Background
In October 2024, a Cabell County magistrate court issued a six-month personal safety order (PSO) against A.H. based on findings that she had stalked, harassed, and threatened respondent B.K. and B.K.’s family members. A.H. appealed to the Circuit Court of Cabell County, which conducted a de novo hearing at which both self-represented parties appeared, testified, and presented evidence. B.K. testified that A.H. would linger outside her home and make threats of physical harm against her and her family. A.H. denied the allegations and submitted text messages she claimed showed that B.K. had harassed her.
The circuit court found that both parties had been harassing each other but concluded, based on credibility determinations, that A.H. had threatened to harm B.K. and had stalked B.K. and her children, placing B.K. in reasonable fear of bodily harm in violation of West Virginia Code § 53-8-4(a)(3). On November 12, 2024, the circuit court affirmed the PSO and dismissed A.H.’s appeal. A.H. subsequently filed two motions for reconsideration — the first challenging evidentiary sufficiency, and the second asserting that newly discovered security footage from outside the magistrate court’s hearing was material — both of which the circuit court denied after reviewing the video and the record.
A.H. then appealed to the Supreme Court of Appeals, arguing that the evidence was insufficient and not credible, that the circuit court failed to consider all the evidence including the parties’ hostile history, and that the court erred in denying her second reconsideration motion without properly considering the new video evidence. Although the PSO had expired by the time of appellate review, the court exercised its discretion to reach the merits because PSOs are of short duration and thus capable of evading appellate review, and because A.H. alleged collateral consequences in the form of legal fees incurred defending against an arrest for an alleged PSO violation.
The Court’s Holding
The Supreme Court of Appeals unanimously affirmed the circuit court’s November 12, 2024, order in a memorandum decision. Applying a deferential standard of review — abuse of discretion for the final order and disposition, clear error for factual findings, and de novo for legal questions — the court held that the circuit court had ample evidence to find by a preponderance of the evidence that A.H. committed acts of stalking and threatening under West Virginia Code § 53-8-4(a)(3), and that B.K. had a reasonable apprehension of continued unwanted contact, satisfying the statutory requirements for a PSO under West Virginia Code §§ 53-8-7(a)(2)(A)(i) and (ii).
The court declined to reweigh the evidence or disturb the circuit court’s credibility determinations, reiterating that assessing witness credibility is the exclusive province of the trier of fact. A.H.’s argument that the circuit court failed to consider all the evidence was rejected; the court’s ruling against A.H. did not, by itself, demonstrate that the evidence was ignored. The court also waived A.H.’s challenge to the admission of allegedly perjured testimony because she failed to object at the circuit court level, and it rejected her argument that West Virginia Code § 56-6-1 imposed a duty on the court to subpoena additional evidence.
As to the denial of A.H.’s second reconsideration motion, the court held that because the motion was filed outside the ten-day window then applicable under Rule 59(e), it was properly treated as a Rule 60(b) motion. Under that rule, newly discovered evidence must be evidence that could not have been discovered in time to move for a new trial with reasonable diligence. The circuit court had explicitly reviewed the security footage before denying the motion, and the Supreme Court found no error in its conclusion that the earlier ruling stood.
Key Takeaways
- A PSO under West Virginia Code § 53-8-7(a)(2)(A) requires proof by a preponderance of the evidence that the respondent committed a specified act — here, repeated credible threats of bodily injury constituting stalking under § 53-8-4(a)(3) — and that the petitioner has a reasonable apprehension of continued unwanted contact.
- Appellate courts will not reweigh evidence or disturb credibility determinations made by the trier of fact; a ruling against a party does not establish that the court failed to consider that party’s evidence.
- A motion for reconsideration filed outside the ten-day limit (under the version of Rule 59(e) in effect before the January 1, 2025 amendment extending it to 28 days) is treated as a Rule 60(b) motion, requiring the movant to show, among other grounds, newly discovered evidence that could not have been found with reasonable diligence.
- Issues arising under PSOs — which are short in duration — may be decided on the merits even when technically moot, where they are capable of repetition yet evading review or where collateral consequences exist.
Why It Matters
This decision reinforces the deference West Virginia appellate courts afford to trial-court credibility findings in PSO proceedings, making it difficult for respondents to obtain reversal by simply arguing on appeal that the evidence was unpersuasive or that the opposing party lied. Practitioners representing PSO respondents should understand that the battleground is the evidentiary hearing itself — not a subsequent appellate re-weighing of the facts.
The case also provides a practical reminder about post-judgment motion timing. Under the version of Rule 59(e) in effect through December 31, 2024, the ten-day filing window controlled whether a reconsideration motion was treated under the more forgiving Rule 59(e) standard or the stricter Rule 60(b) standard. Although Rule 59(e) was amended effective January 1, 2025, to allow 28 days, litigants in cases governed by the old rule — and those handling newly filed matters — should be attentive to which version applies and what it demands.