Dora CASTANO, Petitioner and Appellee, v. Richard R. ISHOL, Respondent and Appellant.
No. 26323.
Supreme Court of South Dakota.
Decided Dec. 5, 2012.
2012 S.D. 85
Considered on Briefs Oct. 1, 2012.
Jeromy J. Pankratz, Reed T. Mahlke, Glover & Helsper, P.C., Brookings, South Dakota, Attorneys for respondent and appellant.
GILBERTSON, Chief Justice.
[¶ 1.] Richard Ishol appeals a protection order restricting his contact with his former wife and her daughter for a period of one year. We reverse.
Facts
[¶ 2.] Dora Castaño came to Brookings, South Dakota in April 2010 and she and Ishol were married that June. Castaño received her visa in April or May of 2011 but her relаtionship with Ishol began to deteriorate when she did not take a job that he had arranged for her. Ishol had a final interview with the Department of Homeland Security in June 2011 and signed a document on June 27 withdrawing his support for Castaño‘s permanent residence status. Ishol testified during the hearing in this mаtter that, at that point, “they annulled everything, my letter of support dissolved the marriage, everything was dissolved.”
[¶ 3.] Castaño stayed at a domestic violence shelter from August 14 through November 2, 2011. On November 30, Ishol sent Castaño an e-mail offering her a car he wanted to get rid of. Ishol also mentioned some health issues he had and a car accident that he had been involved in. Castaño replied on December 11, telling Ishol, “No thank you regarding the car.” Castaño further instructed, “PLEASE DO NOT CONTACT ME AGAIN.” Despite Castaño‘s request, Ishol continued to send her e-mails. On December 30, 2011, he sent her an e-mail advising that he had been contacted concerning her visa. In the e-mail, Ishol added, “WE CAN STILL SAY HI TO EACH [OTHER].” On January 27, 2012, Ishol sent another e-mail to Castaño offering her $200 to clean a house he wanted cleaned. Ishol again commented, “don‘t understand why we can‘t be nice and be friends of sоme type in a nice way.” On February 2, 2012, Ishol sent
[¶ 4.] By March 2012, Castaño had moved into a new apartment. Although she had not given Ishol her new address, on March 2, she received an envelope in the mail with a bracelet inside, but no note. Ishol later admitted during the hearing in this matter that he had learned Castaño‘s address through his position with Brookings Municipal Utilities as a meter reader. Ishol further admitted that he sent Castaño the bracelet after coming across it while doing some unpacking and because he thought it must belong to her. About a week after Castaño received the bracelet, her daughter was coming home from school and ran into Ishol in her and her mother‘s apartment building. Ishol attempted to converse with the child, but she was afraid of him and found him very intimidating.
[¶ 5.] Castaño had at least two additional enсounters with Ishol. In one instance, she was outside a house where she was doing some clean-up work and Ishol approached her and attempted to talk to her. Castaño told Ishol to leave her alone and not to talk to her anymore. In another instance, Castaño was with a companion at a local restaurant when Ishol approached her table to talk to her. Castaño ignored him.
[¶ 6.] On March 13, 2012, Castaño filed a form petition and affidavit for a domestic abuse protection order. Castaño checked boxes on the petition alleging Ishol: had made her fearful that he was about to cause her physical harm or bodily injury; willfully, maliciously, and repeatedly followed her; harassed her by pursuing a knowing and willful course of conduct which seriously alarmed, annoyed, or harassed her, with no legitimate purрose; showed a continuing pattern of harassment; and willfully, maliciously, and repeatedly harassed her by means of verbal, electronic, or digital media, or by mechanical, telegraphic, or written communication. Castaño further alleged that Ishol had guns, was supposed tо be on medication, and that when he stopped taking his meds he was very aggressive and dangerous. Castaño requested a protection order extending to certain locations frequented by her and her daughter. The trial court issued a temporary protection order and set a hearing on a permanent order for March 21, 2012.
[¶ 7.] Castaño appeared at the March 21 hearing with the assistance of an interpreter, but without counsel. Ishol appeared with counsel. Indicating Castaño “already went” because she had “filed the Petition,” the trial court began by hearing Ishol‘s case. Ishol testified and offered various explanations for his contacts with Castaño, attributing their personal encounters to chance or coincidence resulting from his work as a meter reader. Castaño then cross-examined Ishol through her interpreter, but much of her examination turned into statements on her own behalf. Other than references to e-mails, the trial court struck Castaño‘s statements as irrelevant. The trial court then gave Ishol‘s counsel an opportunity to cross-examine Castaño about the e-mаils.
[¶ 8.] At the close of the hearing, the trial court granted the protection order for one year and made the order applicable to the extended areas requested by Castaño. The court subsequently entered a written protection order excluding Ishol from Castаño‘s residence and from coming within
Issue 1
[¶ 9.] Whether Ishol‘s cross-examination was improperly restricted.
[¶ 10.] As the hearing on this matter went on, the trial court focused on Ishol‘s e-mails, striking Castaño‘s testimony when it drifted into other matters. When the court gave Ishol‘s counsel an opportunity to question Castaño, it specifically limited counsel to, “[a]ny questions about the emails?” Ishol argues on appeal that this was an improper limitation of cross-examination.
In а civil case, while the suppression of all cross-examination may amount to a denial of due process, restriction of cross-examination would rarely rise to constitutional dimensions, although it might amount to an abuse of discretion where the probative value of the еxcluded evidence was sufficiently high. Adam v. Adam, 436 N.W.2d 266, 269 (S.D. 1989) (quoting 3 J. Weinstein and M. Berger, Weinstein‘s Evidence ¶ 611-46 (1988)).
[¶ 11.] In Silvia v. Duarte, 421 Mass. 1007, 657 N.E.2d 1262 (1995), the Massachusetts Supreme Court specifically considered the denial of an opportunity to cross-examine a petitioner in that state‘s counterpart to a protection order proceeding. In its analysis, the court notеd:
“A defendant has a general right to cross-examine witnesses against him. There may be circumstances in which the judge properly may deny that right in a [protection order] hearing, and certainly a judge may limit cross-examination for good cause in an exercise of discretion.” ... “[W]hеther a defendant‘s constitutional rights have been violated in a [protection order proceeding] will depend on the fairness of a particular proceeding.”
Id. (quoting Frizado v. Frizado, 420 Mass. 592, 651 N.E.2d 1206 (1995)).
[¶ 12.] In Silvia, the Massachusetts court upheld the trial court‘s denial of the respondent‘s request to cross-examine the petitioner largely on the basis of the trial court‘s knowledge of court records disclosing the respondent had a history of violence directed at the petitioner and others that had resulted in the respondent‘s imprisonment. The court concluded the record cоncerning the respondent‘s past conduct available to the trial court and the trial court‘s previous experience with the respondent showed the denial of cross-examination was not an abuse of discretion or prejudicial because a rehearing would рroduce the same result.
[¶ 13.] The record here, however, reflects no similar history of domestic violence. Yet, the trial court granted a protection order on the basis that domestic abuse had occurred while, at the same time, denying Ishol‘s counsel the opportunity to cross-examine Castaño on any issues of domestic violence beyond Ishol‘s e-mails. This was an abuse of discretion, which, as Ishol asserts, “deprived this Court of a record from which there may be meaningful review.” See Davis v. Davis, 1999 S.D. 116, ¶ 8, 598 N.W.2d 921, 922.
Issue 2
[¶ 14.] Whether the trial court erred in failing to make adequate findings of fact.
[¶ 15.] Relying on Shroyer v. Fanning, 2010 S.D. 22, 780 N.W.2d 467, Ishol argues that the trial court failed to make adequate findings of fact to determine whether the trial court abused its discretion in granting Castaño a protection order. In Shroyer, the petitioner filed for a protection order
Although the circuit court generally recited that the elements of a protection order had been shown, i.e., jurisdiction, venue, status as a family or household member, and proper notice and opportunity to be heard, the circuit court merely concluded that domestic abuse had occurred. No findings, oral or written, support that conclusion. Mere concern about an ongoing and inconclusive police investigation does not suppоrt a finding of abuse. The circuit court‘s general statements did not “indicate which version of the evidence [it] believed” or “indicate how the evidence met the statutory elements of [domestic abuse]” to permit the issuance of the protection order. Therefore, in this cаse, the circuit court erred by not entering findings of fact and conclusions of law that would have permitted a “meaningful review” of whether the protection order was appropriately granted.
Shroyer, 2010 S.D. 22, ¶ 8, 780 N.W.2d at 470-71 (citations omitted). We went on to reverse and remand the protection order granted in Shroyer.
[¶ 16.] Shroyer was followed a year later in March v. Thursby, 2011 S.D. 73, 806 N.W.2d 239. In March, a petitioner filed a petition for a protection order. A hearing was held in which the petitioner testified as to the reasons for the order. At the close of the hearing, the trial court orally indicated that it found the petitioner‘s testimony credible and granted her a protection order for two years. The actual protection order was a pre-printed form containing boxes checked for factual findings. The court checked a box indicating petitioner had suffered physical injury resulting from an assault or crime of violence. However, the testimony at the hearing was about stalking and the box concerning stalking was not checked. After the trial court rotated off the county bench, the respondent filed a motion for detailed findings of fact and conclusions of law. The successor judge held a hearing and determined she could not change the findings and conclusions made by the previous judge. The respondent appealed, arguing the protection order was not supported by comprehensive findings and conclusions. This Court agreed, citing Shroyer and concluding:
Here, the circuit court indicаted that it believed [the petitioner‘s] version of the events. But the written finding did not correspond with the oral testimony of [the petitioner]. Findings must be entered “with sufficient specificity to permit meaningful review.” Although the court indicated it believed [the petitioner‘s] version of the events, it did not “indicаte how the evidence met the statutory elements of stalking.” The circuit
court failed to “insure that the findings of fact and conclusions of law are clearly entered.” This failure requires reversal.
March, 2011 S.D. 73, ¶ 20, 806 N.W.2d at 244 (citations omitted).
[¶ 17.] The protection order here contains defects like those in Shroyer and March. It is a form order on which the trial court checked boxes finding that: it had jurisdiction; the parties had reasonable notice and opportunity to be heard; jurisdiction and venue were properly before the court; the parties were “family or household members” within the meaning of
[¶ 18.] Reversed.
[¶ 19.] KONENKAMP, ZINTER, SEVERSON and WILBUR, Justices, concur.