H. B. 3052


(By Delegates Staton and Mahan)

[Introduced February 18, 2003 ; referred to the

Committee on the Judiciary.]





A BILL to amend and reenact section seventeen, article one; section one, article two; sections two, eight, ten, eleven, twelve and thirteen, article two-a; section fourteen, article three; sections one and eleven, article four; section twelve, article six; and sections eight and nine, article eight, all of chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to including family courts into certain jurisdictional references of the clerk of the circuit court and including Clerk of the Circuit and Family Court as the official title of the formerly titled Clerk of the Circuit Court.

Be it enacted by the Legislature of West Virginia:
That section seventeen, article one; section one, article two; sections two, eight, ten, eleven, twelve and thirteen, article two- a; section fourteen, article three; sections one and eleven, article four; section twelve, article six; and sections eight and nine, article eight, all of chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 1. SUPREME COURT OF APPEALS.

§51-1-17. Administrative office of supreme court of appeals -- duties of director.
The director shall, when authorized by the supreme court of appeals, be the administrative officer of said court and shall have charge, under the supervision and direction of the supreme court of appeals, of:
(a) All administrative matters relating to the offices of the clerks of the circuit and family courts and intermediary courts and of the offices of justice of the peace and all other clerical and administrative personnel of said courts; but nothing contained in this article shall be construed as affecting the authority of the courts to appoint their administrative or clerical personnel;
(b) Examining the state of the dockets of the various courts and securing information as to their needs for assistance, if any, and the preparation of statistical data and reports of the business transacted by the courts;
(c) The preparation of a proper budget to secure the appropriation of moneys for the maintenance, support and operation of the courts;
(d) The purchase, exchange, transfer and distribution of equipment and supplies, as may be needful or desirable;
(e) Such other matters as may be assigned to him by the supreme court of appeals. The clerks of the circuit and family courts, intermediate courts and courts of the justices of the peace shall comply with any and all requests made by the director or his assistants for information and statistical data bearing on the state of the dockets of such courts, or such other information as may reflect the business transacted by them;
(f) Annual report of activities and estimates of expenditures. -- The director, when required to do so by the supreme court of appeals, shall submit annually to the court a report of the activities of the administrative office and of the state of business of the courts, together with the statistical data compiled by him, with his recommendations;
(g) Serve as the chair of the court security board created under the provisions of section fifteen, article three of this chapter.
ARTICLE 2. CIRCUIT COURTS; CIRCUIT JUDGES.

§51-2-1. Judicial circuits; terms of office; legislative findings and declarations; elections; terms of court; circuit and family court clerks.

(a) The state shall be divided into the following judicial circuits with the following number of judges:
The counties of Brooke, Hancock and Ohio shall constitute the first circuit and shall have four judges; the counties of Marshall, Tyler and Wetzel shall constitute the second circuit and shall have two judges; the counties of Doddridge, Pleasants and Ritchie shall constitute the third circuit and shall have one judge; the counties of Wood and Wirt shall constitute the fourth circuit and shall have three judges; the counties of Calhoun, Jackson, Mason and Roane shall constitute the fifth circuit and shall have two judges; the county of Cabell shall constitute the sixth circuit and shall have four judges; the county of Logan shall constitute the seventh circuit and shall have two judges; the county of McDowell shall constitute the eighth circuit and shall have two judges; the county of Mercer shall constitute the ninth circuit and shall have two judges; the county of Raleigh shall constitute the tenth circuit and shall have three judges; the counties of Greenbrier and Pocahontas shall constitute the eleventh circuit and shall have two judges; the county of Fayette shall constitute the twelfth circuit and shall have two judges; the county of Kanawha shall constitute the thirteenth circuit and shall have seven judges; the counties of Braxton, Clay, Gilmer and Webster shall constitute the fourteenth circuit and shall have two judges; the county of Harrison shall constitute the fifteenth circuit and shall have three judges; the county of Marion shall constitute the sixteenth circuit and shall have two judges; the county of Monongalia shall constitute the seventeenth circuit and shall have two judges; the county of Preston shall constitute the eighteenth circuit and shall have one judge; the counties of Barbour and Taylor shall constitute the nineteenth circuit and shall have one judge; the county of Randolph shall constitute the twentieth circuit and shall have one judge; the counties of Grant, Mineral and Tucker shall constitute the twenty-first circuit and shall have two judges; the counties of Hampshire, Hardy and Pendleton shall constitute the twenty-second circuit and shall have one judge; the counties of Berkeley, Jefferson and Morgan shall constitute the twenty-third circuit and shall have four judges; the county of Wayne shall constitute the twenty-fourth circuit and shall have one judge; the counties of Lincoln and Boone shall constitute the twenty-fifth circuit and shall have two judges; the counties of Lewis and Upshur shall constitute the twenty-sixth circuit and shall have one judge; the county of Wyoming shall constitute the twenty-seventh circuit and shall have one judge; the county of Nicholas shall constitute the twenty-eighth circuit and shall have one judge; the county of Putnam shall constitute the twenty-ninth circuit and shall have two judges; the county of Mingo shall constitute the thirtieth circuit and shall have one judge; and the counties of Monroe and Summers shall constitute the thirty-first circuit and shall have one judge: Provided, That the Kanawha County circuit court shall be a court of concurrent jurisdiction with each single judge circuit where the sitting judge in such single judge circuit is unavailable by reason of sickness, vacation or other reason.
(b) Any judge in office on the effective date of the reenactment of this section shall continue as a judge of the circuit as constituted under prior enactments of this section, unless sooner removed or retired as provided by law, until the thirty-first day of December, two thousand.
(c) The term of office of all circuit court judges shall be for eight years. The term of office for all circuit court judges elected during the general election conducted in the year two thousand shall commence on the first day of January, two thousand one and end on the thirty-first day of December, two thousand eight.
(d) Beginning with the primary and general elections to be conducted in the year one thousand nine hundred ninety-two, in all judicial circuits having two or more judges there shall be, for election purposes, numbered divisions corresponding to the number of circuit judges in each circuit. Each judge shall be elected at large from the entire circuit. In each numbered division of a judicial circuit, the candidates for nomination or election shall be voted upon and the votes cast for the candidates in each division shall be tallied separately from the votes cast for candidates in other numbered divisions within the circuit. The candidate receiving the highest number of the votes cast within a numbered division shall be nominated or elected, as the case may be: Provided, That beginning with the primary and general elections to be conducted in the year two thousand, judges serving a judicial circuit comprised of four or more counties with two or more judges, shall not be residents of the same county.
(e) The supreme court shall, by rule, establish the terms of court of circuit judges.
(f) The clerk of the circuit court shall be officially known as the Clerk of the Circuit and Family Court.
ARTICLE 2A. FAMILY COURTS.
§51-2A-2. Family court jurisdiction; exceptions; limitations.

(a) The family court shall exercise jurisdiction over the following matters:
(1) All actions for divorce, annulment or separate maintenance brought under the provisions of article three, four or five, chapter forty-eight of this code, except as provided in subsections (b) and (c) of this section;
(2) All actions to obtain orders of support brought under the provisions of part one, article fourteen, chapter forty-eight of this code;
(3) All actions to establish paternity brought under the provisions of article twenty-four, chapter forty-eight of this code, and any dependent claims related to such actions regarding child support, parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child;
(4) All actions for grandparent visitation brought under the provisions of article ten, chapter forty-eight of this code;
(5) All actions for the interstate enforcement of family support brought under article sixteen, chapter forty-eight of this code and for the interstate enforcement of child custody brought under the provisions of article twenty, chapter forty-eight of this code;
(6) All actions for the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, including actions brought under the uniform child custody jurisdiction and enforcement act, as provided in article twenty, chapter forty-eight of this code;
(7) All petitions for writs of habeas corpus wherein the issue contested is custodial responsibility for a child;
(8) All motions for temporary relief affecting parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child, child support, spousal support or domestic violence;
(9) All motions for modification of an order providing for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child or for child support or spousal support;
(10) All actions brought, including civil contempt proceedings, to enforce an order of spousal or child support or to enforce an order for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child;
(11) All actions brought by an obligor to contest the enforcement of an order of support through the withholding from income of amounts payable as support or to contest an affidavit of accrued support, filed with the circuit and family clerk, which seeks to collect an arrearage; and
(12) All final hearings in domestic violence proceedings.
(b) If an action for divorce, annulment or separate maintenance does not require the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child and does not require an award or any payment of child support, the circuit court has concurrent jurisdiction with the family court over the action if, at the time of the filing of the action, the parties also file a written property settlement agreement executed by both parties.
(c) If an action for divorce, annulment or separate maintenance is pending and a petition is filed pursuant to the provisions of article six, chapter forty-nine of this code alleging abuse or neglect of a child by either of the parties to the divorce, annulment or separate maintenance action, the orders of the circuit court in which the abuse or neglect petition is filed shall supercede and take precedence over an order of the family court respecting the allocation of custodial and decision-making responsibility for the child between the parents. If no order for the allocation of custodial and decision-making responsibility for the child between the parents has been entered by the family court in the pending action for divorce, annulment or separate maintenance, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility for the child between the parents and defer to the orders of the circuit court in the abuse or neglect proceedings.
(d) A family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction of the family court is specifically authorized in this section and in chapter forty-eight of this code. A family court may not exercise the powers given courts of record in section one, article five, chapter fifty-one of this code or exercise any other powers provided for courts of record in this code unless specifically authorized by the Legislature. A family court judge is not a "judge of any court of record" or a "judge of a court of record" as the terms are defined and used in article nine of this chapter.
§51-2A-8. Rules of practice and procedure; applicability of rules of evidence; record of hearings; duties of clerk of circuit court.

(a) Pleading, practice and procedure in matters before a family court judge are governed by rules of practice and procedure for family law promulgated by the supreme court of appeals.
(b) The West Virginia rules of evidence apply to proceedings before a family court judge.
(c) Hearings before a family court shall be recorded electronically. A magnetic tape or other electronic recording medium on which a hearing is recorded shall be indexed and securely preserved by the secretary-clerk of the family court judge and shall not be placed in the case file in the office of the circuit and family clerk: Provided, That upon the request of the family court judge, the magnetic tapes or other electronic recording media shall be stored by the clerk of the circuit and family court. When requested by either of the parties, a family court judge shall provide a duplicate copy of the tape or other electronic recording medium of each hearing held. For evidentiary purposes, a duplicate of such electronic recording prepared by the secretary-clerk shall be a "writing" or "recording" as those terms are defined in rule 1001 of the West Virginia rules of evidence and unless the duplicate is shown not to reflect the contents accurately, it shall be treated as an original in the same manner that data stored in a computer or similar data is regarded as an "original" under such rule. The party requesting the copy shall pay an amount equal to the actual cost of the tape or other medium or the sum of five dollars, whichever is greater. Unless otherwise ordered by the court, the preparation of a transcript and the payment of the cost thereof shall be the responsibility of the party requesting the transcript.
(d) The recording of the hearing or the transcript of testimony, as the case may be, and the exhibits, together with all documents filed in the proceeding, constitute the exclusive record and, on payment of lawfully prescribed costs, shall be made available to the parties.
(e) In any proceeding in which a party has filed an affidavit that he or she is financially unable to pay the fees and costs, the family court judge shall determine whether either party is financially able to pay the fees and costs based on the information set forth in the affidavit or on any evidence submitted at the hearing. If a family court judge determines that either party is financially able to pay the fees and costs, the family court judge shall assess the payment of such fees and costs accordingly as part of an order. The provisions of this subsection do not alter or diminish the provisions of section one, article two, chapter fifty-nine of this code.
(f) The clerks of the circuit and family court shall have, within the scope of the jurisdiction of family courts, all the duties and powers prescribed by law that clerks exercise on behalf of circuit courts: Provided, That a family court judge may not require the presence or attendance of a circuit and family court clerk or deputy circuit and family court clerk at any hearing before the family court.
 §51-2A-10. Motion for reconsideration of family court order.
(a) Any party may file a motion for reconsideration of a temporary or final order of the family court for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been available at the time the matter was submitted to the court for decision; (3) fraud, misrepresentation or other misconduct of an adverse party; (4) clerical or other technical deficiencies contained in the order; or (5) any other reason justifying relief from the operation of the order.
(b) A motion for reconsideration must be filed with the clerk of the circuit and family court within a reasonable time and for reasons set forth in subdivision (1), (2) or (3), subsection (a) of this section, not more than one year after the order was entered and served on the other party in accordance with rule 5 of the rules of civil procedure. The family court must enter an order ruling on the motion within thirty days of the date of the filing of the motion.
 §51-2A-11. Petition for appeal.
(a) Within thirty days following the entry of a final order of a family court judge or the entry of a final order of any senior status circuit judge, circuit judge or other judicial officer appointed to serve pursuant to the provisions of section nineteen of this article, any party may file a petition for appeal with the circuit court. No appeal may be had under the provisions of this article from any order of a family court judge or from any order of another judicial officer temporarily serving as a family court judge other than a final order.
(b) A petition for appeal of a final order of the family court shall be filed in the office of the clerk of the circuit and family court. At the time of filing the petition, a copy of the petition for appeal must be served on all parties to the proceeding in the same manner as pleadings subsequent to an original complaint are served under rule 5 of the rules of civil procedure.
(c) The circuit judge may require, or a party may choose to submit with the petition for appeal, a brief in support of the petition.
(d) A respondent shall have fifteen days after the filing of a petition to file a reply to the petition for appeal. The reply must be served on all parties to the proceeding in the same manner required for service of the petition. The circuit judge may require, or a party may choose to submit with the reply, a brief in opposition to the petition.
(e) In addition to the reply, the respondent may file a cross-petition to the petition for appeal within fifteen days after the filing of the petition. The respondent to the cross-petition shall have fifteen days after the filing of the cross-petition to file a reply. The cross-petition and any reply must be served in the same manner required for service of the original petition. The circuit judge may require or either party may choose to submit a brief on the cross-petition.
(f) The supreme court of appeals shall develop and provide forms for appeals filed pursuant to this section. The forms shall be made available for distribution in the offices of the clerks of the circuit and family courts and in the offices of the secretary- clerks to the family court judges.
(g) The supreme court of appeals shall promulgate a supervisory rule setting forth educational requirements in domestic relations matters for circuit court judges.
(h) An appeal from the final order of any judicial officer assigned or appointed pursuant to the provisions of section nineteen of this article shall be perfected and treated in all respects as an appeal from an order of the family court. The terms "family court" or "family court judge" as provided in this section and in sections twelve, thirteen, fourteen and fifteen of this article mean the judicial officer who entered the final order which is the subject of an appeal.
 §51-2A-12. Stay of proceedings pending appeal.
(a) Any person desiring to file a petition for appeal from a final order of the family court may file a motion for a stay of proceedings to the family court in which the order was entered. The motion for a stay shall be filed with the clerk of the circuit and family court and served on the respondent in accordance with rule 5 of the rules of civil procedure. The family court may, sua sponte, order a stay of all or part of a final order pending appeal. Subject to the provisions of subsection (c) of this section, the family court may order a stay for the period of time allowed for the filing of a petition for appeal to the circuit court or for any additional period of time pending disposition of the appeal. If the circuit court refuses to consider the petition for appeal, the stay is vacated.
(b) If the family court judge denies a motion for a stay of the proceedings pending appeal, or if the relief afforded is not acceptable, the person desiring to file the petition for appeal may file a motion for a stay of the proceedings to the circuit court. The motion for stay shall be filed with the clerk of the circuit and family court and served upon the other party in accordance with rule 5 of the rules of civil procedure. Subject to the provisions of subsection (c) of this section, the circuit court may order a stay for the period of time allowed for the filing of a petition for appeal to the circuit court or for any additional period of time pending disposition of the appeal. If the circuit court refuses to consider the petition for appeal, the stay is vacated.
(c) An order granting a motion for a stay under the provisions of this section may not include a stay of an award for the payment of spousal support or child support pending the appeal, except that an award of past-due child support may be stayed pending an appeal.
 §51-2A-13. Motion to dismiss appeal.
At any time following the filing of a petition for appeal of a final order of a family court, either party may move the circuit court to dismiss the appeal on any of the following grounds: (1) A joint agreement of the parties to the dismissal; (2) failure to properly perfect the appeal; (3) failure to obey an order of the family court or circuit court; (4) lack of an appealable order; or (5) lack of jurisdiction. Such motion shall be filed with the clerk of the circuit and family court and served on the respondent in accordance with rule 5 of the rules of civil procedure. No oral argument shall be held on such motion unless requested by the court.
 ARTICLE 3. COURTS IN GENERAL.
§51-3-14. Court security fund.
(a) The offices and the clerks of the magistrate courts and the circuit and family courts shall, on or before the tenth day of each month, transmit all fees and costs received for the court security fund in accordance with the provisions of sections one and two, article three, chapter fifty of this code and section eleven, article one, chapter fifty-nine of this code for deposit in the state treasury to the credit of a special revenue fund to be known as the "court security fund", which is hereby created under the department of military affairs and public safety. The court security fund may receive any gifts, grants, contributions or other money from any source which is specifically designated for deposit in the fund. All moneys collected and received and paid into the state treasury and credited to the court security fund shall be expended by the board exclusively to implement the improvement measures agreed upon in accordance with the security plans submitted pursuant to section sixteen of this article and in accordance with an appropriation by the Legislature. Amounts collected which are found from time to time to exceed the funds needed for the purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes upon appropriation by the Legislature.
(b) Notwithstanding any provision of this code to the contrary, during fiscal year two thousand, all fees and costs received for the court security fund in accordance with the provisions of sections one and two, article three, chapter fifty of this code, section eleven, article one, chapter fifty-nine of this code, and any other provision of this code, for deposit in the state treasury to the credit of the court security fund shall not be deposited in the court security fund, but shall instead be transmitted by the offices and the clerks of the magistrate courts and the circuit and family courts, on or before the tenth day of each month, for deposit in the state treasury to the credit of the family court fund established under section twenty-three, article four, chapter forty-eight-a of this code. The fees and costs that are deposited in the family court fund under the provisions of this subsection shall be expended for the purposes set forth in said section twenty-three.
(c) Notwithstanding any provision of this code to the contrary, after the thirtieth day of June, two thousand, the court security board shall transfer such amounts from the court security fund as may from time to time be directed by the Legislature in an appropriation act to the domestic violence legal services fund created in section four-c, article two-c, chapter forty-eight of this code. Any moneys transferred to the domestic violence legal services fund pursuant to the provisions of this section shall be expended for the purposes specified in said section four-c.
ARTICLE 4. GENERAL PROVISIONS RELATING TO CLERKS OF COURTS.
§51-4-1. Where clerks' offices to be kept.

The clerk's office of the supreme court of appeals shall be kept at the seat of government, unless such court shall direct it to be kept elsewhere. The clerks' offices of the circuit and family court and county court of every county shall be kept at the courthouse of such county, unless there shall have been a failure to provide such offices there, in which case they may be kept at such other place within the county as the respective courts may direct.
§51-4-11. Report by circuit clerk to auditor of claims allowed against state; duties of auditor; penalty.

It shall be the duty of the clerk of the circuit and family court of each county, in addition to the reports of fines, jurors and witnesses otherwise provided for by law, to transmit to the auditor, within thirty days after the adjournment of each term of the court, a report of all claims allowed and certified by such court for payment out of the state treasury. Such report shall show in whose favor the claim is allowed, for what purpose and the amount thereof. It shall be the duty of the auditor to furnish the clerk with blank forms for such reports, and, when made out and returned to the auditor, he shall cause the same to be recorded in a book to be kept by him for that purpose.
If any clerk or the auditor fail to perform any duty required in this section he shall forfeit one hundred dollars.
ARTICLE 6. GENERAL RECEIVERS.
§51-6-12. "Receivers' book"; recordation of reports; inspection.

The clerk of each circuit and family court shall procure, at the expense of his county, a book to be called the "receivers' book," wherein he shall record such reports, when approved by the court; and he shall make an index thereto, showing the style of the suit or other proceeding in which money has been paid as aforesaid, and the page where any report respecting the same has been recorded. Such book shall be open to the examination of any person interested, or his counsel, without the payment of any fee therefor.
ARTICLE 8. STATE AND COUNTY LAW LIBRARIES; LAW CLERKS.
§51-8-8. Authority to establish county law libraries; control of circuit judge; rules and regulations.

In addition to all other powers and duties now conferred by law upon the supreme court of appeals and the circuit courts, such courts are hereby authorized and empowered to establish county law libraries which shall be wholly under the control and management of the circuit judge, with the assistance of the circuit and family court clerk. The supreme court of appeals may expend funds for the purchase of books or other expenses necessary to the operation of the county law library.
All county law libraries presently in existence shall be continued and kept current and the cost thereof, other than for provision of adequate space, shall be borne by the state and charged against the judicial accounts thereof. Such libraries shall be available for use by the public subject to such reasonable rules as may be adopted by the circuit judge. County commissions shall provide adequate space for such libraries.
§51-8-9. Accounts and reports relating to county law libraries.

The administrative director of the supreme court of appeals, with the cooperation and assistance of each circuit and family court clerk, shall keep full and complete account of all money transactions in connection with the various county law libraries and of the receipt of all books and other documents lodged in such libraries and shall perform such other duties in connection therewith as may be ordered by the supreme court of appeals. Such administrative director shall make an annual report to the supreme court of appeals within sixty days after the close of each fiscal year, in which he shall state the number of copies of reports, acts of the Legislature and all other books and documents received by each county law library and the disposition made thereof. Such report shall also set forth what money came into his hands during the preceding fiscal year.

 Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.