C.B. v. J.B.

• Decision Date: 29 November 2011
• Docket Number: No. ED 96425.,ED 96425.
• Citation: 356 S.W.3d 790
• Parties: C.B., Respondent, v. J.B., Appellant.
• Court: Missouri Court of Appeals

356 S.W.3d 790

C.B., Respondent,

v.J.B., Appellant.

No. ED 96425.

Missouri Court of Appeals, Eastern District, Division One.

Nov. 29, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 10, 2012.

Thomas J. Henderson, St. Louis, MO, for appellant.

Melanie DeRousse, St. Louis, MO, for respondent.

ROY L. RICHTER, Judge.

In this court-tried case, C.B. sought renewal of a previously granted full order of protection against her former boyfriend, J.B. Following a hearing, the trial court entered judgment, ordering renewal of the full order of protection for another year. On appeal, J.B. argues the trial court erred because the judgment was not supported by substantial evidence and the trial court erroneously applied the law. We affirm.

I. BACKGROUND

Following a multi-year relationship, C.B. ended her involvement with her boyfriend, J.B. However, unable to independently sever ties with J.B., on May 18, 2009, C.B. filed a petition seeking an Adult Abuse/Stalking Order in the Circuit Court of St. Charles County. Along with C.B.'s petition, she included a single-page attachment that painted a tumultuous picture of the relationship itself and the time since its conclusion. During their time together, C.B. alleged a single incident of physical violence during which J.B. tore her shirt and threw her against a wall. Following the break-up, C.B. claimed that, despite her requests that J.B. cease contact with her, J.B. persisted with his harassing behavior. Among the incidents described in her petition, C.B. averred that J.B.: repeatedly drove past her home; parked on her street and then peered through the windows of her home; repeatedly knocked on her door and rang the doorbell; and repeatedly came to her work. An ex parte order of protection was issued against J.B. on May 18, 2009, and a hearing was set for November 18, 2009.

At the November 18, 2009 hearing, prior to the introduction of any evidence, J.B. consented to the issuance of a full order of protection, effective until November 17, 2010. On October 29, 2010, C.B. moved to renew the order of protection, claiming that the circumstances underlying the allegations in her original petition still existed.

At the November 17, 2010 renewal hearing, C.B. testified that although J.B. had obeyed the existing order and not contacted her during the past year, she remained in fear of J.B. and believed the order of protection was the reason that J.B. had kept away. Following further inquiry by J.B.'s counsel, C.B. added that J.B. previously had trapped her in her garage, pounded on her front door, and received a trespassing ticket for parking in front of her home and refusing to leave. Throughout her testimony, C.B. consistently reiterated that she was fearful of J.B. and felt in danger.

Following the conclusion of C.B.'s testimony, in response to a question from J.B.'s counsel regarding the standard for renewal, the trial court stated:

THE COURT: [C.B.] also testified that she remains fearful of him and that she thinks the order of protection is what's kept him away. And like I told you prior to going on the record, as far as I'm concerned, that's all I need to hear to continue this order.

Likewise, at the conclusion of J.B.'s testimony, the following exchange took place regarding the standard the trial court would apply for renewal:

THE COURT: Okay. Like I stated before we went on the record, once at least since we've been on the record, it's my understanding that her having testified to the fact that she continues to remain in fear of [J.B.], and her testimony that she thinks the order of protection is what has kept him away, is sufficient for me to continue the order of protection, which I'm going to do.”

...

[COUNSEL FOR J.B.]: I do believe there needs to be preponderance of the evidence from the Petitioner indicating why she—that it's reasonableness for her to be in fear.... I think there need[s] to be a reasonableness standard or a preponderance of the evidence that it's reasonable that she's in fear.

THE COURT: And I think she has met that burden.

...

THE COURT: Well, then there's been no violations but she remains in fear, and it's her belief that the order of protection is what has kept him away. Therefore, she believes if there's no order of protection he will have unwanted contact or communication with her. And I believe that's sufficient proof for me to issue the order, which I have already signed as we've been talking.

The trial court entered its judgment renewing the full order of protection for an additional year; expiring November 18, 2011. This appeal follows.

II. DISCUSSION

In this court-tried case, we will affirm the judgment unless it is not supported by substantial evidence, it is against the great weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Substantial evidence is competent evidence from which the trier of fact could reasonably decide the case.” Vinson v. Adams, 192 S.W.3d 492, 494 (Mo.App. E.D.2006).

Moreover, the violent acts the Adult Abuse Act is intended to prevent frequently occur unpredictably, without warning or reason. Accordingly, it is “[t]he trial judge [who] is in the best position to gauge the credibility of the witnesses and to determine the existence of any reasonable apprehension of abuse that a petitioner may harbor; conversely, the judge can determine whether a given respondent appears capable of the feared abuse.” Parkhurst v. Parkhurst, 793 S.W.2d 634, 636 (Mo.App. E.D.1990).¹ Whether the threatened abuse has come to fruition or not is irrelevant. Id. at 637. It is not the function of this Court to engage in such “hindsight” review of the issuance and renewal of orders of protection. Id. We defer to the trial court's credibility determinations, and we view all facts and inferences in a light most favorable to the judgment. Vinson, 192 S.W.3d at 494.

In order to obtain a full order of protection under the Adult Abuse Act, a petitioner must prove the allegation of abuse or stalking by a preponderance of the evidence. Section 455.040.1 RSMo Cum.Supp.2009.² If the full order of protection is issued, it may then be renewed for a period ranging from 180 days to one year from the expiration date of the original order. Section 455.040.1. The statute is conspicuously silent, though, as to the standard to be applied when a petitioner moves for renewal. Absent legislative guidance, this Court took up the issue in Capps v. Capps, 715 S.W.2d 547 (Mo.App. E.D.1986).

In Capps, this Court was confronted with whether a renewal of a full order of protection is a civil action for purposes of a Rule 51.05(a) change of judge motion. 715 S.W.2d at 551–52. In finding that a renewal proceeding is not a civil proceeding for purposes of Rule 51.05, the Capps Court noted the lack of a renewal standard and set out to establish one. Id. at 552. With no guidance from the statutory language, the Capps Court looked to the legislature's purpose in enacting the Adult Abuse Act.

It was adopted by the Missouri Legislature as a result of an increased awareness nationally of the prevalence of domestic violence and of the need to protect the victims of that violence. It is part of a nationwide trend to legislate in this area. Existing remedies such as peace bonds, regular criminal process, and tort law have proved to be less than adequate in aiding the victims of abuse and in preventing further abuse.

Id. (quoting State ex rel. Williams v. Marsh, 626 S.W.2d 223, 226 (Mo. banc 1982)). With that purpose in mind, the Capps Court held that the legislature intended an order of protection to be renewed if “a petitioner ... proves by a preponderance of the evidence that the expiration of the Full Order will place petitioner in an immediate and present danger of abuse.” ³ Id. In satisfying this burden, a renewal order need not be based on any new acts of abuse, although it may be. Id. The renewal also can be based on the “fact that the circumstances forming the basis for the initial order continue to exist” and a failure to renew will place the petitioner “in an immediate and present danger of abuse.” Id.; Vinson, 192 S.W.3d at 495.

A. The Trial Court's Judgment Is Supported By Substantial Evidence.

In J.B.'s first point on appeal, he asserts the trial court erred in renewing the full order of protection because the judgment was not supported by substantial evidence. Specifically, J.B. argues that C.B. failed to present sufficient evidence of either abuse or stalking at the original protection order hearing or the renewal hearing. We disagree.

Normally, in order to be granted a full order of protection, C.B. would have to prove her allegation of abuse or stalking by a preponderance of the evidence at the original, November 18, 2009 hearing. Section 455.040.1. Yet, in this case, J.B. consented to the entry of the original order; rendering any such presentation of proof moot.⁴ This consent, however, did nothing to alter C.B.'s burden of proof in the renewal hearing or necessitate re-litigation of the original order. Regardless of whether the original order of protection was granted by consent or following a hearing and presentation of evidence, in order to grant a renewal, the trial court was required only to evaluate whether expiration of the original order would result in the petitioner being placed in an “immediate and present danger of abuse.” Capps, 715 S.W.2d at 552.

In this case, sufficient evidence was adduced that C.B. was harassed by J.B. Abuse by harassment will be found “in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child and serves no legitimate purpose.” Section 455.010(1)(d). This definition contains both subjective and objective criteria. The conduct must not only cause the petitioner to actually suffer substantial emotional distress, but the conduct must also be...