THIS OPINION HAS NO PRECEDENTIAL VALUE.� IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Supreme Court

Julie D. Garcia, Respondent,

v.

Matthew D. Saski, Appellant.

Appeal From Anderson County
�Tommy B. Edwards, Family Court Judge

Memorandum Opinion No. 2008-MO-044
Submitted September 18, 2008 � Filed November 10, 2008��

REVERSED

Stephen K. Haigler, and Michael D. Glenn, both of Glenn, Haigler, McClain & Stathakis, of Anderson, for Appellant.

Julie D. Garcia, of Pendleton, pro se Respondent.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Michelle J. Parsons, all of Columbia, for Amicus Curiae.

JUSTICE WALLER:� This is a direct appeal from a family court order of protection issued June 7, 2006.� We reverse.

FACTS

Appellant, Matthew Saski, was a patrolman with the Clemson University Police Department.� Respondent, Julie Garcia was his girlfriend for some period of time, and they had planned to get married.� They lived together for four weeks in April 2006.�

According to Garcia, on April 29, 2006, after Saski got home from work, they drank some wine, and Garcia went to bed early.�� When Saski came into the bedroom around 3:30 a.m., she heard him crying in the shower.� He got into bed and pointed his middle finger upward toward the ceiling; when she asked what he was doing, he said he was praying.� She asked him what was wrong and he said, �I�m the devil, just kill me.�� Saski then told Garcia he had killed her dog Angel, saying he had choked her.� He put the dog�s body in the woods behind the house.� According to Garcia, Saski told her, �I couldn�t help it. �I couldn�t stop.�� Garcia went and slept in her son�s bedroom and left early the next morning to go to a friend�s house.� They corresponded via text message that morning, and Garcia asked him to move out.� Saski moved out that day, and they had no further contact.�

Saski presented a different scenario.� He testified he was petting Angel on the sofa late that night and, as he reached for the remote control, the dog went to jump on him, so he pushed her away with his hand.� The dog landed on the floor and wasn�t moving.� He picked her up and attempted to resuscitate Angel by blowing into her snout when �green and brown stuff started coming out.�� He took Angel outside and Garcia�s other dog, Charlie, was barking.��� He realized Angel was dead, so he brought her into the woods so Charlie would stop barking.� Saski started crying, realizing he�d killed the dog.� According to Saski, when Garcia asked him what was wrong, he said, �Angel�s dead.� I think I killed her.�� He then told her �she choked,� and �I couldn�t help her.��

Several days after the incident, Garcia applied to the family court for an order of protection on the basis of the dog incident.� After a hearing on May 5, 2006, Saski consented to an interim order mutually restricting the parties from coming near each other.�� Garcia advised the court at that time she did not want Saski to be prevented from returning to his job as a police officer.� The family court decided to postpone a final ruling until it had the benefit of an autopsy report on the dog.�

A subsequent hearing was held on June 5, 2006.� Although the court found the autopsy was not inconsistent with either Garcia�s or Saski�s version of events, the court issued the order of protection based on Garcia�s fear for her safety.� The order remained in effect for one year.� One provision of the order, was a Federal Firearms Prohibition, pursuant to 18 U.S.C. � 922.�

After his motion for rehearing was denied, Saski filed a petition for a writ of supersedeas, requesting the June 7, 2006 order of protection be stayed, and that the mutual restraining order which had been issued on May 19, 2006, be allowed to remain in effect pending appeal.� Saski contended that because the order of protection prevented him from carrying a weapon, he would lose his job as a policeman with Clemson University Police Department.� His captain, James Gowan, filed a supporting affidavit indicating that if the order of protection stayed in place as written, Saski stood to lose his job on July 15, 2006.�� Supersedeas was denied.��

Saski appeals the order of protection, contending that there was no evidence of any abuse, nor the threat thereof, to Garcia.�� We agree.

DISCUSSION[1]

We find the family court erred in issuing the order of protection in this case, because the record does not demonstrate Saski posed any threat of harm to Garcia or her family.�

The S.C. Protection from Domestic Abuse Act, S.C. Code Ann. � 20-4-20 et seq. permits a family court to issue an order of protection �to protect the petitioner or minor household members from the abuse of another household member.�� S.C. Code Ann. � 20-4-20(f).� A �household member� is defined to include �a male and female who are cohabiting or formerly have cohabited.�� S.C. Code Ann. � 20-4-20(b) (iv).�� Section 20-4-20 permits the filing of a petition for an order of protection by any household members in need of protection.� �The petition must allege the existence of abuse to a household member.� It must state the specific time, place, details of the abuse, and other facts and circumstances upon which relief is sought.�� S.C. Code Ann. � 20-4-40(b).� �Abuse� is defined by the statute as �physical harm, bodily injury, assault, or the threat of physical harm,� or �sexual criminal offenses, as otherwise defined by statute, committed against a family or household member by a family or household member.��� (Emphasis added).�

Citing this Court�s recent opinion in Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008), the Attorney General contends it is irrelevant that there was no actual, direct threat of harm made by Saski toward Garcia; the AG asserts that under Moore, a court need not make a finding of actual abuse of a victim in order to issue an order of protection.� Our holding in Moore is inapposite.��

In Moore, a 15-year-old boy called police and reported that his father had become physically abusive with him and his mother and threatened them with a weapon.� The father was arrested and charged with criminal domestic violence, then released on bond.� The mother petitioned for an order of protection, and an emergency hearing was held within 24 hours pursuant to S.C. Code Ann. � 20-4-50(a).� At the emergency hearing, the family court made a final adjudication that the father had physically abused mother and son at that hearing.� On appeal, when father raised due process implications, this Court noted that �we are concerned that a factual finding of physical abuse was finally adjudicated at this emergency hearing.�� 367 S.C. at 478, 657 S.E.2d at 749.� Due to the emergency nature of the hearing, and the fact that it was held within 24 hours prior to the father retaining counsel, we opined:

[A] definitive factual finding of physical abuse for a temporary Order of Protection is not only improper under the terms of the statute, but is also unnecessary to satisfy the government�s interest. In our view, the Legislature provided for an emergency hearing, for the benefit of victims of domestic violence and did not intend for these protections to establish collateral consequences for the alleged abuser.

Id.� Given the temporary nature of the emergency hearing, the Court held �[a] review of these statutory prerequisites reveals that a definitive finding of physical abuse is not essential.�� Id. at 480, 657 S.E.2d at 750.� The Court went on to hold that:

[A]lthough the Act defines �abuse� to include �physical abuse,� �bodily injury,� and �assault,� it also recognizes that �the threat of physical harm� is sufficient to constitute a basis for the issuance of an Order of Protection as the result of an emergency hearing. S.C.Code Ann. � 20-4-20(a)(1) (1985 & Supp.2006).� We concluded that because the threat of a future occurrence is a sufficient basis upon which to issue an order of protection, a �definitive finding of physical abuse is not mandated.�� Id.

The Attorney General asserts �the killing of Angel alone suggested an immediate and present danger to [Garcia�s] family,� so as to constitute a sufficient threat of physical harm.� We disagree.

The emergency hearing in this case took place on May 5, 2006, approximately one week after the April 29th incident.� At that time, the court orally determined to issue a temporary mutual restraining order pending a final determination after receipt of the autopsy on the dog.�� A subsequent hearing was held May 15, 2006, because Saski was not being allowed to work; Garcia indicated at this hearing that she did not object to Saski continuing his job.� At the May 15th hearing, the trial court concurred with counsel�s statement that Garcia indicated that Saski had not, during the whole sequence of events, threatened her in any way or said anything threatening to her.�� However, she had indicated that his conduct made her feel threatened.

The final hearing was held June 5, 2006, after the family court reviewed the autopsy.� The autopsy report was inconclusive, but could not
rule out blunt trauma.� The court found Garcia more credible, and found her fear for her safety was sufficient to warrant issuance of the order.� This was error.�

We find Garcia�s subjective fear for her safety does not warrant issuance of the order of protection, particularly given the facts that it was more than one month between the incident and the final hearing, Saski had moved out of the house, and the parties had had absolutely no contact in the interim.�� We find the evidence did not demonstrate Saski posed any actual threat of physical harm to Garcia or her family. ��Accord Kopelovich v. Kopelovich, 793 So.2d 31, 33 (Fl. App. 2nd Dist. 2001) (husband�s threat of harm to family dog �failed to establish either immediate or present danger or the threat of or actual domestic violence); Fleckner v. Fleckner, ___ N.E.2d ___, 2008 WL 3198724 (Ohio App. Dist. 2008) (Where husband emailed wife he would �I will take out all of my anger and frustration in this family members� death sentence out on wife in court,� wife�s subjective fear was insufficient and failed an objective test of reasonableness); Ficklin v. Ficklin, 710 N.W.2d 387 (N.D. 2006) (threats may constitute domestic violence warranting protection order only if they constitute the infliction of fear of imminent physical harm; court�s findings may not rest solely on perceived possibility of domestic violence rather than reasonable fear of actual or imminent harm); Moore v. Hall, 786 So.2d 1264 (Fla. App. 2001) (former husband�s statement to process server that he should have killed former wife eleven years ago did not provide former wife with objectively reasonable fear of imminent domestic violence).�

Although Garcia may have subjectively feared Saski, the evidence is simply insufficient to demonstrate that he presented any real or imminent physical threat to her safety.� Accordingly, the family court�s order of protection is reversed.�

REVERSED.

PLEICONES and BEATTY, JJ., concur. TOAL, C.J., dissenting in a separate opinion in which KITTREDGE, J., concurs.

Chief Justice Toal:� I respectfully dissent.� In my view, Garcia�s actions posed a threat of physical harm, and I would therefore affirm the family court�s decision.

The evidence in this case shows that following the dog�s death, Saski stated that �I�m the devil, just kill me,� �I couldn�t help it. I couldn�t stop,� and �I knew something like this was going to happen.�� Additionally, Garcia testified to previous incidents with the dog indicating abuse.� She noted that on two occasions she left the dog alone in the room with Saski and subsequently heard the dog �yelp.�� Garcia also recalled an incident where she returned home from work and found the dog unresponsive and in shock.� Garcia stated that Saski told her that he found the dog in a drainage ditch and claimed it had been hit by a car.� Garcia testified that she feared Saski because her son lived in the home with her, she believed Saski could not control his actions, and Saski had access to a gun. �Finally, although Garcia and Saski presented different accounts of the incident, the family court found Garcia�s version to be more credible.

In my view, evidence that a household member killed an animal clearly supports a finding of a threat of physical harm. See S.C. Code Ann. � 20-4-20 (providing that a family court may issue an order of protection if the petitioner proves the allegation of threat of physical harm by a preponderance of the evidence); Moore v. Moore, 376 S.C. 467,478, 657 S.E.2d 743, 749 (2008) (holding that a definitive factual finding of physical abuse is not required to issue an order of protection).� I therefore cannot agree with the majority�s conclusion that this evidence did not show that Saski posed any actual threat of physical harm to Garcia or her family, especially in light of the family court�s credibility determination.� See Richland County Dept. of Soc. Servs. v. Earles, 330 S.C. 24, 32, 496 S.E.2d 864, 868 (1998) (recognizing that because an appellate court lacks the opportunity for direct observation of the witness, it should accord great deference to the family court�s findings where matters of credibility are involved).� I furthermore believe that the majority errs in suggesting that the facts of this case are necessarily comparable to the verbal or written threats that family courts in other jurisdictions have ruled did not constitute an objectively reasonable fear of domestic violence.� While the possibility and likelihood of physical harm based on these types of threats can vary depending upon many factors, in my view, the malicious and illegal killing of a household pet is a direct act of violence posing a threat of physical harm to household members.

Our legislature drafted the Protection from Domestic Abuse Act, S.C. Code Ann. � 20-4-10 et seq., to give the family court the authority to issue orders of protection against a household member to protect other household members from abuse.� I believe that the family court in the instant case carefully reviewed all of the evidence presented by both sides and correctly issued the order of protection.� I would therefore affirm the decision.

KITTREDGE, J., concurs.

[1]� Garcia did not file a respondent�s brief.� The Attorney General, as amicus curiae, contends the issue is moot as the order on appeal expired in June 2007.� Given the potential ramifications of the order, we find it is not moot.� See Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743 (2008).�� Further, given the order�s short duration, it is a matter which is capable of repetition yet evading review.� Byrd v. Irmo High Sch., 321 S.C. 426, 468 S.E.2d 861 (1996).