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Blair-Arch v. Arch

Supreme Court of South Dakota

December 23, 2014

CYNTHIA BLAIR-ARCH, Petitioner and Appellee,
v.
MYRIL ARCH, II, Respondent and Appellant

Considered On Briefs November 17, 2014

APPEAL FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA. THE HONORABLE JOHN BROWN, Judge.

CHRISTINA L. KLINGER, May, Adam, Gerdes & Thompson, LLP, Pierre, South Dakota, Attorneys for petitioner and appellee.

BRAD A. SCHREIBER, The Schreiber Law Firm, Prof., LLC, Pierre, South Dakota, Attorneys for respondent and appellant.

KONENKAMP, Justice. GILBERTSON, Chief Justice, and SEVERSON, Justice, and PORTRA and SMITH, Circuit Court Judges, concur. PORTRA, Circuit Court Judge, sitting for ZINTER, Justice, disqualified. SMITH, Circuit Court Judge, sitting for WILBUR, Justice, disqualified.

OPINION

Page 875

KONENKAMP, Justice

[¶1] In this appeal, we address the question whether a protection order may be entered against a respondent by default when an attorney appears at the protection order hearing on the respondent's behalf, authorized to present a defense.

Background

[¶2] On November 12, 2013, Cynthia Ann Arch filed a petition and affidavit for

Page 876

a domestic abuse protection order against her brother, Myril Arch II. The documents were completed pro se on forms provided by the South Dakota Unified Judicial System (UJS). By filling in blanks and checking boxes on the forms, Cynthia alleged that both she and Myril resided in Hughes County, that Myril had threatened her and committed acts of harassment against her, and that she was the victim of a crime of violence.

[¶3] Cynthia specifically described an incident in which Myril used his pickup to spin gravel against her home and break a window. She also described occasions when Myril threatened to kill her, her brother, and her son, including threats left on voice mail. In addition, Cynthia described Myril's threats against her restaurant business and efforts he made to block the road to her home nearby. She also made allegations about Myril's lack of sobriety. Cynthia sought a five-year protection order to keep Myril away from herself, her business, and her residence. Alleging that she feared bodily injury and for her life, Cynthia also sought a temporary protection order pending the hearing on the permanent order. Cynthia signed the form under oath before a deputy clerk of courts.

[¶4] The circuit court issued a notice of hearing on Cynthia's petition and also entered a temporary protection order pending the hearing. The hearing was initially set for November 27, 2013. But, on November 21, the circuit court rescheduled the hearing for December 3, 2013. An order provided in relevant part that " Respondent shall present him/her self before the . . . [c]ourt" for the rescheduled hearing. On December 3, 2013, the circuit court ordered another rescheduling for January 8, 2014. This order also provided in relevant ...


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