Stratmeyer v. Stratmeyer

1997 SD 97 STRATMEYER, Kathryn

Richard J. Lam

bert, Stoakes, Eng Karla and John V.

berg, Appellees, Plaintiffs and

Gary STRATMEYER, J. Appellant.

No. 19605.

Supreme Court of South Dakota.

Argued Jan. 1997.

Reassigned May 1997.

Decided

Rehearing Aug. Denied Johnson, Eklund,

Rick Johnson of Nichol- son, Fox, Gregory, Peterson & for Plaintiffs and Appellees.

Timothy J. Wilka Rick L. Ramstad of Office, Falls, Wilka Law Sioux for Defendant Appellant. SABERS, (on reassignment). Justice [¶ 1.] In this we reconsider whether the South Dakota Legislature 26-10-25 to to all acts of inten- tional sexual abuse or to those acts of intentional sexual abuse which occurred after the effective date of the statute. (S.D.1995), 527 N.W.2d 903 held did not intend for SDCL 26-10-25 to be retroactive. We now overrule Koenig and hold that the South islature intended the statute to apply to all acts of intentional sexual abuse of children. when Rich- Therefore, judgment approximately of the to affirm the we court, although ages reason.1 was between of six and seven- for a different ard circuit at taking place teen.5 He recalls abuse 5,1995, Stratmeyer, Richard On [¶ 2.] farm, including on various locations and John Kathryn Karla Stoakes cab, vehicle, barn, coop, chicken tractor (Plaintiffs) commenced Engberg bedroom, guest and the basement (Defen- uncle, Gary Stratmeyer against their He also Defendant house. remembers children, dant), they claiming that when were threatening anyone him not to about the tell hands, at his sexual abuse they suffered abuse, specifics not but does recall emotional dis- causing each to suffer extreme threats. psycho- permanent emotional tress damage. Defendant moved to dismiss logical revelation, Following Ka- Richard’s [¶ 5.] on stat- complaint based Karla, they, that thryn, and John revealed injury claims. personal limitation for ute of too, Kathryn by were molested Defendant. motion. After The trial court denied his being molested while recalls Defendant trial, jury verdicts two-day returned visiting during the farm the summer John, found favor of Richard but Defen- when she was nine. She remembered limitation the claims of barred Karla, then taking her and her sister dant Karla.2 awarded Kathryn and The trees, seven, car in a where grove to an old $20,000 $30,416to damages of Richard Kathryn get seat and made in the back he damages in the amount Punitive John. attempted pene- her clothes. He remove awarded, $91,250 equally divided then penis with his failed. He trate her but Defendant prevailing Plaintiffs. in the remove get Karla seat and made back affirm. appeals. We penetrate her attempts her clothes. His incident, Following Defen- also failed. FACTS girls would dant threatened children, on spent Plaintiffs As [¶ 3.] if told allowed to ride snowmobile Hartford, farm near grandparents’ their re- happened. Karla does not anyone what Dakota, during the sum- particularly South call this incident. (the youngest son of their mer. Defendant sexually mo- Karla recalls Defendant parents)3 of their grandparents brother her on a different lesting her and sister period during on the farm lived re- during the same summer. She occasion Plaintiffs’ claims.4 relevant after he molesting them Defendant members 6, 1994, Richard called On December looking pornographic caught them at his as he good-bye, to tell his mother her occasion, attempted On this he magazines. con- During that planned to commit suicide. Ka- penis while penetrate Karla with his child, that, he was he revealed as a versation Kathryn in the room. does thryn was sexually He recalls molested Defendant. this incident. recall repeatedly fondling him and forc- Defendant molest- Defendant during Richard’s John remembers perform him oral sex ing during his sum- him on several occasions ing occurred to the farm. molestation visits Karla, children Kathryn, are the motion Richard Defendant’s 1. The circuit denied brother, Stratmeyer. Richard of Defendant's summary judgment the Plaintiffs and allowed sister, Janice John is the son Defendant’s theory proceed on the the statute Engberg. was tolled Defendant's fraudulent See, e.g., their of action. concealment of alleged by Plaintiffs 4. The first incident Schütz, Siegel, Barnett 1996 SD Green v. occurred in 1974 and the last incident occurred ¶ 9, (noting that fraudulent in 1985. may toll statute defendant concealment limitation). disposition of the case based Our pinpoint first time he can not 5. Richard dis- upon the need to SDCL 26-10-25 forecloses abused, began prior believes molestation but that doctrine in detail. cuss birthday. the first testified that sixth He to his specifically recall which he could incident that he was molested. Kathryn appeal. the first time and Karla did not roactively mer and 1979. The first time it to all visits acts of intentional sexual pointed happened, Defendant a .38 caliber abuse.

pistol head him at John’s while he forced times,

perform Other oral sex. STANDARD OF REVIEW perform fondled him forced him to oral ques [¶ 11.] Statute of limitation by restraining wrestling sex him with holds normally jury. are tions left for Howev or squeezing “smacking” testicles his er, construction of appli a statute and its complied. until he John was thir- particular present question cation facts a teen when and fourteen these incidents oc- law, Quam, reviewed de Bosse novo. v. curred. 8, (S.D.1995) 10 (citing 537 N.W.2d Schoen testimony was [¶ 8.] There of other inci- 197, (S.D. Tappe, rock v. 419 201 N.W.2d dents of Except abuse threats. for the 1988); City Ass’n, v. Rapid Johnson Softball which Kathryn memories of and Karla (S.D.1994)). abuse give 514 N.W.2d We no share, do all Plaintiffs that testified to the deference trial court’s conclusions of forgot being sexually never molested a City law de novo under review. Colton Defendant. Schwebach, ¶8, v. SD N.W.2d Therefore, the trial court “[t]hat [¶ On com- 9.] Plaintiffs its reached conclusion for a different reason Defendant, against alleging menced an action prevent does not this from affirming permanent psychological emotional and dam- upon the based correct reason.” Anderson age as a result sexual childhood Somers, (S.D.1990) 455 N.W.2d They abuse.6 that claimed Defendant accom- Bank, (citing Gilbert v. United Nat’l plished by taking advantage (S.D.1989); v. City Owens relationship confidential between Plaintiffs (1972)). Beresford, 87 S.D. 201 N.W.2d 890 fraudulently Defendant and he con- through cealed the molestation thi’eats and WHETHER THE PLAINTIFFS’ intimidation. CLAIMS ARE BY BARRED STATUTE allega- [¶ denied Plaintiffs’ 10.] Defendant OF LIMITATION. tions and asserted statute as explained This case is best Jus- an affirmative defense. He moved for sum- Konenkamp’s early writing tice in this case mary judgment, claiming that the action was as follows: barred statute of limitation provided in 15-2-14.7 Imagine being pricked The trial court on the arm with a motion, concluding genuine first, denied pin. his that a At such an intrusion would be issue of fact disturbing, material existed a might as to whether but with time seem un- relationship confidential existed between the imagine pin eventful. Now carried a parties fraudulently affliction, only whether dreaded discoverable after significance . way years concealed “the of the acts of incubation. Such often the menacing conduct,” of threats and so as to nature Many childhood sexual abuse. above, toll the only statute of limitation. As years noted later children realize the true endured, returned verdicts favor Richard significance of the abuse appeals. Although John. Defendant especially in cases where the molestation tolling effect of “fraudulent at family concealment” is occurred the hands of members inapplicable to the of this circumstances or other trusted individuals. For some children, we affirm on the basis that SDCL 26-10-25 sexual is so violation traumatic it action; governs applies this statute ret- psychologically becomes self-concealing, if begun, only At the time property Plaintiffs’ can be commenced within three ages Kathryn 30, were: Richard— years after the cause of action shall have Karla — ac- — 27, and John —31. crued: provides, part: 7. That statute in relevant (3) personal injury. An action for where, cases, Except special a limi- different 15-2-14(3). statute, prescribed by following tation is recovery civil actions other than for real offenses) reason, sanity. prior For laws of similar effect at the preserve Legislature enacted SDCL 26-10-25 act time the was committed which act would ereabing discovery for adult surviv- a rule felony. have constituted This statute ors of child sex abuse. See intended to retroactive. through 29 903, 907 passed as a whole in 1991. 1991 SD (Sabers, J., part concurring in and dissent- Laws, 1-5, §§ at ch. 328. We Session agree part). Although ... ing whole, look at the well as inapplicable to concealment is fraudulent relating subject to the same enactments of this case and thus the circumstances determining the intent of statute. when expired toll an otherwise limitations cannot Comm’n, Kay Elec. ser South State plaintiffs a viable period, nonetheless have (S.D.1994). “A statute action; cause of SDCL 26-10-25 extended passed parts a whole and not or is filing the found their time for because general by pur and animated one sections is “discovered,” enlarged pe- within the Sutherland, 2A Statutes & pose intent.” riod, injuries the suffered. Construction, 46.05, § Statutory at 103 question simply whether the 14.] The is [¶ ed., ed.1992). (Singer proper “It is not 5th ap- Legislature intended SDCL 26-10-25 to interpretation to the one to to confine section only all conduct or

ply to acts of intentional impact Id. retroactive is “[I]f be construed.” occurring those of intentional conduct to acts provisions clearly for of the of intended some the after the effective date of statute. SDCL act, logical it assume the seems to provides: impact for intended retroactive Any on intentional con- civil action based Heuermann, all.” them In re S.D. any recovery by for of brought person duct (1976). 321, 240 N.W.2d damages injury as a result of for suffered shall com- childhood sexual abuse be Legislature If the the did intend al- years of act menced within three the retroactively to all acts of apply injury leged to have caused the or condi- abuse, would abso- childhood sexual there tion, years victim or three chap- lutely no violations of reason include reasonably should have dis- discovered by incorporate 22-22 reference ter injury covered that or condition chapter laws SDCL “prior of similar effect”. act, period ex- by caused whichever go 22-22 did not into effect until pires later. that viola- Clearly, Legislature intended analysis is 26-10- Also relevant to our ac- chapter 22-22 would be tions of SDCL 29: -29, be- through via 26-10-25 which tionable 26-10-29, §§ inclu- As used in 26-10-25 to Equally in 1991. clear is that came effective sive, act sexual abuse childhood Legislature of intended acts violation against committed defendant 13.2801, 13.2803, §§ of SDC and 13.1727 complainant eighteen who was less than (1939); 4092, 4097, §§ and 4098 of SDRC years age of at the time of the act and (1919); 325, 330, SDCompL §§ of and 331 a of which act would have been violation (1913); §§ of SD RPen C and 331 chapter prior 22-22 or laws of ef- similar (1903); 6521, 6526, §§ Dako- and 6527 of the fect at act was committed 1887; §§ of ta Territorial Code felony. which act would have constituted 326 of the Pen C. Dakota Territorial plain reading of from a [¶ 15.] It is obvious of as well. If the Code 1877 to be actionable SDCL 26-10-25 and 26-10-29 that the Legislature had SDCL 26-10-25 intended apply SDCL 26-10-25 to islature intended future of childhood sexual acts acts of intentional sexual abuse all childhood abuse, the term simply it defined would This is so because SDCL 26-10-29 conduct. ch. incorporated reference SDCL “any act” abuse as defines childhood sexual There- prior 22-22 or laws of similar effect. committed which act would defendant (sex fore, obviously Legislature ch. 22-22 have been a of SDCL violation apply retroactively firming in this trial discovery court’s ease.8 where rule “the severe emotional trauma ex perienced by [plaintiff] being her resulted Since decided fully unable understand or discover her special necessary protection was for vindica- during applicable statuto future, tion abuse in of victims sexual ry period.”); limitations see Ann Marie Ha greater is consistent that it would afford Note, gen, Tolling the Statute Limitations protection occurring in past for acts Adult Survivors Childhood Sexual well, adhering than to a rather for Abuse, (1991) 76 IowaLRev (calling for previously provided rule under occurrence statutory reform and 15-2-14(3) pointing out these and 15-2-22.9 adult child survivors of sexual abuse are may pub look to the “blamelessly injuries ignorant” of then’ lic policy ap retroactive furthered by allowing should be re-victimized their plication period. Accord limitation); to hide abuser behind statute Spokane Empire Howell v. & Inland Blood Donaldson, generally see Russell G. Annota Bank, 114 Wash.2d 785 P.2d tion, Running Against Limitations Action (1990). early age at an Sexual abuse Damages Child, Civil Sexual Abuse for prompts involuntary coping mechanisms (1993). 9 ALR5th 321 making which may prevent victims from the important, Even in [¶ 20.] more this state causal connection the courts the need look the statutes psychological suffered as children and public policy. themselves to discern As not problems they experience as adults. ed in Isaac v. State Farm Mutual Automo necessarily not [A] does Co., 752, bile Insurance 522 N.W.2d 756 n.1 accrue when the manifestations of first (S.D.1994),the Legislature is the final arbiter leeway injury occur. The claimant has public policy, clearly it and has established start action until she more knows public policy South Dakota’s in these stat injury probable about the and its cause. utes. justification policy The for applying the protect statute of limitations to defendants on foregoing [¶ 21.] Based discus liability from the threat of for deeds in the sion, SDCL 26-10-25 and SDCL 26-10-29 past unpersuasive in is incestuous abuse applied retroactively. should be Accordingly, Further, injustice cases.... of bar- the Plaintiffs’ judgments against Defendant ring meritorious claims before the claimant are affirmed.10 injury outweighs knows of the the threat of ’ stale or fraudulent actions. [¶ 22.] KONENKAMP and Hammer, 257, Hammer v. 142 Wis.2d 418 JJ., GILBERTSON, concur. (citations 23, (App.1987) 27 N.W.2d & inter omitted); quotations nal MILLER, AMUNDSON, accord v. Osland C.J. and (N.D.1989) Osland, (af 907, J., 442 N.W.2d 909 dissent. language opinion majority opinion The in bulk is because the South Dakota my special writing Koenig, opportunities taken from in 527 islature has had two to amend its (Sabers, J., concurring part N.W.2d at 906-08 in statutes. We should fix our own mistakes—the dissenting part). enough in dealing has to do in with blizzards, floods, Clearly, and taxation. it does Furthermore, legislative held this court in Richards v. take action for this court Lenz, (S.D.1995), legally Cary 539 N.W.2d 85 is "if there achieve See correct conclusion. any ¶ applies, City Rapid City, doubt to which such doubt 1997 SD 559 N.W.2d Smith, longer oveiruling should be resolved in favor of the limita State Co. v. Theatre Baldwin, period.” (Citing Morgan (S.D.1979) tion (declaring 276 N.W.2d 264 un- (S.D. 1990)). N.W.2d constitutional a statute which withstood an iden- earlier); challenge eighteen years tical see also Inc., Charter, 10. The dissent fails to address merits of Chambers v. Dakotah 488 N.W.2d issue, i.e., retroactivity (abandoning South Dakota lex loci delicti Legislature clearly actions). Koenig intended statute to ret- in tort rule multi-state was a consequently, majority roactive in mistaken decision and outdated at birth. It Instead, simply wrong. put it faults the now should to rest and forever. (Sabers, J.,

MILLER, at 906-908 con (dissenting). nig, 527 N.W.2d Chief Justice part dissenting part). in This curring majority respectfully The dissent. analysis persuasive was not when this Court holding Koenig v. opinion overrules our interpreted 26-10-25 1995 and (S.D.1995), without Moreover, now. not be held to be so should any change in state of the law comport that this conclusion does not I assert ruling legislature that our indication legislature wake with the actions of the in the enacting comport with its intent in did not original Koenig, the our decision. Since majority’s position is The SDCL 26-10-25. opportunities to legislature has had two sup- intent legislative on or new not based abrogate hold our amend SDCL it to be precedent. appears Rather porting give applica ing and the statute retroactive change composi- result in the the sole to do If the tion. Twice has declined so. our in Koe- of this Court since decision tion legislature had in fact intended the statute opinions to have nig.11 If this are Court’s retroactive effect it would have been value, I submit any precedential respectfully holding simple supersede matter to membership is change in of this Court so amending expressly precedent. not a sufficient basis to abandon to take provide. legislature’s reluctance must be The intent of a statute [¶ 25.] persuasive evidence holding with our issue said, legislature what the determined intend retroac it did not the statute should what this Court thinks concerning tively. Any doubt Communications, Inc. have said. US West 26-10-25 has been re Commission, v. Public Utilities solved. (S.D.1993) (citation omitted). It is majority’s Though the ultimate liberally task construe not our statutes sympathies holding responds to the raised harsh In re Presentation Sis avoid results. my of this it is belief that such the facts (S.D.1991). ters, Inc., 471 N.W.2d contemplated In was enacted in 1991. SDCL 26-10-25 26-10-25; legislature can only the SDCL Koenig, interpret we asked to SDCL this retroactive. When make statute first time and its 26-10-25 determine constant, this of the law remains state a claim of childhood sexual applicability to stabili- function is to ensure law’s Court’s We occurring before its enactment. ty predictability.12 of limita so and concluded did applied provided by 26-10-25 tions state I am authorized to that Justice oc only to incidents of sexual abuse which joins in this dissent. AMUNDSON no ex after because “there is curred by the pression [a retroactive] intention Legislature.” Koenig, 527

South

N.W.2d at 904. For forth the same reasons set writ Koenig, now-majority

his dissent concludes the

er retroactively. Koe applied " decided, original was in error. 'Wisdom Koenig decision v. Lambert was our 11. At (Ret.) comes, voting ought Wuest was still a member of Justice so one never too often ” Konenkamp disqualified this Court. Justice merely reject it comes late.’ because Walz participating his in our decision because of Hudson, City judge. as a involvement in the case trial J., (Wollman, concurring specially) (quoting Hen yet a of this Justice Gilbertson was not member Co., v. Union National Bank Trust slee Planters Judge at the our decision. Circuit Court 93 L.Ed. 69 S.Ct. 335 U.S. Konenkamp, Dobberpuhl, sitting for Justice J., (1949) (Frankfurter, dissenting)). majority opinion. our wrote submit, however, was a decision (S.D.1995). legislature's intent in proper determination supported enacting and is say is without This is not to Court holding. changed legislature's response to the remedy when circumstances

Case Details

Case Name: Stratmeyer v. Stratmeyer

Court Name: South Dakota Supreme Court

Date Published: Jul 23, 1997

Citation: 567 N.W.2d 220

Docket Number: None

Court Abbreviation: S.D.