Senate Bill No. 583
Kessler, Dempsey, Foster, Hunter, Jenkins, Minard,
Oliverio, White, Barnes, Caruth, Deem, Harrison, Lanham, McKenzie
[Originating in the Committee on the Judiciary;
reported March 17, 2005.]
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
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
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
(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
(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
(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
(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
(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
(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
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
(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.