#27148-rev & rem-LSW

2015 S.D. 53

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                    ****

MICHELLE ELIZABETH REPP,                   Petitioner and Appellee,

      v.

BENJAMIN JACOB VAN SOMEREN,                Respondent and Appellant.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                       THE SIXTH JUDICIAL CIRCUIT
                     HUGHES COUNTY, SOUTH DAKOTA

                                    ****

                     THE HONORABLE JOHN L. BROWN
                                Judge

                                    ****

BEVERLY J. KATZ of
Katz Law Office, Prof., LLC
Huron, South Dakota                        Attorneys for petitioner
                                           and appellee.



CHRISTINA L. KLINGER of
May, Adam, Gerdes & Thompson, LLP
Pierre, South Dakota                       Attorneys for respondent
                                           and appellant.

                                    ****

                                           CONSIDERED ON BRIEFS
                                           ON MARCH 23, 2015

                                           OPINION FILED 06/24/15
#27148

WILBUR, Justice

[¶1.]        Michelle Repp filed for a protection order against her former boyfriend

Benjamin Van Someren. The circuit court granted Repp the protection order for a

period of five years on the basis of stalking. Van Someren appeals and argues that

the findings of fact do not support the court order. We reverse and remand for

findings of fact and conclusions of law.

                                    Background

[¶2.]        On May 5, 2014, Repp filed a petition and affidavit for a stalking

protection order. Repp checked boxes on the petition alleging Van Someren: (1)

“Willfully, maliciously, and repeatedly followed me;” or (2) “Harassed me by

pursuing a knowing and willful course of conduct which seriously alarms, annoys or

harasses me with no legitimate purpose. The pattern of conduct is a series of acts

over a period of time, however short, showing a continuing pattern of harassment.”

On the petition, Repp described her dysfunctional relationship with Van Someren

and the alleged reasons that necessitated a protection order. The circuit court

issued a temporary protection order against Van Someren and set a hearing for a

permanent protection order on July 2, 2014. Around this time, Van Someren found

employment in Saint Peters—a suburb of St. Louis, Missouri—and planned to move

on July 5, 2014.

[¶3.]        Repp and Van Someren offered conflicting testimony at the permanent

protection order hearing on July 2, 2014. Therefore, we restate the facts in this case

“in a light most favorable to the circuit court’s” decision. Donat v. Johnson, 2015

S.D. 16, ¶ 2, 862 N.W.2d 122, 125. Repp testified that she and Van Someren began


                                           -1-
#27148

dating on August 24, 2012, and that the two of them had eight to ten breakups over

the following two years. The final breakup occurred on May 1, 2014. Repp testified

that she had increasing concerns for her safety during their unstable relationship.

She testified that she continued to date him despite the many breakups because she

“was constantly trusting him” and that she “was scared half to death of him, but he

made [her] believe that it was all [her] fault and so [she] was constantly trying to

change [her]self.”

[¶4.]        At the hearing, Repp testified about specific incidents during her

unstable relationship with Van Someren that compelled her to file for a protection

order against Van Someren. The first instance of stalking, Repp testified, occurred

in May of 2013, when Van Someren entered her apartment unannounced while she

was sleeping. He admitted this to her a week later. On two separate occasions, Van

Someren stood outside of her open apartment window and listened to her. At some

point she learned that he had retrieved passwords to several of her Internet

accounts without her consent. A few months later, in July of 2013, Van Someren

entered into her apartment through a locked door by unhinging the door. After this

incident, Repp moved to a more secure apartment. She did not tell Van Someren

about her new apartment. Eventually, she returned to her former apartment

complex to return the key. As she walked down a set of stairs to get to that

apartment, Van Someren jumped out from behind the stairwell and demanded that

she give him a key. She told him she no longer lived at that apartment and

attempted to close the front door. He put “his foot in the door” to prevent it from

closing. She testified that “fight or flight kick[ed] in” and she ran out the back door


                                          -2-
#27148

of the apartment. Later, Van Someren discovered the address to Repp’s new

apartment by sending a letter to her former address with “return requested”

marked on the envelope. Repp and Van Someren eventually resumed their

relationship after she moved to her new apartment. At the new apartment, Van

Someren dragged her off a couch causing her to hit her head on the coffee table. On

a separate, but similar occasion, he dragged her off the couch causing her to hit her

leg on the coffee table. After both incidents, he made her sit in the corner of her

closet and count to an unspecified number. Van Someren disputed Repp’s recitation

of the incidents described above.

[¶5.]        On May 1, 2014, Repp ended her relationship with Van Someren for

the final time. Repp drove to Van Someren’s apartment and told him that she no

longer wanted a relationship with him. She instructed him to never contact her

again. That same night, Van Someren sent her two text messages and one email.

The first text message said, “I’m sorry. I love you.” The second text message said,

“I just want you to be happy. Please let me know when you are happy.”

Approximately one hour after sending the second text message, Van Someren sent

an email asking Repp to let him know when she finds happiness again.

[¶6.]        Four days later, Repp sought a protection order against Van Someren.

She testified that her relationship with him was “not normal behavior” and that she

“shouldn’t have to live in fear[.]” Repp was afraid that without a protection order

Van Someren would keep “contacting” and “harassing” her. She further testified

that she wanted the protection order to show up on any background check of Van

Someren. In a statement against interest on May 15, 2014, Repp stated,


                                          -3-
#27148

               I need [the protection order] to appear on his background
               checks. For jobs, apartment, life, everything, other girls. He
               made bad decisions and he must live with them. Final. It must
               show up on his background check. If it doesn’t, then we are
               going to court. I need it so that if some random person out there
               investigates into [Van Someren], they will know that [he] had
               this order placed against him. I do not want him to hurt anyone
               else.

Counsel for Van Someren argued that this statement is evidence of the fact that

Repp wanted the protection order to “punish [Van Someren],” to “cause problems in

his life,” and to “protect others.”

[¶7.]          At the close of the hearing, the circuit court granted the protection

order. That same day, the court entered a written permanent protection order

prohibiting Van Someren from coming within a distance of 100 yards of Repp for a

period of five years. Van Someren appeals the court order and raises the following

issues for our review:

               1.    Whether the circuit court’s findings of fact were clearly
                     erroneous.

               2.    Whether the circuit court abused its discretion in entering
                     a protection order.

               3.    Whether the circuit court abused its discretion in
                     rejecting offered evidence.

                                  Standard of Review

[¶8.]          The standard of review for the grant of a protection order is well

established:

               First, we determine whether the trial court’s findings of fact
               were clearly erroneous. We will not set aside the trial court’s
               findings of fact unless, after reviewing all of the evidence, we are
               left with a definite and firm conviction that a mistake has been
               made. Furthermore, the credibility of the witnesses, the import
               to be accorded their testimony, and the weight of the evidence

                                            -4-
#27148

              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. If the trial court’s findings of fact are not
              clearly erroneous, we must then determine whether the trial
              court abused its discretion in granting or denying the protection
              order.

Shroyer v. Fanning, 2010 S.D. 22, ¶ 6, 780 N.W.2d 467, 469 (quoting White v. Bain,

2008 S.D. 52, ¶ 8, 752 N.W.2d 203, 206) (internal quotation marks omitted).

                                       Analysis

Findings of Fact

[¶9.]         The circuit court concluded that Van Someren committed stalking

under SDCL 22-19A-1. 1 At the close of evidence, the circuit court rendered oral

findings of fact and conclusions of law:

              The court: Well, it’s clear that these folks had a dysfunctional
              relationship over the course of two years. It’s hard for me to
              understand why either of them continued to stay in the
              relationship as long as they did. And while it may be that [Van
              Someren] is leaving the area and removing himself from a
              situation where he might be involved with perhaps an
              inadvertent contact, I think the escalating nature of the
              relationship itself and the controlling nature -- and I understand
              and certainly agree that there’s some fault on both sides as
              relates to the relationship. But I think that [Repp] has met her
              burden by a preponderance of the evidence that stalking has
              occurred here. There was an accelerating level of control being
              exhibited by [Van Someren] here. The fact that he’s moving on,
              moving away from here, although it should provide some

1.      This case involves stalking under subsections (1) or (3) of SDCL 22-19A-1:
              No person may:
                 (1) Willfully, maliciously, and repeatedly follow or harass
                     another person;
                 ...
                 (3) Willfully, maliciously, and repeatedly harass another
                     person by means of any verbal, electronic, digital media,
                     mechanical, telegraphic, or written communication.

                                           -5-
#27148

             comfort as far as a likelihood of future contact, doesn’t negate
             the need for a protection order and I’m going to grant it.

The court directed Repp to prepare written findings of fact: “I think in this case, Ms.

Katz [(Repp’s counsel)], findings of fact would be appropriate if you would prepare

such.” Repp prepared findings of fact and conclusions of law, but submitted them to

the court eight days late and after Van Someren had filed his notice of appeal.

Consequently, the court’s oral findings of fact and conclusions of law control. See

SDCL 15-6-52(a) (“It will be sufficient if the findings of fact and conclusions of law

are stated orally and recorded in open court following the close of evidence . . . .”).

[¶10.]       “It is well-settled law that it is the trial court’s duty to make required

findings of fact, and the failure to do so constitutes reversible error.” March v.

Thursby, 2011 S.D. 73, ¶ 20, 806 N.W.2d 239, 244 (quoting Shroyer, 2010 S.D. 22,

¶ 7, 780 N.W.2d at 470). “Findings must be entered ‘with sufficient specificity to

permit meaningful review.’” Id. (quoting Goeden v. Daum, 2003 S.D. 91, ¶ 9, 668

N.W.2d 108, 111). “We cannot meaningfully review the trial court decision without

the trial court’s reasons for ruling the way it did.” Goeden, 2003 S.D. 91, ¶ 7, 668

N.W.2d at 110. Therefore, “[c]ircuit courts ‘must ensure that findings of fact and

conclusions of law are clearly entered.’” Donat, 2015 S.D. 16, ¶ 14 n.4, 862 N.W.2d

at 128 n.4 (quoting Goeden, 2003 S.D. 91, ¶ 9, 668 N.W.2d at 111).

[¶11.]       Because Repp failed to timely submit written findings of fact, we are

left with the circuit court’s oral findings of fact and conclusions of law from the July

2, 2014 hearing. The court’s oral findings of fact are insufficient to permit a

meaningful review of the court decision. See March, 2011 S.D. 73, ¶ 20, 806 N.W.2d

at 244. The findings of fact do not indicate which version of the evidence the court

                                           -6-
#27148

believed. See Goeden, 2003 S.D. 91, ¶ 6, 668 N.W.2d at 110 (“The parties presented

conflicting versions of the events, and the trial court as the fact finder had to judge

whose version was credible.”). Nor do the oral findings indicate how the evidence

met the statutory elements of stalking under SDCL 22-19A-1. There is conflicting

evidence in the record as to whether stalking occurred under SDCL 22-19A-1. Repp

needed to show that Van Someren either “[w]illfully, maliciously, and repeatedly

follow[ed] or harass[ed]” her or “[w]illfully, maliciously, and repeatedly harass[ed]

[her] by means of any verbal, electronic, digital media, mechanical, telegraphic, or

written communication.” SDCL 22-19A-1(1); SDCL 22-19A-1(3). “[I]t is the

function of the trier of fact to ‘resolve the factual conflicts, weigh credibility, and

sort out the truth.’” LeGrand v. Weber, 2014 S.D. 71, ¶ 36, 855 N.W.2d 121, 131.

Without resolving the numerous factual conflicts in this case or weighing the

credibility of Repp and Van Someren’s testimony, it is not apparent how the

evidence meets either definition of stalking. The court’s oral finding that Van

Someren exhibited “an accelerating level of control” is not enough to demonstrate

that stalking occurred. See SDCL 22-19A-1.

[¶12.]        We have, on some occasions, remanded protection order cases to allow

the trial court to enter the missing findings of fact and conclusions of law. See

Shroyer, 2010 S.D. 22, ¶ 11, 780 N.W.2d at 472 (reversing and remanding for failure

to enter findings of fact to support protection order); Judstra v. Donelan, 2006 S.D.

32, ¶ 9, 712 N.W.2d 866, 869 (reversing and remanding for failure to enter findings

of fact to support protection order); Goeden, 2003 S.D. 91, ¶ 10, 668 N.W.2d at 112

(reversing and remanding “to allow the trial court to enter findings of fact and


                                            -7-
#27148

conclusions of law”). Although we have not remanded in two cases, see March, 2011

S.D. 73, ¶ 23, 806 N.W.2d at 244; Castano v. Ishol, 2012 S.D. 85, ¶ 18, 824 N.W.2d

116, 121, we did so without explanation. Here, remand is warranted because Van

Someren specifically requested that this Court remand the case, and, further,

because the circuit court acknowledged that written findings of fact and conclusions

of law were required. The court should be permitted to complete the task it was

trying to accomplish. Because this is a close case, we should facilitate, rather than

avoid sorting out the truth. In order to facilitate a meaningful review of the circuit

court’s decision, the court should be permitted to enter findings of fact and

conclusions of law as it originally intended.

[¶13.]       Because of our decision to remand this case for findings of fact and

conclusions of law, we need not reach Van Someren’s arguments that the circuit

court’s oral findings of fact were clearly erroneous and that the circuit court abused

its discretion in granting the protection order. Given the absence of adequate

findings and conclusions, “much guess-work would be involved in any attempt to

review” those two arguments. See Judstra, 2006 S.D. 32, ¶ 8, 712 N.W.2d at 868.

Relevance

[¶14.]       Van Someren argues that the circuit court erred when it determined

that certain evidence was not relevant. Van Someren sought to admit all of the text

message communications that occurred between himself and Repp over a period of

approximately one and a half years. The text messages were printed and placed in

a binder. The court took “notice that the binder itself is approximately two inches

or maybe even up to three inches thick.” Van Someren argued that the evidence


                                          -8-
#27148

was relevant because “the parties did communicate extensively over text message

and this text message [binder] does document their relationship and the

communications they had between each other. And I just proffer to the [c]ourt that

it does provide a good diagram of the relationship as a whole.” Repp objected to the

exhibit as being voluminous and not relevant. The court determined that the

exhibit was not relevant: “I don’t know that it’s been shown that the entire exhibit

has relevance here other than as to a volume of communication so I’m going to

refuse the exhibit.”

[¶15.]       “The [circuit] court has broad discretion in admitting evidence.” Grode

v. Grode, 1996 S.D. 15, ¶ 16, 543 N.W.2d 795, 801. “[A] circuit court’s evidentiary

rulings are presumed correct and will not be reversed unless there is a clear abuse

of discretion.” State v. Berget, 2014 S.D. 61, ¶ 13, 853 N.W.2d 45, 51-52 (quoting

Wilcox v. Vermeulen, 2010 S.D. 29, ¶ 7, 781 N.W.2d 464, 467). “An abuse of

discretion refers to a discretion exercised to an end or purpose not justified by, and

clearly against reason and evidence.” AgFirst Farmers Coop. v. Diamond C Dairy,

LLC, 2013 S.D. 19, ¶ 23, 827 N.W.2d 843, 849 (quoting Johnson v. Miller, 2012 S.D.

61, ¶ 7, 818 N.W.2d 804, 806). The abuse of discretion standard is a “two-step

process[.]” Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 59, 764

N.W.2d 474, 491. “Evidentiary rulings are only reversible ‘when error is

demonstrated and shown to be prejudicial error.’” Ruschenberg v. Eliason, 2014

S.D. 42, ¶ 23, 850 N.W.2d 810, 817 (quoting Supreme Pork, 2009 S.D. 20, ¶ 59, 764

N.W.2d at 491).




                                          -9-
#27148

[¶16.]       Relevant evidence is defined as “evidence having any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” SDCL 19-

12-1 (Rule 401). “All relevant evidence is admissible. . . . Evidence which is not

relevant is not admissible.” SDCL 19-12-2 (Rule 402). “Although relevant, evidence

may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of cumulative evidence.”

SDCL 19-12-3 (Rule 403).

[¶17.]       Van Someren argues that the text message communications were

relevant because they highlight “a pattern, a course of conduct, over the last two

years wherein they would break up, continue to communicate and then get back

together.” We need not determine whether this evidence was relevant, however,

because Van Someren advances no argument nor cites any authority supporting the

notion that he was prejudiced by the exclusion of the evidence. See Supreme Pork,

2009 S.D. 20, ¶ 59, 764 N.W.2d at 491 (requiring prejudicial error in addition to an

abuse of discretion). The failure to assert prejudicial error is fatal to Van Someren’s

argument that the circuit court abused its discretion. See People ex rel. M.S., 2014

S.D. 17, ¶ 17 n.4, 845 N.W.2d 365, 371 n.4 (stating “that failure to argue a point

waives it on appeal” unless the issue is a “pure question of law”) (quoting In re

Estate of Smid, 2008 S.D. 82, ¶ 43 n.15, 756 N.W.2d 1, 15 n.15). Consequently, the

circuit court did not err in excluding the evidence.




                                          -10-
#27148

[¶18.]       Reversed and remanded for findings of fact and conclusions of law.

[¶19.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




                                        -11-
