David J. Riffle v. Shirley I. Riffle (now Miller)

          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2015 Term
                                   __________
                                                                      FILED
                                   No. 14-0042                      May 13, 2015
                                   __________                       released at 3:00 p.m.
                                                                    RORY L. PERRY II, CLERK
                                                                  SUPREME COURT OF APPEALS
                                                                      OF WEST VIRGINIA

                                DAVID J. RIFFLE,

                            Petitioner Below, Petitioner


                                         v.

                       SHIRLEY I. RIFFLE (now MILLER),

                          Respondent Below, Respondent


          ______________________________________________________

                 Appeal from the Circuit Court of Harrison County,

                            Honorable James A. Matish

                           Civil Action No. 12-D-459-5


                               AFFIRMED

         _______________________________________________________

                            Submitted: March 11, 2015

                               Filed: May 13, 2015



Jerry Blair, Esq.                             Shirley I. Miller
Clarksburg, West Virginia                     Pro Se
Counsel for Petitioner




JUSTICE LOUGHRY delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1. “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.” Syllabus, Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004).



              2. Pursuant to the provisions of West Virginia Code § 48-27-507 (2014), a

court is prohibited from entering a mutual protective order unless each party has filed a

petition asserting allegations of domestic violence against the other and established those

allegations by a preponderance of the evidence.
LOUGHRY, Justice:



                 The petitioner, David J. Riffle, appeals from the October 30, 2013, order of

the Circuit Court of Harrison County, through which the circuit court reversed the February

13, 2013, order of the Family Court of Harrison County with regard to the inclusion of a

mutual restraining order within the agreed final decree of divorce. The circuit court found

that the record was devoid of a proper evidentiary showing of abuse to support the issuance

of a mutual restraining order. As grounds for his appeal, Mr. Riffle argues that the circuit

court violated his right to enter into a contractual agreement. Maintaining that the parties

concurred that the entry of a joint restraining order was in their best interests, the petitioner

asserts that the trial court abused its discretion in setting aside the restraining order. In

responding, Ms. Miller disputes that a need for the restraining order was demonstrated to the

family court. She further disavows having agreed to the entry of an order directed at

governing the respective conduct of each of the parties.1 Upon careful review of the

applicable statutes in conjunction with the record of this case,2 we find that the trial court

did not commit error. Accordingly, the decision of the circuit court is affirmed.




       1
           See infra note 10.
       2
       We wish to acknowledge the amicus curiae brief submitted, in response to the
Court’s invitation, by the West Virginia University College of Law Clinical Law Program
and the joint amicus curiae brief submitted by Legal Aid of West Virginia and the West
Virginia Coalition Against Domestic Violence.

                                               1

                          I. Factual and Procedural Background

                The parties were married on December 30, 1988, and subsequently separated

on August 10, 2012. That same month, the petitioner filed a complaint against the

respondent seeking a divorce. He later filed a petition against the respondent requesting

protection from domestic violence, which resulted in the entry of an emergency protective

order.3 Due to the temporary agreement reached by the parties as to both the underlying

divorce action and the domestic violence petition, the protective order was terminated by

entry of an order on October 22, 2012.4 Through this ruling, the family court dismissed the

pending domestic violence case and issued a mutual no contact order, which directed both

parties to refrain from contacting or otherwise communicating with the opposing party other

than as necessary for the court proceedings.



                By entry of an order on February 19, 2013, the parties were divorced pursuant

to an agreed final order of divorce. Included in the agreement, is the following proviso:

                A mutual restraining order is entered in this matter such that
                neither party may have any direct or indirect contact with the
                other party, nor may either party interfere with the other party’s
                quiet enjoyment of their life, and the willful failure to abide by
                this ORDERED provision shall subject the violating party to
                contumacious contempt of this Court.


       3
           This order was entered by the family court on August 20, 2012.
       4
       In this order, the family court found that the petitioner had voluntarily dismissed the
domestic violence petition.

                                                2

                 In May 2013, the petitioner sought to have Ms. Miller declared to be in

contempt of court with regard to the provisions of the mutual restraining order. He asserted

that Ms. MiIler left a message on his answering machine on one occasion.5 In addition, the

petitioner avowed that Ms. Miller contacted a long-time friend of his, as well as his pastor,

and requested that both of these individuals contact Mr. Riffle on her behalf.6



                 Following a hearing on August 6, 2013, the family court found Ms. Miller in

contempt of court with regard to her attempts at contacting the petitioner.7 Through its

order, the family court permitted Ms. Miller to purge herself of the contempt ruling by

refraining from any direct or indirect contact with the petitioner during the next two years.



                 On September 3, 2013, Ms. Miller filed a pro se petition for appeal,

purportedly seeking to challenge the contempt ruling as well as the inclusion of a mutual

restraining order in the final order of divorce.8 On September 27, 2013, the circuit court


       5
       According to the petition, the subject of the message was Ms. Miller’s feelings
toward the petitioner, including the fact that she missed him.
       6
        While the petitioner asserted additional facts in his petition seeking contempt, those
allegations are not relevant to the issue of the mutual restraining order as they concern the
resolution of the sale and distribution of marital property.
       7
        The contempt ruling, entered on August 27, 2013, also addressed Ms. Miller’s act
of contacting a realtor other than the individual previously selected by the petitioner.
       8
           The pro se filing by Ms. Miller is admittedly imprecise in that it purports to be an
                                                                                 (continued...)

                                                3

held a hearing on the respondent’s amended petition for appeal. Through its ruling entered

on October 30, 2013, the circuit court affirmed the entry of the nunc pro tunc order9 but

reversed the family court’s issuance of a mutual restraining order through the final decree

of divorce. It is the circuit court’s decision to dissolve the mutual restraining order that the

petitioner now appeals.



                                    II. Standard of Review

                 Our review of this matter is governed by the standard we adopted 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.

Bearing this standard in mind, we proceed to determine whether the trial court committed

error in setting aside the mutual restraining order.




       8
        (...continued)
appeal of the nunc pro tunc order that was entered on the same date as the contempt ruling.
That ruling did nothing other than to correct a typographical error pertaining to which party
was charged with the responsibility of placing the former marital home on the market.
       9
           See supra note 8.

                                                 4

                                       III. Discussion

              The regular practice of inserting language in domestic relations orders aimed

at restricting the conduct of each party towards the other is at the center of this appeal.10

While the need for specific directives aimed at protecting individuals is not itself in question,

the issuance of mutual protective orders is clearly governed by statute. See W.Va. Code §

48-27-507 (2014). This case involves the issuance of an order outside the requirements of

West Virginia Code § 48-27-507, a statute aimed at jointly restricting the conduct of the

parties in the aftermath of proven allegations of domestic violence. In recognition of the

existing tension between the practices employed by the family court judges and the statutes

that address domestic violence,11 we examine the interplay between the governing statutes


       10
        The circuit court noted in its ruling that the family court judge “stated in the final
hearing on Mr. Riffle’s divorce petition . . . that ‘neither party has requested a restraining
order against the other, although there will be language in the decree that mutually orders
them to stay away from one another.’”
       11
         During the pendency of this litigation, legislation aimed at addressing these issues
was considered by our Legislature. Senate Bill 430, which passed on March 13, 2015, and
took immediate effect, affirmed the provisions of West Virginia Code § 48-27-507 with
regard to the continuing need for joint allegations and proof of domestic violence prior to
entering a mutual protective order. Through that same bill, in legislation codified as West
Virginia Code § 51-2A-2a, family courts may enter orders that restrict the parties from
having contact with each other absent findings of domestic violence. Under the new statute,
the contemplated orders may address “the conduct expected of the parties during the
proceeding;” however, the Legislature directed that these restrictions “shall remain in effect
for a period of time as specified in the order.” Id. (emphasis supplied). The orders
authorized by each statute address specific types of conduct; the Legislature clarified that
orders entered pursuant to West Virginia Code § 51-2A-2a “restrict behavior which is not
of sufficient severity to implicate the provisions of article twenty-seven, chapter forty-eight
of this code and 18 U.S.C. § 922(g)(8).” W.Va. Code § 51-2A-2a (f).

                                               5

and the recognized need to assist the family court with legitimate concerns rooted in the

potential for hostility and volatility.



               As the amici both observe, the terms “protective” and “restraining” are often

used interchangeably in this area.12 In this case, the family court judge imposed a “mutual

restraining order”13 to limit contact between the parties. To resolve whether the circuit court

correctly ruled that the family court’s issuance of a mutual restraining order under the facts

of this case was improper, we turn to our statutes to identify the requisites for issuing relief

in the form of a protective or restraining order. As a starting point, we examine the

availability of protective relief outside the provisions of this state’s Prevention of Domestic

Violence Act, W.Va. Code §§ 48-27-501 to -510 (2014) (“article twenty-seven”).




       12
         One of the two amici posits that protective orders, as compared to restraining orders,
“are more limited in terms of the serious behaviors they address, whom they can be issued
against, . . . the behaviors that they prohibit and how violators may be punished.” The other
amicus represents that “there is no inherent conceptual distinction between the terms . . .
‘restraining orders’ or ‘protective orders,’ all of which are used almost interchangeably in
cases and statutes.”
       13
         While unnecessary for purposes of addressing the concerns presented in this matter,
we do note that one of the amici suggested the use of terminology that may prove useful in
the future. In those matters that clearly arise under West Virginia Code § 48-27-507 because
of the allegations and proof of domestic violence, those orders could be referred to as
“Article 27 protection orders.” For those matters that are less serious and present the
“garden variety” need to limit contact between the parties, those orders could be labeled as
“non-DV conflict prevention orders.” What appears critical to this Court is the need to
clearly demarcate those orders which arise under and necessarily invoke the requirements
of West Virginia Code § 48-27-507, and those that do not.

                                               6

              Independent of the statutory criteria for issuing protective orders provided in

article twenty-seven, the Legislature granted courts the authority to issue both temporary and

permanent relief to interdict abuse, harassment, interference with visitation rights, or other

restraints on a party’s personal liberties. In providing for both injunctive relief and

protective orders in the course of divorce proceedings, the Legislature directed that such

relief may be ordered “whether or not there are grounds for relief under subsection (c)

[referencing chapter 48, article 27] and whether or not an order is entered pursuant to such

subsection.” W.Va. Code § 48-5-608(a) (2014).14 By its language, section 608(a) addresses

relief aimed at a singular “offending party” and that relief is proper only upon proof of the

“allegations of abuse.”15 Id.



              Turning to article twenty-seven, which addresses the prevention of domestic

violence, we note initially that the acts which qualify as “domestic violence” or “abuse” are

statutorily specified as distinct from the abuse or harassment contemplated by West Virginia




       14
          Note that the extent of the relief available in the non-domestic violence cases is
more limited. For example, there is no restriction regarding the possession of firearms (cf.
W.Va. Code § 48-27-502(b)). In contrast to article twenty-seven relief, violations of West
Virginia Code § 48-5-608(a) do not carry the imposition of a criminal sanction. See W.Va.
Code § 48-27-502(e). Additionally, in clear contrast to article twenty-seven protective
orders, an article five, section 608(a) protective order is not entered on the domestic violence
registry.
       15
        West Virginia Code § 48-5-608(a) does not provide the necessary authority for the
issuance of the mutual restraining order in this case.

                                               7

Code § 48-5-608.16 By definition, those acts subject to relief under article twenty-seven

involve the following conduct:

                      (1) Attempting to cause or intentionally, knowingly or
               recklessly causing physical harm to another with or without
               dangerous or deadly weapons;
                      (2) Placing another in reasonable apprehension of
               physical harm;
                      (3) Creating fear of physical harm by harassment,
               stalking, psychological abuse or threatening acts;
                      (4) Committing either sexual assault or sexual abuse as
               those terms are defined in article eight-b [§§ 61-8B-1 et seq.]
               and eight-d [§§ 61-8D-1 et seq.], chapter sixty-one of this code;
               and
                      (5) Holding, confining, detaining or abducting another
               person against that person’s will.

W.Va. Code § 48-27-202 (2014).



               Under article twenty-seven, the Legislature has expressly directed that mutual

protective orders are prohibited “unless both parties have filed a petition under part 3 [§§

48-27-301 et seq.] of this article and have proven the allegations of domestic violence by a

preponderance of the evidence.” W.Va. Code § 48-27-507. That section further provides

that singularly-aimed protective orders are authorized under article twenty-seven. See id.

A separate protective order must be filed for each petition when relief is awarded. Id.



       16
         The conduct contemplated by West Virginia Code § 48-5-608(a) is molesting or
interfering with the other party; restraining a party’s personal liberty; interring with custodial
or visitation rights; molesting or harassing a party at school, business, or place of
employment; entering the party’s home environs; and phone or verbal harassment.

                                                8

              As the basis for its dissolution of the mutual restraining order awarded by the

family court, the circuit court looked to the provisions of West Virginia Code § 48-27-507.

The circuit court reasoned that “allegations of abuse have not been proven by either party

by a preponderance of the evidence.” Opining further, the circuit court stated:

              The record merely provides allegations of non-abusive contact
              by Ms. Miller such as a voice mail message to Mr. Riffle and
              attempted contact through a mutual colleague. Such conduct
              does not rise to the level of abuse so as to justify the issuance of
              a restraining order. As such, a proper evidentiary showing of
              abuse has not been sufficiently made to support the issuance of
              a mutual restraining order.

Relying on the language of West Virginia Code § 48-27-507, the trial court concluded that

the record of this matter did not meet the statutory criteria. We agree.



              Echoing the dissent authored by Justice Workman in Pearson v. Pearson, 200

W.Va. 139, 488 S.E.2d 414 (1997), the circuit court observed that “mutual protective orders

are disfavored.” Commenting that “[m]utual restraining orders are a common but very bad

practice,” Justice Workman expounded on the perils of issuing mutual restraining orders

“without a proper evidentiary foundation:”

              This practice of mutual restraining orders, while perhaps well­
              intentioned, causes more problems than it attempts to solve. It
              hinders rather than assists the enforcement of domestic violence
              laws. Judicial officers may believe they are addressing the issue
              of family violence, but mutual restraining orders can actually
              endanger, rather than protect, the victim. Boilerplate mutual
              restraining orders also diminish the principal goal of a
              restraining order, which is to provide protection from domestic

                                               9

                 violence to one who has been subjected to it. When a law
                 enforcement officer at the scene of domestic violence learns of
                 mutual restraining orders, confusion obviously results, and the
                 officer often resolves the dilemma by arresting both. This
                 confusion was never intended by our Legislature.

Id. at 153, 488 S.E.2d at 428 (Workman, Chief Justice, dissenting).



                 The concerns articulated in the Pearson dissent have gone unheeded as family

courts continue to include this boilerplate mutual restraining language in divorce decrees–

even when the language has not been specifically requested.17 In addition to the unwelcome

neutralizing effect on law enforcement,18 the amici have called to our attention that, with the

enactment of federal laws directed at preventing domestic violence, there are compliance-

related concerns that arise when a mutual restraining order is improperly issued.19 Our state



       17
            See supra note 10.
       18
          As noted in Pearson, police officers may refuse to enforce mutual orders when they
arrive at the scene of a domestic dispute and learn that the orders are directed at each of the
parties. 200 W.Va. at 153, 488 S.E.2d at 428 (Workman, Chief Justice, dissenting).
Because “[l]aw enforcement authorities do not take mutual orders as seriously as orders
directed against a single offender,” the amici further observe that such orders “can become
an instrument of control through which the offending party can continue to dominate the true
victim.”
       19
         The amici represent that “permitting mutual orders to be entered in cases involving
domestic violence may jeopardize literally millions of dollars of federal funding under the
Violence Against Women Act currently being received by police, prosecutors, court systems,
and others in West Virginia.” See 42 U.S.C. § 3796hh (2012). Eligibility for these federal
funds requires proof that mutual restraining orders are only issued where both parties file
a claim and the court makes detailed findings of fact that both parties acted as aggressors.
See 42 U.S.C. § 3796hh(c)(1)(C).

                                               10

laws require that orders issued pursuant to article twenty-seven must prohibit the affected

parties from possessing any firearms. See W.Va. Code § 48-27-502 (2014). In addition,

protective orders issued under article twenty-seven are required to contain language

indicating that a violation of such order may result in confinement in a regional jail for up

to one year and a fine of as much as $2,000.20 See id.



              Mutual protective orders cannot be issued at the whim of the family court

without qualifying allegations of domestic violence, or abuse, followed by evidentiary proof

of those allegations. Absent those foundational predicates, a mutual protective order may

not be issued under authority of West Virginia Code § 48-27-507.21 As discussed at length

in the Pearson dissent, and further addressed by the amici in this case, sound reasons exist

for limiting the issuance of mutual protective orders to those cases where proper assertions

of domestic violence or abuse have been established. Otherwise, the objectives sought by

the issuance of such orders are more likely to be undermined than to be achieved.

Accordingly, we hold that pursuant to the provisions of West Virginia Code § 48-27-507,

a court is prohibited from entering a mutual protective order unless each party has filed a

petition asserting allegations of domestic violence against the other and established those


       20
        There was no language included in the divorce decree that addressed the issues of
firearm possession or criminal penalties, as required by West Virginia Code § 48-27-502.
       21
         We wholly reject the petitioner’s contention that he had a right to enter into a
contract that violates the provisions of West Virginia Code § 48-27-507.

                                             11

allegations by a preponderance of the evidence.22 In this case, the trial court properly

applied the provisions of West Virginia Code § 48-27-507 to determine that the predicate

filings and evidentiary proof required by that statutory section were wholly missing.

Accordingly, the circuit court acted within its discretion in setting aside the mutual

restraining order issued by the family court.



                                       IV. Conclusion

              Based on our determination that the circuit court properly dissolved the

improperly issued mutual restraining order, the October 30, 2013, order of the Circuit Court

of Harrison County is affirmed.

                                                                                     Affirmed.


       22
         We specifically framed our new point of law in terms of a “mutual protective order”
to track the statutory language of article twenty-seven. This does not mean that the family
courts may circumscribe this ruling by continuing to issue “mutual restraining orders.” In
recently enacting West Virginia Code § 51-2A-2a (see supra note 11), the Legislature
authorized family courts to “restrict contact between the parties thereto without a finding of
domestic violence” and further to “enter a standing order regarding the conduct expected of
the parties during the proceeding.” The new statute is clear in stating that “[t]his order shall
not be considered a protective order for purposes of section five hundred seven, article
twenty-seven, chapter forty-eight of this code.” Id. Those orders are designed to restrict
contact between the parties but to do so outside the parameters of article twenty-seven acts
of domestic violence. We caution the courts to choose the governing language of their
orders carefully, and to specifically refer to the authorizing statutory language pursuant to
which the order is being issued. An order that is aimed at restricting a party’s conduct
pursuant to West Virginia Code § 51-2A-2a should so specify and should not be casually
denominated as a “mutual restraining order.” Instead, it should mirror the authorizing
language and indicate that its purpose is to restrict conduct between the parties. See id.


                                              12