CHARLESTON – Why do we need an Intermediate Family Court of Appeals to review all Family Court decisions?
The West Virginia Supreme Court of Appeals’ Website, Quick Reference Facts for 2019 (2020 was not available at this writing), provides an interesting insight. The facts are: New appeal filings for Domestic Relations, including child abuse and neglect, made up 33 percent (304) of all appeals filed, while new appeals for other areas of the law, such as criminal, civil and administrative were much lower: 24 percent (220), 23 percent (216) and 20 percent (189), respectively.
Yet, in its 2020 Spring and Fall terms, the Supreme Court issued a cumulative total of 937 opinions and decisions, of which, there were only 25 family-domestic rulings or a dismal 2.7 percent for the combined terms. Lest Covid-19 be put forth as an excuse for a relatively low clearance rate and review of domestic relations cases, that same site shows that during the non-COVID Fall 2019 term of the Supreme Court only 21 out of 253 (8.3 percent) decided cases were classified as family law matters.
Perhaps a more telling and more nearly clear picture can be made of the important part that family law cases play in the West Virginia legal landscape when one notes, in reviewing the Supreme Court’s 2019 Annual Report for Circuits Courts, that across the 55 Counties of the State, new filings of family law cases (24,767) overwhelmingly led civil cases filings as second at 22,432, and criminal cases were a distant third at a 12,021 total.
What do these admittedly dry mathematical figures really tell us?
Firstly, sitting around the dinner table, family law issues such as divorce, child custody, grandparent visitation, LGBTQ fairness, and domestic violence affect more families, more people, more average citizens, more hard-working residents, more unappreciated teachers, and more professionals and lunch-bucket workers alike, than the resolutions of big corporations, car wrecks, arsons, boundary disputes and the petty thefts of porch pirates.
Secondly, these statistics inconveniently tug at a shroud that is being steadily pulled away: that family courts, and specifically, the vital work that they do, is often regarded as bothersome. Generally, the upper judiciaries view family courts and domestic issues with disdain, even contempt. Why is this? The truth is that many up-the-line appellate personages have little or negligible practical experience in the field of family law.
Could any of these appellate judges or justices even run a child support formula? Still, they are called upon to pass on child-related issues. The obvious result to the reader is that the most important case in your and your child’s life is being decided on appeal by many judicial officers who never tried a child custody case in their professional lives.
The principal reason, though, is family disputes are distasteful, sordid, emotional, time-consuming, down-in-the-dirt and never-ending events. Raw human beings and good people at their worst are mercilessly showcased. These cases do not have the glamour or the prestige or the removed abstraction of regressive tax theories, or violated constitutional rights, or corporate take-overs. One fact, however, is without meaningful debate – no one can deny their prevalence or their importance.
So, what has this to do with an intermediate appellate court? In the following paragraphs, I speak for no group or persons or Family Court judges other than myself. It is my opinion only for the good of family law in West Virginia.
As in prior years, the advantages, cost, and feasibility of establishing an intermediate appellate court, like the specter of Marley’s ghost, have regularly arisen before the West Virginia Legislature. Although I do not pretend to articulate a position or the merits or lack of merits of the proposition, I do find that if the measure were to be adopted, one feature of a prior version had (and new iterations have) a very appealing aspect in relation to, and as a potential remedy for, the current disrepute in which family courts are now held, and the attendant delays in family appeal dispositions.
During the 2018 Legislative session, SB 341 was offered but ultimately defeated, which provided for an intermediate appellate court to have, among other jurisdictions, the first appellate review of Family Court decisions, thereby passing over and revising the current structure that requires an initial appeal be made to the county Circuit Courts, who already have heavy criminal and civil dockets.
In short, one delay-laden step, along with the potential of a remand (sending it back to the family court for some reason), was taken out of the appeal process by the SB 341 of 2018. The advantage of the SB 341 proposal was that any appeal after the Family Court ruling would take the family court decision to the state, rather than county, level; and presumably, the intermediate appellate court could render a quicker decision.
Simply stated, the intermediate appellate court, sitting in two geographical divisions in the State and using a total of six justices, would be hearing appeals only, and not in addition to, multiple jury and non-jury trials with which the circuit courts must deal on a daily basis. Under any 2021 legislative bill comparable to SB 341, such as the recently enrolled SB 4 (2/10/2021) and SB 275 (2/13/21), the right to make a final appeal to the West Virginia Supreme Court, as it is now, would remain intact, but the appellate load to the West Virginia Supreme Court would be invariably lessened, and faster family closure on domestic cases could thereby be achieved.
Douglas is a Family Court judge in Kanawha County and a former divorce attorney.
