Sjomeling v. Stuber, 21404.
| Decision Date | 09 August 2000 |
| Docket Number | No. 21404.,21404. |
| Citation | 615 N.W.2d 613,2000 SD 103 |
| Parties | Kathy SJOMELING, Plaintiff and Appellee, v. Steve STUBER, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Robert A. Haivala, Sturgis, Attorney for plaintiff and appellee.
Gordon D. Swanson, Hansen, Hubbard & Swanson, Sturgis, Attorneys for defendant appellant.
[¶ 1.] Steve Stuber appeals the denial of a motion to modify or set aside a protection order. We affirm.
[¶ 2.] Stuber and Kathy Sjomeling are originally from Watertown. They began dating in late 1998 and became engaged that December. In February 1999, Sjomeling broke off the engagement and moved to Sioux Falls. The initial break-up was apparently amicable and the parties continued to maintain a friendship and casual dating relationship for a period of time. However, as time went on, Sjomeling noted Stuber's possessiveness and frustration with their relationship and became convinced that she did not want to remain with him.
[¶ 3.] On June 1, Sjomeling was staying with a friend in Watertown when Stuber made an uninvited visit to the premises. Sjomeling became angry and frustrated with Stuber and told him to stay away from her. Although Stuber left without incident, Sjomeling received a letter from him a day or two later telling her she was too much for him and that he did not want anything to do with her. Sjomeling did not respond to the first letter and received a second letter on June 19. In this letter, Stuber again advised he wanted nothing further to do with Sjomeling, but concluded by stating: "I still believe that God meant for us to be together and I know in my heart that if you choose you could treat me with respect and love me."
[¶ 4.] Sjomeling owned the home in Watertown where Stuber was living and, in his June 19 letter, Stuber also gave notice of his intention to move out of Sjomeling's home by September 1. When she received the letter, Sjomeling contacted a realtor about selling the home and phoned Stuber to tell him she would be meeting the realtor at the house. Although Sjomeling told Stuber she did not care if he was present, Stuber said he would not be at home. Sjomeling then met the realtor, but Stuber returned as Sjomeling finished showing the home. Despite Stuber's unexpected presence, there were no confrontations or incidents at the time.
[¶ 5.] Over the summer of 1999, Sjomeling formulated plans to move across the state to the northern Black Hills region in order to be closer to some family. As Sjomeling was beginning preparations for her move in early July, she ran into a friend of Stuber's. Sjomeling told Stuber's friend she anticipated Stuber might bother her in the Hills and that she would get a protection order if she needed to. Sjomeling later received a call from Stuber begging her not to get a protection order and telling her that he was suicidal. Stuber also told Sjomeling he was going through a very rough period and would need to send her cards to get through the difficult time. Sjomeling replied that if it would keep him from "blowing [his] head off" he should send the cards.
[¶ 6.] On July 20, Sjomeling contacted Stuber to tell him she would be moving her things out of the Watertown home. Although Sjomeling told Stuber she didn't care whether he was there or not, Stuber again indicated he would not be on the premises. Yet, when Sjomeling arrived with some friends to help her move, Stuber was still at home. Sjomeling packed her things and left without incident.
[¶ 7.] On July 28, Sjomeling received a brief phone call from Stuber at her sister's residence in Sturgis. Stuber advised Sjomeling he would be short with his next rental payment and the conversation was concluded. On August 4, Sjomeling received a card and picture from Stuber telling her he was thinking of her with his whole heart. Although these were Sjomeling's last direct contacts with Stuber, he continued to communicate with various members of her family to inquire about her and express his frustrations with her and his difficulties with their break-up and, in some instances, expressing suicidal thoughts. In that vein, Stuber went so far as to plan his suicide, to procure a hose to run from his exhaust into his vehicle and to communicate with Sjomeling's family members about his will and his intention to leave everything to Sjomeling.
[¶ 8.] Toward the end of August, Sjomeling's mother and sister informed Sjomeling that Stuber told them he had moved to Spearfish, a community seventeen miles from Sjomeling's residence in Sturgis, to accept a sales position covering territory in Wyoming and Montana. Stuber had also told Sjomeling's mother and sister that he did not want Sjomeling to know he was in the area. Sjomeling became alarmed and filed a petition for an ex parte temporary protection order pursuant to the stalking statutes in SDCL ch. 22-19A. The temporary order was issued and a hearing was set for October 14 on issuance of an extended protection order. The hearing was held as scheduled and evidence was presented on behalf of both parties. In addition to the foregoing facts, additional evidence was elicited establishing that Stuber was a recovering alcoholic on probation for a felony burglary conviction. The conviction stemmed from an incident in February 1998 where Stuber became extremely intoxicated, stopped by his office, couldn't get the key in the door and broke down his own office door and several other doors in the building.
[¶ 9.] Although the trial court abbreviated the protection order hearing for scheduling reasons, neither party requested a continuance. At the close of the hearing, the trial court entered a protection order prohibiting Stuber from contacting Sjomeling directly or through intermediaries for a period of one year. Approximately a month later, Stuber filed a motion to modify or set aside the protection order on the basis that the abbreviated hearing had denied him the opportunity to present evidence establishing there was no basis for entry of a protection order. A hearing on the motion was held on December 20, 1999 and, at the close of the hearing, the trial court entered findings of fact, conclusions of law and an order continuing the protection order in full force and effect. Stuber appeals.
[¶ 10.] Did the trial court abuse its discretion in refusing to modify or set aside Sjomeling's protection order?
[¶ 11.] This Court has not previously set forth its standards for reviewing the issuance of protection orders or restraining orders pursuant to SDCL ch 22-19A. It has, however, recognized that such orders are a form of injunction. See State v. Pollman, 1997 SD 36, ¶ 15, 562 N.W.2d 105, 108
(). See also 42 Am.Jur.2d Injunctions § 327 (1969) ().
[¶ 12.] Generally, an injunction may be modified only on a showing of changed conditions. See 42 AmJur2d Injunctions § 334 (1969)(court which rendered decree has power to dissolve or modify injunction where the grounds and reasons for which the injunction was granted no longer exist by reason of changed conditions). Jurisdiction to modify protection orders issued pursuant to SDCL ch 22-19A is explicitly granted by SDCL 22-19A-14: "Upon application, notice to all parties, and hearing, the court may modify the terms of an existing order for protection."
[¶ 13.] The courts' power to modify injunctions and protection orders...
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