Expired Personal Safety Orders Remain Reviewable for Collateral Consequences; “Reconsideration” Motions Are Construed Under Rule 59(e) or Rule 60(b)

1. Introduction

In A.H. v. B.K. (W. Va. Sup. Ct. App. June 24, 2026), the Supreme Court of Appeals of West Virginia reviewed a circuit court order that affirmed a magistrate court’s issuance of a six-month personal safety order (“PSO”) against petitioner A.H. in favor of respondent B.K. based on alleged stalking, harassment, and threats.

The case presented three recurring issues in PSO litigation: (1) whether an appeal should be decided even after the PSO expires (technical mootness), (2) how appellate courts review credibility and factfinding in PSO cases, and (3) how courts must treat post-judgment “motions for reconsideration,” particularly when a party claims newly discovered evidence.

2. Summary of the Opinion

The Court affirmed the circuit court’s November 12, 2024 order upholding the PSO and dismissing A.H.’s appeal. Although the PSO had expired by the time of appellate review, the Court exercised discretion to reach the merits because PSOs are short-lived and because A.H. alleged collateral consequences (legal fees related to an arrest for an alleged PSO violation).

On the merits, the Court held there was sufficient evidence for the circuit court—after a de novo hearing—to find by a preponderance of the evidence that A.H. committed an act under W. Va. Code § 53-8-4(a)(3) (stalking and/or repeated credible threats causing reasonable fear) and that B.K. had a reasonable apprehension of continued unwanted contact. The Court also upheld the denial of A.H.’s later-filed “reconsideration” motion as properly analyzed under Rule 60(b), finding the circuit court reviewed the proffered video evidence and acted within its discretion.

3. Analysis

3.1. Precedents Cited

Standard of review and appellate deference

  • Walker v. W. Va. Ethics Comm'n, Syl. Pt. 2, 201 W. Va. 108, 492 S.E.2d 167 (1997): The Court applied Walker’s “two-pronged deferential standard”—abuse of discretion for the ultimate disposition, clearly erroneous review for factual findings, and de novo review for questions of law. This framework anchored the Court’s refusal to second-guess factfinding and credibility determinations supporting the PSO.
  • State v. Guthrie, 194 W. Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995): Quoted for the principle that an appellate court may not weigh evidence or assess witness credibility. Guthrie supplied the direct basis for rejecting A.H.’s argument that B.K.’s testimony was not credible and that the circuit court should have accepted A.H.’s competing narrative.

Technical mootness and discretionary review

  • Gallery v. W. Va. Secondary Schs. Activities Comm'n, 205 W. Va. 364, 367, 518 S.E.2d 368, 371 (1999): Cited to confirm the Court’s discretion to address technically moot cases.
  • Israel by Israel v. W. Va. Secondary Schs. Activities Comm'n, Syl. Pt. 1, in part, 182 W. Va. 454, 388 S.E.2d 480 (1989): Provided the factors governing whether to decide a technically moot case. The Court relied on Israel to conclude two factors supported review: (1) the fleeting nature of PSOs (issues can repeatedly evade appellate review) and (2) alleged collateral consequences (attorney fees tied to defending against an arrest for an alleged PSO violation).

Burden of proof in PSO proceedings

  • Frazier v. Gaither, 248 W. Va. 420, 425, 888 S.E.2d 920, 925 (2023): Used to define “preponderance of the evidence” as more probable than not. This definition supported the Court’s conclusion that the circuit court had “ample evidence” under the statutory standard for a final PSO.
  • In re F.S., 233 W. Va. 538, 546, 759 S.E.2d 769, 777 (2014): Cited to emphasize that preponderance is a lesser burden than clear and convincing evidence—reinforcing that PSO findings need not meet a heightened evidentiary threshold.

Preservation/waiver

  • Noble v. W. Va. Dep't of Motor Vehicles, 223 W. Va. 818, 821, 679 S.E.2d 650, 653 (2009): Applied to hold that an argument about allegedly perjured testimony was waived because the petitioner did not cite where she objected below. Noble functioned as a procedural gatekeeper: absent preservation, the Court would not reach the claim.

“Motions for reconsideration” and post-judgment standards

  • Malone v. Potomac Highlands Airport Auth., Syl. Pt. 2, in part, 237 W. Va. 235, 786 S.E.2d 594 (2015): Cited for the proposition that a “motion for reconsideration” is not recognized under the Rules of Civil Procedure. This case underwrote the Court’s insistence that such motions must be treated as Rule 59(e) or Rule 60(b) motions.
  • Powderidge Unit Owners Ass'n v. Highland Props., Ltd., Syl. Pt. 2, 196 W. Va. 692, 474 S.E.2d 872 (1996): Supplied the operative classification rule—if filed within the prescribed time, treat as Rule 59(e); otherwise, only Rule 60(b) is available. The Court used Powderidge to classify A.H.’s later motion (filed outside the then-applicable ten-day window) as a Rule 60(b) motion.

3.2. Legal Reasoning

(a) The Court’s decision to reach the merits despite PSO expiration

The Court acknowledged the case was “technically moot” because the six-month PSO had expired. Nonetheless, applying Gallery v. W. Va. Secondary Schs. Activities Comm'n and the multi-factor test in Israel by Israel v. W. Va. Secondary Schs. Activities Comm'n, it exercised discretion to decide the appeal. Two considerations drove that decision:

  • Evading review: PSOs are inherently short, making appellate review difficult before expiration.
  • Collateral consequences: A.H. alleged continuing effects (legal fees defending an arrest for an alleged PSO violation), which the Court treated as sufficient to justify review.

This aspect of the decision is important because it signals that expired PSOs are not automatically beyond appellate scrutiny where either recurrence/evading-review concerns or concrete continuing consequences are shown.

(b) Statutory PSO requirements and evidentiary sufficiency

The Court framed the PSO inquiry under W. Va. Code §§ 53-8-7(a)(2)(A)(i) and (ii): a final PSO may issue if, by a preponderance of the evidence, (1) the respondent committed an act specified in W. Va. Code § 53-8-4(a), and (2) the petitioner has a reasonable apprehension of continued unwanted contacts.

The circuit court found that A.H. threatened harm and stalked B.K. and her children, placing B.K. in reasonable fear of bodily harm—conduct falling within W. Va. Code § 53-8-4(a)(3), which includes “repeated credible threats of bodily injury” causing reasonable fear. On appeal, A.H.’s core challenge was credibility (arguing evidence was false/insufficient and the parties had a hostile history). The Court rejected that challenge by applying:

  • Walker v. W. Va. Ethics Comm'n (deferential review of factfinding), and
  • State v. Guthrie (no appellate reweighing of evidence or credibility).

The Court also grounded the burden of proof in Frazier v. Gaither and reiterated via In re F.S. that preponderance is comparatively modest. The result: because the circuit court had testimony and communications evidence supporting its findings, the Supreme Court would not disturb the PSO.

(c) Post-judgment “reconsideration” and newly discovered evidence

A.H. challenged denial of a later motion based on “new” security video footage. The Court treated the filing as a Rule-based motion rather than a free-standing “reconsideration” request, invoking:

  • Malone v. Potomac Highlands Airport Auth. (no recognized “reconsideration” motion), and
  • Powderidge Unit Owners Ass'n v. Highland Props., Ltd. (classification as Rule 59(e) or Rule 60(b) depending on timing).

Because the motion was filed outside the then-applicable Rule 59(e) time limit, the Court analyzed it under Rule 60(b), which allows relief for, among other reasons, “newly discovered evidence” that could not with reasonable diligence have been discovered in time to move for a new trial. The Court emphasized that the circuit court expressly reviewed the video and still concluded its judgment rested on the evidence presented at the hearing. Under the deferential review posture, the Supreme Court held there was no error in denying Rule 60(b) relief.

Notably, the Court also acknowledged the January 1, 2025 amendment to Rule 59(e) (extending time to 28 days) but applied the version in effect when the motion was filed and decided—highlighting that timing can control not only outcomes, but also the governing procedural framework.

3.3. Impact

  • PSO appeals may remain reviewable after expiration: The decision reinforces that PSO cases, though often expired by the time of appeal, can still be decided where the issues regularly evade review and/or collateral consequences are credibly alleged. This is likely to encourage more litigants to articulate concrete continuing harms (e.g., arrest-related costs, reputational and legal effects) when seeking review of expired protective orders.
  • High deference to trial-level credibility calls: The Court’s reliance on Guthrie underscores that PSO appeals that primarily re-argue “who was telling the truth” face steep odds. Parties must focus on legal error, lack of statutory elements, or clearly erroneous factfinding—not mere disagreement with the trial court’s view of the witnesses.
  • Procedural discipline for post-judgment motions: By reclassifying “reconsideration” filings into Rule 59(e)/Rule 60(b) categories, the Court signals that litigants must meet specific rule requirements (timing, grounds, diligence) to reopen PSO judgments, even in highly fact-driven disputes.
  • Practical guidance for PSO litigation strategy: The decision encourages prompt, organized presentation of evidence at the de novo circuit court hearing, because later attempts to relitigate via Rule 60(b) will be limited and discretionary—particularly where the court finds the parties already received a “full hearing on the record.”

4. Complex Concepts Simplified

  • Personal Safety Order (PSO): A civil protective order under W. Va. Code art. 53-8 intended to prevent harassment, stalking, threats, and similar conduct and to restrict contact.
  • De novo hearing (in circuit court): The circuit court hears the appeal as a new evidentiary hearing; it is not limited to reviewing the magistrate’s decision for error.
  • Preponderance of the evidence: The fact is more likely true than not—often described as tipping the scale just over 50%.
  • Credibility determinations: Decisions about which witnesses to believe. Appellate courts rarely disturb these because the trial judge sees and hears the witnesses.
  • Technical mootness: The immediate order has expired, but the court may still decide the case if the issue tends to evade review or continuing consequences exist.
  • Rule 59(e) vs. Rule 60(b): Rule 59(e) is a prompt request to alter/amend a judgment (time-limited). Rule 60(b) is a narrower, discretionary route for extraordinary relief (including certain newly discovered evidence), typically used when Rule 59(e) is no longer available.

5. Conclusion

A.H. v. B.K. confirms three significant points for West Virginia PSO practice: (1) expired PSOs can still receive appellate review when the dispute evades review and collateral consequences are alleged; (2) trial-level credibility findings and evidentiary weighing in PSO hearings receive strong deference on appeal; and (3) post-judgment “reconsideration” requests are not free-form—courts must treat them as Rule 59(e) or Rule 60(b) motions, with Rule 60(b) requiring a demanding showing for relief based on newly discovered evidence.