Mandatory Ten-Day Hearing on DVPO Appeals: Circuit Courts Must Hold a Hearing Unless Affirmatively Waived

Introduction

In Tyler E. v. B.E. by Christina E. (W. Va. Sup. Ct. App. June 1, 2026), the Supreme Court of Appeals of West Virginia addressed a narrow but recurring procedural issue in domestic violence litigation: whether a circuit court may decide an appeal from a family court domestic violence protective order (“DVPO”) without first holding the hearing required by statute and court rule.

The parties’ underlying dispute arose after divorced parents (Tyler E. and Christina E.)—who shared custody of their young son, B.E.—became involved in a domestic violence proceeding initiated by Christina on behalf of the child. The family court entered a 90-day DVPO and restricted Tyler’s visitation. Tyler timely appealed to the circuit court. The circuit court affirmed the DVPO, expressly stating that “a hearing is not necessary.” The Supreme Court of Appeals vacated and remanded because the circuit court failed to provide the mandatory hearing on the appeal.

Summary of the Opinion

The Court held that the circuit court committed reversible error by affirming the family court’s DVPO without holding the hearing required by West Virginia Code § 48-27-510(c) and Rule 19(a) of the West Virginia Rules of Practice and Procedure for Domestic Violence Civil Proceedings. Those authorities require that a DVPO appeal “shall be heard” within ten days of filing. Under controlling precedent, the circuit court may dispense with the hearing only if the appealing party affirmatively waives it—which did not occur here.

On that basis, the Court vacated the circuit court’s order and remanded for further proceedings. Because the procedural defect was dispositive, the Court declined to reach Tyler’s other assignments of error.

Analysis

Precedents Cited

John P.W. ex rel. Adam W. v. Dawn D.O., 214 W. Va. 702, 591 S.E.2d 260 (2003)

This memorandum decision is best understood as an application—and reinforcement—of the Court’s earlier and explicit holding in John P.W. ex rel. Adam W. v. Dawn D.O.. The Court relied on two syllabus points from John P.W.:

  • Syl. Pt. 1 (standard of review): DVPO appeals are reviewed for abuse of discretion as to the ultimate disposition, clearly erroneous as to factual findings, and de novo as to conclusions of law.
  • Syl. Pt. 4 (hearing requirement): the statutory phrase “shall be heard” in W. Va. Code § 48-27-510(c) is mandatory and requires the circuit court to afford the appellant an in-person opportunity to appear and present argument on a timely appeal, unless the appellant affirmatively waived the hearing.

In Tyler E., the circuit court’s order directly conflicted with John P.W.: it denied a hearing not because of waiver, but because the circuit court deemed a hearing “not necessary.” The Supreme Court of Appeals treated that as a legal error because John P.W. removes discretion to skip the hearing absent waiver. The Court also noted that, although the Legislature has amended § 48-27-510 over time, the operative “shall be heard” language remains unchanged—supporting continued adherence to John P.W. as controlling law.

Legal Reasoning

The Court’s reasoning proceeds in a straightforward statutory-and-rule enforcement sequence:

  1. Identify the governing procedural command. W. Va. Code § 48-27-510(c) provides that a DVPO appeal “shall be heard” within ten days of filing, and Rule 19(a) mirrors that requirement.
  2. Apply binding interpretation of that command. Under John P.W., “shall be heard” is mandatory and guarantees an opportunity to appear and present argument in person, unless affirmatively waived.
  3. Compare the required procedure to what occurred. Tyler timely filed his appeal (within the statutory ten-day appeal window). The circuit court nonetheless decided the appeal on the papers and entered an affirmance nearly a month later, expressly stating a hearing was unnecessary.
  4. Determine whether waiver existed. The Court found no affirmative waiver by Tyler. Without waiver, the circuit court lacked authority to eliminate the hearing.
  5. Provide the remedy tied to the error. Because the error was the denial of the required appellate hearing, the proper remedy was to vacate and remand so the appeal can be heard under the mandated process. The Court accordingly declined to reach other alleged errors, reserving merits review until after a lawful hearing occurs.

Notably, the opinion does not turn on whether the DVPO allegations were true, whether the family court’s factual findings were correct, or whether the Department of Human Services’ “unsubstantiated” assessment should affect the protective order. The holding is procedural: the appellant was entitled to the statutorily required hearing before the circuit court could affirm.

Impact

Although issued as a memorandum decision and framed as limited to the “circumstances” presented, the ruling has practical significance in DVPO practice:

  • Reinforcement of a bright-line procedural safeguard. Circuit courts must treat the ten-day hearing requirement as mandatory, not discretionary, and must not replace it with a paper review unless the appellant affirmatively waives the hearing.
  • Process discipline in fast-moving protective order litigation. DVPO cases often involve urgent restrictions on liberty and family contact (as here, where parenting time was suspended). The decision emphasizes that expedited procedures must still comply with legislatively prescribed appellate process.
  • Guidance for litigants (including self-represented parties). By reiterating that waiver must be affirmative, the decision helps prevent inadvertent forfeiture of a hearing—an issue that can disproportionately affect self-represented appellants.
  • Operational consequences for circuit court scheduling. The Court’s insistence on the ten-day hearing window may require administrative adjustments to ensure DVPO appeals are calendared promptly rather than decided without appearance.

Complex Concepts Simplified

  • DVPO (Domestic Violence Protective Order): a court order that can restrict contact, impose no-contact provisions, and affect custody/visitation to protect a petitioner from domestic violence.
  • “Shall be heard” (mandatory language): when a statute says “shall,” it typically imposes a legal duty. Here, it means the circuit court must hold a hearing on the appeal.
  • Affirmative waiver: a hearing can be skipped only if the appealing party clearly and intentionally gives up the right to the hearing; silence or the court’s convenience is not enough.
  • Vacated and remanded: “vacated” means the prior circuit court order is nullified; “remanded” means the case is sent back for additional proceedings—here, a proper appeal hearing.
  • Standards of review: “abuse of discretion” (deference to the lower court’s ultimate decision), “clearly erroneous” (deference on factual findings), and “de novo” (no deference on legal questions).
  • Rule 48 referral / DHS family functioning assessment: the family court’s referral reflects concern about potential abuse or neglect, triggering investigation; however, the Supreme Court’s decision did not resolve how those materials affect DVPO merits because the appeal was decided without the required hearing.

Conclusion

Tyler E. v. B.E. by Christina E. reaffirms a firm procedural rule in West Virginia domestic violence practice: on a timely appeal from a family court DVPO, the circuit court must hold a hearing within ten days unless the appellant affirmatively waives that right. By vacating an order entered without the required hearing, the Supreme Court of Appeals underscored that expedited protective order proceedings must still comply with statutorily mandated appellate process—an important safeguard given the immediate and significant consequences DVPOs can impose on parental contact and personal liberty.