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ENROLLED
Senate Bill No. 583
(By Senators
Kessler, Dempsey, Foster, Hunter, Jenkins, Minard, Oliverio,
White, Barnes, Caruth, Deem, Harrison, Lanham, McKenzie and Weeks
)
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[Passed April 9, 2005; in effect ninety days from passage.]
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AN ACT to amend and reenact §51-2A-11, §51-2A-14 and §51-2A-16 of
the Code of West Virginia, 1931, as amended, all relating to
appealing orders from the family court to the circuit court.
Be it enacted by the Legislature of West Virginia:
That §51-2A-14 and §51-2A-16 of the Code of West Virginia,
1931, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 2A. FAMILY COURTS.
§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. 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.
§51-2A-16. Expiration of appellate procedures; exceptions; report
requirements.
(a) The provisions of sections eleven, twelve, thirteen,
fourteen and fifteen of this article shall expire and be of no
force and effect after the thirtieth day of June, two thousand ten,
except as otherwise provided by subsection (b) of this section.
(b) Appeals that are pending before a circuit court or the
Supreme Court of Appeals on the thirtieth day of June, two thousand
ten, but not decided before the first day of July, two thousand
ten, shall proceed to resolution in accordance with the provisions
of sections eleven, twelve, thirteen, fourteen and fifteen of this
article, notwithstanding the provisions of subsection (a) of this section that provide for the expiration of those sections. The
Supreme Court of Appeals shall, by rule, provide procedures for
those appeals that are remanded but not concluded prior to the
first day of July, two thousand ten, in the event that the appeals
process set forth in sections eleven, twelve, thirteen, fourteen
and fifteen of this article is substantially altered as of the
first day of July, two thousand ten.
(c) Prior to the two thousand eight regular session of the
Legislature and annually thereafter, the Supreme Court of Appeals
shall report to the Joint Committee on Government and Finance the
number of appeals from final orders of the family court filed in
the various circuit courts and in the Supreme Court of Appeals, the
number of pro se appeals filed, the subject matter of the appeals,
the time periods in which appeals are concluded, the number of
cases remanded upon appeal and such other detailed information so
as to enable the Legislature to study the appellate procedures for
family court matters and to consider the possible necessity and
feasibility of creating an intermediate appellate court or other
system of appellate procedure.