State v. Wertman

• Decision Date: 07 December 2001
• Docket Number: No. 29687.,29687.
• Citation: 210 W.Va. 366,557 S.E.2d 773
• Parties: STATE of West Virginia ex rel. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, BUREAU FOR CHILD SUPPORT ENFORCEMENT, Plaintiff Below, Appellant, v. Bill WERTMAN and April L. Dowler, in Their Capacity as Family Law Masters for the Twenty-Third Judicial Circuit, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

557 S.E.2d 773

210 W.Va. 366

STATE of West Virginia ex rel. WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES, BUREAU FOR CHILD SUPPORT ENFORCEMENT, Plaintiff Below, Appellant, v. Bill WERTMAN and April L. Dowler, in Their Capacity as Family Law Masters for the Twenty-Third Judicial Circuit, Defendants Below, Appellees.

No. 29687.

Supreme Court of Appeals of West Virginia.

Submitted October 2, 2001.

Decided December 7, 2001.

Janet L. Scalia, Department of Health & Human Resources, Bureau of Child Support Enforcement, Martinsburg, for the Appellant.

John M. Hedges, Teresa J. Lyons, Byrne & Hedges, Morgantown, for the Appellees.

ALBRIGHT, Justice:

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.

2. 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...."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:²

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?

I. Factual and Procedural Background

Bonnie H. Kratovil and April L. Dowler both served as family law masters for the twenty-third judicial circuit,³ which is comprised of three counties: Berkeley, Jefferson and Morgan. At the time the mandamus action was instituted below, the domestic relations hearings for Berkeley County were divided between the family law masters, while Family Law Master Dowler was solely responsible for the Morgan County hearings and Family Law Master Kratovil for those in Jefferson County.

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.

II. Standard of Review

In syllabus point one of Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996), we stated: "The appellate standard of review of questions of law answered and certified by a circuit court is de novo."

III. Discussion

Prior to the ratification on November 7, 2000, of the Unified Family Court Amendment to the state constitution, Article VIII, Section 1 of the West Virginia Constitution provided the sole definition of the courts and judicial officers in the state:

The judicial power of the State shall be vested solely in a supreme court of appeals and in the circuit courts, and in such intermediate appellate courts and magistrate courts as shall be hereafter established by the legislature, and in the justices, judges and magistrates of such courts.

W.Va. Const. art. VIII, § 1.

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, § 16.⁴

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...