Personal Safety Orders Require Proof by a Preponderance, and Rule 59(e) Limits Appellate Review to Issues Raised

1. Introduction

In A.H. v. J.B. (Supreme Court of Appeals of West Virginia, June 24, 2026), the Court reviewed a circuit court order denying A.H.’s post-judgment request to “reconsider” a ruling that required entry of a six-month personal safety order (“PSO”) in favor of J.B.

The dispute began in magistrate court when J.B. petitioned for a PSO. The magistrate court denied relief, reasoning that J.B. should have sought a domestic violence protective order (“DVPO”) instead. On appeal, the Circuit Court of Cabell County held a de novo hearing, found the parties were not “family or household members” under West Virginia Code § 48-27-204 (and thus outside “domestic violence” under W. Va. Code § 48-27-202), and concluded that a PSO was nonetheless warranted because A.H. stalked J.B. and placed her in reasonable fear of bodily harm, constituting an act under W. Va. Code § 53-8-4(a)(3).

A.H. then filed a “motion for reconsideration,” asserting chiefly that the PSO was unsupported by evidence and that the court should have applied a clear-and-convincing standard. After the circuit court denied the motion, A.H. appealed.

Key issues before the Court

  • Procedural characterization: How should an uncaptioned “motion for reconsideration” be treated under the Rules of Civil Procedure?
  • Scope of appellate review: What issues may be raised on appeal when the appeal follows a Rule 59(e) motion?
  • Burden of proof for PSOs: Must stalking/threat conduct supporting a PSO be proven by clear and convincing evidence, or by a preponderance of the evidence?
  • Technically moot PSO: Should the Court decide the appeal even if the PSO has expired?

2. Summary of the Opinion

The Supreme Court of Appeals affirmed the circuit court’s denial of A.H.’s Rule 59(e) motion. The Court held:

  • A “motion for reconsideration” is not recognized as such; when filed within the applicable time period, it is treated as a Rule 59(e) motion to alter or amend.
  • The extended appeal period resulting from a Rule 59(e) motion applies only to the issues actually raised in that motion.
  • A PSO may issue if the court finds by a preponderance of the evidence that the respondent committed an act specified in W. Va. Code § 53-8-4(a) and that the petitioner reasonably apprehends continued unwanted contact; the statute does not require clear and convincing evidence.
  • The Court would not reweigh evidence or revisit credibility determinations made by the circuit court.

The Court also exercised discretion to decide the appeal despite the PSO’s short duration and apparent expiration, citing the “technically moot” doctrine where issues are capable of repetition yet evade review and where collateral consequences exist.

3. Analysis

A. Precedents Cited

1) Post-judgment motions and standards of review

  • Wickland v. Am. Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998)
    • Role in the opinion: The Court used Wickland to set the appellate standard of review for a Rule 59(e) appeal: the same standard that would apply to the underlying judgment.
    • Practical effect emphasized: Wickland’s explanation that a Rule 59(e) motion “enlarge[s] the time” to appeal only “as to those matters which are the subject of the motion” framed the Court’s tight constraint on the issues A.H. could raise.
  • Walker v. W. Va. Ethics Comm'n, 201 W. Va. 108, 492 S.E.2d 167 (1997)
    • Role in the opinion: Supplied the “two-pronged deferential standard”: abuse of discretion for ultimate disposition, clearly erroneous for factual findings, and de novo for legal questions.
    • Impact in this case: This standard supported deference to the circuit court’s findings that J.B. feared harm and that A.H.’s conduct fit within the PSO statute.

2) Technical mootness and discretionary review

  • Gallery v. W. Va. Secondary Schs. Activities Comm'n, 205 W. Va. 364, 518 S.E.2d 368 (1999)
    • Role in the opinion: Established that the Court has discretion to decide technically moot cases.
    • How it mattered: The PSO’s short duration could otherwise prevent appellate review; Gallery provided the doctrinal gateway.
  • Israel by Israel v. W. Va. Secondary Schs. Activities Comm'n, 182 W. Va. 454, 388 S.E.2d 480 (1989)
    • Role in the opinion: The Court applied the Israel factors, focusing on (i) collateral consequences and (ii) issues capable of repetition yet evading review.
    • Application here: The Court credited alleged collateral consequences (fees from alleged PSO violation defense; family court inquiries) and recognized the “fleeting and determinate nature” of PSOs.

3) “Motions for reconsideration” and classification under Rules 59(e)/60(b)

  • Malone v. Potomac Highlands Airport Auth., 237 W. Va. 235, 786 S.E.2d 594 (2015)
    • Role in the opinion: Reaffirmed that “motions for reconsideration” are not recognized under the Rules of Civil Procedure.
    • Doctrinal significance: Prevents parties from using informal labels to avoid the substantive limits and deadlines of Rules 59(e) and 60(b).
  • Powderidge Unit Owners Ass'n v. Highland Props., Ltd., 196 W. Va. 692, 474 S.E.2d 872 (1996)
    • Role in the opinion: Provided the sorting rule: if a party does not specify the rule, the court considers whether it fits Rule 59(e) or Rule 60(b); if filed within the time window, it is treated as Rule 59(e).
    • Application here: Because A.H. filed within ten days (under the then-operative version of Rule 59(e)), the motion “can only be addressed under Rule 59(e).”

4) Issue preservation and the limited extension of the appeal period

  • Thompson v. Branches-Domestic Violence Shelter of Huntington, W. Va., Inc., 207 W. Va. 479, 534 S.E.2d 33 (2000)
    • Role in the opinion: The controlling rule on scope: only errors raised as grounds in a Rule 59(e) motion benefit from the extended appeal period.
    • Practical consequence in this case: The Court barred A.H. from raising additional claims (e.g., alleged judicial misconduct, subpoena issues, “newly obtained evidence”) because they were not timely appealed from the November 13, 2024 order and/or not included as Rule 59(e) grounds.

5) Burdens of proof and appellate restraint on reweighing evidence

  • Frazier v. Gaither, 248 W. Va. 420, 888 S.E.2d 920 (2023)
    • Role in the opinion: Defined “preponderance of the evidence” as greater weight/more convincing evidence—“more probable than not.”
    • Use here: Supported the Court’s rejection of A.H.’s claim that clear and convincing evidence was required for a PSO.
  • In re F.S., 233 W. Va. 538, 759 S.E.2d 769 (2014)
    • Role in the opinion: Confirmed that preponderance is a lower burden than clear and convincing evidence.
    • Effect: Reinforced that A.H.’s demanded standard was legally incorrect.
  • State v. Guthrie, 194 W. Va. 657, 461 S.E.2d 163 (1995)
    • Role in the opinion: Stated the appellate principle that courts do not assess witness credibility or reweigh evidence; that is for the trier of fact.
    • Application: Disposed of A.H.’s “inauthentic” evidence arguments where they effectively sought reweighing and credibility review.

B. Legal Reasoning

1) Why the Court treated “reconsideration” as Rule 59(e)

The Court began with a procedural correction: while litigants often file “motions for reconsideration,” West Virginia practice requires these to be analyzed under existing procedural rules. Relying on Malone v. Potomac Highlands Airport Auth. and Powderidge Unit Owners Ass'n v. Highland Props., Ltd., the Court held that because the motion was filed within the applicable time limit (then ten days), it must be treated as a Rule 59(e) motion to alter or amend a judgment.

The Court also noted the January 1, 2025 amendment to Rule 59(e) extending the filing deadline to 28 days, but emphasized that under either version the motion still fell under Rule 59(e) on these facts.

2) Why A.H. could not broaden the appeal beyond the Rule 59(e) grounds

The Court applied Wickland v. Am. Travellers Life Ins. Co. and Thompson v. Branches-Domestic Violence Shelter of Huntington, W. Va., Inc. to hold that a Rule 59(e) motion extends the appeal time only for issues actually raised in that motion. This operated as an issue-preservation gatekeeping rule: A.H.’s appeal could address only the three asserted grounds (insufficient evidence; “degrading” nature of allegations notwithstanding agreed no-contact; and “inauthentic” evidence), not additional complaints raised later.

3) Why the PSO burden of proof is “preponderance,” not “clear and convincing”

On the merits, A.H.’s central legal argument was that the circuit court needed “clear and convincing evidence.” The Supreme Court rejected this as inconsistent with the statute. Under W. Va. Code §§ 53-8-7(a)(2)(A)(i) and (ii), a court may issue a final PSO upon finding by a preponderance of the evidence that:

  • the respondent committed an act specified in W. Va. Code § 53-8-4(a); and
  • the petitioner reasonably apprehends continued unwanted or unwelcome contacts.

The circuit court found A.H.’s conduct fit W. Va. Code § 53-8-4(a)(3), which includes “repeated credible threats of bodily injury” made with knowledge (or reason to know) that the threats cause reasonable fear for safety. The Supreme Court held this was a permissible finding under the proper preponderance standard, citing Frazier v. Gaither for the definition of that standard and In re F.S. to contrast it with the higher clear-and-convincing standard.

4) Why “inauthentic” evidence arguments failed on appeal

The Court treated A.H.’s “inauthentic proof” arguments as a challenge to the weight and credibility of the evidence presented at the de novo hearing. Citing State v. Guthrie, the Court reaffirmed that appellate courts do not reweigh evidence or second-guess credibility determinations. Thus, the fact that the circuit court credited J.B.’s evidence over A.H.’s denials did not show legal error.

5) Why the Court reached the merits despite possible mootness

Because PSOs are time-limited, the order could expire before appellate review concludes. The Court invoked Gallery v. W. Va. Secondary Schs. Activities Comm'n and applied the factors in Israel by Israel v. W. Va. Secondary Schs. Activities Comm'n. It found the case met at least two Israel considerations: the issue’s recurring-yet-evading-review nature in PSO practice, and alleged collateral consequences (fees, and effects in a family court case). That analysis preserved meaningful appellate guidance for PSO procedures.

C. Impact

1) Clarifying PSO litigation standards

The decision underscores a statutory point with practical bite: a PSO requires proof by a preponderance of the evidence, not clear and convincing evidence. Litigants and lower courts should expect PSO hearings to turn on whether the alleged conduct is more likely than not, rather than meeting the heightened evidentiary burden used in other contexts.

2) Procedural discipline: naming and timing post-judgment motions

By reaffirming that “reconsideration” is not a recognized procedural motion and must be treated as Rule 59(e) or Rule 60(b), the Court promotes predictable deadlines and standards. It also highlights the consequences of that classification: a Rule 59(e) filing may extend appellate time only as to issues actually raised.

3) Appellate issue-limiting effect in protective-order cases

PSO cases move quickly and may be handled by self-represented parties. This decision illustrates that failing to timely appeal the underlying order (or failing to include an argument in the Rule 59(e) grounds) can forfeit later appellate review of additional claims. As a result, practitioners should treat Rule 59(e) motions not merely as requests for a “do-over,” but as critical vehicles for issue preservation.

4) Technical mootness doctrine tailored to short-lived orders

The Court’s willingness to address an expired PSO reinforces that short-duration protective orders can qualify for discretionary review, particularly when collateral consequences are alleged and the issue is capable of repetition yet evading review. This may encourage fuller appellate development of PSO doctrine despite the orders’ short terms.

4. Complex Concepts Simplified

  • PSO vs. DVPO: A DVPO generally requires a qualifying domestic relationship (family/household member status). A PSO is available for certain threatening or harassing conduct even when the parties are not within the domestic violence definitions.
  • De novo hearing: The circuit court conducts a fresh hearing and is not limited to the magistrate court’s reasoning; it can take testimony and make its own findings.
  • Preponderance of the evidence: “More likely than not.” If the factfinder believes the claim is slightly more probable than the opposing version, the burden is met.
  • Clear and convincing evidence: A higher burden than preponderance, requiring a stronger level of certainty. The Court held it does not apply to PSOs under the cited statute.
  • Rule 59(e): A post-judgment motion to alter or amend filed within the rule’s deadline. It can extend the time to appeal—but only for issues raised in the motion.
  • Technical mootness: Even if the immediate order has expired, an appellate court may decide the case when recurring issues would otherwise evade review or when collateral consequences persist.

5. Conclusion

A.H. v. J.B. reinforces two practical rules for West Virginia protective-order litigation and appellate practice: (1) a final PSO is governed by the preponderance of the evidence standard set by W. Va. Code § 53-8-7, and (2) a timely post-judgment filing labeled “reconsideration” will be treated as a Rule 59(e) motion, which extends appeal time only as to the issues specifically raised.

Beyond the immediate dispute, the decision signals that PSO appeals—though often short-lived and potentially moot—may still warrant review where collateral consequences and recurring issues are shown, ensuring that PSO procedures remain subject to appellate supervision despite their inherently time-sensitive nature.