FILED
September 15, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
The Estate of David Moore,
Respondent Below, Petitioner
vs.) No. 21-0768 (Mercer County 92-CD-334-K)
Joy Moore,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner, the Estate of David Moore, appeals the August 24, 2021, order of the Circuit
Court of Mercer County affirming the May 4, 2021, order of the Mercer County Family Court.
The family court concluded that Respondent Joy Moore is entitled to entry of a qualified domestic
relation order (“QDRO”) for one-half of David Moore’s employer tax-exempt Thrift and
Investment Plan (“TIP”) as of the date of separation, plus any passive appreciation on that share.
The court also concluded that laches did not bar her claim. 1 Upon our review, we determine that
oral argument is unnecessary and that a memorandum decision is appropriate. See W. Va. R. App.
P. 21.
Respondent and Mr. Moore were married and had two children together. They divorced in
a decree dated April 21, 1992 (“divorce decree”). As a part of the divorce decree, the TIP was
addressed as follows:
The Defendant David Keith Moore has a savings plan with Northfolk [sic] Southern
Corporation which is a tax[-]exempt plan. In accordance with the agreement of the
parties, the Plaintiff Joy Hayes Moore is declared to be and is an owner of one-half
of the balance of that plan and, therefore, is an alternate payee under that plan. No
distribution may be made by Northfolk [sic] Southern Corporation to David Keith
Moore or to Joy Hayes Moore without the joint consent of David Keith Moore and
Joy Hayes Moore prior to David Keith Moore reaching the earliest retirement age
under the plan. After David Keith Moore shall reach the earliest retirement age
under the plan, David Keith Moore shall have the right to demand distribution of
his pro-rata share of the assets of the plan at any time thereafter, and Joy Hayes
Moore shall have the right to demand her pro-rata share of the assets of the plan
anytime thereafter.
1
Petitioner is represented by counsel Kelly C. Pritt. Respondent is represented by counsel
Alyson A. Dotson and Michelle L. Bechtel.
1
It is the intent and purpose of this Order to be a qualified Domestic Relations Order
as that term is defined by Law.
It is undisputed that Mr. Moore terminated his employment with Norfolk Southern Corporation
before entry of the divorce decree on April 21, 1992; that the TIP was entirely an asset of the
marriage; and that no contributions were made to the TIP after his divorce from respondent.
Subsequently, David Moore married again. No contributions to the TIP were made by Mr. Moore
during his subsequent marriage. During his lifetime, but after entry of the divorce decree, Mr.
Moore took two withdrawals from the TIP: $20,000 on May 13, 2008, and $65,000 on March 15,
2011. In response to a subpoena, the TIP presented no documentation that respondent consented
to the withdrawals.
Mr. Moore died on December 16, 2019, prior to reaching retirement age under the terms
of the TIP. Respondent submitted the divorce decree as a QDRO to the TIP administrator on or
about January 6, 2020, and it was not accepted by the administrator as a QDRO. She then filed a
motion for entry of a proposed QDRO with the family court on April 30, 2020. Petitioner 2 filed an
objection on May 13, 2020, and a “Motion to Clarify Order Entered April 27, 1992.” On March
15, 2021, the family court heard the matter. At the hearing, petitioner withdrew its motion and
stated that its objection to the issuance of the QDRO was that respondent consented to, and
received benefit from, the two withdrawals that Mr. Moore made from the TIP, and, accordingly,
the withdrawals should be attributed to the account as a whole. As a result, petitioner contends the
TIP should be divided equally based on the current value, not based on its value on the date of
separation. Petitioner further asserted that any claim that respondent did not consent to the
withdrawals of Mr. Moore is barred by the doctrine of laches. Respondent argued that the divorce
decree was clear that the account was to be divided as of the date of separation. She provided a
report and expert testimony from John W. Stroud, Jr., CPA, CVA, regarding the division of stock
based on the number of shares in the account in 1992, prior to the withdrawals, taking into account
market fluctuation and reinvestment of dividends. In the same manner, Mr. Stroud calculated the
number of shares related to Mr. Moore’s withdrawals as 310.46 shares of stock on May 13, 2008,
and 991.46 shares of stock on March 15, 2011. Based on these calculations, he opined that
respondent was entitled to 91.5% of the current account, having a value of $460,952, and
petitioner’s share was calculated to be 8.5%, with a value of $42,825, at the time of the testimony.
The expert’s opinion was uncontradicted. Respondent further denied that laches should apply and
contended that there was no unreasonable delay and no prejudice to petitioner based on a failure
to file a contempt motion contemporaneously with the withdrawals. The family court sought
additional briefing on the issue of laches.
In an order dated May 4, 2021, the family court found that the divorce decree plainly stated
that respondent was the owner of one-half of the TIP upon divorce and, because the plan was
declared divided at that time, Mr. Moore’s withdrawals after the divorce decree could only have
come from his one-half interest in the TIP. It found that the divorce decree stated that no
withdrawal could be made without the consent of the other party, encumbering both parties’ share
of the plan. The family court noted that the TIP did not provide any documentation of consent in
2
The Estate of David Moore was substituted for David Moore by order of the family court
dated April 14, 2020.
2
response to a subpoena. It found respondent did not consent to the withdrawals and that the
uncontested expert testimony was that respondent was entitled to 91.5% of the current shares.
Based on Mr. Stroud’s testimony, the family court stated that the value of the TIP had risen
dramatically and that the increase accrued to each party’s portion of the account. It concluded this
was not unjust enrichment for respondent as each party had the same opportunity to share in the
increase in value. It considered and rejected petitioner’s argument that laches barred respondent’s
denial of consent to Mr. Moore’s withdrawals because she failed to object or file a motion for
contempt prior to his death. The family court explained that any contempt proceeding filed by
respondent would only have addressed Mr. Moore’s failure to follow the divorce decree. Further,
the lack of documentation from the TIP of consent and the clear language of the divorce decree
indicated there was no prejudice to petitioner and no loss of critical or dispositive evidence resulted
from the lack of a contempt proceeding. Petitioner appealed to the circuit court.
After briefing, the circuit court heard arguments on June 22, 2021. It affirmed the decision
of the family court in an order dated August 24, 2021. In addition to affirming the family court’s
ruling, the circuit court noted that a posthumously entered order in this case was permissible.
Petitioner appealed.
In this appeal, petitioner argues that the circuit court abused its discretion and made
erroneous findings when determining that the divorce decree divided the TIP between the parties;
that the TIP was already divided when Mr. Moore made two separate withdrawals from the TIP
and, therefore, the withdrawals should come from his portion of the TIP only; that the doctrine of
laches did not apply to respondent’s claim that she did not consent to the withdrawal of funds from
the plan; and that the increase in the number of stocks held in the TIP, and the increase in value
thereof, as well as any liquidation of stocks, should be attributed to each person’s remaining share
and not to the undivided whole. We review petitioner’s appeal under the following standard:
In reviewing a final order entered by a circuit court judge upon a review of,
or upon a refusal to review, 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., Carr v. Hancock, 216 W. Va. 474, 607 S.E.2d 803 (2004).
We agree with the circuit court that the family court did not abuse its discretion or err in
its order and should be affirmed. The family court had the authority to posthumously enforce the
divorce decree. See Syl. Pt. 4, Jones v. W. Va. Pub. Emp. Ret. Sys., 235 W. Va. 602, 775 S.E.2d
483 (2015) (“A family court has the necessary authority to posthumously enforce, revise, modify,
or amend a domestic relations order for the purpose of establishing such order as a qualified
domestic relations order.”). The divorce decree plainly declared the equitable distribution
obligation with regard to the TIP upon entry in 1992, effectively separating the interests of the
parties in the account at that time. We find no abuse of discretion or error in the court’s conclusion
that the TIP was subject to that division in the divorce decree at the time Mr. Moore made his later
two withdrawals. See id. at 618, 775 S.E.2d at 499 (stating that because party’s proportional marital
interest in retirement benefits had been established by the divorce decree, party could seek
3
enforcement of her right to the percentage posthumously); Kinsinger v. Pethel, 234 W. Va. 463,
468, 766 S.E.2d 410, 415 (2014) (reversing application of laches based on delay in preparing
QDRO and finding that underlying equitable distribution obligation contained in settlement
agreement was unimpaired). We agree that each party is therefore entitled to a distribution equal
to one-half the number of stocks in the TIP as of the date of the divorce decree, based on the
express language that declared respondent “to be and is an owner of one-half of the balance of
that plan and, therefore, is an alternate payee under that plan.” (Emphasis added). Further, we find
no error or abuse of discretion in allocating the appreciation of the TIP because the divorce decree
established this same division of the asset. See Syl. Pt. 5, Cross v. Cross, 178 W. Va. 563, 363
S.E.2d 449 (1987) (discussing methods of dividing vested pension rights not yet matured in
equitable distribution of marital property and stating that one method is a court order requiring that
non-working spouse share in the benefits on a proportional basis when they mature). 3
Petitioner also argues that the doctrine of laches applies to this matter and should bar
respondent from arguing that she did not consent to Mr. Moore’s withdrawals. Laches requires
both an unreasonable delay and prejudice or disadvantage to another as a result of the delay. See
Kinsinger, 234 W. Va. at 467, 766 S.E.2d at 414 (discussing doctrine of laches). Here, the family
court made a finding that there was no critical or dispositive evidence lost as a result of the absence
of a contemporaneous filing of a motion for contempt. We agree with the circuit court that this
finding is not clear error. The circuit court did not abuse its discretion in its ultimate determination
that laches does not apply in these circumstances.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: September 15, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
3
In this case, the TIP is entirely marital property; it is undisputed that there are no post-
separation contributions; and the divorce decree was issued in 1992. Therefore, a coverture fraction
analysis to determine respondent’s share in increased proportional benefits due to passive
appreciation is not required. See Syl. Pt. 7, McGee v. McGee, 214 W. Va. 36, 585 S.E.2d 36 (2003)
(explaining the coverture fraction as a ratio of the years of employment during the marriage prior
to separation to the total number of years of employment).
4
The Estate of David Moore v. Joy Moore
Combined Opinion