Janet L. Scalia
Department of Health & Human Resources Teresa J. Lyons
Bureau of Child Support Enforcement Byrne & Hedges
Martinsburg, West Virginia Morgantown, West Virginia
Attorney for the Appellant Attorneys for the Appellees
JUSTICE ALBRIGHT delivered the Opinion of the Court.
2. "The appellate standard
of review of questions of law answered and certified by a circuit court is
de novo." Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc.,
197 W.Va. 172, 475 S.E.2d 172 (1996).
3. Family law masters serving through December 31, 2001, have been and remain persons assigned to assist the circuit courts and circuit court judges in carrying out their judicial functions in the area of domestic relations matters. The hallmark of such assisting roles, be they termed masters, commissioners or referees, is that the persons assuming the roles have no judicial power to enter a final and binding order, such as an order of incarceration for indirect contempt.
In this case, the Circuit
Court of Berkeley County has certified two questions to this Court. The certified
questions and the circuit court's answers are as follows:
1. Does West Virginia Code § 51-2A-1 et seq. permit family law masters to enter enforceable orders imposing sanctions, including incarceration, for indirect civil contempt for failure to pay child support?
Answer of the circuit court: Yes.
If the Code does permit family law masters to enter enforceable orders imposing
sanctions, including incarceration, are such provisions constitutional?
Answer of the circuit court: Yes.
We initially must determine
whether the matter before us is proper for certification because "[t]he
question of certifiability of decisions of lower court to this Court is one
which goes to the jurisdiction of this Court. Syl. Pt. 2, State v.
Brown, 159 W.Va. 438, 223 S.E.2d 193 (1976). The questions herein presented
arise from a motion for a judgment on the pleadings and order of certification
filed in the circuit court by the West Virginia Department of Health and Human
Resources, Bureau of Child Support Enforcement (hereinafter BCSE).
Upon the agreement of the parties, the questions before us were certified
to this Court by order entered January 4, 2001, pursuant to West Virginia
§ 58-5-2 (1998) (Supp. 2001), which reads in part, [a]ny question of law, including
. . . questions arising upon . . . a motion for judgment on the pleadings
. . . may, in the discretion of the circuit court in which it arises, be certified
. . . to the supreme court of appeals for its decision . . . .
(See footnote 1)
While West Virginia Code § 58-5-2 allows certification of a question
from a motion for judgment on the pleadings, we have also established that
certification will not be accepted unless there is a sufficiently precise
and undisputed factual record on which the legal issues can be determined.
Moreover, such legal issues must substantially control the case. Syl.
Pt. 5, in part, Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994).
We find this to be true in the instant case. We also find that the questions
as certified are overlapping and do not contain current statutory cites due to recent legislative amendments.
Therefore, we invoke our authority to reformulate the questions as certified
to read: (See
Under the provisions of the West Virginia Constitution, are family law masters, serving through December 31, 2001, in the family court division of the circuit courts pursuant to the provisions of Chapter 51, Article 2A of the West Virginia Code, judicial officers, having the authority to enter enforceable orders imposing sanctions, including incarceration, for indirect civil contempt of a court order to pay child support?
On July 27, 2000, Family Law
Master Kratovil issued an order in a Berkeley County case in which civil contempt
enforcement was sought for failure to pay child support. In addition to canceling
the civil contempt hearing in that case, the July 27, 2000, order served as
a vehicle for Family Law Master Kratovil to announce that she would not set
further hearings on petitions for civil contempt in any case until it was clarified
by an appropriate judicial tribunal whether family law masters are judicial
officers under the state constitution with the power to preside in contempt
proceedings and to order the incarceration of a contemnor.
Thereafter, the family law
masters in the twenty-third judicial circuit adopted the following practice
with regard to petitions for indirect civil contempt based on the failure
to pay child support. By order of the supervising circuit court judge in Jefferson
County, Family Law Master Kratovil continued to conduct hearings and issue
recommended orders to the circuit court for entry. However, she did not suggest
incarceration as a sanction in any of the recommended orders. In Morgan County,
Family Law Master Dowler canceled previously set civil contempt hearings and
did not set any further contempt hearings. Neither family law master set any
further civil contempt hearings in Berkeley County, and all previously scheduled
hearings were canceled.
On August 17, 2001, the BCSE
petitioned the Berkeley County Circuit Court for a writ of mandamus to compel
the family law masters to conduct civil contempt proceedings for failure to
pay court-ordered child support, to enter orders rather than recommend them
to the circuit court for entry, and to impose incarceration in appropriate cases.
The lower court entered an order granting the writ of mandamus on September
20, 2000, in which the lower court ruled that family law masters had a statutory
duty pursuant to West Virginia Code §§ 51-2A-1 to -12 to conduct contempt
proceedings and to resolve petitions for contempt without the supervision of
the circuit court. The September 20, 2000, order also directed the family law
masters to schedule and hear all cases of civil contempt and when such
evidence supports [it,] the Family Law Masters shall impose incarceration upon
their own orders as provided by statute. However, the September 2000 order
did not address the question of whether a family law master was constitutionally
authorized to conduct contempt proceedings, enter enforceable orders and impose
incarceration as a sanction. The family law masters filed a motion for reconsideration
and requested the circuit court to address whether the state constitution authorized
family law masters to resolve contempt petitions without the oversight of the
circuit court. At the motion hearing on November 6, 2000, the parties presented
certified questions to the circuit court. On January 4, 2001, the lower court
entered the order which certified the questions now before this Court.
The Unified Family Court
Amendment to the state constitution added family courts to the judicial structure
of the state by appending the following provision to Article VIII:
There is hereby created under the general supervisory control of the supreme court of appeals a unified family court system in the state of West Virginia to rule on family law and related matters. Family courts shall have original jurisdiction in the areas of family law and related matters as may hereafter be established by law. Family courts may also have such further jurisdiction as established by law.
Family court judges shall be elected by the voters for a term prescribed by law not to exceed eight years, unless sooner removed or retired as authorized in this article. Family court judges must be admitted to practice law in this state for at least five years prior to their election. Family court judges shall reside in the circuit for which he or she is a judge.
The necessary number of family court judges, the number of family court circuits and the arrangement of circuits shall be established by law. Staggered terms of office for family court judges may also be established by law.
The supreme court of appeals shall have general supervisory control over all family courts and may provide for the assignment of a family court judge to another court for temporary service. The provisions of section seven and eight of this article applicable to circuit judges shall also apply to family court judges.
W.Va. Const. art. 8, § 16. (See footnote 4)
The family law masters argue, and we agree, that before the Unified Family Court Amendment was ratified, family law masters clearly were not judicial officers and the legislature could not grant them that status by statute. However, they further argue that subsequent to ratification of the amendment, family law masters were granted judicial officer status, and they may now, pursuant to statutory authority, conduct contempt hearings for which they may enter and enforce orders. It is on this point that we disagree.
We begin our discussion with a brief examination of the history and development of the family law master system in West Virginia. In 1986, the legislature passed Enrolled House Bill 2094, which established a family master system to address issues raised by federal child support requirements and to develop a more uniform manner by which the growing domestic relations caseload was managed throughout the state. 1986 W.Va. Acts Reg. Sess. c. 42. The constitutionality of this enactment was challenged in Starcher v. Crabtree, 176 W.Va. 707, 348 S.E.2d 293 (1986). At the time of the challenge, the judicial power of the state was vested in the Supreme Court, the circuit courts and the magistrate courts, with the officers named in the constitution to exercise judicial power therein being justices, judges and magistrates respectively. W.Va. Const. art. VIII, § 1. In Starcher v. Crabtree, this Court held the family law master system as set forth in Enrolled House Bill 2094 unconstitutional because it would have divested the circuit courts of jurisdiction of domestic relation cases. In reaching this conclusion, we noted that: The [1974 Judicial Reorganization] amendment eliminated the legislature's power to change the jurisdiction of divorce cases and constitutionally placed divorce cases in the circuit court. Id. at 708, 348 S.E.2d at 294-95.
In response to the Starcher
v. Crabtree decision, the legislature enacted Enrolled House Bill 210
during its 1986 Second Extraordinary Session. 1986 W.Va. Acts 2nd
Ex. Sess. c. 2. This legislation included the expression of the legislature's
intent to create a family law master system which would fully protect the constitutional
jurisdiction of the courts while establishing a uniform and expedited
process governing family law remedies modeled upon traditional equity
practice in this state which has utilized commissioners in chancery, masters,
master's reports and recommended decisions, authoritative review by the circuit
courts and other devices of an equitable nature. Id. at 1079.
This express legislative intent is embodied in the specific provisions of
the second 1986 enactment, which included the requirement that all decisions
rendered by family law masters, with the exception of temporary support and
custody orders, take the form of recommended orders to the circuit court,
whose judges retained the power to enter orders imposing sanctions or granting
or denying relief. Id. at 1074. In other words, it is clear that the
legislature intended that family law masters assist the circuit courts in
the disposition of domestic relations cases without supplanting the jurisdiction
of the circuit court.
The function of family law
masters with regard to contempt actions under the post-Starcher v. Crabtree
enactment was to hear petitions for contempt unless a right to jury trial
had not been waived,
(See footnote 5) with all decisions and orders regarding
sanctions for contempt remaining the responsibility of the circuit court judge.
The authority of family law masters to hold hearings on contempt actions was
removed by the legislature in 1990. 1990 W.Va. Acts Reg. Sess. c. 40. It was
not until 1999, when the legislature established a family court division within the circuit courts,
(See footnote 6) that the family law masters
serving in the division were again authorized to hear certain contempt actions.
(See footnote 7)
1999 W.Va. Acts 1st Ex. Sess., c. 10. In defining the functions
of family law masters under the family court division structure, the 1999
Act continued to respect the constitutionally vested judicial power of the
circuit judges by continuing to designate family law masters as commissioners
of the circuit courts. This provision of the 1999 Act remains the currently
operative law found in West Virginia Code § 51-2A-2 (1999) (Repl. Vol.
2000), which reads, in pertinent part:
(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.
. . . .
(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 subsequent review by a circuit judge . . . .
W.Va. Code § 51-2A-2 (2001) (Supp. 2001).
As consistently recognized by
the legislature in its enactments following the decision in Starcher v. Crabtree,
family law masters are not constitutionally vested with judicial power. Consequently,
family law masters may serve only as assistants to the circuit courts and the
circuit judges in carrying out their functions as the sole repository of original
jurisdiction over divorces and related domestic matters. With the limited exception
of entering temporary orders of support and custody, all decisions of family
law masters have taken the form of recommendations to the circuit court for
final determination and entry of orders by a circuit court judge, in keeping
with the recognized limitation of matters which a judge may delegate to a master
or commissioner in equity. Rosier v. McDaniel, 126 W.Va. 434, 440, 28
S.E.2d 908, 912 (1944) (It does not lie in the power of the judge of a
court of equity . . . to delegate to a commissioner the primary duty of deciding,
the fundamental issues in a cause.); Currence v. Currence, 123
W.Va. 599, 606-06, 18 S.E.2d 656, 660 (1941) (The statute [authorizing
the reference of a divorce suit to a commissioner in chancery] does not in any
way attempt to authorize a court to refer a cause to a commissioner for the
purpose of determining the main issues in the case.). Likewise, the powers
of masters or commissioners in equity are limited in contempt actions, as aptly
summarized in 17 Am. Jur. 2d Contempt §48 (1990): Contempts
. . . before masters . . . to whom judicial or quasi- judicial functions are
delegated are cognizable and punishable by the court to which the persons were
attached. (Footnotes omitted.) In other words, such agents of the court
are not empowered to punish disobedience or contempt of court orders since that
power resides solely within the authority of the court.
With the adoption of the Unified Family Court Amendment, the legislature received the authorization necessary to establish a system of family courts with officers vested with judicial power to entertain and resolve cases involving certain domestic relations matters. However, legislation which merely designates a family court division within the circuit court or refers to family law masters as family court judges does not establish the system of family courts and family court judges embraced by this amendment. (See footnote 8) Accordingly, family law masters serving through December 31, 2001, have been and remain persons assigned to assist the circuit courts and circuit court judges in carrying out their judicial functions in the area of domestic relations matters. The hallmark of such assisting roles, be they termed masters, commissioners or referees, is that the persons assuming the roles have no judicial power to enter a final and binding order, such as an order of incarceration for indirect contempt. (See footnote 9)
For the reasons stated herein, we answer the certified question, as reformulated, in the negative.
Any question of law, including, but not limited to, questions arising upon the sufficiency of a summons or return of service, upon a challenge of the sufficiency of a pleading or the venue of the circuit court, upon the sufficiency of a motion for summary judgment where such motion is denied, or a motion for judgment on the pleadings, upon the jurisdiction of the circuit court of a person or subject matter, or upon failure to join an indispensable party, may, in the discretion of the circuit court in which it arises, be certified by it to the supreme court of appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back. The procedure for processing questions certified pursuant to this section shall be governed by rules of appellate procedure promulgated by the supreme court of appeals.
Vol. 2001), permitting juvenile referees to order juveniles in lawful custody or under lawful arrest to be admitted to bail or to be held in custody to await further hearings, and the provisions of West Virginia Code § 49-5A-4 (1972) (Repl. Vol. 2001), permitting the circuit judge to modify or vacate such orders at any time. We view the refusal of or admission to bail, with the unlimited and immediate right of review by a circuit judge, as fundamentally different from the power to impose the punishment of incarceration for indirect contempts.