Benjamin J. v. Kristina J. ( 2020 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Benjamin J., FILED
Defendant Below, Petitioner
June 3, 2020
EDYTHE NASH GAISER, CLERK
vs.) No. 18-1114 (Jefferson County 18-DV-80) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Kristina J.,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Petitioner Benjamin J., 1 self-represented, appeals the November 28, 2018, order of the
Circuit Court of Jefferson County denying his appeal from the October 5, 2018, order entered by
the Family Court of Jefferson County denying a renewed motion for reconsideration of a one-year
domestic violence protective order (“DVPO”) entered by the family court on June 13, 2018.
Respondent Kristina J. did not file a response. 2
The 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 that petitioner’s appeal has been rendered moot. For these reasons, a
memorandum decision dismissing the appeal is appropriate under Rule 21 of the Rules of
Appellate Procedure.
1
By scheduling order entered on December 27, 2018, this case was deemed confidential
pursuant to Rule 40(c) of the West Virginia Rules of Appellate Procedure. See W. Va. Code § 48-
1-303(b) (providing that the record in a domestic relations matter is confidential).
2
Pursuant to Rule 10(d) of the West Virginia Rules of Appellate Procedure, if a respondent
fails to respond to an assignment of error, we will assume that the respondent agrees with
petitioner’s view of the issue. However, we will accept a party’s concession only after a proper
analysis shows that it is correct. See Syl. Pt. 8, State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991).
Here, for reasons discussed below, we dismiss petitioner’s appeal as moot.
1
The parties are married but separated. 3 Petitioner lives in Massachusetts, while respondent
and her minor child, petitioner’s stepdaughter, reside in Jefferson County, West Virginia. On May
29, 2018, respondent filed a domestic violence petition in the Magistrate Court of Jefferson
County. In the petition, respondent alleged that, while on the phone with respondent’s child,
petitioner told the child that she should open the door for a “playmate” he was sending to
respondent’s residence. Shortly thereafter, an adult male whom respondent did not know arrived
outside and walked around respondent’s house several times. Respondent requested a DVPO
against petitioner with a duration of one year. In a May 29, 2018, order, the magistrate court
granted respondent an emergency protective order and scheduled the hearing for the DVPO before
the Family Court of Jefferson County for June 6, 2018. The family court hearing was continued to
June 13, 2018.
Respondent appeared at the June 13, 2018, hearing, but petitioner failed to appear.
Respondent testified in support of her petition. By order entered June 13, 2018, the family court
found that petitioner had “due notice” of the hearing and that it had personal jurisdiction of both
parties. The family court further found that petitioner placed respondent “in reasonable
apprehension of physical harm.” Accordingly, the family court granted respondent’s request for a
one-year DVPO, ruling that the DVPO would expire at midnight on June 13, 2019.
In a letter dated June 26, 2018, petitioner informed the family court that he was incarcerated
in Massachusetts at the time of the June 13, 2018, hearing. By order entered on July 20, 2018, the
family court construed petitioner’s letter as a motion for reconsideration under West Virginia Code
§ 51-2A-10 and set a hearing on the motion for August 8, 2018. 4 Petitioner failed to appear for
the August 8, 2018, hearing. Accordingly, the family court dismissed petitioner’s motion for
reconsideration on that same date. On October 4, 2018, petitioner filed a renewed motion for
reconsideration, informing the family court that he was re-incarcerated in Massachusetts at the
time of the August 8, 2018, hearing. By order entered on October 5, 2018, the family court denied
the renewed motion for reconsideration pursuant to West Virginia Code § 51-2A-10(b), finding
that the motion was not filed within a “reasonable time” and there was a need to achieve finality
in the parties’ case. Petitioner appealed the family court’s October 5, 2018, order to the Circuit
Court of Jefferson County, which denied the appeal by order entered on November 28, 2018.
Petitioner filed the instant appeal of the circuit court’s November 28, 2018, order on
3
According to petitioner, he filed a divorce action in Massachusetts but failed to obtain
successful service on respondent in West Virginia.
4
Rule 25 of the West Virginia Rules of Practice and Procedure for Family Court provides,
in pertinent part, that “[a]ny party may file a motion for reconsideration of a family court order as
provided in [West Virginia Code] § 51-2A-10.” In Ray v. Ray, 216 W. Va. 11, 14 n.13, 602 S.E.2d
454, 457 n.13 (2004), overruled on other grounds, Allen v. Allen, 226 W. Va. 384, 701 S.E.2d 106
(2009), we found that a motion pursuant to West Virginia Code § 51-2A-10 has replaced a motion
for relief from judgment under Rule 60(b) of the West Virginia Rules of Civil Procedure in family
court.
2
December 26, 2018, and later filed his brief and appendix on March 28, 2019. 5 Thereafter, the
DVPO expired by its own terms on June 13, 2019.
“‘Moot questions or abstract propositions, the decision of which would avail nothing in the
determination of controverted rights of persons or of property, are not properly cognizable by a
court.’ Syl. pt. 1, State ex rel. Lilly v. Carter, 63 W. Va. 684, 60 S.E. 873 (1908).” Syl. Pt. 1, State
ex rel. McCabe v. Seifert, 220 W. Va. 79, 640 S.E.2d 142 (2006). On appeal, petitioner argues that
the family court erred in denying his renewed motion for reconsideration and that the DVPO
against him should be vacated. Based on our review of the record, even if petitioner is correct that
the DVPO was entered erroneously, we find that there is no need to vacate the DVPO due to its
expiration. 6 Therefore, we dismiss petitioner’s appeal as moot.
Dismissed as moot.
ISSUED: June 3, 2020
CONCURRED IN BY:
Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison
5
On April 1, 2019, petitioner filed a motion to supplement the appendix. We deny this
motion as moot given our dismissal of petitioner’s appeal.
6
As relief, petitioner requests the expungement of the DVPO from his record in addition to
its vacatur. However, petitioner fails to provide any argument or legal authority in support of that
request. See State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although we
liberally construe briefs in determining issues presented for review, issues which are not raised,
and those mentioned only in passing but are not supported with pertinent authority, are not
considered on appeal”).
3