Background
J.B. filed a petition for a personal safety order (“PSO”) against A.H. in Cabell County magistrate court. The magistrate denied the petition, concluding that J.B. should have sought a domestic violence protective order (“DVPO”) instead. On appeal, however, the circuit court held a de novo hearing and determined that the DVPO framework did not apply because the parties were not family or household members as defined under West Virginia Code § 48-27-204 and thus fell outside the statutory definition of domestic violence.
At the de novo hearing, J.B. testified that she received multiple threatening text messages from A.H. and was informed by a third party that A.H. had threatened to kill her. A.H. denied the conduct. The circuit court found that A.H. had stalked J.B. and placed her in reasonable fear of bodily harm — conduct constituting an act under West Virginia Code § 53-8-4(a)(3) — and reversed the magistrate’s denial, remanding for entry of a six-month PSO against A.H.
A.H. filed a timely motion for reconsideration arguing that the evidence was insufficient, that the findings were degrading, and that the evidence was inauthentic. The circuit court denied the motion, noting in part that A.H. had conceded the PSO was appropriate. A.H., proceeding pro se, then appealed to the Supreme Court of Appeals. Although the PSO expired during the pendency of the appeal, the court exercised its discretion to reach the merits because PSOs are frequently too short-lived to obtain appellate review and because A.H. alleged collateral consequences including legal fees and impact on a separate family court proceeding.
The Court’s Holding
The Supreme Court of Appeals unanimously affirmed the circuit court’s November 22, 2024 order denying A.H.’s motion for reconsideration. The court first clarified the procedural posture: because A.H.’s motion for reconsideration was filed within ten days of the circuit court’s November 13 order, it was treated as a motion to alter or amend judgment under Rule 59(e) of the West Virginia Rules of Civil Procedure. As a consequence, A.H.’s right to appeal was limited to the three grounds raised in that motion; issues not included in the Rule 59(e) motion — such as alleged judicial misconduct, failure to subpoena evidence, and newly obtained security footage — were time-barred and not addressed.
On the merits, the court rejected A.H.’s contention that the evidence was insufficient because it lacked “authenticated proof.” Under West Virginia Code §§ 53-8-7(a)(2)(A)(i) and (ii), a PSO may issue upon a finding by a preponderance of the evidence that the respondent committed a qualifying act and that the petitioner has a reasonable apprehension of continued unwanted contact. The court held that the circuit court heard sufficient evidence to satisfy that standard, finding that A.H.’s stalking conduct placed J.B. in reasonable fear for her safety.
The court also rejected A.H.’s argument that the PSO required proof by clear and convincing evidence, noting that this position was “directly contradicted by the controlling statute.” The court further declined to disturb the circuit court’s credibility determinations, reiterating the well-established principle that appellate courts do not reweigh evidence or reassess witness credibility — those functions belong exclusively to the trier of fact.
Key Takeaways
- A personal safety order under West Virginia Code § 53-8-7 requires proof only by a preponderance of the evidence — not clear and convincing evidence — that the respondent committed a qualifying act such as stalking and that the petitioner reasonably fears continued unwanted contact.
- A motion for reconsideration filed within ten days of judgment is treated as a Rule 59(e) motion to alter or amend, and an appeal from the denial of that motion is limited to only those issues raised in the motion; errors not included are procedurally defaulted if the underlying order was not separately and timely appealed.
- Appellate courts will not reweigh evidence or reassess the credibility of witnesses — challenges to the authenticity or weight of evidence presented to the circuit court will not succeed on appeal absent a showing of clear error.
- West Virginia appellate courts retain discretion to decide technically moot cases involving PSOs given their short duration and the potential for collateral consequences such as effects on related family court proceedings.
Why It Matters
This decision reinforces the relatively accessible evidentiary threshold for obtaining personal safety orders in West Virginia, confirming that stalking victims who do not share a domestic relationship with their alleged harasser can seek protection under the PSO statute rather than the domestic violence framework — and that a preponderance of the evidence, not a heightened standard, governs. Practitioners representing petitioners or respondents in PSO proceedings should take note that the statute’s plain text controls the burden of proof regardless of how the parties frame their arguments.
The procedural guidance on Rule 59(e) motions is equally significant for litigants and attorneys. By holding that an appeal from a denied reconsideration motion is cabined to the issues raised in that motion, the court underscores the importance of preserving all intended appellate arguments in the Rule 59(e) filing itself — or, preferably, perfecting a timely direct appeal from the underlying order. Failure to do so forfeits the right to raise additional errors, even serious ones such as claims of judicial misconduct.