COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 358
(By Senators Wooton, Anderson, Dittmar, Felton, Grubb,
Holliday,
Humphreys, Macnaughtan, Plymale, Wiedebusch and Yoder)
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[Originating in the Committee on Finance;
reported April 1, 1993.]
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A BILL to repeal section eight, article four, chapter fifty of
the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections
thirteen, fifteen, fifteen-a, sixteen, twenty-two,
thirty-three, article two, chapter forty-eight of said code;
to amend and reenact section twenty-two, article two,
chapter forty-eight-a of said code; to amend and reenact
sections one, three, five and six, article four of said
chapter; to further amend said article by adding thereto a
new section, designated section three-a; to amend and
reenact sections fifteen and sixteen-b, article five,
chapter forty-nine of said code; 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,
six, seven, seven-a, eight, fifteen and seventeen, article
one, chapter fifty-two of said code; 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-a, article eleven-a, chapter sixty-two of said
code; to amend and reenact sections four, five, six, seven,
nine, ten and eleven, article eleven-b of said chapter; 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 the
judicial system; temporary orders of child support; review
of temporary orders; making certain technical amendments;
medical support for minor children; temporary protective
orders; redefining certain terms; financial disclosure;
establishing an award of child support; requiring orders in
cases involving children; separation agreements; providing
for family law masters to hear certain cases; contempt
actions; form for financial disclosure; subsequent filing of
financial disclosure; the family law master fund; changing
the dates of appointment for family law masters;
confirmation of law masters; training and certification of
law masters; removal from office; budget, compensations;
fees; ex parte communications; default orders; review of
temporary orders, docket; temporary orders when a petitionfor review is filed and temporary orders which may be
entered by a law master; eliminating the juvenile justice
committee; eliminating the position of magistrate clerk in
two-magistrate counties upon a vacancy occurring and raising
the stipend to the circuit clerk to assume these duties;
placing juvenile and adult probation officers under the
authority of the supreme court of appeals; limiting the
right to remove a case from magistrate court to circuit
court in civil cases; requiring election to either circuit
court or magistrate court for jury trials for traffic
offenses which do not carry a jail sentence; developing
alternative home confinement sentencing powers for
magistrates; authorizing circuit courts and magistrates to
order restitution fine cost payments as a condition of
probation or suspension of sentence; providing for
suspension of operator's license or hunting license for
failure to pay fines; eliminating jury commissioners;
standardizing juror payments; allowing circuit courts to
assess juror costs in certain circumstances; modifying
conditions of probation; supervision fee; magistrates
allowed to place funds in interest-bearing accounts; and
penalties.
Be it enacted by the Legislature of West Virginia:
That section eight, article four, chapter fifty of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section eight, article four, chapter
fifty of said code be repealed; that sections thirteen, fifteen,
fifteen-a, sixteen, twenty-two and thirty-three, article two,chapter forty-eight of said code be amended and reenacted; that
section twenty-two, article two, chapter forty-eight-a of said
code be amended and reenacted; that sections one, three, five and
six, article four of said chapter be amended and reenacted; that
said article be further amended by adding thereto a new section,
designated section three-a; that sections fifteen and sixteen-b,
article five, chapter forty-nine of said code be amended and
reenacted; that section three, article two, chapter fifty of said
code be amended and reenacted; that said article be further
amended by adding thereto a new section, designated three-a; that
section two-a, article three of said chapter be amended and
reenacted; that said article 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, six, seven, seven-a, eight, fifteen and
seventeen, article one, chapter fifty-two of said code be amended
and reenacted; that article one, chapter fifty-nine of said code
be amended and reenacted by adding thereto a new section,
designated section twelve; that section one-a, article eleven-a,
chapter sixty-two of said code be amended and reenacted; that
sections four, five, six, seven, nine, ten and eleven, article
eleven-b of said chapter be amended and reenacted; 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 48. DOMESTIC RELATIONS.
ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-13. Temporary relief during pendency of action for
divorce, annulment or separate maintenance.
(a) At the time of the filing of the complaint or at any
time after the commencement of an action for divorce, annulment
or separate maintenance under the provisions of this article, and
upon motion for temporary relief, notice of hearing and hearing,
the court may order all or any portion of the following temporary
relief, which order shall govern the marital rights and
obligations of the parties during the pendency of the action:
(1) The court may require either party to pay temporary
alimony in the form of periodic installments or a lump sum, or
both, for the maintenance of the other party.
(2) When the action involves a minor child or children, the
court shall provide for the custody of minor children of the
parties subject to the noncustodial parent's right to visitation.
(3) 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.
(4) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a of this article.
(5) The court may compel either party to pay attorney's fees
and court costs reasonably necessary to enable the other party to
prosecute or defend the action in the trial court. The question
of whether or not a party is entitled to temporary alimony is not
decisive of that party's right to a reasonable allowance of
attorney's fees and court costs. An order for temporary reliefawarding attorney fees and court costs may be modified at any
time during the pendency of the action, as the exigencies of the
case or equity and justice may require, including, but not
limited to, a modification which would require full or partial
repayment of fees and costs by a party to the action to whom or
on whose behalf payment of such fees and costs was previously
ordered. If an appeal be taken or an intention to appeal be
stated, the court may further order either party to pay attorney
fees and costs on appeal.
(6) As an incident to requiring the payment of temporary
alimony, 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.
(7) As an incident to requiring the payment of temporary
alimony or temporary child support, the court may grant the
exclusive use and occupancy of the marital home to one of the
parties during the pendency of the action, together with all or
a portion of the household goods, furniture and furnishings,
reasonably necessary for such use and occupancy. The court may
require payments to third parties in the form of home loan
installments, land contract payments, rent, payments for utility
services, property taxes, insurance coverage or other expenses orcharges reasonably necessary for the use and occupancy of the
marital domicile. Payments made to a third party pursuant to
this subdivision shall be deemed to be temporary alimony or
temporary child support, in such proportion as the court directs:
Provided, That if the court does not set forth in the order that
a portion of such payments is to be deemed temporary child
support, then all such payments made pursuant to this subdivision
shall be deemed to be temporary alimony: Provided, however, That
the court may order such payments to be made without denominating
them either as temporary alimony or temporary child support,
reserving such decision until such time as the court determines
the interests of the parties in marital property and equitably
divides the same: Provided further, That at the time the court
determines the interests of the parties in marital property and
equitably divides the same, the court may consider the extent to
which payments made to third parties under the provisions of this
subdivision have affected the rights of the parties in marital
property and may treat such payments as a partial distribution of
marital property notwithstanding the fact that such payments have
been denominated temporary alimony or temporary child support or
not so denominated under the provisions of this subdivision.
Nothing contained in this subdivision shall abrogate an existing
contract between either of the parties and a third party, or
affect the rights and liabilities of either party or a third
party under the terms of such contract.
(8) 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 thependency 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 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) 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 inquestion 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.
(10) Unless a contrary disposition is ordered pursuant to
other provisions of this section, then upon the motion a party,
the court may compel a 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 any further order
that is necessary to prevent either party from interfering with
the separate estate of the other party.
(11) The court shall, when allegations of abuse have been
proven, 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 contact the other, in person or bytelephone, 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 before
the court: Provided, That child support shall be established in
accordance with section eight, article two, chapter forty
eight-a.
(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 andapart 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 the
disclosure requirements set forth in section thirty-three of this
article prior to the hearing for temporary relief. The form for
this disclosure shall substantially comply with the form
promulgated by the supreme court of appeals, pursuant to 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 adverseparty 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
order under 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 toexceed twenty days, unless before the time so fixed for hearing,
such hearing is continued for good cause shown or with the
consent of the party against whom the ex parte order is directed.
The reasons for the continuance shall be entered of record.
Within the time limits described herein, when an ex parte order
is made, a motion for temporary relief shall be set down for
hearing at the earliest possible time and shall take precedence
of all matters except older matters of the same character. If
the party who obtained the ex parte order fails to proceed with
a motion for temporary relief, the court shall set aside the ex
parte order. At any time after ex parte relief is granted, and
on two days' notice to the party who obtained such relief or on
such shorter notice as the court may direct, the adverse party
may appear and move the court to set aside or modify the ex parte
order on the grounds that the effects of such order are onerous
or otherwise improper. In such event, the court shall proceed to
hear and determine such motion as expeditiously as the ends of
justice require.
(g) No order granting temporary relief may be the subject of
an appeal or a petition for review.
§48-2-15. Relief upon ordering divorce or annulment or granting
decree of separate maintenance.
(a) Upon ordering a divorce or granting a decree of separate
maintenance, the court may require either party to pay alimony in
the form of periodic installments, or a lump sum, or both, 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, thecourt 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) When the action involves a minor child or children, the
court shall provide for the custody of minor children of the
parties, subject to the noncustodial parent's right to
visitation.
(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 section eight, article
two, chapter forty-eight-a of this code. Payments of child
support are to be ordinarily made from a party's income, but in
cases when the income is not sufficient to adequately provide for
those payments, the court may, upon specific findings set forth
in the order, order the party required to make those payments to
make them from the corpus of his or her separate estate.
(3) When the action involves a minor child or children, the
court shall provide for medical support for any minor children in
accordance with section fifteen-a, article two of this chapter.
(4) As an incident to requiring the payment of alimony, the
court may order either party to continue in effect existing
policies of insurance covering the costs of health care andhospitalization 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) As an incident to requiring the payment of alimony or
child support, the court may grant the exclusive use and
occupancy of the marital home to one of the parties, together
with all or a portion of the household goods, furniture and
furnishings reasonably necessary for such use and occupancy.
Such use and occupancy shall be for a definite period, ending at
a specific time set forth in the order, subject to modification
upon the petition of either party. Except in extraordinary 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 raising the
minor children of the parties. The court may require payments to
third parties in the form of home loan installments, land
contract payments, rent, payments for utility services, property
taxes, insurance coverage or other expenses or charges reasonably
necessary for the use and occupancy of the marital domicile.
Payments made to a third party pursuant to this subdivision for
the benefit of the other party shall be deemed to be alimony,
child support or installment payments for the distribution of
marital property, in such proportion as the court shall direct:
Provided, That if the court does not set forth in the order that
a portion of such payments is to be deemed child support or
installment payments for the distribution of marital property,
then all such payments made pursuant to this subdivision shall be
deemed to be alimony. Provided, however, That if the court does
not set forth in the order that a portion of the payment is to be
deemed child support or installment payments for the distribution
of marital property, and the parties have waived any right to
alimony, then all payments made pursuant to this subdivision
shall be deemed to be child support. Nothing contained in this
subdivision shall abrogate an existing contract between either of
the parties and a third party, or affect the rights and
liabilities of either party or a third party under the terms of
such contract.
(6) As an incident to requiring the payment of alimony, thecourt 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 interfering
with the other, or otherwise imposing any restraint on the
personal liberty of the other, or interfering with the custodialor 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 either
party, revise or alter the order concerning the maintenance of
the parties, or either of them, and make a new order concerning
the same, issuing it forthwith, as the altered circumstances orneeds 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, 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
section eight, article two, chapter forty-eight-a of this code:
Provided, however, That an order providing for child support
payments may be revised or altered for the reason, inter alia,
that the existing order provides for child support payments in an
amount that is less than eighty-five percent or more than one
hundred fifteen percent of the amount that would be required to
be paid under the child support guidelines promulgated pursuant
to the provisions of said section: Provided further, That all
motions for modifications shall be supported by an affidavit and
may be served upon the respondent by mailing a copy of the motion
by first class mail, postage prepaid, to the respondent or any
other method of service provided by rule four of the rules ofcivil procedure. If after service by first class mail, the
respondent does not appear at the hearing, the petitioner shall
present proof that the respondent received actual notice of the
hearing.
In granting relief under this subsection, the court may,
when other means are not conveniently available, alter any prior
order of the court with respect to the distribution of marital
property, if such property is still held by the parties, and if
necessary to give effect to a modification of alimony, child
support or child custody or necessary to avoid an inequitable or
unjust result which would be caused by the manner in which the
modification will affect the prior distribution of marital
property.
(f) 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 tocontinue beyond the remarriage of the payee 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 remarriage of the payee
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 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.
§48-2-15a. Medical support enforcement.
(a) For the purposes of this section:
(1) "Custodian for the children" means a parent, legal
guardian, committee or other third party appointed by court order
as custodian of child or children for whom child support is
ordered.
(2) "Obligated parent" means a natural or adoptive parent
who is required by agreement or order to pay for insurance
coverage and medical care, or some portion thereof, for his or
her child.
(3) "Insurance coverage" means coverage for medical, dental,including orthodontic, optical, psychological, psychiatric or
other health care service.
(4) "Child" means a child to whom a duty of child support is
owed.
(5) "Medical care" means medical, dental, optical,
psychological, psychiatric or other health care service for
children in need of child support.
(6) "Insurer" means any company, trust or other entity which
provides insurance coverage.
(b) In every action to establish or modify an order which
requires the payment of child support, the court shall ascertain
the ability of each parent to provide medical care for the
children of the parties. In any temporary or final order
establishing an award of child support or any temporary or final
order modifying a prior order establishing an award of child
support, the court shall order one or more of the following:
(1) The court shall order either parent or both parents to
provide insurance coverage for a child, if such insurance
coverage is available to that parent on a group basis through an
employer or through an employee's union. If similar insurance
coverage is available to both parents, the court shall order the
child to be insured under the insurance coverage which provides
more comprehensive benefits. If such insurance coverage is not
available at the time of the entry of the order, the order shall
require that if such coverage thereafter becomes available to
either party, that party shall promptly notify the other party of
the availability of insurance coverage for the child.
(2) If the court finds that insurance coverage is notavailable to either parent on a group basis through an employer,
multi-employer trust or employees' union or that the group
insurer is not accessible to the parties, the court may order
either parent or both parents to obtain insurance coverage which
is otherwise available at a reasonable cost.
(3) Based upon the respective ability of the parents to pay,
the court may order either parent or both parents to be liable
for reasonable and necessary medical care for a child. The court
shall specify the proportion of the medical care for which each
party shall be responsible.
(4) If insurance coverage is available, the court shall also
determine the amount of the annual deductible on insurance
coverage which is attributable to the children and designate the
proportion of the deductible which each party shall pay.
(c) The cost of insurance coverage shall be considered by
the court in applying the child support guidelines provided for
in section eight, article two, chapter forty-eight-a of this
code.
(d) Within thirty days after the entry of an order requiring
the obligated parent to provide insurance coverage for the
children, that parent shall submit to the custodian for the child
written proof that the insurance has been obtained or that an
application for insurance has been made. Such proof of insurance
coverage shall consist of, at a minimum:
(1) The name of the insurer;
(2) The policy number;
(3) An insurance card;
(4) The address to which all claims should be mailed;
(5) A description of any restrictions on usage, such as
prior-approval for hospital admission, and the manner in which to
obtain such approval;
(6) A description of all deductibles; and
(7) Five copies of claim forms.
(e) The custodian for the child shall send the insurer or
the obligated parent's employer the children's address and notice
that the custodian will be submitting claims on behalf of the
children. Upon receipt of such notice, or an order for insurance
coverage under this section, the obligated parent's employer,
multi-employer trust or union shall, upon the request of the
custodian for the child, release information on the coverage for
the children, including the name of the insurer.
(f) A copy of the court order for insurance coverage shall
not be provided to the obligated parent's employer or union or
the insurer unless ordered by the court, or unless:
(1) The obligated parent, within thirty days of receiving
effective notice of the court order, fails to provide to the
custodian for the child written proof that the insurance has been
obtained or that an application for insurance has been made;
(2) The custodian for the child serves written notice by
mail at the obligated parent's last known address of intention to
enforce the order requiring insurance coverage for the child; and
(3) The obligated parent fails within fifteen days after the
mailing of the notice to provide written proof to the custodian
for the child that the child has insurance coverage.
(g) (1) Upon service of the order requiring insurance
coverage for the children, the employer, multi-employer trust orunion shall enroll the child as a beneficiary in the group
insurance plan and withhold any required premium from the
obligated parent's income or wages.
(2) If more than one plan is offered by the employer, multi-
employer trust or union, the child shall be enrolled in the most
comprehensive plan otherwise available to the obligated parent at
a reasonable cost.
(3) Insurance coverage for the child which is ordered
pursuant to the provisions of this section shall not be
terminated except as provided in subsection (i) of this section.
(h) (1) The signature of the custodian for the child shall
constitute a valid authorization to the insurer for the purposes
of processing an insurance payment to the provider of medical
care for the child.
(2) No insurer, employer or multi-employer trust in this
state may refuse to honor a claim for a covered service when the
custodian for the child or the obligated parent submits proof of
payment for medical bills for the child.
(3) The insurer shall reimburse the custodian for the child
or the obligated parent who submits copies of medical bills for
the child with proof of payment.
(4) All insurers in this state shall provide insurance
coverage for the child of a covered employee notwithstanding the
amount of support otherwise ordered by the court and regardless
of the fact that the child may not be living in the home of the
covered employee.
(i) When an order for insurance coverage for a child
pursuant to this section is in effect and the obligated parent'semployment is terminated, or the insurance coverage for the child
is denied, modified or terminated, the insurer shall, within ten
days after the notice of change in coverage is sent to the
covered employee, notify the custodian for the child and provide
an explanation of any conversion privileges available from the
insurer.
(j) A child of an obligated parent shall remain eligible for
insurance coverage until the child is emancipated or until the
insurer under the terms of the applicable insurance policy
terminates said child from coverage, whichever is later in time,
or until further order of the court.
(k) If the obligated parent fails to comply with the order
to provide insurance coverage for the child, the court shall:
(1) Hold the obligated parent in contempt for failing or
refusing to provide the insurance coverage or for failing or
refusing to provide the information required in subsection (d) of
this section;
(2) Enter an order for a sum certain against the obligated
parent for the cost of medical care for the child, and any
insurance premiums paid or provided for the child during any
period in which the obligated parent failed to provide the
required coverage; and
(3) In the alternative, other enforcement remedies available
under sections two and three, article five, chapter forty-eight-a
of this code, or otherwise available under law, may be used to
recover from the obligated parent the cost of medical care or
insurance coverage for the child.
(l) Proof of failure to maintain court ordered insurancecoverage for the child constitutes a showing of substantial
change in circumstances or increased need pursuant to section
fifteen of this article, and provides a basis for modification of
the child support order.
§48-2-16. Effect of separation agreement; what considered in
awarding alimony, child support or separate maintenance.
(a) When the parties to an action commenced under the
provisions of this article have executed a separation agreement,
if the court finds that the agreement is fair and reasonable, and
not obtained by fraud, duress or other unconscionable conduct by
one of the parties, and further finds that the parties, through
the separation agreement, have expressed themselves in terms
which, if incorporated into a judicial order, would be
enforceable by a court in future proceedings, then the court
shall conform the relief which it is authorized to order under
the provisions of sections thirteen and fifteen of this article
to the separation agreement of the parties. The separation
agreement may contractually fix the division of property between
the parties and may determine whether alimony shall be awarded,
whether a court shall have continuing jurisdiction over the
amount of an alimony award so as to increase or decrease the
amount of alimony to be paid, whether alimony shall be awarded as
a lump sum settlement in lieu of periodic payments, whether
alimony shall continue beyond the death of the payor party or the
remarriage of the payee party, or whether the alimony award shall
be enforceable by contempt proceedings or other judicial remedies
aside from contractual remedies. Any award of periodic payments
of alimony shall be deemed to be judicially decreed and subjectto subsequent modification unless there is some explicit, well
expressed, clear, plain and unambiguous provision to the contrary
set forth in the court approved separation agreement or the order
granting the divorce.
(b) When the parties to an action commenced under the
provisions of this article have not executed a separation
agreement, or have executed an agreement which is incomplete or
insufficient to resolve the outstanding issues between the
parties, or when the court finds the separation agreement of the
parties not to be fair and reasonable or clear and unambiguous,
the court shall proceed to resolve the issues outstanding between
the parties. The court shall consider the following factors in
determining the amount of alimony or separate maintenance, if
any, to be ordered under the provisions of sections thirteen and
fifteen of this article, as a supplement to or in lieu of the
separation agreement:
(1) The length of time the parties were married;
(2) The period of time during the marriage when the parties
actually lived together as husband and wife;
(3) The present employment income and other recurring
earnings of each party from any source;
(4) The income-earning abilities of each of the parties,
based upon such factors as educational background, training,
employment skills, work experience, length of absence from the
job market and custodial responsibilities for children;
(5) The distribution of marital property to be made under
the terms of a separation agreement or by the court under the
provisions of section thirty-two of this article, insofar as thedistribution affects or will affect the earnings of the parties
and their ability to pay or their need to receive alimony, child
support or separate maintenance;
(6) The ages and the physical, mental and emotional
condition of each party;
(7) The educational qualifications of each party;
(8) The likelihood that the party seeking alimony, child
support or separate maintenance can substantially increase his or
her income-earning abilities within a reasonable time by
acquiring additional education or training;
(9) The anticipated expense of obtaining the education and
training described in subdivision (8) above;
(10) The costs of educating minor children;
(11) The costs of providing health care for each of the
parties and their minor children;
(12) The tax consequences to each party;
(13) The extent to which it would not be in the best
interests of a minor child for the custodian to seek employment
outside of the home;
(14) The financial need of each party;
(15) The legal obligations of each party to support himself
or herself and to support any other person; and
(16) Such other factors as the court may consider to arrive
at a fair and equitable grant of alimony, child support or
separate maintenance.
(c) When the action involves a minor child or children, the
court shall issue an order awarding child support in accordance
with section eight, article two, chapter forty eight-a of thiscode and shall further provide for medical support for any minor
child in accordance with section fifteen-a, article two of this
chapter. Under all circumstances, child support shall, be subject
to continuing judicial modification.
§48-2-22. Proceedings in contempt.
(a) Criminal Contempt. -- Upon a verified petition for
contempt, notice of hearing and hearing, if the petition alleges
criminal contempt or the court informs the parties that the
matter will be treated and tried as a criminal contempt, the
matter shall be tried before a jury, unless the party charged
with contempt shall knowingly and intelligently waive the right
to a jury trial with the consent of the court and the other
party. If the jury, or the court sitting without a jury, shall
find the respondent in contempt for willfully failing to comply
with an order of the court made pursuant to the provisions of
this article, as charged in the petition, the court may find the
person to be in criminal contempt and may commit such person to
the county jail for a determinate period not to exceed six
months.
(b) Civil Contempt. -- When a petition for contempt does not
allege criminal contempt, the matter may be tried before the
family law master.
(1) When a petition for contempt is based upon the failure
of a party to pay alimony, child support or to comply with an
order regarding equitable distribution of property, the family
law master may enter a temporary order setting forth a time and
method whereby the alleged contemnor may purge himself or herself
of contempt. These methods may include, but are not limited to:(1) Seeking work or enrollment in a general equivalency diploma
(G.E.D.) or vocational education program; (2) enrollment in a
substance abuse program; or (3) compliance with a program
provided by a debt counseling or financial management service.
Any order setting forth these requirements shall provide for a
further hearing within sixty days from entry of the order whereby
the family law master shall either find that the contemnor has
taken the action required by such order or recommend an order to
circuit court to find that the contemnor is in contempt or
recommend any other order which may be supported by the pleadings
or the evidence adduced at the hearing, including a modification
of the prior order. The family law master shall award expenses,
court costs and attorney fees in any temporary order or
recommended order issued granting relief pursuant to this
section.
(2) When a petition for contempt is based upon the failure
of a party to permit the other party to exercise visitation with
the minor children, a hearing shall be held before the family law
master within twenty days of the filing of the petition. In
these cases, the family law master may enter a temporary order
setting forth a time and method whereby the alleged contemnor may
purge himself or herself of contempt. These methods may include,
but are not limited to: (1) Modification of a visitation schedule
to provide more precise details about the visitation; (2)
modification of provisions regarding transportation or the
location for visitation; or (3) providing for a supervisor for
picking up and dropping off the child for visitation. Any order
setting forth these requirements shall provide for a furtherhearing within sixty days from the entry of the order whereby the
family law master shall either find that the contemnor has taken
the action required by such order or recommend an order to
circuit court finding the respondent in contempt or recommend any
other order which may be supported by the pleadings or the
evidence adduced at the hearing, including a modification of the
prior order. The family law master shall award expenses, court
costs, and attorney fees in any temporary order or recommended
order issued granting relief pursuant to this section.
(c) At any time during a contempt proceeding, the court may
enter an order to attach forthwith the body of, and take into
custody, any person who refuses or fails to respond to the lawful
process of the court or to comply with an order of the court.
Such order of attachment shall require the person to be brought
forthwith before the court or the judge thereof in any county in
which the court may then be sitting.
(d) When a charge of contempt is based upon the failure of
the respondent to pay alimony, child support or separate
maintenance, if the court or jury finds that the respondent did
not pay because he was financially unable to pay, the respondent
may not be imprisoned on charges of contempt of court.
§48-2-33. Disclosure of assets required.
(a) In 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 debts required by this section. The clerk of the circuit
court shall make these forms available to all parties in any
divorce action or action involving child support. All disclosure
required by this section shall be on a form that substantially
complies with the form promulgated by the supreme court of
appeals. The form used shall contain a statement in conspicuous
print that complete disclosure of assets and debts is required by
law and deliberate failure to provide complete disclosure as
ordered by the court constitutes false swearing.
(d) Nothing contained in this section shall be construed to
prohibit the court form 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 anypurpose 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 value
of five hundred dollars or more is omitted from the final
distribution of property, the party aggrieved by such
nondisclosure may at any time petition a court of competent
jurisdiction to declare the creation of a constructive trust as
to all undisclosed assets, for the benefit of the parties and
their minor or dependent children, if any, with the party in
whose name the assets are held declared the constructive trustee,
such trust to include such terms and conditions as the court may
determine. The court shall impose the trust upon a finding of a
failure to disclose such assets as required under this section.
(3) Any assets with a fair market value of five hundred
dollars or more which would be considered part of the estate ofeither 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 or
who deliberately fails to disclose information pursuant to the
provisions of this section is guilty of false swearing.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.
ARTICLE 2. WEST VIRGINIA CHILD ADVOCATE OFFICE.
§48A-2-22. 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 mastersfund" 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.
ARTICLE 4. PROCEEDINGS BEFORE A MASTER.
§48A-4-1. Appointment of family law masters; term of office;
vacancy; qualifications; removal; compensation and
expenses; budget; location of offices; matters to be
heard by master; fees for hearings; notice of master's
hearing; content of notice; determination of issues by
consent; hearing.
(a) The part-time family law masters holding office on the
effective date of this section by virtue of appointments made
under the prior enactments of this article, shall continue their
service for a term ending on the thirtieth day of June, one
thousand nine hundred ninety-four. On or before the first day of
July, one thousand nine hundred ninety-four, the governor, with
the advice and consent of the Senate, shall appoint family law
masters in such numbers and to serve such areas of the state as
provided for under subsection (k) of this section, and such
appointments of individuals as family law masters shall be for a
term beginning on the first day of July, one thousand nine
hundred ninety-four, and ending on the thirtieth day of June, one
thousand nine hundred ninety-eight. Thereafter, the length ofthe term of the office of family law master shall be four years,
with terms commencing on the first day of July, one thousand nine
hundred ninety-eight, and on a like date in every fourth year
thereafter, and ending on the thirtieth day of June, two thousand
two, and on a like date in every fourth year thereafter. At the
end of each four year term, the supreme court of appeals shall,
by the first day of April, certify to the governor the family law
masters to be reappointed and the vacancies to be filled. 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. 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.
(b) No individual may be appointed to serve as a family law
master unless he or she is a member in good standing of the West
Virginia state bar.
(c) 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 supremecourt 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 incurred
in accordance with the supervisory rules of the supreme court of
appeals.
(d) Removal from office. -- The supreme court of appeals may
remove a family law master for incompetency, misconduct, neglect
of duty or physical or mental disability when such removal is
found necessary according the rules and procedures adopted by the
supreme court of appeals.
(e) Outside practice of law. -- 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 practice of law
and shall devote full time to his or her duties under the
provisions of this chapter and chapter forty-eight of this code,
to the exclusion of any other employment. Part time family law
masters who do not engage in the practice of criminal law shall
be exempted from the appointments in indigent cases which would
otherwise be required pursuant to article twenty-one, chapter
twenty-nine of this code.
(f) Judicial officers. -- All family law masters, and allnecessary clerical and secretarial assistants employed in the
offices of family law masters, shall be deemed to be officers and
employees in the judicial branch of state government. 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 the child advocate office
and the secretary of the department of health and human
resources, shall enter into an agreement with the administrative
office of the supreme court of appeals whereby all federal
matching funds paid to and received by said agencies or entities
for the activities by family law masters and staff of the program
shall be paid 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.
(g) Premises for duties. -- Each county commission of this
state shall enter into an agreement with the administrative
office of the supreme court of appeals whereby the administrative
office of the supreme court of appeals shall contract to pay tothe county commission a reasonable amount as rent for premises
furnished by the county commission to the family law master and
its staff, which premises shall be adequate for the conduct of
the duties required of such master under the provisions of this
chapter.
(h) Compensation and expenses. -- Until the first day of
July, one thousand nine hundred ninety-four, a part-time family
law master appointed under the provisions of this article shall
receive as full compensation for his or her services an annual
salary of thirty-five thousand dollars. Effective the first day
of July, one thousand nine hundred ninety-four, a part-time
family law master appointed under the provisions of this article
shall receive as full compensation for his or her services an
annual salary of thirty-seven thousand dollars. A full-time
family law master appointed under the provisions of this article
shall receive as full compensation for his or her services an
annual salary of forty-eight thousand seven hundred fifty
dollars. The secretary-clerk of the family law master shall
receive an annual salary of sixteen thousand five hundred dollars
and shall be appointed by the family law master and serve at his
or her will and pleasure. Disbursement of salaries shall be made
by or pursuant to the order of the director of the administrative
office of the supreme court of appeals.
(i) Expenses. -- Family law masters serving under the
provisions of this article 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 ofappeals under such regulations as he or she may prescribe with
the approval of the supreme court of appeals.
(j) Prior to the first day of July, one thousand nine
hundred ninety-four, the offices of the family law masters shall
be distributed geographically so as to provide an office of the
family law master for each of the following regions:
(1) The counties of Brooke, Hancock and Ohio;
(2) The counties of Marshall, Tyler and Wetzel;
(3) The counties of Pleasants, Ritchie, Wirt and Wood;
(4) The counties of Calhoun, Jackson and Roane;
(5) The counties of Mason and Putnam;
(6) The county of Cabell;
(7) The counties of McDowell and Wyoming;
(8) The counties of Logan and Mingo;
(9) The county of Kanawha;
(10) The county of Raleigh;
(11) The counties of Mercer and Summers;
(12) The counties of Fayette and Nicholas;
(13) The counties of Greenbrier, Pocahontas and Monroe;
(14) The counties of Braxton, Clay, Gilmer and Webster;
(15) The counties of Doddridge, Harrison, Lewis and Upshur;
(16) The counties of Marion and Taylor;
(17) The counties of Monongalia and Preston;
(18) The counties of Barbour, Randolph and Tucker;
(19) The counties of Grant, Hampshire, Hardy, Mineral and
Pendleton;
(20) The counties of Berkeley, Jefferson and Morgan; and
(21) The counties of Boone, Lincoln and Wayne.
There shall be a total of twenty-two part-time family law
masters serving throughout the state. 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.
(k) On and after 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 Jefferson, Berkeley, Morgan, Hampshire,
Mineral, Hardy, Grant, Pendleton and Tucker;
(2) The counties of Preston, Monongalia, Marion, Taylor,
Barbour and Harrison;
(3) The counties of Hancock, Brooke, Ohio, Marshall, Wetzel,
Tyler, Doddridge, Pleasants, Ritchie, Wood and Wirt;
(4) The counties of Calhoun, Roane, Jackson, Mason, Putnam
and Cabell;
(5) The counties of Lincoln, Wayne, Boone, Logan and Mingo;
(6) The counties of McDowell, Wyoming, Raleigh and Fayette;
(7) The counties of Mercer, Summers, Monroe, Greenbrier,
Nicholas and Pocahontas;
(8) The counties of Randolph, Upshur, Lewis, Gilmer,
Braxton, Webster and Clay; and
(9) The county of Kanawha.
The governor shall appoint one part-time and one full-time
family law master for the region composed of the counties of
Randolph, Upshur, Lewis, Gilmer, Braxton, Webster and Clay andtwo part-time and two full-time family law masters for the region
comprised of the counties of Hancock, Brooke, Ohio, Marshall,
Wetzel, Tyler, Doddridge, Pleasants, Ritchie, Wood and Wirt. In
each of the other regions defined by this subsection, the
governor shall appoint two part-time and one full-time family law
master for the region. The administrative office of the supreme
court of appeals shall assign each law master to a county or
counties within the region: Provided, That nothing shall
prohibit the chief justice of the supreme court of appeals from
assigning a master to another county or region when necessary due
to recusal, illness or caseloads in that county or region.
(l) Matters to be heard. -- A circuit court or the chief
judge thereof shall refer to the master the following matters for
hearing to be conducted pursuant to section two of this article:
Provided, That on its own motion or upon motion of a party, the
circuit judge may revoke the referral of a particular matter to
a master if the master is recused, if the matter is uncontested,
or for other good cause, or if the matter will be more
expeditiously and inexpensively heard by the circuit judge
without substantially affecting the rights of parties in actions
which must be heard by the circuit court:
(1) Actions to obtain orders of support brought under the
provisions of section one, article five of this chapter;
(2) All actions to establish paternity under the provisions
of article six of this chapter: Provided, That when either or
both of the parties have demanded a trial by jury of the law and
the facts shall be heard by the circuit court;
(3) All motions for temporary relief affecting childcustody, visitation, child support, spousal support or family
violence, wherein either party has requested such referral or the
court on its own motion in individual cases or by general order
has referred such motions to the master: Provided, That if the
circuit court determines, in its discretion, that the pleadings
raise substantial issues concerning the identification of
separate property or the division of marital property which may
have a bearing on an award of support, the court may decline to
refer a motion for temporary support to the family law master;
(4) All petitions for modification of an order involving
child custody, child visitation, child support or spousal
support;
(5) All actions for divorce, annulment or separate
maintenance brought pursuant to article two, chapter forty-eight
of this code: Provided, That an action for divorce, annulment or
separate maintenance which does not involve child custody or
child support shall be heard by the circuit judge if, at the time
of the filing of the action, the parties file a written property
settlement agreement which has been signed by both parties;
(6) All actions wherein an obligor is contesting the
enforcement of an order of support through the withholding from
income of amounts payable as support or is contesting an
affidavit of accrued support, filed with a circuit clerk, which
seeks to collect arrearages;
(7) All actions commenced under the provisions of article
seven of this chapter or under the provisions of the revised
uniform reciprocal enforcement of support act of any other state;
and
(8) Proceedings for the enforcement of support, custody or
visitation orders including, but not limited to, initial hearings
on contempt actions brought under the provisions of section two,
article two, chapter forty-eight of this code: Provided, That
petitions alleging criminal contempt shall be heard by a circuit
judge or jury.
(9) All actions to establish custody of a minor child,
including but not limited to a petition for a writ of habeas
corpus: Provided, That any action instituted under article six,
chapter forty-nine shall be heard by a circuit judge.
(m) Fees and allocation of court costs.-- The payment of
initial fees for a hearing before a master shall be paid before
the commencement of the hearing. A party may demonstrate that he
or she has paid the required fees by presenting a check or money
order issued to the clerk for the fee. Any additional hourly
fees beyond the initial fee shall be paid at the conclusion of
the hearing, unless a party is excused from payment thereof under
the provisions of section one, article two, chapter fifty-nine of
this code. Such initial fees may be paid at any time prior to
such hearing, but shall not be required at the time the action is
filed, and no advance payment shall be required for additional
fees beyond the initial fees required by this section. Any
payment of fees for a hearing shall be refunded by the clerk of
the circuit court if the master verifies that such hearing was
not held, upon the request of the person paying such fees.
(n) 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 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 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,
fifty dollars: Provided, That if the matter is contested, thefee shall be fifty dollars for the first hour or any portion
thereof, and thirty dollars per hour for each subsequent hour or
any portion thereof; and
(9) For an action to establish visitation with a minor
child, fifty dollars: Provided, That if the matter is contested,
thee 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.
(o) Opportunity for hearing, notice of hearing and ex parte
communications.-- 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 in accordance with the provisions of sections
two and four of this article.
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.
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.
(p) Recommended orders. -- The master who presides at thereception of evidence pursuant to section two of this article
shall prepare the default order or make and enter the temporary
order provided for in section three of this article, or make the
recommended order required by section four of this article, as
the case may be.
§48A-4-3. 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 provisions
of section two 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. A
temporary order may not be subject to a petition for review or
appeal by the circuit court except as is permitted by anextraordinary writ.
(c) All orders prepared by a master shall provide for
automatic withholding from income of the obligor if arrearages in
support occur, if no such provision already exists in prior
orders or if the existing order as it relates to withholding is
not in compliance with applicable law.
§48A-4-3a. Prompt hearing of temporary motions for support,
child custody and protection.
Every family law master shall establish a regular docket or
other means for hearing urgent motions regarding child support,
child custody or visitation, protection from family violence or
abuse, possession of the home or other urgent matter.
48A-4-5. 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
three of this article, procedural orders entered pursuant to the
provisions of section two of this article, and temporary orders
entered in accordance with chapter forty-eight, article two,
chapter twenty two, an order imposing sanctions or granting or
denying relief may not be made and entered except by a circuit
court within the jurisdiction of said court and as authorized by
law.
48A-4-6. 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 aprocedural action or ruling not otherwise directly reviewable is
subject to review only upon the review of the recommended order
by the circuit court.
(b) When a master's action or recommended order is presented
to the circuit court for review upon the petition of any party
and such action or recommended order is subject to review, the
family law master or circuit court shall enter a temporary
support and custody order or otherwise provide for relief during
the pendency of the review proceedings upon any party's request
therefor or on the master's or court's own motion if the family
law master or court deems such order or other relief to be fair
and equitable.
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 have no authority to visit, inspect or
interview adult inmates of county jails, regional jails or
facilities under the direction of the commissioner of corrections
used for the incarceration of adult offenders or detainees: Provided, however, That the panel shall have the authority to
enforce statutory provisions involving the incarceration of
juveniles in county jails and regional jails. 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.
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 issued arrest
warrants in all criminal matters, to issued warrants for search
and seizure and, except in cases involving capital offenses, to
set and admit to bail: Provided, That in cases punishable only
by the fine such bail or recognizance shall not exceed the
maximum amount of the fine and applicable court costs permittedor authorized by statute to be imposed in the event of
conviction.
§50-2-3a. Sentencing; probation.
(a) In addition to sentencing authority granted elsewhere to
magistrate courts, magistrate courts have authority to suspend
sentences and impose periods of unsupervised probation for a
period not to exceed two years, except for offenses for which the
penalty includes mandatory incarceration.
(b) Release on probation shall be upon the following
conditions:
(1) That the probationer shall not, during the term of his
probation, violate any criminal law of this state, any other
state of the United States or the United States;
(2) That he shall make reasonable restitution if financially
able to do so, in whole or in any part, immediately or within the
period of probation; and
(3) That he shall pay any fine and the costs assessed as the
court may direct.
(c) On motion by the prosecuting attorney, and upon a
hearing and a finding that reasonable cause exists to the believe
that a violation of any condition of probation has occurred, the
magistrate may revoke probation and order execution of the
sentence originally imposed.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-2a. Payment of fines by credit card or payment plan;
suspension of licenses for failure to pay fines.
(a) A magistrate court may accept credit cards in payment of
all costs, fines, forfeitures or penalties. The supreme court ofappeals shall adopt rules regarding the use of credit cards to
pay fines, and the rules shall state that any charges made by the
credit company shall be paid by the person responsible for paying
the fine. A magistrate court may collect a substantial portion
of all costs, fines, forfeitures or penalties at the time the
amount is imposed by the court so long as the court requires the
balance to be paid within ninety days and in accordance with a
payment plan which specifies: (1) The number of additional
payments to be made; (2) the dates on which such payments and
amounts shall be made; and (3) amounts due on such dates.
(b) If any costs, fines, forfeitures, restitution or
penalties imposed or ordered by the magistrate court for hunting
or fishing violations as described in chapter twenty of this
code, are not paid in full within ninety days of the judgment or
in accord with an order of probation entered pursuant to section
three-a, article two of this chapter, the magistrate court clerk
or, upon a judgment rendered on appeal, the circuit clerk shall
notify the director of the division of natural resources, of such
failure to pay. If any costs, fines, forfeitures, restitution or
penalties imposed by the magistrate court are not paid in full
within ninety days of judgment or in accord with an order of
probation entered pursuant to section three-a, article two of
this chapter, the magistrate court clerk or, upon judgment
rendered as appealed, the circuit clerk, shall notify the
director of the division of motor vehicles of the failure to pay.
Upon such notice, the division of motor vehicles shall
suspend the operator's or commercial driver's license and the
director of the division of natural resources shall suspend thehunting or fishing license of the person defaulting on payment
until such time that the costs, fines, forfeitures, restitution
or penalties are paid.
(c) If a person charged with a criminal violation of this
code, fails to appear or otherwise respond in court, the
magistrate court shall notify the director of the division of
motor vehicles thereof within fifteen days of the scheduled date
to appear, unless the person sooner appears or otherwise responds
in court to the satisfaction of the magistrate. Upon such
notice, the division of motor vehicles shall suspend the
operator's or commercial driver's license of the person failing
to appear or otherwise respond in accordance with the provisions
of section six, article three, chapter seventeen-b of this code.
(d) In every criminal case which involves a misdemeanor
violation, a magistrate may order restitution when rendering
judgment.
(e) The costs, fines, forfeitures, restitution or penalties
imposed by a magistrate court shall constitute a lien against the
property of the defendant when recorded in the office of the
clerk of the county commission in the county where the defendant
resides or owns property.
§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 moniescollected by the magistrate court. In addition to making other
remittances as required by law, the clerk of each magistrate
court shall, on a monthly basis, remit all interest earned on
such accounts to the state treasurer for deposit in the state
general revenue fund.
ARTICLE 5. TRIALS, HEARINGS AND APPEALS.
§50-5-13. Appeals in criminal cases.
Any person convicted of an offense in a magistrate court may
appeal such conviction to circuit court as a matter of right by
requesting such appeal within twenty days of the sentencing for
such conviction. The magistrate may require the posting of bond
with good security conditioned upon the appearance of the
defendant as required in circuit court, but such bond may not
exceed the maximum amount of any fine which could be imposed for
the offense. Such bond may be upon the defendant's own
recognizance. If no appeal is perfected within such twenty-day
period, the circuit court of the county may, not later than
ninety days after the sentencing, grant an appeal upon a showing
of good cause why such appeal was not filed within such twenty-
day period. The filing or granting of an appeal shall
automatically stay the sentence of the magistrate. Trial in
circuit court shall be de novo: Provided, That 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 or 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.
The selection of potential petit jurors shall be done by the
clerks of the circuit courts pursuant to the provisions of this
article and under the supervision of the circuit court, or in
circuits with more than one circuit judge, the chief judge of the
circuit.
§52-1-5. Master list; method for compilation; additional
freeholder list; lists to be available to public.
(a) In each county, the 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 thenames from each source used and eliminating all duplicates or by
selecting a sample of names from each source used by means of a
random key number system. If a sample of names is selected from
each source list, the same percentage of names must be selected
from each list. One source list shall be designated a primary
source. Names selected from the second source shall be compared
with the entire list of names on the primary source. Duplicate
names shall be removed from the second source sample, and the
remaining names shall be combined with the sample of names
selected from the primary source to form the master list. If
more than two source lists are used, this process shall be
repeated, using the previously combined list for comparison with
the third source list, and so on.
(b) The master list so compiled shall be used for a period
of two years or such other period as designated by the chief
judge.
(c) In addition to the master list required to be compiled
under the provisions of subsection (a) of this section, the 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 beopen to the public for examination.
§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 for
each 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 andbeen compensated as jurors pursuant to the provisions of section
twenty-one of this article, section thirteen, article two of this
chapter, or under any applicable rule or regulation of the
supreme court of appeals promulgated pursuant to the provisions
of section eight, article five, chapter fifty of this code.
(c) The names or identifying numbers of prospective jurors
to be placed in the jury wheel or jury box shall be selected by
the 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 fifteenthousand, and a desired jury box or wheel containing two hundred
names. Eight thousand nine hundred eighty names divided by two
hundred is forty-four and nine-tenths percent. The next whole
number is forty-five. The 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 any
papers, records or correspondence necessary to recruit, selectand 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 of
speaking and understanding the English language is met by the
ability to communicate in American sign language or signedEnglish;
(3) Is incapable, by reason of substantial physical or
mental disability, of rendering satisfactory jury service; but a
person claiming this disqualification may be required to submit
a physician's certificate as to the disability and the certifying
physician is subject to inquiry by the court at its discretion;
(4) Has, within the preceding two years, been summoned to
serve as a petit juror, grand juror or magistrate court juror,
and has actually attended sessions of the magistrate or circuit
court and been compensated as a juror pursuant to the provisions
of section twenty-one of this article, section thirteen, article
two of this chapter, or pursuant to an applicable rule or
regulation of the supreme court of appeals promulgated pursuant
to the provisions of section eight, article five, chapter fifty
of this code;
(5) Has lost the right to vote because of a criminal
conviction; or
(6) Has been convicted of perjury, false swearing or other
infamous offense.
(c) A prospective juror sixty-five years of age or older is
not disqualified from serving, but shall be excused from service
by the court upon the juror's request.
(d) A prospective grand juror is disqualified to serve on a
grand jury if the prospective grand juror is an officeholder
under the laws of the United States or of this state except that
the term "officeholder" does not include notaries public.
(e) A person who is physically disabled and can render
competent service with reasonable accommodation shall not beineligible 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; and
(2) The court shall administer an oath or affirmation to any
person present to facilitate communication for a disabled juror.
The substance of such oath or affirmation shall be that any
person present as an accommodation to a disabled juror will not
deliberate on his or her own behalf, although present throughout
the proceedings, but act only to accurately communicate for and
to the disabled juror.
(f) Nothing in this article shall be construed so as to
limit in any way a party's right to preemptory 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, quashthe 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 jury commissioners or
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 conformity
with this article.
§52-1-17. Reimbursement of jurors.
(a) A juror shall be reimbursed for travel expenses from the
grand juror's residence to the place of holding court and return
and other expenses incurred as a result of required attendance atsessions of the court at a rate of thirty dollars for each day of
required attendance. Such reimbursement shall be based on
vouchers submitted to the sheriff. Such reimbursement shall be
paid out of the state treasury.
(b) When a jury in any case is placed in the custody of the
sheriff, he or she shall provide for and furnish the jury
necessary meals and lodging while they are in the sheriff's
custody at a reasonable cost to be determined by an order of the
court and the meals and lodging shall be paid for out of the
state treasury.
(c) Anytime a panel of prospective jurors has been required
to report to court for the selection of a jury in any scheduled
matter, the court may, by specific provision in a court order,
assess a jury cost based on the actual cost of the jurors'
service as follows:
(1) In every criminal case, against the defendant upon
conviction, whether by plea, by bench trial or by jury verdict;
(2) In every civil case, against either party or prorated
against both parties, at the court's discretion, if the parties
settle the case or trial is to the bench; or
(3) In the discretion of the court and only when fairness
and justice so require, the court may forego assessment of the
jury fee, but shall set out the reasons therefor in its written
order.
(d) The circuit or magistrate court clerk shall by the tenth
day of the month following the month of collection remit to the
sheriff all jury costs collected, and the clerk and the clerk's
surety are liable therefore on the clerk's official bond as forother 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.
CHAPTER 59. FEES, ALLOWANCES AND COSTS; NEWSPAPERS;
LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-12. Payment of fines by credit card or payment plan;
suspension of licenses for failure to pay fines; lien
created.
(a) A circuit court may accept credit cards in payment of
all costs, fines, 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.
(b) If any costs, fines, forfeitures, restitution or
penalties imposed by the circuit court are not paid in full
within the time set by the court, the circuit court clerk shall
notify the director of 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.
(c) If a person charged with a criminal violation fails to
appear or otherwise respond in court, the circuit court shall
direct the circuit clerk to notify the director of the divisionof motor vehicles thereof within fifteen days of the scheduled
date to appear, unless the person sooner appears or otherwise
responds in court to the satisfaction of the circuit judge. Upon
such notice, the division of motor vehicles shall suspend the
operator's or commercial driver's license of the person failing
to appear or otherwise respond in accordance with the provisions
of section six, article three, chapter seventeen-b of this code.
(d) The costs, fines, forfeitures, restitution or penalties
imposed by circuit court constitute a lien against the property
of the defendant when recorded in the office of the clerk of the
county commission in the county where the defendant resides or
owns property.
CHAPTER 62. CRIMINAL PROCEDURE.
ARTICLE 11A. RELEASE FOR WORK AND OTHER PURPOSES.
§62-11A-1a. Other sentencing alternatives.
(a) Any person who has been convicted in a circuit court or
in a magistrate court under any criminal provision of this code
of a misdemeanor or felony, which may be punishable by
confinement in the county jail, may, in the discretion of the
sentencing judge or magistrate, as an alternative to the sentence
imposed by statute for such crime, be sentenced under one of the
following programs:
(1) The weekend jail program under which persons would be
required to spend weekends or other days normally off from work,
in jail;
(2) The work program under which sentenced persons would be
required to spend the first two or more days of their sentence in
jail and then, in the discretion of the judge, would be assignedto a county agency to perform labor within the jail or in and
upon the buildings, grounds, institutions, bridges, roads,
including orphaned roads used by the general public, and public
works within the county. Eight hours of such labor shall be
credited as one day of the sentence imposed. Persons sentenced
under this program may be required to provide their own
transportation to and from the work site, lunch and work clothes;
or
(3) The community service program under which persons
sentenced would spend no time in jail but would be sentenced to
a number of hours or days of community service work with tax
supported agencies. Eight hours of service work shall be
credited as one day of the sentence imposed. Persons sentenced
under this program may be required to provide their own
transportation to and from the work site, lunch and work clothes.
(b) In no event may the duration of the alternate sentence
exceed the maximum period of incarceration otherwise allowed.
(c) In imposing a sentence under the provisions of this
section, the court shall first make the following findings of
fact and incorporate them into the court's sentencing order:
(1) The person sentenced was not convicted of an offense for
which a mandatory period of confinement is imposed by statute;
(2) The person sentenced is not a habitual criminal within
the meaning of sections eighteen and nineteen, article eleven,
chapter sixty-one of this code;
(3) That adequate facilities for the administration and
supervision of alternative sentencing programs are available
through the court's probation officers or the county sheriff or,in the case of magistrates, that adequate facilities for the
administration and supervision of alternative sentencing programs
are available through the county sheriff; and
(4) That an alternative sentence under provisions of this
article will best serve the interests of justice.
(d) Persons sentenced by the circuit court or a magistrate
under the provisions of this article shall remain under the
administrative custody and supervision of the court's probation
officers or the county sheriff.
(e) Persons sentenced under the provisions of this section
may be required to pay the costs of their confinement, including
meal costs, at the discretion of the court.
(f) Persons sentenced under the provisions of this section
remain under the jurisdiction of the court. The court may
withdraw any alternative sentence at any time by order entered
with or without notice and require that the remainder of the
sentence be served in the county jail: Provided, That no
alternative sentence directed by the sentencing judge or
magistrate or administered under the supervision of the sheriff,
his deputies, a jailer or a guard shall require the convicted
person to perform duties which would be considered detrimental to
the convicted person's health as attested to by a physician.
ARTICLE 11B. HOME DETENTION ACT.
§62-11B-4. Home detention; period of home detention;
applicability.
(a) As a condition of probation or as an alternative
sentence to another form of incarceration, a circuit court may
order an offender confined to the offender's home for a period ofhome detention. As an alternative sentence to incarceration in
jail, a magistrate may order an adult offender confined to the
offender's home for a period of home detention.
(b) The period of home detention may be continuous or
intermittent, as the circuit court orders, or continuous if
ordered by a magistrate. However, the aggregate time actually
spent in home detention may not exceed the term of imprisonment
or incarceration prescribed by this code for the offense
committed by the offender.
(c) A grant of home detention under this article constitutes
a waiver of any entitlement to deduction from a sentence for good
conduct under the provisions of section twenty-seven, article
five, chapter twenty-eight of this code and it constitutes a
waiver of any eligibility for parole under section thirteen,
article twelve of this chapter for any time in which home
detention is in effect.
§62-11B-5. Requirements for order for home detention.
An order for home detention of an offender under section
four of this article shall include, but not be limited to, the
following:
(1) A requirement that the offender be confined to the
offender's home at all times except when the offender is:
(A) Working at employment approved by the circuit court or
magistrate, or traveling to or from approved employment;
(B) Unemployed and seeking employment approved for the
offender by the circuit court or magistrate;
(C) Undergoing medical, psychiatric, mental health
treatment, counseling or other treatment programs approved forthe offender by the circuit court or magistrate;
(D) Attending an educational institution or a program
approved for the offender by the circuit court or magistrate;
(E) Attending a regularly scheduled religious service at a
place of worship;
(F) Participating in a community work release or community
service program approved for the offender by the circuit court;
or
(G) Engaging in other activities specifically approved for
the offender by the circuit court or magistrate.
(2) Notice to the offender of the penalties which may be
imposed if the circuit court or magistrate subsequently finds the
offender to have violated the terms and conditions in the order
of home detention.
(3) A requirement that the offender abide by a schedule,
prepared by the probation officer specifically setting forth the
times when the offender may be absent from the offender's home
and the locations the offender is allowed to be during the
scheduled absences.
(4) A requirement that the offender is not to commit another
crime during the period of home detention ordered by the circuit
court or magistrate.
(5) A requirement that the offender obtain approval from the
probation officer before the offender changes residence or the
schedule described in subdivision (3) of this section.
(6) A requirement that the offender maintain:
(A) A working telephone in the offender's home;
(B) If ordered by the circuit court or as ordered by themagistrate, a monitoring device in the offender's home or on the
offender's person, or both; and
(C) Electric service in the offender's home if use of a
monitoring device is ordered by the circuit court or magistrate.
(7) A requirement that the offender pay a home detention fee
set by the circuit court or magistrate. If a magistrate orders
home detention for an offender, the magistrate shall follow a fee
schedule established by the supervising circuit judge in setting
the home detention fee.
(8) A requirement that the offender abide by other
conditions of probation set by the circuit court.
§62-11B-6. Circumstances under which home detention may not be
ordered.
(a) A circuit court or magistrate may not order home
detention for an offender unless the offender agrees to abide by
all of the requirements set forth in the court's order issued
under this article.
(b) A circuit court or magistrate may not order home
detention for an offender who is being held under a detainer,
warrant or process issued by a court of another jurisdiction.
(c) A magistrate may only order home detention for an
offender convicted of any offense that carries a mandatory jail
sentence.
(d) A magistrate may not order home detention for an
offender without electronic monitoring and only if the county of
the offender's home has an established program of electronic
monitoring.
§62-11B-7. Home detention fees; special fund.
All home detention fees ordered by the circuit court or
magistrate court shall be deposited into the county sheriff's
special adult or juvenile probation services fund, which fund is
hereby mandated. The county commission shall appropriate money
from the fund to administer a home detention program, including
the purchase of monitoring devices and other supervision expenses
and may, as necessary, supplement the fund with additional
appropriations.
§62-11B-9. Violation of order of home confinement; procedures;
penalties.
(a) If at any time during the period of home detention there
shall be reasonable cause to believe that a participant in a home
detention program has violated the terms and conditions of the
circuit court's home confinement order, he or she shall be
subject to the procedures and penalties set forth in section ten,
article twelve of this chapter.
(b) If at any time during the period of home detention there
shall be reasonable cause to believe that a participant sentenced
to home detention by the circuit court has violated the terms and
conditions of the court's order of home detention and said
participant's participation was imposed as an alternative
sentence to another form of incarceration, said participant shall
be subject to the same procedures involving revocation as would
a probationer charged with a violation of the order of home
detention. Any participant under an order of home detention
shall be subject to the same penalty or penalties, upon the
circuit court's finding of a violation of the order of home
detention, as he or she could have received at the initialdisposition hearing: Provided, That the participant shall
receive credit towards any sentence imposed after a finding of
violation for the time spent in home confinement.
(c) If at any time during the period of home detention there
shall be reasonable cause to believe that a participant sentenced
to home detention by a magistrate has violated the terms and
conditions of the magistrate's order of home detention as an
alternative sentence to incarceration in jail, the participant
may be arrested with or without an order or warrant. The
magistrate who placed the participant on home detention, or any
other magistrate within the county of the offender's home shall
then conduct a prompt and summary hearing on whether the
participant's home detention should be revoked. If it appears to
the satisfaction of the magistrate that any condition of home
detention has been violated, the magistrate may revoke the home
detention and impose sentence, and order that the sentence be
executed. Any participant under an order of home detention shall
be subject to the same penalty or penalties, upon the
magistrate's finding of a violation of the order of home
detention, as the participant could have received at the initial
disposition hearing: Provided, That the participant shall
receive credit towards any sentence imposed after a finding of
violation for the time spent in home confinement.
§62-11B-10. Information to be provided law-enforcement agencies.
A probation department charged by a circuit court or a
magistrate with supervision of offenders ordered to undergo home
detention shall provide all law-enforcement agencies having
jurisdiction in the place where the probation department islocated with a list of offenders under home detention supervised
by the probation department. The list shall include the
following information about each offender:
(1) The offender's name, any known aliases and the location
of the offender's home detention;
(2) The crime for which the offender was convicted;
(3) The date the offender's home detention expires; and
(4) The name, address and telephone number of the offender's
supervising probation officer for home detention.
§62-11B-11. Provisions of article not exclusive; discretion of
the circuit court.
The provisions of this article are not to be considered
exclusive nor do they supersede existing statutes relating to the
types of detention available for adult or juvenile offenders.
The provisions of this article may be applied at the discretion
of the circuit court as an alternate means of detention for any
offense.
ARTICLE 12. PROBATION AND PAROLE.
§62-12-5. Probation officers and assistants.
Each circuit court, subject to the approval of the supreme
court of appeals and in accordance with its rules, is authorized
to appoint one or more probation officers and clerical
assistants.
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 ofappointment 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.
The salary of probation officers, 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.
No judge may appoint any probation officer, assistant
probation officer or clerical assistant who is related to him or
her either by consanguinity or affinity.
A judge of a circuit court whose circuit comprises more than
one county may appoint, subject to the approval of the supreme
court of appeals and in accordance with its rules, a probation
officer and a clerical assistant in each county of the circuit or
may appoint the same person as a probation officer and also the
same person as a clerical assistant in two or more counties in
the circuit.
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 courtunder any special act of the Legislature heretofore enacted and
the salary or compensation of those persons shall remain as
specified in the most recent amendment of any special act until
changed by the court, with approval of the supreme court of
appeals, by order entered of record, and any the salary or
compensation shall be paid out of the state treasury.
§62-12-9. Conditions of release on probation.
Release on probation shall be upon the following conditions:
(1) That the probationer shall not, during the term of his
probation, violate any criminal law of this or any other state or
of the United States.
(2) That he shall not, during the term of his probation,
leave the state without the consent of the court which placed him
on probation.
(3) That he shall comply with the rules and regulations
prescribed by the court or by the board of probation and parole,
as the case may be, for his supervision by the probation officer.
(4) That in every case wherein the probationer has been
convicted of an offense defined in section thirteen, article
eight, chapter sixty-one 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, based
upon 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.
In addition, the court may impose, subject to modification
at any time, any other conditions which it may deem advisable,
including, but not limited to, any of the following:
(1) That he shall make restitution or reparation, in whole
or in part, immediately or within the period of probation, to any
party injured by the crime for which he has been convicted.
(2) That he shall pay any fine assessed and the costs of the
proceeding in such installments as the court may direct.
(3) That he shall make contribution from his earnings, in
such sums as the court may direct, for the support of his
dependents.
(4) That he shall, in the discretion of the court, be
required to serve a period of confinement in the county jail of
the county in which he was convicted for a period not to 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 of
corrections may designate. He or she shall give bond with goodsecurity, 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 those
matters only.
The commissioner of corrections shall administer all otherlaws 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.