#26662-a-SLZ

2013 S.D. 85

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
TERRI TRUMM,                                Petitioner and Appellee,

      v.

KEVAN CLEAVER,                              Respondent and Appellant.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIRST JUDICIAL CIRCUIT
                     CLAY COUNTY, SOUTH DAKOTA

                                   ****

                   THE HONORABLE STEVEN R. JENSEN
                               Judge

                                   ****

CRAIG K. THOMPSON
Vermillion, South Dakota                    Attorney for petitioner
                                            and appellee.


KEVIN J. LOFTUS of
Kennedy Pier Knoff Loftus, LLP
Yankton, South Dakota                       Attorneys for respondent
                                            and appellant.

                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON NOVEMBER 4, 2013

                                            OPINION FILED 12/04/13
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ZINTER, Justice

[¶1.]        Terri Trumm petitioned for a domestic abuse protection order against

Kevan Cleaver under SDCL chapter 25-10. Terri argued that Kevan’s conduct

amounted to stalking under SDCL 22-19A-1. She also argued that, by statutory

definition, stalking under SDCL 22-19A-1 constituted domestic abuse under SDCL

25-10-1(1) if the stalking involved family or household members. The circuit court

agreed and granted the protection order. On appeal, Kevan argues that the circuit

court misinterpreted SDCL 25-10-1(1) and abused its discretion in granting the

order. We affirm.

                             Facts and Procedural History

[¶2.]        Terri and Kevan are divorcing. They live in Vermillion, where Terri is

the director of the Vermillion School District’s alternative school. On February 11,

2013, a letter appearing to have been written by Terri was mailed to 131 people in

Vermillion. Most of the intended recipients were employed by the Vermillion School

District. Although the letter was intercepted by postal authorities before most of

the people received it, the letter was delivered to eleven school district employees.

Terri did not write the letter.

[¶3.]        The letter disclosed embarrassing personal facts about Terri, some of

which were misleading or false. Terri believed that Kevan wrote and mailed the

letter. Based on this belief and other conduct by Kevan, Terri petitioned for a

domestic abuse protection order under chapter 25-10.

[¶4.]        At the hearing on the petition, Terri and Kevan gave conflicting

testimony. Terri testified that only Kevan knew of the facts disclosed in the letter.


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Terri was convinced that Kevan wrote and mailed the letter because of his exclusive

knowledge of those facts, the turmoil in their marriage, and because she deactivated

his cellphone the day before the letter was mailed.

[¶5.]        Kevan denied writing and mailing the letter. Kevan conceded that he

had told two people about the facts contained in the letter. He testified that he did

not know whether either of them wrote and mailed the letter.

[¶6.]        Terri also sought the protection order because of other conduct she

considered harassing. Terri testified that, close to the time of the letter, Kevan sent

her odd text messages, along with an unexpected Valentine’s Day card. She

testified that she and Kevan rarely exchanged Valentine’s Day cards, and

considering the letter and pending divorce, she found the card harassing. Kevan

denied any intention to harass Terri. He testified that the card was meant as a nice

gesture.

[¶7.]        At the conclusion of the hearing, the circuit court granted a domestic

abuse protection order. Kevan appeals.

                                       Decision

[¶8.]        Kevan argues that the circuit court misinterpreted SDCL 25-10-1(1),

which defines “domestic abuse.” Domestic abuse is a prerequisite for the issuance

of a protection order under SDCL 25-10-5. Kevan contends that a person must be

convicted of the crime of stalking under SDCL 22-19A-1 before stalking can

constitute domestic abuse under SDCL 25-10-1(1). To Kevan, without a criminal

conviction for stalking, a domestic abuse protection order based on stalking may not




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be granted. Statutory interpretation is a question of law reviewed de novo. In re

Estate of Hamilton, 2012 S.D. 34, ¶ 7, 814 N.W.2d 141, 143 (citation omitted).

[¶9.]          A circuit court may grant a domestic abuse protection order if it “finds

by a preponderance of the evidence that domestic abuse has taken place[.]” SDCL

25-10-5. Domestic abuse, as relevant here, is defined as “[a]ny violation of . . .

chapter 22-19A [stalking] 1 . . . if the underlying criminal act is committed between

family or household members[.]” SDCL 25-10-1(1).

[¶10.]         Language requiring a criminal “conviction” is not used in SDCL 25-10-

1(1). That is significant because related statutes in chapter 25-10 addressing

protection from domestic abuse require a criminal conviction. See SDCL 25-10-5.3

(“If any person is convicted of a crime involving domestic abuse . . . .” (emphasis

added)); SDCL 25-10-17.1 (“In addition to any other penalty, assessment, or fine

provided by law, the court shall order any person convicted of a crime involving

domestic violence or domestic abuse to remit costs in the amount of twenty-five

dollars to the clerk of courts.” (emphasis added)); SDCL 25-10-25 (“The court may

order that any defendant convicted of a crime involving domestic abuse be

prohibited from contact with the victim . . . .” (emphasis added)). Thus, the

Legislature required the conviction of a crime in many sections of chapter 25-10, but

it excluded that requirement from SDCL 25-10-1(1). This guides us in construing


1.       Stalking is defined, in part, as the willful, malicious, and repeated
         harassment of another person. SDCL 22-19A-1(1). Harassment is “a
         knowing and willful course of conduct directed at a specific person which
         seriously alarms, annoys, or harasses the person, and which serves no
         legitimate purpose.” SDCL 22-19A-4. A “course of conduct” is “a pattern of
         conduct composed of a series of acts over a period of time, however short,
         evidencing a continuity of purpose.” SDCL 22-19A-5.

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SDCL 25-10-1(1) “[s]ince statutes must be construed according to their intent, [and]

the intent must be determined from the statute as a whole, as well as enactments

relating to the same subject.” In re Estate of Hamilton, 2012 S.D. 34, ¶ 7, 814

N.W.2d at 143 (quoting Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d

600, 611).

[¶11.]        We are also guided by the fact that, unlike the related statutes cited

above, SDCL 25-10-1(1) requires a “violation” of SDCL 22-19A-1 rather than a

“conviction” under the statute. “[E]very word of a statute must be presumed to have

been used for a purpose, [and] . . . every word excluded from a statute must be

presumed to have been excluded for a purpose.” Wheeler v. Farmers Mut. Ins. Co.,

2012 S.D. 83, ¶ 21, 824 N.W.2d 102, 109 (quoting 2A Norman J. Singer, Sutherland

Statutory Construction § 46.06, 181-92 (6th ed. 2000)).

[¶12.]        Kevan’s reliance on the phrase “criminal act” overlooks the context in

which that phrase is used. In 2005, the Legislature added the second sentence of

SDCL 25-10-1(1). As is relevant here, that sentence defines domestic abuse as

“[a]ny violation of . . . chapter 22-19A [stalking] . . . if the underlying criminal act is

committed between family or household members[.]” See 2005 S.D. Sess. Laws ch.

135, § 1 (emphasis added) (adding the second sentence to SDCL 25-10-1(1)). Thus, a

protection order may be granted if “any violation” of SDCL 22-19A-1 occurs as long

as the underlying criminal act of stalking is “committed” between family or

household members. See SDCL 25-10-1(1). We acknowledge that the phrase

“criminal act” is also in the statute. But if a violation of SDCL 22-19A-1 is




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committed between family or household members, it is a “criminal act” whether or

not the State elects to prosecute the case as a criminal matter.

[¶13.]       We finally note that Kevan’s interpretation contravenes the

Legislature’s purpose in authorizing domestic abuse protection orders. “Domestic

abuse statutes . . . are enacted, ‘to provide an efficient remedy for victims of abuse

as an alternative to other available legal remedies such as criminal charges, tort

claims, or divorce which victims are sometimes reluctant, unable or unwilling to

use.’” Stahl v. Pollman, 2006 S.D. 51, ¶ 14, 716 N.W.2d 794, 797 (quoting State v.

Errington, 310 N.W.2d 681, 682 (Minn. 1981)). Protection-order statutes provide

victims with an efficient, alternative remedy to criminal prosecutions. They allow

victims to obtain protection without having to meet the higher beyond-a-reasonable-

doubt standard of proof and without having to rely on the State to elect to prosecute

a criminal case. Although Kevan contends that Terri has an efficient, alternative

remedy in SDCL chapter 22-19A—which authorizes a stalking protection order—

“the availability of such an alternative does not displace the other civil or criminal

remedies available to victims[.]” Id.

[¶14.]       We conclude that the circuit court properly interpreted SDCL 25-10-

1(1). Terri’s civil remedy under chapter 25-10 did not require a criminal conviction

for stalking under SDCL 22-19A-1.

[¶15.]       Kevan also challenges the grant of the protection order. Kevan first

denies that he wrote the letter. Alternatively, he argues that, even if the circuit

court’s findings of fact are supported, the court abused its discretion in granting the




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protection order. We affirm the court’s findings regarding the letter. 2 We also

reject Kevan’s abuse of discretion argument because it is based on the same

incorrect interpretation of SDCL 25-10-1(1) that we discussed above.

[¶16.]         Terri moves for appellate attorney’s fees. “Attorney fees are allowable

in domestic relation cases, ‘consider[ing] the property owned by each party, the

relative incomes, the liquidity of the assets and whether either party unreasonably

increased the time spent on the case.’” Wiedenfeld v. Wiedenfeld, 2009 S.D. 90, ¶ 9,

774 N.W.2d 288, 292 (alteration in original) (quoting Barnes v. Matzner, 2003 S.D.

42, ¶ 24, 661 N.W.2d 372, 379). “We also examine the fee request from the

perspective of whether the party’s appellate arguments carried any merit.” Roth v.

Haag, 2013 S.D. 48, ¶ 21, 834 N.W.2d 337, 342 (quoting Hogen v. Pifer, 2008 S.D.

96, ¶ 16, 757 N.W.2d 160, 165) (internal quotation marks omitted). Kevan

unreasonably required Terri to defend against his meritless appeal. We award

Terri her appellate attorney’s fees.




2.       Kevan offers no record evidence supporting his denial. The circuit court
         found that Kevan was one of three people who knew the details written in the
         letter, and the other two knew only because of Kevan. The court also found
         that, unlike Kevan, the other two people had no significant motive to write
         and mail the letter. Therefore, circumstantial evidence supported the court’s
         finding that Kevan wrote and mailed the letter. The court did not clearly err
         in making this finding. See Shroyer v. Fanning, 2010 S.D. 22, ¶ 6, 780
         N.W.2d 467, 469 (“[T]he credibility of the witnesses, the import to be accorded
         their testimony, and the weight of the evidence must be determined by the
         trial court, and we give due regard to the trial court’s opportunity to observe
         the witnesses and examine the evidence.” (citation omitted)); Zarecky v.
         Thompson, 2001 S.D. 121, ¶ 11, 634 N.W.2d 311, 315 (explaining that when
         “there are two permissible views of the evidence, the factfinder’s choice
         between them cannot be clearly erroneous” (citation omitted)).

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[¶17.]      GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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