Caruso v. Pearce, 223 W.Va. 544, 550, 678 S.E.2d 50, 56 (2009). Here, while we
are mindful of Mr. McKinney's understandable frustration caused by the lengthy delay in
resolving this matter, we must also weigh the prejudice that Ms. McKinney would suffer
if she were not given the opportunity to present her case at a final hearing especially in
light of Kinsinger v. Pethel, 234 W. Va. 463, 766 S.E.2d 410 (2014). Here, the hearing
notice prepared by Mr. McKinney's counsel was explicitly denoted as a status hearing
rather than a final hearing. Thus, under the limited facts and circumstances of this case, we
conclude that the family court abused its discretion when it issued a final order declaring
Ms. McKinney's interest waived due to her failure to appear from what was noticed as a
status hearing. See Boardwine v. Kanawha Charleston Humane Assoc., No. 13-0067, 2013
WL 5989159 (W. Va. Nov. 12, 2013) (memorandum decision) (finding abuse of discretion
where the cases of pro se parties were dismissed for failure to appear after being delayed
due to transportation issues); See also Dimon v. Mansy, 198 W. Va. 40, 45, 479 S.E.2d 339,
344 (1996) (finding that because of the harshness of the sanction, a dismissal with prejudice
for failure to appear is only appropriate in flagrant situations).4
Accordingly, we reverse the August 15, 2023, order and remand this matter to the
Family Court of Raleigh County for further proceedings consistent with this decision.
Reversed and Remanded.
4
Furthermore, nothing in this decision precludes consideration of sanctions
(including contempt) considering the inexcusable delay and failure to appear.
3
ISSUED: April 22, 2024
CONCURRED IN BY:
Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear
4