Senate Bill No. 380
(By Senators Chafin, Buckalew, Snyder, Bailey, Kimble, Deem,
Sprouse, Scott, Dugan, Boley, White, Dittmar and Minear)
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[Introduced March 20, 1997; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section twenty, article four, chapter
forty-eight-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to lowering
the standard of review necessary to overturn a law master's
recommended decision.
Be it enacted by the Legislature of West Virginia:
That section 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-4-20. 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 review by the circuit
court. The circuit court
shall not follow may reject 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 A potential cause, if
fully implemented, of substantial or irreparable harm or manifest
injustice to either of the parties or their children;
(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 shall, upon request of
the party petitioner, provide for a hearing de novo, to be
conducted before the court. Any hearing de novo requested
pursuant to this section that involves unresolved issues of child
custody or visitation, shall be scheduled, heard and decided on
an expedited basis. In no event, unless due to the existence of
extraordinary circumstances, may a matter involving child custody
or visitation be left unaddressed and undecided by a court for
more than ninety days from the date a hearing de novo is
requested, unless by agreement of the parties. The court shall provide for the appointment of any necessary and unbiased child
specialists or practitioners to provide technical support and
guidance in resolving issues of child custody and visitation.
(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 the 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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(NOTE: The purpose of this bill is to lower the standard
necessary for overturning a law master's decision.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)
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JUDICIARY COMMITTEE AMENDMENTS
On pages __, section twenty, by striking out all of lines __
through__on page __;
And by relettering the remaining subsections;
On page __, section twenty, line __, by striking out the
word "The" and inserting in lieu thereof the words "Except for a
hearing de novo, the";
On page __, section twenty, line __, by striking out "(d)" and inserting in lieu thereof "(c)";
On page __, section twenty, line __, after the word
"recommitted" by inserting the words "or a hearing de novo is
requested";
And,
On page__, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 380--A Bill to amend and reenact
section twenty, article four, chapter forty-eight-a of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, relating to authorizing the circuit court to conduct a
hearing de novo upon review of a family law master's recommended
order.
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