SER Hendricks v. Hrko
Annotate this Case
January 1993 Term
_________
NO. 21567
_________
STATE OF WEST VIRGINIA EX REL.
DONNA ANN HENDRICKS,
Relator
V.
HONORABLE JOHN S. HRKO, JUDGE OF THE
CIRCUIT COURT OF WYOMING COUNTY, AND
JAMES L. HENDRICKS, JR.,
Respondents
__________________________________________________________
Petition For A Writ of Prohibition
WRIT DENIED
____________________________________________________________
Submitted: March 2, 1993
Filed: July 21, 1993
Norman Googel
Appalachian Research & Defense Fund, Inc.
Welch, West Virginia
Attorney for the Relator
Joseph A. Colosi
Welch, West Virginia
Attorney for the Respondent
James L. Hendricks, Jr.
JUSTICE MILLER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Under Rules 40 and 41 of the Rules of Practice and
Procedure for Family Law, a party may file a written motion for
disqualification of a family law master. The motion shall be
verified, shall state facts and reasons supporting the
disqualification, and shall be accompanied by a certificate, signed
by the attorney of record or a party who appears pro se, stating
that it is made in good faith and that there is evidence to support
disqualification. The motion shall be filed no later than twenty-one days in advance of any scheduled hearing, except for good cause
shown. Upon the filing of a disqualification motion, the family
law master shall forward a copy of the motion and of any relevant
evidence and shall notify the circuit judge in writing whether good
cause exists for voluntary recusal. The circuit judge may grant or
deny the disqualification motion or hold an evidentiary hearing to
resolve the issues raised. Until the issue of disqualification is
decided, the family law master shall proceed no further in the
proceeding.
2. "A writ of prohibition will not issue to prevent a
simple abuse of discretion by a trial court. It will only issue
where the trial court has no jurisdiction or having such
jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1."
Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va.
314, 233 S.E.2d 425 (1977).
3. A decision of a circuit court upon review of a motion to disqualify a family law master will be affirmed by the West Virginia Supreme Court of Appeals absent an abuse of discretion.
Miller, Justice:
We issued a rule to show cause in this original
proceeding for a writ of prohibition to determine the proper
procedure to be followed when a party to a divorce proceeding
pending before a family law master seeks to disqualify the family
law master.
In September of 1991, the McDowell County family law
master presided over a divorce proceeding between the relator,
Donna A. Hendricks, and the respondent, James L. Hendricks, Jr. At
one point therein, the eleven-year-old child of the parties was
called to testify. As the child entered the courtroom, he pointed
at the relator and stated, "Bad luck, Mom," and pointed at the
respondent and stated, "Good luck, Dad."
The family law master immediately ceased the proceedings
and admonished both parties and their counsel. She ruled, sua
sponte, that neither the eleven-year-old nor his eight-year-old
brother would be permitted to testify because she believed that the
respondent was trying to influence the children.See footnote 1 She further
stated that the remarks of the eleven-year-old were disrespectful
and, had the child been older, she would have held him in contempt.
She stated that she held both the respondent and respondent's
counsel responsible for the child's behavior.
Based upon the family law master's refusal to allow the
two children to testify, and her remarks relevant thereto, the
respondent, Mr. Hendricks, moved for her disqualification. The
family law master, apparently on the advice of the Assistant
Director of Family Law Masters, decided to hear the
disqualification motion and determined that she was not
disqualified. This decision resulted in Mr. Hendricks filing a
petition for a writ of prohibition in the Circuit Court of Wyoming
County.
After hearing from the attorneys representing the
parties, the circuit court decided that the family law master
should be disqualified. The circuit judge observed that there were
no detailed procedures covering the disqualification of a family
law master and that the two relevant statutory provisions, W. Va.
Code, 48A-4-1(i) (1992),See footnote 2 and W. Va. Code, 48A-4-2(b) (1990),See footnote 3
provided little guidance on this issue.
The judge without a formal evidentiary hearing on the
writ of prohibition did listen to the arguments of counsel.
Subsequently, an order was entered on July 13, 1992, which found
that the family law master had not exhibited bias toward Mr.
Hendricks. However, the order did disqualify the master to
preserve a fair and impartial hearing. This order is challenged by
Mrs. Hendricks in an original prohibition in this Court on the
basis that the circuit court exceeded its legitimate powers.
I.
At the outset, we note that W. Va. Code, 48A-4-1(i), does
not cover the procedure to be followed when a party seeks to
disqualify a family law master. The section merely outlines the
various types of cases that shall be referred to a family law
master. It does contain a proviso that authorizes the circuit
court or its chief judge to revoke a particular referral in certain
instances. One instance where the referral may be revoked occurs
"if the master is recused[.]" At best, however, this provision
empowers the circuit judge to remove the referral from that family
law master. It does not allow the circuit judge to determine when
the family law master should be recused. We do not agree with Mr.
Hendricks' claim that further language in the proviso allowing the
judge to revoke the referral "for other good cause" suggests
recusal or disqualification grounds.
On the other hand, we find that W. Va. Code, 48A-4-2(b),
contains the statutory language that relates to the
disqualification of a family law master. In relevant part, W. Va.
Code, 48A-4-2(b), states: "[U]pon the filing in good faith of a
timely and sufficient affidavit of personal bias or other
disqualification of a master, the circuit court or the chief judge
thereof may appoint a temporary master or the circuit court may
receive the evidence and determine the matter."See footnote 4
The procedure outlined in W. Va. Code, 48A-4-2(b), is
relatively clear. The party seeking to disqualify a family law
master must file a "timely and sufficient affidavit of personal
bias or other disqualification."See footnote 5 Moreover, such filing must be
made in "good faith." This means that the affidavit must contain
sufficient facts to support a claim of personal bias or other
disqualifying ground and it must show that it is timely filed. If
the grounds asserted have been known for some time, the affidavit
would not meet the timeliness requirement. The affidavit must also
assert the good-faith reason for the filing.
Once a proper affidavit has been filed, the circuit judge
is empowered to decide the disqualification motion based on the
sufficiency of the affidavit alone. Alternatively, the circuit
judge may hold a hearing on the matter. If a hearing is to be
held, the court should then notify the interested parties and allow
them to participate in the hearing.
In considering a disqualification motion, it must be
remembered that the family law master is not authorized to make the
final decision on the underlying matters. The statute authorizes
the family law master to make a recommended order to the circuit
court. W. Va. Code, 48A-4-4 (1990). The circuit court then
reviews the recommended order, including procedural matters under
W. Va. Code, 48A-4-6 (1990),See footnote 6 and based upon a petition for review,
as outlined in W. Va. Code, 48A-4-7 and -8 (1990),See footnote 7 makes the final
decision. Thus, it is the circuit court's order, and not the
recommended decision of the family law master, that constitutes the
actual final decision in regard to the underlying proceedings. See
W. Va. Code, 48A-4-10 (1990).See footnote 8 In view of the role played by the
family law master and the extensive review of the family law
master's recommended decision by the circuit court, the grounds for
disqualification of a family law master should be rather limited.
II.
We find that the requirements of W. Va. Code, 48A-4-2(b),
are embodied in the Rules of Practice and Procedure for Family Law
that have recently been adopted by this Court.See footnote 9 Rules 40 and 41
outline the procedure to be followed when a party to a family law
dispute seeks the disqualification of the family law master hearing
the case:
"40. Form of Motion. Any party to
any proceeding governed by these rules may
file a written motion for disqualification of
a family law master. The motion shall be
verified, shall state facts and reasons
supporting the disqualification, and shall be
accompanied by a certificate, signed by the
attorney of record or a party who appears pro
se, stating that it is made in good faith and
that there is evidence to support
disqualification. The motion shall be filed
no later than twenty-one (21) days in advance
of any scheduled hearing, except for good
cause shown.
"41. Duties in Response to
Disqualification Motion. Upon the filing of a
disqualification motion, the family law master
shall forward a copy of the motion and of any
relevant evidence and shall notify the circuit
judge in writing whether good cause exists for
voluntary recusal. The circuit judge may
grant or deny the disqualification motion or
hold an evidentiary hearing to resolve the
issues raised. Until the issue of
disqualification is decided, the family law
master shall proceed no further in the
proceeding."
In this case, neither the family law master nor the
circuit judge had the benefit of the procedural rules for family
law. The family law master refused to disqualify herself upon a
motion to disqualify made by the respondent, Mr. Hendricks.
Because the statutory procedure under W. Va. Code, 48A-4-2(b), was
unclear as to what to do when a family law master rejects the
disqualification motion, Mr. Hendricks filed a writ of prohibition
in the Circuit Court of Wyoming County to prohibit the family law
master from further participation in the underlying divorce
proceeding. Mr. Hendricks alleged that the family law master had
exhibited a personal bias against him in the underlying
proceedings.See footnote 10
The circuit court, in an order entered July 13, 1992, did
not make any finding that the family law master exhibited bias
against Mr. Hendricks, but did order her disqualified "in order to
preserve an unquestionable, fair and impartial proceeding to all
involved."
The petitioner, Mrs. Hendricks, seeks the issuance of
this writ of prohibition to prevent the trial judge from ruling on
the motion to disqualify without first conducting an evidentiary
hearing.See footnote 11 Issuance of writs of prohibition are governed by W. Va.
Code, 53-1-1 (1923). And, as we have stated in Syllabus Point 2 of
State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977):
"A writ of prohibition will not
issue to prevent a simple abuse of discretion
by a trial court. It will only issue where
the trial court has no jurisdiction or having
such jurisdiction exceeds its legitimate
powers. W. Va. Code, 53-1-1."See footnote 12
We believe that either under W. Va. Code, 48A-4-2(b), or
the proposed Rules of Practice and Procedure for Family Law, the
trial court did not exceed its authority or abuse its discretion
when it disqualified the family law master. The petitioner asserts
that the trial court could not rule on this issue without first
holding an evidentiary hearing. We disagree. A circuit court may
grant or deny a motion to disqualify a family law master based upon
a verified motion to disqualify and any supporting evidence, or, at
its discretion, hold an evidentiary hearing to resolve the issues
raised by the disqualification motion. The decision of a circuit
court upon review of a motion to disqualify a family law master
will be affirmed by this Court absent an abuse of discretion.
Because the trial court had jurisdiction and did not
exceed or abuse its legitimate powers, we decline to issue a writ
in this case.
Writ denied.
Footnote: 1Both children were living with the respondent at that time.
Footnote: 2W. Va. Code, 48A-4-1(i), states, in pertinent part:
"A circuit court or the chief judge
thereof shall refer to the master the
following matters for hearing to be conducted
pursuant to section two [§ 48A-4-2] of this
article: Provided, That on its own motion or
upon motion of a party, the circuit judge may
revoke the referral of a particular matter to
a master if the master is recused, if the
matter is uncontested, or for other good
cause, or if the matter will be more
expeditiously and inexpensively heard by the
circuit judge without substantially affecting
the rights of parties in actions which must
be heard by the circuit court[.]"
This part of W. Va. Code, 48A-4-1(i) (1992), is now embodied in
W. Va. Code, 48A-4-6 (effective July 9, 1993).
Footnote: 3W. Va. Code, 48A-4-2(b), states:
"A master appointed under the
provisions of section one of this article
shall preside at the taking of evidence. The
functions of the master shall be conducted in
an impartial manner. A master may at any
time disqualify himself or herself. Upon
such disqualification, or upon the filing in
good faith of a timely and sufficient
affidavit of personal bias or other
disqualification of a master, the circuit
court or the chief judge thereof may appoint
a temporary master or the circuit court may
receive the evidence and determine the
matter."
The provisions of W. Va. Code, 48A-4-2(b) (1990), were not
included in the 1993 incarnation of the statute dealing with
family law master hearing procedures (W. Va. Code, 48A-4-9
(1993)) -- although the first sentence of W. Va. Code, 48A-4-2(b)
(1990), is included in W. Va. Code, 48A-4-9(b) (1993).
Footnote: 4For the full text of W. Va. Code, 48A-4-2(b), see note 3,
supra.
Footnote: 5Canon 3(E)(1)(a) of the Judicial Code of Ethics gives
guidance as to when a judge must disqualify himself or herself.
Canon 6(A), entitled "Application of the Code of Judicial
Conduct," makes clear the application of the Code to, inter alia,
family law masters. Canon 6(A) states:
"A. Anyone, whether or not a
lawyer, who is an officer of a judicial
system and who performs judicial functions,
including but not limited to Justices of the
Supreme Court of Appeals, Circuit Judges,
Family Law Masters, Magistrates, Mental
Hygiene Commissioners, Juvenile Referees,
Special Commissioners and Special Masters, is
a judge within the meaning of the Code."
Although family law masters are made exempt from certain
provisions of the Code by virtue of Canon 6, Canon 3(E)(1)(a), is
not among the provisions from which they are exempt. Canon
3(E)(1)(a) states:
" E. Disqualification.
"(1) A judge shall disqualify
himself or herself in a proceeding in which
the judge's impartiality might reasonably be
questioned, including but not limited to
instances where:
(a) the judge has a
personal bias or prejudice
concerning a party or a party's
lawyer, or personal knowledge of
disputed evidentiary facts
concerning the proceeding[.]"
We note that in regard to the foregoing, we have ruled
that a judge is not obligated to disqualify himself or herself
merely because he or she has made a legal error. An intent to
prejudice a party must be shown, as stated in Syllabus Point 1,
in part, of West Virginia Judicial Inquiry Commission v. Casto,
163 W. Va. 661, 263 S.E.2d 79 (1979): "Where a judge, with no
intent to prejudice the rights of a party, makes a legal error,
his act does not constitute a violation of . . . Canon 3 of the
Judicial Code of Ethics." See also In re McGraw, 178 W. Va. 415,
359 S.E.2d 853 (1987); In re Monroe, 174 W. Va. 401, 327 S.E.2d 163 (1985); In re Greene, 173 W. Va. 406, 317 S.E.2d 169 (1984).
Footnote: 6W. Va. Code, 48A-4-6, states:
"A person who alleges that he or
she will be adversely affected or aggrieved
by a recommended order of a master is
entitled to review of the proceedings. The
recommended order of the master is the
subject of review by the circuit court, and a
procedural action or ruling not otherwise
directly reviewable is subject to review only
upon the review of the recommended order by
the circuit court."
W. Va. Code, 48A-4-6 (1990), is now embodied in W. Va. Code,
48A-4-16(a) (1993).
Footnote: 7W. Va. Code, 48A-4-7 and -8 (1990), are now embodied in
W. Va. Code, 48A-4-17 and -18 (1993).
Footnote: 8W. Va. Code, 48A-4-10 (1990), is now embodied in W. Va.
Code, 48A-4-20 (1993).
Footnote: 9These rules were adopted by this Court on July 21, 1993, to
be effective on October 1, 1993. Our authority to adopt
procedural rules for family law masters is contained in W. Va.
Code, 48A-4-11 (1986), which, in relevant part, states:
"Further, the Legislature
anticipates that the procedural rule-making
power of the supreme court of appeals
provided for in the Judicial Reorganization
Amendment of 1974 to the West Virginia
Constitution and in section four [§ 51-1-4],
article one, chapter fifty-one of this code
may be utilized, so that the portions of this
legislation relating to pleading, practice
and procedure shall have force and effect
only as rules of court remain in effect unles
and until modified, suspended or annulled by
rules promulgated by the supreme court of
appeals."
The reorganization of provisions of W. Va. Code, 48A-4-1, et seq., in 1993 left intact the foregoing authority granted to the Supreme Court of Appeals to promulgate rules of practice and procedure for family law masters. W. Va. Code, 48A-4-5 (1993). Footnote: 10Under the new procedural rules, a prohibition proceeding would not be proper. Once a family law master declines to make a voluntary recusal, then the recusal motion must be sent to the circuit court for an ultimate ruling. Footnote: 11The circuit judge did hold a hearing with the involved attorneys. However, no evidence was taken on the disqualification issue. Footnote: 12See also Peery v. Davis, 135 W. Va. 824, 832, 65 S.E.2d 291, ___ (1951); Syllabus, Eary v. Comer, 107 W. Va. 540, 149
S.E. 608 (1929); Sidney C. Smith Corp. v. Dailey, 136 W. Va. 380, 67 S.E.2d 523 (1951) (Syllabus: "The extraordinary remedy of prohibition is not available to prevent proceeding in a law action pending in a court which has jurisdiction of the subject matter and of the parties litigant, and there is no clear showing that such court has exceeded its legitimate powers.").
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