Introduced Version
Senate Bill 538 History
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Key: Green = existing Code. Red = new code to be enacted
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.