AME JO BATCHELDER v. MATTHEW JAMES BATCHELDER

<center><h3><font color="red"><h2><font color="red"> Pierre, SD - Divorce lawyer represented defendant issued a protective order by the court. </h3></font></b></i></center></font><br>
<br>
Ame and Matthew were married on February 26, 2005, in Rapid City, <br>
where they continue to reside. They have one child, A.B., who was born in 2006. <br>
Ame commenced a divorce action in 2019, and the couple resolved the case without <br>
a trial under the terms of a stipulation, which provided, among other things, that <br>
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the parties would exercise joint legal and physical custody of A.B. The stipulation <br>
also provided that "[c]ommunication between the parties shall mostly be via textmessage or Email and deal only with [A.B.]” The circuit court incorporated the <br>
stipulation into a judgment and decree of divorce, which was issued on February 3, <br>
2020.1<br>
[¶4.] The parties were subsequently involved in two protection order actions <br>
in 2020, both commenced by Ame. This appeal concerns the second, more recent <br>
proceeding, though certain procedural facts relating to the initial proceeding are <br>
relevant to a complete narration of the facts. Unfortunately, however, only select <br>
portions of the record from the initial proceeding appear in the current record, <br>
leaving voids in the background information. Where appropriate, we will use what <br>
appear to be undisputed contextual details solely to assist with our exposition of the <br>
facts.<br>
[¶5.] It appears from the parties' briefs that Ame filed the first petition for a <br>
protection order on July 7, 2020, alleging that Matthew had "inflicted fear . . .<br>
and/or . . . was about to cause physical harm or bodily injury” to her.2 See SDCL ch. <br>
25-10 (authorizing courts to issue protection orders in cases involving domestic <br>
<br>
1. The same circuit court judge presided over the parties' divorce action, the <br>
underlying protection order proceeding, and the protection order case that is <br>
the subject of this appeal.<br>
2. The petition is not included in the record. It is part of the appendix attached <br>
to Ame's appellate brief, but this practice does not comply with our rules for <br>
preparing appendices. See Klutman v. Sioux Falls Storm, 2009 S.D. 55, ¶ 37, <br>
769 N.W.2d 440, 454 ("Documents in the appendix must be included within, <br>
and should be cross-referenced to, the settled record.” (citing SDCL 15-26A60(8)).<br>
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abuse). This underlying action was assigned case number TPO 20-369 by the <br>
Pennington County Clerk of Courts. The circuit court granted an ex parte <br>
temporary protection order that was set to expire on July 28 but was later <br>
continued to September 8 and then to December 7. The circumstances leading up to <br>
this last extension of this initial temporary order are, however, not entirely clear <br>
from the record.<br>
[¶6.] The parties seem to agree that the circuit court conducted a hearing on <br>
the petition in TPO 20-369 on September 8, 2020. Matthew alleges that during the <br>
September 8 hearing, the court determined that his "actions did not amount to <br>
harassment.” Despite that purported finding, Matthew claims the court, "as a <br>
means to keep the peace[,] . . . extended [the order] another three months, to <br>
December 7, 2020.”3 However, there is no hearing transcript included in the <br>
current record, and the order continuing the temporary order, which is included in <br>
the record, does not reference a September 8 hearing or any findings by the court.4 <br>
The September 8 order was styled as a modification of the original temporary order <br>
<br>
3. As the name suggests, temporary protection orders are meant to be shortlived. "An ex parte temporary protection order is effective for a period of <br>
thirty days” but may be extended an additional thirty days upon a finding of <br>
good cause. SDCL 25-10-7. Beyond this, a court has no authority to <br>
unilaterally extend the length of a temporary protection order and may do so<br>
only if it "finds good cause for the additional continuance and: (1) The parties <br>
stipulate to an additional continuance; or (2) The court finds that law <br>
enforcement is unable to locate the respondent for purposes of service of the <br>
ex parte protection order.” SDCL 25-10-7(1)-(2).<br>
4. The extended temporary order in TPO 20-369 is designated as ex parte <br>
though the parties seem to acknowledge they both attended the September 8 <br>
hearing.<br>
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and required Matthew to observe minimum distances from Ame, her residence, and <br>
her place of employment.<br>
[¶7.] In their appellate submissions, both parties describe the September 8 <br>
temporary order as a means of continuing the original temporary order in TPO 20-<br>
369, leading up to a final hearing scheduled for December 7, 2020. In the interim, <br>
the circuit court entered a separate order in the parties' divorce action, appointing a <br>
parenting coordinator to assist with the resolution of parenting disputes and <br>
directing the parties to communicate using the Our Family Wizard parenting <br>
application (the OFW app).<br>
[¶8.] On December 7, 2020, Ame filed another sworn petition for a <br>
protection order against Matthew. This second protection order action is the one <br>
currently before us and was designated as TPO 20-726. The petition alleged, among <br>
other things, that Matthew was critical of Ame's parenting methods in <br>
communications using the OFW app, had violated the temporary protection order in <br>
TPO 20-369, and was surreptitiously monitoring her telephone conversations.5 The <br>
circuit court issued a new ex parte temporary protection order in TPO 20-726 on <br>
December 7.<br>
[¶9.] Also on December 7, the circuit court conducted the previously <br>
scheduled hearing in TPO 20-369. Ame did not appear at the hearing. The court <br>
dismissed the petition, and the temporary order expired by its own terms. <br>
<br>
5. Ame also alleged in the petition that Matthew told her to "keep [her] mouth <br>
shut and not to talk to authorities” concerning an unrelated criminal case <br>
involving Matthew.<br>
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However, the new ex parte temporary order in TPO 20-726 contained the same <br>
essential provisions as the predecessor temporary order in TPO 20-369.<br>
[¶10.] The circuit court conducted a hearing on Ame's petition in TPO 20-726 <br>
on January 4, 2021. At the outset, Ame's counsel asked the circuit court "to take <br>
judicial notice of a prior protection order, number is [TPO 20-369], which expired on <br>
December 7 of 2020.” Matthew's attorney expressed no opposition and explained <br>
that he was moving to dismiss the current petition based upon the resolution of the <br>
TPO 20-369 case. In Matthew's view, he prevailed at the September 8 hearing on <br>
Ame's first petition, and the new action in TPO 20-726 was an improper effort to <br>
relitigate the same factual issues. The motion to dismiss acknowledged that the <br>
latter petition contained new allegations occurring since October 2020 but claimed <br>
that they were "not supported by [the parenting coordinator.]”6<br>
[¶11.] In any event, the circuit court never ruled on the request for judicial <br>
notice, perhaps owing to the fact that the motion to dismiss prompted additional, <br>
lengthy arguments from the lawyers. These arguments concerned the details of the <br>
untranscribed September 8 hearing in TPO 20-369 and the merits of the current <br>
petition in TPO 20-726. The court denied the motion to dismiss insofar as the <br>
motion alleged the allegations in TPO 20-726 were factually unsupported:<br>
Well, let me start by saying this. The purpose of temporary <br>
protection orders is not to protect anyone from ever having any <br>
<br>
6. Matthew's motion to dismiss is dated January 3, 2021, but it was not filed <br>
with the clerk until April 14, 2021—after the notice of appeal. During the <br>
pendency of this appeal, Matthew's counsel moved to supplement the record <br>
with this motion, stating that he had handed the motion to the circuit court<br>
judge during the January 4 hearing but had not filed it. We granted the <br>
motion to supplement the record without opposition from Ame.<br>
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arguments or harassment or disagreements in their life. I think <br>
that people think that it is, but it's not. However, I'll hear what <br>
she has to say, I'll let you put the testimony on.<br>
[¶12.] Ame testified briefly and claimed principally that Matthew used the <br>
OFW app in a way that was not authorized by the divorce stipulation or the circuit <br>
court's order in the divorce case appointing the parenting coordinator. In her view, <br>
Matthew used the OFW app to criticize her parenting and to seek reimbursement of <br>
her share of expenses related to A.B., rather than limiting communication to only <br>
the topic of A.B.'s care. Ame further testified that she suspected she was "being <br>
tracked or listened to somehow” by Matthew, claiming he inexplicably knew that <br>
she had recently traveled to Vermillion. She did not testify that Matthew had <br>
harmed her or threatened to harm her or that she feared he would harm her. <br>
Matthew did not testify, and there was no additional evidence.<br>
[¶13.] During final arguments, the circuit court asked Ame's attorney <br>
specifically, "what are you actually asking for in the way of a protection order?” <br>
Counsel responded as follows:<br>
That he not be allowed to use this OurFamilyWizard in this <br>
manner; that he only be ordered to post to the <br>
OurFamilyWizard, which he can do, the bills, the dollar amount <br>
of the bill, and scheduling events, and [A.B.'s school] <br>
assignments.<br>
[¶14.] Despite this narrow scope of the requested relief, the circuit court <br>
entered a permanent protection order for one year, prohibiting Matthew from being <br>
within 100 yards of Ame, her residence, or her place of employment. The court also <br>
continued the requirement that the parties use the OFW app and directed that it be <br>
"limited to child's healthcare, education, expenses, scheduling, school related <br>
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activities, parenting coordinator requests or emergency situations.” As it related to <br>
bills for A.B., the court stated that Matthew is "limited to noting the amount of the <br>
bill and who the bill is to be paid to. Otherwise no contact is allowed.”<br>
[¶15.] In its stated rationale, issued orally at the conclusion of the hearing, <br>
the circuit court did not assess the evidence or apply the legal standards governing <br>
the issuance of protection orders. Instead, it based its decision on an effort to ease <br>
tensions between the parties in their ongoing effort to co-parent A.B.:<br>
I am going to put the protection order in place for a period of one <br>
year, no contact, with the exception, obviously, through this <br>
FamilyWizard, or whatever it's called, but within the limitations <br>
stated by Ms. Meyers, that they be things regarding visitation <br>
. . . . I frankly don't like to do this, but I don't see anything else <br>
to do that's going to work in this case. If we can make it through <br>
a year and not have this continue, great, it shouldn't, and it's <br>
certainly of -- does no service to the children, which is the <br>
primary objective of this Court, not the parents . . . . But, as I <br>
say, I'm frankly doing this 'cause I don't know any other good <br>
solution for this. But I really, in general, don't think this is the <br>
purpose or function of protection orders. And it may end up with <br>
the divorce case being reopened and further action in that. I <br>
would suggest it would be a lot cheaper for both parties involved <br>
to just get along in a non-antagonistic way, but I can't stand <br>
there 24 hours a day ensuring that, so that's why I'm going this <br>
route.<br>
(Emphasis added.)<br>
[¶16.] The court checked a box on a pre-printed protection order form that <br>
stated: "Having considered the evidence presented and any affidavits and pleadings <br>
on file, this Court FINDS . . . [b]y a preponderance of the evidence that 'domestic <br>
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abuse' as defined by SDCL § 25-10-1(1) has occurred[.]”7 The court made no <br>
additional findings, oral or written.<br>
[¶17.] Matthew now appeals raising the following issues, which we <br>
have restated as:<br>
1. Whether the circuit court erred by entering the <br>
permanent protection order without factual or legal <br>
justification.<br>
2. Whether the circuit court was collaterally estopped from <br>
making factual determinations in TPO 20-726.<br>
Standard of Review<br>
[¶18.] Ordinarily we review a circuit court's decision to grant or deny a <br>
protection order by first assessing the court's findings of fact for clear error and, <br>
second, by considering the "court's ultimate decision for an abuse of discretion.” <br>
Thompson v. Bear Runner, 2018 S.D. 57, ¶ 12, 916 N.W.2d 127, 130 (citation <br>
omitted). Both components of this review reflect deference to the unique position of <br>
the trial court.8 But under either standard, our effort to undertake meaningful <br>
<br>
7. Domestic abuse is defined in SDCL 25-10-1(1) as "physical harm, bodily <br>
injury, or attempts to cause physical harm or bodily injury, or the infliction of <br>
fear of imminent physical harm or bodily injury” when it occurs between <br>
people in certain qualifying relationships, such as former spouses. See SDCL <br>
25-10-3.1 (listing qualifying relationships). Stalking, as defined in SDCL <br>
chapter 22-19A, and violations of existing protection orders, as outlined in <br>
SDCL 25-10-13, may also constitute "domestic abuse” if the act is committed <br>
by a person in a qualifying relationship. SDCL 25-10-1(1).<br>
8. "The circuit court's findings of fact will not be set aside unless we are left <br>
with a definite and firm conviction that a mistake has been made. An abuse <br>
of discretion is a fundamental error of judgment, a choice outside the range of <br>
permissible choices, a decision, which, on full consideration, is arbitrary and <br>
unreasonable.” Bear Runner, 2018 S.D. 57, ¶ 12, 916 N.W.2d at 130 (internal <br>
citations and quotation marks omitted).<br>
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review is complicated where the court does not make findings specific to the <br>
evidentiary record before it, essentially failing to communicate to the parties, as <br>
well as this Court, the particular reasons for its decision.<br>
[¶19.] Of course, the circuit court's findings must also correspond to the <br>
statutory standards that serve as the bases for issuing a permanent protection <br>
order. This determination is a legal question that we review de novo. Trumm v. <br>
Cleaver, 2013 S.D. 85, ¶ 8, 841 N.W.2d 22, 24 (citation omitted).<br>
Analysis and Decision<br>
Factual and Legal Justification for Protection Orders<br>
[¶20.] As relevant to our discussion here, a court can issue protection orders <br>
in instances where it finds it necessary to protect a petitioning party from domestic <br>
abuse or stalking by the respondent. See SDCL 22-19A-11 (describing protection <br>
order remedy for stalking); SDCL ch. 25-10 (providing protection order remedy in <br>
cases of domestic abuse). Under either theory, the action is tried to a court sitting <br>
without a jury. See SDCL 22-19A-11 (authorizing the issuance of a protection order <br>
if a "court finds by a preponderance of the evidence that stalking has taken place”); <br>
SDCL 25-10-5 (authorizing a protection order if a "court finds by a preponderance of <br>
the evidence that domestic abuse has taken place”).<br>
[¶21.] Generally, our rules of civil procedure require that "[i]n all actions <br>
tried upon the facts without a jury . . . the court shall, unless waived as provided in <br>
§ 15-6-52(b), find the facts specially and state separately its conclusions of law[.]” <br>
SDCL 15-6-52(a). We have held that the findings-of-fact requirement serves three <br>
important purposes, some legal and some prudential:<br>
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The purpose of findings of fact is threefold: to aid the appellate <br>
court in reviewing the basis for the trial court's decision; to <br>
make it clear what the court decided should estoppel or res <br>
judicata be raised in later cases; and to help insure that the trial <br>
judge's process of adjudication is done carefully.<br>
Toft v. Toft, 2006 S.D. 91, ¶ 12, 723 N.W.2d 546, 550 (citation omitted).<br>
[¶22.] A circuit court's failure to make sufficient findings is, itself, a basis for <br>
reversal. See Bear Runner, 2018 S.D. 57, ¶ 15, 916 N.W.2d at 130 ("It is well-settled <br>
law that it is the [circuit] court's duty to make required findings of fact, and the <br>
failure to do so constitutes reversible error.” (citation omitted)). However, though <br>
erroneous in the sense that failing to make specific findings does not comply with <br>
SDCL 15-6-52(a), the error is not jurisdictional and may not require reversal in <br>
certain cases. Toft, 2006 S.D. 91, ¶ 11, 723 N.W.2d at 550. Consequently, "an <br>
appellate court may decide the appeal without further findings if it feels it is in a <br>
position to do so.” Id. (citation omitted). "Ultimately, the question is whether the <br>
circuit court's findings sufficiently address the facts of the case under the specific <br>
elements of [the claim] at issue such that we may determine whether the evidence <br>
met the statutory elements [justifying relief].” Doremus v. Morrow, 2017 S.D. 26, ¶ <br>
10, 897 N.W.2d 341, 345 (citation and internal quotation marks omitted).<br>
[¶23.] We have recognized the exigencies of protection order proceedings may, <br>
in some instances, prompt trial courts "to relax procedural and evidentiary rules <br>
normally applied in other civil or divorce proceedings.” Goeden v. Daum, 2003 S.D. <br>
91, ¶ 9, 668 N.W.2d 108, 111. We have, however, also recognized the unyielding <br>
obligation of these courts to determine the existence of "crucial element[s]” <br>
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necessary to justify relief and the need to issue specific findings of fact and <br>
conclusions of law. Id.9<br>
[¶24.] Here, the circuit court made no findings of fact other than the generic <br>
determination stated in the box it checked on the standard form protection order, <br>
indicating that it found by a preponderance of the evidence that domestic abuse had <br>
occurred. Left unsaid by the court is any indication that it believed Ame's <br>
testimony or any factual justification for the entry of a protection order.<br>
[¶25.] There is, however, a more fundamental flaw in the circuit court's <br>
decision to issue the permanent protection order here, beyond merely the lack of <br>
factual findings. The record unmistakably reveals an overt effort by the court to use <br>
the permanent protection order remedy to stabilize the high-conflict relationship <br>
between the parties—not to protect Ame. In fact, the court made no pretense about <br>
assessing the evidence under the correct legal standards for protection orders. And <br>
<br>
9. We have reversed the entry of protection orders in cases where circuit courts <br>
failed to make credibility determinations regarding the evidence before them <br>
or made only general statements and used a preprinted form to enter its <br>
findings of facts. See Bear Runner, 2018 S.D. 57, ¶¶ 17-18, 916 N.W.2d at <br>
131 (reversing the decision to grant a protection order and remanding for <br>
"proper findings” when the court simply "check[ed] the box on the order-ofprotection form finding that stalking had taken place”); Shroyer v. Fanning, <br>
2010 S.D. 22, ¶¶ 8, 12, 780 N.W.2d 467, 470-73 (reversing a domestic abuse <br>
protection order because "the circuit court merely concluded that domestic <br>
abuse had occurred” without issuing "findings, oral or written, [to] support <br>
that conclusion”); Repp v. Van Someren, 2015 S.D. 53, ¶¶ 10-11, 866 N.W.2d <br>
122, 126 (reversing a protection order for failure to enter findings "with <br>
sufficient specificity to permit meaningful review” (citation omitted)); <br>
Castano v. Ishol, 2012 S.D. 85, ¶¶ 17-18, 824 N.W.2d 116, 121 (reversing a <br>
protection order when the circuit "court's statements did not indicate which <br>
version of the evidence it believed”). But see Doremus, 2017 S.D. 26, ¶¶ 11, <br>
15, 897 N.W.2d at 345-46 (affirming the entry of a protection order despite <br>
limited conclusory findings because "under the facts of [the] case,” the <br>
findings were "sufficient to allow . . . meaningful[] review”).<br>
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though it expressed misgivings about using the protection order remedy in this way, <br>
the court plainly indicated that it did not "see anything else to do that's going to <br>
work in this case.” While we can appreciate the court's weariness with the parties' <br>
quarreling and its stated goal of addressing A.B.'s best interests, the court cannot <br>
seek to further this end under a utilitarian view that overlooks the basic principles <br>
associated with the protection order remedy.10<br>
[¶26.] The lack of factual findings would be problematic in its own right, but <br>
it is particularly troublesome here because the circuit court seemed to understand <br>
that a protection order was not authorized and that the acrimony between the <br>
parties was better addressed in the divorce action. This disconnection between the <br>
rules and the remedy requires us to reverse the court's decision to enter a <br>
permanent protection order.<br>
Collateral Estoppel<br>
[¶27.] Matthew asserts an additional argument, claiming the circuit court <br>
was collaterally estopped from making factual determinations in TPO 20-726, <br>
alleging they are precluded by findings made at the September 8, 2020 hearing <br>
regarding TPO 20-369. However, three readily apparent reasons prevent us from <br>
reaching this question. First, given the limited record before us, we cannot <br>
determine what, if anything, the circuit court decided at the September 8 hearing in <br>
TPO 20-369, much less that it was identical to a particular fact or issue in TPO 20-<br>
726. Second, as indicated above, the court did not actually make any factual <br>
<br>
10. The circuit court did not suggest in any way that Ame's testimony would <br>
support a finding of domestic abuse.<br>
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determinations in TPO 20-726 relative to the legal bases for protection orders. And, <br>
finally, it is unnecessary to address the issue of collateral estoppel given our <br>
disposition of this case.

Permanent protection orders, like all other judicial orders, must rest <br>
upon sufficient factual and legal support. The circuit court’s order in TPO 20-726 <br>
had neither. We must, therefore, reverse the order granting the permanent <br>
protection order.