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Purcell v. Begnaud

Supreme Court of South Dakota

May 3, 2017

SARAH PURCELL, Petitioner and Appellee,
v.
GREGORY BEGNAUD, Respondent and Appellant.

          CONSIDERED ON BRIEFS FEBRUARY 13, 2017

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

          TIM HOGAN ANTHONY J. TEESDALE of Ribstein & Hogan Law Firm Brookings, South Dakota Attorneys for petitioner and appellee.

          JENNIFER GOLDAMMER of Helsper, McCarty & Rasmussen, PC Brookings, South Dakota Attorneys for respondent and appellant.

          GILBERTSON, CHIEF JUSTICE

         [¶1.] The circuit court imposed a three-year protection order barring Gregory R. Begnaud from all contact with his two minor children and their mother, Sarah M. Purcell. Begnaud appeals the order with respect to the children. He argues there is no evidence that he has ever physically harmed or threatened the children. We reverse.

         Facts and Procedural History

         [¶2.] On June 2, 2016, Purcell petitioned for a protection order against Begnaud. She also requested the parties' two children, who were eight and seven years old at the time, be granted protection orders against Begnaud.[1] In the petition, Purcell alleged that Begnaud had used methamphetamine twice in the preceding month. She also alleged that at some point in the past, he had "raised his fist, pulled back like he was going to hit my face, and stopped right before he hit me." The petition did not include any other allegations of abuse toward Purcell, and it contained no allegations of abuse toward the children at all.

         [¶3.] The circuit court held a hearing to consider Purcell's petition on June 27. At the hearing, Purcell testified that the raised-fist incident occurred "a couple" years prior to her petition for a protection order. Purcell also testified that Begnaud invited her to a meeting at his fiancée's place of business on May 20, 2016, apparently for the purpose of admitting he had relapsed and used methamphetamine again.[2] Begnaud's fiancée closed her business for the meeting. Once Purcell arrived, Begnaud's fiancée locked the door. Purcell did not mention this incident in her petition, but testified at the hearing that she "felt in harm's way when . . . locked in [the business.]" Begnaud testified that the door was locked "only . . . so nobody would come in." The children were not present for this meeting.

         [¶4.] The circuit court granted the protection order "as requested." The court ordered Begnaud to stay at least 300 feet away from Purcell and their two children at all times. It also prohibited all "[p]hone calls, emails, third party contact, including correspondence, direct or indirect, " without exception, to Purcell and the children. The court did not discuss the possibility of visitation-supervised or otherwise.

         [¶5.] Begnaud appeals, raising one issue: Whether the circuit court abused its discretion by prohibiting all contact between Begnaud and his minor children for three years.[3]

         Standard of Review

         [¶6.] We review a circuit court's decision to grant a protection order for an abuse of discretion. Repp v. Van Someren, 2015 S.D. 53, ¶ 8, 866 N.W.2d 122, 125 (quoting Shroyer v. Fanning, 2010 S.D. 22, ¶ 6, 780 N.W.2d 467, 469). "An abuse of discretion 'is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.'" MacKaben v. MacKaben, 2015 S.D. 86, ¶ 9, 871 N.W.2d 617, 622 (quoting Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850). We accept the court's factual findings as correct unless "after reviewing all of the evidence, we are left with a definite and firm conviction that a mistake has been made." Repp, 2015 S.D. 53, ¶ 8, 866 N.W.2d at 125 (quoting Shroyer, 2010 S.D. 22, ¶ 6, 780 N.W.2d at 469).

         Analysis ...


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