S.M.W. v. V.M. ( 2020 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
S.M.W., ) No. ED107729
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Honorable Barbara Peebles
V.M., )
)
Appellant. ) FILED: March 10, 2020
V.M. (“Appellant”) appeals from the judgment of the Circuit Court of the City of St.
Louis, granting S.M.W. (“Guardian”) a Full Order of Protection for a minor child (“Child”).
S.M.W. petitioned for four Full Orders of Protection, two for herself against Appellant and G.M.,
a co-party with Appellant at the trial court, and two for Child against Appellant and G.M. The
trial court granted the Orders of Protection against Appellant and G.M. for stalking Child, and
denied the Orders of Protection against Appellant and G.M. for stalking Guardian on February 7,
2019. Only one of these orders is at issue in this case—the Full Order of Protection against
Appellant for stalking Child. 1 We reverse the Order of Protection against Appellant for stalking
Child.
1
The protection order against G.M. is not before this Court on appeal. Thus, we will not decide whether that order
was appropriate.
I. Background
Guardian is the aunt and legal guardian of Child, whose mother died when Child was
four. Child was thirteen years old when these events transpired. Guardian’s godmother, G.M.,
lives across the street from Guardian and Child. G.M. has a grandmother-granddaughter style
relationship with Appellant, and Appellant is frequently at G.M.’s house. G.M. runs a daycare
out of her house. Appellant had knee surgery in September 2018 and spent much of her recovery
at G.M.’s house. Child has no blood relationship with G.M. or Appellant.
Based on the record, Guardian was concerned about two incidents that led her to file for
the protective order at issue. The first incident occurred in September 2018. However, the
record does not make clear what happened during this incident. Guardian testified that Child
was working for G.M.’s in-home daycare for a time, but Guardian wanted Child to end her
involvement when some allegations were made about G.M.’s nephew. Guardian testified that
G.M. kept asking if Child could come live with G.M. and help with the daycare, but Guardian
kept saying no. Guardian said Child kept running back, however.
The second incident was the primary reason for Guardian’s request for the initial order.
Child disappeared from her home and Guardian as well as school from November 20, 2018, to
November 30, 2018. Multiple incidents occurred throughout the ten-day time period Child was
gone that led to Guardian’s concern about Appellant and G.M, including alleged lies, threats, and
cutting off Child’s hair in an attempt to hide Child.
Guardian suspected that Child was at G.M.’s house on or about November 23, 2018. The
police were called to help resolve this situation. Guardian alleged that G.M. and Appellant were
increasingly aggressive and argumentative with both Guardian and the police and that G.M. and
Appellant were trying to bite and fight Guardian. Further, Guardian alleged that G.M. and
Appellant waived a gun at Child and Guardian. Guardian testified that they were in fear of harm
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if the order of protection was denied. She said Child was “terrified” and that she was
traumatized and now doing therapy. Guardian said she lives across the street and was worried
“if something happens.”
On December 4, 2018, Guardian filed a petition for a Full Order of Protection for Child
against G.M. and Appellant, and a Full Order of Protection for herself, against G.M. and
Appellant.
However, Appellant and G.M. both argued on the record they do not own a gun, and also,
that G.M. consented to let the police go into G.M.’s house to obtain Child. Instead, G.M. called
Child to come out, which she did. However, Child promptly ran away again. Appellant denied
any attempt to bite or begin an altercation with Guardian. Appellant also offered evidence of her
own medical condition, walking on crutches since she was recovering from knee surgery, to
support the argument that she was not aggressive. Finally, G.M. and Appellant both testified to
Guardian acting irrational that day, “driving crazy up and down the street.” Appellant alleged
that the police were dismissive of Guardian because of this irrational behavior. When asked how
Child came to G.M. that day, G.M. responded that she found her and wanted to contact
Guardian.
Additionally, G.M. admitted that Child spent two nights at G.M.’s house during the ten-
day period, and testified that Child arrived on the night of November 23, 2018, asked to stay, and
left in the morning. According to G.M., when she told Child to go back to Guardian, Child
threatened suicide instead of returning to Guardian. As a result, G.M. allowed her to stay the
night and then Child left in the morning. Then, on November 27, 2018, Child showed up at
G.M.’s house in the middle of the night again. G.M. and Appellant testified that Child told them
she chose to run away because Guardian was abusive. Appellant testified that she called Child
Protective Services (“CPS”), which informed her that for the safety of the child, Appellant
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should house the child overnight. Appellant stated she did not call Guardian because she did not
have Guardian’s number. The testimony is the only evidence in the record regarding this CPS
call.
The record does not reflect how or why Child eventually returned to Guardian. When
questioned by the Guardian Ad Litem, Guardian mentioned potential investigations by CPS into
the behaviors of Appellant and G.M., but said “I can’t talk about it.” When the court asked for
clarification, Guardian simply responded that charges were “possibly” pending and did not
clarify what charges were being considered, who they were being considered against, or when
they had been filed.
Although there was strong disagreement between the parties over what exactly transpired
and the trial court stated it was “not convinced of what happened during that ten-day period,” on
February 7, 2019, the trial court granted the petitions for the two orders protecting Child and
denied the petitions for the two orders protecting Guardian. 2 In doing so, the trial court
explained, “I do think that you ladies had some contact with that child that was inappropriate,
and should have been spearheaded by the mother figure, the guardian in this case. And I don’t
think you have any connection to that child whatsoever, and you need to stay away from that
child.”
Appellant originally filed this appeal pro se on March 26, 2019. This Court originally
dismissed the appeal for not being complete. Appellant then retained counsel and refiled this
appeal on April 10, 2019.
2
The order was a one-year order that expired on February 7, 2020. Even though it has expired, we decide this case
with a written opinion, considering Missouri precedent:
We are also mindful of the stigma that can attach to a person who is adjudicated a “stalker.” This
stigma does not disappear simply because the order has expired. Such person may be forced, in an
application for certain kinds of employment or in an application for licensure, to disclose the order
of protection
Todd v. Plack, 318 S.W.3d 809, 810 (Mo. App. W.D 2010); citing Stiers v. Bernicky, 174 S.W.3d 551, 553
(Mo.App. W.D. 2005).
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II. Discussion
Appellant raises one point on appeal, alleging the trial court erred in entering judgment for
a Full Order of Protection for Child because the trial court’s determination that Appellant stalked
Child was not supported by substantial evidence, and that the evidence adduced at trial did not
substantially satisfy the statutory requirements for a protective order per Section 455.516. 3
A. Standard of Review
Appeals from a court-tried civil case are governed by Murphy v. Carron, 536 S.W.2d 30
(Mo. banc 1976). The trial court's judgment will be upheld unless there is no substantial
evidence to support it, it is against the weight of the evidence, or it erroneously declares or
applies the law. Schwalm v. Schwalm, 217 S.W.3d 335 (Mo. App. E.D. 2007) (citing Murphy,
536 S.W.2d at 32). We defer to the trial court's determinations of credibility and consider facts
and inferences supporting the judgment. Id. (citing Vinson v. Adams, 192 S.W.3d 492, 494 (Mo.
App. E.D. 2006)).
B. Analysis
An order of protection may be entered in favor of a child “who has been subject to
domestic violence by a present or former household member or sexual assault or stalking by any
person. . . .” Section 455.505(1); Hanger v. Dawson, 584 S.W.3d 798, 802-03 (Mo. App. W.D.
2019). Since Section 455.501’s repeal in 2011, definitions applicable to child protection orders
are now contained in Section 455.010. S.N.L. v. A.B., 550 S.W.3d 514, 516 (Mo. App. E.D.
2017). Stalking occurs when “any person purposely engages in an unwanted course of conduct
that causes alarm to another person, or a person who resides together in the same household with
the person seeking the order of protection when it is reasonable in that person's situation to have
3
Appellant’s brief cites Section 455.501(10), RSMo Cum.Supp. 1999. This statute was repealed, effective August
28, 2011, and supplanted by Section 455.516.
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been alarmed by the conduct.” Section 455.010(14). A parent’s reasonable alarm is sufficient to
trigger the protections of the Child Protection Orders Act (“CPOA”), Sections 455.500 to
455.538. S.N.L., 550 S.W.3d 514 at 518.
Alarm, as used in the stalking definition, is “to cause fear of danger of physical harm.”
Section 455.010(14)(a). Alarm has a subjective and objective component. K.L.M. v. B.A.G.,
532 S.W.3d 706, 708-09 (Mo. App. E.D. 2017). A person must subjectively fear danger of
physical harm. Moreover, a reasonable person in the situation would have to fear a danger of
physical harm. Id. To meet these definitions, a plaintiff is required to do more than simply
assert a bare answer of “yes” when asked if he or she was alarmed. Lawyer v. Fino, 459 S.W.3d
528, 533 (Mo. App. S.D. 2015). Appellate courts will reverse orders of protection based on this
definition where there was no evidence of overt threats of physical harm and no evidence of
physical confrontations. Id.; D.A.T. v. M.A.T., 413 S.W.3d 665, 668-69 (Mo. App. E.D. 2013);
Schwalm, 217 S.W.3d at 337 (Mo. App. E.D. 2007); Clark v. Wuebbeling, 217 S.W.3d 352, 354
(Mo. App. E.D. 2007).
A course of conduct is “a pattern of conduct composed of two or more acts over a period
of time, however short, that serves no legitimate purpose.” Section 455.010(14)(b). Unwanted
courses of conduct include behaviors such as: following the other person, unwanted
communication, or unwanted contact. Section 455.010(14)(b).
This case hinges on whether there is enough evidence on the record to support a finding
that stalking occurred by Appellant against Child and whether the course of conduct by
Appellant was sufficient to create alarm for Guardian that Child may suffer harm.
Stalking
Appellant first argues the trial court erred in granting the petition with an incomplete
record. The record of the trial court does have three “(inaudible)” moments. In cases where
6
there is an incomplete record on appeal because no record was made of the trial court
proceeding, we must reverse the judgment of the trial court and remand so that a proper record
can be made. A.L.C. v. D.A.L., 421 S.W.3d 569, 570 (Mo. App. E.D. 2014) (citing Section
512.180(2)). However, the present case does not present an absent record, only a record with a
few inaudible moments. Appellant admits that the judge appears to understand statements that
are not clear in the record and provides no evidence of this to support grounds for a new trial.
These moments do not prevent a clear determination of what was being asked or substantially
detract from the testimony provided.
Next, Appellant argues that Guardian failed to provide sufficient evidence to justify the
granting of a protective order. We agree. In order to show stalking and justify a protective
order, there must be clear and convincing evidence of alarm. Appellate courts have consistently
overturned protective orders that did not have a showing of overt threats of physical harm or
evidence of physical confrontations. Lawyer, 459 S.W.3d at 533.
In the present case, with two pro se parties in the court, the trial court took it upon itself
to lead and direct the questioning to determine if an order of protection was justified. However,
we find insufficient evidence or testimony on the record to justify the order. During her
testimony, Guardian made several references to vague feelings and emotions, e.g. “she don’t
even know me and was trying to harm me” and “they are actually stalking, they’re doing
everything to their ability to just get to my niece,” but could not point to any specifics of how she
anticipated harm in the future. When asked point blank for “any particular threats of harm to
you,” Guardian was able to respond only with a conclusory, “Yes,” and that Appellant was
“doing the most.” Without details or specifics, a simple response of “yes” is not enough to
justify a protective order. Lawyer, 459 S.W.3d at 533. Guardian argued that Appellant flashed a
gun, but both Appellant and G.M. denied owning a gun. Even as we consider the facts and
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inferences in support of the judgment based on our standard of review, without any further
questioning or testimony about whether there was a weapon around Child, what danger was
posed to Child, or what anticipated future harm could come to Child, there is not enough
evidence to justify an “overt threat” to Child or proof of stalking. This Court has emphasized the
importance of providing testimony specifically addressing a plaintiff's fear of physical harm. Id.
The best evidence to support an objective or subjective finding of alarm came during
questioning of Guardian by the Guardian Ad Litem, but Guardian soon contradicted that
evidence supporting such a finding. When Guardian was asked what her fear would be if the
order was denied, she responded, “Harm, harm.” Guardian's conclusory statements expressing
fear were unsupported by additional testimony and failed to specifically mention any reason to
fear physical harm. See K.M.C. v. M.W.M., 518 S.W.3d 273, 281-82 (Mo. App. E.D 2017)
(Richter, J., dissenting) (citing Lawyer, 459 S.W.3d at 533). Guardian then stated, “I’m trying to
protect myself as well as them, I don’t want to end up hurting anybody. And I also need my
niece not to be in harm’s way. . . .” The record before us seems to imply that Guardian was as
likely to escalate the situation to physical violence as Appellant, further negating Guardian’s own
subjective sense of alarm for Child.
The only evidence of any physical harm from either party toward Child was allegations
of abuse made by Child against Guardian, which were reported to CPS by Appellant. Guardian
at one point accused Appellant of cutting Child’s hair “so no one could recognize her” and lying
about Child’s whereabouts during the time Child was missing. However, Appellant denied this
accusation and stated she was merely twisting Child’s hair to avoid bullying at school. There
was no further questioning or testimony about this incident to decide whether any physical harm
actually occurred. At best, Guardian seems to be using the Adult Abuse Act and the Child
Protective Order Act as a “panacea for minor arguments that frequently occur between
8
neighbors,” a use consistently overturned and warned against by the Missouri courts. K.M.C. v.
M.W.M., 518 S.W.3d 273, 279 (Mo. App. E.D. 2017) (quoting Wallace v. Van Pelt, 969 S.W.2d
380, 386 (Mo. App. W.D 1998)). At worst, the only evidence of actual imminent harm seems to
be the above threat made by Guardian against Appellant. There is not sufficient evidence to
support the inference that an objective observer would have seen Appellant had any intentions to
harm Child, or that Guardian had a reason to believe Appellant would harm Child.
Additionally, the statutory changes made to the CPOA do not distinguish between the
definitions of alarm or stalking for an Adult Order of Protection and a Child Order of Protection.
For both, the standard of stalking and alarm are defined by Section 455.010(14). All of
Guardian’s testimony was specific to threats allegedly made by Appellant, directed at Guardian,
not Child. Guardian never alleged that Appellant or G.M. hurt Child except for the alleged
haircut. Even assuming arguendo this occurred, a haircut alone would not constitute harm.
Rather, the allegations against Appellant are merely that G.M. provided Child shelter against the
desires of Guardian while Appellant was in G.M.’s house. Although this may constitute parental
meddling, it does not escalate to the point of alarm and stalking, which is required to support the
granting of a protective order. Further, the fact that Guardian’s request for an adult protective
order against Appellant was denied supports the idea that the trial court did not find a threat of
harm between Appellant and Guardian. To deny the adult order and then to grant the order for
Child with less factual evidence of harm erroneously applies the law as set out by Section
455.010 and the CPOA.
Finally, the trial court made its determination without a clear picture of what happened.
The court conceded it was “certainly not convinced of what happened during that ten-day
period.” The decision is based on contact that was “inappropriate, [and that] should have been
spearheaded by the mother figure.” However, the standard for granting a protective order for
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stalking is not inappropriate meddling in the affairs of child rearing. Rather, the standard is a
strict determination of fear of physical harm. Although the statute does refer to “course of
conduct” as behavior that serves no legitimate purpose, as defined by Section 455.010(14)(b), it
must be coupled with alarm as defined by Section 455.010(14)(a). Absent alarm, a course of
conduct with no legitimate purpose alone is not sufficient to meet the statutory definition of
stalking. In a situation where the trial court assumes the burden of directing questions to pro se
litigants, the correct questions and detailed responses still must be present to create a clear record
of what occurred in order to meet the statutory elements of a law with substantial evidence of
proof.
Therefore, because there was not substantial evidence to support a finding of alarm or
stalking, Appellant’s point is granted.
III. Conclusion
We reverse the Child Order of Protection against Appellant.
__________________________________
ROY L. RICHTER, Judge
Robert M. Clayton III, P.J., concurs.
Robert G. Dowd, Jr., J., concurs.
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