SB 380 Text

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.

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