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Dora Castano v. Richard R. Ishol

December 5, 2012

DORA CASTANO,
PETITIONER AND APPELLEE,
v.
RICHARD R. ISHOL,
RESPONDENT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE VINCENT A. FOLEY Judge

The opinion of the court was delivered by: Gilbertson, Chief Justice

CONSIDERED ON BRIEFS ON OCTOBER 1, 2012

[¶1.] Richard Ishol appeals a protection order restricting his contact with his former wife and her daughter for a period of one year. We reverse.

Facts

[¶2.] Dora Castano came to Brookings, South Dakota in April 2010 and she and Ishol were married that June. Castano received her visa in April or May of 2011 but her relationship with Ishol began to deteriorate when she did not take a job that he had arranged for her. Ishol had a final interview with the Department of Homeland Security in June 2011 and signed a document on June 27 withdrawing his support for Castano's permanent residence status. Ishol testified during the hearing in this matter that, at that point, "they annulled everything, my letter of support dissolved the marriage, everything was dissolved."

[¶3.] Castano stayed at a domestic violence shelter from August 14 through November 2, 2011. On November 30, Ishol sent Castano an e-mail offering her a car he wanted to get rid of. Ishol also mentioned some health issues he had and a car accident that he had been involved in. Castano replied on December 11, telling Ishol, "No thank you regarding the car." Castano further instructed, "PLEASE DO NOT CONTACT ME AGAIN." Despite Castano's request, Ishol continued to send her e-mails. On December 30, 2011, he sent her an e-mail advising that he had been contacted concerning her visa. In the e-mail, Ishol added, "WE CAN STILL SAY HI TO EACH [OTHER]." On January 27, 2012, Ishol sent another e-mail to Castano offering her $200 to clean a house he wanted cleaned. Ishol again commented, "don't understand why we can't be nice and be friends of some type in a nice way." On February 2, 2012, Ishol sent Castano a third e-mail indicating he was responding to a call that he had missed from her. During the hearing in this matter, however, Castano denied ever calling Ishol. In his e-mail, Ishol mentioned seeing Castano and her daughter "downtown," but being afraid to say hello. Ishol also mentioned seeing Castano in a blue car and congratulated her on driving.

[¶4.] By March 2012, Castano had moved into a new apartment. Although she had not given Ishol her new address, on March 2, she received an envelope in the mail with a bracelet inside, but no note. Ishol later admitted during the hearing in this matter that he had learned Castano's address through his position with Brookings Municipal Utilities as a meter reader. Ishol further admitted that he sent Castano the bracelet after coming across it while doing some unpacking and because he thought it must belong to her. About a week after Castano received the bracelet, her daughter was coming home from school and ran into Ishol in her and her mother's apartment building. Ishol attempted to converse with the child, but she was afraid of him and found him very intimidating.

[¶5.] Castano had at least two additional encounters with Ishol. In one instance, she was outside a house where she was doing some clean-up work and

Ishol approached her and attempted to talk to her. Castano told Ishol to leave her alone and not to talk to her anymore. In another instance, Castano was with a companion at a local restaurant when Ishol approached her table to talk to her. Castano ignored him.

[¶6.] On March 13, 2012, Castano filed a form petition and affidavit for a domestic abuse protection order. Castano checked boxes on the petition alleging Ishol: had made her fearful that he was about to cause her physical harm or bodily injury; willfully, maliciously, and repeatedly followed her; harassed her by pursuing a knowing and willful course of conduct which seriously alarmed, annoyed, or harassed her, with no legitimate purpose; showed a continuing pattern of harassment; and willfully, maliciously, and repeatedly harassed her by means of verbal, electronic, or digital media, or by mechanical, telegraphic, or written communication. Castano further alleged that Ishol had guns, was supposed to be on medication, and that when he stopped taking his meds he was very aggressive and dangerous. Castano requested a protection order extending to certain locations frequented by her and her daughter. The trial court issued a temporary protection order and set a hearing on a permanent order for March 21, 2012.

[¶7.] Castano appeared at the March 21 hearing with the assistance of an interpreter, but without counsel. Ishol appeared with counsel. Indicating Castano "already went" because she had "filed the Petition," the trial court began by hearing Ishol's case. Ishol testified and offered various explanations for his contacts with Castano, attributing their personal encounters to chance or coincidence resulting from his work as a meter reader. Castano then cross-examined Ishol through her interpreter, but much of her examination turned into statements on her own behalf. Other than references to e-mails, the trial court struck Castano's statements as irrelevant. The trial court then gave Ishol's counsel an opportunity to cross-examine Castano about the e-mails.

[¶8.] At the close of the hearing, the trial court granted the protection order for one year and made the order applicable to the extended areas requested by Castano. The court subsequently entered a written protection order excluding Ishol from Castano's residence and from coming within 300 feet of her or her daughter. The order further excluded Ishol from the high school and Boys and Girls Club. Ishol appeals.

Issue 1

[ΒΆ9.] Whether Ishol's cross-examination was ...


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