Parker v. Parker-Bauer

2017 SD 37, 898 N.W.2d 1
CourtSouth Dakota Supreme Court
DecidedJune 21, 2017
Docket27819; 27820
StatusPublished

This text of 2017 SD 37 (Parker v. Parker-Bauer) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parker v. Parker-Bauer, 2017 SD 37, 898 N.W.2d 1 (S.D. 2017).

Opinion

SEVERSON, Justice

[¶1.] Abigail Parker sought protection orders against her husband Jordan Parker and Jordan’s sister, Jasmyn Bauer. After a combined hearing on both matters, the circuit court granted protection orders for Abigail against both Jordan and Jasmyn. Jordan and Jasmyn appeal.

Background

[¶2.] Abigail and Jordan married in 2010; they legally separated in September 2014. Their separation agreement contains a clause wherein they both agreed not to harass each other. Due to religious considerations, they did not obtain a divorce. They have not resided together since fall 2014. They have two children together; Abigail also has another child. Abigail sought protection orders after an incident in November 2016. A two-day hearing on her petitions for protection orders was held in March 2016.

[¶3.] Abigail testified that on the night of November 7, 2016, she and a male friend were going to dinner at Tailgator’s in Brandon, South Dakota. She was driving, and her friend was a passenger in the car. She pulled her vehicle into the parking lot of the restaurant and parked. She immediately realized that she was in a spot dedicated for compact cars. She intended to move the car to a different spot, but another car had already pulled up behind her and blocked her from moving her car. Jordan exited the car that was blocking her vehicle. He came up to the window of Abigail’s car, swore at her and her friend, and told her friend he would “rip [the friend’s] face off.” After the exchange, Jordan got in his car and left.

[¶4.] Abigail and her friend returned to Abigail’s apartment. They were still in the apartment parking lot, sitting in her vehicle, when Jasmyn, Jordan’s sister, arrived. Jasmyn approached Abigail’s vehicle and confronted Abigail. Jordan also came to the apartment and parked his vehicle in the apartment parking lot. When Jordan exited his vehicle and walked up to Abigail’s vehicle, Abigail called the police. As soon as Abigail ended the phone call with the police, both Jasmyn and Jordan left.

[¶5.] Abigail' testified to other incidents where Jordan had alarmed her. Those incidents included arriving at events that she attended, even though he was not invited and had not been told where she would be, and once gaining access to her secured building and showing up at her door uninvited. She also testified that he helped care for the children when she was sick in April 2015, and that she woke up to him having sex with her. She also testified that one Sunday after a church service, he rummaged through her car and confronted her *3 about a pack of cigarettes that she had concealed in a compartment of the car. And she believed that Jordan had attempted to take pictures of her on several occasions and accessed information and pictures on her phone.

[¶6.] As for Abigail’s relationship with Jasmyn, Abigail testified that Jasmyn previously caused her alarm. She, testified that Jasmyn called her in the past. Abigail testified that she did not answer; instead she let the calls go to voicemail. According to Abigail, Jasmyn left voicemails in which she called Abigail ..a liar and said that Abigail needed to take care of her kids and that if Jasmyn caught Abigail driving drunk with “her girls” in the car again, Jasmyn would “call her in.” Jasmyn denied all but a couple phone calls to Abigail over the years.

[¶7.] After the hearing, the court orally made findings of fact. It granted protection orders in favor of Abigail against both Jordan and Jasmyn. Jordan and Jasmyn appeal; they allege that the court made clearly erroneous factual findings and abused its discretion by issuing the protection order.

Standard of Review .

[¶8.] We review protection orders with a two-step process. See Donat v. Johnson, 2015 S.D. 16, ¶ 13, 862 N.W.2d 122, 127. “First, we determine whether the trial- court’s findings of fact were clearly erroneous.... If the trial court’s findings are not clearly erroneous, we must then determine whether the trial court abused its discretion in granting or denying the protection order.” Id. (quoting White v. Bain, 2008 S.D. 52, ¶ 8, 752 N.W.2d 203, 206).

Analysis

[¶9.] First, we consider the protection order against Jordan. Abigail’s petition for a protection order against Jordan indicated that she sought a protection order for both domestic abuse and stalking. She checked boxes indicating that Jordan made her fearful that he is about to. cause her physical harm or bodily injury; that he willfully, maliciously, and repeatedly followed her; and that he harassed her by pursuing a knowing and willful course of conduct which seriously alarmed, annoyed, or harassed her, with no legitimate purpose; and that the pattern of conduct was a series of acts over a period of time, however short, showing a continuing pattern of harassment. The court granted a protection' order on the grounds of domestic abuse'.

[¶10.] Jordan maintains that the court erred by granting a protection order for domestic abuse because the court failed to mention the words “domestic abuse” in its oral-findings and conclusions and that the court actually issued the order under SDCL chapter 22-19A, which prohibits stalking. However, domestic abuse includes a violation of chapter 22-19A, if the stalking is between persons in certain relationships. See Trumm v. Cleaver, 2013 S.D. 85, ¶ 12, 841 N.W.2d 22, 25. SDCL 25-10-1(1) defines domestic abuse as:

physical harm, bodily injury, or attempts to cause' physical harm or bodily injury, or the infliction of fear of imminent physical harm or bodily injury when occurring between persons' in a relationship described in § 25-10-3.1. Any vio-lotion of § 25-10-13 or chapter 22-19A or any crimé of violence as defined in subdivision 22-1-2(9) constitutes domestic abuse if the underlying criminal act is committed betiveen persons in such a relationship[,]

(Emphasis added.). Here, as the court found and no party disputes, Abigail and Jordan were in a relationship that satisfies *4 SDCL 25-10-3.1. * Therefore, the court could properly issue a domestic abuse protection order if Jordan had caused “physical harm, bodily injury, or attempt[ed] to cause physical harm or bodily injury, or the infliction of fear of imminent physical harm or bodily injury” or if it found that Jordan stalked Abigail in violation of chapter 22-19A.

[¶11.] At the end of the hearing, the court orally issued its decision. Although the court’s oral findings somewhat rambled, it found the elements of stalking. The court determined that “blockflng of] a person’s vehicle from extricating themselves from a situation ... is harassment.” It also determined that a threat of “ripping [the] face off’ of Abigail’s passenger was harassment and that watching Jasmyn confront Abigail was “furtherance” of harassment. SDCL 22-19A-1

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Related

White v. Bain
2008 SD 52 (South Dakota Supreme Court, 2008)
Trumm v. Cleaver
2013 SD 85 (South Dakota Supreme Court, 2013)
Donat v. Johnson
2015 SD 16 (South Dakota Supreme Court, 2015)

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Bluebook (online)
2017 SD 37, 898 N.W.2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-parker-bauer-sd-2017.