West Virginia Judiciary

Rules of Practice and Procedure for Family Court

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Table of Contents Full Table of Contents
  1. Waiver of appeal to circuit court
  2. Stay of proceedings pending appeal
  3. Petition for appeal to circuit court
  4. Insufficient record for appeal
  5. Motions to Dismiss the Appeal
  6. Granting or refusing the Appeal
  7. Extensions of time
  8. Oral argument
  9. Final decisions
  10. Remand to family court judge
  11. Motions

Waiver of appeal to circuit court
  1. Filing Notice and Waiver. — If, within fourteen days after entry of a family court final order, both of the parties file, either jointly or separately, a notice of intent to appeal directly to the supreme court of appeals and waiver of the right to appeal to the circuit court, either party aggrieved by a final order of a family court judge may file a petition for appeal to the supreme court of appeals. The notice of intent to appeal and waiver shall be in the same or substantially similar form as that contained in Appendix A.
  2. Effect of Notice and Waiver. — If only one party files a notice and waiver, any petition for appeal filed shall be treated as a petition for appeal to the circuit court.

[Added by order adopted November 27, 2001, effective January 1, 2002. ]


Stay of proceedings pending appeal
  1. Motion for Stay. — Any person desiring to file a petition for appeal from a final order of the family court may file a motion for a stay of proceedings in the family court in which the order was entered. The motion for a stay shall be filed with the circuit clerk and served upon the respondent in accordance with Rule 5 of the Rules of Civil Procedure.
  2. Effect of Stay. — Either on its own motion or upon motion by a party, the family court may order a stay of all or part of a final order, for the period of time allowed for filing of a petition for appeal to the circuit court or for any additional period of time pending disposition of the appeal. Provided, however, that an order granting a motion for stay may not include a stay of an award for the payment of spousal support or child support pending the appeal, except that an award of past-due child support may be stayed pending disposition of the appeal.
  3. Application in Circuit Court. — If the family court should refuse to grant a stay, or if the relief afforded is not acceptable, the party desiring to file the petition for appeal in the circuit court may file a motion for a stay of the proceedings in the circuit court. The motion for a stay shall be filed with the circuit clerk and served upon the respondent in accordance with Rule 5 of the Rules of Civil Procedure. The circuit court may order a stay of all or part of a final order, for the period of time allowed for filing of a petition for appeal to the circuit court, or for any additional period of time pending disposition of the appeal. Provided, however, that an order granting a motion for stay may not include a stay of an award for the payment of spousal support or child support pending the appeal, except that an award of past-due child support may be stayed pending disposition of the appeal.
  4. Effect of Order Refusing Petition for Appeal. — If the circuit court enters an order refusing the petition for appeal, any stay of the family court final order is vacated. A party desiring an additional stay must make an application for stay in the supreme court of appeals as provided in Rule 28 of the Rules of Appellate Procedure.

[Added by order adopted November 27, 2001, effective January 1, 2002. Amended by order entered October 19, 2010, effective December 1, 2010]


Petition for appeal to circuit court
  1. Time for petition. — A party aggrieved by a final order of a family court may file a petition for appeal to the circuit court no later than thirty days after the family court final order was entered in the circuit clerk's office. If a motion for reconsideration has been filed within the time period to file an appeal, the time period for filing an appeal is suspended during the pendency of the motion for reconsideration.
  2. Filing with clerk. — An original and two copies of the petition for appeal shall be filed in the office of the circuit clerk where the final order being appealed was entered. The circuit clerk shall note clearly on each copy the date on which the petition for appeal was filed.
  3. Form of petition. — The petition for appeal shall be prepared in the same or substantially similar form as that set forth in Appendix A of these rules. The party filing the petition for appeal may file a memorandum of law in support of the petition for appeal at the time the petition is filed. Except by permission of the circuit court, the petition for appeal, together with the memorandum of law in support, if any, shall not exceed fifty pages, inclusive of any addendum.
  4. Service of petition. — The petition for appeal and memorandum of law, if any, shall be served in accordance with Rule 5 of the Rules of Civil Procedure.
  5. Response to petition. — The respondent may file an original and two copies of a response to the petition for appeal with the circuit clerk within fifteen days after the filing of the petition for appeal. Except by permission of the circuit court, the response shall not exceed fifty pages, inclusive of any addendum.
  6. Cross-petition for appeal. — Within fifteen days after the filing of the petition for appeal, the respondent may file a cross-petition for appeal. The cross-petition may be filed in addition to any response. The cross-petition for appeal shall be prepared in the same or substantially similar form as that set forth in Appendix A of these rules. The party filing the cross-petition for appeal may file a memorandum of law in support of the cross- petition for appeal at the time the cross-petition is filed. Except by permission of the circuit court, the cross-petition for appeal, together with the memorandum of law in support, if any, shall not exceed fifty pages, inclusive of any addendum.
  7. Reply to response. — No reply to a response to a petition for appeal shall be filed.

[Added by order adopted November 27, 2001, effective January 1, 2002 and amended by order entered and effective December 1, 2005.]


Insufficient record for appeal

If essential portions of the recording of proceedings before a family court are inaudible or unavailable, the circuit court may recommit the case to the family court. The family court may then take evidence; and/or may accept from any party a proposed statement of the pertinent facts. Such statements shall include the maker's certification the facts are accurately presented to the best of that person's knowledge and belief, and shall be served on all parties. Any party may object to a proposed statement of facts by filing written objections with the family court within ten days of the date of service of the statement upon them.

[Added by order entered and effective December 1, 2005.]


Motions to Dismiss the Appeal
  1. By party. — At any time following the filing of a petition for appeal, either party to an appeal may move the circuit court to dismiss an appeal on any of the following grounds: (1) a joint agreement of the parties to the dismissal; (2) failure to properly perfect the appeal; (3) failure to obey an order of the family court or circuit court; (4) lack of an appealable order; or (5) lack of jurisdiction. Such motion shall be filed with the circuit clerk and served in accordance with Rule 5 of the Rules of Civil Procedure.
  2. Hearing. — No oral argument shall be held on a motion to dismiss unless requested by the circuit court.

[Added by order adopted November 27, 2001, effective January 1, 2002 and amended by order entered and effective December 1, 2005.]


Granting or refusing the appeal
  1. Review by circuit court. — As soon as practical after the last day a response to a petition for appeal is filed, if any, the circuit court shall enter an order granting or refusing the petition for appeal.
  2. Refusal order. — If a petition for appeal is refused, the circuit court shall enter an order refusing the petition for appeal within 60 days from the last day a response to the petition for appeal could have been filed. A refusal order shall explicitly inform the parties that it is a final order disposing of the appeal. Motions for reconsideration of a refusal order, or renewal of a petition for appeal that has been refused, are not permitted.
  3. Granting order. — If a petition for appeal is granted, the circuit court shall enter an order granting the petition for appeal. If oral argument was requested in writing by either of the parties, or if the circuit court desires oral argument, the granting order shall set forth a date and time for oral argument. The clerk of the circuit court shall immediately serve the granting order upon the parties by mailing a copy to counsel of record for each party via first-class mail, or if there is no counsel of record, to the party at the last known address for that party. Service shall be complete upon mailing.

[Added by order adopted November 27, 2001, effective January 1, 2002 and amended by order entered and effective December 1, 2005.]


Extensions of time

The circuit court may, for good cause shown in a written motion, extend the time prescribed by these rules for doing any act related to the appeal before it, or may permit an act to be done after the expiration of such time. Provided, however, that any extension of time granted by the circuit court may not exceed a period of ten days.

[Added by order adopted November 27, 2001, effective January 1, 2002 and amended by order entered and effective December 1, 2005.]


Oral argument
  1. Scheduling argument. — If requested in writing by either party, or if the circuit court wishes to hold argument without request, the circuit court shall set forth a date and time for oral argument in the granting order as required by Rule 31(c).
  2. Argument. — Counsel for appellant, or appellant unrepresented by counsel, shall be entitled to open and close the argument, and shall be allotted twenty minutes to open and ten minutes to close. Counsel for appellee, or appellee unrepresented by counsel, shall be allotted twenty minutes. A party is not obliged to use all of the time allotted, and the circuit court may terminate argument whenever in its judgment further argument is unnecessary. The family court judge shall not be required to attend oral argument. Oral argument proceedings shall not be open to the public.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]


Final decisions
  1. Entry of final decision. — The circuit court shall enter a final decision order within 60 days from the last day a response to the petition for appeal could have been filed, or shall enter an order stating just cause why a final decision has not been timely entered. The circuit clerk shall notify the family court judge of the entry of a final decision.
  2. Contents of final decision. — A final decision may refuse the petition for appeal, may affirm or reverse the family court final order, or may affirm or reverse in part. A circuit court's final decision may be appealed to the Supreme Court of Appeals in the manner set forth in the Rules of Appellate Procedure. A remand order entered pursuant to Rule 35(a) is not a final decision for purposes of appeal.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]


Remand to family court judge
  1. Remand orders. — An order remanding a case to a family court judge shall be entered within 60 days from the last day a response to the petition for appeal could have been filed. A remand order shall particularly identify any inadequacies in the evidentiary record; and shall indicate the specific actions to be taken by the family court judge upon remand, including the particular evidence to be taken. At the time a case is remanded the circuit court shall enter such temporary orders as the circumstances require. All remand orders shall direct the circuit clerk to provide a copy to the family court judge.
  2. Proceedings on remand. — All proceedings in cases remanded to a family court judge shall be concluded within 30 days of the date of the remand order.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]


Motions
  1. Content of motions; response; reply. — Unless another form is elsewhere prescribed by these rules, a motion for an order or other relief from the circuit court shall be made by filing a written motion for such order or relief with the circuit clerk, with service upon the other party in accordance with Rule 5 of the Rules of Civil Procedure. The motion shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by a memorandum of law, affidavits or other papers, they shall be served along with the motion. A party may file a response to a motion. A reply to a response to a motion may not be filed.
  2. Determination of motions for procedural orders. — Notwithstanding the provisions of the preceding paragraph as to motions generally, motions for procedural orders may be acted upon by the circuit court at any time, without awaiting a response. Any party adversely affected by such action may request reconsideration, vacation, or modification of such action.
  3. Hearing. — No oral argument shall be held on such motion, unless requested and scheduled by the circuit court.

[Amended by order adopted November 27, 2001, effective January 1, 2002 and by order entered and effective December 1, 2005.]