C.B. v. B.B., 16-1150

Background

On June 9, 2016, at a supervised-visitation facility after exchanging their child, respondent B.B. drove his car close to petitioner C.B.’s car and spoke through open windows asking that she seek dismissal of certain custody orders; he did not exit his car, raise his voice, or make overt threats.
Petitioner filed for a domestic violence protective order (DVPO) on June 13, 2016; an emergency DVPO issued initially and remained in place pending appeal.
At the family-court hearing, petitioner testified she was afraid, alleged past incidents of physical blocking/forced entry and repeated unwanted contacts, and said respondent characteristically carries a gun; she provided little detail and gave no dates for many prior incidents and had not sought prior protection.
The family court denied the DVPO, finding petitioner failed to prove domestic violence by a preponderance of the evidence; the circuit court affirmed that denial.
On appeal to the West Virginia Supreme Court, petitioner argued the lower courts misapplied the statutory definition of domestic violence and failed to apply Thomas v. Morris; petitioner’s briefs lacked citations to the record and omitted the family-court order from the appendix.
The Supreme Court affirmed the circuit court, finding no reversible error, distinguishing Morris on its facts, and refusing to consider inadequately supported assignments of error.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether petitioner proved domestic violence based on the June 9 encounter	C.B.: respondent’s conduct (blocking car, prior incidents, and his alleged habit of carrying a gun) gave rise to reasonable fear and warranted a DVPO	B.B.: encounter was conversational, no threats or physical restraint, and prior incidents were not shown with necessary detail or timing	Denied — petitioner failed to prove domestic violence by a preponderance; facts here distinguishable from more egregious conduct in precedent
Whether the courts misapplied the statutory definition of domestic violence (i.e., requiring an overt act)	C.B.: lower courts effectively required an overt act and ignored relevant legal standard and precedents	Courts: applied proper standard to the evidence presented; no indication of misinterpretation	Not addressed on merits — petitioner’s briefing omitted record citations and family-court order, so court declined to reach this assignment of error
Whether Thomas v. Morris controls and was ignored	C.B.: Morris is similar and should have led to finding of reasonable fear	B.B.: facts here are materially different and Morris does not compel relief	Rejected — court considered Morris, found it distinguishable on severity, duration, and frequency of conduct
Whether appellate briefing deficiencies preclude review	C.B.: raised assignments but failed to cite record or include required appendix items	Court: rules require specific citations and appendix; noncompliance permits disregard of errors	Court declined to address certain assignments due to Rule 10(c)(7) and Rule 7(d) deficiencies; those arguments were forfeited

Key Cases Cited

Carr v. Hancock, 216 W.Va. 474, 607 S.E.2d 803 (2004) (standard of review for circuit-court review of family-court orders: clearly erroneous for facts, abuse of discretion for law-to-fact application, de novo for pure questions of law)
Thomas v. Morris, 224 W.Va. 661, 687 S.E.2d 760 (2009) (DVPO upheld where defendant engaged in prolonged circling, banging on doors/windows, blocking driveway, and extensive prior unwanted contacts)