                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Anthony L.,
Respondent Below, Petitioner                                                       FILED
                                                                               January 13, 2020
vs) No. 18-0959 (Harrison County 18-DV-69-3)                                    EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Shelbi P.,
Petitioner Below, Respondent


                               MEMORANDUM DECISION

       Petitioner, Anthony L., by counsel J. Michael Benninger, appeals the order of the Circuit
Court of Harrison County, entered on September 19, 2018, that reversed an order of the family
court and effected measures to protect Respondent Shelbi P.1 Respondent appears by counsel
Molly Russell and Ira Clinton Adams, III.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of
the Rules of Appellate Procedure.

         On March 30, 2018, Shelbi P. filed a domestic violence petition asserting that her former
boyfriend, Anthony L., sexually assaulted her four days earlier. Ms. P.’s filing triggered the entry
of an emergency domestic violence protective order pursuant to West Virginia Code 48-27-403.
The Family Court of Harrison County conducted an evidentiary hearing, and subsequently entered
an order denying the petition for a protective order and terminating the emergency protective order.
Ms. P. appealed the denial to the Circuit Court of Harrison County, and the circuit court determined
that the family court failed to make the necessary findings of fact to support its order.
Consequently, it remanded the case to the family court to make those findings. On remand, the
family court heard argument but did not consider additional evidence. Again, the family court
denied the petition for a protective order and, again, Ms. P. appealed. In the second instance, the
circuit court reversed the family court’s denial and granted Ms. P.’s petition for a protective order.
Mr. L. appealed.



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         The circuit court’s domestic violence protective order, effective for ninety days, expired
under its own terms prior to the completion of this Court’s briefing schedule. No party has argued
that the appeal is moot, and we proceed to consider the merits of the appeal.
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         On appeal, Mr. L. presents five assignments of error: first, that the circuit court erred in
treating certain evidence differently than the family court had; second, that the circuit court erred
in finding that Mr. L. failed to rebut Ms. P.’s hearing testimony; third, that the circuit court erred
in determining that Mr. L. did not contest Ms. P.’s allegations or offer evidence contesting the
allegations; fourth, in finding, upon review of the recorded hearing, that Ms. P. testified credibly;
and fifth, that the circuit court erred in disregarding certain evidence presented by Mr. L., such as
receipts for gifts he purchased for Ms. P. at Victoria’s Secret (a well-known intimate clothing
retailer) the day prior to the assault. Our standard of review is: “Upon an appeal from a domestic
violence protective order, this Court reviews the circuit court’s final order and ultimate disposition
under an abuse of discretion standard. We review challenges to findings of fact under a clearly
erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 1, John P.W. ex rel. Adam
W. v. Dawn D.O., 214 W. Va. 702, 591 S.E.2d 260 (2003).

        We have extensively reviewed the appendix record on appeal in consideration of the
assignments of error described in petitioner’s brief, and find that the circuit court entered a cogent
and well-reasoned order thoroughly addressing each argument petitioner makes here. We
particularly note this passage, which is unassailable by evidence of even the most astounding
number of lingerie receipts:

       This [c]ourt finds that the [f]amily court was clearly erroneous in several of its
       findings of fact. First, the [f]amily [c]ourt found that [Ms. P.] told [Mr. L.] “no,”
       and “please stop” multiple times, and made no findings that contradicted her lack
       of consent. Accordingly, [Ms. P.] met her burden of showing by a preponderance
       of the evidence that an assault occurred. However, the [f]amily [c]ourt still was “not
       persuaded that [Mr. L.] has committed domestic violence. . . .”

In this state, “no means no.” We thus, like the circuit court before us, find support for entry of the
protective order in the very order that first denied it. The family court abused its discretion in
failing to so recognize.

        The circuit court’s “Order Reversing Judgment of Family Court and Granting Domestic
Violence Protective Order” summarizes the evidence presented by the parties below and addresses
the parties’ respective legal arguments. We have reviewed the parties’ briefs and legal arguments
concerning the assignments of error that each have raised, as well as the appendix record. We have
also reviewed the circuit court’s judgment utilizing the standard of review set forth above and find
that there is no clear error in the circuit court’s findings of fact and no abuse of discretion in its
ultimate disposition. Accordingly, we incorporate and adopt the circuit court’s findings and
conclusions as to the assignments of error raised in this appeal. The Clerk is directed to attach a
copy of the circuit court’s order entered on September 19, 2018, to this memorandum decision.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.


ISSUED: January 13, 2020

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CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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