H. B. 2709
(By Delegates Rowe, Staton, Phillips, Douglas, Pino and Reed)
[Introduced March 24, 1993; referred to the
Committee on the Judiciary then Finance.]
A BILL to repeal section twenty-two, article two, chapter forty-
eight-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to repeal section eight,
article four, chapter fifty of said code; to repeal section
twenty, article one, chapter fifty-one of said code; to
repeal section twenty-five, article one, chapter fifty-two
of said code; to amend and reenact sections thirteen,
fifteen, fifteen-a, sixteen, twenty-two, and thirty-three,
article two, chapter forty-eight of said code; to amend and
reenact section eight, article two, chapter forty-eight-a of
said code; to amend and reenact article four of said chapter
forty-eight-a; to amend and reenact sections one, two, four
and five, article six of said chapter forty-eight-a; to
amend and reenact section fifteen, article five, chapter
forty-nine of said code; to amend and reenact section four,
article five-b of said chapter forty-nine; to amend and
reenact section eight, article one, chapter fifty of said
code; to amend and reenact section three, article two of
said chpter fifty; and to further amend said article two, by
adding thereto a new section, designated section three-a; to
amend article three of said chapter fifty by adding thereto
two new sections, designated sections two-a and six-a; to
amend and reenact section thirteen, article five of said
chapter fifty; to amend and reenact sections four, five,
five-a, six, seven, seven-a, eight, fifteen, sixteen and
seventeen, article one, chapter fifty-two of said code; to
amend and reenact section three, article two of said chapter
fifty-two; to amend and reenact section twelve, article one,
chapter fifty-nine of said code; to amend and reenact
section one-a, article eleven-a, chapter sixty-two of said
code; to amend and reenact sections four, five, six, seven,
nine, ten and eleven, article eleven-b of said said chapter
sixty-two; to amend and reenact sections five, nine and
fifteen, article twelve of said chapter sixty-two; and to
amend and reenact section two, article thirteen of said
chapter sixty-two, all relating generally to increasing the
cost-effective administration of the judicial system by
courts and their officers.
Be it enacted by the Legislature of West Virginia:
That section twenty-two, article two, chapter forty-eight-a
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; that section eight, article
four, chapter fifty of said code be repealed; that section
twenty, article one, chapter fifty-one of said code be repealed;
that section twenty-five, article one, chapter fifty-two of saidcode be repealed; that sections thirteen, fifteen, fifteen-a,
sixteen, twenty-two and thirty-three, article two, chapter
forty-eight of said code be amended and reenacted; that section
eight, article two, chapter forty-eight-a of said code be amended
and reenacted; that article four of said chapter forty-eight-a be
amended and reenacted; that sections one, two, four and five,
article six of said chapter forty-eight-a be amended and
reenacted; that section fifteen, article five, chapter forty-nine
of said code be amended and reenacted; that section four, article
five-b of said chapter forty-nine be amended and reenacted; that
section eight, article one, chapter fifty of said code be amended
and reenacted; that section three, article two of said chapter
fifty be amended and reenacted; that said article two be further
amended by adding thereto a new section, designated section
three-a; that article three of said chapter fifty be amended by
adding thereto two new sections, designated sections two-a and
six-a; that section thirteen, article five of said chapter fifty
be amended and reenacted; that sections four, five, five-a, six,
seven, seven-a, eight, fifteen, sixteen and seventeen, article
one, chapter fifty-two of said code be amended and reenacted;
that section three, article two of said chapter fifty-two be
amended and reenacted; that section twelve, article one, chapter
fifty-nine of said code be amended and renacted; that section
one-a, article eleven-a, chapter sixty-two of said code be
amended and reenacted; that sections four, five, six, seven,
nine, ten and eleven, article eleven-b of said said chapter
sixty-two be amended and reenacted; that sections five, nine and
fifteen, article twelve of said chapter sixty-two be amended andreenacted; and that section two, article thirteen of said chapter
sixty-two be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-13. Temporary relief during pendency of action for
divorce, annulment or separate maintenance.
(a) At the time of the filing of the complaint or at any
time after the commencement of an action for divorce, annulment
or separate maintenance under the provisions of this article, and
upon motion for temporary relief, notice of hearing and hearing,
the court may order all or any portion of the following temporary
relief, which order shall govern the marital rights and
obligations of the parties during the pendency of the action:
(1) The court may require either party to pay temporary
alimony in the form of periodic installments, or a lump sum, or
both, for the maintenance of the other party.
(2) The court may provide for the custody of minor children
of the parties subject to such rights of visitation, both in and
out of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances.
(2) When the action involves a minor child or children, the
court shall provide for the custody of minor children of the
parties subject to the non-custodial parent's right to
visitation.
(3) The court may When the action involves a minor child or
children, the court shall require either party to pay temporary
child support in the form of periodic installments for themaintenance of the minor children of the parties in accordance
with support guidelines promulgated pursuant to section eight,
article two, chapter forty-eight-a of this code.
(4) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a, article two of this chapter.
(4) (5) The court may compel either party to pay attorney's
fees and court costs reasonably necessary to enable the other
party to prosecute or defend the action in the trial court. The
question of whether or not a party is entitled to temporary
alimony shall not be is not decisive of that party's right to a
reasonable allowance of attorney's fees and court costs. An
order for temporary relief awarding attorney fees and court costs
may be modified at any time during the pendency of the action, as
the exigencies of the case or equity and justice may require,
including, but not limited to, a modification which would require
full or partial repayment of fees and costs by a party to the
action to whom or on whose behalf payment of such fees and costs
was previously ordered. If an appeal be taken or an intention to
appeal be stated, the court may further order either party to pay
attorney fees and costs on appeal.
(6) As an incident to requiring the payment of temporary
alimony or temporary child support, the court may order either
party to continue in effect existing policies of insurance
covering the costs of health care and hospitalization of the
other party and the minor children of the parties. If there is
no such existing policy or policies, the court shall may order
that such health care insurance coverage be paid for by thenoncustodial parent a party, if the court determines that such
health care coverage is available to the noncustodial parent that
party at a reasonable cost. Payments made to an insurer pursuant
to this subdivision, either directly or by a deduction from
wages, shall may be deemed to be temporary alimony. or temporary
child support, in such proportion as the court shall direct:
Provided,
That if the court does not set forth in the order that
a portion of such payments is to be deemed temporary child
support, then all such payments made pursuant to this subdivision
shall be deemed to be temporary alimony.
(6) (7) As an incident to requiring the payment of temporary
alimony or temporary child support, the court may grant the
exclusive use and occupancy of the marital home to one of the
parties during the pendency of the action, together with all or
a portion of the household goods, furniture and furnishings,
reasonably necessary for such use and occupancy. The court may
require payments to third parties in the form of home loan
installments, land contract payments, rent, payments for utility
services, property taxes, insurance coverage or other expenses or
charges reasonably necessary for the use and occupancy of the
marital domicile. Payments made to a third party pursuant to
this subdivision shall be deemed to be temporary alimony or
temporary child support, in such proportion as the court directs:
Provided,
That if the court does not set forth in the order that
a portion of such payments is to be deemed temporary child
support, then all such payments made pursuant to this subdivision
shall be deemed to be temporary alimony:
Provided, however,
That
the court may order such payments to be made without denominatingthem either as temporary alimony or temporary child support,
reserving such decision until such time as the court determines
the interests of the parties in marital property and equitably
divides the same:
Provided further,
That at the time the court
determines the interests of the parties in marital property and
equitably divides the same, the court may consider the extent to
which payments made to third parties under the provisions of this
subdivision have affected the rights of the parties in marital
property, and may treat such payments as a partial distribution
of marital property notwithstanding the fact that such payments
have been denominated temporary alimony or temporary child
support or not so denominated under the provisions of this
subdivision. Nothing contained in this subdivision shall
abrogate an existing contract between either of the parties and
a third party, or affect the rights and liabilities of either
party or a third party under the terms of such contract.
(7) (8) As an incident to requiring the payments of
temporary alimony, the court may grant the exclusive use and
possession of one or more motor vehicles to either of the parties
during the pendency of the action. The court may require
payments to third parties in the form of automobile loan
installments or insurance coverage, and any such payments made
pursuant to this subdivision shall be deemed to be temporary
alimony:
Provided,
That the court may order such payments to be
made without denominating them as temporary alimony, reserving
such decision until such time as the court determines the
interests of the parties in marital property and equitably
divides the same:
Provided, however,
That at the time the courtdetermines the interests of the parties in marital property and
equitably divides the same, the court may consider the extent to
which payments made to third parties under the provisions of this
subdivision have affected the rights of the parties in marital
property, and may treat such payments as a partial distribution
of marital property notwithstanding the fact that such payments
have been denominated temporary alimony or not so denominated
under the provisions of this subdivision. Nothing contained in
this subdivision shall abrogate an existing contract between
either of the parties and a third party, or affect the rights and
liabilities of either party or a third party under the terms of
such contract.
(8) (9) Where When the pleadings include a specific request
for specific property or raise issues concerning the equitable
division of marital property, the court may enter such order as
is reasonably necessary to preserve the estate of either or both
of the parties, including the imposition of a constructive trust,
so that such property be forthcoming to meet any order which may
be made in the action, and may compel either party to give
security to abide such order, or may require the property in
question to be delivered into the temporary custody of a third
party. The court may further order either or both of the parties
to pay the costs and expenses of maintaining and preserving the
property of the parties during the pendency of the action:
Provided,
That at the time the court determines the interests of
the parties in marital property and equitably divides the same,
the court may consider the extent to which payments made for the
maintenance and preservation of property under the provisions ofthis subdivision have affected the rights of the parties in
marital property, and may treat such payments as a partial
distribution of marital property. When appropriate the The court
may release all or any part of such protected property for sale
and substitute all or a portion of the proceeds of the sale for
such property.
(9) (10) Unless a contrary disposition be found appropriate
and is ordered pursuant to other provisions of this section, then
upon the motion of either a party, the court may compel a party
to deliver to the movant moving party any of his or her separate
estate which may be in the possession or control of the
respondent party, and may make such any further order as that is
necessary to prevent either party from interfering with the
separate estate of the other party.
(10) (11) The court may enjoin the offending party from
molesting or interfering with the other, or otherwise imposing
any restraint on the personal liberty of the other, or
interfering with the custodial or visitation rights of the other.
Any order entered by the court to protect a party from abuse may
grant the relief provided in article two-a of this chapter.
(b) In ordering temporary relief under the provisions of
this section, the court shall consider the financial needs of the
parties, the present employment income and other recurring
earnings of each party from any source, their income-earning
abilities, and the respective legal obligations of each party to
support himself or herself and to support any other persons.
Except in extraordinary cases supported by specific findings set
forth in the order granting relief, payments of temporary alimonyand temporary child support are to be made from a party's
employment income and other recurring earnings and not from the
corpus of a party's separate estate, and an award of such relief
shall not be disproportionate to a party's ability to pay as
disclosed by the evidence before the court:
Provided,
That child
support shall be established in accordance with suppport
guidelines promulgated pursuant to section eight, article two,
chapter forty-eight-a of this code.
(c) At any time after a party is abandoned or deserted or
after the parties to a marriage have lived separate and apart in
separate places of abode without any cohabitation, the party
abandoned or either party living separate and apart may apply for
relief pursuant to this section by instituting an action for
divorce as provided in section ten of this article, alleging that
the plaintiff reasonably believes that the period of abandonment
or of living separate and apart will continue for the period
prescribed by the applicable provisions of section four of this
article. If the period of abandonment or living separate and
apart continues for the period prescribed by the applicable
provisions of section four of this article, the divorce action
may proceed to a hearing as provided in sections twenty-four and
twenty-five of this article without a new complaint being filed:
Provided,
That the party desiring to proceed to a hearing shall
give the opposing party at least twenty days' notice of the time,
place and purpose of the hearing, unless the opposing party shall
have filed with the court files a waiver of notice of further
proceedings, signed by such the opposing party. If such notice
is required to be served, it shall be served in the same manneras a complaint, regardless of whether the opposing party has
appeared or answered.
(d) To facilitate the resolution of issues arising at a
hearing for temporary relief, the court may, or upon the motion
of either party shall, order each of the parties to file with the
court, and serve on the other party, a sworn statement of each
party's assets, liabilities and employment income and other
earnings from any source. The statement shall be in such form
and contain such detailed information as the court may prescribe
by general order. In addition, the court may, or upon the motion
of either party shall, order the parties to comply with the
disclosure requirements set forth in section thirty-three of this
article, and, if necessary, continue the hearing for temporary
relief from time to time to afford the parties an opportunity to
obtain and provide such information. to comply with the
disclosure requirements set forth in section thirty-three of this
article prior to the hearing for temporary relief. The form for
this disclosure shall substantially comply with the form
promulgated by the supreme court of appeals, pursuant to article
two, section thirty-three of this article. If either party fails
to timely file a complete disclosure as required by this section
or as ordered by the court, the court may accept the statement of
the other party as accurate.
(e) An ex parte order granting all or part of the relief
provided for in this section may be granted without written or
oral notice to the adverse party if:
(1) It appears from specific facts shown by affidavit or by
the verified complaint that immediate and irreparable injury,loss or damage will result to the applicant before the adverse
party or such party's attorney can be heard in opposition. Such
The potential injury, loss or damage may be anticipated when the
following conditions exist:
Provided,
That the following list of
conditions shall not be is not exclusive:
(A) There is a real and present threat of physical injury to
the applicant at the hands or direction of the adverse party;
(B) The adverse party is preparing to quit the state with a
minor child or children of the parties, thus depriving the court
of jurisdiction in the matter of child custody;
(C) The adverse party is preparing to remove property from
the state, or is preparing to transfer, convey, alienate,
encumber or otherwise deal with property which could otherwise be
subject to the jurisdiction of the court and subject to judicial
order under the provisions of this section or section fifteen of
this article;
And,
(2) The movant moving party or his or her attorney certifies
in writing any efforts, if any, which have effort that has been
made to give the notice, and the reasons supporting his or her
claim that notice should not be required.
(f) Every ex parte order granted without notice shall be
endorsed with the date and hour of issuance; shall be filed
forthwith in the circuit clerk's office and entered of record;
and shall set forth the finding of the court that unless the
order is granted without notice there is probable cause to
believe that existing conditions will result in immediate and
irreparable injury, loss or damage to the movant moving partybefore the adverse party or his or her attorney can be heard in
opposition. The order granting ex parte relief shall fix a time
for a hearing for temporary relief to be held within a reasonable
time, not to exceed twenty days, unless before the time so fixed
for hearing, such hearing is continued for good cause shown or
with the consent of the party against whom the ex parte order is
directed. The reasons for the continuance shall be entered of
record. Within the time limits described herein, when an ex
parte order is made, a motion for temporary relief shall be set
down for hearing at the earliest possible time and shall take
precedence of all matters except older matters of the same
character. If the party who obtained the ex parte order fails to
proceed with a motion for temporary relief, the court shall set
aside the ex parte order. At any time after ex parte relief is
granted, and on two days' notice to the party who obtained such
relief or on such shorter notice as the court may direct, the
adverse party may appear and move the court to set aside or
modify the ex parte order on the grounds that the effects of such
order are onerous or otherwise improper. In such event, the
court shall proceed to hear and determine such motion as
expeditiously as the ends of justice require.
(g) No order granting temporary relief may be the subject of
an appeal or a petition for review.
§48-2-15. Relief upon ordering divorce or annulment or granting
decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay alimony in
the form of periodic installments, or a lump sum, or both, forthe maintenance of the other party. Payments of alimony and
child support are to be ordinarily made from a party's employment
income, and other recurrent earnings, but in cases where, but
when the income are is not sufficient to adequately provide for
payments of alimony and child support, those payments, the court
may, upon specific findings set forth in the order, order the
party required to make such those payments to make the same them
from the corpus of his or her separate estate. An award of such
relief alimony shall not be disproportionate to a party's ability
to pay as disclosed by the evidence before the court.
(b) Upon ordering the annulment of a marriage or a divorce
or granting of decree of separate maintenance, the court may
further order all or any part of the following relief:
(1) The court may provide for the custody of minor children
of the parties, subject to such rights of visitation, both in and
out of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances.
(1) When the action involves a minor child or children, the
court shall provide for the custody of minor children of the
parties, subject to the non-custodial parent's right to
visitation.
(2) The court may When the action involves a minor child or
children, the court shall require either party to pay child
support in the form of periodic installments for the maintenance
of the minor children of the parties. in accordance with support
guidelines promulgated pursuant to section eight, article two,
chapter forty-eight-a of this code. Payments of child supportare to be ordinarily made from a party's income, but in cases
when the income is not sufficient to adequately provide for those
payments, the court may, upon specific findings set forth in the
order, order the party required to make those payments to make
them from the corpus of his or her separate estate.
(3) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a, article two of this chapter.
(3) (4) As an incident to requiring the payment of alimony
or child support, the court may order either party to continue in
effect existing policies of insurance covering the costs of
health care and hospitalization of the other party: and the minor
children of the parties:
Provided,
That if the other party is no
longer eligible to be covered by such insurance because of the
granting of an annulment or divorce, the court may require a
party to substitute such insurance with a new policy to cover the
other party, or may consider the prospective cost of such
insurance in awarding alimony to be paid in periodic
installments. If there is no such existing policy or policies,
the court shall order such health care insurance coverage to be
paid for by the noncustodial parent, if the court determines that
such health care insurance coverage is available to the
noncustodial parent at a reasonable cost. Payments made to an
insurer pursuant to this subdivision, either directly or by a
deduction from wages, shall be deemed to be alimony, child
support or installment payments for the distribution of marital
property, in such proportion as the court shall direct:
Provided, however,
That if the court does not set forth in theorder that a portion of such payments is to be deemed child
support or installment payments for the distribution of marital
property, then all such payments made pursuant to this
subdivision shall be deemed to be alimony:
Provided further,
That the designation of insurance coverage as alimony under the
provisions of this subdivision shall not, in and of itself, give
rise to a subsequent modification of the order to provide for
alimony other than insurance for covering the costs of health
care and hospitalization.
(4) (5) As an incident to requiring the payment of alimony
or child support, the court may grant the exclusive use and
occupancy of the marital home to one of the parties, together
with all or a portion of the household goods, furniture and
furnishings reasonably necessary for such use and occupancy.
Such use and occupancy shall be for a definite period, ending at
a specific time set forth in the order, subject to modification
upon the petition of either party. Except in extraordinary cases
supported by specific findings set forth in the order granting
relief, a grant of the exclusive use and occupancy of the marital
home shall be limited to those situations when such use and
occupancy is reasonably necessary to accommodate the rearing of
minor children of the parties. The court may require payments to
third parties in the form of home loan installments, land
contract payments, rent, payments for utility services, property
taxes, insurance coverage, or other expenses or charges
reasonably necessary for the use and occupancy of the marital
domicile. Payments made to a third party pursuant to this
subdivision for the benefit of the other party shall be deemed tobe alimony, child support or installment payments for the
distribution of marital property, in such proportion as the court
shall direct:
Provided,
That if the court does not set forth in
the order that a portion of such payments is to be deemed child
support or installment payments for the distribution of marital
property, then all such payments made pursuant to this
subdivision shall be deemed to be alimony.:
Provided, however,
That if the court does not set forth in the order that a portion
of the payment is to be deemed child support or installment
payments for the distribution of marital property, and the
parties have waived any right to alimony, then all payments made
pursuant to this subdivision shall be deemed to be child support.
Nothing contained in this subdivision shall abrogate an existing
contract between either of the parties and a third party, or
affect the rights and liabilities of either party or a third
party under the terms of such contract.
(5) (6) As an incident to requiring the payment of alimony,
the court may grant the exclusive use and possession of one or
more motor vehicles to either of the parties. The court may
require payments to third parties in the form of automobile loan
installments or insurance coverage if available at reasonable
rates, and any such payments made pursuant to this subdivision
for the benefit of the other party shall be deemed to be alimony
or installment payments for the distribution of marital property,
as the court may direct. Nothing contained in this subdivision
shall abrogate an existing contract between either of the parties
and a third party, or affect the rights and liabilities of either
party or a third party under the terms of such contract.
(6) (7) When the pleadings include a specific request for
specific property or raise issues concerning the equitable
division of marital property as defined in section one of this
article, the court shall order such relief as may be required to
effect a just and equitable distribution of the property and to
protect the equitable interests of the parties therein.
(7) (8) Unless a contrary disposition be found appropriate
is ordered pursuant to other provisions of this section, then
upon the motion of either party, the court may compel the other
party to deliver to the movant moving party any of his or her
separate estate which may be in the possession or control of the
respondent party, and may make such further order as is necessary
to prevent either party from interfering with the separate estate
of the other.
(8) (9) The court shall, when When allegations of abuse have
been proven, the court shall enjoin the offending party from
molesting or interfering with the other, or otherwise imposing
any restraint on the personal liberty of the other, or
interfering with the custodial or visitation rights of the other.
Such order may permanently enjoin the offending party from
entering the school, business or place of employment of the other
for the purpose of molesting or harassing the other; or from
contacting the other, in person or by telephone, for the purpose
of harassment or threats; or from harassing or verbally abusing
the other in a public place.
(9) (10) The court may order either party to take necessary
steps to transfer utility accounts and other accounts for
recurring expenses from the name of one party into the name ofthe other party or from the joint names of the parties into the
name of one party. Nothing contained in this subdivision shall
affect the liability of the parties for indebtedness on any such
account incurred before the transfer of such account.
(10) The court may, pursuant to the provisions of article
two-b of this chapter, grant visitation rights to any grandparent
of the minor children.
(c) In any case where When an annulment or divorce is
denied, the court shall retain jurisdiction of the case and may
order all or any portion of the relief provided for in
subsections (a) and (b) of this section which has been demanded
or prayed for in the pleadings.
(d) In any case where When a divorce or annulment is granted
in this state upon constructive service of process, and personal
jurisdiction is thereafter obtained of the defendant in such
case, the court may order all or any portion of the relief
provided for in subsections (a) and (b) of this section which has
been demanded or prayed for in the pleadings.
(e) At any time after the entry of an order pursuant to the
provisions of this section, the court may, upon the verified
petition motion of either of the parties party, revise or alter
the order concerning the maintenance of the parties, or either of
them, and make a new order concerning the same, issuing it
forthwith, as the altered circumstances or needs of the parties
may render necessary to meet the ends of justice.
The court may also from time to time afterward, upon the
verified petition motion of either of the parties, revise or
alter such order to grant relief pursuant to subdivision (8) (9),subsection (b) of this section, and make a new order concerning
the same, issuing it forthwith, as the circumstances of the
parties and the benefit of children may require. The court may
also from time to time afterward, upon the verified petition
motion of either of the parties or other proper person having
actual or legal custody of the minor child or children of the
parties, revise or alter such the order concerning the custody
and support of the children, and make a new order concerning the
same, issuing it forthwith, as the circumstances of the parents
or other proper person or persons and the benefit of the children
may require:
Provided,
That all orders modifying child support
shall be in conformance with the requirements of support
guidelines promulgated pursuant to section eight, article two,
chapter forty-eight-a of this code:
Provided, however,
That an
order providing for child support payments may be revised or
altered for the reason, inter alia, that the existing order
provides for child support payments in an amount that is less
than eighty-five percent or more than one hundred fifteen percent
of the amount that would be required to be paid under the child
support guidelines promulgated pursuant to the provisions of
section eight, article two, chapter forty-eight-a of this code:
Provided further,
That all motions for modifications shall be
supported by an affidavit and may be served upon the respondent
by mailing a copy of the motion by first class mail, postage
prepaid, to the respondent or any other method of service
provided by rule four of the rules of civil procedure. If after
service by first class mail, the respondent does not appear at
the hearing, the petitioner shall present proof that therespondent received actual notice of the hearing.
In granting relief under this subsection, the court may,
when other means are not conveniently available, alter any prior
order of the court with respect to the distribution of marital
property, if such property is still held by the parties, and if
necessary to give effect to a modification of alimony, child
support or child custody or necessary to avoid an inequitable or
unjust result which would be caused by the manner in which the
modification will affect the prior distribution of marital
property.
(f) In every case where When a separation agreement is the
basis for an award of alimony, the court, in approving the
agreement, shall examine the agreement to ascertain whether it
clearly provides for alimony to continue beyond the death of the
payor party or to cease in such event. Where When alimony is to
be paid pursuant to the terms of a separation agreement which
does not state whether the payment of alimony is to continue
beyond the death of the payor party or is to cease, or where when
the parties have not entered into a separation agreement and
alimony is to be awarded, the court shall specifically state as
a part of its order whether such payments of alimony are to be
continued beyond the death of the payor party or cease.
(g) In every case where When a separation agreement is the
basis for an award of alimony, the court, in approving the
agreement, shall examine the agreement to ascertain whether it
clearly provides for alimony to continue beyond the remarriage of
the payee party or to cease in such event. Where When alimony is
to be paid pursuant to the terms of a separation agreement whichdoes not state whether the payment of alimony is to continue
beyond the remarriage of the payee party or is to cease, or where
when the parties have not entered into a separation agreement and
alimony is to be awarded, the court shall specifically state as
a part of its order whether such payments of alimony are to be
continued beyond the remarriage of the payee party or cease.
(h) In addition to the statement provided for in subsection
(d), section thirteen of this article and in addition to or in
lieu of the disclosure requirements set forth in section
thirty-three of this article, In addition to the disclosure
requirements set forth in section thirty-three of this article,
the court may order accounts to be taken as to all or any part of
marital property or the separate estates of the parties, and may
direct that the accounts be taken as of the date of the marriage,
the date upon which the parties separated, or any other time in
assisting the court in the determination and equitable division
of property.
(i) In determining whether alimony is to be awarded, or in
determining the amount of alimony, if any, to be awarded under
the provisions of this section, the court shall consider and
compare the fault or misconduct of either or both of the parties
and the effect of such fault or misconduct as a contributing
factor to the deterioration of the marital relationship.
However, alimony shall not be awarded in any case where when both
parties prove grounds for divorce and are denied a divorce, nor
shall an award of alimony under the provisions of this section be
ordered which directs the payment of alimony to a party
determined to be at fault, when, as a grounds granting thedivorce, such party is determined by the court:
(1) To have committed adultery; or
(2) To have been convicted for the commission of a crime
which is a felony, subsequent to the marriage if such conviction
has become final; or
(3) To have actually abandoned or deserted his or her spouse
for six months.
(j) Whenever under the terms of this section or section
thirteen of this article a court enters an order requiring the
payment of alimony or child support, if the court anticipates the
payment of such alimony or child support or any portion thereof
to be paid out of "disposable retired or retainer pay" as that
term is defined in 10 U.S.C. §1408, relating to members or former
members of the uniformed services of the United States, the court
shall specifically provide for the payment of an amount,
expressed in dollars or as a percentage of disposable retired or
retainer pay, from the disposable retired or retainer pay of the
payor party to the payee party.
§48-2-15a. Medical support enforcement.
(a) For the purposes of this section:
(1) "Custodian for the children" means a parent, legal
guardian, committee or other third party appointed by court order
as custodian of child or children for whom child support is
ordered.
(2) "Obligated parent" means a natural or adoptive parent
who is required by agreement or order to pay for insurance
coverage and medical care, or some portion thereof, for his or
her child.
(3) "Insurance coverage" means coverage for medical, dental,
including orthodontic, optical, psychological, psychiatric or
other health care service.
(4) "Child" means a child to whom a duty of child support is
owed.
(5) "Medical care" means medical, dental, optical,
psychological, psychiatric or other health care service for
children in need of child support.
(6) "Insurer" means any company, trust or other entity which
provides insurance coverage.
(b) In every action to establish or modify an order which
requires the payment of child support, the court shall ascertain
the ability of each parent to provide medical care for the
children of the parties. The In any temporary or final order
establishing an award of child support or any temporary or final
order modifying a prior order establishing an award of child
support, the court shall order one or more of the following:
(1) The court shall order either parent or both parents to
provide insurance coverage for a child, if such insurance
coverage is available to that parent on a group basis through an
employer or through an employee's union. If similar insurance
coverage is available to both parents, the court shall order the
child to be insured under the insurance coverage which provides
more comprehensive benefits. If such insurance coverage is not
available at the time of the entry of the order, the order shall
require that if such coverage thereafter becomes available to
either party, that party shall promptly notify the other party of
the availability of insurance coverage for the child.
(2) If the court finds that insurance coverage is not
available to either parent on a group basis through an employer,
multi-employer trust or employees' union, or that the group
insurer is not accessible to the parties, the court may order
either parent or both parents to obtain insurance coverage which
is otherwise available at a reasonable cost.
(3) Based upon the respective ability of the parents to pay,
the court may order either parent or both parents to be liable
for reasonable and necessary medical care for a child. The court
shall specify the proportion of the medical care for which each
party shall be responsible.
(4) If insurance coverage is available, the court shall also
determine the amount of the annual deductible on insurance
coverage which is attributable to the children and designate the
proportion of the deductible which each party shall pay.
(c) The cost of insurance coverage shall be considered by
the court in applying the child support guidelines provided for
in section eight, article two, chapter forty-eight-a of this
code.
(d) Within thirty days after the entry of an order requiring
the obligated parent to provide insurance coverage for the
children, that parent shall submit to the custodian for the child
written proof that the insurance has been obtained or that an
application for insurance has been made. Such proof of insurance
coverage shall consist of, at a minimum:
(1) The name of the insurer;
(2) The policy number;
(3) An insurance card;
(4) The address to which all claims should be mailed;
(5) A description of any restrictions on usage, such as
prior-approval for hospital admission, and the manner in which to
obtain such approval;
(6) A description of all deductibles; and
(7) Five copies of claim forms.
(e) The custodian for the child shall send the insurer or
the obligated parent's employer the children's address and notice
that the custodian will be submitting claims on behalf of the
children. Upon receipt of such notice, or an order for insurance
coverage under this section, the obligated parent's employer,
multi-employer trust or union shall, upon the request of the
custodian for the child, release information on the coverage for
the children, including the name of the insurer.
(f) A copy of the court order for insurance coverage shall
not be provided to the obligated parent's employer or union or
the insurer unless ordered by the court, or unless:
(1) The obligated parent, within thirty days of receiving
effective notice of the court order, fails to provide to the
custodian for the child written proof that the insurance has been
obtained or that an application for insurance has been made;
(2) The custodian for the child serves written notice by
mail at the obligated parent's last known address of intention to
enforce the order requiring insurance coverage for the child; and
(3) The obligated parent fails within fifteen days after the
mailing of the notice to provide written proof to the custodian
for the child that the child has insurance coverage.
(g) (1) Upon service of the order requiring insurancecoverage for the children, the employer, multi-employer trust or
union shall enroll the child as a beneficiary in the group
insurance plan and withhold any required premium from the
obligated parent's income or wages.
(2) If more than one plan is offered by the employer, multi-
employer trust or union, the child shall be enrolled in the most
comprehensive plan otherwise available to the obligated parent at
a reasonable cost.
(3) Insurance coverage for the child which is ordered
pursuant to the provisions of this section shall not be
terminated except as provided in subsection (i) of this section.
(h) (1) The signature of the custodian for the child shall
constitute a valid authorization to the insurer for the purposes
of processing an insurance payment to the provider of medical
care for the child.
(2) No insurer, employer or multi-employer trust in this
state may refuse to honor a claim for a covered service when the
custodian for the child or the obligated parent submits proof of
payment for medical bills for the child.
(3) The insurer shall reimburse the custodian for the child
or the obligated parent who submits copies of medical bills for
the child with proof of payment.
(4) All insurers in this state shall provide insurance
coverage for the child of a covered employee notwithstanding the
amount of support otherwise ordered by the court and regardless
of the fact that the child may not be living in the home of the
covered employee.
(i) When an order for insurance coverage for a childpursuant to this section is in effect and the obligated parent's
employment is terminated, or the insurance coverage for the child
is denied, modified or terminated, the insurer shall, within ten
days after the notice of change in coverage is sent to the
covered employee, notify the custodian for the child and provide
an explanation of any conversion privileges available from the
insurer.
(j) A child of an obligated parent shall remain eligible for
insurance coverage until the child is emancipated or until the
insurer under the terms of the applicable insurance policy
terminates said child from coverage, whichever is later in time,
or until further order of the court.
(k) If the obligated parent fails to comply with the order
to provide insurance coverage for the child, the court shall:
(1) Hold the obligated parent in contempt for failing or
refusing to provide the insurance coverage, or for failing or
refusing to provide the information required in subsection (d) of
this section;
(2) Enter an order for a sum certain against the obligated
parent for the cost of medical care for the child, and any
insurance premiums paid or provided for the child during any
period in which the obligated parent failed to provide the
required coverage; and
(3) In the alternative, other enforcement remedies available
under sections two and three, article five, chapter forty-eight-a
of this code, or otherwise available under law, may be used to
recover from the obligated parent the cost of medical care or
insurance coverage for the child.
(l) Proof of failure to maintain court ordered insurance
coverage for the child constitutes a showing of substantial
change in circumstances or increased need pursuant to section
fifteen of this article, and provides a basis for modification of
the child support order.
§48-2-16. Effect of separation agreement; what considered in
awarding alimony, child support or separate
maintenance.
(a) In cases where When the parties to an action commenced
under the provisions of this article have executed a separation
agreement, if the court finds that the agreement is fair and
reasonable, and not obtained by fraud, duress or other
unconscionable conduct by one of the parties, and further finds
that the parties, through the separation agreement, have
expressed themselves in terms which, if incorporated into a
judicial order, would be enforceable by a court in future
proceedings, then the court shall conform the relief which it is
authorized to order under the provisions of sections thirteen and
fifteen of this article to the separation agreement of the
parties. The separation agreement may contractually fix the
division of property between the parties and may determine
whether alimony shall be awarded, whether a court shall have
continuing jurisdiction over the amount of an alimony award so as
to increase or decrease the amount of alimony to be paid, whether
alimony shall be awarded as a lump sum settlement in lieu of
periodic payments, whether alimony shall continue beyond the
death of the payor party or the remarriage of the payee party, or
whether the alimony award shall be enforceable by contemptproceedings or other judicial remedies aside from contractual
remedies. Any award of periodic payments of alimony shall be
deemed to be judicially decreed and subject to subsequent
modification unless there is some explicit, well expressed,
clear, plain and unambiguous provision to the contrary set forth
in the court approved separation agreement or the order granting
the divorce. Child support shall, under all circumstances,
always be subject to continual judicial modification.
(b) In cases where When the parties to an action commenced
under the provisions of this article have not executed a
separation agreement, or have executed an agreement which is
incomplete or insufficient to resolve the outstanding issues
between the parties, or where when the court finds the separation
agreement of the parties not to be fair and reasonable or clear
and unambiguous, the court shall proceed to resolve the issues
outstanding between the parties. The court shall consider the
following factors in determining the amount of alimony or
separate maintenance, if any, to be ordered under the provisions
of sections thirteen and fifteen of this article, as a supplement
to or in lieu of the separation agreement:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties
actually lived together as husband and wife;
(3) The present employment income and other recurring
earnings of each party from any source;
(4) The income-earning abilities of each of the parties,
based upon such factors as educational background, training,
employment skills, work experience, length of absence from thejob market and custodial responsibilities for children;
(5) The distribution of marital property to be made under
the terms of a separation agreement or by the court under the
provisions of section thirty-two of this article, insofar as the
distribution affects or will affect the earnings of the parties
and their ability to pay or their need to receive alimony, child
support or separate maintenance;
(6) The ages and the physical, mental and emotional
condition of each party;
(7) The educational qualifications of each party;
(8) The likelihood that the party seeking alimony, child
support or separate maintenance can substantially increase his or
her income-earning abilities within a reasonable time by
acquiring additional education or training;
(9) The anticipated expense of obtaining the education and
training described in subdivision (8) above;
(10) The costs of educating minor children;
(11) The costs of providing health care for each of the
parties and their minor children;
(12) The tax consequences to each party;
(13) The extent to which it would be inappropriate for a
party, because said party will be the custodian of a minor child
or children, not be in the best interests of a minor child for
the custodian to seek employment outside of the home;
(14) The financial need of each party;
(15) The legal obligations of each party to support himself
or herself and to support any other person; and
(16) Such other factors as the court deems necessary orappropriate to consider in order may consider to arrive at a fair
and equitable grant of alimony, child support or separate
maintenance.
(c) When the action involves a minor child or children, the
court shall issue an order awarding child support in accordance
with support guidelines promulgated pursuant to section eight,
article two, chapter forty eight-a and shall further provide for
medical support for any minor child in accordance with section
fifteen-a, article two of this chapter. Under all circumstances,
child support shall be subject to continuing judicial
modification.
§48-2-22. Proceedings in contempt.
(a) Criminal Contempt--Upon a verified petition for
contempt, notice of hearing and hearing, if the petition alleges
criminal contempt or the court informs the parties that the
matter will be treated and tried as a criminal contempt, the
matter shall be tried before a jury, unless the party charged
with contempt shall knowingly and intelligently waive the right
to a jury trial with the consent of the court and the other
party. If the jury, or the court sitting without a jury, shall
find the defendant respondent in contempt for willfully failing
to comply with an order of the court made pursuant to the
provisions of this article, as charged in the petition, the court
may find the person to be in criminal contempt and may commit
such person to the county jail for a determinate period not to
exceed six months.
(b) If trial is had under the provisions of subsection (a)
of this section and the court elects to treat a finding ofcriminal contempt as a civil contempt, or if the petition alleges
civil contempt and the matter is not tried before a jury and the
court finds the defendant in contempt for willfully failing to
comply with an order of the court made pursuant to the provisions
of this article, and if the court further finds the person has
the ability to purge himself of contempt, the court shall afford
the contemnor a reasonable time and method whereby he may purge
himself of contempt. If the contemnor fails or refuses to purge
himself of contempt, the court may confine the contemnor to the
county jail for an indeterminate period not to exceed six months
or until such time as the contemnor has purged himself, whichever
shall first occur.
(c) In the case of a charge of contempt based upon the
failure of the defendant to pay alimony, child support or
separate maintenance, if the court or jury finds that the
defendant did not pay because he was financially unable to pay,
the defendant may not be imprisoned on charges of contempt of
court.
(e) Regardless of whether the court or jury finds the
defendant to be in contempt, if the court shall find that a party
is in arrears in the payment of alimony, child support or
separate maintenance ordered to be paid under the provisions of
this article, the court shall enter judgment for such arrearage
and award interest on such arrearage from the due date of each
unpaid installment. Following any hearing wherein the court
finds that a party is in arrears in the payment of alimony, child
support or separate maintenance, the court may, if sufficient
assets exist, require security to ensure the timely payment offuture installments.
(b) Civil Contempt--When a petition for contempt does not
allege criminal contempt, the matter may be tried before the
family law master.
(1) When a petition for contempt is based upon the failure
of a party to pay alimony, child support or to comply with an
order regarding equitable distribution of property, the family
law master may enter a temporary order setting forth a time and
method whereby the alleged contemnor may purge himself or herself
of contempt. These methods may include, but are not limited to:
(1) Seeking work or enrollment in a general equivalency diploma
(G.E.D.) or vocational education program; (2) enrollment in a
substance abuse program; or (3) compliance with a program
provided by a debt counseling or financial management service.
Any order setting forth these requirements shall provide for a
further hearing within sixty days from entry of the order whereby
the family law master shall either find that the contemnor has
taken the action required by such order or recommend an order to
circuit court to find that the contemnor is in contempt or
recommend any other order which may be supported by the pleadings
or the evidence adduced at the hearing, including a modification
of the prior order. The family law master shall award expenses,
court costs, and attorney fees in any temporary order or
recommended order issued granting relief pursuant to this
section.
(2) When a petition for contempt is based upon the failure
of a party to permit the other party to exercise visitation with
the minor children, a hearing shall be held before the family lawmaster within twenty days of the filing of the petition. In
these cases, the family law master may enter a temporary order
setting forth a time and method whereby the alleged contemnor may
purge himself or herself of contempt. These methods may include,
but are not limited to: (1) Modification of a visitation schedule
to provide more precise details about the visitation; (2)
modification of provisions regarding transportation or the
location for visitation; or (3) providing for a supervisor for
picking up and dropping off the child for visitation. Any order
setting forth these requirements shall provide for a further
hearing within sixty days from the entry of the order whereby the
family law master shall either find that the contemnor has taken
the action required by such order or recommend an order to
circuit court finding the respondent in contempt or recommend any
other order which may be supported by the pleadings or the
evidence adduced at the hearing, including a modification of the
prior order. The family law master shall award expenses, court
costs, and attorney fees in any temporary order or recommended
order issued granting relief pursuant to this section.
(c) At any time during a contempt proceeding, the court may
enter an order to attach forthwith the body of, and take into
custody, any person who refuses or fails to respond to the lawful
process of the court or to comply with an order of the court.
Such order of attachment shall require the person to be brought
forthwith before the court or the judge thereof in any county in
which the court may then be sitting.
(d) When a charge of contempt is based upon the failure of
the respondent to pay alimony, child support or separatemaintenance, if the court or jury finds that the respondent did
not pay because he was financially unable to pay, the respondent
may not be imprisoned on charges of contempt of court.
§48-2-33. Disclosure of assets required.
(a) In addition to any discovery ordered by the court
pursuant to rule eighty-one of the rules of civil procedure, the
court may, or upon pleadings or motion of either party, the court
shall, require each party to furnish, on such standard forms as
the court may require, full disclosure of all assets owned in
full or in part by either party separately or by the parties
jointly. In all divorce actions and in any other action
involving child support, all parties shall fully disclose their
assets and liabilities within forty days after the service of
summons or at such earlier time as ordered by the court. The
information contained on these forms shall be updated on the
record to the date of the hearing.
(b) Such disclosure The disclosure required by this
section may be made by each party individually or by the parties
jointly. Assets required to be disclosed shall include, but
shall not be limited to, real property, savings accounts, stocks
and bonds, mortgages and notes, life insurance, health insurance
coverage, interest in a partnership or corporation, tangible
personal property, income from employment, future interests
whether vested or nonvested, and any other financial interest or
source. The court may also require each party to furnish, on the
same standard form, information pertaining to all debts and
liabilities of the parties.
(c) The supreme court of appeals shall make available tothe circuit courts a standard form for the disclosure of assets
and debts required by this section. The clerk of the circuit
court shall make these forms available to all parties in any
divorce action or action involving child support. All disclosure
required by this section shall be on a form that substantially
complies with the form promulgated by the supreme court of
appeals. The form used shall contain a statement in conspicuous
print that complete disclosure of assets and debts is required by
law and deliberate failure to provide complete disclosure as
ordered by the court constitutes false swearing. The court may
on its own initiative and shall at the request of either party
require the parties to furnish copies of all state and federal
income tax returns filed by them for the past two years, and may
require copies of such returns for prior years.
(b) Disclosure forms required under this section shall be
filed within forty days after the service of summons or at such
other time as ordered by the court. Information contained on
such forms shall be updated on the record to the date of hearing.
(d) Nothing contained in this section shall be construed to
prohibit the court from ordering discovery pursuant to rule
eighty-one of the rules of civil procedure. Additionally, the
court may on its own initiative and shall at the request of
either party require the parties to furnish copies of all state
and federal income tax returns filed by them for the past two
years, and may require copies of such returns for prior years.
(c) (e) Information disclosed under this section shall be
confidential and may not be made available to any person for any
purpose other than the adjudication, appeal, modification orenforcement of judgment of an action affecting the family of the
disclosing parties. The court shall include in any order
compelling disclosure of assets such provisions as the court
considers necessary to preserve the confidentiality of the
information ordered disclosed.
(f) Any failure to timely or accurately disclose financial
information required by this section may be considered as
follows:
(d) (1) Upon the failure by either party timely to file a
complete disclosure statement as required by this section or as
ordered by the court, the court may accept the statement of the
other party as accurate.
(e) (2) If any party deliberately or negligently fails to
disclose information which may be is required by this section and
in consequence thereof any asset or assets with a fair market
value of five hundred dollars or more is omitted from the final
distribution of property, the party aggrieved by such
nondisclosure may at any time petition a court of competent
jurisdiction to declare the creation of a constructive trust as
to all undisclosed assets, for the benefit of the parties and
their minor or dependent children, if any, with the party in
whose name the assets are held declared the constructive trustee,
such trust to include such terms and conditions as the court may
determine. The court shall impose the trust upon a finding of a
failure to disclose such assets as required under this section.
(f) (3) Any assets with a fair market value of five hundred
dollars or more which would be considered part of the estate of
either or both of the parties if owned by either or both of themat the time of the action, but which was transferred for
inadequate consideration, wasted, given away or otherwise
unaccounted for by one of the parties, within five years prior to
the filing of the petition or length of the marriage, whichever
is shorter, shall be presumed to be part of the estate and shall
be subject to the disclosure requirement contained in this
section. With respect to such transfers the spouse shall have
the same right and remedies as a creditor whose debt was
contracted at the time the transfer was made under article one-a,
chapter forty of this code. Transfers which resulted in an
exchange of assets of substantially equivalent value need not be
specifically disclosed when such assets are otherwise identified
in the statement of net worth.
(g) (4) A person who knowingly provides incorrect
information or who deliberately fails to disclose information
pursuant to the provisions of this section is guilty of false
swearing.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 2. WEST VIRGINIA CHILD ADVOCATE OFFICE.
§48A-2-8. Guidelines for child support awards.
(a) The director of the child advocate office shall, by
legislative rule, establish guidelines for child support award
amounts so as to ensure greater uniformity by those persons who
make child support recommendations and enter child support
orders, and to increase predictability for parents, children and
other persons who are directly affected by child support orders.
There shall be a rebuttable presumption, in any proceeding before
a family law master or circuit court judge for the award of childsupport, that the amount of the award which would result from the
application of such guidelines is the correct amount of child
support to be awarded. A written finding or specific finding on
the record that the application of the guidelines would be unjust
or inappropriate in a particular case shall be sufficient to
rebut the presumption in that case. The guidelines shall not be
followed:
(1) When the child support award proposed to be made
pursuant to the guidelines has been disclosed to the parties and
each party has made a knowing and intelligent waiver of said
amount, and the support obligors have entered into an agreement
which provides for the custody and support of the child or
children of the parties; or
(2) When the child support award proposed to be made
pursuant to the guidelines would be contrary to the best
interests of the child or children, or contrary to the best
interests of the parties.
(b) The Legislature, by the enactment of this article,
recognizes that children have a right to share in their natural
parents' level of living. Accordingly, guidelines promulgated
under the provisions of this section shall not be based upon any
schedule of minimum costs for rearing children based upon
subsistence level amounts set forth by various agencies of
government. The Legislature recognizes that expenditures in
families are not made in accordance with subsistence level
standards, but are rather made in proportion to household income,
and as parental incomes increase or decrease, the actual dollar
expenditures for children also increase or decreasecorrespondingly. In order to ensure that children properly share
in their parents' resources, regardless of family structure, the
guidelines shall be structured so as to provide that after a
consideration of respective parental incomes, that child support
will be related, to the extent practicable, to the level of
living which such children would enjoy if they were living in a
household with both parents present.
(c) The guidelines promulgated under the provisions of this
section shall take into consideration the financial contributions
of both parents. The Legislature recognizes that expenditures in
households are made in aggregate form and that total family
income is pooled to determine the level at which the family can
live. The guidelines shall provide for examining the financial
contributions of both parents in relationship to total income, so
as to establish and equitably apportion the child support
obligation. Under the guidelines, the child support obligation
of each parent will vary proportionately according to their
individual incomes. In determining the child support obligation
of a parent whose employment income consists, in part, of
compensation for overtime hours worked, the guidelines may
provide for a child support order which includes a consideration
of such overtime compensation, but any formula which is used to
compute anticipated overtime compensation shall regard only the
first sixty percent of such overtime compensation as income for
purposes of establishing a child support award.
(d) The guidelines shall be structured so as to take into
consideration any preexisting support orders which impose
additional duties of support upon an obligor outside of theinstant case, and shall provide direction in cases involving
split or shared custody.
(e) The guidelines shall have application to cases of
divorce, paternity, actions for support, and modifications
thereof.
(f) In promulgating the legislative rule provided for under
the provisions of this section, the director shall be directed by
the following legislative findings:
(1) That amounts to be fixed as child support should not
include awards for alimony, notwithstanding the fact that any
amount fixed as child support will impact upon the living
conditions of custodial parents;
(2) That parental expenditures on children represent a
relatively constant percentage of family consumption as family
consumption increases, so that as family income increases, the
family's level of consumption increases, and the children should
share in and benefit from this increase;
(3) That parental expenditures on children represent a
declining proportion of family income as the gross income of the
family increases, so that while total dollar outlays for children
have a positive relationship to the family's gross income, the
proportion of gross family income allotted for the children has
a negative relationship to gross income;
(4) That expenditures on children vary according to the
number of children in the family, and as the number of children
in the family increase, the expenditures for the children as a
group increase, and the expenditures on each individual child
decrease; so that due to increasing economies of scale and theincreased sharing of resources among family members, spending
will not increase in direct proportion to the number of children;
(5) That as children grow older, expenditures on children
increase, particularly during the teenage years.
(g) The director of the child advocate office shall review
the guidelines at least once every four years to ensure that
their application results in the determination of appropriate
child support awards. Such four-year period shall begin on the
first day of July, one thousand nine hundred eighty-nine.
ARTICLE 4. PROCEEDINGS BEFORE A MASTER.
§48A-4-1. Appointment of family law masters; term of office;
vacancy; removal.
(a) On or before the fifteenth day of September, one
thousand nine hundred eighty-six, the governor shall appoint
family law masters in such numbers and to serve such areas of the
state as provided for under the provisions of this article, and
such initial appointments of individuals as family law masters
shall be for a term ending on the thirtieth day of June, one
thousand nine hundred ninety. Thereafter, the length of the term
of the office of family law master shall be four years, with
terms commencing on the first day of July, one thousand nine
hundred ninety, and on a like date in every fourth year
thereafter, and ending on the thirtieth day of June, one thousand
nine hundred ninety-four, and on a like date in every fourth year
thereafter. The part-time family law masters holding office on
the effective date of this section by virtue of appointments made
under the prior enactments of this article shall continue their
service for a term of office ending on the thirtieth day of June,one thousand nine hundred ninety-four. On or before the first
day of June, one thousand nine hundred ninety-four, the governor
shall appoint full-time family law masters in such numbers and to
serve such areas of the state as provided for under the
provisions of this article, with terms commencing on the first
day of July, one thousand nine hundred ninety-four, and on a like
date in every sixth year thereafter, and ending on the thirtieth
day of June, two thousand, and on a like date in every sixth year
thereafter. Upon the expiration of his or her term, a family law
master may continue to perform the duties of the office until his
or her successor is appointed, or for sixty days after the date
of the expiration of the master's term, whichever is earlier. If
from any cause a vacancy shall occur in the office of family law
master, the governor shall, within thirty days after such vacancy
occurs, fill such vacancy by appointment for the unexpired term:
Provided,
That if the remaining portion of the unexpired term to
be filled is less than one year, the governor may, in his
discretion, simultaneously appoint an individual to the unexpired
term and to the next succeeding full four-year term.
(b) An individual may be reappointed to succeeding terms as
a family law master to serve in the same or a different region of
the state.
(1) Not later than ninety days prior to the end of his or
her term, each family law master shall advise the administrative
office of the supreme court of appeals as to whether he or she
desires to be reappointed to a succeeding term. On or before the
sixtieth day next preceding the end of a master's term, the
administrative office of the supreme court shall submit to thegovernor a list of those persons serving as family law masters
whom the supreme court of appeals certifies as eligible for
reappointment. The decision as to whether a certification should
be given or withheld shall be based on a thorough evaluation of
each master's performance in office, as required by the
provisions of section twenty-two of this article. No master
shall be reappointed by the governor unless he or she receives a
certification based upon his or her satisfactory performance from
the administrative office of the supreme court.
(2) If the governor shall decline to reappoint a master
certified as eligible by the the supreme court of appeals, then
the supreme court of appeals, in cooperation with the circuit
judge or judges of the area served by the law master, and after
consultation with members of the local bar, shall prepare a list
which contains the names of not less than three nor more than
five qualified persons, including the incumbent family law
master, and shall submit the list to the governor. The governor
shall appoint one of the named individuals as family law master.
(b) No individual may be appointed to serve as a family law
master unless he or she is a member in good standing of the West
Virginia state bar.
(c) Removal of a master during the term for which he or she
is appointed shall be only for incompetency, misconduct, neglect
of duty, or physical or mental disability.
(c) Removal of a master during the term for which he or she
is appointed shall be as follows:
(1) The governor shall remove a master, with or without a
recommendation from the supreme court of appeals, when conduct ofthe family law master evidences incompetence, misconduct, neglect
of duty, or physical or mental disability.
(2) The governor shall remove a master, upon the
recommendation of the supreme court of appeals, when conduct of
the family law master evidences unsatisfactory performance as
supported by one or more summary performance ratings at a less
than successful level and only after a specific remedial plan
which is reasonable, realistic and attainable has failed to
correct such unsatisfactory performance, in accordance with the
provisions of section twenty-two of this article.
(d) The supreme court of appeals may appoint temporary or
special family law masters, who shall serve no definite term and
shall be engaged contractually by the supreme court of appeals to
serve on a case-by-case basis or as a temporary substitute for a
full-time master. A temporary or special family law master shall
be an active member in good standing of the West Virginia state
bar or a former circuit judge.
(e) If from any cause a vacancy shall occur in the office
of family law master, the governor shall, within thirty days
after such vacancy occurs, fill such vacancy by appointment for
the unexpired term:
Provided,
That if the remaining portion of
the unexpired term to be filled is less than one year, the
governor may, in his discretion, simultaneously appoint an
individual to the unexpired term and to the next succeeding full
term.
§48A-4-2. Qualifications of family law masters.
(b) (a) No individual may be appointed to serve as a family
law master unless he or she is a member in good standing of theWest Virginia state bar.
(d) (b) A family law master may not engage in any other
business, occupation or employment inconsistent with the
expeditious, proper and impartial performance of his or her
duties as a judicial officer.
(c) Family Part-time family law masters who do not engage
in the practice of criminal law shall be exempted are exempt from
appointments in indigent cases which would otherwise be required
pursuant to article twenty-one, chapter twenty-nine of this code.
(d) A full-time family law master may not engage in the
outside practice of law, and shall devote full time to his or her
duties under the provisions of this chapter and chapter
forty-eight of this code.
(e) All family law masters, and all necessary clerical and
secretarial assistants employed in the offices of family law
masters, shall be deemed to be are officers or employees in of
the judicial branch of state government. The director of the
child advocate office and the commissioner of the division of
human services shall enter into an agreement with the
administrative office of the supreme court of appeals whereby the
office and the division shall contract to pay the administrative
office of the supreme court of appeals for the services of the
family law masters required to be furnished under the provisions
of this chapter which are not otherwise payable from the family
law masters fund created under the provisions of section twenty-
two, article two of this chapter.
Each county commission of this state shall enter into an
agreement with the administrative office of the supreme court ofappeals whereby the administrative office of the supreme court of
appeals shall contract to pay to the county commission a
reasonable amount as rent for premises furnished by the county
commission to the family law master and its staff, which premises
shall be adequate for the conduct of the duties required of such
master under the provisions of this chapter.
§48A-4-3. Compensation and expenses of family law masters and
their staffs.
(f) A family law master appointed under the provisions of
this article shall receive as full compensation for his or her
services an annual salary of thirty-five thousand dollars.
(a) A part-time family law master shall receive as full
compensation for his or her services an annual salary of thirty-
five thousand dollars.
(b) A full-time family law master shall receive as full
compensation for his or her services an annual salary based upon
years of experience, in accordance with the following:
(1) A law master who has been employed for less than three
years shall receive for his or her services an annual salary of
forty thousand dollars;
(2) A law master who has been employed for more than three
years but less than six full years shall receive for his or her
services an annual salary of forty-five thousand dollars; and
(3) A law master who has been employed for more than six
full years shall receive as full compensation for his or her
services an annual salary of fifty thousand dollars.
The secretary-clerk of the family law master shall receive an
annual salary of sixteen thousand five hundred dollars and shallbe appointed by the family law master and serve at his or her
will and pleasure.
The secretary-clerk of the family law master shall be
appointed by the family law master and serve at his or her will
and pleasure, and shall receive an annual salary of seventeen
thousand five hundred dollars:
Provided,
That subsequent to the
first day of October, one thousand nine hundred ninety-three, the
secretary-clerk may receive such percentage or proportional
salary increases as may be provided for by general law for other
public employees and shall receive the annual incremental salary
increase as provided for in article five, chapter five of this
code. A temporary or special family law master shall be
compensated by the supreme court of appeals at an hourly rate not
to exceed the hourly rate paid to panel attorneys for performing
work in court pursuant to the provisions of section thirteen-a,
article twenty-one, chapter twenty-nine of this code.
(b) Disbursement of salaries for family law masters and
members of their staffs shall be made by or pursuant to the order
of the director of the administrative office of the supreme court
of appeals.
(g) (c) Family law masters, serving under the provisions of
this article members of their staffs, and temporary family law
masters shall be allowed their actual and necessary expenses
incurred in the performance of their duties. Such expenses and
compensation shall be determined and paid by the director of the
administrative office of the supreme court of appeals under such
guidelines as he or she may prescribe, with the approval of as
approved by the supreme court of appeals.
§48A-4-4. Assignment of family law masters by geographical
regions.
(h) (a) The Prior to the first day of July, one thousand
nine hundred ninety-four, the offices of the family law masters
shall be distributed geographically so as to provide an office of
the family law master for each of the following regions:
(1) The counties of Brooke, Hancock and Ohio;
(2) The counties of Marshall, Tyler and Wetzel;
(3) The counties of Pleasants, Ritchie, Wirt and Wood;
(4) The counties of Calhoun, Jackson and Roane;
(5) The counties of Mason and Putnam;
(6) The county of Cabell;
(7) The counties of McDowell and Wyoming;
(8) The counties of Logan and Mingo;
(9) The county of Kanawha;
(10) The county of Raleigh;
(11) The counties of Mercer and Summers;
(12) The counties of Fayette and Nicholas;
(13) The counties of Greenbrier, Pocahontas and Monroe;
(14) The counties of Braxton, Clay, Gilmer and Webster;
(15) The counties of Doddridge, Harrison, Lewis and Upshur;
(16) The counties of Marion and Taylor;
(17) The counties of Monongalia and Preston;
(18) The counties of Barbour, Randolph and Tucker;
(19) The counties of Grant, Hampshire, Hardy, Mineral and
Pendleton;
(20) The counties of Berkeley, Jefferson and Morgan; and
(21) The counties of Boone, Lincoln and Wayne.
There shall be a total of twenty-two part-time family law
masters serving throughout the state. The governor shall appoint
two masters to the office of the family law master for the region
of Kanawha County. Two masters shall be assigned to the office
of the family law master for the region of Kanawha County. In
each of the other regions defined by this subsection, the
governor shall appoint one person as family law master from such
region. one individual shall be assigned as family law master for
each such region.
(b) On and after the first day of July, one thousand nine
hundred ninety-four, there shall be a total of twenty-two
full-time family law masters serving throughout the state.
During the year immediately preceding the appointment of law
masters as provided for in section one of this article, the
supreme court of appeals shall apportion the state into
geographical regions which may be single-master regions or
multi-master regions, or a combination of both. County
boundaries shall be strictly observed, and no county may be
divided among two or more regions. Otherwise, in making such
apportionment, the supreme court of appeals shall shall construct
regions which provide, as nearly as is practicable, for the
case-load of each master to be equal to that of other masters.
Mathematical exactness as to case-load is not required, and
deviations from an absolute standard may be based upon concerns,
other than case-load, including, but not limited to, deviations
dictated by the following considerations:
(1) Observance of the boundaries of judicial circuits;
(2) Geographical features which affect the time and expenseof travel;
(3) Traditional patterns of practice by members of the bar;
(4) . . .
(c) Nothing contained herein shall prohibit the director of
the administrative office of the supreme court of appeals, under
the general supervision of the chief justice of the supreme court
of appeals, from temporarily assigning, from time to time as
caseload may dictate, a family law master from one geographical
region to another geographical region.
§48A-4-5. Rules.
(a) Pleading, practice and procedure in matters before a
family law master shall be governed by rules of practice and
procedure for family law made and promulgated by the supreme
court of appeals pursuant to the provisions of section four,
article one, chapter fifty-one of this code.
(b) The West Virginia rules of evidence shall apply to
proceedings before a family law master.
(c) The judge of a circuit court, or the chief judge
thereof, may promulgate local rules governing the conduct and
administration of family law master offices serving the court,
which rules shall be subordinate and subject to the rules of the
supreme court of appeals or the orders of the chief justice
thereof. Rules promulgated by the judge of a circuit court, or
the chief judge thereof, shall be made by order entered upon the
order book of the circuit court, as hereinafter provided, and
shall be effective when filed with the clerk of the supreme court
of appeals.
§48A-4-6. Matters to be heard by a family law master.
(i) A circuit court or the chief judge thereof shall refer
to the master the following matters for hearing to be conducted
pursuant to section two sections eight and nine of this article:
Provided,
That on its own motion or upon motion of a party, the
circuit judge may revoke the referral of a particular matter to
a master if the master is recused, if the matter is uncontested,
or for other good cause, or if the matter will be more
expeditiously and inexpensively heard by the circuit judge
without substantially affecting the rights of parties in actions
which must be heard by the circuit court:
(1) Actions to obtain orders of support brought under the
provisions of section one, article five of this chapter;
(2) All actions to establish paternity brought under the
provisions of article six of this chapter, and any dependent
claims related to such action regarding child support, custody
and visitation;
Provided,
That all actions wherein either or both
of the parties have demanded a trial by jury of the law and the
facts shall be heard by the circuit court;
(3) All petitions for writs of habeas corpus wherein the
issue contested is child custody;
(3) (4) All motions for pendente lite relief affecting
child custody, visitation, child support, spousal support or
family violence, wherein either party has requested such referral
or the court on its own motion in individual cases or by general
order has referred such motions to the master:
Provided,
That
if the circuit court determines, in its discretion, that the
pleadings raise substantial issues concerning the identification
of separate property or the division of marital property whichmay have a bearing on an award of support, the court may decline
to refer a motion for support pendente lite to the family law
master;
(4) (5) All petitions for modification of an order involving
child custody, child visitation, child support or spousal
support;
(5) (6) All actions for divorce, annulment or separate
maintenance brought pursuant to article two, chapter forty-eight
of this code:
Provided,
That an action for divorce, annulment or
separate maintenance which does not involve child custody or
child support shall be heard by the circuit judge if, at the time
of the filing of the action, the parties file a written property
settlement agreement which has been signed by both parties;
(6) (7) All actions wherein an obligor is contesting the
enforcement of an order of support through the withholding from
income of amounts payable as support or is contesting an
affidavit of accrued support, filed with a circuit clerk, which
seeks to collect arrearages;
(7) (8) All actions commenced under the provisions of
article seven of this chapter or under the provisions of the
revised uniform reciprocal enforcement of support act of any
other state; and
(8) (9) Proceedings for the enforcement of support, custody
or visitation orders:,
Provided,
That contempt actions shall be
heard by a circuit judge. including, but not limited to, initial
hearings on contempt actions brought under the provisions of
section two, article two, chapter forty-eight of this code:
Provided,
That petitions alleging criminal contempt shall beheard by a circuit judge or jury.
(9) All actions to establish custody of a minor child,
Provided,
That any action instituted under article six, chapter
forty-nine shall be heard by a circuit judge.
(b) On its own motion or upon motion of a party, the
circuit court may revoke the referral of a particular matter to
a master if the master is recused, if the matter is uncontested,
or for other good cause, or if the matter will be more
expeditiously and inexpensively heard by the circuit judge
without substantially affecting the rights of parties in actions
which must be heard by the circuit court.
§48A-4-7. Fees for the services of a family law master.
(j) (a) The payment of initial fees for a hearing before a
master shall be paid before the commencement of the hearing. A
party may demonstrate that he or she has paid the required fees
by presenting a check or money order issued to the clerk for the
fee. Any additional hourly fees beyond the initial fee shall be
paid at the conclusion of the hearing, unless a party is excused
from payment thereof under the provisions of section one, article
two, chapter fifty-nine of this code. Such initial fees may be
paid at any time prior to such hearing, but shall not be required
at the time the action is filed, and no advance payment shall be
required for additional fees beyond the initial fees required by
this section. Any payment of fees for a hearing shall be
refunded by the clerk of the circuit court if the master verifies
that such hearing was not held, upon the request of the person
paying such fees.
(k) (b) Fees for hearings before a master shall be taxed ascourt costs, which costs may be assessed against either party or
apportioned between the parties, in the discretion of the master.
The assessment of court costs shall be made at the conclusion of
the hearing and included as findings in each case of a master's
recommended order. The fees for hearings before a master shall
be as follows:
(1) For an action to establish an order of support, fifty
dollars;
(2) For an action to establish paternity, one hundred
dollars;
(3) For a motion for pendente lite temporary relief
affecting custody, visitation, child support or spousal support,
fifty dollars;
(4) For a petition for modification of an order involving
child custody, child visitation, child support or spousal
support, fifty dollars:
Provided,
That if the matter is
contested, the fee shall be fifty dollars for the first hour or
any portion thereof, and thirty dollars per hour for each
subsequent hour or any portion thereof;
(5) For an uncontested divorce action, fifty dollars;
(6) For a proceeding for the enforcement of an order, fifty
dollars:
Provided,
That if the matter is contested, the fee
shall be fifty dollars for the first hour or any portion thereof,
and thirty dollars per hour for each subsequent hour or any
portion thereof; and
(7) For a contested divorce action matured for final
hearing, fifty dollars for the first hour or any portion thereof,
and thirty dollars per hour for each subsequent hour or anyportion thereof.
(8) For an action to establish custody of a minor child,
fifty dollars:
Provided,
That if the matter is contested, the
fee shall be fifty dollars for the first hour or any portion
thereof, and thirty dollars per hour for each subsequent hour or
any portion thereof; and
(9) For an action to establish visitation with a minor
child, fifty dollars:
Provided,
That if the matter is contested,
the fee shall be fifty dollars for the first hour or any portion
thereof, and thirty dollars per hour for each subsequent hour or
any portion thereof.
§48A-4-8. Hearings before a master.
(l) (a) Persons entitled to notice of a master's hearing
shall be timely informed of:?
(1) The time, place and nature of the hearing;
(2) The legal authority and jurisdiction under which the
hearing is to be held; and
(3) The matters of fact and law asserted.
(m) (b) The master shall give all interested parties
opportunity for the submission and consideration of facts,
arguments, offers of settlement or proposals of adjustment when
time, the nature of the proceedings and the public interest
permit. To the extent that the parties are unable to settle or
compromise a controversy by consent, the master shall provide the
parties a hearing and make a recommended order in accordance with
the provisions of sections two and four nine and thirteen of this
article.
(n) (c) The master who presides at the reception of evidencepursuant to section two nine of this article shall prepare the
default order or make and enter the pendente lite temporary order
provided for in section three twelve of this article, or make the
recommended order required by section four thirteen of this
article, as the case may be. Except to the extent required for
disposition of ex parte matters as authorized by this chapter, a
master may not consult a person or party on a fact in issue,
unless on notice and opportunity for all parties to participate;
nor shall the master attempt to supervise or direct an employee
or agent engaged in the performance of investigative or
prosecuting functions for a prosecuting attorney, the division of
human services or any other agency or political subdivision of
this state.
{48A-4-2. §48A-4-9. Hearing procedures.
(a) This section applies, according to the provisions
thereof, to hearings required by section one six of this article
to be conducted in accordance with this section.
(b) A master appointed under to whom a matter is referred
pursuant to the provisions of section one six of this article
shall preside at the taking of evidence. The functions of the
master shall be conducted in an impartial manner. A master may
at any time disqualify himself or herself. Upon such
disqualification, or upon the filing in good faith of a timely
and sufficient affidavit of personal bias or other
disqualification of a master, the circuit court or the chief
judge thereof may appoint a temporary master or the circuit court
may receive the evidence and determine the matter.
(c) A master presiding at a hearing under the provisions ofthis chapter may:
(1) Administer oaths and affirmations, compel the attendance
of witnesses and the production of documents, examine witnesses
and parties, and otherwise take testimony, receive relevant
evidence and establish a record;
(2) Rule on motions for discovery and offers of proof;
(3) Take depositions or have depositions taken when the ends
of justice may be served;
(4) Regulate the course of the hearing;
(5) Hold pre-trial conferences for the settlement or
simplification of issues and enter time frame orders which shall
include, but not be limited to, discovery cut-offs, exchange of
witness lists, and agreements on stipulations, contested issues,
and hearing schedules;
(6) Make and enter temporary orders on procedural matters,
including, but not limited to, substitution of counsel, amendment
of pleadings, requests for hearings and other similar matters;
(7) Accept voluntary acknowledgements of support liability
or paternity;
(8) Accept stipulated agreements;
(9) Prepare default orders for entry if the person against
whom an action is brought does not respond to notice or process
within the time required;
(10) Recommend orders in accordance with the provisions of
section four thirteen of this article;
(11) Require the issuance of subpoenas and subpoenas duces
tecum, issue writs of attachment, hold hearings in aid of
execution and propound interrogatories in aid of execution, andfix bond or other security in connection with an action for
enforcement in a child or spousal support matter; and
(12) Take other action authorized by general order of the
circuit court or the chief judge thereof consistent with the
provisions of this chapter.
(d) Except as otherwise provided by law, a moving party has
the burden of proof on a particular question presented. A party
is entitled to present his or her case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct
such cross-examination as may be required for a full and true
disclosure of the facts. In determining claims for money due or
the amount of payments to be made, when a party will not be
prejudiced thereby, the master may adopt procedures for the
submission of all or part of the evidence in written form.
(e) Hearings before a master shall be recorded
electronically. When requested by either of the parties, a
master shall provide a duplicate copy of the tape or other
electronic recording medium of each hearing held. The party
requesting the copy shall pay to the master an amount equal to
the actual cost of the tape or other medium or the sum of five
dollars, whichever is greater. Unless otherwise ordered by the
court, the preparation of a transcript and the payment of the
cost thereof shall be the responsibility of the party requesting
the transcript.
(f) The recording of the hearing or the transcript of
testimony, as the case may be, and the exhibits, together with
all papers and requests filed in the proceeding, constitute the
exclusive record for recommending an order in accordance withsection four thirteen of this article, and on payment of lawfully
prescribed costs, shall be made available to the parties. When
a master's final recommended order rests on official notice of a
material fact not appearing in the evidence in the record, a
party is entitled, on timely request, to an opportunity to show
the contrary.
{48a-4-2a. §48A-4-10. Acts or failures to act in the physical
presence of family law masters.
(a) If in the master's presence a party, witness or other
person conducts himself in a manner which would constitute direct
contempt if committed in the presence of a circuit judge, the
master shall halt any proceeding which may be in progress and
inform the person that their conduct constitutes direct contempt
and give notice of the procedures and possible dispositions which
may result.
(b) (1) If a circuit judge is sitting in the same county in
which the conduct occurred, or is otherwise available, the
alleged contemnor shall be immediately taken before the circuit
judge. Disposition of these matters shall be given priority over
any other matters, with the exception of a criminal trial in
progress.
(2) If a circuit judge is unavailable then the master shall
schedule a hearing before the circuit court and the alleged
contemnor shall be advised, on the record, of the time and place
of the hearing. The master may elect, in his or her discretion,
to obtain a warrant for the arrest of the alleged contemnor from
the magistrate court on the charge of contempt with the matter to
be heard by the circuit court.
(c) At the hearing, the circuit court shall be advised of
the charges, receive the evidence and rule in the same manner as
would be appropriate if the conduct complained of occurred in the
physical presence of a circuit judge. In addition to other
sanctions the court may award attorney's fees and costs.
(d) Prior to or during any hearing before a master, if the
master determines that a situation exists which warrants the
presence of security during such hearing, the master shall inform
the sheriff of the need for such security and the time and place
of the hearing, and the sheriff shall assign a deputy to act as
bailiff during such hearing.
§48A-4-11. Prompt hearing of temporary motions for support,
child custody and protection.
Every family law master shall establish a regular docket or
other means for hearing urgent motions regarding child support,
child custody or visitation, protection from family violence or
abuse, possession of the home or other urgent matter.
{48a-4-3. §48A-4-12. Default orders; temporary orders.
(a) In any proceeding in which the amount of support is to
be established, if the obligor has been served with notice of a
hearing before a master and does not enter an appearance, the
family law master shall prepare a default order for entry by the
circuit judge, which order shall fix fixes support in an amount
at least equal to the amount paid as public assistance under
section four, article three, chapter nine of this code, if the
obligee or custodian receives public assistance, or in an amount
at least equal to the amount that would be paid as public
assistance if the obligee or custodian were eligible to receivepublic assistance, unless the family law master has sufficient
information in the record so as to determine the amount to be
fixed in accordance with the child support guidelines.
(b) A master who presides at a hearing under the provisions
of section two nine of this article is authorized to make and
enter pendente lite temporary support and custody orders which,
when entered, shall be enforceable and have the same force and
effect under law as pendente lite temporary support orders made
and entered by a judge of the circuit court, unless and until
such support orders are modified, vacated, or superseded by an
order of the circuit court. A temporary order may not be subject
to a petition for review or appeal by the circuit court except as
is permitted by an extraordinary writ.
(c) All orders prepared by a master shall provide for
automatic withholding from income of the obligor if arrearages in
support occur, if no such provision already exists in prior
orders or if the existing order as it relates to withholding is
not in compliance with applicable law.
§48A-4-13. Recommended orders.
(a) This section applies, according to the provisions
thereof, when a hearing has been conducted in accordance with
section two nine of this article.
(b) A master who has presided at the hearing pursuant to
section two nine of this article shall recommend an order and
findings of fact and conclusions of law to the circuit court
within ten days following the close of the evidence. Before the
recommended order is made, the master may, in his discretion,
require the parties to submit proposed findings and conclusionsand the supporting reasons therefor.
(c) The master shall sign and send the recommended order,
any separate document containing the findings of fact and
conclusions of law and the notice of recommended order as set
forth in section four-a fourteen of this article to the attorney
for each party, or if a party is unrepresented, directly to the
party, in the same manner as pleadings subsequent to an original
complaint are served in accordance with rule five of the rules of
civil procedure for trial courts of record. The master shall
file the recommended order and the record in the office of the
circuit clerk prior to the expiration of the ten-day period
during which exceptions can be filed.
(d) A copy of any supporting documents or a summary of
supporting documents, prepared or used by the children's advocate
or an employee of the child advocate office, and all documents
introduced into evidence before the master, shall be made
available to the attorney for each party and to each of the
parties before the circuit court takes any action on the
recommendation.
(e) All recommended orders of the master shall include the
statement of findings of fact and conclusions of law, and the
reasons or basis therefor, on all the material issues of fact,
law, or discretion presented on the record; and the appropriate
sanction, relief, or denial thereof.
§48A-4-14. Form of notice of recommended order.
IN THE CIRCUIT COURT OF COUNTY, WEST
VIRGINIA,
Plaintiff,
vs.CIVIL ACTION NO
Defendant.
NOTICE OF RECOMMENDED ORDER
The undersigned family law master hereby recommends the
enclosed order to the circuit court of county.
If you wish to file objections to this decision, you must file a
written petition in accordance with the provisions of chapter
48A-4-8 48A-4-18 of the West Virginia Code within a period of ten
days ending on , 1990, 19 , with the
circuit clerk of county and send a copy to
counsel for the opposing party or if the party is unrepresented
to the party, and to the office of the family law master located
at .
If no written petition for review is filed by
, 1990, 19 , then the recommended order will be sent to the
circuit judge assigned to this case. A recommended order which
is not signed by a party, or counsel for a party who is
represented, by the end of the ten-day period will still be sent
to the circuit judge for entry.
YOUR FAILURE TO SIGN THE ORDER AS HAVING BEEN INSPECTED
OR APPROVED WILL NOT DELAY THE ENTRY THEREOF.
Family Law Master
{48A-4-5. §48A-4-15. Orders to be entered by circuit court
exclusively.
With the exception of pendente lite temporary support and
custody orders entered by a master in accordance with the
provisions of section three of this article, and procedural
orders entered pursuant to the provisions of section two of this
article, and temporary orders entered in accordance with the
provisions of section twenty-two, article two, chapter
forty-eight of this code, an order imposing sanctions or granting
or denying relief may not be made and entered except by a circuit
court within the jurisdiction of said court and as authorized by
law.
{48A-4-6. §48A-4-16. Circuit court review of master's action or
recommended order.
(a) A person who alleges that he or she will be adversely
affected or aggrieved by a recommended order of a master is
entitled to review of the proceedings. The recommended order of
the master is the subject of review by the circuit court, and a
procedural action or ruling not otherwise directly reviewable is
subject to review only upon the review of the recommended order
by the circuit court.
(b) When a master's action or recommended order is presented
to the circuit court for review upon the petition of any party
and such action or recommended order is subject to review, the
family law master or circuit court shall enter a temporary
support and custody order or otherwise provide for relief during
the pendency of the review proceedings upon any party's request
therefor or on the master's or court's own motion if the family
law master or court deems such order or other relief to be fair
and equitable.
{48A-4-7. §48A-4-17. Procedure for review by circuit court.
(a) Within ten days after the master's recommended order,
any separate document with findings of fact and conclusions of
law and the notice of recommended order is served on the parties
as set forth in section four thirteen of this article, any party
may file exceptions thereto in a petition requesting that the
action by the master be reviewed by the circuit court. Failure
to timely file the petition shall constitute a waiver of
exceptions, unless the petitioner, prior to the expiration of the
ten-day period, moves for and is granted an extension of time
from the circuit court. At the time of filing the petition, acopy of the petition for review shall be served on all parties to
the proceeding, in the same manner as pleadings subsequent to an
original complaint are served under rule five of the rules of
civil procedure for trial courts of record.
(b) Not more than ten days after the filing of the petition
for review, a responding party wishing to file a cross-petition
that would otherwise be untimely may file, with proof of service
on all parties, a cross-petition for review.
{48A-4-8. §48A-4-18. Form of petition for review.
(a) The petition for review shall contain a list of
exceptions in the form of questions presented for review,
expressed in the terms and circumstances of the case, designating
and pointing out the errors complained of with reasonable
certainty, so as to direct the attention of the circuit court
specifically to them, but without unnecessary detail. The
statement of questions should be short and concise and should not
be argumentative or repetitious. The statement of a question
presented will be deemed to comprise every subsidiary question
fairly included therein. Only the questions set forth in the
petition or fairly included therein will be considered by the
court. Parts of the master's report not excepted to are admitted
to be correct, not only as regards the principles, but as to the
evidence, upon which they are founded.
(b) The circuit court may require, or a party may choose to
submit with the petition for review a brief in support thereof,
which should include a direct and concise argument amplifying the
reasons relied upon for modification of the master's recommended
order and citing the constitutional provisions, statutes andregulations which are applicable.
{48A-4-9. §48A-4-19. Answer in opposition to a petition for
review.
(a) A respondent shall have ten days after the filing of a
petition within which to file an answer disclosing any matter or
ground why the recommended order of the master should not be
modified by the court in the manner sought by the petition. The
judge may require, or a party may choose to submit with the
answer, a brief in opposition to the petition, which should
include a direct and concise argument in support of the master's
recommended order and citing the constitutional provisions,
statutes and regulations which are applicable.
(b) No motion by a respondent to dismiss a petition for
review will be received.
(c) Any party may file a supplemental brief at any time
while a petition for review is pending, calling attention to new
cases or legislation or other intervening matter not available at
the time of the party's last filing.
{48A-4-10. §48A-4-20. Circuit court review of master's
recommended order.
(a) The circuit court shall proceed to a review of the
recommended order of the master when:
(1) No petition has been filed within the time allowed, or
the parties have expressly waived the right to file a petition;
(2) A petition and an answer in opposition have been filed,
or the time for filing an answer in opposition has expired, or
the parties have expressly waived the right to file an answer in
opposition, as the case may be.
(b) To the extent necessary for decision and when presented,
the circuit court shall decide all relevant questions of law,
interpret constitutional and statutory provisions, and determine
the appropriateness of the terms of the recommended order of the
master.
(c) The circuit court shall examine the recommended order
of the master, along with the findings and conclusions of the
master, and may enter the recommended order, may recommit the
case, with instructions, for further hearing before the master or
may, in its discretion, enter an order upon different terms, as
the ends of justice may require. The circuit court shall not
follow the recommendation, findings, and conclusions of a master
found to be:
(1) Arbitrary, capricious, an abuse of discretion, or
otherwise not in conformance with the law;
(2) Contrary to constitutional right, power, privilege, or
immunity;
(3) In excess of statutory jurisdiction, authority, or
limitations, or short of statutory right;
(4) Without observance of procedure required by law;
(5) Unsupported by substantial evidence; or
(6) Unwarranted by the facts.
(d) In making its determinations under this section, the
circuit court shall review the whole record or those parts of it
cited by a party. If the circuit court finds that a master's
recommended order is deficient as to matters which might be
affected by evidence not considered or inadequately developed in
the master's recommended order, the court may recommit therecommended order to the master, with instructions indicating the
court's opinion, or the circuit court may proceed to take such
evidence without recommitting the matter.
(e) The order of the circuit court entered pursuant to the
provisions of subsection (d) of this section shall be entered not
later than ten days after the time for filing pleadings or briefs
has expired or after the filing of a notice or notices waiving
the right to file such pleading or brief.
(f) If a case is recommitted by the circuit court, the
master shall retry the matter within twenty days.
(g) At the time a case is recommitted, the circuit court
shall enter appropriate pendente lite temporary orders awarding
custody, visitation, child support, spousal support or such other
temporary relief as the circumstances of the parties may require.
§48A-4-21. County Commissions required to furnish offices for
the family law master.
Each county commission of this state has a duty to provide
premises for the family law master which are adequate for the
conduct of the duties required of such master under the
provisions of this chapter. The administrative office of the
supreme court of appeals shall pay to the county commission a
reasonable amount as rent for the premises furnished by the
county commission to the family law master and his or her staff
pursuant to the provisions of this section.
§48A-4-22. Budget of the family law master system.
The budget for the operation of the family law master system
shall be included in the appropriation for the supreme court of
appeals. All agencies or entities receiving federal matchingfunds for the services of family law masters and their staff,
including, but not limited to, the administrator of the child
advocate office and the secretary of the department of health and
human resources, shall enter into an agreement with the
administrative office of the supreme court of appeals whereby all
federal matching funds paid to and received by said agencies or
entities for the activities by family law masters and staff of
the program shall be paid to the administrative office of the
supreme court of appeals. Said agreement shall provide for
advance payments to be made to the administrative office of the
supreme court of appeals by such agencies, from available federal
funds pursuant to Title IV-D of the Social Security Act and in
accordance with federal regulations.
{48A-2-22. §48A-4-23. Family Law Masters Fund.
The child advocate office and the clerks of the circuit
courts shall, on or before the last day of each month, transmit
all fees and costs received for the services of the office of the
family law master under this chapter to the state treasurer for
deposit in the state treasury to the credit of a special revenue
fund to be known as the "family law masters fund", which is
hereby created. All moneys collected and received under this
chapter and paid into the state treasury and credited to the
"family law masters fund" shall be used by the administrative
office of the supreme court of appeals solely for paying the
costs associated with the duties imposed upon the family law
masters under the provisions of this chapter. which require
activities by the masters which are not subject to being matched
with federal funds or subject to reimbursement by the federalgovernment, and requisitions shall be drawn upon the fund only
for such purposes. Such moneys shall not be treated by the
auditor and treasurer as part of the general revenue of the
state.
§48A-4-24. Establishment of performance evaluation system for
family law masters.
(a) The supreme court of appeals shall develop a
performance evaluation system for family law masters which will
provide for periodic evaluations of the job performance of such
family law masters. Such periodic evaluations shall be conducted
not less than annually. The system shall require the joint
participation of the supervising officer of the administrative
office of the supreme court of appeals and each law master in
developing performance standards for the law master, with final
authority for establishing such standards resting in the director
of the administrative office of the supreme court of appeals.
Results of performance evaluations shall be used for training,
reassigning, and recommending removal or reappointment of a
family law master.
(b) Under such rules as the supreme court of appeals may
prescribe, the performance evaluation system shall provide for
the following:
(1) Five levels of summary performance ratings, consisting
of two levels which are above the fully successful level, a fully
successful level, and two levels which are below the fully
successful level;
(2) The establishment, in writing, of the critical elements
of each law master's position and the performance standards forthe fully successful level for each such element which will, to
the maximum extent feasible, permit accurate evaluation of job
performance on the basis of criteria related to the law master
position in question;
(3) Communicating, at the beginning of each evaluation
period, in writing, to each family law master the performance
standards and critical elements of the law master's position;
(4) Evaluating each family law master during the evaluation
period on the basis of such standards;
(5) Establishing procedures under which any law master
whose performance has been rated below fully successful shall be
given a specific remedial plan which is reasonable, realistic and
attainable (which shall include, along with other matters which
the supreme court of appeals may consider appropriate, a
description of the types of improvements that the law master must
demonstrate to attain a fully successful level of performance)
and a reasonable period of time to attain at least the fully
successful level; and
(6) Reassigning or recommending removal of any law master
who fails to attain at least the fully successful level once
afforded the period of improvement pursuant to subdivision (5) of
this subsection.
(c) Notwithstanding the provisions of subsection (a) and
subdivisions (b)(2), (b)(3), and (b)(4) of this section, the
performance appraisal system may utilize a written statement of
the work objectives of a family law master to establish
performance requirements related to the position and to evaluate
job performance against such requirements. Such statement ofwork objectives shall be jointly developed by the supervising
officer and the law master, and may be used in lieu of, or in
addition to, critical elements and performance standards.
(d) An evaluation of performance under this section shall
take into account individual performance which may involve not
only quantitative factors, but because of the professional
judgment required of family law masters in the exercise of their
duties, such performance evaluation shall also consider
qualitative measurements of desired performance. The evaluation
shall be based upon, but not limited to, (1) the law master's
productivity, cost efficiency and timeliness of performance; (2)
appropriate input from the members of the bar of the area
affected and consultation with the particular circuit judge or
judges whose jurisdiction is served by the office of the family
law master in question; and (3) other indications of the
effectiveness and quality of the work or service performed by the
law master and the employees for whom the law master is
responsible.
(e) A review and reconsideration of a performance
evaluation made pursuant to this section may be made by the
director of the administrative office of the supreme court of
appeals. A performance evaluation shall not be appealed or
challenged outside the administrative office of the supreme court
of appeals:
Provided,
That prior to any recommendation by the
supreme court of appeals as to reassignment or removal of a
master, or prior to a decision by the court not to recommend a
master for reappointment, the master shall be afforded the
opportunity to file with the court a written response to theperformance evaluation or evaluations which are the basis for the
recommendation or decision.
(f) Nothing contained in this section shall be deemed to
create any tenured status for family law masters employed under
this article, to create any property interest or other vested
right to continued employment as a family law master or to confer
upon a family law master any rights under due process of law in
the event such law master is reassigned, removed or not
recommended for reappointment. No rules established pursuant to
the provisions of this section or understandings reached between
the administrative office of the supreme court of appeals and a
law master, which might otherwise be construed to confer certain
benefits, shall support claims of entitlement to those benefits.
§48A-4-25. Continuation of family law masters system.
After having conducted a performance and fiscal audit
through its joint committee on government operations, pursuant to
section nine, article ten, chapter four of this code, the
Legislature hereby finds and declares the family law masters
system should be continued and reestablished. Accordingly,
notwithstanding the provisions of section four, article ten,
chapter four of this code, the family law masters system shall
continue to exist until the first day of July, one thousand nine
hundred ninety-three ninety-four, so that the joint committee on
government operations may monitor compliance by the family law
masters system with the recommendations of the performance audit.
ARTICLE 6. ESTABLISHMENT OF PATERNITY.
§48A-6-1. Paternity proceedings.
(a) A civil action to establish the paternity of a child andto obtain an order of support for the child may be instituted, by
verified complaint, in the circuit court of the county where the
plaintiff, the defendant or the child resides. Such action may
be brought by any of the following persons:
(a) A paternity proceeding may be instituted, by verified
complaint, in the circuit court of the county where the
plaintiff, the defendant or the child resides.
(b) A "paternity proceeding" is a summary proceeding,
equitable in nature and within the domestic relations
jurisdiction of the courts, wherein a circuit court upon the
petition of the state or another proper party, may intervene to
determine and protect the respective personal rights of a child
for whom paternity has not been lawfully established, of the
mother of such child, and of the putative father of such child.
(c) The sufficiency of the statement of the material
allegations in the complaint set forth as grounds for relief and
the grant or denial of the relief prayed for in a particular case
shall rest in the sound discretion of the court, to be exercised
by the court according to the circumstances and exigencies of the
case, having due regard for precedent and the provisions of the
statutory law of this state.
(d) A decree or order made and entered by a court in a
paternity proceeding shall include a determination of the filial
relationship, if any, which exists between a child and his or her
putative father, and, if such relationship is established, shall
resolve dependent claims arising from family rights and
obligations attendant to such filial relationship.
(e) A paternity proceeding may be brought by any of thefollowing persons:
(1) An unmarried woman with physical or legal custody of a
child to whom she gave birth;
(2) A married woman with physical or legal custody of a
child to whom she gave birth, if the complaint alleges that:
(A) Such married woman lived separate and apart from her
husband preceding the birth of the child;
(B) Such married woman did not cohabit with her husband at
any time during such separation and that such separation has
continued without interruption; and
(C) The defendant, rather than her husband, is the father
of the child.
(3) Any person, including the The state of West Virginia or
the department of health and human resources, or the child
advocate office on its behalf, who is not the mother of the
child, but who has physical or legal custody of such child; when
such proceeding is deemed necessary to prevent such child from
being or becoming a public charge;
(4) Any person who is not the mother of the child, but who
has physical or legal custody of such child;
(4) (5) The guardian or committee of such child;
(5) (6) The next friend of such child when the child is a
minor;
(6) (7) By such child in his own right at any time after the
child's eighteenth birthday but prior to the child's twenty-first
birthday; or
(7) (8) A man purporting to be the father of a child born
out of wedlock, when there has been no prior judicialdetermination of paternity.
(b) (f) A person who has sexual intercourse in this state
submits to the jurisdiction of the courts of this state for an
action a proceeding brought under this article with respect to a
child who was conceived by that act of intercourse. Service of
process may be perfected according to the rules of civil
procedure.
(c) (g) If the person against whom the action proceeding is
brought has failed to plead or otherwise defend the action after
proper service has been obtained, judgment by default may be
issued by the court as provided by the rules of civil procedure.
§48A-6-2. Statute of limitations; prior statute of limitations
not a bar to action under this article; effect of
prior adjudication between husband and wife.
(a) Except for an action a proceeding brought by a child in
his or her own right under the provisions of subdivision (6) (7),
subsection (a) (e), section one of this article, an action a
proceeding for the establishment of the paternity of a child
shall be brought prior to such child's eighteenth birthday.
(b) An action A proceeding to establish paternity under the
provisions of this article may be brought by or on behalf of a
child notwithstanding the fact that, prior to the effective date
of this section, an action to establish paternity may have been
barred by a prior statute of limitations set forth in this code
or otherwise provided for by law.
(c) An action A proceeding to establish paternity under the
provisions of this article may be brought for any child who was
not yet eighteen years of age on the sixteenth day of August, onethousand nine hundred eighty-four, regardless of the current age.
(d) An action A proceeding to establish paternity under the
provisions of this article may be brought for any child who was
not yet eighteen years of age on the sixteenth day of August, one
thousand nine hundred eighty-four, and for whom a paternity
action was brought but dismissed because a statute of limitations
of less than eighteen years was then in effect.
(e) Any other provision of law to the contrary
notwithstanding, when a husband and wife or former husband and
wife, in an action for divorce or an action to obtain a support
order, have litigated the issue of the paternity of a child
conceived during their marriage to the end that the husband has
been adjudged not to be the father of such child, such prior
adjudication of the issue of paternity between the husband and
the wife shall not preclude the mother of such child from
bringing an action a proceeding against another person to
establish paternity under the provisions of this article.
§48A-6-4. Establishment of paternity and duty of support.
If the defendant, by verified responsive pleading shall
admit that the man is the father of the child and owes a duty of
support, or if after a trial on the merits, the court or jury
shall find, by clear and convincing evidence that the man is the
father of the child, the court shall order support in accordance
with the provisions of this chapter.
§48A-6-5. Representation of parties.
(a) The children's advocate of the county where the action
proceeding under this section is brought shall represent the
state of West Virginia and shall litigate the action in the bestinterests of the child although the action is commenced in the
name of a plaintiff listed in section one of this article.
(b) The defendant shall be advised of his right to counsel.
In the event he files an affidavit that he is a poor person
within the meaning of section one, article two, chapter fifty-
nine of this code, counsel shall be appointed to represent him.
The service and expenses of counsel shall be paid in accordance
with the provisions of article twenty-one, chapter twenty-nine of
this code:
Provided,
That the court shall make a finding of
eligibility for appointed counsel in accordance with the
requirements of said article and, if the person qualifies, any
blood or tissue tests ordered to be taken shall be paid as part
of the costs of the proceeding.
(c) The children's advocate shall litigate the action only
to the extent of establishing paternity and establishing and
enforcing a child support order. issue of paternity and, if
paternity is established, shall also litigate all dependent
claims arising from family rights and obligations attendant to
the filial relationship, including the establishment and
enforcement of a child support order and the determination of
custody and visitation.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-15. Juvenile probation officers; appointment; salary;
facilities; expenses; duties; powers.
(a) The commissioner of the state department shall, with the
approval of the court, designate an employee of the state
department to act as a juvenile probation officer, and whenrequired one or more employees of the state department to act as
assistant to such probation officer, and such employee or
employees, when so assigned, shall perform their duties under the
sole supervision and control of the court. There shall be at
least one such juvenile probation officer assigned to each
county, but a juvenile probation officer may be assigned to more
than one county. A juvenile probation officer shall not be
considered to be a law-enforcement official under any provision
of this chapter.
The foregoing provisions of this section shall not be
construed as abrogating or affecting in any way the power and
authority vested in any court, subject to the approval of and in
accordance with the rules of the supreme court of appeals, to
select, supervise and discharge its own probation officers and
assistants thereto.
(a) Each circuit court, subject to the approval of the
supreme court of appeals and in accordance with the rules of the
supreme court of appeals, shall appoint one or more juvenile
probation officers and clerical assistants for the circuit. A
probation officer or clerical assistant shall not be related by
consanguinity or affinity to any judge of the appointing court.
The salary for juvenile probation officers and clerical
assistants shall be determined and fixed by the supreme court of
appeals. All expenses and costs incurred by the juvenile
probation officers and their staff shall be paid by the supreme
court of appeals in accordance with its rules. The county
commission of each county shall provide adequate office
facilities for juvenile probation officers and their staff. Allequipment and supplies required by juvenile probation officers
and their staff shall be provided by the supreme court of
appeals.
A juvenile probation officer shall not be considered a law-
enforcement official under any provision of this chapter.
(b) The clerk of a court shall notify, if practicable, the
chief probation officer of the county, or his or her designee,
when a child is brought before the court or judge. When
notified, or if the probation officer otherwise obtains knowledge
of such fact, he or one of his or her assistants shall:
(1) Make investigation of the case;
(2) Furnish such information and assistance as the court or
judge may require; and
(3) Take charge of the child before and after the trial, as
may be directed by the court or judge.
§49-5B-4. Responsibilities of the department of health and human
resources.
(a) The department of health and human resources is
empowered to establish, and shall establish, subject to the
limits of funds available or otherwise appropriated therefor,
programs and services designed to prevent juvenile delinquency,
to divert juveniles from the juvenile justice system, to provide
community-based alternatives to juvenile detention and
correctional facilities, and to encourage a diversity of
alternatives within the juvenile justice system. The
development, maintenance and expansion of programs and services
may include, but not be limited to, the following:
(1) Community-based programs and services for the preventionand treatment of juvenile delinquency through the development of
foster-care and shelter-care homes, group homes, halfway houses,
homemaker and home health services, twenty-four hour intake
screening, volunteer and crisis home programs, day treatment, and
home probation, and any other designated community-based
diagnostic, treatment or rehabilitative service;
(2) Community-based programs and services to work with
parents and other family members to maintain and strengthen the
family unit so that the juvenile may be retained in his home;
(3) Youth service bureaus and other community-based programs
to divert youth from the juvenile court or to support, counsel,
or provide work and recreational opportunities for delinquents
and other youth to help prevent delinquency;
(4) Projects designed to develop and implement programs
stressing advocacy activities aimed at improving services for and
protecting rights of youth impacted by the juvenile justice
system;
(5) Educational programs or supportive services designed to
keep delinquents, and to encourage other youth to remain, in
elementary and secondary schools or in alternative learning
situations;
(6) Expanded use of probation and recruitment and training
of probation officers, other professional and paraprofessional
personnel and volunteers to work effectively with youth;
(7) Youth initiated programs and outreach programs designed
to assist youth who otherwise would not be reached by traditional
youth assistance programs:
(8) A statewide program designed to reduce the number ofcommitments of juveniles to any form of juvenile facility as a
percentage of the state juvenile population, to increase the use
of nonsecure community-based facilities as a percentage of total
commitments to juvenile facilities, and to discourage the use of
secure incarceration and detention.
(b) The department of health and human resources shall
establish, within the funds available, an individualized program
of rehabilitation for each accused juvenile offender referred to
the department after being allowed an improvement period by the
juvenile court, and for each adjudicated juvenile offender who,
after adjudication, is referred to the department for
investigation or treatment or whose custody is vested in the
department. Such individualized program of rehabilitation shall
take into account the programs and services to be provided by
other public or private agencies or personnel which are available
in the community to deal with the circumstances of the particular
child. Such individualized program of rehabilitation shall be
furnished to the juvenile court and shall be available to counsel
for the child; it may be modified from time to time at the
direction of the department or by order of the juvenile court.
The department may develop an individualized program of
rehabilitation for any child referred for noncustodial counseling
under section five, article three of this chapter, for any child
receiving counsel and advice under section three-a, article five
of this chapter, or for any other child upon the request of a
public or private agency.
(c) The department of health and human resources is
authorized to enter into cooperative arrangements and agreementswith private agencies or with agencies of the state and its
political subdivisions to effectuate the purpose of this article.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 1. COURTS AND OFFICERS.
§50-1-8. Magistrate court clerks; salaries; duties; duties of
circuit clerk.
In each county having three or more magistrates the judge of
the circuit court or the chief judge thereof, if there is more
than one judge of the circuit court, shall appoint a magistrate
court clerk who shall serve at the will and pleasure of such
judge. In all other counties such judge may appoint a magistrate
court clerk or may by rule require the duties of the magistrate
court clerk to be performed by the clerk of the circuit court, in
which event such circuit court clerk shall be entitled to
additional compensation in the amount of two thousand five
hundred dollars per year. The magistrate court clerk shall serve
at the will and pleasure of the circuit judge. In all other
counties the duties of the magistrate court clerk shall be
performed by the clerk of the circuit court. The county
commission shall be entitled to additional operating funds in the
amount of ten thousand hundred dollars per year to offset
expenses incurred by the office of the circuit clerk for
performing services for the magistrate court:
Provided,
That in
counties with more than one thousand filings but fewer than two
thousand filings per magistrate, the monies paid to the county
commission for additional operating expenses for the office of
the circuit clerk shall be fifteen thousand dollars and in
counties with an excess of two thousand filings per magistrate,the monies paid to the county commission for additional operating
expenses shall be twenty thousand dollars:
Provided, however,
That counties which have two magistrates and which maintain a
position of magistrate court clerk on the first day of July, one
thousand nine hundred ninety-three, shall continue the position
until the position becomes vacant due to attrition.
Magistrate court clerks shall be paid a monthly salary by
the state. Magistrate court clerks serving magistrates who serve
less than ten thousand in population shall be paid up to one
thousand two hundred forty-one dollars per month and magistrate
court clerks serving magistrates who serve ten thousand or more
in population shall be paid up to one thousand six hundred fifty
dollars per month:
Provided,
That on and after the first day of
January, one thousand nine hundred ninety-two, magistrate court
clerks serving magistrates who serve less than ten thousand in
population shall be paid up to one thousand three hundred twenty-
five dollars per month and magistrate court clerks serving
magistrates who serve ten thousand or more in population shall be
paid up to one thousand seven hundred thirty-four dollars per
month:
Provided, however,
That on and after the first day of
January, one thousand nine hundred ninety-three, magistrate court
clerks serving magistrates who serve less than eight thousand
five hundred in population shall be paid up to one thousand four
hundred fifty dollars per month and magistrate court clerks
serving magistrates who serve eight thousand five hundred or more
in population shall be paid up to one thousand eight hundred
fifty-nine dollars per month:
Provided further,
That after the
effective date of this section, any general salary increasegranted to all state employees, whose salaries are not set by
statute, expressed as a percentage increase or an "across-the-
board" increase, may also be granted to magistrate court clerks.
For the purpose of determining the population served by each
magistrate, the number of magistrates authorized for each county
shall be divided into the population of each county. The salary
of the magistrate court clerk shall be established by the judge
of the circuit court, or the chief judge thereof if there is more
than one judge of the circuit court, within the limits set forth
in this section.
In addition to other duties as may be imposed by the
provisions of this chapter or by the rules of the supreme court
of appeals or the judge of the circuit court, or the chief judge
thereof if there is more than one judge of the circuit court, it
is the duty of the magistrate court clerk or the clerk of the
circuit court acting in that capacity to establish and maintain
appropriate dockets and records in a centralized system for the
magistrate court, to assist in the preparation of such reports as
may be required of the court and to carry out on behalf of the
magistrates or chief magistrate if a chief magistrate is
appointed, the administrative duties of the court.
The magistrate court clerk or, if there is no magistrate
court clerk in the county, the clerk of the circuit court has the
authority to issue all manner of civil process and to require the
enforcement of subpoenas and subpoenas duces tecum in magistrate
court.
ARTICLE 2. JURISDICTION AND AUTHORITY.
§50-2-3. Criminal jurisdiction; limitations on bail.
In addition to jurisdiction granted elsewhere to magistrate
courts or a justice of the peace, magistrate courts shall have
jurisdiction of all misdemeanor offenses committed in the county
and to conduct preliminary examinations on warrants charging
felonies committed within the county. and, upon order of referral
from the circuit courts, to conduct preliminary examinations on
probation violations, which examinations shall be conducted
without delay and in all events not later than thirty days from
the date any probation violation petition or motion has been
filed in circuit court. A magistrate shall have the authority to
issued arrest warrants in all criminal matters, to issued
warrants for search and seizure and, except in cases involving
capital offenses, to set and admit to bail:
Provided,
That in
cases punishable only by the fine such bail or recognizance shall
not exceed the maximum amount of the fine and applicable court
costs permitted or authorized by statute to be imposed in the
event of conviction.
§50-2-3a. Sentencing; probation.
(a) In addition to sentencing authority granted elsewhere to
magistrate courts, magistrate courts have authority to suspend
sentences and impose periods of unsupervised probation for a
period not to exceed two years, except for offenses for which the
penalty includes mandatory incarceration.
(b) Release on probation shall be upon the following
conditions:
(1) That the probationer shall not, during the term of his
probation, violate any criminal law of this state, any other
state of the United States or the United States;
(2) That he shall make reasonable restitution if financially
able to do so, in whole or in any part, immediately or within the
period of probation;
(3) That he shall pay any fine and the costs assessed as the
court may direct.
(c) On motion by the prosecuting attorney, and upon a
hearing and a finding that reasonable cause exists to the believe
that a violation of any condition of probation has occurred, the
magistrate may revoke probation and order execution of the
sentence originally imposed.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-2a. Payment of fines by credit card or payment plan;
suspension of licenses for failure to pay fines.
(a) A magistrate court may accept credit cards in payment of
all costs, fines, forfeitures or penalties. The supreme court of
appeals shall adopt rules regarding the use of credit cards to
pay fines, and the rules shall state that any charges made by the
credit company shall be paid by the person responsible for paying
the fine. A magistrate court may collect a substantial portion
of all costs, fines, forfeitures or penalties at the time the
amount is imposed by the court so long as the court requires the
balance to be paid within ninety days and in accordance with a
payment plan which specifies: (1) The number of additional
payments to be made; (2) the dates on which such payments and
amounts shall be made; and (3) amounts due on such dates.
(b) If any costs, fines, forfeitures, restitution or
penalties imposed or ordered by the magistrate court for hunting
or fishing violations as described in chapter twenty of thiscode, are not paid in full within ninety days of the judgment or
in accord with an order of probation entered pursuant to section
three-a, article two of this chapter, the magistrate court clerk
or, upon a judgment rendered on appeal, the circuit clerk shall
notify the director of the division of natural resources, of such
failure to pay. If any costs, fines, forfeitures, restitution or
penalties imposed by the magistrate court are not paid in full
within ninety days of judgment or in accord with an order of
probation entered pursuant to section three-a, article two of
this chapter, the magistrate court clerk or, upon judgment
rendered as appealed, the circuit clerk, shall notify the
director of the division of motor vehicles of the failure to pay.
Upon such notice, the division of motor vehicles shall
suspend the operator's or commercial driver's license and the
director of the division of natural resources shall suspend the
hunting or fishing license of the person defaulting on payment
until such time that the costs, fines, forfeitures, restitution
or penalties are paid.
(c) If a person charged with a criminal violation of this
code, fails to appear or otherwise respond in court, the
magistrate court shall notify the director of the division of
motor vehicles thereof within fifteen days of the scheduled date
to appear, unless the person sooner appears or otherwise responds
in court to the satisfaction of the magistrate. Upon such
notice, the division of motor vehicles shall suspend the
operator's or commercial driver's license of the person failing
to appear or otherwise respond in accordance with the provisions
of section six, article three, chapter seventeen-b of this code.
(d) In every criminal case which involves a misdemeanor
violation, a magistrate may order restitution when rendering
judgment.
(e) If all costs, fines, forfeitures, restitution or
penalties imposed by a magistrate court and ordered to be paid
are not paid within ninety days from their imposition by judgment
of the magistrate court, the magistrate court clerk, or the clerk
of the circuit court acting in that capacity, shall notify the
prosecuting attorney of the county of such nonpayment and provide
the prosecuting attorney with an abstract of judgment. The
prosecuting attorney shall record the abstract of judgment in the
office of the clerk of the county commission in the county where
the defendant was convicted and in any county wherein the
defendant resides or owns property. When so recorded, the amount
stated to be owing in the abstract shall constitute a lien
against all property of the defendant.
§50-3-6a. Deposits in interest-bearing accounts; payment of
interest to general revenue fund of state treasury.
Magistrate court clerks or circuit clerks acting in that
capacity, subject to the rules and regulations of the supreme
court of appeals, may establish and maintain interest-bearing
checking accounts in secure and properly insured financial
institutions for the deposit and disbursement of all monies
collected by the magistrate court. In addition to making other
remittances as required by law, the clerk of each magistrate
court shall, on a monthly basis, remit all interest earned on
such accounts to the state treasurer for deposit in the state
general revenue fund.
ARTICLE 5. TRIALS, HEARINGS AND APPEALS.
§50-5-13. Appeals in criminal cases.
Any person convicted of an offense in a magistrate court may
appeal such conviction to circuit court as a matter of right by
requesting such appeal within twenty days of the sentencing for
such conviction. The magistrate may require the posting of bond
with good security conditioned upon the appearance of the
defendant as required in circuit court, but such bond may not
exceed the maximum amount of any fine which could be imposed for
the offense. Such bond may be upon the defendant's own
recognizance. If no appeal is perfected within such twenty-day
period, the circuit court of the county may, not later than
ninety days after the sentencing, grant an appeal upon a showing
of good cause why such appeal was not filed within such twenty-
day period. The filing or granting of an appeal shall
automatically stay the sentence of the magistrate. Trial in
circuit court shall be de novo.:
Provided,
That an appeal from
a conviction for a traffic offense for which incarceration has
not been imposed shall be heard only upon the facts and findings
contained in the magistrate court file as transmitted to the
circuit court by the magistrate court clerk. Notwithstanding any
other provision of this code to the contrary, there shall be no
appeal from a plea of guilty where the defendant was represented
by counsel at the time the plea was entered:
Provided, however,
That the defendant shall have an appeal from a plea of guilty
where an extraordinary remedy would lie or where the magistrate
court lacked jurisdiction.
CHAPTER 52. JURIES.
ARTICLE 1. PETIT JURIES.
§52-1-4. Jury commission. Jury selection.
(a) A jury commission is established in each county to
manage the jury selection process under the supervision and
control of the circuit court. The jury commission shall be
composed of the clerk of the circuit court and two jury
commissioners appointed for a term of four years by the chief
judge of the circuit court or judge in a single judge circuit.
The terms of office for commissioners shall commence on the first
day of June following appointment. Those jury commissioners
appointed by the circuit court or the chief judge thereof in
office when this section takes effect shall continue in office,
unless removed, until the expiration of their respective terms of
office.
No jury commissioner, after having served four years, shall
be eligible to serve a successive additional term:
Provided,
That a jury commissioner in a Class V, VI or VII county, as
defined in section three, article seven, chapter seven, of this
code, shall be eligible for appointment to serve one additional
successive four year term in such office. The jury commissioners
must be citizens of the United States, residents of the county
for which they are appointed, and well-known members of opposing
political parties of said county; the chairman of a political
party shall be ineligible for appointment. The jury
commissioners shall receive as compensation for their services,
while necessarily employed, an amount to be fixed by the circuit
court or the chief judge thereof, in accordance with the rules of
the supreme court of appeals.
(b) Jury commissioners may be removed from office by the
circuit court, or the chief judge thereof, for official
misconduct, incompetency, habitual drunkenness, neglect of duty
or gross immorality. Vacancies caused by death, resignation or
otherwise shall be filled for the unexpired term in the same
manner as the original appointments.
(c) Before entering upon the discharge of duties, a jury
commissioner shall take and subscribe to an oath to the following
effect:
State of West Virginia,
County of _________________________________________, to wit:
I, A ________________________ B ____________________________
____________________________ do solemnly swear that I will
support the Constitution of the United States and the
Constitution of this State and will faithfully discharge the
duties of jury commissioner to the best of my skill and judgment
and that I will not place any person upon the jury list in
violation of law.
The selection of potential petit jurors shall be done by the
clerks of the circuit courts pursuant to the provisions of this
article and under the supervision of the circuit court, or in
circuits with more than one circuit judge, the chief judge of the
circuit.
§52-1-5. Master list; method for compilation; additional
freeholder list; lists to be available to public.
(a) In each county, the jury commission clerk shall compile
and maintain a master list of residents of the county from which
prospective jurors are to be chosen. The master list shall be alist of individuals compiled from not less than two of the
following source lists:
(1) Persons who have filed a state personal income tax
return for the preceding tax year;
(2) Persons who are registered to vote in the county;
(3) Persons who hold a valid motor vehicle operator's or
chauffeur's license as determined from the drivers' license lists
provided by the division of motor vehicles.
The jury commission clerk shall compile the master list by
combining all the names from each source used and eliminating all
duplicates or by selecting a sample of names from each source
used by means of a random key number system. If a sample of
names is selected from each source list, the same percentage of
names must be selected from each list. One source list shall be
designated a primary source. Names selected from the second
source shall be compared with the entire list of names on the
primary source. Duplicate names shall be removed from the second
source sample, and the remaining names shall be combined with the
sample of names selected from the primary source to form the
master list. If more than two source lists are used, this
process shall be repeated, using the previously combined list for
comparison with the third source list, and so on.
(b) The master list so compiled shall be used for a period
of two years or such other period as designated by the chief
judge.
(c) In addition to the master list required to be compiled
under the provisions of subsection (a) of this section, the jury
commission clerk shall compile a list of persons who pay realproperty taxes to compile and maintain a list of freeholders to
be used as jurors in condemnation cases.
(d) Any public officer of an agency, department or political
subdivision of this state having custody, possession or control
of any of the source lists designated to be used in compiling the
master list, shall make the source list available to the jury
commission clerk for inspection, reproduction and copying at all
reasonable times:
Provided,
That the tax commissioner shall be
exempt from this requirement. The master list and the freeholder
list shall be open to the public for examination.
§52-1-5a. Jury qualification form; contents; procedure for use;
penalties.
(a) Not less than twenty days before the date for which
persons are to report for jury duty, the clerk may, if directed
by the court, serve by first class mail, upon each person listed
on the master list, a juror qualification form accompanied by
instructions necessary for its completion:
Provided,
That the
clerk may, if directed by the court, mail the juror qualification
form to only those prospective jurors drawn for jury service
under the provisions of section seven of this article. Each
prospective juror shall be directed to complete the form and
return it by mail to the clerk within ten days after its receipt.
The juror qualification form is subject to approval by the
circuit court as to matters of form and shall elicit the
following information concerning the prospective juror:
(1) The juror's name, sex, race, age and marital status;
(2) The juror's level of educational attainment, occupation
and place of employment;
(3) If married, the name of the juror's spouse, and the
occupation and place of employment of the spouse;
(4) The juror's residence address and the juror's mailing
address if different from the residence address;
(5) The number of children which the juror has and their
ages;
(6) Whether the juror is a citizen of the United States and
a resident of the county;
(7) Whether the juror is able to read, speak and understand
the English language;
(8) Whether the juror has any physical or mental disability
substantially impairing the capacity to render satisfactory jury
service:
Provided,
That a juror with a physical disability, who
can with reasonable accommodation render competent service, is
eligible for service;
(9) Whether the juror has, within the preceding two years,
been summoned to serve as a petit juror, grand juror or
magistrate court juror, and has actually attended sessions of the
magistrate or circuit court and been compensated as a juror;
(10) Whether the juror has lost the right to vote because of
a criminal conviction; and
(11) Whether the juror has been convicted of perjury, false
swearing or other infamous offense.
The juror qualification form may also request information
concerning the prospective juror's religious preferences and
organizational affiliations, except that the form and the
accompanying instructions shall clearly inform the juror that
this information need not be provided if the juror declines toanswer such inquiries.
(b) The juror qualification form shall contain the
prospective juror's declaration that the responses are true to
the best of the prospective juror's knowledge and an
acknowledgment that a willful misrepresentation of a material
fact may be punished by a fine of not more than five hundred
dollars or imprisonment for not more than thirty days, or both
fine and imprisonment. Notarization of the juror qualification
form shall not be required. If the prospective juror is unable
to fill out the form, another person may assist the prospective
juror in the preparation of the form and indicate that such
person has done so and the reason therefor. If an omission,
ambiguity or error appear in a returned form, the clerk shall
again send the form with instructions to the prospective juror to
make the necessary addition, clarification or correction and to
return the form to the clerk within ten days after its second
receipt.
(c) Any prospective juror who fails to return a completed
juror qualification form as instructed shall be directed by the
jury commission clerk to appear forthwith before the clerk to
fill out the juror qualification form. At the time of the
prospective juror's appearance for jury service, or at the time
of any interview before the court or clerk, any prospective juror
may be required to fill out another juror qualification form in
the presence of the court or clerk. At that time the prospective
juror may be questioned, with regard to the responses to
questions contained on the form and the grounds for the
prospective juror's excuse or disqualification. Any informationthus acquired by the court or clerk shall be noted on the juror
qualification form.
(d) Any person who willfully misrepresents a material fact
on a juror qualification form or during any interview described
in subsection (c) of this section, for the purpose of avoiding or
securing service as a juror, is guilty of a misdemeanor, and,
upon conviction, shall be fined not more than five hundred
dollars or imprisoned not more than thirty days, or both fined
and imprisoned.
§52-1-6. Jury wheel or jury box; random selection of names from
master list for jury wheel or jury box.
(a) At the direction of the circuit court, the jury
commission clerk for each county shall maintain a jury wheel or
jury box, into which the commission shall place shall be placed
the names or identifying numbers of prospective jurors taken from
the master list. The choice of employing a jury wheel or jury
box shall be at the discretion of the circuit court or the chief
judge thereof.
(b) In counties having a population of less than fifteen
thousand persons according to the last available census, the jury
wheel or jury box shall include at least two hundred names; in
counties having a population of at least fifteen thousand but
less than fifty thousand, at least four hundred names; a
population of at least fifty thousand but less than ninety
thousand, at least eight hundred names; and a population of
ninety thousand or more, at least one thousand six hundred names.
From time to time a larger or additional number may be determined
by the jury commission or ordered by the circuit court to beplaced in the jury wheel or jury box. The jury commission clerk
shall take measures to ensure that a sufficient number of
additional jurors are drawn from time to time so that the jury
wheel or jury box is refilled and additional jurors may be drawn
therefrom. In October of each even-numbered year, or at such
other time as the court may direct, the jury commission clerk
shall remove from the jury box or jury wheel the names of all
persons who have, within the preceding two years, been summoned
to serve as petit jurors, grand jurors or magistrate court
jurors, and who have actually attended sessions of the magistrate
or circuit court and been compensated as jurors pursuant to the
provisions of section twenty-one of this article, section
thirteen, article two of this chapter, or under any applicable
rule or regulation of the supreme court of appeals promulgated
pursuant to the provisions of section eight, article five,
chapter fifty of this code.
(c) The names or identifying numbers of prospective jurors
to be placed in the jury wheel or jury box shall be selected by
the jury commission clerk at random from the master list in the
following manner: The total number of names on the master list
shall be divided by the number of names to be placed in or added
to the jury wheel or jury box and the whole number next greater
than the quotient shall be the "key number," except that the key
number shall never be less than two. A "starting number" for
making the selection shall then be determined by a random method
from the numbers from one to the key number, both inclusive. The
required number of names shall then be selected from the master
list by taking in order the first name on the master listcorresponding to the starting number and then successively the
names appearing in the master list at intervals equal to the key
number, recommencing if necessary at the start of the list until
the required number of names has been selected. Upon
recommencing at the start of the list, or if additional names are
subsequently to be selected for the jury wheel or jury box, names
previously selected from the master list shall be disregarded in
selecting the additional names. The jury commission clerk is not
required to, but may, use an electronic or mechanical system or
device in carrying out its duties. (For example, assume a county
with a master list of eight thousand nine hundred eighty names,
a population of less than fifteen thousand, and a desired jury
box or wheel containing two hundred names. Eight thousand nine
hundred eighty names divided by two hundred is forty-four and
nine-tenths percent. The next whole number is forty-five. The
commission clerk would take every forty-fifth name on the list,
using a random starting number between one and forty-five.)
§52-1-7. Drawings from the jury wheel or jury box; notice of
jury duty; penalties.
(a) The chief judge of the circuit, or the judge in a single
judge circuit, shall provide by order rules relating to the
random drawing by the jury commission clerk of panels from the
jury wheel or jury box for juries in the circuit and magistrate
courts. The rules may allow for the drawing of panels at any
time. Upon receipt of the direction and in the manner prescribed
by the court, the jury commission clerk shall publicly draw at
random from the jury wheel or jury box the number of jurors
specified.
(b) If a jury is ordered to be drawn, the clerk thereafter
shall cause each person drawn for jury service to be notified not
less than twenty days before the date for which the persons are
to report for jury duty with a summons and juror qualification
form, if such form has not already been completed, by personal
service or first class mail addressed to the person at his or her
usual residence, business or post-office address, requiring him
or her to report for jury service at a specified time and place.
(c) A prospective juror who fails to appear as directed by
the summons issued pursuant to subsection (b) of this section
shall be ordered by the court to appear and show cause for
failure to appear as directed. If the prospective juror fails to
appear pursuant to the court's order or fails to show good cause
for failure to appear as directed by the summons, he or she is
guilty of civil contempt and shall be fined not more than one
thousand dollars.
§52-1-7a. Alternate procedure for selection of jury by
electronic data processing methods.
Notwithstanding any provision of this article to the
contrary, the court may, after conferring with the clerk and the
jury commissioners and documenting in writing the methods to be
used, with such documentation to be approved by the chief judge,
direct the use of electronic data processing methods, or a
combination of manual and machine methods, for any combination of
the following tasks:
(a) Recording in machine readable form names that are
initially selected manually from source lists authorized by this
article.
(b) Copying of names from source lists authorized by this
article, from any counties or other sources that maintain those
lists in machine readable form such as punched cards, magnetic
tapes or magnetic discs.
(c) Selecting names from source lists for inclusion in the
jury list.
(d) Selecting names from the jury list for the list of
jurors summoned to attend at any term of court.
(e) Sorting or alphabetizing lists of names, deleting
duplicate selections of names and deleting names of persons
exempt, disqualified or excused from jury service.
(f) Selecting and copying names for the creation of any
papers, records or correspondence necessary to recruit, select
and pay jurors and for other clerical tasks.
If the court elects to use electronic machine methods for
any tasks described above, the selection system shall be planned
and programmed in order to ensure that any group of names chosen
will represent all segments of source files from which drawn and
that the mathematical odds of any single name being picked are
substantially equal.
When machine methods for jury selection are employed, both
the jury list and the jury list as recorded in machine readable
form shall be safely kept in a secure location with the office of
the clerk of the circuit court. The jury commissioners shall be
notified of any selection of jurors from a source list and may be
present for such selections or shall be in attendance if directed
by the chief circuit judge.
§52-1-8. Disqualification from jury service.
(a) The court, upon request of the jury commission or a
prospective juror or on its own initiative, shall determine on
the basis of information provided on the juror qualification form
or interview with the prospective juror or other competent
evidence whether the prospective juror is disqualified for jury
service. The clerk shall enter this determination in the space
provided on the juror qualification form and on the alphabetical
lists of names drawn from the jury wheel or jury box.
(b) A prospective juror is disqualified to serve on a jury
if the prospective juror:
(1) Is not a citizen of the United States, at least eighteen
years old and a resident of the county;
(2) Is unable to read, speak and understand the English
language. For the purposes of this section, the requirement of
speaking and understanding the English language is met by the
ability to communicate in American sign language or signed
English;
(3) Is incapable, by reason of substantial physical or
mental disability, of rendering satisfactory jury service; but a
person claiming this disqualification may be required to submit
a physician's certificate as to the disability and the certifying
physician is subject to inquiry by the court at its discretion;
(4) Has, within the preceding two years, been summoned to
serve as a petit juror, grand juror or magistrate court juror,
and has actually attended sessions of the magistrate or circuit
court and been compensated as a juror pursuant to the provisions
of section twenty-one of this article, section thirteen, article
two of this chapter, or pursuant to an applicable rule orregulation of the supreme court of appeals promulgated pursuant
to the provisions of section eight, article five, chapter fifty
of this code;
(5) Has lost the right to vote because of a criminal
conviction; or
(6) Has been convicted of perjury, false swearing or other
infamous offense.
(c) A prospective juror sixty-five years of age or older is
not disqualified from serving, but shall be excused from service
by the court upon the juror's request.
(d) A prospective grand juror is disqualified to serve on a
grand jury if the prospective grand juror is an officeholder
under the laws of the United States or of this state except that
the term "officeholder" does not include notaries public.
(e) A person who is physically disabled and can render
competent service with reasonable accommodation shall not be
ineligible to act as juror or be dismissed from a jury panel on
the basis of disability alone:
Provided,
That the circuit judge
shall, upon motion by either party or upon his or her own motion,
disqualify a disabled juror if the circuit judge finds that the
nature of potential evidence in the case including, but not
limited to, the type or volume of exhibits or the disabled
juror's ability to evaluate a witness or witnesses, unduly
inhibits the disabled juror's ability to evaluate the potential
evidence. For purposes of this section:
(1) Reasonable accommodation includes, but is not limited
to, certified interpreters for the hearing impaired,
spokespersons for the speech impaired and readers for thevisually impaired.
(2) The court shall administer an oath or affirmation to any
person present to facilitate communication for a disabled juror.
The substance of such oath or affirmation shall be that any
person present as an accommodation to a disabled juror will not
deliberate on his or her own behalf, although present throughout
the proceedings, but act only to accurately communicate for and
to the disabled juror.
(f) Nothing in this article shall be construed so as to
limit in any way a party's right to preemptory peremptory strikes
in civil or criminal actions.
§52-1-15. Challenging compliance with selection procedures.
(a) Within seven days after the moving party discovers, or
by the exercise of due diligence could have discovered, the
grounds therefor, and in any event before the petit jury is sworn
to try the case, a party may move to stay the proceedings, quash
the indictment or move for other relief as may be appropriate
under the circumstances or the nature of the case. The motion
shall set forth the facts which support the party's contention
that there has been a substantial failure to comply with this
article in selecting the jury.
(b) Upon motion filed under subsection (a) of this section
containing a sworn statement of facts which, if true, would
constitute a substantial failure to comply with this article, the
moving party is entitled to present, in support of the motion,
the testimony of the jury commissioners or the clerk, any
relevant records and papers not public or otherwise available
used by the jury commissioners or the clerk, and any otherrelevant evidence. The clerk or the jury commissioners may
identify the lists utilized in compiling the master list, but may
not be required to divulge the contents of such lists. If the
court determines that in selecting a jury there has been a
substantial failure to comply with this article, the court shall
stay the proceedings pending the selection of the jury in
conformity with this article, quash an indictment or grant such
other relief as the court may deem appropriate.
(c) In the absence of fraud, the procedures prescribed by
this section are the exclusive means by which a person accused of
a crime, the state or a party in a civil case, may challenge a
jury on the ground that the jury was not selected in conformity
with this article.
§52-1-16. Preservation of records.
All records and papers compiled and maintained by the jury
commissioners or the clerk in connection with selection and
service of jurors from the master list, the jury box or the jury
wheel shall be preserved by the clerk for at least four years
after such jurors were selected, or for any longer period ordered
by the court.
The jury commission of each county clerk shall make an
annual report no later than the first day of March of each year
to the supreme court of appeals setting forth the following
information: Whether the commission clerk employed a jury box or
jury wheel for the year reported, and the age, race, and gender
of each person for whom a juror qualification form has been
received. The supreme court of appeals shall provide this
information to the president of the Senate and the speaker of theHouse on an annual basis, no later than the first day of April of
each year.
§52-1-17. Reimbursement of jurors.
(a) A juror shall be paid mileage, at the rate set by the
commissioner of finance and administration for state employees,
for travel expenses from the grand juror's residence to the place
of holding court and return and shall be compensated at a rate of
between fifteen and forty dollars, set at the discretion of the
circuit court or the chief judge thereof, for each day of
required attendance at sessions of the court. Such compensation
shall be based on vouchers submitted to the sheriff. Such
mileage and compensation shall be paid out of the state treasury.
(a) A juror shall be reimbursed for travel expenses from the
juror's residence to the place of holding court and return and
other expenses incurred as a result of required attendance at
sessions of the court at a rate of thirty dollars for each day of
required attendance. Such reimbursement shall be based on
vouchers submitted to the sheriff. Such reimbursement shall be
paid out of the state treasury.
(b) When a jury in any case is placed in the custody of the
sheriff, he or she shall provide for and furnish the jury
necessary meals and lodging while they are in the sheriff's
custody at a reasonable cost to be determined by an order of the
court; and the meals and lodging shall be paid for out of the
state treasury.
(c) There shall be taxed in the costs against any person
against whom a judgment on the verdict of a jury may be rendered
in a case of misdemeanor or felony and against any person againstwhom judgment on the verdict of a jury may be rendered in a civil
action, a total of one hundred eighty dollars for jury costs.
Such costs when collected by the circuit clerk or the magistrate
clerk from the party, shall be paid by the sheriff into the state
treasury. All moneys so received by the clerk shall be forthwith
paid by the clerk to the sheriff and the clerk and the clerk's
surety are liable therefor on the clerk's official bond as for
other money coming into the clerk's hands by virtue of the
clerk's office.
(d) The clerks of the circuit court and magistrate court of
each county in this state shall annually certify to the county
commission a list of all money so paid to the clerk and by the
clerk paid to the sheriff, and in addition thereto, a correct
list of all the cases in which jury fees have been taxed and are,
at the time, properly due and payable in the state treasury, and
the sheriff of the county shall be held to account in the
sheriff's annual settlement for all such moneys collected by the
sheriff.
(c) Anytime a panel of prospective jurors has been required
to report to court for the selection of a jury in any scheduled
matter, the court shall, by specific provision in a court order,
assess a jury cost based on the actual cost of the jurors'
service as follows:
(1) In every criminal case, against the defendant upon
conviction, whether by plea, by bench trial or by jury verdict;
(2) In every civil case, against either party or prorated
against both parties, at the court's discretion, if the parties
settle the case or trial is to the bench; or
(3) In the discretion of the court and only when fairness
and justice so require, the court may forego assessment of the
jury fee, but shall set out the reasons therefor in its written
order.
(d) The circuit or magistrate court clerk shall by the tenth
day of the month following the month of collection remit to the
sheriff all jury costs collected, and the clerk and the clerk's
surety are liable therefore on the clerk's official bond as for
other money coming into the clerk's hands by virtue of the
clerk's office.
(e) The sheriff shall pay into the state treasury all jury
costs received from the court clerks, and the sheriff shall be
held to account in the sheriff's annual settlement for all such
moneys.
ARTICLE 2. GRAND JURIES.
§52-2-3. Selection and summoning of jurors.
The jury commissioners clerk of any circuit court requiring
a grand jury shall, at least thirty days before the term of
court, draw and assign persons for the grand jury, but the court,
or judge thereof, may require the jury commissioners clerk to
appear forthwith, or at any specified time and to draw and assign
grand jurors for either a regular, special or adjourned term of
court. On the day appointed, When required by the circuit court
or the chief judge thereof, the jury commissioners clerk shall
appear and draw the names of sixteen persons from the jury wheel
or jury box, and the persons so drawn shall constitute the grand
jury,. and, at At the same time, the jury commissioners clerk
shall draw the names of such additional numbers of persons fromthe jury wheel or jury box, as the chief judge of the circuit, or
the judge in a single judge circuit, shall by prior order direct,
and the persons so drawn shall constitute alternate jurors for
the grand jury. and the The judge may replace any absent members
of the grand jury from among the alternate grand jurors, in the
order in which the alternate jurors were drawn. The jury
commissioners clerk shall enter the names of all persons so drawn
in a book kept for that purpose, and they shall issue summonses
to the persons so drawn in the same manner as that provided for
petit jurors in subsection (b), section seven, article one of
this chapter.
CHAPTER 59. FEES, ALLOWANCES AND COSTS; NEWSPAPERS;
LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-12. Payment of fines by credit card or payment plan;
suspension of licenses for failure to pay fines; lien
created.
(a) A circuit court may accept payment through credit or
debit cards for all costs, fines, forfeitures, restitution or
penalties. The supreme court of appeals shall adopt rules
regarding the use of credit or debit cards, and the rules shall
state that any charges made by the financial institution
administering the credit or debit account shall be paid by the
person responsible for payment of the fine.
(b) If any costs, fines, forfeitures, restitution or
penalties imposed by the circuit court are not paid in full
within the time limits established by the court, or within ninety
days from the date of their imposition, whichever is longer, theclerk of the circuit court shall notify the director of the
division of motor vehicles of the nonpayment. Upon receipt of
such notice, the division of motor vehicles shall suspend the
defendant's operator's or commercial driver's license until such
time as the division receives from the clerk a notice that
payment has been made.
(c) If a person charged with a criminal violation fails to
appear or otherwise respond in court, the circuit court shall
direct the circuit clerk to notify the director of the division
of motor vehicles thereof within fifteen days of the scheduled
date to appear, unless the person sooner appears or otherwise
responds in court to the satisfaction of the circuit judge. Upon
such notice, the division of motor vehicles shall suspend the
operator's or commercial driver's license of the person failing
to appear or otherwise respond in accordance with the provisions
of section six, article three, chapter seventeen-b of this code.
(d) If all costs, fines, forfeitures, restitution or
penalties imposed by a circuit court and ordered to be paid are
not paid within ninety days from their imposition by judgment of
the court, the clerk of the circuit court shall notify the
prosecuting attorney of the county of such nonpayment and provide
the prosecuting attorney with an abstract of judgment. The
prosecuting attorney shall record the abstract of judgment in the
office of the clerk of the county commission in the county where
the defendant was convicted and in any county wherein the
defendant resides or owns property. When so recorded, the amount
stated to be owing in the abstract shall constitute a lien
against all property of the defendant.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a court of record
circuit court or in a magistrate court under any criminal
provision of this code of a misdemeanor or felony, which may be
punishable by confinement in the county jail, may, in the
discretion of the sentencing judge or magistrate, as an
alternative to the sentence imposed by statute for such crime,
be sentenced under one of the following programs:
(1) The weekend jail program under which persons would be
required to spend weekends or other days normally off from work,
in jail;
(2) The work program under which sentenced persons would be
required to spend the first two or more days of their sentence in
jail and then, in the discretion of the judge, would be assigned
to a county agency to perform labor within the jail, or in and
upon the buildings, grounds, institutions, bridges, roads,
including orphaned roads used by the general public, and public
works within the county. Eight hours of such labor shall be
credited as one day of the sentence imposed. Persons sentenced
under this program may be required to provide their own
transportation to and from the work site, lunch and work clothes;
or
(3) The community service program under which persons
sentenced would spend no time in jail but would be sentenced to
a number of hours or days of community service work with tax
supported agencies. Eight hours of service work shall becredited as one day of the sentence imposed. Persons sentenced
under this program may be required to provide their own
transportation to and from the work site, lunch and work clothes.
(b) In no event may the duration of the alternate sentence
exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this
section, the court shall first make the following findings of
fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for
which a mandatory period of confinement is imposed by statute;
(2) The person sentenced is not a habitual criminal within
the meaning of sections eighteen and nineteen, article eleven,
chapter sixty-one of this code;
(3) That adequate facilities for the administration and
supervision of alternative sentencing programs are available
through the court's probation officers or the county sheriff or,
in the case of magistrates, that adequate facilities for the
administration and supervision of alternative sentencing programs
are available through the county sheriff; and or, in the case of
magistrates, that adequate facilities for the administration and
supervision of alternative sentencing programs are available
through the county sheriff; and
(4) That an alternative sentence under provisions of this
article will best serve the interests of justice.
(d) Persons sentenced by the circuit court or a magistrate
under the provisions of this article shall remain under the
administrative custody and supervision of the court's probation
officers or the county sheriff.
(e) Persons sentenced under the provisions of this section
may be required to pay the costs of their confinement, including
meal costs, at the discretion of the court.
(f) Persons sentenced under the provisions of this section
remain under the jurisdiction of the court. The court may
withdraw any alternative sentence at any time by order entered
with or without notice and require that the remainder of the
sentence be served in the county jail:
Provided,
That no
alternative sentence directed by the sentencing judge or
magistrate or administered under the supervision of the sheriff,
his deputies, a jailer or a guard, shall require the convicted
person to perform duties which would be considered detrimental to
the convicted person's health as attested to by a physician.
ARTICLE 11B. HOME DETENTION ACT.
§62-11B-4. Home detention; period of home detention;
applicability.
(a) As a condition of probation or as an alternative
sentence to another form of incarceration, a circuit court may
order an offender confined to the offender's home for a period of
home detention. As an alternative sentence to incarceration in
jail, a magistrate may order an adult offender confined to the
offender's home for a period of home detention.
(b) The period of home detention may be continuous or
intermittent, as the circuit court orders, or continuous if
ordered by a magistrate. However, the aggregate time actually
spent in home detention may not exceed the term of imprisonment
or incarceration prescribed by this code for the offense
committed by the offender.
(c) A grant of home detention under this article constitutes
a waiver of any entitlement to deduction from a sentence for good
conduct under the provisions of section twenty-seven, article
five, chapter twenty-eight of this code and it constitutes a
waiver of any eligibility for parole under section thirteen,
article twelve, chapter sixty-two of this code for any time in
which home detention is in effect.
§62-11B-5. Requirements for order for home detention.
An order for home detention of an offender under section
four of this article shall include, but not be limited to, the
following:
(1) A requirement that the offender be confined to the
offender's home at all times except when the offender is:
(A) Working at employment approved by the circuit court or
magistrate, or traveling to or from approved employment;
(B) Unemployed and seeking employment approved for the
offender by the circuit court or magistrate;
(C) Undergoing medical, psychiatric, mental health
treatment, counseling or other treatment programs approved for
the offender by the circuit court or magistrate;
(D) Attending an educational institution or a program
approved for the offender by the circuit court or magistrate;
(E) Attending a regularly scheduled religious service at a
place of worship;
(F) Participating in a community work release or community
service program approved for the offender by the circuit court;
or
(G) Engaging in other activities specifically approved forthe offender by the circuit court or magistrate.
(2) Notice to the offender of the penalties which may be
imposed if the circuit court or magistrate subsequently finds the
offender to have violated the terms and conditions in the order
of home detention.
(3) A requirement that the offender abide by a schedule,
prepared by the probation officer specifically setting forth the
times when the offender may be absent from the offender's home
and the locations the offender is allowed to be during the
scheduled absences.
(4) A requirement that the offender is not to commit another
crime during the period of home detention ordered by the circuit
court or magistrate.
(5) A requirement that the offender obtain approval from the
probation officer before the offender changes residence or the
schedule described in subdivision (3) of this section.
(6) A requirement that the offender maintain:
(A) A working telephone in the offender's home;
(B) If ordered by the circuit court or as ordered by the
magistrate, a monitoring device in the offender's home, or on the
offender's person, or both; and
(C) Electric service in the offender's home if use of a
monitoring device is ordered by the circuit court or magistrate.
(7) A requirement that the offender pay a home detention fee
set by the circuit court or magistrate. If a magistrate orders
home detention for an offender, the magistrate shall follow a fee
schedule established by the supervising circuit judge in setting
the home detention fee.
(8) A requirement that the offender abide by other
conditions of probation set by the circuit court.
§62-11B-6. Circumstances under which home detention may not be
ordered.
(a) A circuit court or magistrate may not order home
detention for an offender unless the offender agrees to abide by
all of the requirements set forth in the court's order issued
under this article.
(b) A circuit court or magistrate may not order home
detention for an offender who is being held under a detainer,
warrant or process issued by a court of another jurisdiction.
(c) A magistrate may only order home detention for an
offender convicted of any offense that carries a mandatory jail
sentence.
(d) A magistrate may not order home detention for an
offender without electronic monitoring and only if the county of
the offender's home has an established program of electronic
monitoring.
§62-11B-7. Home detention fees; special fund.
All home detention fees ordered by the circuit court or
magistrate court shall be deposited with the circuit clerk who
shall deposit the fees into the county sheriff's special adult or
juvenile probation services fund, which fund is hereby mandated.
The county commission shall appropriate money from the fund to
administer a home detention program, including the purchase of
monitoring devices and other supervision expenses, and may as
necessary supplement the fund with additional appropriations.
§62-11B-9. Violation of order of home confinement; procedures;
penalties.
(a) If at any time during the period of home detention there
shall be reasonable cause to believe that a participant in a home
detention program has violated the terms and conditions of the
circuit court's home confinement order, he or she shall be
subject to the procedures and penalties set forth in section ten,
article twelve of this chapter.
(b) If at any time during the period of home detention there
shall be reasonable cause to believe that a participant sentenced
to home detention by the circuit court has violated the terms and
conditions of the court's order of home detention and said
participant's participation was imposed as an alternative
sentence to another form of incarceration, said participant shall
be subject to the same procedures involving revocation as would
a probationer charged with a violation of the order of home
detention. Any participant under an order of home detention
shall be subject to the same penalty or penalties, upon the
circuit court's finding of a violation of the order of home
detention, as he or she could have received at the initial
disposition hearing:
Provided,
That the participant shall
receive credit towards any sentence imposed after a finding of
violation for the time spent in home confinement.
(c) If at any time during the period of home detention there
shall be reasonable cause to believe that a participant sentenced
to home detention by a magistrate has violated the terms and
conditions of the magistrate's order of home detention as an
alternative sentence to incarceration in jail, the participant
may be arrested with or without an order or warrant. Themagistrate who placed the participant on home detention, or any
other magistrate within the county of the offender's home shall
then conduct a prompt and summary hearing on whether the
participant's home detention should be revoked. If it appears to
the satisfaction of the magistrate that any condition of home
detention has been violated, the magistrate may revoke the home
detention and impose sentence, and order that the sentence be
executed. Any participant under an order of home detention shall
be subject to the same penalty or penalties, upon the
magistrate's finding of a violation of the order of home
detention, as the participant could have received at the initial
disposition hearing:
Provided,
That the participant shall
receive credit towards any sentence imposed after a finding of
violation for the time spent in home confinement.
§62-11B-10. Information to be provided law-enforcement agencies.
A probation department charged by a circuit court or a
magistrate with supervision of offenders ordered to undergo home
detention shall provide all law-enforcement agencies having
jurisdiction in the place where the probation department is
located with a list of offenders under home detention supervised
by the probation department. The list shall include the
following information about each offender:
(1) The offender's name, any known aliases, and the location
of the offender's home detention;
(2) The crime for which the offender was convicted;
(3) The date the offender's home detention expires; and
(4) The name, address and telephone number of the offender's
supervising probation officer for home detention.
§62-11B-11. Provisions of article not exclusive; discretion of
the circuit court.
The provisions of this article are not to be considered
exclusive nor do they supersede existing statutes relating to the
detention of types of detention available for adult or juvenile
offenders. The provisions of this article may be applied at the
discretion of the trial circuit court as an alternate means of
detention for any offense.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-5. Probation officers and assistants.
Each circuit court, subject to the approval of the supreme
court of appeals and in accordance with its rules, is authorized
to appoint a probation officer and clerical assistants to serve
during the pleasure of the appointing court, and in addition, in
counties having a population of more than forty thousand, such
court also subject to the approval of the supreme court of
appeals and in accordance with its rules, is authorized to
appoint additional probation officers and clerical assistants.
one or more probation officers and clerical assistants.
The appointment of probation officers, assistant probation
officers and clerical assistants shall be in writing and entered
on the order book of the court by the judge making such
appointment and a copy of said order of appointment shall be
delivered to the administrative director of the supreme court of
appeals. The said order of appointment shall state the monthly
salary fixed by the judge and approved by the supreme court of
appeals, to be paid the probation officer, assistant probation
officer, if any, or clerical assistants so appointed.
The salary of probation officers, assistant probation
officers and clerical assistants shall be paid monthly or
semimonthly, as the supreme court of appeals by rule may direct
and they shall be reimbursed for all reasonable and necessary
expenses actually incurred in the line of duty in the field.
Such The salary and expenses shall be paid by the state from the
judicial accounts thereof. The county commission shall provide
adequate office space for the probation officer and his or her
assistants to be approved by the appointing court. Such The
equipment and supplies as may be needed by the probation officer
and his or her assistants shall be provided by the state and the
cost thereof shall be charged against the judicial accounts of
the state.
No judge may appoint any probation officer, assistant
probation officer or clerical assistant who is related to him or
her either by consanguinity or affinity.
A judge of a circuit court whose circuit comprises more than
one county may appoint, subject to the approval of the supreme
court of appeals and in accordance with its rules, a probation
officer and a clerical assistant in each county of the circuit or
may appoint the same person as a probation officer and also the
same person as a clerical assistant in two or more counties in
the circuit.
In lieu of, or in addition to the probation officers,
assistant probation officers and clerical assistants provided for
in this section, any circuit judge may avail himself of the
services of state probation and parole officers; and any such
services which may be provided to the court or judge by saidstate probation and parole officers, shall be rendered at no
additional cost to the state, county or judge so using them. The
board of probation and parole may assist any probation officer,
upon request, with information relative to procedure, printed
forms, and technique applicable to probation methods.
Nothing contained in this section shall in any manner alter,
modify, affect or supersede alters, modifies, affects or
supersedes the appointment or tenure of any probation officer,
medical assistant or psychiatric assistant appointed by any court
under any special act of the Legislature heretofore enacted, and
the salary or compensation of those persons shall remain as
specified in the most recent amendment of any special act until
changed by the court, with approval of the supreme court of
appeals, by order entered of record, and any the salary or
compensation shall be paid out of the state treasury.
§62-12-9. Conditions of release on probation.
Release on probation shall be upon the following conditions:
(1) That the probationer shall not, during the term of his
probation, violate any criminal law of this or any other state or
of the United States.
(2) That he shall not, during the term of his probation,
leave the state without the consent of the court which placed him
on probation.
(3) That he shall comply with the rules and regulations
prescribed by the court or by the board of probation and parole,
as the case may be, for his supervision by the probation officer.
(4) That in every case wherein the probationer has been
convicted of an offense defined in section thirteen, articleeight, chapter sixty-one, articles eight-b and eight-d, chapter
sixty-one of this code, against a child, the probationer shall
not live in the same residence as any minor child, nor exercise
visitation with any minor child, and shall have no contact with
the victim of the offense:
Provided,
That the probationer may
petition the court of the circuit wherein he was so convicted for
a modification of this term and condition of his probation and
the burden shall rest upon the probationer to demonstrate that a
modification is in the best interest of the child.
(5) That the probationer be required to pay a fee, based
upon his or her ability to pay, not to exceed twenty dollars per
month to defray costs of supervision. All monies collected as
fees from probationers shall be deposited with the circuit clerk
who shall, on a monthly basis, remit said monies collected, and
any interest earned thereupon to the state treasurer for deposit
in the state general revenue fund.
In addition, the court may impose, subject to modification
at any time, any other conditions which it may deem advisable,
including, but not limited to, any of the following:
(1) That he shall make restitution or reparation, in whole
or in part, immediately or within the period of probation, to any
party injured by the crime for which he has been convicted.
(2) That he shall pay any fine assessed and the costs of the
proceeding in such installments as the court may direct.
(3) That he shall make contribution from his earnings, in
such sums as the court may direct, for the support of his
dependents.
(4) That he shall, in the discretion of the court, berequired to serve a period of confinement in the county jail of
the county in which he was convicted for a period not to exceed
one third of the minimum sentence established by law or one third
of the least possible period of confinement in an indeterminate
sentence, but in no case shall such period of confinement exceed
six consecutive months. The court shall have authority to
sentence the defendant within such six-month period to
intermittent periods of confinement including, but not limited
to, weekends or holidays and may grant unto the defendant
intermittent periods of release in order that he may work at his
employment or for such other reasons or purposes as the court may
deem appropriate:
Provided,
That the provisions of article
eleven-a of this chapter shall not apply to such intermittent
periods of confinement and release except to the extent that the
court may direct. If a period of confinement is required as a
condition of probation, the court shall make special findings
that other conditions of probation are inadequate and that a
period of confinement is necessary.
§62-12-15. Powers and duties of state parole officers.
Each state probation and parole officer shall investigate
all cases referred to him or her for investigation by any court
or by the board by the commissioner of corrections and shall
report in writing thereon. He or she shall furnish to each
person released on probation or parole under his or her
supervision a written statement of the conditions of his or her
probation or parole together with a copy of the rules and
regulations prescribed by the court or by the board, as the case
may be, for the supervision of parolees. He or she shall keephimself informed concerning the conduct and condition of each
person under his or her supervision and shall report thereon in
writing as often as the court or the board commissioner of
corrections may require. He or she shall use all practicable and
suitable methods to aid and encourage persons on probation or
parole and to bring about improvement in their conduct and
condition. He or she shall keep detailed records of his or her
work, shall keep accurate and complete accounts of and give
receipts for all money collected from persons under his or her
supervision, and shall pay over the money to such those persons
a circuit court or the board commissioner of corrections may
designate. He or she shall give bond with good security, to be
approved by the board commissioner of corrections, in a penalty
of not less than one thousand nor more than three thousand
dollars, as the board commissioner of corrections may determine.,
He shall and also perform any other duties the as the board
commissioner may require. He or she has authority, with or
without an order or warrant, to arrest any parolee. He or she
has all the powers of a notary public, with authority to act
anywhere within the state.
ARTICLE 13. CORRECTIONS MANAGEMENT.
§62-13-2. Supervision of probationers and parolees; final
determinations remaining with board of probation and
parole.
The commissioner of corrections shall supervise all persons
released on probation and placed in the charge of a state
probation and parole officer and all persons released on parole
under any law of this state with the exception of those personsparoled pursuant to section thirteen, article two, chapter forty-
nine of this code. The commissioner shall have authority to
revoke the parole with appropriate due process. He shall also
supervise all probationers and parolees whose supervision may
have been undertaken by this state by reason of any interstate
compact entered into pursuant to the uniform act for out-of-state
parolee supervision.
(a) The supreme court of appeals shall take charge of and
cause to be supervised all persons placed on probation and shall
prescribe rules for the supervision of probationers under their
supervision and control.
(b) The commissioner of corrections shall supervise all
persons released on parole and placed in the charge of a state
parole officer and all persons released on parole under any law
of this state. He or she shall also supervise all probationers
and parolees whose supervision may have been undertaken by this
state by reason of any interstate compact entered into pursuant
to the uniform act for out-of-state probation and parolee
supervision. The commissioner shall prescribe rules and
regulations for the supervision of probationers and parolees
under his or her supervision and control, and shall succeed to
all administrative and supervisory powers of the board of
probation and parole and the authority of the board of probation
and parole in those matters only.
The commissioner of corrections shall administer all other
laws affecting the custody, control, treatment and employment of
persons sentenced or committed to institutions under the
supervision of the department or affecting the operation andadministration of institutions or functions of the department.
The final determination regarding the release of inmates
from penal institutions and the final determination regarding
revocation of parolees from those institutions pursuant to the
provisions of article twelve, chapter sixty-two of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
shall remain within the exclusive jurisdiction of the board of
probation and parole.