                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS



T.W.J.,
Respondent Below, Petitioner
                                                                               FILED
                                                                           October 6, 2016
                                                                               released at 3:00 p.m.
vs) No. 15-0817 (Berkeley County Case Number 14-DV-472)                      RORY L. PERRY, II CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
L.S.A.,
Petitioner Below, Respondent



                               MEMORANDUM DECISION

               The petitioner, T.W.J.1 (hereinafter “the petitioner”), by counsel Gregory A.
Bailey, Esq., and J. Daniel Kirkland, Esq., appeals an order of the Circuit Court of Berkeley
County, West Virginia, denying his appeal from family court. The petitioner seeks to
overturn a ruling granting a protective order against him, despite the fact that the protective
order has already expired. He contends that the existence of the protective order has affected
his ability to obtain employment as a law enforcement officer. The respondent, L.S.A.
(hereinafter “the respondent”), filed a pro se response.

              Upon consideration of the standard of review, the briefs, and the record
presented, this Court finds no substantial question of law and no prejudicial error, and we
consequently affirm the holding of the circuit court. Based upon our decision that this case
does not present a new question of law, a memorandum decision is appropriate under Rule
21 of the West Virginia Rules of Appellate Procedure.

               The petitioner and respondent were involved in a two-year romantic
relationship. On December 29, 2014, the respondent filed a domestic violence petition
against the petitioner, seeking an emergency protective order. She alleged that he fired a gun


       1
          Consistent with our long-standing practice in cases with sensitive facts, we use
initials to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 254,
773 S.E.2d 20 (2015); Melinda H. v. William R., II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).

                                               1

into the air as a result of an argument between them and forced her into his car against her
will on October 12, 2014.

               By order dated December 29, 2014, the magistrate court entered an emergency
protective order against the petitioner. On January 21, 2015, the family court held a final
hearing on the emergency protective order, in which both parties presented evidence. The
family court found that the respondent’s evidence established the firing of the gun, the forced
entry into the car, the threats to burn her belongings, the petitioner’s stalking and planting
drugs in her car, and his attempt to videotape her in compromising positions while in bed
with him. The petitioner denied these allegations and indicated that he was over 700 miles
away when some of the incidents allegedly occurred. The family court found the
respondent’s version of the disputed events to be more credible and held that the petitioner
had committed domestic violence by placing the respondent in reasonable apprehension of
physical harm and creating fear of physical harm by harassment, stalking, psychological
abuse, or threatening acts. A protective order was consequently entered.

               On January 30, 2015, the petitioner appealed to the circuit court. On April 21,
2015, the protective order expired, and on May 18, 2015, the circuit court denied the
petitioner’s appeal. That denial was based upon the merits of the appeal, rather than upon
any assertion that the appeal was moot due to expiration of the protective order. The
petitioner now appeals to this Court, asserting (1) the appeal is not moot; and (2) the
decision of the circuit court regarding the commission of domestic violence and the issuance
of a protective order should be reversed.

              The matters at issue in this case require this Court’s examination of a circuit
court’s review of a family court order. As established in the syllabus of Carr v. Hancock,
216 W.Va. 474, 607 S.E.2d 803 (2004),

                     In reviewing a final order entered by a circuit court judge
              upon a review of, or upon a refusal to review, a final order of a
              family court judge, we review the findings of fact made by the
              family court judge under the clearly erroneous standard, and the
              application of law to the facts under an abuse of discretion
              standard. We review questions of law de novo.

Likewise, as specifically applicable to a domestic violence petition review, this Court has
explained:

                     Upon an appeal from a domestic violence protective
              order, this Court reviews the circuit court’s final order and

                                              2

              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);
see also W.Va. Code § 48-27-510(d) (2014). Moreover, this Court also stated as follows in
syllabus point two of John P.W., “[t]o allow proper judicial review, a family court judge who
issues a domestic violence protective order is required to make factual findings which
describe the acts of domestic violence that have been established by the evidence presented
and to identify which statutory definition of domestic violence such facts demonstrate.” 214
W.Va. at 703, 591 S.E.2d at 261.

               Upon review of the present case by this Court, we agree with the petitioner’s
first contention and find that the issue of the propriety of the protective order is not moot and
should be considered on appeal, given his timely appeal from family court to circuit court.
As this Court has consistently held,

                      Three factors to be considered in deciding whether to
              address technically moot issues are as follows: first, the court
              will determine whether sufficient collateral consequences will
              result from determination of the questions presented so as to
              justify relief; second, while technically moot in the immediate
              context, questions of great public interest may nevertheless be
              addressed for the future guidance of the bar and of the public;
              and third, issues which may be repeatedly presented to the trial
              court, yet escape review at the appellate level because of their
              fleeting and determinate nature, may appropriately be decided.

Syl. Pt. 1, Israel by Israel v. W. Va. Secondary Sch. Activities Comm’n, 182 W.Va. 454, 455,
388 S.E.2d 480, 481 (1989). In accordance with the guidance enunciated in Israel, this Court
finds sufficient collateral consequences will result from a determination of this question, so
as to justify consideration of the appeal in this Court.2 The petitioner is a retired military
officer and has completed training as a certified police officer in the State of Georgia.
According to the petitioner, the entry of the protective order has greatly interfered with his
ability to obtain employment. Moreover, the petitioner timely filed his appeal to the circuit


       2
       See also Katherine B.T. v. Jackson, 220 W.Va. 219, 640 S.E.2d 569 (2006)
(permitting appeal of matter involving domestic violence petition, even though technically
moot because protective order had expired).

                                               3

court, prior to the expiration of the protective order. The circuit court addressed the merits
of this case, and this Court will review that determination in this appeal.

               Upon review of the merits of the petitioner’s appeal, however, this Court finds
no error in the lower court’s determinations. Although the petitioner strenuously argues that
the family court based its findings upon insufficient evidence of domestic violence and failed
to enter findings of fact justifying its order, this Court’s review of the record demonstrates
ample basis upon which the family court and circuit court decisions could be premised.
Pursuant to West Virginia Code § 48-27-501(a) (2014), a court shall enter a protective order
“if it finds, after hearing the evidence, that the petitioner has proved the allegations of
domestic violence by a preponderance of the evidence.”

               The family court judge observed the demeanor of the witnesses and heard their
testimony. The family court ultimately deemed the respondent’s contentions plausible and
found credible evidence that the gun was discharged during the course of the October 12,
2014, incident. Further, the family court entered sufficient findings of fact and conclusions
of law, finding that the petitioner forced the respondent into the car against her will and that
the respondent “is reasonably fearful for her safety.” While acknowledging that the timing
of the petition was suspect, based upon money owed by the respondent to the petitioner, the
family court ultimately found the respondent’s version of the facts surrounding the incident
to be veritable.

               On appeal to the circuit court, the court entered an order finding that the family
court neither clearly erred nor abused its discretion in granting the protective order. On
appeal to this Court, the petitioner attempts to minimize the impact of the lower courts’
findings and the respondent’s arguments by asserting that the parties engaged in an
intermittent relationship and continued to maintain a physical relationship after the domestic
violence allegedly occurred. He also reiterates all the evidence he presented below, arguing
that the respondent could not truly have been in fear of him because he lived over 700 miles
away by the time the respondent filed her petition. He contends that the respondent waited
approximately two months between the alleged incident and her request for a protective
order, thus suggesting improper motivation by the respondent. He further asserts the
respondent’s reason for seeking the protective order stems from her obligation to repay him
money. Again, as he asserted in the lower court, the petitioner also argues that the absence
of actual evidence of stalking should have inured to his benefit, and that he was in the State
of Indiana on the day of the alleged stalking.

               The respondent has consistently disputed the petitioner’s assertions and
contends that she was not motivated to file her petition based upon any payments owed to the
petitioner; that someone planted a pouch of illegal drugs in her car on two occasions; and that

                                               4

the petitioner attempted to make a video recording of her in bed, without her consent. She
also reiterates her allegations that the petitioner fired a gun during a domestic dispute and
forced her into a car against her will.

                This Court’s review of this case reveals thorough evaluations by the family
court and circuit court. Evidence was presented, and sufficient findings of fact and
conclusions of law were entered. The crux of the petitioner’s alleged error goes to the lower
courts’ assessment of the parties’ credibility. This Court is loath to disturb such
determinations on appeal and we decline to do so in this case. Our review of the case
indicates that the evidence supports the respondent’s allegations and the findings of the lower
courts.

              For the foregoing reasons, the circuit court’s May 18, 2015, order is hereby
affirmed.


                                                                                    Affirmed.




ISSUED: October 6, 2016


CONCURRED IN BY:

Chief Justice MENIS E. KETCHUM
Justice ROBIN JEAN DAVIS
Justice BRENT D. BENJAMIN
Justice MARGARET L. WORKMAN
Justice ALLEN H. LOUGHRY II




                                              5

