Appellate Waiver in DVPO Appeals: Failure to Provide a Complete Appendix and Rule‑Compliant Briefing Requires Affirmance

Case: Anthony H. v. Matthew S.
Court: Supreme Court of Appeals of West Virginia
Date Issued: June 1, 2026 (Memorandum Decision)

1. Introduction

This appeal arose from a domestic violence protective order (“DVPO”) entered by the Family Court of Kanawha County after a firearm-involved confrontation between Anthony H. (petitioner in the Supreme Court; respondent below) and his son-in-law, Matthew S. (respondent in the Supreme Court; petitioner below). The family court credited Anthony H.’s testimony that Matthew S. pointed a firearm at him and found that Anthony H. was placed in reasonable fear for his safety.

Matthew S. appealed to the Circuit Court of Kanawha County, which—reviewing the family-court record and taking no new evidence—terminated the DVPO, finding the family court erred on credibility, evidentiary rulings (a video), and the availability of self-defense. Anthony H. then appealed to the Supreme Court, asserting that the circuit court (1) terminated the DVPO without just cause, (2) prevented him from presenting evidence, and (3) acted with bias.

The Supreme Court did not reach the merits. Instead, it affirmed on procedural grounds: the petitioner failed to provide an adequate appellate record and failed to brief his claims in compliance with the West Virginia Rules of Appellate Procedure.

2. Summary of the Opinion

The Supreme Court of Appeals of West Virginia affirmed the circuit court’s order terminating the DVPO because the petitioner did not carry his appellate burden. Specifically:

  • Rule 7(d) violation: the appendix record omitted key materials—most importantly, a complete copy of the DVPO and the recording of the family court hearing.
  • Rule 10(c)(7) violation: the petitioner’s brief did not meaningfully develop arguments with record citations, legal authorities, or analysis.

Without the family-court hearing record, the Court held it could not evaluate whether the circuit court’s factual findings were clearly erroneous or whether its termination of the DVPO was an abuse of discretion. The Court applied the presumption that trial proceedings are regular and correct unless the appellant affirmatively shows error.

3. Analysis

3.1 Precedents Cited

Standard of review in DVPO appeals

Syl. Pt. 1, John P.W. ex rel. Adam W. v. Dawn D.O., 214 W. Va. 702, 591 S.E.2d 260 (2003): findings of fact are reviewed for clear error; conclusions of law de novo; and the ultimate disposition for abuse of discretion.

The Court invoked John P.W. ex rel. Adam W. v. Dawn D.O. to frame what it would review if the record and briefing permitted. That standard mattered here because the missing family-court recording prevented the Court from performing clear-error and abuse-of-discretion review in any meaningful way.

Appellant’s burden; error must affirmatively appear from the record

Syl. Pt. 5, Morgan v. Price, 151 W. Va. 158, 150 S.E.2d 897 (1966): an appellant bears the burden of showing error; the Court will not reverse unless error affirmatively appears from the record; presumptions favor correctness.

Morgan v. Price supplied the central appellate principle applied: when essential parts of the record are missing, the Court will not “presume” error to rescue an appeal. The decision operationalizes that rule in the DVPO context: where credibility determinations and evidentiary rulings are pivotal, the underlying hearing record is indispensable.

Presumption of regularity of proceedings

Syl. Pt. 2, in part, State v. J.S., 233 W. Va. 198, 757 S.E.2d 622 (2014) (quoting Syl., in part, State ex rel. Smith v. Boles, 150 W. Va. 1, 146 S.E.2d 585 (1965)): there is a presumption of regularity of court proceedings; the burden is on the person alleging irregularity to show it affirmatively.

These authorities reinforced why the Court would not entertain claims of bias, improper evidence handling, or “no just cause” termination without a record demonstrating those irregularities. In short, the presumption of regularity filled the evidentiary gap created by the petitioner’s incomplete appendix.

Inadequate briefing; “skeletal arguments” do not preserve claims

State, Dep't of Health v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)): a skeletal argument—really only an assertion—does not preserve a claim.

State v. White, 228 W. Va. 530, 541 n.9, 722 S.E.2d 566, 577 n.9 (2011): the Court typically will not address issues not properly briefed.

State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996): issues mentioned only in passing, unsupported by authority, are not considered on appeal.

These cases anchored the Court’s second, independent ground for affirmance: even if the record were complete, an appellant must explain—using record cites and legal authority—why the lower court erred. The Court treated compliance with briefing rules not as a technicality but as a prerequisite to appellate adjudication.

Self-representation does not excuse noncompliance

State v. Gibson, No. 23-556, 2025 WL 3287585, at *2 (W. Va. Nov. 25, 2025) (memorandum decision): self-represented litigants must still comply with Rule 10(c)(7).

By citing State v. Gibson, the Court underscored that relaxed construction of pro se filings has limits: the appellate court will not develop arguments or assemble a record on a litigant’s behalf.

3.2 Legal Reasoning

The Court’s reasoning proceeded in two steps, each sufficient to affirm:

  • Record deficiency (Rule 7(d)): The Court emphasized that appellate review is confined to the designated record. Because the petitioner did not include a complete DVPO and, critically, did not include the family-court hearing recording, the Court could not test the circuit court’s account of what occurred below—especially where the circuit court expressly relied on family-court testimony “not reflected in the appendix record.”
  • Briefing deficiency (Rule 10(c)(7)): The Court separately held that the petitioner’s assertions were not developed with record citations, supporting authority, or meaningful analysis; therefore, the Court declined to address them.

Notably, although the circuit court’s written order referenced West Virginia Code § 55-7-22(c)-(d) (self-defense/“stand your ground” principles and a “full and complete defense” to certain civil actions), the Supreme Court did not validate or reject that application on the merits. The affirmance rested on appellate default: the Court could not—and would not— adjudicate factual and legal disputes presented without an adequate record and briefing.

3.3 Impact

The decision’s practical impact is procedural but significant, particularly in DVPO appeals:

  • DVPO appeals are record-driven: When the dispute turns on credibility (as DVPO cases often do), the hearing recording or transcript is indispensable. Failure to provide it is likely fatal because the Supreme Court cannot reassess credibility or determine whether the circuit court properly found clear error below.
  • Two independent “filters” for appellate review: Even with a complete record, inadequate briefing can independently foreclose review. Litigants must treat Rule 10(c)(7) as a substantive gatekeeper, not mere formatting guidance.
  • Pro se litigants are on notice: The Court reiterates that self-represented status does not relax the duty to compile the appendix and present developed arguments.

Over time, the decision may encourage more disciplined appellate practice in protective-order litigation, where parties frequently proceed without counsel and where incomplete records are common. It also signals that the Supreme Court will use memorandum decisions to enforce appellate rules strictly, thereby conserving judicial resources and reinforcing predictability in appellate procedure.

4. Complex Concepts Simplified

  • DVPO (Domestic Violence Protective Order): A court order restricting conduct (and often contact) to protect someone from domestic violence or threats.
  • Appendix record (Rule 7(d)): The packet of key documents and transcripts/recordings the appellant must file so the appellate court can verify what happened below. If it is incomplete, the appellate court cannot “guess” the missing facts.
  • Standards of review:
    • Clearly erroneous (facts): an appellate court won’t overturn factual findings unless a clear mistake is shown.
    • De novo (law): the appellate court decides legal questions fresh, without deference.
    • Abuse of discretion (ultimate disposition): reversal occurs only if the decision is outside the range of reasonable choices.
  • Presumption of regularity: Courts assume lower-court proceedings were conducted properly unless the appellant proves otherwise with the record.
  • Rule 10(c)(7) briefing requirement: It is not enough to claim “the court was wrong.” The appellant must cite where in the record the error occurred and cite legal authority explaining why it matters.
  • West Virginia Code § 55-7-22(c)-(d): A self-defense statute referenced by the circuit court, including language that justified force can be a “full and complete defense” to certain civil actions brought by an “intruder or attacker.” The Supreme Court did not decide how (or whether) it properly applies in DVPO proceedings here due to procedural default.

5. Conclusion

Anthony H. v. Matthew S. reinforces a concrete procedural rule with real consequences: in DVPO appeals, the Supreme Court will affirm when an appellant fails to (1) provide an appendix containing the essential orders and hearing record required by Rule 7(d) and (2) present developed, authority-supported arguments with record citations as required by Rule 10(c)(7). The decision underscores the appellant’s burden to affirmatively show error, the presumption of regularity, and the limited tolerance for skeletal briefing—even for self-represented litigants.