ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 358
(Senators Wooton, Anderson, Dittmar, Felton,
Grubb, Holliday, Humphreys, Macnaughtan, Plymale,
Wiedebusch and Yoder, original sponsors)
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[Passed April 10, 1993; in effect ninety days from passage.]
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AN ACT 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
nineteen, article one, chapter fifty-one of said code; to
amend article ten, chapter eight of said code by adding
thereto a new section, designated section two-b; to amend
article three, chapter seventeen-b of said code by adding
thereto a new section, designated section three-c; to amend
and reenact sections eleven, thirteen, fifteen 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; to amend article five of said chapter
by adding thereto three new sections designated sections
seven, seven-a and nine; to amend and reenact sections one,
two, four and five, article six of said chapter; to amend
and reenact sections fifteen and sixteen-b, article five,
chapter forty-nine of said code; to amend and reenact
section four, article five-b of said chapter; to amend and
reenact section three, article two, chapter fifty of said
code; to further amend said article by adding thereto a new
section, designated section three-a; to amend and reenact
section two-a, article three of said chapter; to further
amend said article by adding thereto a new section,
designated section six-a; to amend and reenact section
thirteen, article five of said chapter; to amend and reenact
sections four, five, five-a, six, seven, seven-a, eight,
fifteen, sixteen, seventeen, eighteen and twenty, article
one, chapter fifty-two of said code; to amend and reenact
sections three and thirteen, article two of said chapter; to
amend article one, chapter fifty-nine of said code by adding
thereto a new section, designated section twelve; to amend
and reenact section one, article two of said chapter; to
amend article four, chapter sixty-two of said code by adding
thereto a new section, designated section seventeen; to
amend and reenact sections five, nine and fifteen, article
twelve of said chapter; and to amend and reenact section
two, article thirteen of said chapter, all relating to
promoting the cost-efficient administration of courts;
suspension of licenses for failure to pay fines imposed by
municipal courts; suspending vehicle operating licenses forfailure to pay fines; hearing; guardian for infants,
incompetents and insane parties; temporary relief in divorce
annulment or separate maintenance; relief upon granting
final order of divorce, annulment or separate maintenance;
disclosure of assets; recodifying the laws relating to
family law masters; misrepresentation of delinquent support
payments; providing equitable remedy for establishment of
paternity and support; child welfare, juvenile proceedings;
transferring appointment of juvenile probation officers from
the division of health and human services to circuit courts
with approval of the supreme court of appeals; salaries and
all expenses of said officer to be paid by the supreme court
of appeals; county commissions to provide office facilities
for said officers; authority of the juvenile review
facilities review panel; sunset provisions for said panel;
magistrate courts granted jurisdiction to conduct
preliminary examinations on probation violations;
authorizing magistrates to suspend sentences and impose
unsupervised probation; exception; conditions of probation;
revocation of probation; suspension of driver's license and
hunting and fishing license for failure to pay fines and
penalties imposed; suspension of driver's license for
failure to appear to answer criminal charges; failure to pay
fines and penalties constitutes a lien against property of
defendant; notice to defendant of consequences of failure to
pay fines and penalties effect of financial inability to
pay; deposits of moneys collected by magistrates to be ininterest-bearing accounts; payment of interest into general
revenue fund of state treasury; appeals from magistrate
court in criminal cases; exception as to traffic offenses;
jury selection; eliminating jury commissions; petit jurors
to be selected by clerks of the circuit courts;
reimbursement of expenses of jurors; assessment of jury
costs; amount; waiver of assessment of jury costs by order
of circuit court; jury costs remitted to sheriff by court
clerk; surety liable for remission of costs on clerk's
official bond; jury costs to be paid into state treasury;
grand juries; selection of grand jurors by clerk of circuit
court; reimbursement of expenses of grand jurors; suits by
poor persons financially unable to pay; procedures; appeals;
eligibility of civil litigants to proceed in forma pauperis;
factors to be considered for eligibility; probationer to pay
for costs of supervision; fees collected to be deposited in
the state general revenue fund; and commissioner of
corrections to supervise all persons released on parole and
probationers released from other states residing in this
state pursuant to any interstate compact.
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 nineteen,
article one, chapter fifty-one of said code be repealed; that
article ten, chapter eight of said code be amended by adding
thereto a new section, designated section two-b; that articlethree, chapter seventeen-b of said code be amended by adding
thereto a new section, designated section three-c; that sections
eleven, thirteen, fifteen 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 be amended and
reenacted; that article five of said chapter be amended by adding
thereto three new sections, designated section seven, seven-a and
nine; that sections one, two, four and five, article six of said
chapter be amended and reenacted; that sections fifteen and
sixteen-b, article five, chapter forty-nine of said code be
amended and reenacted; that section four, article five-b of said
chapter be amended and reenacted; that section three, article
two, chapter fifty of said code be amended and reenacted; that
said article two be further amended by adding thereto a new
section, designated section three-a; that section two-a, article
three of said chapter be amended and reenacted; that said article
three be further amended by adding thereto a new section,
designated section six-a; that section thirteen, article five of
said chapter be amended and reenacted; that sections four, five,
five-a, six, seven, seven-a, eight, fifteen, sixteen, seventeen,
eighteen and twenty, article one, chapter fifty-two of said code
be amended and reenacted; that sections three and thirteen,
article two of said chapter be amended and reenacted; that
article one, chapter fifty-nine of said code be amended by adding
thereto a new section, designated section twelve; that section
one, article two of said chapter be amended and reenacted; thatarticle four, chapter sixty-two of said code be amended by adding
thereto a new section, designated section seventeen; that
sections five, nine and fifteen, article twelve of said chapter
be amended and reenacted; and that section two, article thirteen
of said chapter be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 10. POWERS AND DUTIES OF CERTAIN OFFICERS.
§8-10-2b. Suspension of licenses for failure to pay fines and
costs or failure to appear in court.
(a) If costs, fines, forfeitures or penalties imposed by the
municipal court upon conviction of a person for a criminal
offense as defined in section three-c, article three, chapter
seventeen-b of this code are not paid in full within ninety days
of the judgment, the municipal court clerk or, upon a judgment
rendered on appeal, the circuit clerk shall notify the division
of motor vehicles of such failure to pay: Provided, That at the
time the judgment is imposed, the judge shall provide the person
with written notice that failure to pay the same as ordered shall
result in the suspension of such person's license or privilege to
operate a motor vehicle in this state and that such suspension
could result in the cancellation of, the failure to renew or the
failure to issue an automobile insurance policy providing
coverage for such person or such person's family: Provided,
however, That the failure of the judge to provide such notice
shall not affect the validity of any suspension of such person's
license or privilege to operate a motor vehicle in this state.
For purposes of this section, payment shall be stayed during anyperiod an appeal from the conviction which resulted in the
imposition of such costs, fines, forfeitures or penalties is
pending.
Upon such notice, the division of motor vehicles shall
suspend the person's driver's license or privilege to operate a
motor vehicle in this state until such time that the costs,
fines, forfeitures or penalties are paid.
(b) Notwithstanding the provisions of this section to the
contrary, the notice of the failure to pay such costs, fines,
forfeitures or penalties shall not be given where the municipal
court, upon application of the person upon whom the same were
imposed filed prior to the expiration of the period within which
the same are required to be paid, enters an order finding that
such person is financially unable to pay all or a portion of the
same: Provided, That where the municipal court, upon finding
that the person is financially unable to pay a portion thereof,
requires the person to pay the remaining portion thereof, the
municipal court shall notify the division of motor vehicles of
such person's failure to pay the same if the same is not paid
within the period of time ordered by such court.
(c) If a person charged with a criminal offense fails to
appear or otherwise respond in court, the municipal court shall
notify 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 judge.
Upon such notice, the division of motor vehicles shall suspend
the person's driver's license or privilege to operate a motorvehicle in this state until such time that the person appears as
required.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 3. CANCELLATION, SUSPENSION OR REVOCATION OF LICENSES.
§?17B-3-3c. Suspending license for failure to pay fines or
penalties imposed as the result of criminal conviction or
for failure to appear in court.
(a) The division shall suspend the license of any resident
of this state or the privilege of a nonresident to drive a motor
vehicle in this state upon receiving notice from a circuit court,
magistrate court or municipal court of this state, pursuant to
section two-b, article three, chapter fifty, or section two-b,
article ten, chapter eight, or section seventeen, article four,
chapter sixty-two of this code, that such person has defaulted on
the payment of costs, fines, forfeitures, penalties or
restitution imposed on the person by the circuit court,
magistrate court or municipal court upon conviction for any
criminal offense by the date such court had required such person
to pay the same, or that such person has failed to appear in
court when charged with such an offense. For the purposes of
this section, section two-b, article three, chapter fifty;
section two-b, article ten, chapter eight; and section seventeen,
article four, chapter sixty-two of this code, "criminal offense"
shall be defined as any violation of the provisions of this code,
or the violation of any municipal ordinance, for which the
violation thereof may result in a fine, confinement in jail or
imprisonment in the penitentiary of this state: Provided, Thatany parking violation or other violation for which a citation may
be issued to an unattended vehicle shall not be considered a
criminal offense for the purposes of this section, section two-b,
article ten, chapter eight; section two-b, article three, chapter
fifty; or section seventeen, article four, chapter sixty-two of
this code.
(b) A copy of the order of suspension shall be forwarded to
such person by certified mail, return receipt requested. No
order of suspension becomes effective until ten days after
receipt of a copy of such order. The order of suspension shall
advise the person that because of the receipt of notice of the
failure to pay costs, fines, forfeitures or penalties, or the
failure to appear, a presumption exists that the person named in
the order of suspension is the same person named in the notice.
The commissioner may grant an administrative hearing which
substantially complies with the requirements of the provisions of
section two, article five-a, chapter seventeen-c of this code
upon a preliminary showing that a possibility exists that the
person named in the notice of conviction is not the same person
whose license is being suspended. Such request for hearing shall
be made within ten days after receipt of a copy of the order of
suspension. The sole purpose of this hearing shall be for the
person requesting the hearing to present evidence that he or she
is not the person named in the notice. In the event the
commissioner grants an administrative hearing, the commissioner
shall stay the license suspension pending the commissioner's
order resulting from the hearing.
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. The attorney shall be appointed without
motion and prior to an entry of any order requiring blood
testing.
§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) In every action where visitation is awarded, the court
shall specify a schedule for visitation by the noncustodial
parent: Provided, That with respect to any existing order of
temporary relief which provides for visitation but which does not
provide a schedule for visitation by the noncustodial parent,
upon motion of any party, notice of hearing and hearing, the
court shall issue an order which provides a specific schedule for
visitation by the noncustodial parent.
(4) 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 section eight,
article two, chapter forty-eight-a of this code.
(5) 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 of this article.
(6) (A) The court may compel either party to pay attorney's
fees and court costs reasonably necessary to enable the other
party to prosecute or defend the action in the trial court. The
question of whether or not a party is entitled to temporary
alimony is not decisive of that party's right to a reasonable
allowance of attorney's fees and court costs. An order fortemporary 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.
(7) As an incident to requiring the payment of temporary
alimony, 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. If there is no such
existing policy or policies, the court may order that such health
care insurance coverage be paid for by a party if the court
determines that such health care coverage is available to that
party at a reasonable cost. Payments made to an insurer pursuant
to this subdivision, either directly or by a deduction from
wages, may be deemed to be temporary alimony.
(8) The court may grant the exclusive use and occupancy ofthe 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. 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: Provided, That if the court does not set forth in the
order that a portion of such payments is to be deemed temporary
child support, then all such payments made pursuant to this
subdivision shall be deemed to be temporary alimony: Provided,
however, That the court may order such payments to be made
without 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 theprovisions of this subdivision. If the payments are not
designated in an order and the parties have waived any right to
receive alimony, the court may designate the payments upon motion
by any party. 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.
(9) As an incident to requiring the payments of temporary
alimony, the court may grant the exclusive use and possession of
one or more motor vehicles to either of the parties during the
pendency of the action. The court may require payments to third
parties in the form of automobile loan installments or insurance
coverage, and any such payments made pursuant to this subdivision
shall be deemed to be temporary alimony: Provided, That the
court may order such payments to be made without denominating
them as temporary alimony, reserving such decision until such
time as the court determines the interests of the parties in
marital property and equitably divides the same: Provided,
however, That at the time the 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 shallabrogate 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.
(10) When the pleadings include a specific request for
specific property or raise issues concerning the equitable
division of marital property, the court may enter such order as
is reasonably necessary to preserve the estate of either or both
of the parties, including the imposition of a constructive trust,
so that such property be forthcoming to meet any order which may
be made in the action, and may compel either party to give
security to abide such order, or may require the property in
question to be delivered into the temporary custody of a third
party. The court may further order either or both of the parties
to pay the costs and expenses of maintaining and preserving the
property of the parties during the pendency of the action:
Provided, That at the time the court determines the interests of
the parties in marital property and equitably divides the same,
the court may consider the extent to which payments made for the
maintenance and preservation of property under the provisions 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. 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.
(11) Unless a contrary disposition is ordered pursuant to
other provisions of this section, then upon the motion of a
party, the court may compel a party to deliver to the movingparty any of his or her separate estate which may be in the
possession or control of the respondent party and may make any
further order that is necessary to prevent either party from
interfering with the separate estate of the other party.
(12) 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. This order
may permanently enjoin the offending party from entering the
school, business or place of employment of the other for the
purpose of molesting or harassing the other; or from contacting
the other, in person or by telephone, for the purpose of
harassment or threats; or from harassing or verbally abusing the
other in a public place. 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 income 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 income 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 beforethe court: Provided, That child support shall be established in
accordance with support guidelines promulgated pursuant to
section eight, article two, chapter forty-eight-a of this code.
(c) At any time after a party is abandoned or deserted or
after the parties to a marriage have lived separate and apart in
separate places of abode without any cohabitation, the party
abandoned or either party living separate and apart may apply for
relief pursuant to this section by instituting an action for
divorce as provided in section ten of this article, alleging that
the plaintiff reasonably believes that the period of abandonment
or of living separate and apart will continue for the period
prescribed by the applicable provisions of section four of this
article. If the period of abandonment or living separate and
apart continues for the period prescribed by the applicable
provisions of section four of this article, the divorce action
may proceed to a hearing as provided in sections twenty-four and
twenty-five of this article without a new complaint being filed:
Provided, That the party desiring to proceed to a hearing shall
give the opposing party at least twenty days' notice of the time,
place and purpose of the hearing, unless the opposing party files
a waiver of notice of further proceedings, signed by 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 the parties to comply with thedisclosure 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 said
section. 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. The
potential injury, loss or damage may be anticipated when the
following conditions exist: Provided, That the following list of
conditions 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 orderunder the provisions of this section or section fifteen of this
article; and
(2) The moving party or his or her attorney certifies in
writing any effort that has been made to give the notice and the
reasons supporting his or her claim that notice should not be
required.
(f) Every ex parte order granted without notice shall be
endorsed with the date and hour of issuance; shall be filed
forthwith in the circuit clerk's office and entered of record;
and shall set forth the finding of the court that unless the
order is granted without notice there is probable cause to
believe that existing conditions will result in immediate and
irreparable injury, loss or damage to the 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, andon 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) (1) 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:
(A) The custodial parent shall be required to authorize
school authorities in the school in which the child is enrolled
to release to the noncustodial parent copies of any and all
information concerning the child which would otherwise be
properly released to the custodial parent;
(B) The custodial parent shall be required, promptly after
receipt, to transmit to the noncustodial 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;
(C) The custodial parent shall be required, when
practicable, to arrange appointments for parent-teacher
conferences at a time when the noncustodial parent can be
present;
(D) The custodial parent shall be required to authorizemedical providers to release to the noncustodial parent copies of
any and all information concerning medical care provided to the
child which would otherwise be properly released to the custodial
parent;
(E) The custodial parent shall be required to promptly
inform the noncustodial parent of any illness of the child which
requires medical attention; or, if the child is in the actual
physical custody of the noncustodial parent during a period of
visitation, the noncustodial parent shall be required to promptly
inform the custodial parent of any illness of the child which
requires medical attention;
(F) The custodial parent shall be required to consult with
the noncustodial parent prior to any elective surgery being
performed on the child; and in the event emergency medical
procedures are undertaken for the child which requires the
parental consent of either parent, if time permits, the other
parent shall be consulted, or if time does not permit such
consultation, the other parent shall be promptly informed of such
emergency medical procedures: Provided, That the same duty to
inform the custodial parent applies to the noncustodial parent in
the event that the emergency medical procedures are required
while the child is in the physical custody of the noncustodial
parent during a period of visitation: Provided, however, 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 parental consent prior to
providing medical care or performing medical procedures.
(2) In the event a custodial parent shall fail or refuse to
authorize the release of school or medical records as provided
for by subdivision (1) of this subsection, then upon the ex parte
application of the noncustodial parent, the family law master
shall prepare an order for entry by the circuit court which
appoints the family law master as a special commissioner
authorized to execute a consent for the release of such records,
and direct it to the appropriate school authorities or medical
providers.
§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 are to
be ordinarily made from a party's income, but 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. An award of 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 andout of the residence of the custodial parent or other person or
persons having custody, as may be appropriate under the
circumstances. In every action where visitation is awarded, the
court shall specify a schedule for visitation by the noncustodial
parent: Provided, That with respect to any existing order which
provided for visitation but which does not provide a specific
schedule for visitation by the noncustodial parent, upon motion
of any party, notice of hearing, and hearing, the court shall
issue an order which provides a specific schedule of visitation
by the noncustodial parent.
(2) When the action involves a minor child or children, the
court shall require either party to pay child support in the form
of periodic installments for the maintenance of the minor
children of the parties in accordance with support guidelines
promulgated pursuant to section eight, article two, chapter
forty-eight-a of this code. Payments of child 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 of this article.
(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 ofhealth care and hospitalization of the other party: 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. Payments made to an
insurer pursuant to this subdivision, either directly or by a
deduction from wages, shall be deemed to be alimony 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 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.
(5) 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 casessupported 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, property taxes and insurance coverage if
the amount of such coverage is reduced to a fixed monetary amount
set forth in the court's order. 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: 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. If the payments are not designated in an order and
the parties have waived any right to receive alimony, the court
may designate the payments upon motion by any party. 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) 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.
(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.
(8) Unless a contrary disposition 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
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.
(9) When allegations of abuse have been proven, the court
shall enjoin the offending party from molesting or interferingwith the other, or otherwise imposing any restraint on the
personal liberty of the other, or interfering with the custodial
or visitation rights of the other. Such order may permanently
enjoin the offending party from entering the school, business or
place of employment of the other for the purpose of molesting or
harassing the other; or from contacting the other, in person or
by telephone, for the purpose of harassment or threats; or from
harassing or verbally abusing the other in a public place.
(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.
(c) 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) 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 motion of eitherparty, revise or alter the order concerning the maintenance of
the parties, or either of them, and make a new order concerning
the same, issuing it forthwith, as the altered circumstances or
needs of the parties may render necessary to meet the ends of
justice.
The court may also from time to time afterward, upon motion
of either of the parties and upon proper service, revise or alter
such order to grant relief pursuant to subdivision (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 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
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 promulgatedpursuant to the provisions of said section.
In granting relief under this subsection, the court may,
when other means are not conveniently available, alter any prior
order of the court with respect to the distribution of marital
property, if such property is still held by the parties, and if
necessary to give effect to a modification of alimony, child
support or child custody or necessary to avoid an inequitable or
unjust result which would be caused by the manner in which the
modification will affect the prior distribution of marital
property.
(f) 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. 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 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) 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. When alimony is to be paid pursuant to the terms ofa 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 as a part of its order whether
such payments of alimony are to be continued beyond the
remarriage of the payee party or cease.
(h) In addition to the 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 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 conviction
has become final; or
(3) To have actually abandoned or deserted his or her spouse
for six months.
(j) Whenever under the terms of this section or section
thirteen of this article a court enters an order requiring the
payment of alimony or child support, if the court anticipates the
payment of such alimony or child support or any portion thereof
to be paid out of "disposable retired or retainer pay" as that
term is defined in 10 U.S.C. §1408, relating to members or former
members of the uniformed services of the United States, the court
shall specifically provide for the payment of an amount,
expressed in dollars or as a percentage of disposable retired or
retainer pay, from the disposable retired or retainer pay of the
payor party to the payee party.
(k) Any order which provides for the custody or support of
a minor child shall include:
(1) The name of the custodian;
(2) The amount of the support payments;
(3) The date the first payment is due;
(4) The frequency of the support payments;
(5) The event or events which trigger termination of the
support obligation;
(6) A provision regarding wage withholding;
(7) The address where payments shall be sent;
(8) A provision for medical support;
(9) When child support guidelines are not followed, a
specific written finding pursuant to section eight, article two,
chapter forty-eight-a of this code.
(l) (1) 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:
(A) The custodial parent shall be required to authorize
school authorities in the school in which the child is enrolled
to release to the noncustodial parent copies of any and all
information concerning the child which would otherwise be
properly released to the custodial parent;
(B) The custodial parent shall be required, promptly after
receipt, to transmit to the noncustodial 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;
(C) The custodial parent shall be required, when
practicable, to arrange appointments for parent-teacher
conferences at a time when the noncustodial parent can be
present;
(D) The custodial parent shall be required to authorize
medical providers to release to the noncustodial parent copies of
any and all information concerning medical care provided to the
child which would otherwise be properly released to the custodial
parent;
(E) The custodial parent shall be required to promptly
inform the noncustodial parent of any illness of the child whichrequires medical attention; or, if the child is in the actual
physical custody of the noncustodial parent during a period of
visitation, the noncustodial parent shall be required to promptly
inform the custodial parent of any illness of the child which
requires medical attention;
(F) The custodial parent shall be required to consult with
the noncustodial parent prior to any elective surgery being
performed on the child; and in the event emergency medical
procedures are undertaken for the child which require the
parental consent of either parent, if time permits, the other
parent shall be consulted, or if time does not permit such
consultation, the other parent shall be promptly informed of such
emergency medical procedures: Provided, That the same duty to
inform the custodial parent applies to the noncustodial parent in
the event that the emergency medical procedures are required
while the child is in the physical custody of the noncustodial
parent during a period of visitation: Provided, however, 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 parental consent prior to
providing medical care or performing medical procedures.
(2) In the event a custodial parent shall fail or refuse to
authorize the release of school or medical records as provided
for by subdivision (1) of this subsection, then upon the ex parte
application of the noncustodial parent, the family law master
shall prepare an order for entry by the circuit court which
appoints the family law master as a special commissionerauthorized to execute a consent for the release of such records
and direct it to the appropriate school authorities or medical
providers.
§48-2-33. Disclosure of assets required.
(a) 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) The disclosure required by this section may be made by
each party individually or by the parties jointly. Assets
required to be disclosed shall include, but shall not be limited
to, real property, savings accounts, stocks and bonds, mortgages
and notes, life insurance, health insurance coverage, interest in
a partnership or corporation, tangible personal property, income
from employment, future interests whether vested or nonvested and
any other financial interest or source.
(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 liabilities isrequired by law and deliberate failure to provide complete
disclosure as ordered by the court constitutes false swearing.
(d) Nothing contained in this section shall be construed to
prohibit the court from ordering discovery pursuant to rule
eighty-one of the rules of civil procedure. Additionally, the
court may on its own initiative and shall at the request of
either party require the parties to furnish copies of all state
and federal income tax returns filed by them for the past two
years and may require copies of such returns for prior years.
(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:
(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.
(2) If any party deliberately or negligently fails to
disclose information which is required by this section and in
consequence thereof any asset or assets with a fair market valueof 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.
(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.
(4) A person who knowingly provides incorrect information orwho deliberately fails to disclose information pursuant to the
provisions of this section is guilty of false swearing.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 2. WEST VIRGINIA CHILD ADVOCATE OFFICE.
§48A-2-8. Guidelines for child support awards.
(a) The director of the child advocate office shall, by
legislative rule, establish guidelines for child support award
amounts so as to ensure greater uniformity by those persons who
make child support recommendations and enter child support orders
and to increase predictability for parents, children and other
persons who are directly affected by child support orders. There
shall be a rebuttable presumption, in any proceeding before a
family law master or circuit court judge for the award of 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 madepursuant 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 financialcontributions of both parents in relationship to total income, so
as to establish and equitably apportion the child support
obligation. Under the guidelines, the child support obligation
of each parent will vary proportionately according to their
individual incomes.
(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 thefamily 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 increases, the expenditures for the children as a
group increase and the expenditures on each individual child
decrease; so that due to increasing economies of scale and 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, after
consulting with the supreme court of appeals, circuit judges and
family law masters, 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 obligation 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) 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 their service for
a term of office ending on the thirtieth day of June, one
thousand nine hundred ninety-four. Before the first day of July,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 fourth year
thereafter, and ending on the thirtieth day of June, one thousand
nine hundred ninety-eight, and on a like date in every fourth
year thereafter. Upon the expiration of his or her term, a
family law master may continue to perform the duties of the
office until the governor makes the appointment, or for sixty
days after the date of the expiration of the master's term,
whichever is earlier. If a vacancy occurs in the office of
family law master, the governor shall, within thirty days after
such vacancy occurs, fill the 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 or her 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.
(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 board
created pursuant to the rules of procedure for the handling of
complaints against justices, judges, magistrates and family lawmasters, 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 supreme court of appeals may remove a master when
conduct of the family law master evidences incompetence,
unsatisfactory performance, misconduct, neglect of duty or
physical or mental disability.
§48A-4-2. Qualifications of family law masters.
(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.
(b) No person may assume the duties of family law master
unless he or she has first attended and completed a course of
instruction in principles of family law and procedure which is
given in accordance with the supervisory rules of the supreme
court of appeals. All family law masters shall attend all
courses of continuing educational instruction as may be required
by supervisory rule of the supreme court of appeals. Failure to
attend such courses of continuing educational instruction without
good cause shall constitute a neglect of duty. These courses
shall be provided at least once every other year. Persons
attending such courses outside of the county of their residence
shall be reimbursed by the state for expenses actually incurredin accordance with the supervisory rules of the supreme court of
appeals.
(c) 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. A full-time family law master
shall not engage in the outside practice of law and shall devote
full time to his or her duties as a judicial officer. Part-time
family law masters who do not engage in the practice of criminal
law shall be exempt from the appointments in indigent cases which
would otherwise be required pursuant to article twenty-one,
chapter twenty-nine of this code.
(d) All family law masters and all necessary clerical and
secretarial assistants employed in the offices of family law
masters are officers or employees of the judicial branch of state
government.
§48A-4-3. Compensation and expenses of family law masters and
their staffs.
(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 full-time family law master shall receive as full
compensation for his or her services an annual salary of fifty
thousand dollars and a part-time family law master shall receive
as full compensation for his or her services an annual salary ofthirty-seven thousand five hundred dollars.
(c) The secretary-clerk of the family law master shall be
appointed by the family law master and serve at his or her will
and pleasure and shall receive an annual salary of seventeen
thousand five hundred dollars: Provided, That subsequent to the
first day of July, 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.
(d) 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.
(e) 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.
(f) Family law masters, 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 as
approved by the supreme court of appeals.
§48A-4-4. Assignment of family law masters by geographical
regions.
(a) Prior to the first day of July, one thousand nine
hundred ninety-four, the offices of the family law masters shall
be distributed geographically so as to provide an office of the
family law master for each of the following regions:
(1) The counties of Brooke, Hancock and Ohio;
(2) The counties of Marshall, Tyler and Wetzel;
(3) The counties of Pleasants, Ritchie, Wirt and Wood;
(4) The counties of Calhoun, Jackson and Roane;
(5) The counties of Mason and Putnam;
(6) The county of Cabell;
(7) The counties of McDowell and Wyoming;
(8) The counties of Logan and Mingo;
(9) The county of Kanawha;
(10) The county of Raleigh;
(11) The counties of Mercer and Summers;
(12) The counties of Fayette and Nicholas;
(13) The counties of Greenbrier, Pocahontas and Monroe;
(14) The counties of Braxton, Clay, Gilmer and Webster;
(15) The counties of Doddridge, Harrison, Lewis and Upshur;
(16) The counties of Marion and Taylor;
(17) The counties of Monongalia and Preston;
(18) The counties of Barbour, Randolph and Tucker;
(19) The counties of Grant, Hampshire, Hardy, Mineral and
Pendleton;
(20) The counties of Berkeley, Jefferson and Morgan; and
(21) The counties of Boone, Lincoln and Wayne.
There shall be a total of twenty-two family law masters
serving throughout the state. Two masters shall be assigned to
the office of the family law master for the region of Kanawha
county. In each of the other regions defined by this subsection,
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-six family
law masters, not more than fourteen of whom shall be full-time
masters, to serve 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
construct regions which provide, as nearly as is practicable, for
the caseload of each master to be equal to that of other masters.
Mathematical exactness as to caseload is not required and
deviations from an absolute standard may be based upon concerns,
other than caseload, including, but not limited to, deviations
dictated by the following considerations:
(1) 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) In the region which includes Kanawha county, of the
masters appointed, not less than two shall be part-time masters.
(d) Nothing contained herein shall prohibit the chief
justice of the supreme court of appeals from temporarily
assigning a family law master from one geographical region to
another geographical region, as caseload, disqualification,
recusal, vacation or illness may dictate.
(e) The administrative office of the supreme court shall
promulgate any procedural rule necessary to delineate the duties
of the part-time and full-time law masters consistent with this
article.
§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 administrative 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 chiefjustice 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.
(a) A circuit court or the chief judge thereof shall refer
to the master the following matters for hearing to be conducted
pursuant to sections eight and nine of this article:
(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;
(3) All petitions for writs of habeas corpus wherein the
issue contested is child custody;
(4) All motions for 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
family law master determines, in 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 family law master
shall notify the court of this fact and the circuit court shallrefer the case to a temporary or special law master or
commissioner of the court designated by the chief justice of the
supreme court;
(5) All petitions for modification of an order involving
child custody, child visitation, child support or spousal
support;
(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;
(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;
(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;
(9) Proceedings for the enforcement of support, custody or
visitation orders: Provided, That contempt actions shall be
heard by a circuit judge; and
(10) All actions to establish custody of a minor child or
visitation with a minor child, including actions brought pursuant
to the uniform child custody jurisdiction act and actions broughtto 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.
(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.
(b) Fees for hearings before a master shall be taxed as
court costs, which costs may be assessed against either party or
apportioned between the parties, in the discretion of the master. The assessment of court costs shall be made at the conclusion of
the hearing and included as findings in each case of a master's
recommended order. The fees for hearings before a master shall
be as follows:
(1) For an action to establish an order of support, fifty
dollars;
(2) For an action to establish paternity, one hundred
dollars;
(3) For a motion for 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;
(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 per
hour 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.
(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.
(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 nine and thirteen of this article.
(c) The master who presides at the reception of evidence
pursuant to section nine of this article shall prepare thedefault order or make and enter the temporary order provided for
in section twelve of this article, or make the recommended order
required by section 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-4-9. Hearing procedures.
(a) This section applies, according to the provisions
thereof, to hearings required by section six of this article to
be conducted in accordance with this section.
(b) A master to whom a matter is referred pursuant to the
provisions of section six of this article shall preside at the
taking of evidence.
(c) A master presiding at a hearing under the provisions of
this 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 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 and
fix 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 oralor 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. 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. 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 not to 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. The party requesting the copy shall pay to themaster 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 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-4-10. Acts or failures to act in the physical presence of
family law masters.
(a) If in the master's presence a party, witness or other
person conducts himself in a manner which would constitute direct
contempt if committed in the presence of a circuit judge, the
master shall halt any proceeding which may be in progress and
inform the person that their conduct constitutes direct contempt
and give notice of the procedures and possible dispositions which
may result.
(b) (1) If a circuit judge is sitting in the same county in
which the conduct occurred, or is otherwise available, the
alleged contemnor shall be immediately taken before the circuitjudge. 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.
(a) Every family law master shall establish a regular docket
or other means for hearing urgent motions regarding child
support, child custody or visitation, protection from family
violence or abuse, possession of the home or other urgent matter.
The family law master shall make all decisions and rulings beforehim or her within thirty days, or sooner after the close of the
evidence in the proceeding before the master. If the master's
recommended decision is not so timely made, the master shall, in
writing, notify the administrator of the West Virginia supreme
court as to why he or she has not so ruled; and the administrator
of the West Virginia supreme court may take appropriate action
against said master including pay suspensions, or reprimand or
dismissal without pay for up to six months.
(b) 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-4-12. 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 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 provisionsof section nine of this article is authorized to make and enter
temporary support and custody orders which, when entered, shall
be enforceable and have the same force and effect under law as
temporary support orders made and entered by a judge of the
circuit court, unless and until such support orders are modified,
vacated or superseded by an order of the circuit court.
(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 nine of this article.
(b) A master who has presided at the hearing pursuant to
section 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 fourteen of this article to the attorney for
each party, or if a party is unrepresented, directly to theparty, in the same manner as pleadings subsequent to an original
complaint are served in accordance with rule five of the rules of
civil procedure for trial courts of record. The master shall
file the recommended order and the record in the office of the
circuit clerk prior to the expiration of the ten-day period
during which exceptions can be filed.
(d) A copy of any supporting documents or a summary of
supporting documents, prepared or used by the children's advocate
or an employee of the child advocate office, and all documents
introduced into evidence before the master, shall be made
available to the attorney for each party and to each of the
parties before the circuit court takes any action on the
recommendation.
(e) All recommended orders of the master shall include the
statement of findings of fact and conclusions of law, and the
reasons or basis therefor, on all the material issues of fact,
law, or discretion presented on the record; and the appropriate
sanction, relief or denial thereof. In every action where
visitation is recommended, the master shall specify a schedule
for visitation by the noncustodial parent: Provided, That with
respect to any existing order which provided for visitation but
which does not provide a specific schedule for visitation by the
noncustodial parent, upon motion of any party, notice of hearing
and hearing, the master shall recommend an order which provides
a specific schedule of visitation by the noncustodial parent.
§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-4-18 of the West Virginia Code within a period of ten days
ending on , 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
, 19 , then the recommended order will be sent to the circuit
judge assigned to this case. A recommended order which is not
signed by a party, or counsel for a party who is represented, by
the end of the ten-day period will still be sent to the circuit
judge for entry.
YOUR FAILURE TO SIGN THE ORDER AS HAVING BEEN INSPECTED
OR APPROVED WILL NOT DELAY THE ENTRY THEREOF.
Family Law Master
§48A-4-15. Orders to be entered by circuit court exclusively.
With the exception of temporary support and custody orders
entered by a master in accordance with the provisions of section
twelve of this article and section twenty-two, article two,
chapter forty-eight of this code, and procedural orders entered
pursuant to the provisions of section nine of this article, an
order imposing sanctions or granting or denying relief may not be
made and entered except 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-4-16. Circuit court review of master's action or
recommended order.
(a) A person who alleges that he or she will be adversely
affected or aggrieved by a recommended order of a master is
entitled to review of the proceedings. The recommended order of
the master is the subject of review by the circuit court and a
procedural action or ruling not otherwise directly reviewable is
subject to review only upon the review of the recommended order
by the circuit court.
(b) When a master's action or recommended order is presented
to the circuit court for review upon the petition of any party
and such action or recommended order is subject to review, the
family law master or circuit court shall enter a temporary
support and custody order or otherwise provide for relief duringthe 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-4-17. 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 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-4-18. 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, designatingand 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-4-19. Answer in opposition to a petition for review.
(a) A respondent shall have ten days after the filing of a
petition within which to file an answer disclosing any matter or
ground why the recommended order of the master should not be
modified by the court in the manner sought by the petition. The
judge may require, or a party may choose to submit with the
answer, a brief in opposition to the petition, which should
include a direct and concise argument in support of the master's
recommended order and citing the constitutional provisions,
statutes and regulations which are applicable.
(b) No motion by a respondent to dismiss a petition for
review will be received.
(c) Any party may file a supplemental brief at any time
while a petition for review is pending, calling attention to new
cases or legislation or other intervening matter not available at
the time of the party's last filing.
§48A-4-20. Circuit court review of master's recommended order.
(a) The circuit court shall proceed to a review of the
recommended order of the master when:
(1) No petition has been filed within the time allowed, or
the parties have expressly waived the right to file a petition;
(2) A petition and an answer in opposition have been filed,
or the time for filing an answer in opposition has expired, or
the parties have expressly waived the right to file an answer in
opposition, as the case may be.
(b) To the extent necessary for decision and when presented,
the circuit court shall decide all relevant questions of law,
interpret constitutional and statutory provisions and determine
the appropriateness of the terms of the recommended order of the
master.
(c) The circuit court shall examine the recommended order of
the master, along with the findings and conclusions of the
master, and may enter the recommended order, may recommit the
case, with instructions, for further hearing before the master or
may, in its discretion, enter an order upon different terms, as
the ends of justice may require. The circuit court shall not
follow the recommendation, findings and conclusions of a masterfound 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, the
master shall retry the matter within twenty days.
(g) At the time a case is recommitted, the circuit courtshall enter appropriate 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 payment of the salaries and benefits of
the family law masters and clerical and secretarial assistants
shall be included in the appropriation for the supreme court of
appeals. The family law master administration fund is hereby
created and shall be a special account in the state treasury.
The fund shall operate as a special fund administered by the
state auditor which shall be appropriated by line item by the
Legislature for payment of administrative expenses of the family
law master system. 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 thechild advocate office and the secretary of the department of
health and human resources, shall enter into an agreement with
the administrative office of the supreme court of appeals whereby
all federal matching funds paid to and received by said agencies
or entities for the activities by family law masters and staff of
the program shall be paid into the family law master
administration fund. Said agreement shall provide for advance
payments into the fund by such agencies, from available federal
funds pursuant to Title IV-D of the Social Security Act and in
accordance with federal regulations.
§48A-4-23. Family law masters fund.
The office and the clerks of the circuit courts shall, on or
before the tenth day of each month, transmit all fees and costs
received for the services of the office or the family law master
under this chapter to the state treasurer for deposit in the
state treasury to the credit of a special revenue fund to be
known as the "family law masters fund", which is hereby created.
All moneys collected and received under this chapter and paid
into the state treasury and credited to the "family law masters
fund" shall be used by the administrative office of the supreme
court of appeals solely for paying the costs associated with the
duties imposed upon the family law masters under the provisions
of this chapter which require activities by the masters which are
not subject to being matched with federal funds or subject to
reimbursement by the federal government. Such moneys shall not
be treated by the auditor and treasurer as part of the general
revenue of the state.
§48A-4-24. 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 of said article,
the family law masters system shall continue to exist until the
first day of July, one thousand nine hundred 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 family law master 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) Recommend to the circuit court that the matter be
treated as a contempt proceeding under the provisions of this
section.
(b) The family law master shall not invoke either option
under subsection (a) of this section if the parties resolve their
dispute through an informal joint meeting with a mediatordesignated in accordance with the provisions of section seven-a
of this article.
(c) Each family law master may formulate a visitation
adjustment policy which may be implemented by the family law
master 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 andapproved under this section, the family law master shall direct
his or her secretary-clerk to thereafter keep an accurate record
of alleged visitation violations reported to the office of the
family law master. A parent who is subject to a visitation
adjustment policy and who thereafter makes a claim of a
visitation violation shall give to the family law master 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 and if the alleged violation appears
to support a pattern of violations or a single alleged violation
appears to constitute a substantial violation, the following
shall apply:
(1) Within five days after receipt of the claim of a
visitation violation, the office of the family law master 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 family law master, in writing, within
fourteen days from the date of the notice; and
(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 the
family law master in writing of the reasons why the proposed
adjustment is contested and must request a hearing with the
family law master.
(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 family law master 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 family law master 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 family law master may refer the
written complaint of a visitation violation to the circuit court,
to be treated as 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 the disputeconcerning visitation of a minor child. In the discretion of the
court, the court may remand the matter to the master for a
consideration of visitation adjustment, or may treat the written
complaint as a petition for an order to show cause why the parent
alleged to have committed the visitation violation should not be
held in contempt, and direct such order to show cause to be
served upon the alleged violator.
(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 requested
by 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 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-5-7a. Pilot custody and visitation mediation project.
(a) The administrative office of the supreme court of
appeals may, within current funds available to the court,
establish a pilot custody and visitation mediation project in
designated regions comprised of one or more counties of the
state.
(b) Mediation will be provided in the designated county or
counties or regions only, in all cases in which the issues of
custody and/or visitation are contested, when a hearing before a
family law master or judge is required to resolve the contested
issue, pursuant to guidelines established by the administrative
office of the supreme court. All parties to such contested cases
must attend at least one mediation session and attempt to resolve
the issues of custody and/or visitation through this process. No
final hearing on the issues of custody or visitation can be held
before a family law master or judge unless the parties have
attempted mediation.
(c) This pilot mediation project is established to encourage
parties to resolve disputes over custody and visitation through
a voluntary process in which an impartial mediator actively
assists parties in identifying and clarifying issues regarding
custody and visitation and in designing and agreeing to solutions
for those issues. All of the information that is provided by the
parties during mediation shall remain confidential and mediators
cannot be called as witnesses to provide testimony in unresolved
cases that proceed to contested hearings.
(d) The parties in each case shall be entitled to
participate in six hours of mediation per year free of cost. Any
additional time spent in mediation during the year, over and
above the first six hours, shall be assessed by the court at the
conclusion of the case at a rate of thirty-five dollars per hour.
These fees shall be paid into the state treasury and credited to
a fund to be used by the administrative office solely to pay forthe costs of the pilot mediation project.
(e) The administrative office of the supreme court shall
hire one qualified mediator for each of the regions designated in
subsection (a) of this section, or may establish and train panels
of volunteer mediators, from which panels individual mediators
may then be assigned to specific cases by a circuit court or a
family law master.
(f) The administrative office of the supreme court of
appeals shall carefully monitor the case statistics and case
results and no later than eighteen months after the initiation of
the project shall submit a report to the Legislature which
evaluates the efficacy of using mediation as a method of
resolving custody and visitation disputes. The Legislature shall
review this report and determine whether the project should be
continued or expanded to other counties in the state.
§48A-5-9. Misrepresentation of delinquent support payments;
penalty.
If any person 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 shallbe 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
child resides: Provided, That if such venue creates a hardship
for the parties, or either of them, or if judicial economy
requires, the court may transfer the action to the county where
either of the parties 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 filialrelationship, 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 the
following 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) The state of West Virginia or the department of health
and human resources, or the child advocate office on its behalf,
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;
(5) The guardian or committee of such child;
(6) The next friend of such child when the child is a minor;
(7) By such child in his own right at any time after the
child's eighteenth birthday but prior to the child's twenty-firstbirthday; or
(8) A man purporting to be the father of a child born out of
wedlock, when there has been no prior judicial determination of
paternity.
(f) Blood or tissue samples taken pursuant to the provisions
of this article may be ordered to be taken in such locations as
may be convenient for the parties so long as the integrity of the
chain of custody of such samples can be preserved.
(g) A person who has sexual intercourse in this state
submits to the jurisdiction of the courts of this state for 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.
(h) If the person against whom the 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 a proceeding brought by a child in his or her
own right under the provisions of subdivision (7), subsection
(e), section one of this article, a proceeding for the
establishment of the paternity of a child shall be brought prior
to such child's eighteenth birthday.
(b) A proceeding to establish paternity under the provisions
of this article may be brought by or on behalf of a childnotwithstanding 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) 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, regardless of the current age.
(d) 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 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 ofsupport, or if after a trial on the merits, the court 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
proceeding under this section is brought shall represent the
state of West Virginia and shall litigate the action in the best
interests 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 issue ofpaternity 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 (2), subsection (e), section one
of this article, the court shall appoint a competent attorney to
act as guardian ad litem on behalf of the child. This attorney
shall be appointed without motion and prior to the entry of any
order requiring blood testing.
CHAPTER 49. CHILD WELFARE.
ARTICLE 5. JUVENILE PROCEEDINGS.
§49-5-15. Juvenile probation officers; appointment; salary;
facilities; expenses; duties; powers.
(a) Each circuit court, subject to the approval of the
supreme court of appeals and in accordance with the rules of the
supreme court of appeals, shall appoint one or more juvenile
probation officers and clerical assistants for the circuit. A
probation officer or clerical assistant shall not be related by
consanguinity or affinity to any judge of the appointing court.
The salary for juvenile probation officers and clerical
assistants shall be determined and fixed by the supreme court of
appeals. All expenses and costs incurred by the juvenile
probation officers and their staff shall be paid by the supreme
court of appeals in accordance with its rules. The county
commission of each county shall provide adequate officefacilities 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 to
serve in such capacity, to visit, inspect and interview residents
of all juvenile institutions, detention facilities and places in
or out of the state wherein West Virginia juveniles may be held
involuntarily, to make public reports of such reviews: Provided,
That the panel shall not visit, inspect or interview adult
inmates of county jails, regional jails or facilities under the
direction of the commissioner of corrections used for theincarceration of adult offenders or detainees: Provided,
however, That 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 of
this 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
any other designated community-based diagnostic, treatment or
rehabilitative service;
(2) Community-based programs and services to work with
parents and other family members to maintain and strengthen the
family unit so that the juvenile may be retained in his home;
(3) Youth service bureaus and other community-based programs
to divert youth from the juvenile court or to support, counsel,
or provide work and recreational opportunities for delinquents
and other youth to help prevent delinquency;
(4) Projects designed to develop and implement programs
stressing advocacy activities aimed at improving services for and
protecting rights of youth impacted by the juvenile justice
system;
(5) Educational programs or supportive services designed to
keep delinquents, and to encourage other youth to remain, in
elementary and secondary schools or in alternative learningsituations;
(6) Expanded use of 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, magistrate courts shall have jurisdiction of all
misdemeanor offenses committed in the county and to conduct
preliminary examinations on warrants charging felonies committed
within the county and, upon order of referral from the circuit
courts, to conduct preliminary examinations on probation
violations, which examinations shall be conducted without delay
and in all events not later than thirty days from the date any
probation violation petition or motion has been filed in circuit
court. A magistrate shall have the authority to issue arrest
warrants in all criminal matters, to issue 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 themaximum amount of the fine and applicable court costs permitted
or authorized by statute to be imposed in the event of
conviction.
§50-2-3a. Sentencing; probation.
(a) In addition to sentencing authority granted elsewhere to
magistrate courts, magistrate courts have authority to suspend
sentences and impose periods of unsupervised probation for a
period not to exceed two years, except for offenses for which the
penalty includes mandatory incarceration and offenses defined in
sections eight and nine, article eight-b, chapter sixty-one of
this code and subsection (c), section five, article eight-d of
said chapter.
(b) Release on probation shall be upon the following
conditions:
(1) That the probationer shall not, during the term of his
probation, violate any criminal law of this state, any other
state of the United States or the United States;
(2) That he or she shall not, during the term of his or her
probation, leave the state without the consent of the court which
placed him or her on probation;
(3) That he or she shall comply with the rules or terms
prescribed by the court;
(4) That he or she shall make reasonable restitution if
financially able to do so, in whole or in any part, immediately
or within the period of probation; and
(5) That he or she shall pay any fine and the costs assessed
as the court may direct.
(c) On motion by the prosecuting attorney, and upon a
hearing and a finding that reasonable cause exists to believe
that a violation of any condition of probation has occurred, the
magistrate may revoke probation and order execution of the
sentence originally imposed.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-2a. Payment of fines by credit card or payment plan;
suspension of licenses for failure to pay fines or appear or
respond.
(a) A magistrate court may accept credit cards in payment of
all costs, fines, forfeitures or penalties. The supreme court of
appeals shall adopt rules regarding the use of credit cards to
pay fines, and the rules shall state that any charges made by the
credit company shall be paid by the person responsible for paying
the fine. A magistrate court may collect a portion of any costs,
fines, forfeitures or penalties at the time the amount is imposed
by the court so long as the court requires the balance to be paid
in accordance with a payment plan which specifies: (1) The
number of payments to be made; (2) the dates on which such
payments and amounts shall be made; and (3) amounts due on such
dates.
(b) If any costs, fines, forfeitures, restitution or
penalties imposed or ordered by the magistrate court for hunting
or fishing violations as described in chapter twenty of this code
are not paid in full as directed by the magistrate court, the
magistrate court clerk or, upon a judgment rendered on appeal,
the circuit clerk, shall notify the director of the division ofnatural resources, of such failure to pay. If any costs, fines,
forfeitures, restitution or penalties imposed by the magistrate
court in a criminal case are not paid as directed by the
magistrate court, the magistrate court clerk or, upon judgment
rendered on appeal, the circuit clerk, shall notify the director
of the division of motor vehicles of the failure to pay. Upon
such notice, the division of motor vehicles shall suspend the
operator's or commercial driver's license and the director of the
division of natural resources shall suspend the hunting or
fishing license of the person defaulting on payment until such
time that the costs, fines, forfeitures, restitution or penalties
are paid.
(c) If a person charged with any criminal violation of this
code fails to appear or otherwise respond in court, the
magistrate court shall notify the director of the division of
motor vehicles thereof within fifteen days of the scheduled date
to appear, unless the person sooner appears or otherwise responds
in court to the satisfaction of the magistrate. Upon such
notice, the division of motor vehicles shall suspend the
operator's or commercial driver's license of the person failing
to appear or otherwise respond in accordance with the provisions
of section six, article three, chapter seventeen-b of this code.
(d) In every criminal case which involves a misdemeanor
violation, a magistrate may order restitution where appropriate
when rendering judgment.
(e) If all costs, fines, forfeitures, restitution or
penalties imposed by a magistrate court and ordered to be paidare not paid as ordered by the judgment of the magistrate 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 abstracts 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 moneys
collected by the magistrate court. In addition to making other
remittances as required by law, the clerk of each magistrate
court shall, on a monthly basis, remit all interest earned on
such accounts to the state treasurer for deposit in the state
general revenue fund.
ARTICLE 5. TRIALS, HEARINGS AND APPEALS.
§50-5-13. Appeals in criminal cases.
Any person convicted of an offense in a magistrate court mayappeal such conviction to circuit court as a matter of right by
requesting such appeal within twenty days of the sentencing for
such conviction. The magistrate may require the posting of bond
with good security conditioned upon the appearance of the
defendant as required in circuit court, but such bond may not
exceed the maximum amount of any fine which could be imposed for
the offense. Such bond may be upon the defendant's own
recognizance. If no appeal is perfected within such twenty-day
period, the circuit court of the county may, not later than
ninety days after the sentencing, grant an appeal upon a showing
of good cause why such appeal was not filed within such twenty-
day period. The filing or granting of an appeal shall
automatically stay the sentence of the magistrate. Trial in
circuit court shall be de novo: Provided, That any person
charged with a traffic offense which does not subject a person to
a period of incarceration who wishes a jury trial shall elect
prior to trial to receive said trial by jury in either the
magistrate court or circuit court. Any person charged with such
a traffic offense who elects to receive a trial by jury in the
magistrate court shall receive a trial to the court on appeal.
Notwithstanding any other provision of this code to the contrary,
there shall be no appeal from a plea of guilty where the
defendant was represented by counsel at the time the plea was
entered: Provided, however, That the defendant shall have an
appeal from a plea of guilty where an extraordinary remedy would
lie or where the magistrate court lacked jurisdiction.
CHAPTER 52. JURIES.
ARTICLE 1. PETIT JURIES.
§52-1-4. Jury selection.
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 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 the following
source lists:
(1) Persons who have filed a state personal income tax
return for the preceding tax year;
(2) Persons who are registered to vote in the county;
(3) Persons who hold a valid motor vehicle operator's or
chauffeur's license as determined from the drivers' license lists
provided by the division of motor vehicles.
The 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. Duplicatenames 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 clerk
shall compile a list of persons who pay real property taxes to
compile and maintain a list of freeholders to be used as jurors
in condemnation cases.
(d) Any public officer of an agency, department or political
subdivision of this state having custody, possession or control
of any of the source lists designated to be used in compiling the
master list shall make the source list available to the 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 listedon the master list, a juror qualification form accompanied by
instructions necessary for its completion: Provided, That the
clerk may, if directed by the court, mail the juror qualification
form to only those prospective jurors drawn for jury service
under the provisions of section seven of this article. Each
prospective juror shall be directed to complete the form and
return it by mail to the clerk within ten days after its receipt.
The juror qualification form is subject to approval by the
circuit court as to matters of form and shall elicit the
following information concerning the prospective juror:
(1) The juror's name, sex, race, age and marital status;
(2) The juror's level of educational attainment, occupation
and place of employment;
(3) If married, the name of the juror's spouse and the
occupation and place of employment of the spouse;
(4) The juror's residence address and the juror's mailing
address if different from the residence address;
(5) The number of children which the juror has and their
ages;
(6) Whether the juror is a citizen of the United States and
a resident of the county;
(7) Whether the juror is able to read, speak and understand
the English language;
(8) Whether the juror has any physical or mental disability
substantially impairing the capacity to render satisfactory jury
service: Provided, That a juror with a physical disability, who
can with reasonable accommodation render competent service, iseligible 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 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 to
answer 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
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 information thus 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 clerk foreach county shall maintain a jury wheel or jury box, into which
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 ordered by
the circuit court to be placed in the jury wheel or jury box.
The 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 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 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 applicablerule 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 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 list corresponding 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 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 hundrednames. 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 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 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
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 toappear 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
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 anypapers, 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.
§52-1-8. Disqualification from jury service.
(a) The court, upon request of 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 ofspeaking 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 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, or pursuant 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 thatthe 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 the
visually 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 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 clerk, any relevant records and papers not
public or otherwise available used by the clerk, and any other
relevant evidence. The clerk 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 conformitywith this article.
§52-1-16. Preservation of records.
All records and papers compiled and maintained by 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 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 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 the House of Delegates 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 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. Such reimbursement
shall be based on vouchers submitted to the sheriff. Such
mileage and reimbursement shall be paid out of the statetreasury.
(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) Anytime a panel of prospective jurors has been required
to report to court for the selection of a petit 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, 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; and
(3) In the discretion of the court, and only when fairness
and 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 inthe 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 therefor 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 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 reimbursement for
services as a juror.
§52-1-20. Payment of 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 court
at 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 ofthis 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 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 clerk at any specified time to draw and assign grand
jurors for either a regular, special or adjourned term of court.
When required by the circuit court or the chief judge thereof,
the clerk shall draw the names of sixteen persons from the jury
wheel or jury box, and the persons so drawn shall constitute the
grand jury. At the same time, the 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 for the grand jury. 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 clerk shall enter the names of all
persons so drawn in a book kept for that purpose and 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.
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 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.
CHAPTER 59. FEES, ALLOWANCES AND COSTS; NEWSPAPERS;
LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-12. Payment of fines by credit card or payment plan.
A circuit court may accept credit cards in payment of all
fines, costs, forfeitures, restitution or penalties. The supreme
court of appeals shall adopt rules regarding the use of credit
cards to pay fines, and the rules shall state that any charges
made by the credit company shall be paid by the person
responsible for paying the fine, cost, forfeiture, restitution or
penalty.
ARTICLE 2. COSTS GENERALLY.
§59-2-1. Suits by persons financially unable to pay.
(a) A natural person who is financially unable to pay the
fees or costs attendant to the commencement, prosecution or
defense of any civil action or proceeding, or an appeal therein,
is permitted to proceed without prepayment in any court of thisstate, after filing 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) 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.
(3) 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 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.
(b) The supreme court of appeals 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. Copies
of the form shall be available to the public in the offices of
the clerk of any court of this state. The affidavit 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; and
(7) The consequences for the individual if a waiver of fees,costs or security is denied.
(d) If the information set forth in the affidavit or the
evidence submitted in the action reveals that the person filing
the affidavit is financially able to pay the fees and costs, the
court or the family law master may order the person to pay the
fees and costs in the action.
(e) No other party in any proceeding may initiate an inquiry
by motion or other pleading or participate in any proceeding
relevant to the issues raised pursuant to this section.
(f) The making of an affidavit subject to inquiry under this
section does not in any event give rise to criminal remedies
against the affiant nor occasion any civil action against the
affiant except for the recovery of costs as in any other case
where costs may be recovered and the recovery of the value of
services, if any, provided pursuant to this section. A person
who has made an affidavit knowing the contents thereof to be
false may be prosecuted for false swearing as provided by law.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 4. RECOVERY OF FINES IN CRIMINAL CASES.
§62-4-17. Suspension of licenses for failure to pay fines and
costs or failure to appear in court.
(a) If costs, fines, forfeitures, penalties or restitution
imposed by the circuit court upon conviction of a person for any
criminal offense under this code are not paid in full when
ordered to do so by the court, the circuit clerk shall notify the
division of motor vehicles of such failure to pay: Provided,
That at the time the judgment is imposed, the court shall providethe person with written notice that failure to pay the same when
ordered to do so shall result in the suspension of such person's
license or privilege to operate a motor vehicle in this state and
that such suspension could result in the cancellation of, the
failure to renew or the failure to issue an automobile insurance
policy providing coverage for such person or such person's
family: Provided, however, That the failure of the court to
provide such notice shall not affect the validity of any
suspension of such person's license or privilege to operate a
motor vehicle in this state. For purposes of this section, such
period of time within which the person is required to pay shall
be stayed during any period an appeal from the conviction which
resulted in the imposition of such costs, fines, forfeitures or
penalties is pending.
Upon such notice, the division of motor vehicles shall
suspend the person's driver's license or privilege to operate a
motor vehicle in this state until such time that the costs,
fines, forfeitures or penalties are paid.
(b) Notwithstanding the provisions of this section to the
contrary, the notice of the failure to pay such costs, fines,
forfeitures or penalties shall not be given where the circuit
court, upon application of the person upon whom the same were
imposed filed prior to the expiration of the period within which
the same are required to be paid, enters an order finding that
such person is financially unable to pay all or a portion of the
same: Provided, That where the circuit court, upon finding that
the person is financially unable to pay the full amount thereof,requires the person to pay the remaining portion thereof, the
circuit clerk shall notify the division of motor vehicles of such
person's failure to pay the same if the same is not paid within
the period of time ordered by such court.
(c) If a person charged with a criminal offense fails to
appear or otherwise respond in court after having received notice
to do so, the court shall notify 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 court. Upon such notice, the division
of motor vehicles shall suspend the person's driver's license or
privilege to operate a motor vehicle in this state until such
time that the person appears as required.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-5. Probation officers and assistants.
(a) Each circuit court, subject to the approval of the
supreme court of appeals and in accordance with its rules, is
authorized to appoint one or more probation officers and clerical
assistants.
(b) The appointment of 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 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 or clerical assistants so appointed.
(c) The salary of 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. 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. 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.
(d) 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.
(e) 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.
(f) Nothing contained in this section 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 specialact until changed by the court, with approval of the supreme
court of appeals, by order entered of record, and any such salary
or compensation shall be paid out of the state treasury.
§62-12-9. Conditions of release on probation.
(a) 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 of this code and articles eight-b and
eight-d of said chapter, 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, basedupon his or her ability to pay, not to exceed twenty dollars per
month to defray costs of supervision. All moneys collected as
fees from probationers shall be deposited with the circuit clerk
who shall, on a monthly basis, remit said moneys collected to the
state treasurer for deposit in the state general revenue fund.
(b) In addition to the terms of probation set forth in
subsection (a) of this section, 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 exceed
one third of the minimum sentence established by law or one third
of the least possible period of confinement in an indeterminate
sentence, but in no case shall such period of confinement exceed
six consecutive months. The court shall have authority to
sentence the defendant within such six-month period to
intermittent periods of confinement including, but not limited
to, weekends or holidays and may grant unto the defendantintermittent periods of release in order that he may work at his
employment or for such other reasons or purposes as the court may
deem appropriate: Provided, That the provisions of article
eleven-a of this chapter shall not apply to such intermittent
periods of confinement and release except to the extent that the
court may direct. If a period of confinement is required as a
condition of probation, the court shall make special findings
that other conditions of probation are inadequate and that a
period of confinement is necessary.
§62-12-15. Powers and duties of state parole officers.
Each state parole officer shall investigate all cases
referred to him or her for investigation by the commissioner of
corrections and shall report in writing thereon. He or she shall
furnish to each person released on parole under his or her
supervision a written statement of the conditions of his or her
parole together with a copy of the rules prescribed by the board,
as the case may be, for the supervision of parolees. He or she
shall keep informed concerning the conduct and condition of each
person under his or her supervision and shall report thereon in
writing as often as the commissioner of corrections may require.
He or she shall use all practicable and suitable methods to aid
and encourage persons on parole and to bring about improvement in
their conduct and condition. He or she shall keep detailed
records of his or her work, shall keep accurate and complete
accounts of and give receipts for all money collected from
persons under his or her supervision and shall pay over the money
to those persons a circuit court or the commissioner ofcorrections may designate. He or she shall give bond with good
security, to be approved by the commissioner of corrections, in
a penalty of not less than one thousand dollars nor more than
three thousand dollars, as the commissioner of corrections may
determine, and also perform any other duties the commissioner may
require. He or she has authority, with or without an order or
warrant, to arrest any parolee. He or she has all the powers of
a notary public, with authority to act anywhere within the state.
ARTICLE 13. CORRECTIONS MANAGEMENT.
§62-13-2. Supervision of probationers and parolees; final
determinations remaining with board of probation and parole.
(a) The supreme court of appeals shall take charge of and
cause to be supervised all persons placed on probation and shall
prescribe rules for the supervision of probationers under their
supervision and control.
(b) The commissioner of corrections shall supervise all
persons released on parole and placed in the charge of a state
parole officer and all persons released on parole under any law
of this state. He or she shall also supervise all probationers
and parolees whose supervision may have been undertaken by this
state by reason of any interstate compact entered into pursuant
to the uniform act for out-of-state probation and parolee
supervision. The commissioner shall prescribe rules for the
supervision of probationers and parolees under his or her
supervision and control and shall succeed to all administrative
and supervisory powers of the board of probation and parole and
the authority of the board of probation and parole in thosematters only.
The commissioner of corrections shall administer all other
laws affecting the custody, control, treatment and employment of
persons sentenced or committed to institutions under the
supervision of the department or affecting the operation and
administration of institutions or functions of the department.
The final determination regarding the release of inmates
from penal institutions and the final determination regarding
revocation of parolees from those institutions pursuant to the
provisions of article twelve of this chapter shall remain within
the exclusive jurisdiction of the board of probation and parole.