Background
Tyler E. and Christina E. are divorced co-parents of a son who was approximately seven years old at the time of the underlying events. Christina filed a domestic violence petition alleging that Tyler had used their son to manipulate the custody pickup schedule, slammed a car door in the child’s face during an exchange, and clung to the front of her car as she attempted to drive away. She also alleged a pattern of verbal abuse and rage. In December 2023, a Kanawha County magistrate issued an emergency protection order, and the family court followed with a ninety-day domestic violence protective order (DVPO) prohibiting Tyler from visiting the child until further order of the court.
The family court also referred the matter to the circuit court under Rule 48 of the West Virginia Rules of Practice and Procedure for Family Court based on the abuse and neglect allegations. The Department of Human Services investigated and ultimately found the maltreatment allegations unsubstantiated. Meanwhile, Tyler timely appealed the DVPO to the Circuit Court of Kanawha County on December 18, 2023.
Without holding any hearing, the circuit court entered an order on January 16, 2024—nearly a month after the appeal was filed—affirming the family court’s DVPO. The circuit court stated that “a hearing is not necessary in this matter” and that the family court’s findings were neither clearly erroneous nor an abuse of discretion. Tyler, proceeding pro se, appealed to the Supreme Court of Appeals of West Virginia.
The Court’s Holding
The Supreme Court of Appeals vacated the circuit court’s January 16, 2024 order and remanded for further proceedings. The court held that the circuit court committed reversible error by affirming the DVPO without first conducting a hearing on Tyler’s appeal. West Virginia Code § 48-27-510(c) expressly provides that a petition for appeal from a domestic violence protective order “shall be heard by the court within ten days from the filing of the petition,” and Rule 19(a) of the West Virginia Rules of Practice and Procedure for Domestic Violence Civil Proceedings mirrors that command.
Relying on its prior decision in John P.W. ex rel. Adam W. v. Dawn D.O., 214 W. Va. 702, 591 S.E.2d 260 (2003), the court reaffirmed that the “shall be heard” language imposes a mandatory obligation on circuit courts to afford the appealing party an opportunity to appear and present argument in person. That obligation can be excused only if the appealing party affirmatively waives the hearing. Because Tyler never waived a hearing, the circuit court had no discretion to forgo one.
Having resolved the case on the hearing-requirement issue, the court declined to address Tyler’s remaining assignments of error, leaving those questions open for the circuit court on remand.
Key Takeaways
- A circuit court’s duty to hold a hearing within ten days of a DVPO appeal under W. Va. Code § 48-27-510(c) is mandatory, not discretionary — the court cannot simply rule on the papers and declare a hearing unnecessary.
- The only recognized exception to the hearing requirement is an affirmative waiver by the appealing party; absent such a waiver, skipping the hearing is reversible error regardless of the underlying merits.
- A DHS finding that maltreatment allegations are unsubstantiated does not automatically dissolve a DVPO; the circuit court must still conduct the required appellate hearing on the protective order itself.
- Pro se litigants appealing DVPOs retain the same procedural entitlements as represented parties, and courts must comply with mandatory hearing timelines even when the opposing party makes no appearance.
Why It Matters
This decision reinforces that procedural safeguards in domestic violence appeals are not mere formalities that courts may bypass in the interest of efficiency or judicial economy. By vacating the affirmance and demanding a proper hearing, the court signals that the right to be heard before a court upholds a significant restraining order — one that here also severed a father’s parenting time — carries real weight even in expedited domestic violence proceedings.
For practitioners, the case is a reminder to object promptly and on the record whenever a circuit court declines to schedule the mandatory hearing within the ten-day window. It also illustrates that an uncontested appeal (the respondent made no appearance before the Supreme Court) will not insulate a circuit court’s procedural error from reversal.