Preview:

Unified Judicial System

LANAYA GOEDEN, Petitioner and Appellee, v. DENNIS DAUM, Respondent and Appellant [2003 SD 91] South Dakota Supreme Court Appeal from the Circuit Court of The First Judicial Circuit Yankton County, South Dakota Hon. Arthur L. Rusch, Judge WILLIAM J. KLIMISCH of Goetz & Klimisch Yankton, South Dakota Attorneys for petitioner and appellee. MICHAEL D. STEVENS of Blackburn & Stevens Yankton, South Dakota Attorneys for respondent and appellant. Considered on Briefs May 27, 2003 Opinion Filed 7/30/2003 #22709 MEIERHENRY, Justice [¶1.] Lanaya Goeden (Goeden) filed a petition and affidavit for a protection order against Dennis Daum (Daum) for stalking. The trial court entered an ex-parte temporary protection order. A hearing on the permanent protection order was held, and as a result of the hearing, the trial court entered a protection order against Daum for a period of three years. Daum appeals. We reverse and remand. FACTS AND PROCEDURAL HISTORY [¶2.] At the permanent protection order hearing, the parties presented conflicting testimony to the court involving contact between the parties since their divorce. Goeden alleged that Daum was verbally and physically abusive during the marriage and that he continually contacted her after the divorce pressing her to work out their problems and to get remarried. Although Goeden eventually married someone else, Daum continued to contact her. Goeden claimed that Daum called her repeatedly at home and at work and was constantly leaving messages that normally ended in a threat. Eventually, Goeden disconnected her answering machine to prevent Daum from leaving messages. Goeden testified that Daum would let the phone ring forty to fifty times. She claimed his behavior forced her to buy a telephone with a security device that would disconnect after ten rings if the caller failed to enter a security code. In opposition to her claims, Daum denied letting the phone ring forty to fifty times and denied placing harassing phone calls. Daum asserted that he only called to talk about the children or issues regarding insurance or visitation. He said the only messages he left on her phone related to the children. [¶3.] In addition to the harassing phone calls, Goeden alleged that Daum was following and spying on her. One occasion occurred when Goeden and Daum exchanged children for purposes of visitation at the visitation center in Yankton, SD. At the visitation center, the parents are not to have contact with each
file:///C|/Users/Peter/Desktop/Opinions/11201117.htm[5/8/2013 8:02:53 PM]

Unified Judicial System

other and are required to enter and leave by different doors. During one of the exchanges, Goeden claimed that Daum parked his car in an alley to watch her as she exited the visitation center. On another occasion, Goeden claimed that Daum was watching her at her place of employment. She had gone to the bank where she worked after11:00 p.m. to pick up some files and saw Daum parked by the automated teller machine (ATM) outside the bank. Goeden claimed that the security log from the bank showed no ATM transaction during that time frame. Daum denied spying on Goeden from the ATM and denied sitting outside the visitation center. On another occasion, Goeden claimed that Daum followed her to her residence. Daum denied following her intentionally. He testified that both he and Goeden live a few blocks of each other and travel the same street to their respective houses. Daum said he may have inadvertently followed her on his way home or vice versa. [¶4.] At the conclusion of the hearing, the trial court granted the protection order against Daum for a period of three years. Daum appeals the following issue: 1. Whether the trial court abused its discretion in granting a protection order. STANDARD OF REVIEW [¶5.] The grant or denial of a protection order is reviewed under the same standard used to review the grant or denial of an injunction. Marks v. Clark, 2001 SD 122, ¶9, 635 NW2d 278, 280. We must first determine if the trial court

Download 11201117.pdf

South Dakota Law