Starcher v. Crabtree

348 S.E.2d 293, 176 W. Va. 707

• Court: West Virginia Supreme Court
• Decided: August 25, 1986
• Docket: 17169
• Status: Published

Opinions

BROTHERTON, Justice.

The petitioner, Larry Starcher, a circuit court judge, comes to this Court seeking an original writ of prohibition and mandamus, commanding the respondents, Paul Grab-tree, Administrative Director of the Supreme Court, and Dr. Sharon Lord, Commissioner of the Department of Human Services, not to implement the family law master provisions of the recently enacted Enrolled H.B. 2094, 68th Leg., Reg.Sess., 1986 W.Va. Acts, which is scheduled to take effect July 1, 1986. We agree with the petitioner and grant the writ.

The federal “Child Support Enforcement Amendments of 1984,” 42 U.S.C. §§ 651-667, required states to legislate certain proven child support techniques before July 1, 1986, or face a reduction of federal monetary support for the states’ Aid to Families of Dependent Children program. In order to comply with this law, the West Virginia legislature passed H.B. 2094, which divested the circuit courts of all original jurisdiction in divorce and other domestic matters and placed this jurisdiction in the hands of a newly created family law master.¹ The circuit court retained only a limited appellate jurisdiction.²

The petitioner claims that this divestment of original jurisdiction violates the West Virginia Constitution. We agree, and grant the writ prayed for.

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).

Because the constitution places the jurisdiction for divorces and other domestic matters³ in the circuit court, the legislature’s efforts to divest this jurisdiction by statute is unconstitutional and therefore void.

Recognizing that this ruling could cost the State some of the federal aid to the A.F.D.C. program, we are sorely tempted to redraft or selectively edit H.B. 2094 to make it constitutional. It is not the function of this Court, however, to redraft acts of the legislature. That is a legislative function, which this Court is forbidden from exercising. See W.Va. Const.Art. 5, § 1. We also lack the power selectively to edit so as to bring about a material change. See, e.g., syl. pt. 20, State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953). We are left with little choice but to strike out, in its entirety, Article 4 of H.B. 2094, which sets up the family master system. Other portions of H.B. 2094 are unrelated to the family master system and are unaffected by this ruling.

We, therefore, grant petitioner’s writ and hereby prohibit the respondents from implementing the family law master system.

Writ granted.

1 . H.B. 2094 at § 48A-4-1 provides in part:

“(i) Circuit court or the chief judge thereof shall refer to the master the following matters for hearing to be conducted in accordance with the provisions of section two of this article:

(1) Actions to obtain orders of support brought under the provisions of section one, article five of this chapter;

(2) All actions to establish paternity under the provisions of article six of this chapter except such actions wherein either or both of the parties have demanded a trial by jury of the law and the facts by the circuit court;

(3) All motions for child or spousal support pendente lite;

(4) All actions and motions wherein child custody or child visitation is in issue;

.(5) All petitions for modification of an order involving child custody, child visitation or child support or spousal support; and

(6) All uncontested divorce actions wherein the defending party has failed to answer or appear, or having made an appearance has filed an answer admitting irreconcilable differences or grounds for divorce, has withdrawn his or her answer or other responsive pleading, or has filed a notice of waiver of further proceedings, and wherein all issues except the question of whether or not a divorce should be granted have been resolved;

(7) On and after the first day of September, one thousand nine hundred eighty-six, all contested divorce actions.

(j) A master shall hear, in addition to the matters described in subsection (i) of this section, such other domestic relation matters as may be referred to the master by the court. Provided, That a master shall not hear a case wherein an obligor is charged with criminal contempt, when such obligor has not waived his right to trial by jury.”

2 . H.B. 2094 at § 48A-4-9 provides in part:

"(a) The circuit court shall proceed to a review of the master’s final order when a petition has been filed within ten days of the entry of a master’s final order;

(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 master’s final order.

(c) If a petition for review has been timely filed, the circuit court shall examine the master’s final order, and may enter an order affirming the master's final order or may remand the case upon a finding that the master’s final order is:

(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].]”

3 . See, e.g., J.M.S. v. H.A., 161 W.Va. 433, 436, 242 S.E.2d 696, 697 (1978) (custody and visitation rights).