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Senate Bill 380 History
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ENROLLED
Senate Bill No. 380
(By Senators Chafin, Buckalew, Snyder, Bailey, Kimble, Deem,
Sprouse, Scott, Dugan, Boley, White, Dittmar and Minear)
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[Passed April 12, 1997; in effect ninety days from
passage.]
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AN ACT to amend and reenact sections one and twenty, article
four, chapter forty-eight-a of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, all relating to
appointing family law masters to serve for geographical regions;
providing that conclusions of law of family law masters are
subject to de novo review; providing that findings of facts are
not subject to de novo review; and providing that the circuit
court is not held to a "clearly erroneous" standard in reviewing
findings of fact.
Be it enacted by the Legislature of West Virginia:
That sections one and twenty, article four, chapter forty- eight-a of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, to read as
follows:
ARTICLE 4. PROCEEDINGS BEFORE A MASTER.
§48A-4-1. Appointment of family law masters; term of office;
vacancy; removal.
(a) The 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 of office ending on the thirtieth day of June, one
thousand nine hundred ninety-eight. Before the first day of
July, one thousand nine hundred ninety-eight, the governor shall
appoint family law masters in such numbers and to serve for
geographical regions of the state as provided for under the
provisions of section four of this article, 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. 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.
(b) 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.
(c) Removal of a master during the term for which he or she
is appointed shall be as follows:
(1) Upon a recommendation by the judicial hearing board
created pursuant to the rules of procedure for the handling of
complaints against justices, judges, magistrates and family law
masters, if the supreme court of appeals shall find that a family
law master has violated the judicial code of ethics or that the
master, because of advancing years and attendant physical or
mental incapacity, should not continue to serve, the supreme
court of appeals may, in lieu of or in addition to any
disposition authorized by such rules, remove the family law
master from office; and
(2) The supreme court of appeals may remove a master when
conduct of the family law master evidences incompetence,
unsatisfactory performance, misconduct, neglect of duty or
physical or mental disability.
§48A-4-20. Circuit court review of master's recommended order.
(a) The circuit court shall proceed to a review of the
recommended order of the master when:
(1) No petition has been filed within the time allowed, or
the parties have expressly waived the right to file a petition;
(2) A petition and an answer in opposition have been filed,
or the time for filing an answer in opposition has expired, or
the parties have expressly waived the right to file an answer in
opposition, as the case may be.
(b) To the extent necessary for decision and when presented,
the circuit court shall decide all relevant questions of law,
interpret constitutional and statutory provisions and determine
the appropriateness of the terms of the recommended order of the
master.
(c) The circuit court shall examine the recommended order of
the master, along with the findings and conclusions of the
master, and may enter the recommended order, may recommit the
case, with instructions, for further hearing before the master or
may, in its discretion, enter an order upon different terms, as
the ends of justice may require. Conclusions of law of the
family law master shall be subject to de novo review by the
circuit court. Nothing in this subsection shall be construed to
authorize a de novo review of the facts; however, the circuit
court shall not be held to the clearly erroneous standard in
reviewing findings of fact. The circuit court shall not follow
the recommendation, findings and conclusions of a master found to
be:
(1) Arbitrary, capricious, an abuse of discretion or
otherwise not in conformance with the law;
(2) Contrary to constitutional right, power, privilege or
immunity;
(3) In excess of statutory jurisdiction, authority or
limitations or short of statutory right;
(4) Without observance of procedure required by law;
(5) Unsupported by substantial evidence; or
(6) Unwarranted by the facts.
(d) In making its determinations under this section, the
circuit court shall review the whole record or those parts of it
cited by a party. If the circuit court finds that a master's
recommended order is deficient as to matters which might be
affected by evidence not considered or inadequately developed in
the master's recommended order, the court may recommit the
recommended order to the master, with instructions indicating the
court's opinion, or the circuit court may proceed to take such
evidence without recommitting the matter.
(e) The order of the circuit court entered pursuant to the
provisions of subsection (d) of this section shall be entered not
later than ten days after the time for filing pleadings or briefs
has expired or after the filing of a notice or notices waiving
the right to file such pleading or brief.
(f) If a case is recommitted by the circuit court, the master shall retry the matter within twenty days.
(g) At the time a case is recommitted, the circuit court
shall enter appropriate temporary orders awarding custody,
visitation, child support, spousal support or such other
temporary relief as the circumstances of the parties may require.