D.D.W. v. M.F.A. ( 2020 )

D.D.W., 1 )
)
Respondent, )
)
v. ) No. SD36177
) Filed: February 13, 2020
M.F.A., )
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY
Honorable John H. Shock, Judge
AFFIRMED
M.F.A. (“Appellant”) appeals from the trial court’s “Judgment of the Full Order of
Protection—Adult,” issued in favor of D.D.W. (“Respondent”), pursuant to the Adult Abuse Act.
See §§ 455.010-.090. 2 In three points on appeal, Appellant argues: (1) that there was insufficient
evidence to support the trial court’s finding that his conduct amounted to “stalking,” (2) that there
1
In accord with the directives of section 595.226 and the principles underlying it, we use initials for the parties, and
exclude other identifying information as necessary.
2
All references to statutes are to RSMo (2016), unless otherwise indicated. All references to rules are to Missouri
Court Rules (2018).
was insufficient evidence to support the trial court’s finding that his conduct amounted to
“harassment,” and (3) that the trial court’s “grant[] [of] a full order of protection [was] without
sufficient evidence or consideration of harm to Appellant.” Appellant fails to demonstrate
reversible error in any of his three points. We therefore deny the same, and affirm the judgment
of the trial court. 3
Facts and Procedural Background
We recite the evidence and its reasonable available inferences in the light most favorable
to the judgment. Burke v. DeLay, 583 S.W.3d 97, 98 (Mo.App. S.D. 2019). We include other
information as necessary for clarity.
Appellant and Respondent were married for thirty-two years before divorcing on October
18, 2016. The record, as we must view it, reflects that the divorce decree designated that Appellant
was “not supposed to be annoying [Respondent], harassing [her], [or] troubling [her] in any
way[.]” 4 The couple had an adult son who “moved away . . . to get away” from the negative fallout
from Appellant and Respondent’s acrimonious relationship. Respondent did not initiate any
contact with Appellant after the divorce decree was entered.
Respondent filed a “Petition for Order of Protection - Adult” against Appellant on May
10, 2019. The trial court entered an initial “Ex Parte Order of Protection - Adult” the same day,
and Appellant was served the ex parte order of protection on May 11, 2019. A bench-tried hearing
3
Respondent did not submit a brief. While there is no penalty for that omission, this Court is nevertheless forced to
adjudicate Appellant’s claims of error without the benefit of whatever arguments Respondent might have raised.
McClain v. Kelley, 247 S.W.3d 19, 23 n.4 (Mo.App. S.D. 2008).
4
The transcript reflects that the divorce decree was adduced as evidence at the underlying hearing in this matter.
Appellant failed to include that document as part of the record in his instant appeal. It is the duty (and burden) of an
appellant—as the moving party—to provide the reviewing court with a record containing all materials “necessary for
determination of a question presented . . . for its review; and when an appellant fails to do so, the court will presume
that the [materials] would have been unfavorable to the appellant.” Main v. Fariss, 561 S.W.3d 104, 107 (Mo.App.
S.D. 2018) (internal quotations and citation omitted); see Rule 81.12(a).
2
was held for a full order of protection on May 21, 2019, wherein Respondent appeared pro se and
Appellant with counsel. The following evidence (as relevant here) was adduced:
•Letters, Cards, Gifts, and Indirect Attempts at Contact: After the parties were
divorced, Appellant sent approximately six letters and cards (some to Respondent, some to
Respondent and her family), to which Respondent gave no answer. On December 23,
2017, Appellant sent a gift to Respondent’s home, which she immediately returned.
“[W]ithin the last few weeks [before the hearing], [Appellant] contacted two people that
[Respondent] kn[e]w, giving one of them a letter concerning [her].”
•December 22, 2017: At approximately 11:30 a.m., Respondent was at First Midwest
Bank when she looked behind her and saw
[Appellant]’s standing back, waiting on me. So he had stalked me into the
bank. . . . And I tried to ignore him, and he said, ‘Can we talk?’ And I said,
‘No.’ And I continued to walk away and he said, ‘Are you still mad at me?’
And I shook my head ‘No’ and I continued walking. He followed me out
of the bank, out to my vehicle. He had parked right next to my vehicle.
And he stood in front of my vehicle with a paper and holding it. And . . .
did tell him, ‘Leave me alone,’ were my exact words. And I said, ‘or I am
going to call someone, the police.’ And I got into my vehicle and left.
•May 3, 2019: Appellant sent a letter to Respondent’s home address. The same day,
Respondent was putting gas in her car when she
felt the presence of a vehicle right next to mine, on the driver’s side. It was
[Appellant]. So I went back out to 67, went back around, turned back in off
of PP, back in the Mansion Mall. He was coming that way. He veered his
vehicle over to try to get me to stop and I shook my head ‘No’ waved my
hand ‘No’ and went past him to get gas.
•May 11, 2019: Respondent took her car to “Swafford’s and was told she needed a new
water pump:
[I]t was going to take some time to install it and I walked over to Starbucks
and I was going to get something to eat and I saw his vehicle headed north
on 67. And I thought, well, that was kind of odd, but I thought that’s just
coincidence, maybe. And then I saw his vehicle go in front of Starbucks,
and I moved down from where I was sitting and moved to the interior of the
building, because I thought he might be going through the drive-through
and I didn’t want him to see me. And so, I just stayed inside the building.
And in a little bit of time, he came inside the building and approached me
immediately, got down and started pleading with me. And I told him, I said,
‘I have a restraining order against you and you’re not supposed to be here.’
I said, ‘I’m going to call the sheriff,’ and he just stayed there.
3
And so, I called the sheriff immediately. And he hadn’t received his
restraining order yet, because I had just done that on Friday and this was
Saturday. And so, anyway, I was very scared. And the dispatcher hung up
with me, and then I called her back and said to please hurry, because he was
right there at my feet. And he -- he said, ‘I went next door and paid your
bill over at Swafford’s.’ So he interfered with my business over there before
coming to Starbucks looking for me.
And then he kept pleading and just -- just wanted me to talk to him.
And the dispatcher asked me what he was wearing, et cetera. And then the
deputies got there and the police got there -- there were three of them -- and
the deputy gave him the restraining order papers there and went over what
he was to do and not do. And two of the deputies left when we thought he
left. Deputy Miles stayed behind with me for a while. And as Deputy Miles
and I got ready to leave and exit Starbucks, I asked Deputy Miles, I said,
‘Do you think you might should walk over to Swafford’s with me and get
the story of what happened over there with him interfering?’ And then I
looked ahead to the north and I saw his white Cadillac Escalade parked there
still in the parking lot. And I said to Deputy Miles, I said, ‘That looks like
his vehicle there.’
And so, Deputy Miles walked ahead of me and we were both looking
north, and as Deputy Miles got a little bit closer to the vehicle, [Appellant]
walked up behind me and said, ‘You don’t have to ever worry about me
bothering you again.’ And I got kind of loud and I said, ‘Leave me alone.’
And Deputy Miles turned around and saw what was happening and he
arrested him for breaking the order within 10 minutes.
•Appellant’s Past Threatening Behavior Toward Others: In the past, Appellant had
been fired from his job at a car dealership. Respondent’s credited testimony reflected that
she
sat and listened to [Appellant] talk about his homicidal ideations concerning
two men that worked up there[.] But he didn’t like those two guys. And he
actually talked about two ways of killing those two men. . . . [O]ne was to
drive his car through the plate glass window and then get the guns out of
the safe up there and shoot those two men. And then the other idea he had
was to be a sniper and literally pick those two men off from the parking lot
when they were out there. . . . [H]e does have a restraining order . . . from
[the car dealership].
On another occasion, Appellant told Respondent about “how he could do the most damage
to [the] company” at which he was then employed: “And to do the damage he said what
he could do would be to fly an airplane into their boiler room[.]”
•Effect of Appellant’s Actions on Respondent: During their marriage, Respondent’s
doctor approved her absence from work for “approximately two and a half to three months
4
. . . to keep [her] away” from Appellant “because of [Appellant’s behavior] and his
craziness and his homicidal ideations[.]”
Respondent’s credited testimony was that she was scared to even mow her lawn in fear of
Appellant being “out there ready to pick me off[.]” She testified that she had started
“pack[ing] a gun on me wherever I’m at just to keep safe[,]” and that she did not understand
why Appellant “won’t just leave me alone” and “not come around me.”
•Appellant’s Mental Health: Credited testimony was adduced that Appellant had “been
in the psychiatric ward in St. Louis, in Cape[,]” and that he suffered from “major depression
and anxiety.”
Appellant testified in his own defense. He admitted he wrote a letter to Respondent telling
her she had divorced him for “no cause,” “[t]here was no infidelity on my part[,]” and that the
“Bible says that you can be divorced under and she needs to know she did not follow that, that she
divorced me without cause.”
The trial court took the matter under advisement and issued its “Judgment of the Full Order
of Protection - Adult” on the afternoon of May 21, 2019.
Appellant filed a “Motion to Re-Open or Amend Judgment or in the Alternative, for a New
Trial,” asserting that due to suffering from severe depression, he was unable to fully testify at the
hearing, and in lieu thereof attached an affidavit. On June 25, 2019, after hearing argument, the
trial court overruled Appellant’s motion. This appeal follows.
Appellant challenges the trial court’s judgment in three points[5] on appeal, to wit:
POINT I
THE TRIAL COURT ERRED IN GRANTING A FULL ORDER OF
PROTECTION BECAUSE [APPELLANT]’S ALLEGED CONDUCT OF
“STALKING” DOES NOT MEET THE DEFINITION UNDER THE ADULT
ABUSE ACT.
5
We note there are numerous Rule 84.04 deficiencies in Appellant’s brief, including 84.04(c) and 84.04(d).
Specifically, we note that Appellant’s points relied are deficient in their failure to “explain in summary fashion why,
in the context of the case, those legal reasons support the claim of reversible error” as required by Rule 84.04(d)(1)(C).
Compliance with Rule 84.04 is mandatory, and “[l]ack of compliance with requirements of Rule 84.04 amounts to
failure to preserve issues for appellate review.” State v. Gray, 230 S.W.3d 613, 620 (Mo.App. S.D. 2007) (internal
quotation and citation omitted). We grant review ex gratia, but appellate counsel is cautioned to review Rule 84.04
before filing another appeal with this Court.
5
POINT II
THE TRIAL COURT ERRED IN GRANTING A FULL ORDER OF
PROTECTION BECAUSE [APPELLANT’S] ALLEGED CONDUCT OF
“HARRASSMENT” [sic] DOES NOT MEET THE DEFINITION UNDER
THE ADULT ABUSE ACT.
POINT III
THE TRIAL COURT ERRED IN GRANTING A FULL ORDER OF
PROTECTION WITHOUT SUFFICIENT EVIDENCE OR
CONSIDERATION OF HARM TO APPELLANT[.]
(Underscore omitted).
Standard of Review
“We review an order of protection the same as in any other court-tried case.” N.J.D. v.
R.O.D., 582 S.W.3d 116, 120 (Mo.App. E.D. 2019) (internal quotation and citation omitted).
“[T]hat is, this Court will uphold the trial court’s judgment as long as it is supported by substantial
evidence, it is not against the weight of the evidence, and it does not erroneously declare or apply
the law.” Austin v. Jarred, 578 S.W.3d 847, 849 (Mo.App. S.D. 2019) (internal quotation and
citation omitted). “In reviewing the trial court’s judgment, we consider the evidence in [the] light
most favorable to the judgment and defer to the trial court’s determination of credibility.” Burke,
583 S.W.3d at 98 (internal quotation and citation omitted). “It is appellant’s burden (as the moving
party) to overcome our presumption that the judgment of the trial court is correct.” TracFone
Wireless v. City of Springfield, 557 S.W.3d 439, 445 (Mo.App. S.D. 2018).
Analysis
Point I: Substantial Evidence as to “Stalking”
In his first point, Appellant claims that “the trial court erred in granting a full order of
protection because [Appellant]’s alleged conduct of ‘stalking’ does not meet the definition under
the Adult Abuse Act.”
6
Appellant summarizes his argument as follows:
[Respondent] alleges that five letters, a postcard, a birthday card and a box of
strawberries constitutes harassment. She further alleges that two face to face
encounters within a fifteen-month span, constitutes stalking. Two meetings in a
fifteen-month time period, in the town where [Appellant] resides could easily be
happenstance. . . . As such, no allegation of stalking could be sustained.
Ex gratia, we curatively interpret this as a challenge that the trial court’s full order of
protection was not supported by substantial evidence. Nevertheless, this gratuity cannot salvage
Appellant’s first point, as fundamental defects doom his underling arguments in this vein. An
appellant challenging that the trial court’s judgment was not supported by substantial evidence
must successfully complete the following distinct analytical steps:
(1) identify a challenged factual proposition, the existence of which is necessary to
sustain the judgment;
(2) identify all of the favorable evidence in the record supporting the existence of
that proposition; and,
(3) demonstrate why that favorable evidence, when considered along with the
reasonable inferences drawn from that evidence, does not have probative force
upon the proposition such that the trier of fact could not reasonably decide the
existence of the proposition.
Houston v. Crider, 317 S.W.3d 178, 187 (Mo.App. S.D. 2010). 6
Appellant’s argument runs afoul in steps two and three. His argument fails to account for
all of the evidence in the record supporting his challenged factual proposition, relies on evidence
and inferences in his favor (which we disregard), and ignores evidence and inferences supporting
the judgment (which we credit). In other words, Appellant fails to complete the:
most fundamental task in a [substantial] evidence challenge: to account for all of
the favorable evidence in the record, and all the reasonable available inferences
therefrom, that could support its challenged factual proposition, and then confront
6
See Martinelli v. Mitchell, 386 S.W.3d 148, 150 (Mo.App. S.D. 2012) (applying Houston to appeal from trial court’s
grant of order of protection).
7
and dispel the probative value attending the same supportive evidence and
inferences.[7]
Appellant leaves this mandatory task undone, depriving his argument of any persuasive or
analytical value. See Houston, 317 S.W.3d at 189.
“Finality of judgments is favored[.]” Bate v. Greenwich Insurance Company, 464 S.W.3d
515, 517 (Mo. banc 2015). The principles governing appellate review are consistent with this
policy interest:
(1) we presume the challenged judgment is correct; (2) we presume the trial court
knows and applies the law; (3) we will affirm the outcome on any basis supported
by the record; and (4) it is appellant’s burden to dislodge us from the presumption
that the outcome below was correct.
Marck Indus., Inc. v. Lowe, 587 S.W.3d 737, 743 (Mo.App. S.D. 2019) (internal quotations and
citation omitted). Where, as here, the reviewing court must “sift through the record” to ascertain
the merits (or not) of an appellant’s arguments, the “effect” is that appellant’s success depends on
the reviewing court “assum[ing] the role of advocate.” Smith v. City of St. Louis, 395 S.W.3d 20,
29 (Mo. banc 2013). This resort is prohibited, and we will not utilize it here. Parker v. Doe Run
Company, 553 S.W.3d 356, 360 (Mo.App. S.D. 2018).
Appellant’s first point fails to demonstrate that the trial court committed prejudicial error,
and Point I is therefore denied.
Point II: Substantial Evidence as to “Harassment”
In his second point, Appellant argues that “the trial court erred in granting a full order of
protection because [Appellant]’s alleged conduct of ‘harrassment’ [sic] does not meet the
definition under the Adult Abuse Act.”
7
State v. Hooper, 552 S.W.3d 123, 137 (Mo.App. S.D. 2018) (emphasis in original).
8
We observe that the corpus of the argument attendant to this point comprises a little over
half a page (double-spaced), the substance of which reflects the following:
[Respondent] never alleges that she ever gave [Appellant] an official request to
discontinue communication. She states that she shredded the first 4 letters sent in
2016 and then kept the others. She never sent them back, “Return to Sender[.]”
Repeated communication typically does not rise to the level of harassment and such
conduct would not cause substantial emotional distress in a reasonable person.
No abuse or emotional harm was proven. The Order should be reversed and
the case dismissed.
(internal transcript citations and case citations omitted).
This argument shares the same fatal defects as Appellant’s Point I argument (discussed
supra), and must likewise fail for the same reasons. Point II is denied.
Point III: Sufficiency of the Evidence and Alleged Lack
of “Consideration of Harm to Appellant”
In his third point, Appellant argues that “the trial court erred in granting a full order of
protection without sufficient evidence or consideration of harm to Appellant.”
Again, the argument attendant to this point comprises a little over half a page (double-
spaced). The underlying substance of this argument is as follows:
This punitive measure [the challenged judgment] is inappropriate as [Appellant]
did in no way, cause harm or threaten [Respondent] in any way. [Respondent]
contends that ‘Stalking is threatening.’ Her definition of stalking is two chance
encounters in a fifteen month time span. She further asserts that ‘He should not be
bothering me anyway.’ [Respondent] never states in the record, that [Appellant]
ever harmed her, or anyone else. She never stated that he threatened her. [She]
never claimed he caused her emotional distress of any degree.
(internal transcript citations omitted).
In essence, this argument presents a generalized recitation of the same unavailing premises
underlying Appellant’s first and second points. For the same reasons we designate in our analysis
of Appellant’s Point I, his Point III must fail and is accordingly denied.
9
The judgment of the trial court is affirmed.
WILLIAM W. FRANCIS, JR., J. – OPINION AUTHOR
GARY W. LYNCH, P.J. – CONCURS
NANCY STEFFEN RAHMEYER, J. – CONCURS
10