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Lacey Jo March v. Roger Thursby

November 9, 2011

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

Per curiam.

CONSIDERED ON BRIEFS ON AUGUST 22, 2011

[¶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 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, among other things, stalking. SDCL 22-19A-8.*fn1 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 ...


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