1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Benjamin J.,

Defendant Below, Petitioner

vs.) No. 18-1114 (Jefferson County 18-DV-80)

Kristina J.,

Plaintiff Below, Respondent

MEMORANDUM DECISION

Petitioner Benjamin J.,

1 self-represented, appeals the November 28, 2018, order of the 

Circuit Court of Jefferson County denying his appeal from the October 5, 2018, order entered by 

the Family Court of Jefferson County denying a renewed motion for reconsideration of a one-year 

domestic violence protective order (“DVPO”) entered by the family court on June 13, 2018. 

Respondent Kristina J. did not file a response.

2

The Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds that petitioner’s appeal has been rendered moot. For these reasons, a 

memorandum decision dismissing the appeal is appropriate under Rule 21 of the Rules of 

Appellate Procedure.

1

By scheduling order entered on December 27, 2018, this case was deemed confidential 

pursuant to Rule 40(c) of the West Virginia Rules of Appellate Procedure. See W. Va. Code § 48-

1-303(b) (providing that the record in a domestic relations matter is confidential).

2

Pursuant to Rule 10(d) of the West Virginia Rules of Appellate Procedure, if a respondent 

fails to respond to an assignment of error, we will assume that the respondent agrees with 

petitioner’s view of the issue. However, we will accept a party’s concession only after a proper 

analysis shows that it is correct. See Syl. Pt. 8, State v. Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991).

Here, for reasons discussed below, we dismiss petitioner’s appeal as moot.

FILED

June 3, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

The parties are married but separated.3 Petitioner lives in Massachusetts, while respondent 

and her minor child, petitioner’s stepdaughter, reside in Jefferson County, West Virginia. On May 

29, 2018, respondent filed a domestic violence petition in the Magistrate Court of Jefferson 

County. In the petition, respondent alleged that, while on the phone with respondent’s child, 

petitioner told the child that she should open the door for a “playmate” he was sending to 

respondent’s residence. Shortly thereafter, an adult male whom respondent did not know arrived

outside and walked around respondent’s house several times. Respondent requested a DVPO 

against petitioner with a duration of one year. In a May 29, 2018, order, the magistrate court 

granted respondent an emergency protective order and scheduled the hearing for the DVPO before 

the Family Court of Jefferson County for June 6, 2018. The family court hearing was continued to 

June 13, 2018.

Respondent appeared at the June 13, 2018, hearing, but petitioner failed to appear. 

Respondent testified in support of her petition. By order entered June 13, 2018, the family court 

found that petitioner had “due notice” of the hearing and that it had personal jurisdiction of both 

parties. The family court further found that petitioner placed respondent “in reasonable 

apprehension of physical harm.” Accordingly, the family court granted respondent’s request for a 

one-year DVPO, ruling that the DVPO would expire at midnight on June 13, 2019. 

In a letter dated June 26, 2018, petitioner informed the family court that he was incarcerated 

in Massachusetts at the time of the June 13, 2018, hearing. By order entered on July 20, 2018, the 

family court construed petitioner’s letter as a motion for reconsideration under West Virginia Code 

§ 51-2A-10 and set a hearing on the motion for August 8, 2018.4 Petitioner failed to appear for 

the August 8, 2018, hearing. Accordingly, the family court dismissed petitioner’s motion for 

reconsideration on that same date. On October 4, 2018, petitioner filed a renewed motion for 

reconsideration, informing the family court that he was re-incarcerated in Massachusetts at the 

time of the August 8, 2018, hearing. By order entered on October 5, 2018, the family court denied 

the renewed motion for reconsideration pursuant to West Virginia Code § 51-2A-10(b), finding 

that the motion was not filed within a “reasonable time” and there was a need to achieve finality 

in the parties’ case. Petitioner appealed the family court’s October 5, 2018, order to the Circuit 

Court of Jefferson County, which denied the appeal by order entered on November 28, 2018.

Petitioner filed the instant appeal of the circuit court’s November 28, 2018, order on 

3

According to petitioner, he filed a divorce action in Massachusetts but failed to obtain 

successful service on respondent in West Virginia. 

4

Rule 25 of the West Virginia Rules of Practice and Procedure for Family Court provides, 

in pertinent part, that “[a]ny party may file a motion for reconsideration of a family court order as 

provided in [West Virginia Code] § 51-2A-10.” In Ray v. Ray, 216 W. Va. 11, 14 n.13, 602 S.E.2d 

454, 457 n.13 (2004), overruled on other grounds, Allen v. Allen, 226 W. Va. 384, 701 S.E.2d 106 

(2009), we found that a motion pursuant to West Virginia Code § 51-2A-10 has replaced a motion 

for relief from judgment under Rule 60(b) of the West Virginia Rules of Civil Procedure in family 

court.
3

December 26, 2018, and later filed his brief and appendix on March 28, 2019.5 Thereafter, the 

DVPO expired by its own terms on June 13, 2019. 

“‘Moot questions or abstract propositions, the decision of which would avail nothing in the 

determination of controverted rights of persons or of property, are not properly cognizable by a 

court.’ Syl. pt. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908).” Syl. Pt. 1, State 

ex rel. McCabe v. Seifert, 220 W.Va. 79, 640 S.E.2d 142 (2006). On appeal, petitioner argues that 

the family court erred in denying his renewed motion for reconsideration and that the DVPO 

against him should be vacated. Based on our review of the record, even if petitioner is correct that 

the DVPO was entered erroneously, we find that there is no need to vacate the DVPO due to its 

expiration.6 Therefore, we dismiss petitioner’s appeal as moot. 

 Dismissed as moot.

ISSUED: June 3, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

5

On April 1, 2019, petitioner filed a motion to supplement the appendix. We deny this 

motion as moot given our dismissal of petitioner’s appeal.

6

As relief, petitioner requests the expungement of the DVPO from his record in addition to 

its vacatur. However, petitioner fails to provide any argument or legal authority in support of that 

request. See State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (“Although we 

liberally construe briefs in determining issues presented for review, issues which are not raised, 

and those mentioned only in passing but are not supported with pertinent authority, are not 

considered on appeal”).