COMMITTEE SUBSTITUTE

FOR

H. B. 2709

(By Delegates Rowe, Staton, Phillips, Douglas, Pino and Reed)


(Originating in the House Committee on the Judiciary)


[March 27, 1993]


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 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, 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 three, article two of said chapter fifty; 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 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 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article two, chapter forty-eight-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section eight, article four, chapter fifty of said code be repealed; that section twenty, article one, chapter fifty-one of said code be repealed; that section twenty-five, article one, chapter fifty-two of said code be repealed; that sections thirteen, fifteen, fifteen-a, sixteen, and thirty-three, article two, chapter forty-eight of said code be amended and reenacted; that section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 chapterforty-nine be amended and reenacted; that section three, article two of said chapter fifty be amended and reenacted; that article three of said chapter fifty be amended by adding thereto two new sections, designated sections two-a and six-a; 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 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 and reenacted; 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.

§48-2-11. Infant, incompetent and insane parties.

(a) In any action for divorce or annulment, an infant party shall sue, answer and plead by a next friend, and an incompetent or insane party shall sue, answer and plead by his committee, and no guardian ad litem shall be required unless specifically ordered by the court or judge hearing said action.
(b) If, in an action for divorce or annulment, either party shall allege that a person, other than the husband, is the father of a child born during the marriage of the parties, the court shall appoint a competent attorney to act as guardian ad litem on behalf of the child.
§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.
(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 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.
(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) (A) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enablethe 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.
(B) When it appears to the court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.
(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 the noncustodial parent a party, if the court determines that suchhealth 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 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, and insurance coverage or other expenses or charges reasonably necessary for the use and occupancy of the marital domicile. if the amount of such payments is reduced to a fixed monetary amount set forth in the court's order. 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, Thatthe court may order such payments to be made without denominating them 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. When such third party payments are ordered, the court shall specify whether such payments or portions of payments are temporary alimony, temporary child support, a partial distribution of marital property, or an allocation of marital debt. 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 temporaryalimony:
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 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 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 theproperty 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 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. 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 recurringearnings 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 alimony and 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 shallgive 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 manner as 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 filedforthwith 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 party before 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.
(h) Unless the best interests of the child require otherwise, every temporary order which provides for the custody of a minor child of the parties shall also provide for the following:
(1) The custodial parent shall be required to authorize school authorities in the school in which the child is enrolled to release to the non-custodial parent copies of any and all information concerning the child which would otherwise be properly released to the custodial parent;
(2) The custodial parent shall be required, promptly after receipt, to transmit to the non-custodial parent a copy of the child's grades or report card, and copies of any other reports reflecting the status or progress of the child;
(3) The custodial parent shall be required, when practicable, to arrange appointments for parent-teacher conferences at a time when the non-custodial parent can be present;
(4) The custodial parent shall be required to promptly inform the non-custodial parent of any illness of the child which requires medical attention; and
(5) The custodial parent shall be required to consult with the non-custodial parent prior to any elective surgery being performed on the child, and in the event emergency medical procedures are undertaken for the child, if time permits, the non-custodial parent shall be consulted, or if time does not permit such consultation, the noncustodial parent shall be promptly informed of such emergency medical procedures:
Provided, That nothing contained herein shall be deemed to alteror amend the law of this state as it otherwise pertains to physicians or health care facilities obtaining consent prior to providing medical care or performing medical procedures.
§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, for the 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.
(2) The court may When the action involves a minor child or children, the court shall require either party to pay childsupport 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 support are 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 adeduction 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 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 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 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, propertytaxes, and insurance coverage, or other expenses or charges reasonably necessary for the use and occupancy of the marital domicile. if the amount of such coverage is reduced to a fixed monetery amount set forth in the court's order. Payments made to a third party pursuant to this subdivision for the benefit of the other party 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, 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. When such third party payments are ordered, the court shall specify whether such payments or portions of payments are alimony, child support, a partial distribution of marital property, or an allocation of marital debt. 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 abusingthe 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 of the 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 partiesmay 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.
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 maritalproperty, 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 which does 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 asa 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 the divorce, 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 convictionhas 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.
(k) Unless the best interests of the child require otherwise, every final order and every modification order which provides for the custody of a minor child of the parties shall also provide for the following:
(1) The custodial parent shall be required to authorize school authorities in the school in which the child is enrolled to release to the non-custodial parent copies of any and all information concerning the child which would otherwise be properly released to the custodial parent;
(2) The custodial parent shall be required, promptly after receipt, to transmit to the non-custodial parent a copy of the child's grades or report card, and copies of any other reports reflecting the status or progress of the child;
(3) The custodial parent shall be required, whenpracticable, to arrange appointments for parent-teacher conferences at a time when the non-custodial parent can be present;
(4) The custodial parent shall be required to promptly inform the non-custodial parent of any illness of the child which requires medical attention; and
(5) The custodial parent shall be required to consult with the non-custodial parent prior to any elective surgery being performed on the child, and in the event emergency medical procedures are undertaken for the child, if time permits, the non-custodial parent shall be consulted, or if time does not permit such consultation, the noncustodial parent shall be promptly informed of such emergency medical procedures:
Provided, That nothing contained herein shall be deemed to alter or amend the law of this state as it otherwise pertains to physicians or health care facilities obtaining consent prior to providing medical care or performing medical procedures.
§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, health maintenance organization, self-funded group, multiple employer welfare arrangement, hospital or medical services corporation, 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 ofthe 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 insurance coverage 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 child pursuant 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 orinsurance 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, orwhether the alimony award shall be enforceable by contempt proceedings 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.
(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.
§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, tangiblepersonal 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 to the circuit courts a standard form for the disclosure of assets and liabilities 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 liabilities 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 ofeither 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 or enforcement 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 them at 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 1. GENERAL PROVISIONS.

§48A-1-3. Definitions.

As used in this chapter:
(1) "Automatic data processing and retrieval system" meansa computerized data processing system designed to do the following:
(A) To control, account for and monitor all of the factors in the support enforcement collection and paternity determination process, including, but not limited to:
(i) Identifiable correlation factors (such as social security numbers, names, dates of birth, home addresses and mailing addresses of any individual with respect to whom support obligations are sought to be established or enforced and with respect to any person to whom such support obligations are owing) to assure sufficient compatibility among the systems of different jurisdictions to permit periodic screenings to determine whether such individual is paying or is obligated to pay support in more than one jurisdiction;
(ii) Checking of records of such individuals on a periodic basis with federal, interstate, intrastate and local agencies;
(iii) Maintaining the data necessary to meet applicable federal reporting requirements on a timely basis; and
(iv) Delinquency and enforcement activities;
(B) To control, account for and monitor the collection and distribution of support payments (both interstate and intrastate), the determination, collection and distribution of incentive payments (both interstate and intrastate), and the maintenance of accounts receivable on all amounts owed, collected and distributed;
(C) To control, account for and monitor the costs of all services rendered, either directly or by exchanging information with state agencies responsible for maintaining financialmanagement and expenditure information;
(D) To provide access to the records of the department of health and human resources or aid to families with dependent children in order to determine if a collection of a support payment causes a change affecting eligibility for or the amount of aid under such program;
(E) To provide for security against unauthorized access to, or use of, the data in such system;
(F) To facilitate the development and improvement of the income withholding and other procedures designed to improve the effectiveness of support enforcement through the monitoring of support payments, the maintenance of accurate records regarding the payment of support, and the prompt provision of notice to appropriate officials with respect to any arrearages in support payments which may occur; and
(G) To provide management information on all cases from initial referral or application through collection and enforcement.
(2) "Chief judge" means the following:
(A) The circuit judge in a judicial circuit having only one circuit judge,; or except for the twenty-third and thirty-first judicial circuits;
(B) In the twenty-third and thirty-first judicial circuits, a chief judge designated by the judges thereof from among themselves by general order, to act as chief judge for both circuits for the purposes of this chapter:
Provided, That if the judges cannot agree as to who shall act as chief judge, then a chief judge shall be designated for the purposes of this chapterby the supreme court of appeals; or
(C) (B) The chief judge of the circuit court in a judicial circuit having two or more circuit judges.
(3) "Child advocate office" means the office within the department of health and human resources created under the provisions of article two of this chapter, intended by the Legislature to be the single and separate organizational unit of state government administering programs of child and spousal support enforcement and meeting the staffing and organizational requirements of the secretary of the federal department of health and human services.
(4) "Children's advocate" or "advocate" means a person appointed to such position under the provisions of section two, article three of this chapter forty-eight-a, and empowered to enforce the provisions of chapters forty-eight, forty-eight-a, and section twenty-nine, article five, chapter sixty-one of this code.
(5) "Court" means a circuit court of this state, unless the context in which such term is used clearly indicates that reference to some other court is intended. For the purposes of this chapter, the circuit courts of the twenty-third and thirty- first judicial circuits shall be considered as being in a single judicial circuit.
(6) "Court of competent jurisdiction" means a circuit court within this state, or a court or administrative agency of another state having jurisdiction and due legal authority to deal with the subject matter of the establishment and enforcement of support obligations. Whenever in this chapter reference is madeto an order of a court of competent jurisdiction, or similar wording, such language shall be interpreted so as to include orders of an administrative agency entered in a state where enforceable orders may by law be properly made and entered by such administrative agency.
(7) "Custodial parent" or "custodial parent of a child" means a parent who has been granted custody of a child by a court of competent jurisdiction. "Noncustodial parent" means a parent of a child with respect to whom custody has been adjudicated with the result that such parent has not been granted custody of the child.
(8) "Domestic relations matter" means any circuit court proceeding involving child custody, child visitation, child support or alimony.
(9) "Earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program. "Disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.
(10) "Employer" means any individual, sole proprietorship, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, any other state or a political subdivision of another state, and any other legal entity which hires and pays an individual for his services.
(11) "Guardian of the property of a child" means a personlawfully invested with the power, and charged with the duty, of managing and controlling the estate of a child.
(12) "Income" includes, but is not limited to, the following:
(A) Commissions, earnings, salaries, wages and other income due or to be due in the future to an obligor from his employer and successor employers;
(B) Any payment due or to be due in the future to an obligor from a profit-sharing plan, a pension plan, an insurance contract, an annuity, social security, unemployment compensation, supplemental employment benefits, workers' compensation benefits, state lottery winnings and prizes, and overtime pay;
(C) Any amount of money which is owing to the obligor as a debt from an individual, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, any other state or a political subdivision of another state, or any other legal entity which is indebted to the obligor.
(13) "Individual entitled to support enforcement services under the provisions of this chapter and the provisions of Title IV-D of the Federal Social Security Act" means:
(A) An individual who has applied for or is receiving services from the child advocate office and who is the custodial parent of a child, or the primary caretaker of a child, or the guardian of the property of a child when:
(i) Such child has a parent and child relationship with an obligor who is not such custodial parent, primary caretaker or guardian; and
(ii) The obligor with whom the child has a parent and child relationship is not meeting an obligation to support the child, or has not met such obligation in the past; or
(B) An individual who has applied for or is receiving services from the child advocate office and who is an adult or an emancipated minor whose spouse or former spouse has been ordered by a court of competent jurisdiction to pay spousal support to the individual, whether such support is denominated alimony or separate maintenance, or is identified by some other terminology, thus establishing a support obligation with respect to such spouse, when the obligor required to pay such spousal support is not meeting the obligation, or has not met such obligation in the past.
(C) An individual who is an obligee in a support order entered by a court of competent jurisdiction after the thirty- first day of December, one thousand nine hundred ninety-three.
(14) "Master" or "family law master" means a person appointed to such position under the provisions of section one, article four of this chapter.
(15) "Obligee" means an individual to whom a duty of support is owed, or the state of West Virginia or the department of health and human resources, if support has been assigned to the state or department.
(16) "Obligor" means a person who owes a legal duty to support another person.
(17) "Office of the children's advocate" means the office created in section two, article three of this chapter.
(18) "Primary caretaker of a child" means a parent or otherperson having actual physical custody of a child without a court order granting such custody, and who has been primarily responsible for exercising parental rights and responsibilities with regard to such child.
(19) "Source of income" means an employer or successor employer or any other person who owes or will owe income to an obligor.
(20) "Support" means the payment of money including interest:
(A) For a child or spouse, ordered by a court of competent jurisdiction, whether the payment is ordered in an emergency, temporary, permanent or modified order, decree or judgment of such court, and the amount of unpaid support shall bear interest from the date it accrued, at a rate of ten dollars upon one hundred dollars per annum, and proportionately for a greater or lesser sum, or for a longer or shorter time;
(B) To third parties on behalf of a child or spouse, including, but not limited to, payments to medical, dental or educational providers, payments to insurers for health and hospitalization insurance, payments of residential rent or mortgage payments, payments on an automobile, or payments for day care; and/or
(C) For a mother, ordered by a court of competent jurisdiction, for the necessary expenses incurred by or for the mother in connection with her confinement or of other expenses in connection with the pregnancy of the mother.
(21) "Support order" means any order of a court of competent jurisdiction for the payment of support, whether or notfor a sum certain.
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 child support, 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 decrease correspondingly. 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 theirindividual incomes. (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 the instant 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 agroup increase, and the expenditures on each individual child decrease; so that due to increasing economies of scale and the increased 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. Upon completion of the four-year review period ending on the thirtieth day of June, one thousand nine hundred ninety-three, the director shall propose for promulgation a legislative rule in accordance with the provisions of article three, chapter twenty-nine-a of this code which amends and updates the guidelines required by this section. Such proposed amended rule, shall include, but not be limited to, provisions regarding the following subject matters:
(1) In determining the child support obligation of a parent whose employment income consists, in part, of compensation for overtime hours worked, the guidelines shall provide for a child support order which includes a consideration of such overtime compensation, balancing the interest of children to share in the resources of such parent with the interest of the parent in not being penalized for accepting overtime work. Any formula which is used to compute anticipated overtime compensation shall allow for the irregular nature of such compensation.
(2) In determining the child support obligation of a parent whose employment income consists of compensation for seasonal employment, the guidelines shall provide for discretionary use of alternative payment schedules which may vary the periodic amounts required to be paid.
(3) In determining the child support obligation of a parent whose support obigation extends to the children of more than one family, the guidelines shall be structured so as to equitably provide for all children to whom the obligor owes a duty of support.
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 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 theirservice 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 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, theadministrative office of the supreme court of appeals shall submit to the governor 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 two 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) Upon a recommendation by the judicial hearing boardcreated pursuant to the rules of procedure for the handling of complaints against justices, judges, magistrates and family law masters, if the supreme court of appeals shall find that a family law master has violated the judicial code of ethics or that the master, because of advancing years and attendant physical or mental incapacity, should not continue to serve, the supreme court of appeals may, in lieu of or in addition to any disposition authorized by such rules, remove the family law master from office.
(2) The governor shall remove a master, with or without a recommendation from the supreme court of appeals, when conduct of the family law master evidences incompetence, misconduct, neglect of duty, or physical or mental disability.
(3) 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 family law 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. When a vacancy occurs in the office of family law master, or when an incumbent family law master declines to be reappointed for a succeeding term, 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 two nor more than five qualified persons, and shall submit the list to the governor. The governor shall appoint one of the named individuals as family law master.
§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 the West 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 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) On and after the first day of July, one thousand nine hundred ninety-four, a 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 of appeals 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) Prior to the first day of July, one thousand nine hundred ninety-four, a family law master shall receive as full compensation for his or her services an annual salary of thirty- five thousand dollars.
(b) After the first day of July, one thousand nine hundred ninety-four, a 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 shall be appointed by the family law master and serve at his or her will and pleasure.
(d) 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 thefirst 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.
(e) 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.
(f) 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 ofthe 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 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 eachof 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 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 expense of travel;
(3) Traditional patterns of practice by members of the bar; and
(4) Population variances between regions.
(c) Nothing contained herein shall prohibit the director of the administrative office of the supreme court of appeals, underthe general supervision of the chief justice of the supreme court of appeals, from temporarily assigning a family law master from one geographical region to another geographical region, from time to time as caseload, disqualification, recusal, annual leave or sick leave 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) 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 thisarticle:
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 temporary 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 family law master determines, in its his or her discretion, that the pleadings raise substantial issues concerning the identification of separate property or the division of marital property which may have a bearing on an award of support, the court may decline to refer a motion for support pendente lite to the family lawmaster; the family law master shall notify the court of this fact, and the circuit court shall refer the case to a commissioner of the court or to a temporary or special law master designated by the administrative office of the supreme court of appeals.
(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.
(9) (10) All actions to establish custody of a minor childor visitation with a minor child, including actions brought pursuant to the uniform child custody jurisdiction act and actions brought to establish grandparent visitation:
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. 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 as court costs, which costs may be assessed against either party orapportioned 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
, annulment or separate maintenance 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
, annulment or separate maintenance action matured for final hearing, fifty dollars for the first hour or any portion thereof, and thirty dollars perhour for each subsequent hour or any portion thereof.
(8) For an action to establish custody of a minor child, including habeas corpus proceedings, 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, including grandparent visitation, 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. Any oral or documentary evidence may be received, but the master shall exclude irrelevant, immaterial, or unduly repetitious evidence. 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. A magnetic tape or other electronic recording medium on which a hearing is recorded shall be indexed and securely preserved by the secretary clerk of the family law master and shall not be placed in the case file in the office of the circuit clerk:
Provided, That upon the request of the family law master, such magnetic tapes or other electronic recording media shall be stored by the clerk of the circuit court. For evidentiary purposes, a duplicate of such electronic recording prepared by the secretary clerk shall be a "writing" or "recording" as those terms are defined in rule 1001 of the West Virginia rules of evidence, and unless the duplicate is shown notto reflect the contents accurately, it shall be treated as an original in the same manner that data stored in a computer or similar data is regarded as an "original" under such rule. 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 with section 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 contemptand 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. Family law master's docket.

Every family law master shall establish a regular docket forscheduling all trials and hearings and providing a system 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. Upon the request of the family law master, the clerk of the circuit court shall, under the general direction of the master, maintain the master's docket, schedule trials and hearings, and deliver case files to the master.
{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 receive public 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 untilsuch support orders are modified, vacated, or superseded by an order of the circuit court.
(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 conclusions and 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 periodduring 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 sentto 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 twelve of this article, and procedural orders entered pursuant to the provisions of section two nine of this article, 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. Upon entry of a final order in any action for divorce, separate maintenance or annulment, the clerk of the circuit court shall deliver an attested copy of such order to the parties who have appeared in such action or their counsel of record, by personal delivery or by first class mail.
{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 presentedto 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, a copy 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 and regulations 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 shouldinclude 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 ormay, 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 the recommended 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, themaster 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 and which conform to standards established by rules promulgated by the supreme court of appeals. 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 matching funds 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 ofthe 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 tenth day of each month, transmit all fees and costs received during the next preceding month 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. 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 jointparticipation 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 for the 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 begiven 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 of work 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 the performance 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 alaw 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 5. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS AND VISITATION.

§48A-5-7. Visitation enforcement; contempt; penalties.
(a) Except as provided in subsection (b) of this section, the children's advocate may do either of the following in a dispute concerning visitation of a minor child:
(1) Apply a visitation adjustment policy established in accordance with the provisions of subsection (c) of this section, or
(2) Commence contempt proceedings under the provisions of this section.
(b) The children's advocate shall not invoke either option under subsection (a) of this section if the parties resolve their dispute through an informal joint meeting with the children'sadvocate.
(c) Each children's advocate may formulate a visitation adjustment policy which may be implemented by the children's advocate after it is approved by the chief judge of the circuit. Such policy shall be applied to the following visitation violations:
(1) Where a noncustodial parent has been wrongfully denied visitation; or
(2) Where a custodial parent has had his or her right to custody infringed upon by the actions of a noncustodial parent who has abused or exceeded his or her right of visitation.
(d) A visitation adjustment policy formulated and approved under the provisions of this section shall include all of the following:
(1) An adjustment of visitation shall be applied of the same type and duration as the visitation that was denied by the custodial parent or exceeded by the noncustodial parent, including, but not limited to, weekend visitation for weekend visitation, holiday visitation for holiday visitation, weekday visitation for weekday visitation, and summer visitation for summer visitation.
(2) An adjustment of visitation shall be scheduled to occur within thirteen months after the visitation violation occurred.
(3) The time of the visitation adjustment shall be chosen by the parent whose right of visitation or custody was violated.
(e) If a visitation adjustment policy is formulated and approved under this section, the office of the children's advocate shall keep an accurate record of alleged visitationviolations reported to the children's advocate. A parent claiming a visitation violation shall give to the children's advocate a written claim of such alleged visitation violation within seven days after the actions complained of are alleged to have occurred.
(f) If a visitation violation is alleged in a county in which a visitation adjustment policy has been formulated and approved under this section, the following shall apply:
(1) Within five days after receipt of a claim of a visitation violation, the office of the children's advocate shall mail to the parent who is alleged to have committed the violation, a notice by first class mail, directed to such person's last known address. The notice shall inform the parent of the following:
(A) When the visitation violation is alleged to have occurred;
(B) That it is proposed that a visitation adjustment be granted to the complaining parent;
(C) That if the parent alleged to have committed the visitation violation wishes to agree to a visitation adjustment he or she must notify the children's advocate, in writing, within fourteen days from the date of the notice, and must request a meeting with the children's advocate;
(D) That if he or she desires to contest the application of the visitation adjustment policy on the grounds that the claim of a visitation violation is incorrect or that a visitation adjustment is not proper because of mistakes of fact, he or she must, within fourteen days of the date of the notice, inform thechildren's advocate in writing of the reasons why the proposed adjustment is contested and must request a meeting with the children's advocate.
(2) After a final determination as to whether visitation was wrongfully denied by the custodial parent or the right of visitation was exceeded or abused by the noncustodial parent, the office of the children's advocate shall adjust the records of visitation violations accordingly.
(3) The parent found to be entitled to a visitation adjustment shall give to the office of the children's advocate and the other parent a written notice of the time the visitation adjustment will occur. such notice shall be given at least ten days before a makeup weekday or weekend visitation or at least thirty days before a makeup holiday or makeup summer visitation.
(g)(1) Except as provided in subsection (b) of this section, the office of the children's advocate may commence a civil or criminal contempt proceeding in accordance with the provisions of section twenty-two, article two, chapter forty-eight of this code to resolve a dispute concerning visitation of a minor child by filing with the circuit court a petition for an order to show cause why the parent alleged to have committed the visitation violation should not be held in contempt.
(2) If the court finds that the parent committed the visitation violation, the court shall find the parent in contempt and may do one or more of the following:
(A) Require additional terms and conditions consistent with the court's visitation order.
(B) After notice to both parties and a hearing, if requestedby a party, on any proposed modification of visitation, modify the visitation order to meet the best interests of the child. A modification sought by a parent charged with a visitation violation, if otherwise justified, shall not be denied solely because the parent is found to be in contempt.
(C) Order that a visitation adjustment be made.
(D) If appropriate under the provisions of section twenty-two, article two, chapter forty-eight of this code:
(i) Commit the contemnor to the county jail; or
(ii) Commit the contemnor to the county jail with the privilege of leaving the jail, during such hours as the court determines and under such supervision as the court considers necessary, for the purpose of allowing the contemnor to go to and return from his or her place of employment.
(3) A commitment under paragraph (D), subdivision (2) of this subsection shall not exceed forty-five days for the first adjudication of contempt or ninety days for any subsequent adjudication of contempt.
(4) A parent committed under paragraph (D), subdivision (2) of this subsection shall be released if the court has reasonable cause to believe that the parent will comply with the visitation order.
(5) If a parent is committed to jail under the provisions of subparagraph (ii), paragraph (D), subdivision (2) of this subsection and violates the conditions of the court, the court may commit the person to the county jail without the privilege provided under said subparagraph (ii) for the balance of the period of commitment imposed by the court.
(6) If a person is committed to jail under the provisions of subparagraph (ii), paragraph (D), subdivision (2) of this subsection and willfully fails to return to the place of confinement within the time prescribed, such person shall be considered to have escaped from custody and shall be guilty of a misdemeanor, punishable by imprisonment for not more than one year.
§48A-5-9. Misrepresentation of delinquent support payments; penalty.

If any person alleging that an obligor is delinquent in the payment of child support knowingly and willfully makes any false, fictitious or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, thus misrepresenting the amount of child support actually due and owing, and if such statement, representation, writing or document causes a children's advocate in reliance thereon to institute an action or proceeding or otherwise commence to enforce a support obligation under this article or under section twenty-two, article two, chapter forty-eight of this code, such person shall be guilty of false swearing, and, upon conviction thereof, shall be punished as provided by law for such offense.
ARTICLE 6. ESTABLISHMENT OF PATERNITY.

§48A-6-1. Paternity proceedings.

(a) A civil action to establish the paternity of a child and to 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 maybe brought by any of the following persons:
(a) If the defendant is a nonresident, a paternity proceeding may be instituted, by verified complaint, in the circuit court of the county where the plaintiff or the child resides. If the defendant is a resident, a paternity proceeding may be instituted, by verified complaint, in the circuit court of the county where the defendant 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. If paternity is established, appointed counsel shall also represent the defendant with regard to 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.
(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.
(d) If the proceeding is brought by a married woman pursuant to the provisions of subdivision two, subsection (e) of thissection, the court shall appoint a competent attorney to act as guardian ad litem on behalf of the child.
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 when required 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. Aprobation 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. All equipment 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.
§49-5-16b. Juvenile facilities review panel; compensation; expenses.

The supreme court of appeals shall appoint and maintain a five-member panel, consisting of five persons who are willing toserve in such capacity, to visit, inspect and interview residents of all juvenile institutions, detention facilities and places in the state wherein juveniles may be held involuntarily, to make public reports of such reviews, and to perform such other duties as shall be prescribed by the governor. The juvenile facilities review panel shall not visit, inspect or interview residents of county jails or regional jails, or report with regard to such reviews, except to the extent required to investigate and make a determination as to whether or not juveniles are being housed in such facilities in violation of law:
Provided, That in visiting and inspecting county jails and regional jails for such purpose, the panel may not inspect records, reports, documents and papers or interview law-enforcement officers or correctional officers except during normal business hours. The panel shall have no authority to enforce jail and prison standards for county jails and regional jails as they pertain to adults confined therein. In visiting and inspecting any facility pursuant to the provisions of this section, the panel shall have prompt and direct access to the head of the facility for any purpose pertaining to the performance of functions and responsibilities under this section. The members so appointed shall serve without compensation for their time, however, each member may be reimbursed for reasonable and necessary expenses in the performance of their duties under this article.
Copies of the panel's report shall be submitted annually to the president of the Senate and the speaker of the House of Delegates.
Pursuant to the provisions of article ten, chapter four ofthis code, the juvenile facilities review panel shall continue to exist until the first day of July, one thousand nine hundred ninety-four, to allow for the completion of a performance audit by the joint committee on government operations.
ARTICLE 5B. WEST VIRGINIA JUVENILE OFFENDER REHABILITATION ACT.

§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 prevention and 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 programsto 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 of commitments 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 agreements with private agencies or with agencies of the state and its political subdivisions to effectuate the purpose of this article.
CHAPTER 50. MAGISTRATE COURTS.

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 referralfrom 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.
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 and regulations regarding the use of credit cards to pay fines, and such rules and regulations 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 such 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 costs, fines, forfeitures or penalties imposed by the magistrate court for hunting or fishing violations as described in chapter twenty of this code, or for motor vehicle violations as described in section three-a, article three, chapter seventeen-b of this code are not paid in full within ninety days of the judgment, the magistrate court clerk or, upon a judgment rendered on appeal, the circuit clerk must notify the director of the division of natural resources or the division of motor vehicles, whichever is applicable, of such 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 or penalties are paid.
(c) If a person charged with a motor vehicle violation, as defined in section three-a, article three, chapter seventeen-b of this code, fails to appear or otherwise respond in court, the magistrate court must notify the director of the division of motor vehicles thereof within fifteen days of the scheduled date to appear, unless such 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 renderingjudgment.
(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 court, the clerk of the magistrate 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 file 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. The clerk of the county commission shall record and index the abstract of judgment without charge or fee to the prosecuting attorney, and 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.
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.
Potential petit jurors shall be selected by the clerk of the circuit court 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 a list of individuals compiled from not less than two of thefollowing 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 real property taxes to compile and maintain a list of freeholders tobe 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 theoccupation 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 reimbursed for his or her expenses 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 reimbursed for their expenses 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 reimbursed for his or her expenses as a juror pursuant to the provisions of section twenty-one of this article, section thirteen, article two of this chapter, orpursuant to an 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;
(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 juror's residence to the place of holding court and return and shall be compensated reimbursed for other expenses incurred as a result of required attendance at sessions of the court 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 reimbursement shall be based on vouchers submitted to the sheriff. Such mileage and compensation 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 against whom 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 forthwithpaid 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. In circuit court cases the jury cost shall be the actual cost of the jurors' service, and in magistrate court cases, the jury cost assessed shall be two hundred dollars. Such costs shall be assessed against the parties 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, (A) 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 (B) against the losing party upon a jury verdict or other dispositive action by the court.
(3) In the discretion of the court, and only when fairnessand justice so require, a circuit court or magistrate court may forego assessment of the jury fee, but shall set out the reasons therefor in a written order:
Provided, That a waiver of the assessment of a jury fee in a case tried before a jury in magistrate court may only be permitted after the circuit court, or the chief judge thereof, has reviewed the reasons set forth in the order by the magistrate and has approved such waiver.
(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.
§52-1-18. When juror not entitled to compensation reimbursement.

No juror who departs without leave of the court or who, being summoned as a witness for the state, charges for attendance as such, may be entitled to receive any compensation reimbursement for services as a juror.
§52-1-20. Payment of compensation reimbursement.

The method of payment of jurors shall be determined by the chief judge and approved by the state tax commissioner. It is the duty of the clerk, as soon as practicable after the adjournment of the court or before the adjournment of the courtat such time as the chief judge may direct, to deliver to the sheriff of the county a certified accounting of the amount to which each juror is entitled. If any sheriff fails to pay any allowance as required by law, the sheriff may be proceeded against as for a contempt of court.
Any allowance paid by the sheriff under the provisions of this section shall be repaid to the sheriff out of the state treasury upon the production of satisfactory proof that the same has actually been paid by the sheriff. Proof of payment shall be in the form of a complete itemized statement indicating the total amount eligible for reimbursement.
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 from the 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 forthe 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.
§52-2-13. Compensation and mileage of grand jurors.

Any person who serves upon a grand jury shall be compensated for the number of days served. Grand jurors A grand juror shall be paid mileage, at the rate set by the commissioner of finance and administration for state employees, for travel expenses incurred in traveling from the grand juror's residence to the place of the holding of the grand jury and return, and shall be compensated reimbursed for other expenses incurred as a result of required attendance at sessions of the grand jury 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.
CHAPTER 59. FEES, ALLOWANCES AND COSTS; NEWSPAPERS;

LEGAL ADVERTISEMENTS.


ARTICLE 2. COSTS GENERALLY.
§59-2-1. Suits by poor persons financially unable to pay.

A poor person may be allowed by a court to sue or defend a suit therein without paying fees, or costs, whereupon he shall have from any counsel which the court may assign him and from all officers, all needful services and process, and also theassistance of witnesses, without any fees to them therefor, except what may be included in the costs recoverable from the opposite party. A poor person, within the meaning of this section, shall be one who shall make and file in the court, or with the officer whose services may be demanded or required, an affidavit stating that he is pecuniarily unable to pay fees or costs, or counsel fees, and upon the filing of such affidavit in court or with any officer, then such officer shall perform any services required by law to be performed by him, as if the legal fees for such services had been paid. If any person shall swear falsely in such affidavit, and shall represent himself to be a poor person within the meaning of this article, when in fact he is pecuniarily able to pay the fees fixed by law, or to pay reasonable counsel fees, in any suit or action wherein he is a party, he shall be guilty of false swearing, and, upon conviction thereof, shall be punished as provided by law for such offense.
(a) Any court of this state may authorize the commencement, prosecution or defense of any civil suit, action or proceeding, or an appeal therein, without prepayment of fees and costs or security therefor, by a natural person who files with the court an affidavit that he or she is financially unable to pay the fees or costs or give security therefor.
(1) The clerk of the court and all other officers of the court shall issue and serve all process, and perform all duties in such cases.
(2) The court may dismiss the action if the allegation that the affiant is financially unable to pay is untrue, or if satisfied that the action is frivolous or malicious.
(3) Judgment may be rendered for costs at the conclusion of the action, where otherwise authorized by law, and be taxable against a losing party who has not been determined to be financially unable to pay.
(4) Upon the filing of an affidavit in accordance with this subsection, seeking an appeal in a civil case from a circuit court to the supreme court of appeals, the supreme court of appeals may direct payment by the administrative office of the supreme court of appeals of the expenses of duplicating the record on appeal after it is transmitted by the clerk of the circuit court. The transcript of proceedings before the circuit court, if the petition for appeal is to be filed with the transcript, shall be be provided by the court reporter without cost:
Provided, That actual expenses of the court reporter for supplies used in preparing the transcript may be paid when authorized by the director of the administrative office of the supreme court of appeals. An appeal from a circuit court to the supreme court of appeals may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.
(b) The administrative office of the supreme court of appeals, with the approval of the court or the chief justice thereof, shall establish and periodically review and update financial guidelines for determining the eligibility of civil litigants to proceed in forma pauperis.
(c) The supreme court of appeals shall adopt a financial affidavit form for use by persons seeking a waiver of fees, costs or security pursuant to the provisions of this section. Theaffidavit shall state the nature of the action, defense or appeal and the affiant's belief that he or she is entitled to redress. The form shall elicit information from the affiant which will enable the court in which it is filed to consider the following factors in determining whether the affiant is financially unable to pay fees, costs or security:
(1) Current income prospects, taking into account seasonal variations in income;
(2) Liquid assets, assets which may provide collateral to obtain funds, and other assets which may be liquidated to provide funds to pay fees, costs or security;
(3) Fixed debts and obligations, including federal, state and local taxes and medical expenses;
(4) Child care, transportation and other expenses necessary for employment;
(5) Age or physical infirmity of resident family members;
(6) Whether the person has paid or will pay counsel fees, or whether counsel will be provided by a private attorney on a contingent fee basis, an attorney pro bono, a legal services attorney, a children's advocate, or some other attorney at no cost or a reduced cost to the affiant.
(7) The consequences for the individual if a waiver of fees, costs or security is denied.
(d) If any person shall swear falsely in such affidavit, and shall represent himself or herself to be financially unable to pay fees, costs or security, when in fact he or she is financially able to pay the fees, costs or security in any suit or action wherein he or she is a party, he or she shall be guiltyof false swearing, and, upon conviction thereof, shall be punished as provided by law for such offense.
CHAPTER 62. CRIMINAL PROCEDURE.

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 a probation officer and a clerical assistant in each county of such circuit or may appoint the same person as a probation officer and also the same person as a clerical assistant in two or more such counties in such circuit.
Subject to the approval of the supreme court of appeals and in accordance with its rules, a judge of a circuit court whose circuit comprises more than one county may appoint a probation officer and a clerical assistant in each county of the circuit or may appoint the same persons to serve in these respective positions 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 said state probation and parole officers, shall be rendered at noadditional 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, article eight, chapter sixty-one, articles eight-b and eight-d, chaptersixty-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 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, be required to serve a period of confinement in the county jail of the county in which he was convicted for a period not to exceedone 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.