#26323-r-DG

2012 S.D. 85

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                 * * * *

DORA CASTANO,                              Petitioner and Appellee,

     v.

RICHARD R. ISHOL,                          Respondent and Appellant.


                                 * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                  BROOKINGS COUNTY, SOUTH DAKOTA

                                 * * * *

                   THE HONORABLE VINCENT A. FOLEY
                               Judge

                                 * * * *

DORA CASTANO
Brookings, South Dakota                    Pro se petitioner and appellee.

JEROMY J. PANKRATZ
REED T. MAHLKE of
Glover & Helsper, PC
Brookings, South Dakota                    Attorneys for respondent
                                           and appellant.

                                 * * * *
                                           CONSIDERED ON BRIEFS
                                           ON OCTOBER 1, 2012

                                           OPINION FILED 12/05/12
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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 Castano came to Brookings, South Dakota in April 2010 and she

and Ishol were married that June. Castano received her visa in April or May of

2011 but her relationship 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 Castano’s permanent residence status. Ishol testified during the

hearing in this matter that, at that point, “they annulled everything, my letter of

support dissolved the marriage, everything was dissolved.”

[¶3.]        Castano stayed at a domestic violence shelter from August 14 through

November 2, 2011. On November 30, Ishol sent Castano 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. Castano replied on December 11, telling

Ishol, “No thank you regarding the car.” Castano further instructed, “PLEASE DO

NOT CONTACT ME AGAIN.” Despite Castano’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

Castano 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 some type in a

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nice way.” On February 2, 2012, Ishol sent Castano a third e-mail indicating he

was responding to a call that he had missed from her. During the hearing in this

matter, however, Castano denied ever calling Ishol. In his e-mail, Ishol mentioned

seeing Castano and her daughter “downtown,” but being afraid to say hello. Ishol

also mentioned seeing Castano in a blue car and congratulated her on driving.

[¶4.]        By March 2012, Castano 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 Castano’s address through his position with

Brookings Municipal Utilities as a meter reader. Ishol further admitted that he

sent Castano the bracelet after coming across it while doing some unpacking and

because he thought it must belong to her. About a week after Castano 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.]        Castano had at least two additional encounters 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. Castano told Ishol to leave her

alone and not to talk to her anymore. In another instance, Castano was with a

companion at a local restaurant when Ishol approached her table to talk to her.

Castano ignored him.

[¶6.]        On March 13, 2012, Castano filed a form petition and affidavit for a

domestic abuse protection order. Castano checked boxes on the petition alleging

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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 purpose; 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. Castano further alleged that Ishol had guns, was supposed to be on

medication, and that when he stopped taking his meds he was very aggressive and

dangerous. Castano 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.]        Castano appeared at the March 21 hearing with the assistance of an

interpreter, but without counsel. Ishol appeared with counsel. Indicating Castano

“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

Castano, attributing their personal encounters to chance or coincidence resulting

from his work as a meter reader. Castano 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 Castano’s statements as

irrelevant. The trial court then gave Ishol’s counsel an opportunity to cross-

examine Castano about the e-mails.

[¶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

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Castano. The court subsequently entered a written protection order excluding Ishol

from Castano’s residence and from coming within 300 feet of her or her daughter.

The order further excluded Ishol from the high school and Boys and Girls Club.

Ishol appeals.

                                       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 Castano’s testimony when it drifted into other matters. When the

court gave Ishol’s counsel an opportunity to question Castano, 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 a 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 excluded 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, 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. 657 N.E.2d 1262 (Mass. 1995). In its

analysis, the court noted:

             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]hether a defendant’s

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             constitutional rights have been violated in a [protection order
             proceeding] will depend on the fairness of a particular
             proceeding.”

Id. at 1263 (quoting Frizado v. Frizado, 651 N.E.2d 1206 (Mass. 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 concerning 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 produce 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 Castano 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


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whether the trial court abused its discretion in granting Castano a protection order.

In Shroyer, the petitioner filed for a protection order against her former boyfriend

on behalf of their daughter. The petition alleged sexual abuse of the daughter. A

hearing was held and, at the close of the hearing, the trial court granted the

protection order because: there was an ongoing police and child protection

investigation; it was prudent to grant the order to allow the case to play out; and

there was sufficient concern to warrant granting a protection order. The court

made oral findings that: it had jurisdiction and venue; the mother and father were

family or household members within the meaning of SDCL 25-10-1(2); by a

preponderance of the evidence, domestic abuse had occurred; and the father had

notice of the hearing and an opportunity to be heard. The court went on to complete

a preprinted protection order form granting the protection order for eighteen

months. On appeal, the father argued the trial court erred in not entering findings

of fact to support its conclusion that a protection order was authorized by SDCL 25-

10-5. This Court agreed, reasoning:

             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 support 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
             case, 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.

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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 indicated 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 “indicate 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.


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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 SDCL 25-10-1(2); by a preponderance of

evidence “domestic abuse” as defined by SDCL 25-10-1(1) had occurred; and Ishol

had actual notice of the hearing and an opportunity to participate. As in Shroyer,

no findings, oral or written, support the conclusion as to domestic abuse. Further,

the trial court’s statements did not indicate which version of the evidence it believed

or how the evidence met the elements of domestic abuse so as to permit issuance of

a protection order. The trial court simply pronounced the parties were household

members, that domestic abuse occurred, and that the parties should have no further

contact. When Ishol’s counsel correctly pointed out the only testimony was that

Castano stayed at a domestic abuse shelter and that there was no testimony that

domestic abuse occurred, the court replied “there was” and warned counsel against

further argument. As in Shroyer and March, therefore, there was a failure to enter

findings of fact and conclusions of law with sufficient specificity to permit us to

meaningfully review whether the protection order was appropriately granted.

[¶18.]       Reversed.

[¶19.]       KONENKAMP, ZINTER, SEVERSON and WILBUR, Justices, concur.




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