March v. Thursby

#25873-r-PER CURIAM

2011 S.D. 73

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

LACEY JO MARCH, Petitioner,

v.

ROGER THURSBY, Respondent and Appellant.

* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTH JUDICIAL CIRCUIT
FALL RIVER COUNTY, SOUTH DAKOTA

* * * *

HONORABLE THOMAS L. TRIMBLE
Judge

* * * *

LACEY JO MARCH
Hot Springs, South Dakota Pro se petitioner.

JOHN S. RUSCH of
Rensch Law Office Attorneys for respondent
Rapid City, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON AUGUST 22, 2011

OPINION FILED 11/09/2011
#25873

PER CURIAM

[¶1.] Lacy Jo March (March) filed a Petition and Affidavit for Protection

Order on November 18, 2010, seeking a protection order against Roger Thursby

(Thursby). The circuit court granted March the protection order. Thursby appeals,

alleging that the findings of fact are insufficient to support the order as signed.

Because the findings of fact do not support the protection order the circuit court is

reversed.

Facts

[¶2.] A hearing on March’s petition for protection order was held on

December 17, 2010. March testified as to the reason she sought the protection

order. She testified that in July, 2009, while she was 16 years old, she visited her

cousin, Evelyn Hohn (Hohn), in Illinois. Hohn lived with Thursby. March testified

that while her cousin was at a rodeo, she helped Thursby around the house with the

chores. The evening of July 19, March had been resting on the couch. When

Thursby came home from work, he sat down on the couch, and attempted to engage

March in inappropriate sexual contact.

[¶3.] After being questioned by the circuit court, March, who appeared pro

se, indicated that she was fearful for her safety during and after the evening of July

19. She testified that Thursby was residing in Illinois, but that he had visited her

ranch in South Dakota and was aware of her location.

[¶4.] Thursby told an entirely different story. He said that the night in

question, after returning from work, he caught March drinking a beer. He told her

-1-
#25873

to dump out the beer and go to sleep. He also told her he would tell Hohn when she

returned.

[¶5.] At the hearing Judge Trimble orally indicated that he found March’s

testimony credible and granted her a protection order for two years. After Judge

Trimble rotated off the Fall River County bench, Thursby, through counsel, filed a

motion seeking detailed findings of fact and conclusions of law. Judge Kern

conducted a hearing and determined that she could not change the findings and

conclusions of another circuit court judge.

Standard of Review

[¶6.] Thursby raises four issues on appeal. March did not file an appellee’s

brief.

The standard of review for the grant of a protection order has
been previously established: The trial court’s decision to grant or
deny a protection order is reviewed under the same standard
that is used to review the grant or denial of an injunction. 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.

Shroyer v. Fanning, 2010 S.D. 22, ¶ 6, 780 N.W.2d 467, 469 (internal quotations

and citations omitted).

Analysis

[¶7.] Whether the Order for Protection was voidable by Thursby
because March was a minor when she signed the Petition and
prosecuted the action.

[¶8.] March, who was 17 at the time, commenced her action under SDCL

chapter 22-19A. This chapter allows a protection order to be entered to prevent,

-2-
#25873

among other things, stalking. SDCL 22-19A-8. 1 At the evidentiary hearing on this

matter, March testified that she perceived Thursby’s actions as a credible threat of

great bodily injury. (This came in the form of a response to a question from the

circuit court.)

[¶9.] In a similar context, this Court has held that protection of a minor

overrides procedural irregularities. See Beermann v. Beermann, 1997 S.D. 11, 559

N.W.2d 868. In Beermann, a minor sought a domestic violence protection order

against her father. Id. ¶ 1. The trial court determined the petitioner “could not

proceed under the domestic abuse statutes because of her minority.” Id. ¶ 8. Like

Thursby, the trial court in Beermann relied upon the rules of civil procedure,

especially SDCL 15-6-17(c). 2 This Court commented on SDCL 15-6-17(c) as follows:

“The necessity of a guardian ad litem, a guardian, or a conservator is not, according

to this statute, a jurisdictional bar; it is simply a procedural prerequisite that the

court [must] analyze [when determining] what is ‘proper for the protection of the

1. Stalking can occur by “mak[ing] a credible threat to another person with the
intent to place that person in reasonable fear of death or great bodily injury.”
SDCL 22-19A-1(2).

2. This section provides in relevant part:

Whenever a minor or incompetent person has a guardian or
conservator, such guardian or conservator may sue or defend on
behalf of the minor or incompetent person. If the minor or
incompetent person does not have a guardian or conservator, he
may sue by a guardian ad litem. The court shall appoint a
guardian ad litem for a minor or incompetent person not
otherwise represented in an action or shall make such other
order as it deems proper for the protection of the minor or
incompetent person and may make such appointment
notwithstanding an appearance by a guardian or conservator.

-3-
#25873

minor’ and then either appoint one or make other necessary arrangements.” Id.

(citations omitted). After determining that appointment of a guardian is a

procedural, rather than a jurisdictional requirement, this Court determined that

the trial court was not obligated to appoint a guardian. “Therefore, in these

circumstances, the trial court could have concluded no guardian was necessary or

appointed one, if deemed necessary. We are not convinced that the need for a

guardian at the petition stage outweighs the need for immediate court protection.”

Id. ¶ 10.

[¶10.] March did not seek a protection order under the domestic violence

statutes. Rather, she sought a protection order under the stalking statutes. This

does not make her protection any less important. March’s protection outweighs the

“procedural irregularity” that occurred when March signed the petition while a

minor.

[¶11.] A close examination of the authority cited by Thursby requires the

same result. Thursby relies on the following language: “An infant plaintiff must

have a guardian appointed before [s]he commences [her] action. If [s]he fails to do

so, the defendant may move to have the proceedings set aside for irregularity.”

Fink v. Fink, 70 S.D. 366, 369, 17 N.W.2d 717, 718 (1945) (internal quotation marks

omitted). But Thursby acknowledges that this language originally came from this

Court in Olsen v. Steele. 51 S.D. 505, 215 N.W. 531 (1927). The Olsen Court

followed the language quoted by Thursby with the following: “But it is too late to

move after an answer has been served and the irregularity may be cured or

waived.” Id. (citation omitted). Thursby did not challenge March’s ability to sign

-4-
#25873

the petition until after he appeared and challenged the allegations contained in the

petition on their merits. By this time, it was too late. See id. March’s capacity to

sign the petition in her own right is a procedural irregularity that Thursby waived

by not objecting before answering the allegations on the merits.

[¶12.] Whether the circuit court had personal jurisdiction over
Thursby and subject matter jurisdiction over the allegations in
March’s petition.

[¶13.] Thursby argues that the circuit court lacked personal jurisdiction to

enter a protection order against him, a resident of Illinois. Jurisdictional issues are

questions of law reviewable de novo. Grajczyk v. Tasca, 2006 S.D. 55, ¶ 8, 717

N.W.2d 624, 627. “A person may waive a lack of personal jurisdiction by submitting

to the jurisdiction of the court and pleading on the merits.” Met Life Auto and

Home Ins. Co. v. Lester, 2006 S.D. 62, ¶ 11, 719 N.W.2d 385, 387 (citations omitted).

[¶14.] Thursby’s counsel moved to supplement the appellate record with an

affidavit. This Court granted that motion. In counsel’s affidavit he asserts that,

prior to the hearing on the protection order, he “informed the Court that

Respondent Thursby was challenging jurisdiction of the South Dakota courts over

him[.]” Our rules of civil procedure provide very clear guidance on this issue.

Consider SDCL 15-6-12(h)(1).

A defense of lack of jurisdiction over the person, insufficiency of
process, or insufficiency of service of process is waived (A) if
omitted from a motion in the circumstances described in § 15-6-
12(g), or (B) if it is neither made by motion under § 15-6-12 nor
included in a responsive pleading or an amendment thereof
permitted by § 15-6-15(a) to be made as a matter of course.

-5-
#25873

Thursby neither made a motion pursuant to SDCL 15-6-12, nor did he include his

challenge to personal jurisdiction in a responsive pleading. Other than counsel’s

affidavit, the record contains no indication that Thursby contested the issue of

personal jurisdiction. Pursuant to SDCL 15-6-12(h), a party cannot preserve a

challenge to personal jurisdiction by “informing” the judge that the issue will be

contested. Thursby has waived this issue.

[¶15.] Thursby next argues that the circuit court did not have subject matter

jurisdiction to enter the protection order. Thursby contends that, because the

incident that March alleges placed her in fear of great bodily harm occurred in

Illinois, the South Dakota circuit court lacks subject matter jurisdiction over the

protection order.

[S]ubject matter jurisdiction is only dependent upon the nature
of the proceeding and the relief sought. Subject matter
jurisdiction is: “a court’s competence to hear and determine
cases of the general class to which proceedings in question
belong; the power to deal with the general subject involved in
the action . . . deals with the court’s competence to hear a
particular category of cases.” Thus, subject matter jurisdiction
is not determined by technical pleading requirements but by
“‘[t]he subject, or matter presented for consideration; the thing
in dispute; the right which one party claims as against the
other, as the right to divorce; . . . [the n]ature of cause of action,
and of relief sought . . . .’”

Sazama v. State ex rel. Muilenberg, 2007 S.D. 17, ¶ 14, 729 N.W.2d 335, 341-42

(internal citations omitted).

[¶16.] Circuit courts are courts of general jurisdiction, endowed by the

constitution with “general jurisdiction to hear all civil actions.” Christians v.

-6-
#25873

Christians, 2001 S.D. 142, ¶ 45, 637 N.W.2d 337, 386 (Konenkamp, J., concurring

specially) (citing S.D. Const. art. V, § 1).

[¶17.] In addition to constitutional authority to hear “all civil actions” South

Dakota circuit courts have the statutory ability to hear cases requesting protection

orders. “A petition for relief under § 22-19A-8 to 22-19A-16, inclusive, may be filed

in circuit court or in a magistrate court with a magistrate judge presiding.” SDCL

22-19A-9. March resides in South Dakota. The protection order protects March. A

protection order operates to prohibit future conduct. See Sjomeling v. Stuber, 2000

S.D. 103, ¶ 11, 615 N.W.2d 613, 616. “When a court issues a protection order, it

puts the would-be abuser on notice that his or her actions will be scrutinized.”

Beermann, 1997 S.D. 11, ¶ 14, 559 N.W.2d at 872. The circuit court had subject

matter jurisdiction to hear March’s petition.

[¶18.] Whether the Order for Protection was supported by proper
findings and conclusions.

[¶19.] Thursby argues that the protection order was not supported by

comprehensive findings and conclusions. At the original hearing, the circuit court

orally indicated that it believed March’s version of the events and would grant the

protection order. The court made no further oral pronouncements. The actual

protection order was a pre-printed form containing boxes to be checked for factual

findings. The court checked the box stating “that the Petitioner has suffered

physical injury resulting from an assault or crime of violence, as defined by SDCL

22-1-2(9).” The testimony elicited at trial concerned stalking, as that term is

defined in SDCL 22-19A-1. That box was not checked. The order also prohibited

-7-
#25873

Thursby from contacting March’s sisters. No mention of the sisters was made

during the hearing.

[¶20.] “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.” Shroyer, 2010

S.D. 22, ¶ 7, 780 N.W.2d at 470 (citation omitted). In Shroyer, this Court reversed

entry of a domestic violence protection order because “the circuit court merely

concluded that domestic abuse had occurred. No findings, oral or written, support

that conclusion.” Id. ¶ 8. This Court noted that “[t]he 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].’” Id. (citing

Goeden v. Daum, 2003 S.D. 91, ¶ 8, 668 N.W.2d 108, 111). Here, the circuit court

indicated that it believed March’s version of the events. But the written finding did

not correspond with the oral testimony of March. Findings must be entered “with

sufficient specificity to permit meaningful review.” Goeden, 2003 S.D. 91, ¶ 9, 668

N.W.2d at 111. Although the court indicated it believed March’s version of the

events, it did not “indicate how the evidence met the statutory elements of

stalking.” Id. ¶ 8. The circuit court failed to “insure that the findings of fact and

conclusions of law are clearly entered.” Id. ¶ 9. This failure requires reversal. See

id.

[¶21.] Because the protection order is reversed due to the insufficiency of the

findings of fact, this Court need not reach Thursby’s remaining issue.

-8-
#25873

Conclusion

[¶22.] Because the circuit court’s finding of fact was insufficient the order for

protection is reversed.

[¶23.] Reversed.

[¶24.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER,

SEVERSON, and WILBUR, Justices, participating.

-9-