841 N.W.2d 22
S.D.2013Background
- Terri Trumm and Kevan Cleaver are divorcing; Terri filed for a domestic abuse protection order under SDCL ch. 25-10.
- A letter containing embarrassing and partly false personal information about Terri was mailed to many Vermillion school employees; Terri did not write it and believed Kevan did.
- Eleven employees received the letter; postal authorities intercepted most copies. Terri alleged Kevan was the source because only he knew some disclosed facts and two others knew those facts only via Kevan.
- Terri also cited odd texts and an unexpected Valentine’s card from Kevan as additional harassing conduct.
- The circuit court issued a domestic abuse protection order after a bench hearing; Kevan appealed, arguing statutory misinterpretation and abuse of discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether stalking under SDCL 22-19A-1 can constitute "domestic abuse" under SDCL 25-10-1(1) absent a criminal conviction | Trumm: A violation of the stalking statute committed between family/household members qualifies as domestic abuse for a civil protection order; no criminal conviction required | Cleaver: Stalking can count as domestic abuse only if there is a criminal conviction under SDCL 22-19A-1 | Court: No conviction required; "any violation" of the stalking statute committed between family/household members suffices for a civil protection order under SDCL 25-10-1(1) |
| Whether the circuit court clearly erred in finding Cleaver authored/mailed the letter | Trumm: Circumstantial evidence (exclusive knowledge; others learned facts from Cleaver; lack of motive for others) supports the finding | Cleaver: Denied authorship; offered no record evidence identifying another writer | Court: Affirmed the factual finding as not clearly erroneous based on circumstantial evidence and credibility determinations |
| Whether the circuit court abused its discretion in granting the protection order | Trumm: Civil protection order appropriate given preponderance showing of domestic abuse (stalking and harassment) | Cleaver: Even if facts found, court misapplied the statute so order was improper | Court: No abuse of discretion; issue rests on correct statutory interpretation already affirmed |
| Whether appellate attorney fees should be awarded to Trumm | Trumm: Sought fees because Cleaver’s appeal lacked merit and increased her costs | Cleaver: No persuasive response in record | Court: Awarded appellate attorney fees to Trumm as appeal was unreasonable and meritless |
Key Cases Cited
- In re Estate of Hamilton, 814 N.W.2d 141 (S.D. 2012) (statutory interpretation reviewed de novo; consider statute as whole)
- Wheeler v. Farmers Mut. Ins. Co., 824 N.W.2d 102 (S.D. 2012) (presume every word of a statute is used for a purpose)
- Stahl v. Pollman, 716 N.W.2d 794 (S.D. 2006) (purpose of domestic abuse statutes: provide efficient civil remedy alternative to criminal prosecutions)
- Shroyer v. Fanning, 780 N.W.2d 467 (S.D. 2010) (factfinder credibility and weight of evidence reviewed for clear error)
- Zarecky v. Thompson, 634 N.W.2d 311 (S.D. 2001) (when two permissible views of evidence exist, factfinder’s choice is not clearly erroneous)
- Wiedenfeld v. Wiedenfeld, 774 N.W.2d 288 (S.D. 2009) (factors for awarding attorney fees in domestic relation cases)