#29523-r-MES

2021 S.D. 60

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

AME JO BATCHELDER, Petitioner and Appellee,

v.

MATTHEW JAMES BATCHELDER, Respondent and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SEVENTH JUDICIAL CIRCUIT

PENNINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE ROBERT A. MANDEL

Retired Judge

* * * *

PATRICIA A. MEYERS

Rapid City, South Dakota Attorney for petitioner and

appellee.

JOHN S. RUSCH

Rensch Law Office

Rapid City, South Dakota Attorneys for respondent and

appellant.

* * * *

CONSIDERED ON BRIEFS

AUGUST 23, 2021

OPINION FILED 10/13/21
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SALTER, Justice

[¶1.] In a separate, initial proceeding, Ame Batchelder (Ame) petitioned for 

a protection order, alleging domestic abuse by her former husband, Matthew 

Batchelder (Matthew). The circuit court issued a temporary ex parte protection 

order but ultimately dismissed Ame’s petition when she failed to appear at the 

hearing. However, at roughly the same time her original petition was dismissed, 

Ame sought a new protection order against Matthew. The court issued a new 

temporary ex parte protection order and eventually entered a permanent protection 

order against Matthew.

[¶2.] Despite expressing its reluctance about the appropriateness of the 

remedy, the court indicated the protection order was necessary to ease the 

contentious relationship between the parties who share a minor child. The court 

checked a box on the preprinted protection order form indicating it had found the 

existence of domestic abuse, but it did not issue any oral or written findings. 

Matthew now appeals, claiming the lack of findings and legal justification render 

the protection order infirm. Matthew also argues that the denial of the earlier 

protection order precludes what he views as relitigation of the same issues under 

the doctrine of collateral estoppel. We reverse.

Factual and Procedural Background

[¶3.] Ame and Matthew were married on February 26, 2005, in Rapid City, 

where they continue to reside. They have one child, A.B., who was born in 2006. 

Ame commenced a divorce action in 2019, and the couple resolved the case without 

a trial under the terms of a stipulation, which provided, among other things, that 
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the parties would exercise joint legal and physical custody of A.B. The stipulation 

also provided that “[c]ommunication between the parties shall mostly be via textmessage or Email and deal only with [A.B.]” The circuit court incorporated the 

stipulation into a judgment and decree of divorce, which was issued on February 3, 

2020.1

[¶4.] The parties were subsequently involved in two protection order actions 

in 2020, both commenced by Ame. This appeal concerns the second, more recent 

proceeding, though certain procedural facts relating to the initial proceeding are 

relevant to a complete narration of the facts. Unfortunately, however, only select 

portions of the record from the initial proceeding appear in the current record, 

leaving voids in the background information. Where appropriate, we will use what 

appear to be undisputed contextual details solely to assist with our exposition of the 

facts.

[¶5.] It appears from the parties’ briefs that Ame filed the first petition for a 

protection order on July 7, 2020, alleging that Matthew had “inflicted fear . . .

and/or . . . was about to cause physical harm or bodily injury” to her.2 See SDCL ch. 

25-10 (authorizing courts to issue protection orders in cases involving domestic 

 

1. The same circuit court judge presided over the parties’ divorce action, the 

underlying protection order proceeding, and the protection order case that is 

the subject of this appeal.

2. The petition is not included in the record. It is part of the appendix attached 

to Ame’s appellate brief, but this practice does not comply with our rules for 

preparing appendices. See Klutman v. Sioux Falls Storm, 2009 S.D. 55, ¶ 37, 

769 N.W.2d 440, 454 (“Documents in the appendix must be included within, 

and should be cross-referenced to, the settled record.” (citing SDCL 15-26A60(8)).
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abuse). This underlying action was assigned case number TPO 20-369 by the 

Pennington County Clerk of Courts. The circuit court granted an ex parte 

temporary protection order that was set to expire on July 28 but was later 

continued to September 8 and then to December 7. The circumstances leading up to 

this last extension of this initial temporary order are, however, not entirely clear 

from the record.

[¶6.] The parties seem to agree that the circuit court conducted a hearing on 

the petition in TPO 20-369 on September 8, 2020. Matthew alleges that during the 

September 8 hearing, the court determined that his “actions did not amount to 

harassment.” Despite that purported finding, Matthew claims the court, “as a 

means to keep the peace[,] . . . extended [the order] another three months, to 

December 7, 2020.”3 However, there is no hearing transcript included in the 

current record, and the order continuing the temporary order, which is included in 

the record, does not reference a September 8 hearing or any findings by the court.4 

The September 8 order was styled as a modification of the original temporary order 

 

3. As the name suggests, temporary protection orders are meant to be shortlived. “An ex parte temporary protection order is effective for a period of 

thirty days” but may be extended an additional thirty days upon a finding of 

good cause. SDCL 25-10-7. Beyond this, a court has no authority to 

unilaterally extend the length of a temporary protection order and may do so

only if it “finds good cause for the additional continuance and: (1) The parties 

stipulate to an additional continuance; or (2) The court finds that law 

enforcement is unable to locate the respondent for purposes of service of the 

ex parte protection order.” SDCL 25-10-7(1)-(2).

4. The extended temporary order in TPO 20-369 is designated as ex parte 

though the parties seem to acknowledge they both attended the September 8 

hearing.
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and required Matthew to observe minimum distances from Ame, her residence, and 

her place of employment.

[¶7.] In their appellate submissions, both parties describe the September 8 

temporary order as a means of continuing the original temporary order in TPO 20-

369, leading up to a final hearing scheduled for December 7, 2020. In the interim, 

the circuit court entered a separate order in the parties’ divorce action, appointing a 

parenting coordinator to assist with the resolution of parenting disputes and 

directing the parties to communicate using the Our Family Wizard parenting 

application (the OFW app).

[¶8.] On December 7, 2020, Ame filed another sworn petition for a 

protection order against Matthew. This second protection order action is the one 

currently before us and was designated as TPO 20-726. The petition alleged, among 

other things, that Matthew was critical of Ame’s parenting methods in 

communications using the OFW app, had violated the temporary protection order in 

TPO 20-369, and was surreptitiously monitoring her telephone conversations.5 The 

circuit court issued a new ex parte temporary protection order in TPO 20-726 on 

December 7.

[¶9.] Also on December 7, the circuit court conducted the previously 

scheduled hearing in TPO 20-369. Ame did not appear at the hearing. The court 

dismissed the petition, and the temporary order expired by its own terms. 

 

5. Ame also alleged in the petition that Matthew told her to “keep [her] mouth 

shut and not to talk to authorities” concerning an unrelated criminal case 

involving Matthew.
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However, the new ex parte temporary order in TPO 20-726 contained the same 

essential provisions as the predecessor temporary order in TPO 20-369.

[¶10.] The circuit court conducted a hearing on Ame’s petition in TPO 20-726 

on January 4, 2021. At the outset, Ame’s counsel asked the circuit court “to take 

judicial notice of a prior protection order, number is [TPO 20-369], which expired on 

December 7 of 2020.” Matthew’s attorney expressed no opposition and explained 

that he was moving to dismiss the current petition based upon the resolution of the 

TPO 20-369 case. In Matthew’s view, he prevailed at the September 8 hearing on 

Ame’s first petition, and the new action in TPO 20-726 was an improper effort to 

relitigate the same factual issues. The motion to dismiss acknowledged that the 

latter petition contained new allegations occurring since October 2020 but claimed 

that they were “not supported by [the parenting coordinator.]”6

[¶11.] In any event, the circuit court never ruled on the request for judicial 

notice, perhaps owing to the fact that the motion to dismiss prompted additional, 

lengthy arguments from the lawyers. These arguments concerned the details of the 

untranscribed September 8 hearing in TPO 20-369 and the merits of the current 

petition in TPO 20-726. The court denied the motion to dismiss insofar as the 

motion alleged the allegations in TPO 20-726 were factually unsupported:

Well, let me start by saying this. The purpose of temporary 

protection orders is not to protect anyone from ever having any 

 

6. Matthew’s motion to dismiss is dated January 3, 2021, but it was not filed 

with the clerk until April 14, 2021—after the notice of appeal. During the 

pendency of this appeal, Matthew’s counsel moved to supplement the record 

with this motion, stating that he had handed the motion to the circuit court

judge during the January 4 hearing but had not filed it. We granted the 

motion to supplement the record without opposition from Ame.
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arguments or harassment or disagreements in their life. I think 

that people think that it is, but it’s not. However, I’ll hear what 

she has to say, I’ll let you put the testimony on.

[¶12.] Ame testified briefly and claimed principally that Matthew used the 

OFW app in a way that was not authorized by the divorce stipulation or the circuit 

court’s order in the divorce case appointing the parenting coordinator. In her view, 

Matthew used the OFW app to criticize her parenting and to seek reimbursement of 

her share of expenses related to A.B., rather than limiting communication to only 

the topic of A.B.’s care. Ame further testified that she suspected she was “being 

tracked or listened to somehow” by Matthew, claiming he inexplicably knew that 

she had recently traveled to Vermillion. She did not testify that Matthew had 

harmed her or threatened to harm her or that she feared he would harm her. 

Matthew did not testify, and there was no additional evidence.

[¶13.] During final arguments, the circuit court asked Ame’s attorney 

specifically, “what are you actually asking for in the way of a protection order?” 

Counsel responded as follows:

That he not be allowed to use this OurFamilyWizard in this 

manner; that he only be ordered to post to the 

OurFamilyWizard, which he can do, the bills, the dollar amount 

of the bill, and scheduling events, and [A.B.’s school] 

assignments.

[¶14.] Despite this narrow scope of the requested relief, the circuit court 

entered a permanent protection order for one year, prohibiting Matthew from being 

within 100 yards of Ame, her residence, or her place of employment. The court also 

continued the requirement that the parties use the OFW app and directed that it be 

“limited to child’s healthcare, education, expenses, scheduling, school related 
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activities, parenting coordinator requests or emergency situations.” As it related to 

bills for A.B., the court stated that Matthew is “limited to noting the amount of the 

bill and who the bill is to be paid to. Otherwise no contact is allowed.”

[¶15.] In its stated rationale, issued orally at the conclusion of the hearing, 

the circuit court did not assess the evidence or apply the legal standards governing 

the issuance of protection orders. Instead, it based its decision on an effort to ease 

tensions between the parties in their ongoing effort to co-parent A.B.:

I am going to put the protection order in place for a period of one 

year, no contact, with the exception, obviously, through this 

FamilyWizard, or whatever it’s called, but within the limitations 

stated by Ms. Meyers, that they be things regarding visitation 

. . . . I frankly don’t like to do this, but I don’t see anything else 

to do that’s going to work in this case. If we can make it through 

a year and not have this continue, great, it shouldn’t, and it’s 

certainly of -- does no service to the children, which is the 

primary objective of this Court, not the parents . . . . But, as I 

say, I’m frankly doing this ‘cause I don’t know any other good 

solution for this. But I really, in general, don’t think this is the 

purpose or function of protection orders. And it may end up with 

the divorce case being reopened and further action in that. I 

would suggest it would be a lot cheaper for both parties involved 

to just get along in a non-antagonistic way, but I can’t stand 

there 24 hours a day ensuring that, so that’s why I’m going this 

route.

(Emphasis added.)

[¶16.] The court checked a box on a pre-printed protection order form that 

stated: “Having considered the evidence presented and any affidavits and pleadings 

on file, this Court FINDS . . . [b]y a preponderance of the evidence that ‘domestic 
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abuse’ as defined by SDCL § 25-10-1(1) has occurred[.]”7 The court made no 

additional findings, oral or written.

[¶17.] Matthew now appeals raising the following issues, which we 

have restated as:

1. Whether the circuit court erred by entering the 

permanent protection order without factual or legal 

justification.

2. Whether the circuit court was collaterally estopped from 

making factual determinations in TPO 20-726.

Standard of Review

[¶18.] Ordinarily we review a circuit court’s decision to grant or deny a 

protection order by first assessing the court’s findings of fact for clear error and, 

second, by considering the “court’s ultimate decision for an abuse of discretion.” 

Thompson v. Bear Runner, 2018 S.D. 57, ¶ 12, 916 N.W.2d 127, 130 (citation 

omitted). Both components of this review reflect deference to the unique position of 

the trial court.8 But under either standard, our effort to undertake meaningful 

 

7. Domestic abuse is defined in SDCL 25-10-1(1) as “physical harm, bodily 

injury, or attempts to cause physical harm or bodily injury, or the infliction of 

fear of imminent physical harm or bodily injury” when it occurs between 

people in certain qualifying relationships, such as former spouses. See SDCL 

25-10-3.1 (listing qualifying relationships). Stalking, as defined in SDCL 

chapter 22-19A, and violations of existing protection orders, as outlined in 

SDCL 25-10-13, may also constitute “domestic abuse” if the act is committed 

by a person in a qualifying relationship. SDCL 25-10-1(1).

8. “The circuit court’s findings of fact will not be set aside unless we are left 

with a definite and firm conviction that a mistake has been made. 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 and 

unreasonable.” Bear Runner, 2018 S.D. 57, ¶ 12, 916 N.W.2d at 130 (internal 

citations and quotation marks omitted).
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review is complicated where the court does not make findings specific to the 

evidentiary record before it, essentially failing to communicate to the parties, as 

well as this Court, the particular reasons for its decision.

[¶19.] Of course, the circuit court’s findings must also correspond to the 

statutory standards that serve as the bases for issuing a permanent protection 

order. This determination is a legal question that we review de novo. Trumm v. 

Cleaver, 2013 S.D. 85, ¶ 8, 841 N.W.2d 22, 24 (citation omitted).

Analysis and Decision

Factual and Legal Justification for Protection Orders

[¶20.] As relevant to our discussion here, a court can issue protection orders 

in instances where it finds it necessary to protect a petitioning party from domestic 

abuse or stalking by the respondent. See SDCL 22-19A-11 (describing protection 

order remedy for stalking); SDCL ch. 25-10 (providing protection order remedy in 

cases of domestic abuse). Under either theory, the action is tried to a court sitting 

without a jury. See SDCL 22-19A-11 (authorizing the issuance of a protection order 

if a “court finds by a preponderance of the evidence that stalking has taken place”); 

SDCL 25-10-5 (authorizing a protection order if a “court finds by a preponderance of 

the evidence that domestic abuse has taken place”).

[¶21.] Generally, our rules of civil procedure require that “[i]n all actions 

tried upon the facts without a jury . . . the court shall, unless waived as provided in 

§ 15-6-52(b), find the facts specially and state separately its conclusions of law[.]” 

SDCL 15-6-52(a). We have held that the findings-of-fact requirement serves three 

important purposes, some legal and some prudential:
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The purpose of findings of fact is threefold: to aid the appellate 

court in reviewing the basis for the trial court’s decision; to 

make it clear what the court decided should estoppel or res 

judicata be raised in later cases; and to help insure that the trial 

judge’s process of adjudication is done carefully.

Toft v. Toft, 2006 S.D. 91, ¶ 12, 723 N.W.2d 546, 550 (citation omitted).

[¶22.] A circuit court’s failure to make sufficient findings is, itself, a basis for 

reversal. See Bear Runner, 2018 S.D. 57, ¶ 15, 916 N.W.2d at 130 (“It is well-settled 

law that it is the [circuit] court’s duty to make required findings of fact, and the 

failure to do so constitutes reversible error.” (citation omitted)). However, though 

erroneous in the sense that failing to make specific findings does not comply with 

SDCL 15-6-52(a), the error is not jurisdictional and may not require reversal in 

certain cases. Toft, 2006 S.D. 91, ¶ 11, 723 N.W.2d at 550. Consequently, “an 

appellate court may decide the appeal without further findings if it feels it is in a 

position to do so.” Id. (citation omitted). “Ultimately, the question is whether the 

circuit court’s findings sufficiently address the facts of the case under the specific 

elements of [the claim] at issue such that we may determine whether the evidence 

met the statutory elements [justifying relief].” Doremus v. Morrow, 2017 S.D. 26, ¶ 

10, 897 N.W.2d 341, 345 (citation and internal quotation marks omitted).

[¶23.] We have recognized the exigencies of protection order proceedings may, 

in some instances, prompt trial courts “to relax procedural and evidentiary rules 

normally applied in other civil or divorce proceedings.” Goeden v. Daum, 2003 S.D. 

91, ¶ 9, 668 N.W.2d 108, 111. We have, however, also recognized the unyielding 

obligation of these courts to determine the existence of “crucial element[s]” 
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necessary to justify relief and the need to issue specific findings of fact and 

conclusions of law. Id.9

[¶24.] Here, the circuit court made no findings of fact other than the generic 

determination stated in the box it checked on the standard form protection order, 

indicating that it found by a preponderance of the evidence that domestic abuse had 

occurred. Left unsaid by the court is any indication that it believed Ame’s 

testimony or any factual justification for the entry of a protection order.

[¶25.] There is, however, a more fundamental flaw in the circuit court’s 

decision to issue the permanent protection order here, beyond merely the lack of 

factual findings. The record unmistakably reveals an overt effort by the court to use 

the permanent protection order remedy to stabilize the high-conflict relationship 

between the parties—not to protect Ame. In fact, the court made no pretense about 

assessing the evidence under the correct legal standards for protection orders. And 

 

9. We have reversed the entry of protection orders in cases where circuit courts 

failed to make credibility determinations regarding the evidence before them 

or made only general statements and used a preprinted form to enter its 

findings of facts. See Bear Runner, 2018 S.D. 57, ¶¶ 17-18, 916 N.W.2d at 

131 (reversing the decision to grant a protection order and remanding for 

“proper findings” when the court simply “check[ed] the box on the order-ofprotection form finding that stalking had taken place”); Shroyer v. Fanning, 

2010 S.D. 22, ¶¶ 8, 12, 780 N.W.2d 467, 470-73 (reversing a domestic abuse 

protection order because “the circuit court merely concluded that domestic 

abuse had occurred” without issuing “findings, oral or written, [to] support 

that conclusion”); Repp v. Van Someren, 2015 S.D. 53, ¶¶ 10-11, 866 N.W.2d 

122, 126 (reversing a protection order for failure to enter findings “with 

sufficient specificity to permit meaningful review” (citation omitted)); 

Castano v. Ishol, 2012 S.D. 85, ¶¶ 17-18, 824 N.W.2d 116, 121 (reversing a 

protection order when the circuit “court’s statements did not indicate which 

version of the evidence it believed”). But see Doremus, 2017 S.D. 26, ¶¶ 11, 

15, 897 N.W.2d at 345-46 (affirming the entry of a protection order despite 

limited conclusory findings because “under the facts of [the] case,” the 

findings were “sufficient to allow . . . meaningful[] review”).
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though it expressed misgivings about using the protection order remedy in this way, 

the court plainly indicated that it did not “see anything else to do that’s going to 

work in this case.” While we can appreciate the court’s weariness with the parties’ 

quarreling and its stated goal of addressing A.B.’s best interests, the court cannot 

seek to further this end under a utilitarian view that overlooks the basic principles 

associated with the protection order remedy.10

[¶26.] The lack of factual findings would be problematic in its own right, but 

it is particularly troublesome here because the circuit court seemed to understand 

that a protection order was not authorized and that the acrimony between the 

parties was better addressed in the divorce action. This disconnection between the 

rules and the remedy requires us to reverse the court’s decision to enter a 

permanent protection order.

Collateral Estoppel

[¶27.] Matthew asserts an additional argument, claiming the circuit court 

was collaterally estopped from making factual determinations in TPO 20-726, 

alleging they are precluded by findings made at the September 8, 2020 hearing 

regarding TPO 20-369. However, three readily apparent reasons prevent us from 

reaching this question. First, given the limited record before us, we cannot 

determine what, if anything, the circuit court decided at the September 8 hearing in 

TPO 20-369, much less that it was identical to a particular fact or issue in TPO 20-

726. Second, as indicated above, the court did not actually make any factual 

 

10. The circuit court did not suggest in any way that Ame’s testimony would 

support a finding of domestic abuse.
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determinations in TPO 20-726 relative to the legal bases for protection orders. And, 

finally, it is unnecessary to address the issue of collateral estoppel given our 

disposition of this case.

Conclusion

[¶28.] Permanent protection orders, like all other judicial orders, must rest 

upon sufficient factual and legal support. The circuit court’s order in TPO 20-726 

had neither. We must, therefore, reverse the order granting the permanent 

protection order.

[¶29.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN, 

Justices, concur.