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Introduced Version Senate Bill 652 History

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Key: Green = existing Code. Red = new code to be enacted


Senate Bill No. 652

(By Senator Wooton)

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[Introduced March 26, 2001; referred to the Committee on the Judiciary.]

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A BILL to repeal section ten, article four, chapter forty-eight-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections one, four, thirteen, fifteen-b, twenty-seven and twenty-eight, article two, chapter forty-eight of said code; to amend and reenact section three-b, article two-a of said chapter; to amend and reenact section two hundred two, article eleven of said chapter; to further amend said article by adding thereto a new section, designated section six hundred five; to amend and reenact section eleven, article one-b, chapter forty- eight-a of said code; to amend article five of said chapter by adding thereto a new section, designated section three-a; to amend and reenact sections two and eleven, article two-a, chapter fifty-one of said code; to amend and reenact section seventeen, article one, chapter fifty-two of said code; and to amend and reenact sections eleven and twenty-eight-a, article one, chapter fifty-nine of said code, all relating to domestic relations proceedings; definitions; temporary parenting orders; withholding child and spousal support; custody responsibility orders confidential; clerk to log file examinations; allocation of custodial and decision-making responsibility; temporary orders in magistrate court after divorce filed; mediation costs and the state; parent education and mediation fund; overpayment by obligor to be promptly reimbursed; providing for the service of petitions for expedited modifications of child support orders; and establishing income withholding from obligee for overpayment of child support.

Be it enacted by the Legislature of West Virginia:
That section ten, article four, chapter forty-eight-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed;
that sections one, four, thirteen, fifteen-b, twenty-seven, and twenty-eight, article two, chapter forty-eight of said code be amended and reenacted; that section three-b, article two-a of said chapter be amended and reenacted; that section two hundred two, article eleven of said chapter be amended and reenacted; that said article eleven be further amended by adding thereto a new section, designated section six hundred five; that section eleven, article on-b, chapter forty-eight-a of said code be amended and reenacted; that article five of said code, be amended by adding thereto a new section, designated section three-a; and to amend and reenact section eleven, article one-b of said code; that sections two and eleven, article two-a, chapter fifty-one of said code be amended and reenacted; that section seventeen, article one, chapter fifty-two of said code be amended and reenacted; and that sections eleven and twenty-eight-a, article one, chapter fifty-nine of said code be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.

ARTICLE 2. DIVORCE, ANNULMENT AND SEPARATE MAINTENANCE.
§48-2-1. Definitions.
For the purposes of this chapter and chapter forty-eight-a of this code, the words and phrases defined in the following subdivisions of this section, and any variation of those words and phrases required by the context, have the meanings ascribed to them in this section. These definitions are applicable unless a different meaning clearly appears from the context.
(1) "Alimony" means the allowance which a person pays to or in behalf of the support of his or her spouse or divorced spouse while they are separated or after they are divorced. The payment of alimony may be required by court order or by the terms of a separation agreement. Alimony may be paid in a lump sum or paid in installments as periodic alimony. Alimony includes temporary alimony as that term is used in section thirteen of this article, as well as alimony as that term is used in section fifteen of this article and elsewhere throughout this article.
(2) "Alimony in gross" means alimony payable either in a lump sum, or in periodic payments of a definite amount over a specific period of time. An alimony award is "alimony in gross" only if the award grants alimony in such terms that a determination can be made of the total amount to be paid as well as the time such payments will cease.
(3) "Antenuptial agreement" or "prenuptial agreement" means an agreement between a man and woman before marriage, but in contemplation and generally in consideration of marriage, whereby the property rights and interests of the prospective husband and wife, or both of them, are determined, or where property is secured to either or both of them, to their separate estate, or to their children or other persons. An antenuptial agreement may include provisions which define the respective property rights of the parties during the marriage, or in the event of the death of either or both of the parties, and may provide for the disposition of marital property upon an annulment of the marriage or a divorce or separation of the parties. A prenuptial agreement is void if at the time it is made either of the parties is a minor.
(4) "Caretaking functions" means tasks that involve interaction with the child or care of the child, including the direction of interaction and care by others. Caretaking functions include the following:
(A) Feeding, bedtime and wake-up routines, care of the child when sick or hurt, bathing, grooming, personal hygiene, dressing, recreation and play, physical safety, transportation and other functions that meet the daily physical needs of the child;
(B) Direction of the child's various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence and maturation;
(C) Discipline, instruction in manners, assignment and supervision of chores and other tasks that attend to the child's needs for behavioral control and self-restraint;
(D) Arrangements for the child's education, including remedial or special services appropriate to the child's needs and interests, communication with teachers and counselors and supervision of homework;
(E) The development and maintenance of appropriate interpersonal relationships with peers, siblings and adults;
(F) Arrangements for health care, including making appointments, communication with health care providers, medical follow-up and home health care;
(G) Moral guidance; and
(H) Arrangement of alternative care by a family member, baby-sitter or other child care provider or facility, including investigation of alternatives, communication with providers and supervision.
(5) "Custodial responsibility" refers to physical custodianship and supervision of a child. It usually includes, but does not necessarily require, the exercise of residential or overnight responsibility.
(6) "Decision-making responsibility" refers to authority for making significant life decisions on behalf of a child, including, but not limited to, the child's education, spiritual guidance and health care.
(7) "Earnings" means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise, and includes periodic payments pursuant to a pension or retirement program. "Disposable earnings" means that part of the earnings of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld.
(8) "Family law master" means a commissioner of the circuit court appointed or elected and authorized to hear certain domestic relations actions under section ten, article two-a, chapter fifty-one of this code.
(9) "Income" includes, but is not limited to, the following:
(A) Commissions, earnings, salaries, wages and other income due or to be due in the future to an individual from his or her employer and successor employers;
(B) Any payment due or to be due in the future to an individual from a profit-sharing plan, a pension plan, an insurance contract, an annuity, social security, unemployment compensation, supplemental employment benefits, workers' compensation benefits, state lottery winnings and prizes and overtime pay; and
(C) Any amount of money which is owing to an individual as a debt from an individual, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, any other state or a political subdivision of another state, or any other legal entity which is indebted to the obligor.
(10) "Legal parent" means an individual defined as a parent, by law, on the basis of biological relationship, presumed biological relationship, legal adoption or other recognized grounds.
(11) "Marital property" means:
(A) All property and earnings acquired by either spouse during a marriage, including every valuable right and interest, corporeal or incorporeal, tangible or intangible, real or personal, regardless of the form of ownership, whether legal or beneficial, whether individually held, held in trust by a third party, or whether held by the parties to the marriage in some form of co-ownership such as joint tenancy or tenancy in common, joint tenancy with the right of survivorship, or any other form of shared ownership recognized in other jurisdictions without this state, except that marital property shall not include separate property as defined in subdivision (19) of this section; and
(B) The amount of any increase in value in the separate property of either of the parties to a marriage, which increase results from: (i) An expenditure of funds which are marital property, including an expenditure of such funds which reduces indebtedness against separate property, extinguishes liens, or otherwise increases the net value of separate property; or (ii) work performed by either or both of the parties during the marriage.
The definitions of "marital property" and "separate property" contained in this section shall have no application outside of the provisions of this article, and the common law as to the ownership of the respective property and earnings of a husband and wife, as altered by the provisions of article three of this chapter and other provisions of this code, are not abrogated by implication or otherwise, except as expressly provided for by the provisions of this article as such provisions are applied in actions brought under this article or for the enforcement of rights under this article.
(12) "Mediation" means a method of alternative dispute resolution in which a neutral third person helps resolve a dispute. Mediation is an informal, nonadversarial process whereby the neutral third person, the mediator, assists parties to a dispute to resolve, by agreement, some or all of the differences between them. The mediator has no authority to render a judgment on any issue of the dispute.
(13) "Mediator" means a neutral third person who interposes between two contending parties, with their consent, for the purpose of assisting them in settling their differences.
(14) "Parent" means a legal parent as defined in subdivision (10) of this section unless otherwise specified.
(15) "Parenting functions" means tasks that serve the needs of the child or the child's residential family. Parenting functions include caretaking functions, as defined in subdivision (4) of this section. Parenting functions also include functions that are not caretaking functions, including:
(A) Provision of economic support;
(B) Participation in decisionmaking regarding the child's welfare;
(C) Maintenance or improvement of the family residence, home or furniture repair, home-improvement projects, yard work and house cleaning;
(D) Financial planning and organization, car repair and maintenance, food and clothing purchasing, cleaning and maintenance of clothing, and other tasks supporting the consumption and savings needs of the family; and
(E) Other functions usually performed by a parent or guardian that are important to the child's welfare and development.
(16) "Parenting plan" means a temporary parenting plan as defined in subdivision (22) of this section or a permanent parenting plan as defined in subdivision (17) of this section.
(17) "Permanent parenting plan" means a plan for parenting a child that is incorporated into a final order or subsequent modification order in a domestic relations action. The plan principally establishes, but is not limited to, the allocation of custodial responsibility and significant decision-making responsibility and provisions for resolution of subsequent disputes between the parents.
(18) "Rehabilitative alimony" means alimony payable for a specific and determinable period of time, designed to cease when the payee is, after the exercise of reasonable efforts, in a position of self-support.
(19) "Separate property" means:
(A) Property acquired by a person before marriage; or
(B) Property acquired by a person during marriage in exchange for separate property which was acquired before the marriage; or
(C) Property acquired by a person during marriage, but excluded from treatment as marital property by a valid agreement of the parties entered into before or during the marriage; or
(D) Property acquired by a party during marriage by gift, bequest, devise, descent or distribution; or
(E) Property acquired by a party during a marriage but after the separation of the parties and before the granting of a divorce, annulment or decree of separate maintenance; or
(F) Any increase in the value of separate property as defined in paragraph (A), (B), (C), (D) or (E) of this subdivision which is due to inflation or to a change in market value resulting from conditions outside the control of the parties.
(20) "Separation" or "separation of the parties" means the separation of the parties next preceding the filing of an action under the provisions of this article, which separation continues, without the parties cohabiting or otherwise living together as husband and wife, and without interruption.
(21) "Separation agreement" means a written agreement entered into by a husband and wife whereby they agree to live separate and apart from each other and, in connection therewith, agree to settle their property rights; or to provide for the custody and support of their minor child or children, if any; or to provide for the payment or waiver of alimony by either party to the other; or to otherwise settle and compromise issues arising out of their marital rights and obligations. Insofar as an antenuptial agreement as defined in subdivision (3) of this section affects the property rights of the parties or the disposition of property upon an annulment of the marriage, or a divorce or separation of the parties, such antenuptial agreement shall be regarded as a separation agreement under the provisions of this article.
(21) "Separation agreement" means a written agreement entered into by a husband and wife whereby they agree to live separate and apart from each other. In a separation agreement, the parties may also agree to:
(A) Settle their property rights;
(B) Provide for an allocation of custodial responsibility for their child or children;
(C) Provide for the support of their minor child or children;
(D) Provide for the payment or waiver of alimony; or
(E) Otherwise settle and compromise issues that arise from their marital rights and obligations.
Insofar as an antenuptial agreement affects the property rights of the parties, or the disposition of property upon an annulment, divorce or separation, the antenuptial agreement is a separation agreement.

(22) "Temporary parenting plan" means a plan incorporated into a temporary or interlocutory order that provides for the parenting of a child pending final resolution of a domestic relations action.
§48-2-4. Grounds for divorce.
(a) A divorce may be ordered:
(1) For adultery; or
(2) When either of the parties subsequent to the marriage has, in or out of this state, been convicted for the commission of a crime which is a felony, and such conviction has been final; or
(3) To the party abandoned, when either party willfully abandons or deserts the other for six months; or
(4) For cruel or inhuman treatment by either party against the other, which includes reasonable apprehension of bodily harm, false accusation of adultery or homosexuality, conduct or treatment which destroys or tends to destroy the mental or physical well-being, happiness and welfare of the other and render continued cohabitation unsafe or unendurable: Provided, That under no circumstances shall it be necessary to allege or prove acts of physical violence in order to establish cruel and inhuman treatment as a ground for divorce; or
(5) For habitual drunkenness of either party subsequent to the marriage; or
(6) For the addiction of either party, subsequent to the marriage, to the habitual use of any narcotic or dangerous drug defined in this code; or
(7) Where the parties have lived separate and apart in separate places of abode without any cohabitation and without interruption for one year, whether such separation was the voluntary act of one of the parties or by the mutual consent of the parties: Provided, That a plea of res judicata or of recrimination with respect to any other provision of this section shall not be a bar to either party's obtaining a divorce on this ground: Provided, however, That if alimony is sought under the provision of section fifteen of this article, the court may inquire into the question of who is the party at fault and may award alimony according to the right of the matter: Provided further, That this determination shall not affect the right of either party to obtain a divorce on this ground; or
(8) For permanent and incurable insanity, only if the person is permanently and incurably insane and has been confined in a mental hospital or other similar institution for a period of not less than three consecutive years next preceding the filing of the complaint and the court has heard competent medical testimony that such insanity is permanently incurable: Provided, That a court granting a divorce on this grounds may in its discretion order support and maintenance for the permanently incurably insane party by other: Provided, however, That in an action for divorce or annulment, where the plaintiff is permanently incurably insane the defendant shall not enter a plea of recrimination based upon the insanity of the plaintiff; or
(9) For abuse or neglect of a child of the parties or of one of the parties, "abuse" meaning any physical or mental injury inflicted on such child including, but not limited to, sexual molestation; and "neglect" is willful failure to provide, by a party who has legal responsibility for such child, the necessary support, education as required by law, or medical, surgical or other care necessary for the well-being of such child: Provided, That a divorce shall not be granted on this ground except upon clear and convincing evidence sufficient to justify permanently depriving the offending party of his or her parental rights to the custody and control of the abused or neglected child; or
(10) If one party to a marriage shall file a verified complaint, for divorce, against the other, alleging that irreconcilable differences have arisen between the parties, and stating the names of the dependent children of the parties or of either of them, and if the other party shall file a verified answer to the complaint and admit or aver that irreconcilable differences exist between the parties, the court shall grant a divorce: Provided, That the defendant may file and serve an answer with or without an attorney, and said verified answer shall be sufficient if it is of the form as set out in section four-a of this article: Provided, however, That the circuit clerk of each county shall maintain sufficient supplies of said form and provide the same to any person at no charge. No corroboration shall be required of the ground for the divorce or the issues of jurisdiction or venue or any other proof for a divorce on the ground of irreconcilable differences of the parties. The court may make orders for or approve, modify or reject any agreement between the parties pertaining to just and equitable, (i) alimony, (ii) custody, support or maintenance of children, or (iii) visitation rights.
(10) If a party to a marriage files a verified petition for divorce alleging that irreconcilable differences have arisen between the parties, and if the other party files a verified response to the petition and admits or avers that irreconcilable differences exist between the parties, the court shall grant a divorce. A petition alleging irreconcilable differences must state the names of the dependent children of the parties or of either of them. A respondent may file and serve a response with or without an attorney, and a verified response is sufficient if it is in the form as set out in section four-a of this article. The circuit clerk of each county shall maintain sufficient supplies of said form and provide the same to any person at no charge. No corroboration shall be required of the ground for the divorce or the issues of jurisdiction or venue or any other proof for a divorce on the ground of irreconcilable differences of the parties. The court may make orders for or approve, modify or reject any agreement between the parties pertaining to just and equitable: (i) Alimony; (ii) allocation of custodial responsibility; (iii) support or maintenance of children; or (iv) visitation rights.
(b) It shall not be is not necessary to allege the facts constituting the ground or grounds relied upon, and a complaint petition or counter complaint shall be petition is sufficient if any one of the grounds is alleged in the language of such the ground as set forth in subsection (a) of this section.
§48-2-13. Temporary relief during pendency of action for divorce, annulment or separate maintenance.

(a) At the time of the filing of the complaint petition or at any time after the commencement of an action for divorce, annulment or separate maintenance under the provisions of this article and upon motion for temporary relief, notice of hearing and hearing, the court may order all or any portion of the following temporary relief, which order shall govern the marital rights and obligations of the parties during the pendency of the action:
(1) The court may require either party to pay temporary alimony in the form of periodic installments, or a lump sum, or both, for the maintenance of the other party.
(2) If an allocation of custodial responsibility has not yet been made, the court may provide for the custody of minor children of the parties subject to such rights of visitation, both in and out of the residence of the custodial parent or other person or persons having custody, as may be appropriate under the circumstances shall enter a temporary parenting order incorporating a temporary parenting plan as provided by section two hundred three and two hundred four, article eleven of this chapter.
(3) In every action where visitation is awarded, the court shall specify a schedule for visitation by the noncustodial parent: Provided, That with respect to any existing order of temporary relief which provides for visitation but which does not provide a schedule for visitation by the noncustodial parent, upon motion of any party, notice of hearing and hearing, the court shall issue an order which provides a specific schedule for visitation by the noncustodial parent.
(4) (3) When the action involves a minor child or children, the court shall require either party to pay temporary child support in the form of periodic installments for the maintenance of the minor children of the parties in accordance with section fifteen, article one-b, chapter forty-eight-a of this code.
(5) (4) When the action involves a minor child or children, the court shall provide for medical support for any minor children in accordance with section fifteen-a, of this article.
(6) (5) (A) The court may compel either party to pay attorney's fees and court costs reasonably necessary to enable the other party to prosecute or defend the action in the trial court. The question of whether or not a party is entitled to temporary alimony is not decisive of that party's right to a reasonable allowance of attorney's fees and court costs. An order for temporary relief awarding attorney fees and court costs may be modified at any time during the pendency of the action, as the exigencies of the case or equity and justice may require, including, but not limited to, a modification which would require full or partial repayment of fees and costs by a party to the action to whom or on whose behalf payment of such fees and costs was previously ordered. If an appeal be taken or an intention to appeal be stated, the court may further order either party to pay attorney fees and costs on appeal.
(B) When it appears to the court that a party has incurred attorney fees and costs unnecessarily because the opposing party has asserted unfounded claims or defenses for vexatious, wanton or oppressive purposes, thereby delaying or diverting attention from valid claims or defenses asserted in good faith, the court may order the offending party, or his or her attorney, or both, to pay reasonable attorney fees and costs to the other party.
(7) (6) As an incident to requiring the payment of temporary alimony, the court may order either party to continue in effect existing policies of insurance covering the costs of health care and hospitalization of the other party. If there is no such existing policy or policies, the court may order that such health care insurance coverage be paid for by a party if the court determines that such health care coverage is available to that party at a reasonable cost. Payments made to an insurer pursuant to this subdivision, either directly or by a deduction from wages, may be deemed considered to be temporary alimony.
(8) (7) The court may grant the exclusive use and occupancy of the marital home to one of the parties during the pendency of the action, together with all or a portion of the household goods, furniture and furnishings, reasonably necessary for such use and occupancy. The court may require payments to third parties in the form of home loan installments, land contract payments, rent, payments for utility services, property taxes and insurance coverage. When such third party payments are ordered, the court shall specify whether such payments or portions of payments are temporary alimony, temporary child support, a partial distribution of marital property or an allocation of marital debt: Provided, That if the court does not set forth in the order that a portion of such payments is to be deemed considered temporary child support, then all such payments made pursuant to this subdivision shall be deemed considered to be temporary alimony: Provided, however, That the court may order such payments to be made without denominating them either as temporary alimony or temporary child support, reserving such decision until such time as the court determines the interests of the parties in marital property and equitably divides the same: Provided further, That at the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made to third parties under the provisions of this subdivision have affected the rights of the parties in marital property and may treat such payments as a partial distribution of marital property notwithstanding the fact that such payments have been denominated temporary alimony or temporary child support or not so denominated under the provisions of this subdivision. If the payments are not designated in an order and the parties have waived any right to receive alimony, the court may designate the payments upon motion by any party. Nothing contained in this subdivision shall abrogate an existing contract between either of the parties and a third party, or affect the rights and liabilities of either party or a third party under the terms of such contract.
(9) (8) As an incident to requiring the payments of temporary alimony, the court may grant the exclusive use and possession of one or more motor vehicles to either of the parties during the pendency of the action. The court may require payments to third parties in the form of automobile loan installments or insurance coverage, and any such payments made pursuant to this subdivision shall be deemed considered to be temporary alimony: Provided, That the court may order such payments to be made without denominating them as temporary alimony, reserving such decision until such time as the court determines the interests of the parties in marital property and equitably divides the same: Provided, however, That at the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made to third parties under the provisions of this subdivision have affected the rights of the parties in marital property and may treat such payments as a partial distribution of marital property notwithstanding the fact that such payments have been denominated temporary alimony or not so denominated under the provisions of this subdivision. Nothing contained in this subdivision shall abrogate an existing contract between either of the parties and a third party or affect the rights and liabilities of either party or a third party under the terms of such contract.
(10) (9) When the pleadings include a specific request for specific property or raise issues concerning the equitable division of marital property, the court may enter such order as is reasonably necessary to preserve the estate of either or both of the parties, including the imposition of a constructive trust, so that such property be forthcoming to meet any order which may be made in the action, and may compel either party to give security to abide such order, or may require the property in question to be delivered into the temporary custody of a third party. The court may further order either or both of the parties to pay the costs and expenses of maintaining and preserving the property of the parties during the pendency of the action: Provided, That at the time the court determines the interests of the parties in marital property and equitably divides the same, the court may consider the extent to which payments made for the maintenance and preservation of property under the provisions of this subdivision have affected the rights of the parties in marital property and may treat such payments as a partial distribution of marital property. The court may release all or any part of such protected property for sale and substitute all or a portion of the proceeds of the sale for such property.
(11) (10) Unless a contrary disposition is ordered pursuant to other provisions of this section, then upon the motion of a party, the court may compel a party to deliver to the moving party any of his or her separate estate which may be in the possession or control of the respondent party and may make any further order that is necessary to prevent either party from interfering with the separate estate of the other party.
(12) (11) The court may enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other, or interfering with the custodial or visitation rights of the other. This order may permanently enjoin the offending party from entering the school, business or place of employment of the other for the purpose of molesting or harassing the other; or from contacting the other, in person or by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place. Any order entered by the court to protect a party from abuse may grant the relief provided in article two-a of this chapter.
(b) In ordering temporary relief under the provisions of this section, the court shall consider the financial needs of the parties, the present income of each party from any source, their income-earning abilities and the respective legal obligations of each party to support himself or herself and to support any other persons. Except in extraordinary cases supported by specific findings set forth in the order granting relief, payments of temporary alimony and temporary child support are to be made from a party's income and not from the corpus of a party's separate estate, and an award of such relief shall not be disproportionate to a party's ability to pay as disclosed by the evidence before the court: Provided, That child support shall be established in accordance with support guidelines promulgated pursuant to article thirteen, chapter forty-eight-a of this code section eight, article two, chapter forty-eight-a of this code.
(c) At any time after a party is abandoned or deserted or after the parties to a marriage have lived separate and apart in separate places of abode without any cohabitation, the party abandoned or either party living separate and apart may apply for relief pursuant to this section by instituting an action for divorce as provided in section ten of this article, alleging that the plaintiff reasonably believes that the period of abandonment or of living separate and apart will continue for the period prescribed by the applicable provisions of section four of this article. If the period of abandonment or living separate and apart continues for the period prescribed by the applicable provisions of section four of this article, the divorce action may proceed to a hearing as provided in sections twenty-four and twenty-five of this article without a new complaint being filed: Provided, That the party desiring to proceed to a hearing shall give the opposing party at least twenty days' notice of the time, place and purpose of the hearing, unless the opposing party files a waiver of notice of further proceedings, signed by the opposing party. If such notice is required to be served, it shall be served in the same manner as a complaint, regardless of whether the opposing party has appeared or answered.
(d) To facilitate the resolution of issues arising at a hearing for temporary relief, the court may, or upon the motion of either party shall, order the parties to comply with the disclosure requirements set forth in section thirty-three of this article prior to the hearing for temporary relief. The form for this disclosure shall substantially comply with the form promulgated by the supreme court of appeals, pursuant to said section. If either party fails to timely file a complete disclosure as required by this section or as ordered by the court, the court may accept the statement of the other party as accurate.
(e) An ex parte order granting all or part of the relief provided for in this section may be granted without written or oral notice to the adverse party if:
(1) It appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before the adverse party or such party's attorney can be heard in opposition. The potential injury, loss or damage may be anticipated when the following conditions exist: Provided, That the following list of conditions is not exclusive:
(A) There is a real and present threat of physical injury to the applicant at the hands or direction of the adverse party;
(B) The adverse party is preparing to quit the state with a minor child or children of the parties, thus depriving the court of jurisdiction in the matter of child custody;
(C) The adverse party is preparing to remove property from the state or is preparing to transfer, convey, alienate, encumber or otherwise deal with property which could otherwise be subject to the jurisdiction of the court and subject to judicial order under the provisions of this section or section fifteen of this article; and
(2) The moving party or his or her attorney certifies in writing any effort that has been made to give the notice and the reasons supporting his or her claim that notice should not be required.
(f) Every ex parte order granted without notice shall be endorsed with the date and hour of issuance; shall be filed forthwith in the circuit clerk's office and entered of record; and shall set forth the finding of the court that unless the order is granted without notice there is probable cause to believe that existing conditions will result in immediate and irreparable injury, loss or damage to the moving party before the adverse party or his or her attorney can be heard in opposition. The order granting ex parte relief shall fix a time for a hearing for temporary relief to be held within a reasonable time, not to exceed twenty days, unless before the time so fixed for hearing, such hearing is continued for good cause shown or with the consent of the party against whom the ex parte order is directed. The reasons for the continuance shall be entered of record. Within the time limits described herein, when an ex parte order is made, a motion for temporary relief shall be set down for hearing at the earliest possible time and shall take precedence of all matters except older matters of the same character. If the party who obtained the ex parte order fails to proceed with a motion for temporary relief, the court shall set aside the ex parte order. At any time after ex parte relief is granted, and on two days' notice to the party who obtained such relief or on such shorter notice as the court may direct, the adverse party may appear and move the court to set aside or modify the ex parte order on the grounds that the effects of such order are onerous or otherwise improper. In such event, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
(g) No order granting temporary relief may be the subject of an appeal or a petition for review.
(h)(1) Unless the best interests of the child require otherwise, every temporary order which provides for the custody of a minor child of the parties shall also provide for the following:
(A) The custodial parent shall be required to authorize school authorities in the school in which the child is enrolled to release to the noncustodial parent copies of any and all information concerning the child which would otherwise be properly released to the custodial parent;
(B) The custodial parent shall be required, promptly after receipt, to transmit to the noncustodial parent a copy of the child's grades or report card and copies of any other reports reflecting the status or progress of the child;
(C) The custodial parent shall be required, when practicable, to arrange appointments for parent-teacher conferences at a time when the noncustodial parent can be present;
(D) The custodial parent shall be required to authorize medical providers to release to the noncustodial parent copies of any and all information concerning medical care provided to the child which would otherwise be properly released to the custodial parent;
(E) The custodial parent shall be required to promptly inform the noncustodial parent of any illness of the child which requires medical attention; or, if the child is in the actual physical custody of the noncustodial parent during a period of visitation, the noncustodial parent shall be required to promptly inform the custodial parent of any illness of the child which requires medical attention;
(F) The custodial parent shall be required to consult with the noncustodial parent prior to any elective surgery being performed on the child; and in the event emergency medical procedures are undertaken for the child which requires the parental consent of either parent, if time permits, the other parent shall be consulted, or if time does not permit such consultation, the other parent shall be promptly informed of such emergency medical procedures: Provided, That the same duty to inform the custodial parent applies to the noncustodial parent in the event that the emergency medical procedures are required while the child is in the physical custody of the noncustodial parent during a period of visitation: Provided, however, That nothing contained herein shall be deemed to alter or amend the law of this state as it otherwise pertains to physicians or health care facilities obtaining parental consent prior to providing medical care or performing medical procedures.
(2) In the event a custodial parent shall fail or refuse to authorize the release of school or medical records as provided for by subdivision (1) of this subsection, then upon the ex parte application of the noncustodial parent, the family law master shall prepare an order for entry by the circuit court which appoints the family law master as a special commissioner authorized to execute a consent for the release of such records, and direct it to the appropriate school authorities or medical providers.
§48-2-15b. Withholding from income.
(a) Every order entered or modified under the provisions of this article, not described in subsection (d) of this section, which requires the payment of child support or spousal support shall include a provision for automatic withholding from income of the obligor, in order to facilitate income withholding as a means of collecting support.
(b) Every such order as described in subsection (a) of this section shall contain language authorizing income withholding for both current support and for any arrearages to commence without further court action, as follows:
(1) The order shall provide that income withholding will begin immediately, without regard to whether there is an arrearage:
(A) When a child for whom support is ordered is included or becomes included in a grant of assistance from the division of human services or a similar agency of a sister state for temporary assistance for needy families aid to families with dependent children benefits, medical assistance only benefits or foster care benefits; or
(B) When the support obligee has applied for services from the child support enforcement division created pursuant to article two, chapter forty-eight-a of this code, or the support enforcement agency of another state or is otherwise receiving services from the child support enforcement division as provided for in said chapter. In any case where one of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding, or in any case where there is filed with the court a written agreement between the parties which provides for an alternative arrangement, such order shall not provide for income withholding to begin immediately. An order that does not provide for immediate income withholding may not affect the obligee's eligibility for temporary assistance for needy families (TANF), unless otherwise provided by federal law.
(2) The order shall also provide that income withholding will begin immediately upon the occurrence of any of the following:
(A) When the payments which the obligor has failed to make under the order are at least equal to the support payable for one month, if the order requires support to be paid in monthly installments;
(B) When the payments which the obligor has failed to make under the order are at least equal to the support payable for four weeks, if the order requires support to be paid in weekly or biweekly installments;
(C) When the obligor requests the child support enforcement division to commence income withholding; or
(D) When the obligee requests that such withholding begin, if the request is approved by the court in accordance with procedures and standards established by rules and regulations promulgated by the commission pursuant to this section and to chapter twenty-nine-a of this code.
(c) On and after the first day of January, one thousand nine hundred ninety-four, the wages of an obligor shall be subject to withholding, regardless of whether child support payments are in arrears, on the date the order for child support is entered: Provided, That where one of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding, or in any case where there is filed with the court a written agreement between the parties which provides for an alternative arrangement, such order shall not provide for income withholding to begin immediately.
(d) The supreme court of appeals shall make available to the circuit courts standard language to be included in all such orders, so as to conform such orders to the applicable requirements of state and federal law regarding the withholding from income of amounts payable as support.
(e) Every support order entered by a circuit court of this state prior to the effective date of this section shall be considered to provide for an order of income withholding, by operation of law, which complies with the provisions of this section, notwithstanding the fact that such support order does not in fact provide for such order of withholding.
(f) The court shall consider the best interests of the child in determining whether "good cause" exists under this section. The court may also consider the obligor's payment record in determining whether "good cause" has been demonstrated.
(g) The West Virginia support enforcement commission shall promulgate legislative rules pursuant to chapter twenty-nine-a of this code further defining the duties of the child support enforcement division and the employer in wage withholding.
§48-2-27. Confidentiality of domestic relations court files.
All orders in domestic relations cases entered in the civil order books by circuit clerks are public records. For purposes of this section, domestic relations cases shall include actions for divorce, annulment, separate maintenance, paternity, child support, custody allocation of custodial responsibility, visitation, actions brought under the provisions of the uniform interstate family support act and petitions for writs of habeas corpus wherein the issue is child custody.
Upon the filing of a domestic relations case, all pleadings, exhibits or other documents contained in the court file are confidential and not open for public inspection either during the pendency of the case or after the case is closed.
When sensitive information has been disclosed during a hearing or in pleadings, evidence, or documents filed in the record, a circuit judge or family law master may, sua sponte or upon motion of a party, order such information sealed in the court file. Sealed documents or court files shall only be opened by order of a circuit judge or family law master: Provided, That in any case pending before a family law master, the master may open and inspect the entire contents of the court file.
The parties, their designees, their attorneys, a duly appointed guardian ad litem or any person who has standing to modify or enforce a support order, shall have the right to examine and copy any document in a confidential court file which has not been sealed by order of a circuit judge or family law master. Upon motion and for good cause shown, the circuit court or family law master may permit a person not a party to the action the right to examine and copy such documents as are necessary to further the interests of justice.
The clerk of the circuit court shall keep a written log of all persons who examine confidential documents as provided for in this section. Every person who examines confidential documents must sign the log, other than a circuit judge or family law master before whom the case is pending, or court personnel acting within the scope of their duties. The clerk shall record the time and date of examination. The log shall be retained by the clerk and shall be available upon request for inspection by the court.
§48-2-28. Action for separate maintenance.
Whenever a spouse shall, without good and sufficient cause, have failed to provide suitable support for the other spouse, or have abandoned or deserted such spouse, or if one spouse shall have grounds for divorce, the court of any county that would have jurisdiction of an action for divorce between the parties, shall, at the action of such spouse, whether or not a divorce be prayed for, order to such spouse as alimony and separate maintenance such sum out of the other spouse's earnings or income as the court may determine, considering the circumstances of the parties and their stations in life, and may prohibit the other spouse from imposing any restraint on the personal liberty of such spouse and may free such spouse's real and personal property from possession, control or any interest of the other spouse; and during the pendency of the action the court shall have the same powers to make such orders as are provided for actions for divorce by section thirteen of this article insofar as the same are applicable on behalf of either spouse. Any order entered in the case shall be effective during such time as the court shall by its order direct, or until the further order of the court thereon, and upon the petition of either party, the court may, from time to time afterwards, revise or alter such order, or make further orders, concerning the maintenance of either spouse and the interest of one spouse in the property of the other spouse, and the care, custody, education and maintenance of the minor children of the parties, and may determine with which of their parents the children or any of them shall remain allocation of custodial responsibility and decision-making responsibility.
ARTICLE 2A. PREVENTION AND TREATMENT OF DOMESTIC AND FAMILY VIOLENCE.

§48-2A-3b. Proceedings in magistrate court when divorce, annulment or separation action is pending.

(a) The provisions of this section apply where a temporary order has been entered by a family law master or judge in an action for divorce, annulment or separate maintenance is pending, notwithstanding the provisions of subsection (c), section three-a of this article.
(b) A person who is a party in to an action for divorce, annulment or separate maintenance in which a temporary order has been entered pursuant to section thirteen, article two of this chapter that is pending may petition magistrate court for a temporary emergency protective order pursuant to this section for any violation of the provisions of this article occurring after the date of entry of the temporary order the filing of the action.
(c) The only relief that a magistrate may award pursuant to this section is a temporary emergency protective order directing the respondent to refrain from abusing the petitioner and/or minor children, to order the respondent to refrain from entering the school, business or place of employment of the petitioner or household members or family members for the purpose of violating the protective order and to order the respondent to refrain from contacting, telephoning, communicating, harassing or verbally abusing the petitioner in any public place. Such order may modify an award of custody or visitation allocation of custodial responsibility and decision-making responsibility only upon a showing, by clear and convincing evidence, of the respondent's abuse of a child, as abuse is defined in section two of this article. Any such modification shall be clearly described in the order as to which party has custody and why custody or visitation arrangements were changed.
(d) A copy of any temporary emergency protective order issued by a magistrate pursuant to this section, together with a copy of the petition, shall be transmitted forthwith by mail or by facsimile machine to the family law master before whom the action is pending and to law-enforcement agencies. Thereafter, the full hearing on the allegations of domestic or family violence shall be conducted before the family law master, in accordance with the provisions of section six of this article. Upon receipt of the petition and order, the master shall examine its provisions. Within ten days of the magistrate's issuance of the temporary emergency protective order, the master shall issue an order either to extend such emergency protection for a time certain or to vacate the magistrate's order. The master shall forthwith give notice to all parties and to the issuing magistrate court. The magistrate court clerk shall forward a copy of the master's order to law-enforcement agencies.
If no temporary order pursuant to section thirteen, article two, chapter forty-eight of this code has been entered, the master shall forthwith return the order with such explanation to the issuing magistrate. The magistrate who issued the order shall vacate the order, noting thereon the reason for termination. The magistrate court clerk shall transmit a copy of the vacated order to the parties and law-enforcement agencies.
ARTICLE 11. ALLOCATION OF RESPONSIBILITY FOR CHILDREN.
§48-11-202. Court-ordered services.
(a) (1) The court shall inform the parents, or require them to be informed, about:
(A) How to prepare a parenting plan;
(B) The impact of family dissolution on children and how the needs of children facing family dissolution can best be addressed;
(C) The impact of domestic abuse on children, and resources for addressing domestic abuse; and
(D) Mediation or other nonjudicial procedures designed to help them achieve an agreement.
(2) The court shall require the parents to attend parent education classes.
(3) If parents are unable to resolve issues and agree to a parenting plan, the court shall require mediation, unless application of the procedural rules promulgated pursuant to the provisions of subsection (b) of this section indicates that mediation is inappropriate in the particular case.
(b) The supreme court of appeals shall make and promulgate rules that will provide for premediation screening procedures to determine whether domestic violence, child abuse or neglect, acts or threats of duress or coercion, substance abuse, mental illness or other such elements would adversely affect the safety of a party, the ability of a party to meaningfully participate in the mediation, or the capacity of a party to freely and voluntarily consent to any proposed agreement reached as a result of the mediation. Such rules shall authorize a family law master or judge to consider alternatives to mediation which may aid the parties in establishing a parenting plan. Such rules shall not establish a per se bar to mediation if domestic violence, child abuse or neglect, acts or threats of duress or coercion, substance abuse, mental illness or other such elements exist, but may be the basis for the court, in its discretion, not to order services under subsection (a) of this section, or not to require a parent to have face-to-face meetings with the other parent.
(c) A mediator shall not make a recommendation to the court and may not reveal information that either parent has disclosed during mediation under a reasonable expectation of confidentiality, except that a mediator may reveal to the court credible information that he or she has received concerning domestic violence or child abuse.
(d) Mediation services authorized under subsection (a) of this section shall be ordered at an hourly cost that is reasonable in light of the financial circumstances of each parent, assessed on a uniform sliding scale. Where one parent's ability to pay for such services is significantly greater than the other, the court may order that parent to pay some or all of the expenses of the other. State revenues shall not be used to defray the costs for the services of a mediator: Provided, That The supreme court of appeals may use a portion of its budget to pay administrative costs associated with establishing and operating mediation programs. Provided, however, That grants and gifts to the state that may be used to fund mediation are not to be considered as state revenues for purposes of this subsection
(e) The supreme court of appeals shall establish standards for the qualification and training of mediators.
§48-11-605. Parent education and mediation fund.
There is hereby created in the state treasury a special revenue account, designated the "parent education and mediation fund". The moneys of the fund shall be expended by the administrator of the supreme court of appeals for parent education and mediation programs.
CHAPTER 48A. ENFORCEMENT OF FAMILY OBLIGATIONS.

ARTICLE 1B. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48A-1B-11. Modification.
(a) The provisions of a child support order may be modified if there is a substantial change of circumstances. For purposes of this section, if application of the guideline would result in a new order that is more than fifteen percent different, then the circumstances are considered to be a substantial change.
(b) An expedited process for modification of a child support order may be utilized if either parent experiences a substantial change of circumstances resulting in a decrease in income due to loss of employment or other involuntary cause or an increase in income due to promotion, change in employment, reemployment or other such change in employment status. The party seeking the recalculation of support and modification of the support order shall file a description of the decrease or increase in income and an explanation of the cause of the decrease or increase on a standardized form to be provided by the secretary-clerk or other employee of the family court. The standardized form shall be verified by the filing party. Any available documentary evidence shall be filed with the standardized form. Based upon the filing and information available in the case record, the amount of support shall be tentatively recalculated. The secretary-clerk shall cause serve a notice of the filing, a copy of the standardized form, and the support calculations to be served upon the other party by certified mail, return receipt requested, with delivery restricted to the addressee, in accordance with rule (4)(d)(1)(D) of the West Virginia rules of civil procedure. The secretary-clerk shall also and upon mail a copy, by first-class mail, to the local office of the child support enforcement division for the county in which the circuit court is located in the same manner as original process under rule 4(d) of the rules of civil procedure. The notice shall fix a date fourteen days from the date of mailing, and inform the party that unless the recalculation is contested and a hearing request is made on or before the date fixed, the proposed modification will be made effective. If the filing is contested, the proposed modification shall be set for hearing; otherwise, the family law master shall prepare a recommended default order for entry by the circuit judge. Either party may move to set aside a default entered by the circuit clerk or a judgment by default entered by the clerk or the court, pursuant to the provisions of rule 55 or rule 60(b) of the rules of civil procedure. If an obligor uses the provisions of this section to expeditiously reduce his or her child support obligation, the order that effected the reduction shall also require the obligor to notify the obligee of reemployment, new employment or other such change in employment status that results in an increase in income. If an obligee uses the provisions of this section to expeditiously increase his or her child support obligation, the order that effected the increase shall also require the obligee to notify the obligor of reemployment, new employment or other such change in employment status that results in an increase in income of the obligee.
(c) The supreme court of appeals shall develop the standardized form required by subsection (b) of this section.
(d) In any proceeding where a petition to modify child support is granted which results in a reduction of child support owed so that the obligor has overpaid child support, the court shall grant a decretal judgment to the obligor for the amount of the overpayment. The court shall inquire as to whether a support arrearage was owed by the obligor for support due prior to the filing of the petition for modification. If an arrearage exists, the court shall order an offset of the overpayment against the child support arrearages. If no prior arrearage exists or if the arrearage is not sufficient to offset the overpayment, then the court may direct the child support enforcement division to collect the overpayment through income withholding, if the person has, in the court's opinion, sufficient income other than the child support received. The income withholding shall be in all respects as provided for in section three, article five of this chapter, except that in no circumstances may the amount withheld exceed thirty-five percent of the disposable earnings for the period, regardless of the length of time that the overpayment has been owed.
ARTICLE 5. REMEDIES FOR THE ENFORCEMENT OF SUPPORT OBLIGATIONS.
§48A-5-3a. Refunding of overpayments; legislative rule.
In the event of an overpayment by an obligor which is the result of action taken by the division, the division must repay the excess to the obligor within a reasonable period of time, not to exceed thirty days from the time it is determined that an overpayment was made. The support enforcement commission shall propose for promulgation a legislative rule, in accordance with the provisions of chapter twenty-nine-a of this code, providing for the prompt refunding of amounts which have been received by the division in excess of support obligations actually owed.
CHAPTER 51. COURTS AND THEIR OFFICERS.

ARTICLE 2A. CIRCUIT COURTS; FAMILY COURT DIVISION
.
§51-2A-2. Appointment of commissioners to be designated as family law masters; administrative and judicial functions of family law master.

(a) In each of the family court circuits, family law masters shall be appointed as follows:
(1) If a family law master serves a single judicial circuit that has one circuit judge, the circuit judge shall appoint the family law master;
(2) If a family law master serves a single judicial circuit that has two or more circuit court judges, the chief judge of the circuit shall appoint the family law master or masters;
(3) If a family law master serves more than one judicial circuit, the chief judges of the judicial circuits shall appoint the family law master or masters;
(4) If the chief judge or chief judges of the judicial circuits cannot agree, all of the circuit judges of the affected judicial circuits shall appoint the family law master or masters; or
(5) If the circuit judges of the affected judicial circuits cannot agree, the supreme court of appeals shall appoint the family law master or masters.
(b) A commissioner appointed under subsection (a) of this section may be designated by the name "family law master".
(c) The family law master will conduct hearings in family court cases, take testimony, hear the parties, enter orders of a temporary or interlocutory nature, make findings of fact and conclusions of law on the record, formulate recommendations, and report to the circuit court. The family law master will exercise any other power or authority provided for in this article or article four, chapter forty-eight-a of this code.
(d) The family law master, as a commissioner of the circuit court, has both administrative and judicial functions to perform, as described in subsections (e) and (f) of this section.
(e) The family law master has responsibility for the administration of the family court division of the circuit court. A circuit court judge or judges whose circuit is served by a family law master or masters must monitor the administration of the family court divisions within the judicial circuit and regulate those activities, including naming one or more circuit judges to serve as administrative supervisor of the family law master, through appropriate administrative orders. The administrative orders of the administrative supervisor regarding a family court division will be compiled and indexed in the office of the circuit clerk and be available for public inspection.
(f) In exercising the judicial function of the family court, the family law master, free of direct oversight by a circuit judge, is responsible for the preparation or preliminary consideration of issues requiring judicial decision, subject only to a subsequent review by a circuit judge. Conclusions of law of the family law master are subject to de novo review by the circuit court. In reviewing the findings of fact of a family law master, the circuit court is held to the clearly erroneous standard.
(g) A family law master shall not be eligible to participate in the judges retirement system under the provisions of article nine of this chapter.
(h) Beginning the first day of January, two thousand, each family law master is required to file a quarterly activity report with the supreme court of appeals and the joint committee on government and finance. The report shall include, but is not limited to, the number of cases heard before the family law master, the date the case was heard, the date the case was filed and the number and types of hearings held before the family law master in a particular case.
(i) The supreme court of appeals shall promulgate a procedural rule to establish time-keeping requirements for family law masters, family case coordinators and secretary-clerks of family law masters so as to assure the maximum funding of incentive payments, grants and other funding sources available to the state for the processing of cases filed for the location of absent parents, the establishment of paternity and the establishment, modification, and enforcement of child support orders.
(j) The administrative office of the supreme court of appeals shall, in cooperation with the department of health and human resources, establish and implement a plan to maximize the receipt of federal moneys through temporary assistance to needy families (TANF) and payment for delivery of services under Title IV-D of the Social Security Act, grants, incentive payments and other funding sources, and shall report the status of such plan, on a monthly basis, to the joint committee on government and finance until the thirty-first day of December, two thousand two.
§51-2A-11. Contempt powers of family law master.
(a) A family law master, acting in his or her capacity as a commissioner of the circuit court, may:
(1) Sanction persons through civil contempt proceedings when necessary to preserve and enforce the rights of private parties or to administer remedies granted by the court;
(2) Regulate all proceedings in a hearing before the family law master; and
(3) Punish direct contempts that are offered in the presence of the court or that obstruct or corrupt the proceedings of the court.
(b) A family law master may enforce compliance with his or her lawful orders or the orders of the circuit or magistrate court with remedial or coercive sanctions designed to compensate a complainant for losses sustained and to otherwise coerce obedience for the benefit of the complainant to such court orders. Sanctions must give the contemnor an opportunity to purge himself or herself. In selecting sanctions, the court must use the least possible power adequate to the end proposed. A person who lacks the present ability to comply with the order of the court may not be confined for a civil contempt. Sanctions may include, but are not limited to, seizure or impoundment of property to secure compliance with a prior order. Ancillary relief may provide for an award of attorney's fees.
(c) The family law master, sua sponte, or upon a verified petition for civil contempt, notice of hearing and hearing, may enter an order to attach forthwith the body of, and take into custody, any person who refuses or fails to respond to the lawful process of the family court division of the circuit court or to comply with an order of the court. Such order of attachment shall require the person to be brought forthwith before the family law master in any county in which the master may then be sitting.
(d) A master who presides at a hearing under the provisions of this section is authorized to make and enter contempt orders which, when entered, shall be enforceable and have the same force and effect under law as contempt orders made and entered by a judge of the circuit court, unless and until such contempt orders are modified, vacated or superseded by an order of the circuit court.
CHAPTER 52. JURIES.

ARTICLE 1. PETIT JURIES.

§52-1-17. Reimbursement of jurors.

(a) A juror shall be paid mileage, at the rate set by the commissioner of finance and administration for state employees, for travel expenses from the juror's residence to the place of holding court and return and shall be reimbursed for other expenses incurred as a result of required attendance at sessions of the court at a rate of between fifteen and forty dollars, set at the discretion of the circuit court or the chief judge thereof, for each day of required attendance. Such reimbursement shall be based on vouchers submitted to the sheriff. Such mileage and reimbursement shall be paid out of the state treasury.
(b) When a jury in any case is placed in the custody of the sheriff, he or she shall provide for and furnish the jury necessary meals and lodging while they are in the sheriff's custody at a reasonable cost to be determined by an order of the court; and the meals and lodging shall be paid for out of the state treasury.
(c) Anytime a panel of prospective jurors has been required to report to court for the selection of a petit jury in any scheduled matter, the court shall, by specific provision in a court order, assess a jury cost. In circuit court cases the jury cost shall be the actual cost of the jurors' service, and in magistrate court cases, the jury cost assessed shall be two hundred dollars. Such costs shall be assessed against the parties as follows:
(1) In every criminal case, against the defendant upon conviction, whether by plea, by bench trial or by jury verdict;
(2) In every civil case, against either party or prorated against both parties, at the court's discretion, if the parties settle the case or trial is to the bench; and
(3) In the discretion of the court, and only when fairness and justice so require, a circuit court or magistrate court may forego assessment of the jury fee, but shall set out the reasons therefor in a written order: Provided, That a waiver of the assessment of a jury fee in a case tried before a jury in magistrate court may only be permitted after the circuit court, or the chief judge thereof, has reviewed the reasons set forth in the order by the magistrate and has approved such waiver.
(d)(1) The circuit or magistrate court clerk shall by the tenth day of the month following the month of collection remit to the sheriff state treasurer for deposit as described in subdivision (2) of this subsection all jury costs collected, and the clerk and the clerk's surety are liable therefor on the clerk's official bond as for other money coming into the clerk's hands by virtue of the clerk's office.
(2) The jury costs described in subdivision (1) of this subsection shall upon receipt by the state treasurer be deposited as follows: (A) One-half shall be deposited into the parent education and mediation fund created in section six hundred five, article eleven, chapter forty-eight of this code; and (B) one-half shall be deposited into the domestic violence legal services fund created in section four-c, article two-c, chapter forty-eight of this code.
(e) The sheriff shall pay into the state treasury all jury costs received from the court clerks, and the sheriff shall be held to account in the sheriff's annual settlement for all such moneys.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.

ARTICLE 1. FEES AND ALLOWANCES.
§59-1-11. Fees to be charged by clerk of circuit court.
(a) The clerk of a circuit court shall charge and collect for services rendered as such clerk the following fees, and such fees shall be paid in advance by the parties for whom such services are to be rendered:
(1) For instituting any civil action under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals, or any other action, cause, suit or proceeding, seventy-five dollars: Provided, That the fee for instituting an action for divorce shall be one hundred five dollars;
(2) Beginning on and after the first day of July, one thousand nine hundred ninety-nine, for instituting an action for divorce, separate maintenance or annulment, one hundred twenty-five dollars; and
(3) For petitioning for the modification of an order involving child custody, child visitation, child support or spousal support, seventy-five dollars; and
(4) For petitioning for an expedited modification of a child support order, eighty-five dollars.
(b) In addition to the foregoing fees, the following fees shall likewise be charged and collected:
(1) For preparing an abstract of judgment, five dollars;
(2) For any transcript, copy or paper made by the clerk for use in any other court or otherwise to go out of the office, for each page, fifty cents;
(3) For action on suggestion, ten dollars;
(4) For issuing an execution, ten dollars;
(5) For issuing or renewing a suggestee execution, including copies, postage, registered or certified mail fees and the fee provided by section four, article five-a, chapter thirty-eight of this code, three dollars;
(6) For vacation or modification of a suggestee execution, one dollar;
(7) For docketing and issuing an execution on a transcript of judgment from magistrate's court, three dollars;
(8) For arranging the papers in a certified question, writ of error, appeal or removal to any other court, five dollars;
(9) For postage and express and for sending or receiving decrees, orders or records, by mail or express, three times the amount of the postage or express charges;
(10) For each subpoena, on the part of either plaintiff or defendant, to be paid by the party requesting the same, fifty cents; and
(11) For additional service (plaintiff or appellant) where any case remains on the docket longer than three years, for each additional year or part year, twenty dollars.
(c) The clerk shall tax the following fees for services in any criminal case against any defendant convicted in such court:
(1) In the case of any misdemeanor, fifty-five dollars; and
(2) In the case of any felony, sixty-five dollars.
(d) No such clerk shall be required to handle or accept for disbursement any fees, cost or amounts, of any other officer or party not payable into the county treasury, except it be on order of the court or in compliance with the provisions of law governing such fees, costs or accounts.
ARTICLE 1. FEES AND ALLOWANCES.

§59-1-28a. Disposition of filing fees in divorce and other civil actions and fees for services in criminal cases.

(a) Except for those payments to be made from amounts equaling filing fees received for the institution of divorce actions as prescribed in subsection (b) of this section, and except for those payments to be made from amounts equaling filing fees received for the institution of actions for divorce, separate maintenance and annulment as prescribed in subsection (c) of this section, for each civil action instituted under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals, or any other action, cause, suit or proceeding in the circuit court, the clerk of the court shall, at the end of each month, pay into the funds or accounts described in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting such action as follows:
(1) Into the regional jail and correctional facility development fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of sixty dollars; and
(2) Into the court security fund in the state treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
(b) For each divorce action instituted in the circuit court, the clerk of the court shall, at the end of each month, report to the supreme court of appeals, the number of actions filed by persons unable to pay, and pay into the funds or accounts in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting such divorce action as follows:
(1) Into the regional jail and correctional facility development fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of ten dollars;
(2) Into the special revenue account of the state treasury, established pursuant to section twenty-four, article one, chapter forty-eight of this code, an amount of thirty dollars;
(3) Into the family court fund established under section twenty-three, article four, chapter forty-eight-a of this code, an amount of fifty dollars; and
(4) Into the court security fund in the state treasury, established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
(c) This subsection applies to filing fees paid after the thirtieth day of June, one thousand nine hundred ninety-nine. For each action for divorce, separate maintenance or annulment instituted in the circuit court, the clerk of the court shall, at the end of each month, pay into the funds or accounts in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting such divorce action as follows:
(1) Into the regional jail and correctional facility development fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of ten dollars;
(2) Into the special revenue account of the state treasury, established pursuant to section twenty-four, article one, chapter forty-eight of this code, an amount of thirty dollars;
(3) Into the family court fund established under section twenty-three, article four, chapter forty-eight-a of this code, an amount of seventy dollars; and
(4) Into the court security fund in the state treasury, established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
(d) Notwithstanding any provision of subsection (a) or (b) of this section to the contrary, the clerk of the court shall, at the end of each month, pay into the family court fund established under section twenty-three, article four, chapter forty-eight-a of this code an amount equal to the amount of every fee received for petitioning for the modification of an order involving child custody, child visitation, child support or spousal support as determined by subdivision (3), subsection (a), section eleven of this article and for petitioning for an expedited modification of a child support order as determined by subdivision (3), subsection (a), section eleven of this article.
(e) The clerk of the court from which a protective order is issued shall, at the end of each month, pay into the family court fund established under section twenty-three, article four, chapter forty-eight-a of this code an amount equal to every fee received pursuant to the provisions of subsection (k), section six, article two-a, chapter forty-eight of this code.
(f) The clerk of each circuit court shall, at the end of each month, pay into the regional jail and prison development fund in the state treasury an amount equal to forty dollars of every fee for service received in any criminal case against any defendant convicted in such court and shall pay an amount equal to five dollars of every such fee into the court security fund in the state treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code.



NOTE: The purpose of this bill is to modernize and revise the law relative to domestic relations.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§48-11-605 and §48A-5-3a are new; therefore, strike-throughs and underscoring have been omitted.











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