Beermann v. Beermann

• Decision Date: 12 February 1997
• Docket Number: No. 19584,19584
• Parties: Erica Jo BEERMANN, Plaintiff and Appellant, v. Kevin G. BEERMANN, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 868

559 N.W.2d 868

1997 SD 11

Erica Jo BEERMANN, Plaintiff and Appellant, v. Kevin G. BEERMANN, Defendant and Appellee.

No. 19584.

Supreme Court of South Dakota.

Argued Oct. 23, 1996.

Decided Feb. 12, 1997.

R. Scott Rhinehart, Sioux City, IA, and Elizabeth Row, North Sioux City, for plaintiff and appellant.

Shari B. Langner, Sioux Falls, for defendant and appellee.

SABERS, Justice.

¶1 Erica tried to get a temporary protection order to prevent her father from physically abusing her during visits to his home. The trial court refused her request, stating the domestic abuse laws were not applicable to abuse between a parent and child. Application for Writ of Mandamus was made to this court and we issued an Alternative Writ of Mandamus, ordering the trial court to issue a temporary protection order and hold a hearing or to show cause. The trial court determined again that the domestic abuse laws were not available to a minor and also ruled that Erica had not proven domestic abuse. We reverse and remand.

FACTS

¶2 Erica Beermann is the daughter of divorced parents, Barbara Beermann DeJong and defendant Kevin Beermann. On September 15, 1995, Erica, then 14 years of age, was visiting her father in his home. During an argument between the two, Kevin picked her up, dropped her, picked her up again and threw her into a chair. He screamed and swore at her, all the while holding her in the chair by her shoulders.

¶3 One week later, Erica went to court seeking a temporary protection order under the "Protection From Domestic Abuse" chapter of the South Dakota Code. The trial court refused her request, stating abuse between a parent and child was not covered by that chapter. She sought a Writ of Mandamus from this court to order the trial court to issue a temporary restraining order. She argued there was no speedier or more adequate remedy than to proceed under the domestic abuse laws. The Supreme Court issued an alternative writ of mandamus, ordering the trial court to issue a temporary restraining order, which it did. The order required Kevin to refrain from physically abusing her when she visited his home.

¶4 The Alternative Writ also required the trial court to conduct a hearing or to show cause on the matter. Following that hearing, the trial court again held the domestic abuse chapter did not provide an appropriate remedy for abuse between a parent and child. The court stated that her minority precluded her from maintaining a suit in her own name but that she had other options: 1) Her mother could seek to modify the visitation order; and 2) Erica could seek relief under the "Protection of Children From Abuse or Neglect" chapter of the South Dakota Code. The court also held she failed to prove by a preponderance of the evidence that domestic abuse occurred. She appeals.

¶5 Whether the "Protection From Domestic Abuse" Chapter applies to abuse between a parent and a minor child.

¶6 Whether the domestic abuse chapter supplies a remedy for a minor seeking protection from a parent presents a question of law. "The proper construction to be given a statute is a question of law which is fully reviewable. Accordingly, the questions presented are reviewed de novo." In re Estate of Chilton, 520 N.W.2d 910, 912 (S.D.1994) (citations omitted).

¶7 The procedure for obtaining a protection order is set forth in SDCL 25-10-3, which provides, in relevant part:

There exists an action known as a petition for a protection order in cases of domestic abuse. Procedures for the action are as follows:

(1) A petition under this section may be made by any family or household member against any other family or household member.

(2) A petition shall allege the existence of domestic abuse and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances of the domestic abuse.

....

The clerk of the circuit court shall make available standard petition forms with instructions for completion to be used by a petitioner. The department of social services shall prepare the standard petition form.

(Emphasis added). Clearly, the statute is not limited to adult family or household members and there is no language which would exclude application of the chapter to a parent-child relationship. Furthermore "family or household members" are defined as "spouses, former spouses or persons related by consanguinity, adoption or law, persons living in the same household, persons who have lived together, or persons who have had a child together[.]" SDCL 25-10-1(2). This definition embraces the father-daughter relationship. See Webster's New Int'l Dictionary 482 (3d ed.1967) (defining consanguinity as "the quality or state of being related by blood or descended from a common ancestor").

¶8 The trial court held Erica could not proceed under the domestic abuse statutes because of her minority. The court relied on two statutes in this ruling. See 15-6-17(c), which 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.

(Emphasis added). 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 analyze what is "proper for the protection of the minor" and then either appoint one or make other necessary arrangements. See In re Guardianship of Petrik, 1996 SD 24, p 15, 544 N.W.2d 388, 391 ("The appointment of a guardian ad litem is procedural[.]"); M.S. v. Wermers, 557 F.2d 170, 174 (8th Cir.1977) (noting that SDCL 15-6-17(c) is virtually identical to the provisions of Rule 17(c) of the Federal Rules of Civil Procedure and pointing out that appointment of a guardian ad litem under the federal system is discretionary so long as the court enters a finding that the minor is adequately protected in the absence of an appointment); accord Collins v. York, 159 Conn. 150, 267 A.2d 668, 671 (1970) (finding that bringing of action by minor without aid of another was "an amendable irregularity which could be waived."); Smith v. Langford, 255 So.2d 294, 296 (Fla.Dist.Ct.App.1971) (construing identical state provision and concluding the appointment of a guardian ad litem is discretionary and procedural, and therefore not a jurisdictional question).

¶9 The trial court also relied upon SDCL 26-1-3, which does not have the same element of discretion as SDCL 15-6-17(c):

A minor may enforce his rights by civil action, or other legal proceedings, in the same manner as a person of full age. However, a guardian or conservator must be appointed to conduct the same.

SDCL 26-1-3 (emphasis added). When read together, these two statutes do not have the implications attributed them by the trial court, i.e., that they barred a proceeding under Chapter 25-10 by a minor. On the contrary, SDCL 26-1-3 expressly provides a minor may bring a civil action, so long as a guardian or conservator is appointed. Citing SDCL 15-6-17(c), Kevin argues it was Erica's responsibility to petition the court for the appointment; we have not found such language in the statute. It is the trial court's duty to make that appointment. See SDCL 15-6-17(c). See also Serway v. Galentine, 75 Cal.App.2d 86, 170 P.2d 32, 34 (1946):

The court is, in effect, the guardian of the minor and the guardian ad litem is but an officer and representative of the court. In such a case it will be presumed that the court will look to the best interests of the child and will render a decree that will establish and preserve her rights. (Citation omitted).

¶10 In its findings of facts and conclusions of law, the court stated that this action "[arose] from defendant's and Barbara Beermann DeJong's divorce action," and that Erica's petition for a protection order was "[her mother's] idea," and stemmed from Barbara's desire "to modify Erica's visitation with her father." Such findings do not suggest dismissal, but rather the appointment of a guardian without similar conflicts, and the court was free to appoint a guardian of its choosing. SDCL 15-6-17(c). See also Kingsbury v. Buckner, 134 U.S. 650, 679, 10 S.Ct. 638, 648, 33 L.Ed. 1047, 1058 (1890) (commenting on a court's authority with respect to a guardian ad litem and noting, "It was in the power of the court, under whose eye he acted, at any time to inquire into his fitness to represent the interests of the infant, to remove him if he was a mere intermeddler, and to allow some one else to be substituted in his place."); accord Petrik:

[The] statutory language indicates a reliance upon the court's discretionary powers to weigh such matters as conflicts of interest. Courts have authorized the appointment of a guardian ad litem where it is apparent the dispute is "centered on the desire of the parents [and grandparents] rather than the best interests of the child." Dees v. Dees, 41 Wis.2d 435, 164 N.W.2d 282, 287 (1969); Mawhinney v. Mawhinney, 66 Wis.2d 679, 225 N.W.2d 501, 504 (1975). "When there is a potential conflict between a perceived parental responsibility and an obligation to assist the court in achieving a just and speedy determination of the action, parents have no right to act as guardians ad litem." M.S. v. Wermers, 557 F.2d 170, 175 (8th Cir.1977). Where a guardian ad litem has been appointed, the court stands in a position of parens patriae and must act in the best interests of the minor. The duty of a court-appointed guardian ad litem of a minor is to the court...