Repp v. Van Someren

• Decision Date: 24 June 2015
• Docket Number: No. 27148.,27148.
• Citation: 866 N.W.2d 122
• Parties: Michelle Elizabeth REPP, Petitioner and Appellee, v. Benjamin Jacob VAN SOMEREN, Respondent and Appellant.
• Court: South Dakota Supreme Court

866 N.W.2d 122

Michelle Elizabeth REPP, Petitioner and Appellee

v.Benjamin Jacob VAN SOMEREN, Respondent and Appellant.

No. 27148.

Supreme Court of South Dakota.

Considered on Briefs on March 23, 2015.

Decided June 24, 2015.

Beverly J. Katz of Katz Law Office, Prof., LLC, Huron, South Dakota, for petitioner and appellee.

Christina L. Klinger of May, Adam, Gerdes & Thompson, LLP, Pierre, South Dakota, for respondent and appellant.

Opinion

WILBUR, Justice.

[¶ 1.] Michelle Repp filed for a protection order against her former boyfriend Benjamin Van Someren. The circuit court granted Repp the protection order for a period of five years on the basis of stalking. Van Someren appeals and argues that the findings of fact do not support the court order. We reverse and remand for findings of fact and conclusions of law.

Background

[¶ 2.] On May 5, 2014, Repp filed a petition and affidavit for a stalking protection order. Repp checked boxes on the petition alleging Van Someren: (1) “Willfully, maliciously, and repeatedly followed me;” or (2) “Harassed me by pursuing a knowing and willful course of conduct which seriously alarms, annoys or harasses me with no legitimate purpose. The pattern of conduct is a series of acts over a period of time, however short, showing a continuing pattern of harassment.” On the petition, Repp described her dysfunctional relationship with Van Someren and the alleged reasons that necessitated a protection order. The circuit court issued a temporary protection order against Van Someren and set a hearing for a permanent protection order on July 2, 2014. Around this time, Van Someren found employment in Saint Peters—a suburb of St. Louis, Missouri—and planned to move on July 5, 2014.

[¶ 3.] Repp and Van Someren offered conflicting testimony at the permanent protection order hearing on July 2, 2014. Therefore, we restate the facts in this case “in a light most favorable to the circuit court's” decision. Donat v. Johnson, 2015 S.D. 16, ¶ 2, 862 N.W.2d 122, 125. Repp testified that she and Van Someren began dating on August 24, 2012, and that the two of them had eight to ten breakups over the following two years. The final breakup occurred on May 1, 2014. Repp testified that shed had increasing concerns for her safety during their unstable relationship. She testified that she continued to date him despite the many breakups because she “was constantly trusting him” and that she “was scared half to death of him, but he made [her] believe that it was all [her] fault and so [she] was constantly trying to change [her]self.”

[¶ 4.] At the hearing, Repp testified about specific incidents during her unstable relationship with Van Someren that compelled her to file for a protection order against Van Someren. The first instance of stalking, Repp testified, occurred in May of 2013, when Van Someren entered her apartment unannounced while she was sleeping. He admitted this to her a week later. On two separate occasions, Van Someren stood outside of her open apartment window and listened to her. At some point she learned that he had retrieved passwords to several of her Internet accounts without her consent. A few months later, in July of 2013, Van Someren entered into her apartment through a locked door by unhinging the door. After this incident, Repp moved to a more secure apartment. She did not tell Van Someren about her new apartment. Eventually, she returned to her former apartment complex to return the key. As she walked down a set of stairs to get to that apartment, Van Someren jumped out from behind the stairwell and demanded that she give him a key. She told him she no longer lived at that apartment and attempted to close the front door. He put “his foot in the door” to prevent it from closing. She testified that “fight or flight kick[ed] in” and she ran out the back door of the apartment. Later, Van Someren discovered the address to Repp's new apartment by sending a letter to her former address with “return requested” marked on the envelope. Repp and Van Someren eventually resumed their relationship after she moved to her new apartment. At the new apartment, Van Someren dragged her off a couch causing her to hit her head on the coffee table. On a separate, but similar occasion, he dragged her off the couch causing her to hit her leg on the coffee table. After both incidents, he made her sit in the corner of her closet and count to an unspecified number. Van Someren disputed Repp's recitation of the incidents described above.

[¶ 5.] On May 1, 2014, Repp ended her relationship with Van Someren for the final time. Repp drove to Van Someren's apartment and told him that she no longer wanted a relationship with him. She instructed him to never contact her again. That same night, Van Someren sent her two text messages and one email. The first text message said, “I'm sorry. I love you.” The second text message said, “I just want you to be happy. Please let me know when you are happy.” Approximately one hour after sending the second text message, Van Someren sent an email asking Repp to let him know when she finds happiness again.

[¶ 6.] Four days later, Repp sought a protection order against Van Someren. She testified that her relationship with him was “not normal behavior” and that she “shouldn't have to live in fear[.]” Repp was afraid that without a protection order Van Someren would keep “contacting” and “harassing” her. She further testified that she wanted the protection order to show up on any background check of Van Someren. In a statement against interest on May 15, 2014, Repp stated,

I need [the protection order] to appear on his background checks. For jobs, apartment, life, everything, other girls. He made bad decisions and he must live with them. Final. It must show up on his background check. If it doesn't, then we are going to court. I need it so that if some random person out there investigates into [Van Someren], they will know that [he] had this order placed against him. I do not want him to hurt anyone else.

Counsel for Van Someren argued that this statement is evidence of the fact that Repp wanted the protection order to “punish [Van Someren],” to “cause problems in his life,” and to “protect others.”

[¶ 7.] At the close of the hearing, the circuit court granted the protection order. That same day, the court entered a written permanent protection order prohibiting Van Someren from coming within a distance of 100 yards of Repp for a period of five years. Van Someren appeals the court order and raises the following issues for our review:

1. Whether the circuit court's findings of fact were clearly erroneous.

2. Whether the circuit court abused its discretion in entering a protection order.

3. Whether the circuit court abused its discretion in rejecting offered evidence.

Standard of Review

[¶ 8.] The standard of review for the grant of a protection order is well established:

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. Furthermore, the credibility of the witnesses, the import to be accorded their testimony, and the weight of the evidence must be determined by the trial court, and we give due regard to the trial court's opportunity to observe the witnesses and examine the evidence. If the trial court's findings of fact are not clearly erroneous, we must then determine whether the trial court abused its discretion in granting or denying the protection order.

Shroyer v. Fanning, 2010 S.D. 22, ¶ 6, 780 N.W.2d 467, 469 (quoting White v. Bain, 2008 S.D. 52, ¶ 8, 752 N.W.2d 203, 206) (internal quotation marks omitted).

Analysis

Findings of Fact

[¶ 9.] The circuit court concluded that Van Someren committed stalking under SDCL 22–19A–1.¹ At the close of evidence, the circuit court rendered oral findings of fact and conclusions of law:

The court: Well, it's clear that these folks had a dysfunctional relationship over the course of two years. It's hard for me to understand why either of them continued to stay in the relationship as long as they did. And while it may be that [Van Someren] is leaving the area and removing himself from a situation where he might be involved with perhaps an inadvertent contact, I think the escalating nature of the relationship itself and the controlling nature—and I understand and certainly agree that there's some fault on both sides as relates to the relationship. But I think that [Repp] has met her burden by a preponderance of the evidence that stalking has occurred here. There was an accelerating level of control being exhibited by [Van Someren] here. The fact that he's moving on, moving away from here, although it should provide some comfort as far as a likelihood of future contact, doesn't negate the need for a protection order and I'm going to grant it.

The court directed Repp to prepare written findings of fact: “I think in this case, Ms. Katz [ (Repp's counsel) ], findings of fact would be appropriate if you would prepare such.” Repp prepared findings of fact and conclusions of law, but submitted them to the court eight days late and after Van Someren had filed his notice of appeal. Consequently, the court's oral findings of fact and conclusions of law control. See SDCL 15–6–52(a) (“It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of evidence....”).

[¶ 10.] “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.” March v. Thursby, 2011 S.D. 73, ¶ 20, 806 N.W.2d 239, 244 (quoting Shroyer, 2010 S.D. 22, ¶ 7, 780 N.W.2d at 470). “Findings must be entered ‘with sufficient specificity to permit meaningful review.’ ” Id. (quoting Goeden v. Daum, 2003 S.D. 91, ¶ 9, 668 N.W.2d 108, 111). “We cannot...