1 STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

R.A. Respondent Below, Petitioner

vs) No. 12-1251 (Braxton County 12-DV-36)

T.A. Petitioner Below, Respondent

MEMORANDUM DECISION

Petitioner R.A. (“Petitioner Husband”), pro se , appeals the order of the Circuit Court of Braxton County affirming the Family Court of Br axton County’s entry of a Domestic Violence Protective Order (“DVPO”). Respondent T.A. (“Re spondent Wife”), did not file a response and made no appearance before this Court. 1

This Court has considered the petitioner’s br ief and the record on appeal. The facts and legal arguments are adequately presented, and the decisional proc ess would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate

Procedure.

This case arises from a domestic violence incident in August of 2012, where Petitioner Husband was hitting his eight-year-old step-son at a campground. Respondent Wife intervened, at which time Petitioner Husband shoved her down. By standers at the camp site called police and Petitioner Husband was arrested. Respondent Wi fe then filed for a protective order. On September 5, 2012, the family court entered a DVPO effective until March 4, 2013, after finding that Petitioner Husband placed Re spondent Wife in reasonable apprehension of physical harm. The court specifically found that Petitioner Husband was di sciplining his step-son and Respondent Wife intervened, causing Peti tioner Husband to push Respondent Wife. The family court noted that Respondent Wife claime d to have previously filed and received a DVPO

1 Rule 10(d) of the Rules of Appe llate Procedure provides that if a respondent’s brief fails to respond to an assignment of error, this Court w ill assume that the respondent agrees with the petitioner’s view of the issue. Respondent has failed to file any responsive brief with this Court. However, as set forth herein, peti tioner’s brief and our review of the record have failed to convince us that reversal is appropriate. Accordingly, we decline to rule in petitioner’s favor simply because respondent failed to file a brief. Cf. Syl. Pt. 8, State v. Julius , 185 W.Va. 422, 408 S.E.2d 1 (1991) (recognizing that the Court is not obligated to ac cept the State’s confession of error in a criminal case; instead, the Court will conduct a proper analysis). 

### FILED

October 18, 2013
RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 against Petitioner Husband in Kanawha County, and Petitioner Husband admitted to pleading guilty to domestic assault in Kanawha County while he was represented by counsel. The family

court also denied Petitioner Husband’s motion for contempt regarding Respondent Wife’s use of a checking account, and granted Respondent Wife the use of a 2003 minivan.

Petitioner Husband appealed the DVPO to the circuit court on September 11, 2012. The circuit court then entered an order denying the appeal. The circuit court noted that this domestic violence incident is also the pr ecipitating factor in an abuse a nd neglect case filed in Braxton County. The court also noted that Petitioner Husb and’s concerns over the property were addressed when the family court placed the property in a c onstructive trust to prev ent either party from destroying or wasting it. Moreover, the circuit court note d that many of the doc uments attached to the appeal were from an incomplete report from a 2007 child protective services case which have no bearing on the domestic violence incident herei n. The DVPO was ordered to remain in effect.

We have previously established the following standard of review:

In reviewing a final order entered by a circuit judge upon a review of, or upon a refusal to review, a final order of a fam ily court judge, we review the findings of fact made by the family court judge unde r the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo

.

Syl., Carr v. Hancock , 216 W.Va. 474, 607 S.E.2d 803 (2004). Mo reover, this Court has stated “[t]o allow proper judicial review, a family court judge who issues a domestic violence protective order is required to make factual finding s which describe the acts of domestic violence that have been established by the evidence presen ted and to identify which statutory definition of

domestic violence such fact s demonstrate.” Syl. Pt. 2, John P.W. ex rel. Adam W. v. Dawn D.O.

, 214 W.Va. 702, 591 S.E.2d 260 (2003).

On appeal, Petitioner Husband argues that th e circuit court erred in affirming the DVPO. He also argues that the circui t court erred in giving Respondent Wife the use of the van and the home, and that Respondent Wife violated th e DVPO by transferring $13,169 out of a brokerage
account that did not include her name, as the DVP O says that neither party could transfer or convey property. Finally, petitioner argues that Respondent Wife committ ed perjury regarding the allegations of domestic violence.

This Court finds that the findings of fact supporting entry of the DVPO were not clearly erroneous and that the family court did not a buse its discretion. Petitioner Husband argues on appeal that Respondent Wife was not the victim of domestic violence, but this Court finds that Petitioner Husband’s reliance on the incomplete Petition for Abuse and Neglect is misplaced. The evidence clearly supports Respondent Wife’s allegations. As to Petitioner Husband’s argument that Respondent Wife violated the DVPO by transferring money out of a brokerage account, the evidence shows that the money was transferred several da ys prior to the entry of the DVPO. Petitioner Husband’s remaining allegations deal with property matters more properly3 handled by the family court in the parties’ pending divorce action and therefore will not be addressed by this Court.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: October 18, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin

Justice Robin Jean Davis Justice Margaret L. Workman

Justice Menis E. Ketchum Justice Allen H. Loughry II