Senate Bill No. 538

(By Senator Hunter)

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[Introduced February 9, 2007; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact §51-2A-11 and §51-2A-14 of the Code of West Virginia, 1931, as amended, all relating to extending the time to file an appeal from an order of the family court pending a motion for reconsideration.

 Be it enacted by the Legislature of West Virginia:
That §51-2A-11 and §51-2A-14 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2A. FAMILY COURTS
§ 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.
(a) Any party may file a petition for appeal from an order made by a family court judge, or by a senior status circuit judge, circuit judge or other judicial officer appointed to serve pursuant to the provision of section nineteen of this article within thirty days following the entry of an order granting or denying final relief, or within thirty days following the entry of an order on a motion for reconsideration of an order granting or denying final relief if the motion for reconsideration was filed within thirty days following entry of the order to be reconsidered.
(b) A petition for appeal of a final order of the family court an order of the family court granting or denying final relief shall be filed in the office of the clerk of the circuit 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 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-14. Review by circuit court; record; standard of review; temporary order upon demand.

(a) The circuit court may refuse to consider the petition for appeal may affirm or reverse the order, may affirm or reverse the order in part or may remand the case with instructions for further hearing before the family court judge.
(b) In considering a petition for appeal, the circuit court may only consider the record as provided in subsection (d), section eight of this article.
(c) The circuit court shall review the findings of fact made by the family court judge under the clearly erroneous standard and shall review the application of law to the facts under an abuse of discretion standard.
(d) If the circuit court agrees to consider a petition for appeal, the court shall provide the parties an opportunity to appear for oral argument, upon the request of either party or in the discretion of the court. The provisions of this subsection are effective until the adoption of rules by the Supreme Court of Appeals governing the appellate procedures of family courts.
(e) If the proceeding is remanded to the family court, the circuit court must enter appropriate temporary orders for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, child support, spousal support or such other temporary relief as the circumstances of the parties may require. If the circuit court remands the case to the family court, it must state the legal or factual issues to be considered by the family court on remand. If the family court determines that the consideration of those issues also requires consideration of collateral or interdependent issues, the family court may also consider those other collateral or interdependent issues.
(f) The circuit court must enter an order ruling on a petition for appeal within sixty days from the last day a reply to the petition for appeal could have been filed: Provided, That if a motion for reconsideration of the same order being appealed has been filed, the circuit court in its discretion may enter a ruling on a petition for appeal within sixty days from entry an order on the appellee's motion for reconsideration. If the circuit court does not enter the order within the sixty-day period or does not, within the sixty-day period, enter an order stating just cause why the order has not been timely entered, the circuit clerk shall send a written notice to the parties that unless the parties both file an objection within fourteen days of the date of the notice, the appeal will be transferred to the Supreme Court of Appeals as provided in section fifteen of this article due to the failure of the circuit court to timely enter an order. The appeal shall be transferred without the necessity of the filing of any petition or further document by the petitioner.

NOTE: The purpose of this bill is to allow extra time to file an appeal from the family court to the circuit court if a motion for reconsideration of the same final order was filed in family court. It also allows the circuit court extra time to decide on party's appeal if another party has filed a motion for reconsideration.

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