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Engrossed Version Senate Bill 583 History

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ENGROSSED

Senate Bill No. 583

(By Senators Kessler, Dempsey, Foster, Hunter, Jenkins, Minard, Oliverio, White, Barnes, Caruth, Deem, Harrison, Lanham, McKenzie and Weeks )

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[Originating in the Committee on the Judiciary;


reported March 17, 2005.]

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A BILL to amend and reenact §51-2A-11, §51-2A-14 and §51-2A-16 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §51-2A-12a, all relating to appealing orders from the family court to the circuit court.

Be it enacted by the Legislature of West Virginia:
That §51-2A-11, §51-2A-14 and §51-2A-16 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §51-2A- 12a, all to read as follows:
ARTICLE 2A. FAMILY COURTS.
§51-2A-11. Petition for appeal.
(a) Within thirty days following the entry of a final order of or the entry of an order denying a motion for reconsideration under section ten of this article made by a family court judge, or the entry of a final order of any senior status circuit judge, circuit judge or other judicial officer appointed to serve pursuant to the provisions of section nineteen of this article, any party may file a petition for appeal with the circuit court. No appeal may be had under the provisions of this article from any order of a family court judge or from any order of another judicial officer temporarily serving as a family court judge other than a final order.
(b) A petition for appeal of a final order of the family court shall be filed in the office of the clerk of the circuit court. At the time of filing the petition, a copy of the petition for appeal must be served on all parties to the proceeding in the same manner as pleadings subsequent to an original complaint are served under Rule 5 of the Rules of Civil Procedure.
(c) The circuit judge may require, or a party may choose to submit with the petition for appeal, a brief in support of the petition.
(d) A respondent shall have fifteen days after the filing of a petition to file a reply to the petition for appeal. The reply must be served on all parties to the proceeding in the same manner required for service of the petition. The circuit judge may require, or a party may choose to submit with the reply, a brief in opposition to the petition.
(e) In addition to the reply, the respondent may file a cross-petition to the petition for appeal within fifteen days after the filing of the petition. The respondent to the cross-petition shall have fifteen days after the filing of the cross-petition to file a reply. The cross-petition and any reply must be served in the same manner required for service of the original petition. The circuit judge may require or either party may choose to submit a brief on the cross-petition.
(f) The Supreme Court of Appeals shall develop and provide forms for appeals filed pursuant to this section. The forms shall be made available for distribution in the offices of the clerks of the circuit courts and in the offices of the secretary-clerks to the family court judges.
(g) The Supreme Court of Appeals shall promulgate a supervisory rule setting forth educational requirements in domestic relations matters for circuit court judges.
(h) An appeal from the final order of any judicial officer assigned or appointed pursuant to the provisions of section nineteen of this article shall be perfected and treated in all respects as an appeal from an order of the family court. The terms "family court" or "family court judge" as provided in this section and in sections twelve, thirteen, fourteen and fifteen of this article mean the judicial officer who entered the final order which is the subject of an appeal.
§51-2A-12a. Modification of order pending appeal of order.
A petition to modify an order may be brought while an appeal of that order is pending if the facts relied upon in the modification are new facts that occurred after the hearing or other presentation of facts that resulted in the order being appealed. A fact is not a new fact for the purpose of this section if it is a repeat or continuation of a fact that was considered by the court in making the order being appealed.
§51-2A-l4. Review by circuit court; record; standard of review; temporary order upon remand.

(a) The circuit court may refuse enter an order refusing to consider the petition for appeal or a cross-petition for appeal if the court finds:
(1) The party presenting the petition has not complied with required procedures, including service on other parties;
(2) The petition fails to state an error of law or a misapplication of law to the facts or other grounds for reversal or remand; or
(3) Construing the evidence presented to the family court in the light most favorable to the party filing the petition for review, the petition fails to state a genuine issue as to any fact material to the decision of the family court. Any order entered pursuant to this subdivision shall set out the findings justifying the order to be effective.
(b) If the circuit court does not enter an order refusing to consider the petition for appeal, the court shall consider the appeal and
may affirm or reverse the order, may affirm or reverse the order in part or may remand the case with instructions for further hearing before the family court judge.
(b)(c) In considering a petition for appeal, the circuit court may only consider the record as provided in subsection (d), section eight of this article.
(d) The circuit court shall review the findings of fact made by the family court judge under the clearly erroneous standard and shall review the application of law to the facts under an abuse of discretion standard.
(c) (e) If the circuit court agrees to consider a petition for appeal, the court shall provide the parties an opportunity to appear for oral argument, upon the request of either party or in the discretion of the court. The provisions of this subsection are effective until the adoption of rules by the Supreme Court of Appeals governing the appellate procedures of family courts.
(d)(f) If the proceeding is remanded to the family court, the circuit court must enter appropriate temporary orders for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, child support, spousal support or such other temporary relief as the circumstances of the parties may require. If the circuit court remands the case to the family court, it must state the legal or factual issues to be considered by the family court on remand. If the family court determines that the consideration of those issues also requires consideration of other issues, the family court may also consider other issues.
(e)(g) The circuit court must enter an order ruling on a petition for appeal within sixty days from the last day a reply to the petition for appeal could have been filed. If the circuit court does not enter the order within the sixty-day period or does not, within the sixty-day period, enter an order stating just cause why the order has not been timely entered, the circuit clerk shall send a written notice to the parties that unless the parties both file an objection within fourteen days of the date of the notice, the appeal will be transferred to the Supreme Court of Appeals as provided in section fifteen of this article due to the failure of the circuit court to timely enter an order. The appeal shall be transferred without the necessity of the filing of any petition or further document by the petitioner.
§51-2A-16. Expiration of appellate procedures; exceptions; report requirements.

(a) The provisions of sections eleven, twelve, thirteen, fourteen and fifteen of this article shall expire and be of no force and effect after the thirtieth day of June, two thousand five ten, except as otherwise provided by subsection (b) of this section.
(b) Appeals that are pending before a circuit court or the Supreme Court of Appeals on the thirtieth day of June, two thousand five ten, but not decided before the first day of July, two thousand five ten, shall proceed to resolution in accordance with the provisions of sections eleven, twelve, thirteen, fourteen and fifteen of this article, notwithstanding the provisions of subsection (a) of this section that provide for the expiration of those sections. The Supreme Court of Appeals shall, by rule, provide procedures for those appeals that are remanded but not concluded prior to the first day of July, two thousand five ten, in the event that the appeals process set forth in sections eleven, twelve, thirteen, fourteen and fifteen of this article is substantially altered as of the first day of July, two thousand five ten.
(c) Prior to the two thousand three eight regular session of the Legislature and annually thereafter, the Supreme Court of Appeals shall report to the Joint Committee on Government and Finance the number of appeals from final orders of the family court filed in the various circuit courts and in the Supreme Court of Appeals, the number of pro se appeals filed, the subject matter of the appeals, the time periods in which appeals are concluded, the number of cases remanded upon appeal and such other detailed information so as to enable the Legislature to study the appellate procedures for family court matters and to consider the possible necessity and feasibility of creating an intermediate appellate court or other system of appellate procedure.
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