D.D.W. v. M.F.A.

• Decision Date: 13 February 2020
• Docket Number: No. SD 36177,SD 36177
• Citation: 594 S.W.3d 274
• Parties: D.D.W., Respondent, v. M.F.A., Appellant.
• Court: Missouri Court of Appeals

594 S.W.3d 274

D.D.W.,¹ Respondent,

v.M.F.A., Appellant.

No. SD 36177

Missouri Court of Appeals, Southern District, Division One.

Filed: February 13, 2020

Appellant’s Attorney: Monte C. Phillips, of Doniphan, Missouri.

Respondent Pro se: D.D.W., of Ellsinore, Missouri.

WILLIAM W. FRANCIS, JR., J.

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 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 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.

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 ... 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.

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...