Andrew J. Whittaker, Jr. v. Jewell K. Whittaker ( 2014 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Andrew J. Whittaker, Jr., FILED
Respondent Below, Petitioner October 17, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 13-1307 (Raleigh County 05-D-331) OF WEST VIRGINIA
Jewell K. Whittaker,
Petitioner Below, Respondent
MEMORANDUM DECISION
Petitioner and respondent below, Andrew J. Whittaker, Jr., by counsel Christen M.
Justice and Tristan Clark-Bragg, appeals the November 22, 2013, order of the Circuit Court of
Raleigh County that affirmed the family court’s decretal judgment order that ordered him to pay
professional fees in the total amount of $509,566.00, including 8% interest, to his former wife,
Respondent and petitioner below, Jewell K. Whittaker, in connection with the parties’ divorce.
Respondent, by counsel Christine B. Stump and Barry L. Bruce, filed a response to which
petitioner replied.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
The parties were married on May 7, 1966, and on May 27, 2005, respondent filed a
petition for divorce in Raleigh County. A final divorce order was entered on November 7, 2008. 1
Among other things, it included the following provision regarding petitioner’s payment of
respondent’s “professional fees”:
14) PROFESSIONAL FEES
By agreement, the Respondent [Mr. Whittaker] shall pay the sum of . . .
($371,000.00) to [Mrs. Whittaker] evidenced by a note to be signed by [Mr.
Whittaker] within thirty (30) days, to be paid within five years of this date, with
the right to prepay at an interest rate of 8% per annum secured by a first Deed of
Trust on the Beckley Speedway property. However, [Mrs. Whittaker] shall sign a
1
It is noted that the November 7, 2008, order was entitled “Findings of Fact and
Conclusions of Law,” but that it clearly indicated that it “is a Final Order” that is subject to an
appeal.
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release for the sale of any parcel of said property under the condition the sale
proceeds shall be divided equally between the parties and [Mr. Whittaker] shall
receive credit toward the stated indebtedness. The amount shall be amortized over
a 60 month period with the first payment due December 15, 2008[,] and payments
due on the same date each and every month thereafter. Any lump sum payments
will be credited, but [the] payment schedule shall not be altered thereby.
Neither party appealed this final divorce order. Respondent subsequently filed a motion
for contempt based upon petitioner’s failure to comply with the provisions of the final divorce
order relating to marital distribution. Following a hearing on the matter, the Family Court of
Raleigh County entered a Final Order from Contempt Hearing on March 25, 2009. Notably, this
contempt order did not involve or otherwise address the aforementioned agreement regarding
professional fees that was set forth in the final divorce order. Petitioner appealed the contempt
order to the circuit court. By order entered December 1, 2009,2 the circuit court entered an order
that reversed the finding of contempt and also specifically ordered “that the family court’s order
entered November 7, 2008, with respect to marital distribution should be and it is hereby
reversed, upon which it is further ordered that the issue of marital distribution should be and it is
hereby remanded to family court in accordance with,” inter alia, the circuit court’s December 1,
2009, memorandum. (Emphasis added). In that memorandum, the circuit court concluded that
the family court erroneously directed petitioner to transfer to respondent assets that belonged to
petitioner’s limited liability corporation, which assets, the circuit court found, were not part of
the marital estate. The circuit court concluded that “the family court does not have the subject
matter jurisdiction to order the transfer of assets that are not part of the marital estate[,]” and that
“[a]s a result, the parties have not yet achieved a valid and enforceable order for marital
distribution, and it is necessary to remand the matter again to the family court for that purpose.”
(Emphasis added).
Upon respondent’s appeal of the circuit court’s December 1, 2009, order, this Court
reversed and concluded that the terms of the marital property settlement agreement were
enforceable because petitioner had the authority to transfer property belonging to his limited
liability corporation—of which he was the only member—to respondent. See Whittaker v.
Whittaker, 228 W.Va. 84, 717 S.E.2d 868 (2011). Petitioner’s petition for writ of certiorari to the
United States Supreme Court was denied on November 28, 2011.
On May 22, 2013, respondent filed a revised petition for rule to show cause and contempt
for petitioner’s failure to pay toward the aforementioned professional fees. Respondent also
sought a “decretal judgment” in the amount of $509,566.00, which was the agreed upon sum for
professional fees ($371,000.00), plus the agreed upon interest of 8% amortized from January of
2
The circuit court’s December 1, 2009, order was designated an “Order [r]eversing and
remanding family court’s order entered November 7, 2008[,] with respect to marital distribution;
[r]eversing family court order entered March 25, 2009, finding contempt.”
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2009 through May of 2013, with a per diem rate of $81.32.3 Petitioner filed an answer and a
hearing was conducted. The family court granted respondent’s motion and entered a decretal
judgment order in the amount requested. The circuit court affirmed by order entered November
22, 2013. This appeal followed.
Our review of the circuit court’s order is governed by 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).
Syl. Pt. 1, Mayle v. Mayle, 229 W.Va. 179, 727 S.E.2d 855 (2012).
On appeal, petitioner argues that the circuit court abused its discretion by ordering
petitioner to pay the interest that accrued during the time period when the matter was on appeal
and when no valid and enforceable order was in place—that is, from the date of entry of the
circuit court’s December 1, 2009, order that reversed and remanded the family court’s November
7, 2008, and March 25, 2009, orders, until petitioner’s petition for writ of certiorari was denied
by the United States Supreme Court on November 28, 2011.4 We disagree.
Petitioner’s argument misconstrues the meaning and effect of the circuit court’s
December 1, 2009, order. In that order, the circuit court specifically concluded that the family
court’s November 7, 2008, order, “with respect to marital distribution should be and it is hereby
reversed, upon which it is further ordered that the issue of marital distribution should be and it is
hereby remanded to family court . . . .” (Emphasis added). The December 1, 2009, order further
concluded that “the family court does not have the subject matter jurisdiction to order the
transfer of assets that are not part of the marital estate[,]” and that “[a]s a result, the parties have
not yet achieved a valid and enforceable order for marital distribution, and it is necessary to
remand the matter again to the family court for that purpose.” (Emphasis added). This language
makes clear that, notwithstanding petitioner’s argument to the contrary, the November 7, 2008,
order entered by the family court was not void with respect to the professional fees that petitioner
agreed to pay, as set forth in paragraph 14 of that order. In the order presently on appeal, the
circuit court found that paragraph 14 “was clearly exclusive and not part of the marital
distribution order” that was reversed by the December 1, 2009, order. We, therefore, conclude
3
As noted above, paragraph 14 of the November 7, 2008, order provided that the amount
of the professional fees “shall be amortized over a 60 month period with the first payment due
December 15, 2008[,] and payments due on the same date each and every month thereafter.”
4
It is noted that petitioner failed to request a stay regarding either his obligations under
the professional fees provision of the November 7, 2008, order, or the accrual of interest on such
payments during the pendency of the appeal. See W.Va. Fam. Ct. R. Prac. & P. 27 and W.Va. R.
App. P. 29.
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that the circuit court did not abuse its discretion in affirming the family court’s order that
“grant[ed] interest on professional fees during the time in which the matter was on appeal.”
Petitioner also argues that the entry of a “decretal judgment order” was improper in this
case because, historically, such judgments have been reserved only to enforce payment of
arrearages in alimony and child support. As we held in syllabus point one of Goff v. Goff, 177
W.Va. 742, 356 S.E.2d 496 (1987), “[m]atured installments provided for in a decree, which
orders the payment of monthly sums for alimony or child support, stand as ‘decretal judgments’
against the party charged with the payments.” Petitioner argues that the payment of professional
fees does not fall within either alimony or child support and, therefore, cannot be enforced
through a “decretal judgment order.” We find petitioner’s argument to be without merit.
It is beyond dispute that the November 7, 2008, order is the parties’ final divorce order.
The professional fees at issue are provided for in that order and, on May 22, 2013, after
petitioner failed to make any payment thereon, respondent filed a petition for rule to show cause
and contempt for petitioner’s failure to pay toward these fees, which were ordered to be paid
monthly over a sixty month period. Petitioner does not dispute that he has failed to fulfill any of
the professional fees payment requirements provided for in the November 7, 2008, final divorce
order. Thus, a decretal judgment for the unpaid amount was properly ordered. See Debrosky v.
Walt, No. 11-0322 (W.Va. Supreme Court, June 6, 2012) (memorandum decision) (decretal
judgment entered for mother’s failure to timely pay proportionate one-half share of children’s
medical bills). We, therefore, conclude that the circuit court did not err by entering a decretal
judgment order in the amount of $509,566.00 for unpaid professional fees.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 17, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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