POINT PLEASANT – A Mason County Sheriff's deputy charged with violating a restraining order filed against him by his estranged wife is asking a judge to dismiss it on the grounds it was improperly filed.

Robert E. Fruth II on March 28 filed a petition for extraordinary relief in Mason Circuit Court from a decision rendered against him in family court. In his petition, Fruth asked that a writ of prohibition be issued against Mason Family Law Judge Rebecca Cornett from enforcing her decision earlier in the month approving a domestic violence protective order sought by Fruth's wife, Melissa.

Fruth alleges the order is invalid since the magistrate who first issued it failed to properly verify information Melissa provided to her. Fruth's petition comes in the midst of him not only facing two pending counts in magistrate court for subsequently violating the protective order, but also five years after a conviction on a previous related charge.

'A legal nullity'

According to court records, Melissa filed for divorce from Robert on Feb. 3. Eight days later, she filed a petition in Mason Magistrate Court for a domestic violence protective order.

The order was granted by Magistrate Gail Roush. However, Robert alleges Roush failed to verify from Melissa whether she attempted to notify him of the petition.

Records show Robert filed a motion to dismiss the petition. A hearing on it was held on March 9 before Cornett.

During the hearing, Roush testified while she swore Melissa under oath that the information provided was accurate, she "conceded that she could not be 'one hundred percent sure' whether the petition was signed earlier or in her presence, basing her belief on the fact that it is was the way she always does it." Also, Roush testified that when she was in her presence seeking the petition, Melissa was aware Robert was "being treated at a medical facility at the time."

Despite the ambiguity of Roush's actions, Robert avers that prior to the conclusion of the hearing, Cornett had a member of her staff, who is a notary public, swear Melissa to the accuracy of her petition and notarized it. Though she subsequently denied his motion to dismiss, Cornett agreed to stay her order pending Robert seeking a writ of prohibition.

In his petition, Robert maintains Roush violated not only state code, but also the rules of the state Supreme Court that make clear magistrates are only to issue a protective order "upon the filing of a verified petition." He asserts Roush's failure to verify, and Cornett's failure to dismiss Melissa's petition makes it "nothing more than a legal nullity.

The case is assigned to Judge David W. Nibert

Previous charges

Twelve days after the disputed protective order was filed, Fruth, a sergeant with the Mason County Sheriff's Office, was arrested and charged with two counts of violating it. According to the criminal complaint filed by West Virginia State Trooper K.M. Gilley, Fruth was in possession of ammunition, and made contact with Melissa through mutual friends via e-mail and telephone about dropping it.

Records show he was released on $5,000 bond, and placed on home confinement. Following the arrest, Mason County Sheriff David Anthony announced Fruth was suspended without pay pending the outcome of the case.

In 2006, Fruth was charged with not only violating a protective order, but also telephone harassment. Records show he was arrested June 17, 2006, the day after Melissa spotted him around their house after she filed a previous protective order, and a month after an investigation found he made repeated telephone calls to David Tussey accusing Tussey of breaking up his marriage.

The two charges were dropped when Fruth agreed to plead no contest to a charge of disorderly conduct. Jackson County Magistrate Tom Reynolds, who was appointed to the case after Roush and Magistrate Cheryl Ross recused themselves, on Dec. 19, 2006, gave Fruth a suspended sentence of 24 hours in jail, and ordered him to pay $160.50 in court costs.

Records show Fruth completed payment six months later.

As of presstime, neither a trial date on the pending criminal charges against Fruth nor a hearing date on his writ of prohibition has been scheduled.

Mason Circuit Court,case number 11-C-31 (writ of prohibition) and Mason Magistrate Court case numbers 11-M-229, 231 and 06-M-631, 870 and 1213(Fruth criminal)

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