Support Enforcement
ARTICLE 2. WEST VIRGINIA SUPPORT ENFORCEMENT COMMISSION; CHILD SUPPORT ENFORCEMENT DIVISION; ESTABLISHMENT AND ORGANIZATION.
§48A-2-17. Notice to unemployed obligor.
Upon receipt of a report from an employer stating that a support obligor has been discharged or laid off or has resigned or voluntarily quit, the child support enforcement division shall send a notice to the obligor, informing the obligor of the availability of a modification of the support award and of the services that may be available to him or her from the division. The division shall also inform the obligor of his or her possible entitlement to a reduction in court-ordered support payments; that a failure to obtain a modification will result in the previously-ordered award remaining in effect; and that substantial arrearage might accumulate and remain as judgments against him or her.
§48A-2-38. Acceptance of federal purposes; compliance with federal requirements and standards.
(a) The state assents to the purposes of the federal laws regarding child support and establishment of paternity and agrees to accept federal appropriations and other forms of assistance made under or pursuant thereto, and authorizes the receipt of such appropriations into the state treasury and the receipt of other forms of assistance by the child support enforcement division for expenditure, disbursement and distribution by the division in accordance with the provisions of this chapter and the conditions imposed by applicable federal laws, rules and regulations.
(b) Insofar as such actions are consistent with the laws of this state granting authority to the division and the director, the division shall comply with such requirements and standards as the secretary of the federal department of health and human services may have determined, as of the effective date of this section, to be necessary for the establishment of an effective program for locating obligors, establishing paternity, obtaining support orders and collecting support payments.
(c) The director shall propose for promulgation a legislative rule in accordance with the provisions of chapter twenty-nine-a of this code, to establish time-keeping requirements 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 or enforcement of orders of child support.
ARTICLE 4. PROCEEDING BEFORE A FAMILY COURT JUDGE.
(a) This section applies, according to the provisions thereof, to hearings
required by section six of this article section ten, article
two-a, chapter fifty-one of this code to be conducted in accordance
with this section by a family law master.
(b) A master family law master to whom a matter is referred
pursuant to the provisions of section six of this article section
ten, article two-a, chapter fifty-one of this code shall preside at
the taking of evidence.
(c) A master family law master presiding at a hearing under
the provisions of this chapter may:
(1) Administer oaths and affirmations, compel the attendance of witnesses
and the production of documents, examine witnesses and parties and otherwise
take testimony, receive relevant evidence and establish a record;
(2) Rule on motions for discovery and offers of proof;
(3) Take depositions or have depositions taken when the ends of justice
may be served;
(4) Regulate the course of the hearing;
(5) Hold pre-trial conferences for the settlement or simplification of
issues and enter time frame orders which shall include, but not be limited
to, discovery cut-offs, exchange of witness lists and agreements on stipulations,
contested issues, and hearing schedules;
(6) Make and enter temporary orders on procedural matters, including,
but not limited to, substitution of counsel, amendment of pleadings, requests
for hearings and other similar matters;
(7) Accept voluntary acknowledgments of support liability or paternity;
(8) Accept stipulated agreements;
(9) Prepare default orders for entry if the person against whom an action
is brought does not respond to notice or process within the time required;
(10) Recommend orders in accordance with the provisions of section thirteen
of this article;
(11) Require the issuance of subpoenas and subpoenas duces tecum, issue
writs of attachment, hold hearings in aid of execution and propound interrogatories
in aid of execution and fix bond or other security in connection with
an action for enforcement in a child or spousal support matter; and
(12) Take other action authorized by general order of the circuit court
or the chief judge thereof consistent with the provisions of this chapter.
(d) Except as otherwise provided by law, a moving party has the burden
of proof on a particular question presented. Any oral or documentary evidence
may be received, but the family court judge shall exclude irrelevant,
immaterial or unduly repetitious evidence. A party is entitled to present
his or her case or defense by oral or documentary evidence, to submit
rebuttal evidence and to conduct such cross-examination as may be required
for a full and true disclosure of the facts. In determining claims for
money due or the amount of payments to be made, when a party will not
be prejudiced thereby, the master family court master may
adopt procedures for the submission of all or part of the evidence in
written form.
(e) Hearings before a master family court master shall
be recorded electronically. A magnetic tape or other electronic recording
medium on which a hearing is recorded shall be indexed and securely preserved
by the secretary-clerk of the family court master and shall not be placed
in the case file in the office of the circuit clerk: Provided, That upon
the request of the family court master, such magnetic tapes or other electronic
recording media shall be stored by the clerk of the circuit court. When
requested by either of the parties, a family court judge shall provide
a duplicate copy of the tape or other electronic recording medium of each
hearing held. For evidentiary purposes, a duplicate of such electronic
recording prepared by the secretary-clerk shall be a "writing" or "recording"
as those terms are defined in rule 1001 of the West Virginia rules of
evidence, and unless the duplicate is shown not to reflect the contents
accurately, it shall be treated as an original in the same manner that
data stored in a computer or similar data is regarded as an "original"
under such rule. The party requesting the copy shall pay to the family
court judge an amount equal to the actual cost of the tape or other medium
or the sum of five dollars, whichever is greater. Unless otherwise ordered
by the court, the preparation of a transcript and the payment of the cost
thereof shall be the responsibility of the party requesting the transcript.
(f) The recording of the hearing or the transcript of testimony, as the case may be, and the exhibits, together with all papers and requests filed in the proceeding, constitute the exclusive record for recommending an order in accordance with section one hundred five of this article, and on payment of lawfully prescribed costs, shall be made available to the parties. When a family law master's final recommended order rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.
(g) After a temporary parenting plan has been agreed to by the parties or ordered by the family court master, or after a temporary support order has been entered by the court, a scheduled final evidentiary hearing cannot be continued without the agreement of the parties or without a review of the temporary parenting plan and the temporary support order.
(h) In any case in which a party has filed an affidavit that he or she is financially unable to pay the fees or costs, the family law master shall determine whether either party is financially able to pay such fees and costs based on the information set forth in the affidavit or on any evidence submitted at the hearing. If the family law master determines that either party is financially able to pay the fees and costs, the family law master shall assess the payment of such fees and costs accordingly as part of a recommended order. The provisions of this subsection do not alter or diminish the provisions of section one, article two, chapter fifty-nine of this code.
§48A-4-20. Circuit court review of family court judge's recommended order.
(a) The circuit court shall proceed to a review of the recommended order
of the master family court 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 family court master.
(c) The circuit court shall examine the recommended order of the master
family court master, along with the findings and conclusions of
the master family court 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 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 family court master's
recommended order is deficient as to matters which might be affected by
evidence not considered or inadequately developed in the master's
family court master's recommended order, the court may recommit
the recommended order to the master family court 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 family court 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.
The office and the clerks of the circuit courts shall, on or before the
tenth day of each month, transmit all fees and costs received for the
services of the office under this chapter to the state treasurer for deposit
in the state treasury to the credit of a special revenue fund to be known
as the "family law masters court fund", which is hereby
created. All moneys collected and received under this chapter and paid
into the state treasury and credited to the "family law masters
court fund" shall be used by the administrative office of the supreme
court of appeals solely for paying the costs associated with the duties
imposed upon the family law masters family court masters
under the provisions of this chapter which require activities by the masters
family court masters which are not subject to being matched with
federal funds or subject to reimbursement by the federal government. Such
moneys shall not be treated by the auditor and treasurer as part of the
general revenue of the state.