State ex rel. Bess v. Berger
In State ex rel. Bess v. Berger, 203 W.Va. 662, 510 S.E.2d 496 (1998), the petitioner's counsel failed to submit proposed findings of fact within the thirty-day period set by the family law master.
Also, the petitioner asserted her exceptions to the family law master's ruling two weeks after the ten-day exception filing period had expired.
The circuit court refused to consider the exceptions and subsequently also refused to consider the petitioner's Rule 60(b) motion for relief from the final order.
The petitioner thereafter sought a writ of mandamus from this Court to compel the circuit court to consider her grounds for seeking modification of the recommended order.
The circuit court in Bess refused to consider the petitioner's exceptions for much the same reason that the circuit court below refused to grant relief to the appellant.
The circuit court took the position that it had no discretion with regard to Petitioner's late filing of exceptions and subsequent attempts at review before the circuit court due to the temporally constrictive language of West Virginia Code 48A-4-17(a).
The circuit court looked specifically to the statutory language that states: "Failure to timely file the petition shall constitute a waiver of exceptions, unless the petitioner, prior to the expiration of the ten-day period, moves for and is granted an extension of the time from the circuit court." W.Va. Code 48A-4-17(a). (Bess, 203 W.Va. at 665, 510 S.E.2d at 499.)
The Court rejected the circuit court's reasoning, granted the writ as moulded, and instructed the circuit court to hold a hearing on the merits of the petitioner's motion for relief under Rule 60(b).
Further, the Court opined that:
Since Rule 60(b) is routinely applied to a multitude of case scenarios involving time deadlines, there appears to be no sound basis for determining that it should not apply to this case merely based on the language of West Virginia Code 48A-4-17(a) that imposes a ten-day period, absent a request for an extension, for filing exceptions to family law master's recommended orders. (Bess, 203 W.Va. at 666-67 n.11, 510 S.E.2d at 500-01 n.11.)