WV Supreme Court Rules People May Not Agree to Leave Each Other Alone.

I have the greatest respect for our judges and justices. They have a tough job. And, by my oath as a lawyer practicing in WV, just as when I was a member of the United State Air Force JAG Corps, I was obliged to show respect to those in authority. It is sometimes hard to separate the office from the person. Occasionally, against good intentions, the judge knows I think her/his ruling is utterly stupid. Well, our WV Supreme Court just made a doozy of a mistake, impacting perhaps 500 family law orders I have prepared and had entered and thousands in the State. Here is the case http://www.courtswv.gov/supreme-court/memo-decisions/fall2014/14-0042memo.pdf; it is: (sorry if this link is no longer alive: the pending case is Riffle v. Miller.)

David J. Riffle v.  Shirley I. Miller, a Harrison County case issue Nov. 24, 2014.

The Riffles agreed, and put in an order that they would leave each other alone. What could be wrong with that? We can contract to do pretty much anything, sing an aria, play a ball game, deliver a shipment of widgets, or buy a house.

Their order was “mutual”. They did not ask the Court to find either of them to be “the bad guy”. They just agreed to be nice.

Apparently Ms. Miller later decided NOT to be nice. So, the family court found her to be in contempt, and said she could purge herself of contempt by leaving Mr. Riffle alone for two years.

Apparently, not wanting to be nice or leave Mr. Riffle alone, and not wanting to be bound by her own agreed order any more, Ms. Miller appealed. The Harrison County Circuit Court agreed with her, and reversed the family court.

The WV Supreme Court sustained the circuit court.

NOW, IN WV a family court may NOT order to people not to call or bother the other against that person’s wishes unless they want to enter the bizarre world of domestic violence court.

In a bizarre twist, a unanimous court, none of whom are “in the trenches” with those of us who are, ruled a mutual restraining order ( I prefer “mutual no unwanted contact order”) must be tied to our domestic violence statute and can only be entered if there are findings of domestic abuse.

They have taken away the most simple, practical, tool we had to keep people OUT OF domestic violence and criminal court. What were they thinking?!

This is a very, very, very bad ruling, which misses entirely the fact that being pestered, bothered, constantly texted, embarrassed at Wal-Mart, or otherwise “bugged” is something we all have a right not to happen to us, and which we should all be able to enter into a binding agreement NOT TO DO!

It is a huge ruling against women, since they are the victims of such behavior more than men. But, it’s interesting that Ms. Miller was the violator here.

If two people divide their property, and their debts, work out alimony and attorney fees, reach a parenting plan agreement, agree on child support, parenting time, and all other issues, AND agree to leave each other in peace and quiet, why is the only invalid part of that agreement the latter?

“No unwanted contact” does NOT “trigger” the Federal Gun Control Act, nor does it mean the parties are abusers. It only means they have pledged to respect the other person’s privacy, and their space. If it is contempt to violate other terms of the agreed order, it should be contempt for intentionally violating a “no contact” order.

These orders have been invaluable tools to me and hundreds of family law lawyers and judges, and to the parties in these suits, ever the pesterers. Now they will know these non domestic violence orders will be unenforceable.

Riffle needed to have someone help her “put the brakes on”. Apparently she was not so inclined.

Once a judge “ascends to the bench” (sounds like they are going to heaven), they can lose focus on the real world they are ruling on.

Judges and lawyers don’t communicate that well. For example, judges are never present at mediation where much of the real work of the family court system takes place. Thus, they often have little understanding of what goes on there.

I will be talking with our legislators. We family court lawyers desperately need a tool that is NOT a sledgehammer (domestic violence order). We need a finer tool, the one the Supreme Court just took away from us!

We need our family court judges to have the power to approve an agreement by two consenting adults to leave each other alone! Why our wise justices cannot see that, and why they link being polite to domestic violence, I cannot fathom.

Perhaps that’s why I would never want to be, and never will be, a judge.

Author’s post script: since article was posted, the bill permitting “no unwanted contact” orders passed the WV Senate unanimously as Senate Bill 430 and awaits action in the House. We expect it to pass, so as many of us as possible should then contact the Governor’s office to encourage him to sign it into law. jbh

This post was written by Burton Hunter