Workman, J. Concurring - Opinion, Case No.22084 Stephen L.H. v. Sherry L.H.

No. 22084 - Stephen L. H., v. Sherry L. H

Workman, Justice, concurring:

    While the majority reaches the absolutely correct result, I vehemently disagree with the new law they created in so doing. The majority opinion has no groundings in the history and development of the Family Law Master (hereinafter referred to as "FLM") system and reflects very little understanding of its current status. It in essence treats the most important human issues facing the courts as if they are of no more consequence than administrative matters.

    The decision is wrong from a legal standpoint and even more wrong from a policy perspective. It deprives the circuit courts of original jurisdiction, effectively reversing an opinion of this court without ever considering or even citing it, and ventures dangerously close to clothing a statutorily-created system with the status of a constitutionally-created court.


Legislative History of the Family Law Master System

    First, an examination of the history of the FLM system is necessary as a backdrop to this discussion. With the passage of the Child Support Enforcement Amendments of 1984, P.L. 98-378, Congress imposed a requirement on states to establish expedited

judicial or administrative processes for obtaining and enforcing support orders.

    In 1986,See footnote 1 the West Virginia Legislature debated the numerous issues concerning the current domestic relations law and how the state should respond to the new federal mandate for an expedited process. The Legislature enacted a quasi-judicialSee footnote 2 system that granted family law masters broad authority in the area of domestic law--jurisdiction which far exceeded issues solely related to child support. The subject matter jurisdiction granted to the family law masters in West Virginia resulting from the federal mandate was significantly broader in scope than that granted to quasi-judicial officers in many other states who are limited to matters defined by the federal mandates.

    Over the ensuing years, it became obvious that the FLM system was underfunded, unmanaged, and ineffective, both in the quantity and quality of its performance. Beginning in 1989, this Court each year began imploring the Legislature to bring reform to this system. In 1993, we went so far as to formally request that the Legislature either reform the system or else remove it from affiliation with the judicial branch.See footnote 3
    The legislature failed to enact all the recommended reforms, but did move the FLM system to the judicial budget, modify it to a split full-time/part-time system, and give the Court some measure of authority in drawing the geographic regions.

Although the Administrative Office of this Court has sought to bring management and coordination to the FLM system, it cannot in its present form be regarded as a family court systemSee footnote 4 entitled to the level of deference the majority suggests. Family law masters still remain part-time only, most continuing to conduct private law practices as well as perform their judicial duties.


Starcher v. Crabtree

    In 1986, the constitutionality of the newly enacted statute was challenged in Starcher v. Crabtree, 176 W. Va. 707, 348 S.E.2d 293 (1986), wherein the petitioner claimed the legislation divested the circuit courts of original jurisdiction. Specifically, our reasoning was based on the conclusion that the circuit courts would retain "only a limited appellate jurisdiction" under the statute. Id. at 708, 348 S.E.2d at 294.See footnote 5 The Starcher case necessitated a special session of the state legislature, held at considerable expense to the taxpayers,See footnote 6 to correct the constitutional deficiencies of the FLM system.

    In Starcher, this Court set forth a brief history of the law relating to jurisdiction of divorce cases:
         Before West Virginia was a state, the power to grant divorces resided in the Virginia legislature by special enactment. The legislature, however, lost its power to grant divorces when the West Virginia Constitution was ratified. Article 6, Section 39 prohibits the legislature from granting divorces, but states that "the legislature shall provide, by general laws, for (divorces)." Thus, while the legislature lost the power to grant divorces, it still retained many powers, including the power to choose the forum for divorce. Under the 1872 West Virginia constitution, the legislature could either allow the circuit courts to handle divorces under Article 8, § 12 or form a limited court for that purpose under Article 8, § 19. The legislature allowed both to have concurrent jurisdiction. See W. Va. Code § 48-2-5 (1980). The courts, recognizing the legislature's ability to change forums, acknowledged that neither law courts nor equity courts had the inherent power to dissolve marriages and the authority of a court to decree a divorce was purely statutory. See e.g., syl. pt. 1, State ex rel. Cecil v. Knapp, 143 W. Va. 896, 105 S.E.2d 569 (1958).

         Courts of limited jurisdiction, however, were abolished by the Judicial Reorganization Amendment of 1974 to the West Virginia Constitution. See W. Va. Const. Art. 8, § 5. The amendment eliminated the legislature's power to change the jurisdiction of divorce cases and constitutionally placed divorce cases in the circuit court. See Patterson v. Patterson, 167 W. Va. 1, 277 S.E.2d 709, 715 (1981).

176 W. Va. at 708-09, 348 S.E.2d at 294-95 (emphasis added).
    Thus, we concluded that "[b]ecause the constitution places the jurisdiction for divorce and other domestic matters in the circuit court, the legislature's efforts to divest this jurisdiction by statute is [sic] unconstitutional and therefore void." Id. at 709, 348 S.E.2d at 295 (footnote omitted).

    Even the two dissenters in Starcher, Chief Justice Miller and Justice McGraw, in urging that the constitutionality of the statute be upheld, were specific in pointing out that the Court needed to clarify that review by the circuit court should be de novo. Id. at 709 and 713, 348 S.E.2d 295 and 299 (McGraw, J., dissenting and Miller, C.J., dissenting).

    With the advent of the new statute, West Virginia Code § 48A- 4-20 (Supp. 1994), which was passed by the special session as a result of the Starcher case, a circuit court could review the recommended order of a family law master and retain authority to enter an order differing from the recommendation of the family law master if one of the six enumerated requirements is met.See footnote 7 In this manner, the divestment of original jurisdiction of the circuit court was corrected.

    It is now the height of irony that just as the original jurisdiction of the circuit courts was abrogated in the legislation held unconstitutional by this Court in Starcher, the majority's interpretation of the current statute also infringes upon the original jurisdiction of the circuit courts. As aptly explained in State v. Johnson, 114 P.2d 1034 (Utah 1941):
        "[o]riginal jurisdiction . . . is the right to hear the cause, to make its own determination of the issues from the evidence as submitted directly by the witnesses; or of the law as presented, uninfluenced or unconcerned or limited by any prior determination, or the action of any other court juridically determining the same controversy. Original jurisdiction as here used means the right of the court to make its own record, its own finding and determination. An original determination is one not founded upon one previously made. It is original in the sense that it stands alone upon its own base, not the outgrowth of some other.

Id. at 1037.See footnote 8

    Accepting the proposition that original jurisdiction implies the authority to make the court's own findings of fact, the narrowing of the standard of review accomplished by the majority severely infringes upon the circuit courts' original jurisdiction. "Original jurisdiction is the power to entertain cases in the first instance, as distinguished from appellate jurisdiction." New York Times, Inc. v. Arizona Bd. of Regents, 513 P.2d 960, 964 (Ariz. 1973), vacated on other grounds, 519 P.2d 169 (1974).

    The majority's reconstruction of legislative pronouncement restricts the circuit court scope of review, thereby elevating the jurisdiction and authority of the family law master. Such redistribution of judicial function ventures dangerously close, as Justice NeelySee footnote 9 points out in his dissent to this opinion, to the unconstitutional creation of a new level of judicial authority. Article VIII, Section 1 of the West Virginia Constitution provides, in pertinent part, as follows: "The judicial power of the State shall be vested solely in a supreme court of appeals and in the circuit courts . . . and magistrate courts . . . and in the justices, judges, and magistrates of such courts."

    Clearly, it was never the intent of the system that the family law masters enjoy original jurisdiction, but instead they were to make recommendations to circuit courts. It is obvious from Starcher that that is how this Court viewed the function of the masters, and further obvious from the special session of the legislature necessitated by that decision that this is what the legislature intended in its enactments in response to that opinion.


An Uninvited Judicial Excursion

    Equally troubling is the majority's insistence on rewriting a perfectly legitimate, clear, and unambiguous statute. Basic tenets of judicial restraint instruct us to refrain from interpreting that which is unambiguous. As we stated in syllabus point one of Sowa v. Huffman, 191 W. Va. 105, 443 S.E.2d 262 (1994), "'[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.' Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951)." We also emphasized in Sowa that "[i]t is not the province of the courts to make or supervise legislation, and a statute may not, under the guise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten, or given a construction of which its words are not susceptible, or which is repugnant to its terms which may not be disregarded." 191 W. Va. at ___, 443 S.E.2d at 268 (citing State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 145, 107 S.E.2d 353, 358 (1959)).

    Unambiguous statutes simply do not call for our interpretation. For the majority to have intervened to essentially redraft the legislative pronouncement is improper. We have employed the procedures set forth in the statute for circuit court review quite effectively, as illustrated by our decision in Higginbotham v. Higginbotham, 189 W. Va. 519, 432 S.E.2d 789 (1993). Furthermore, we indicated in Whiting v. Whiting, 183 W. Va. 451, 396 S.E.2d 413 (1990), and again in Higginbotham, that a circuit court which changes a family law master's recommendation must make known its factual findings and conclusions of law. See Whiting, 183 W. Va. at 456, 396 S.E.2d at 418, and Higginbotham, 189 W. Va. at 522, 432 S.E.2d at 792. With no indication of difficulty in application or interpretation, the majority steps in, uninvited,See footnote 10 and reformulates the standard of review. Judicial interpretation can be justified under Sowa where the statute is not clear, is ambiguous, or fails to express legislative intent. 191 W. Va. at ___, 443 S.E.2d at 263, Syl. Pt. 1. The statute in question does not fall into any of those categories.
    Without justifying its intrusion into the legislative realm, the majority voraciously cites authority for the proposition that by borrowing terms of art from the legal tradition, the legislature is presumed to know the cluster of ideas attached to each word. What the majority appears painfully unaware of, however, is the fact that prior to seizing upon a method of interpretation, a court must reckon with the issue of whether the interpretation is justified. Thus, without justification for intrusion as a prerequisite, the manner of interpretation is irrelevant. Indeed, when judicial construction is necessary, such concepts as presumption of legislative knowledge of meaning or connotation of certain words would be appropriate. But where judicial construction or interpretation is uncalled for, as in the present case, launching into such discussion is meaningless and superfluous. The majority's decision in this matter is an example of highly imprudent judicial reconstruction of legislative action.
    Furthermore, if the legislature had wanted to impose a "clearly erroneous" standard in the FLM statute, it certainly could have done so. It has demonstrated its ability to employ those terms intelligently in the statutes on many other occasions,See footnote 11 and if such had been its intention in the family law master statute, it most certainly did not need the assistance of this Court to incorporate that concept of review.


The Policy

    We have made great strides in bringing gender fairness to domestic law in West Virginia, to assuring that children are supported and that families in the strife of dissolution are treated with fairness and compassion. The fact that there has existed the right of broad review by constitutionally-created courts has helped assure that women and children are not relegated to the type of arbitrary, capricious, and unfair treatment in the judicial system that for many years was the norm.

    Family law is not susceptible to a "how many angels can dance on the head of a pin" analysis. Although judges all too frequently view the difficult human issues that arise in family law as more in the nature of social work, not real "he-man" legal work, perhaps the fact that it has such an intrinsic overlay of psychological and sociological considerations makes it one of the most difficult areas of the law. Because it relates in such basic ways to personal safety (domestic violence) and basic human existence (child custody and support, and the division of assets of marriage partnerships) issues, it is also the most important.See footnote 12

    The writer of the majority opinion was not in the judiciary during the creation and evolution of the FLM system and did not practice domestic law, so the lack of history and insight into the system and the reality of how this area of the law works is understandable. I can only conclude his brethren were just asleep at the wheel.    

Footnote: 1 Prior to the enactment of legislation creating the FLM system, all domestic relations matters were entirely under the purview of the circuit courts, although it was a commonplace practice in West Virginia for courts to appoint Divorce Commissioners to hear divorce cases and make recommendations concerning issues of support, custody, and distribution of marital assets. The circuit courts, however, retained full original jurisdiction of domestic relations cases.
Footnote: 2 There was initially great debate over whether the system should be strictly administrative or quasi-judicial. The result of that first legislation was a quasi-judicial system peopled by lawyers appointed by the governor to serve only part-time. Although called "judicial officers," family law masters were under the budget of the Department of Human Services and the Court Administrator of the West Virginia Courts had no administrative authority over this system.
Footnote: 3 Speaking for the Court in my State of the Judiciary address in 1993, I said:

         I turn now to the most pressing need of the judicial system and the area in which we most earnestly seek your help - - the Family Law Master System.
         Without legislative action, the Family Law Master System is scheduled to sunset on July 1st of this year. We are asking that this program be continued, but with substantial changes. If it is not continued, we stand to lose approximately one million dollars in federal funds.
         In 1991, you commissioned a performance audit of the Family Law Master System as part of the sunset review procedure. The audit recommended that the system be continued, but that several changes be made to improve the delivery of services. The most significant of these recommendations included:
         moving the budget for the program from the department to the court system;
         making the Masters full-time, thus prohibiting them from engaging in a private practice of law, and compensating them commensurately;
         realigning the Family Law Master regions to create larger regions with multiple Masters and more equitably distribute the caseload;
             and allowing the Supreme Court to appoint the Masters.
         We agree that the budget should be moved
to the Supreme Court. The system is critically underfunded and the projected deficit for the present year is $128,000. Masters have grossly inadequate facilities, and do not have even the most basic office supplies.
         We believe that in order for this system to work, it must be given some very basic tools. In the Governor's state of the state address, he spoke of a state employee forced to add rows and rows of figures without even a hand calculator. Our Family Law Masters are being asked to take families in the crisis of both financial and emotional disruption and to fairly divide their assets---sometimes everything they've accumulated over a lifetime---as well as sort out child custody, visitation and support---without calculators, without phones people can get through on, without postage to mail out notices, sometimes without even a place to hold hearings.
         We have no desire to create a lush bureaucracy. As I said earlier, the U.S. Department of Justice has identified West Virginia as the most cost-efficient judicial system in the nation. But the Family Law Master System simply cannot function effectively for the people of West Virginia if it continues to be treated like an unwanted stepchild.
         We also agree with your audit that the Family Law Masters should not maintain outside law practices and should be compensated accordingly.
         As a result of changes in both Federal and State law, domestic cases are far more complicated now than they were in 1986 when the System was created, and the caseloads are increasing rapidly. As the full work increases, the job demands the full-time attention of the Masters.     
            . . . .         

         We agree that the current regions need
minor realignment, and the system needs three additional Masters to work in our busiest areas.
         We do not agree with the audit recommendation that the Court appoint the Masters, but do urge that we be given some authority over their tenure. We propose that the Court have the authority to certify a vacancy to the Governor if a Family Law Master does not carry out his or her judicial responsibilities efficiently. Without that authority, we have no way to see to it that the job gets done.
         With the exception of transferring the budget to the Court, we recommend that these changes not take place until July 1, 1994, when the Masters' current term expires, and when the crisis is expected to peak.
         Without these changes, the System will continue to fail families in trouble. In some of our busiest regions, litigants have to wait months to get into court to obtain temporary orders for immediate necessities like child support, medical care, and housing. In the meantime, they may be evicted from their homes; children may go without food, clothing, and medical treatment; non-custodial parents may be denied visitation; and children may live in limbo as to their most important relationships.
         The emotional and financial chaos of divorce is a traumatic event for families even under the best of circumstances. To subject these families to intolerable delays in the court system only compounds their crisis. We need your help.
         If you do not see fit to make these changes - - - changes which are consistent with what we have recommended for the past four years - - - then we urge you to place the Family Law Master System in another agency of state government. We in no way seek to shirk our responsibility in this area, but under current circumstances and resources, we simply cannot manage this program with the same
efficiency we operate the rest of our system.

Footnote: 4 Neither this statement nor anything in this opinion is intended to denigrate the quality of the current family law masters.
Footnote: 5 House Bill 2094 at § 48A-4-9 provided, in part, that a circuit court would review a family law master's final order when a petition for review had been properly filed. Once such review was undertaken, the statute provided that the circuit court could either enter an order affirming the master's final order or remand the case upon a finding that the master's final order was:

            (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; [or]
            (5) Unsupported by substantial evidence[.]

    However, under no circumstances could the circuit court enter its own order contrary to the findings of the family law master. Thus, the circuit court had no power of review unless a petition for review was filed, and even the limited review which was provided did not include circuit court authority to enter a final order differing from the master's final order, but merely permitted remand.

Footnote: 6 There were other matters taken up in the special session, but this was one of the most significant.
Footnote: 7 West Virginia Code § 48A-4-20(c) provides:
            The circuit court shall examine the recommended order of the master, along with the findings and conclusions of the master, and may enter the recommended order, may recommit the case, with instructions, for further hearing before the master or may, in its discretion, enter an order upon different terms, as the ends of justice may require. 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.

Footnote: 8 See also In re American Waste & Pollution Control Co. 588 So.2d 367 (La. 1991) (Dennis, J., concurring) ("Original jurisdiction is the '[j]urisdiction to consider a case in the first instance. Jurisdiction of [a] court to take cognizance of a cause at its inception, try it, and pass judgment upon the law and facts. . . .'" (quoting Black's Law Dictionary (6th ed. 1990)); Michael A. Ritscher et al., The Status of Dual Path Litigation in the ITC and the Courts: Issues of Jurisdiction, Res Judicata and Appellate Review, 18 AIPLA Q.J. 155, 161 (1990)("Original jurisdiction is defined as 'Jurisdiction to take cognizance of a cause at its inception, try it and pass judgment upon the law and facts.'" (quoting Black's Law Dictionary (5th ed. 1979)).
Footnote: 9 While much of the other dissent from Justice Neely is couched in rhetoric with which I would disassociate myself, many of his
underlying conclusions are absolutely accurate.

Footnote: 10 No one even raised this issue of the need for reformation or interpretation on appeal!
Footnote: 11 The majority vainly attempts to justify its construction of § 48A-4-20 by attempting to synthesize the statute into its own characterization of the standard of review intended. Most importantly, the words "clearly erroneous" appear nowhere in the statute. If it was the intention of the legislature for that to be the standard, even a cursory reading of the West Virginia Code readily illustrates that the legislature, when it so desires, knows exactly how to impose a clearly erroneous standard of review. See, e.g., W. Va. Code § 11-15A-13(c)(4)(1991) ("In any administrative or court proceeding brought to challenge the average whole price of gasoline and special fuel as determined by the tax commissioner, his determination shall be presumed to be correct and shall not be set aside unless it is clearly erroneous.") (emphasis added); W. Va. Code § 46A-7-106(3) (1995) (stating, in part, that "[a]fter hearing, the court may (a) reverse or modify the order if the findings of fact of the attorney general are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record. . . .") (emphasis added). In "construing" §§ 48A-4- 20, the majority has usurped legislative authority and effectively amended the statute.
Footnote: 12 It has been my observation during almost fourteen years on the bench that there is almost a macho-like quality in the kind of disregard the judicial system gives family law issues. There is a sense that it is just not nearly as important as high stake civil litigation or a significant criminal case. Yet to the individuals involved in these cases, these issues are, figuratively speaking, life and death.