C.H. v. Wolfe

• Court: Missouri Court of Appeals
• Writing for the Court: Cynthia L. Martin
• Citation: C.H. v. Wolfe, 302 S.W.3d 702 (Mo. App. 2009)
• Decision Date: 15 December 2009
• Docket Number: No. WD 70695.,WD 70695.
• Parties: C.H., Respondent, v. William WOLFE, Appellant.

302 S.W.3d 702

C.H., Respondent, v. William WOLFE, Appellant.

No. WD 70695.

Missouri Court of Appeals, Western District.

December 15, 2009.

Victor B. Peters, Kansas City, MO, for appellant.

Christopher Hittner, pro se, for respondent.

Before Division Three: MARK PFEIFFER, Presiding Judge, KAREN KING MITCHELL, Judge and CYNTHIA L. MARTIN, Judge.

Cynthia L. Martin, Judge.

William Wolfe appeals from the trial court's judgment granting a full order of protection, following the filing of a petition for protection by C.H., pursuant to the Adult Abuse Act, sections 455.010 through 455.085, RSMo 2000. Wolfe claims the judgment is not supported by substantial evidence. We agree and reverse.

Factual and Procedural History

Wolfe and C.H. are neighbors in the same cul-de-sac located in Platte County. C.H.'s house is at the entrance to the cul-de-sac. Wolfe and C.H. are both adult men. Both are over six feet tall and weigh more than two hundred pounds. Wolfe is employed as a Clay County deputy sheriff.

On July 8, 2008, C.H. was walking his dog when he saw Wolfe's dog and a neighbor's German shepherd running loose in the cul-de-sac. C.H. was "charged and jumped on" by the two dogs. C.H. returned his dog to his residence and then walked into the cul-de-sac. When C.H. approached the home of the owner of the German shepherd, the German shepherd bit him on the arm. C.H. rang that neighbor's door bell but no one answered.

Wolfe approached and explained that he was supposed to be watching the neighbor's dog and asked what had happened. C.H. told him that he had been bitten by the German shepherd and charged by Wolfe's dog. When Wolfe stated, "that's not a bite," C.H. told Wolfe he was going to call animal control because Wolfe "obviously [didn't] care about these dogs running loose." Wolfe told him not to bother animal control because "they have better things to do with their time." C.H. subsequently filed a complaint with animal control.

On November 2, 2008, while C.H. was raking leaves in his yard, Wolfe stood in his own driveway and watched C.H. for ten minutes. On December 24, 2008, C.H. saw Wolfe's dog loose and took a picture. Wolfe put his dog inside his home and watched C.H.'s home from across the street for ten minutes. On January 1 and January 4, 2009, C.H. saw Wolfe's dog off its leash. On January 4, 2009, Wolfe watched C.H.'s home for less than a minute.

A court hearing regarding the animal control complaint was held on January 15, 2009. The hearing resulted in a $75 fine for Wolfe for public nuisance and a $105 fine for C.H. for failing to license his dog.

After the parties returned home from the hearing, Wolfe was talking with a neighbor in the neighbor's yard when C.H. came out of his home. Wolfe yelled at C.H. that his $75 fine was no big deal because C.H. had to pay $105. Wolfe went on to verbally berate C.H.'s manhood. C.H. recorded the statements.

On January 15, 2009, C.H. applied for an ex parte order of protection, using a preprinted Adult Abuse/Stalking Petition for Order of Protection form. In response to Question 8, which asked C.H. to check applicable boxes, C.H. alleged that Wolfe knowingly and intelligently "stalked me" and "harassed me" by the following act(s):

11:02 a.m. Dec. 24, 2008    Mr. Wolfe lets his dog off
                                            leash, stares in our window
                                            for 10 minutes
                11:58 a.m. Jan. 4, 2009     Mr. Wolfe lets his dog off
                                            leash, stares in window for
                                            thirty seconds
                4:05 p.m. Jan. 15, 2009     Mr. Wolfe verbally harasses
                                            me while I get the
                                            mail, dog off leash
                

C.H. did not check the available boxes for "caused or attempted to cause me physical harm" or for "placed or attempted to place me in apprehension of immediate physical harm."

In response to Question 9 on the preprinted form, which states: "I am afraid of [Wolfe], and there is an immediate and present danger of abuse or stalking of me because: (describe)," C.H. wrote: "He has been staring in our windows and verbally harassing myself and my wife." C.H. attached a two page narrative to his petition which describes several incidents of verbal harassment by Wolfe of C.H. and of C.H.'s wife, all involving, in one respect or another, the parties' dogs. C.H. also complained in the narrative that Wolfe had been verbally abusive in the courtroom at the conclusion of the hearing on the animal control complaint and that Wolfe was parking a beat up truck on the street in front of C.H.'s house.

An ex parte order of protection was issued by the trial court on January 15, 2009. The ex parte order was served on Wolfe on January 17, 2009. The ex parte order advised that a hearing would be conducted on January 27, 2009.

After the ex parte order of protection was issued, Wolfe continued parking his pickup truck in the cul-de-sac in front of C.H.'s home. C.H. called traffic control to report an abandoned vehicle. When traffic control reported to the scene, Wolfe told the officer that it was his truck, properly licensed and not abandoned. No action was taken against Wolfe for parking on the street.

At the January 27, 2009 hearing to consider a full order of protection, C.H. testified to the above incidents. Wolfe testified that he walks his dog on the sidewalk and has never walked his dog on the side of the street where C.H. lives. Wolfe testified that he has never been on C.H.'s property. C.H. admitted on cross examination that Wolfe could not walk his dog without going past C.H.'s house. Wolfe presented the testimony of the neighbor who had witnessed the January 15, 2009 confrontation. That neighbor testified that Wolfe made no attempt to approach C.H.

On January 27, 2009, the trial court entered judgment granting a full order of protection. The preprinted form order notes that the trial court found that "pursuant to Section 455.040 RSMo that [C.H.] has proved the allegations of abuse or stalking." The full order of protection is effective until January 27, 2010, unless sooner terminated or renewed. This appeal followed.

Standard of Review

Wolfe's sole claim on appeal is that the trial court's full order of protection was not supported by the preponderance of the evidence. In reviewing full orders of protection, "`[t]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.'" Beckers v. Seck, 14 S.W.3d 139, 142 (Mo.App. W.D.2000)(quoting 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." Wallace v. Van Pelt, 969 S.W.2d 380, 382 (Mo.App. W.D.1998). "Because the trial judge is in the best position to gauge the credibility of the witnesses, in cases under the Adult Abuse Act, the discretion of the trial court should not often be superseded." Id. at 383.

Analysis

The Adult Abuse Act, section 455.020.1 provides that: "Any adult who has been subject to abuse by a present or former adult family or household member, or who has been the victim of stalking, may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such abuse or stalking by the respondent." Wolfe is not a present or former adult family or household member of C.H.'s. Thus, C.H.'s only potential recourse against Wolfe under section 455.020.1 was for stalking.

"Stalking" occurs "when an adult purposefully and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person's situation to have been alarmed by the conduct." Section 455.010(10). A "course of conduct" is "a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted conduct." Section 455.010(10)(a). "Repeated" means "two or more incidents evidencing a continuity of purpose." Section 455.010(10)(b). "Alarm" is defined as "caus[ing] fear of danger of physical harm." Section 455.010(10)(c). The petitioner bears the burden to prove the allegation of stalking by a preponderance of the evidence. Section 455.040.1.

An order of protection is not entered pursuant to any criminal statute. Towell v. Steger, 154 S.W.3d 471, 474 (Mo. App. S.D.2005). However, a full order of protection has criminal implications. Violation of a full order of protection is a criminal offense. Id. Full orders of protection can, upon motion of the petitioner, and after a hearing by the trial court, be renewed for up to an additional year. To that end, trial courts have been cautioned to "exercise great care to make certain that sufficient evidence exists to support all elements of the statute before entering a full order of protection." Id. This court has warned: "The potential for abuse of the stalking provision of the Adult Abuse Act is great. And, the harm that can result is both real and significant, not the least of which will be the stigma that attaches by virtue of a person having been found to be a stalker." Wallace, 969 S.W.2d at 387. Beyond stigma, a full order of protection may have far reaching consequences for Wolfe.

The Federal Gun Control Act, 18 U.S.C. 922(g)(8), prohibits a person under an order of protection from possessing a firearm, even for recreational purposes. Towell, 154 S.W.3d at 475. Thus, "persons in the military or law enforcement, who become subject to an order of protection, may lose their livelihood." Id. Wolfe is a deputy sheriff. Though the record does not disclose how, if at all, the full order of protection has impacted Wolfe's ability to perform his job, the order itself provides: ...