K.M.C. v. M.W.M.

• Decision Date: 02 May 2017
• Docket Number: No. ED 104560,ED 104560
• Citation: 518 S.W.3d 273
• Parties: K.M.C., Petitioner/Respondent, v. M.W.M., Respondent/Appellant.
• Court: Missouri Court of Appeals

518 S.W.3d 273

K.M.C., Petitioner/Respondent,

v.M.W.M., Respondent/Appellant.

No. ED 104560

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: May 2, 2017

Michael W. Moll, Union, MO, Appellant Acting Pro Se.

SHERRI B. SULLIVAN, P.J.

Introduction

M.W.M. (Appellant) appeals from the trial court's May 25, 2016 Judgment of the Full Order of Protection entered pursuant to the Adult Abuse Act, Sections 455.010 to 455.085.¹ After both parties presented their sides at a full hearing, the court issued K.M.C. (Respondent) a full order of protection mandating that Appellant shall not communicate with Respondent in any manner or through any medium, including through the use of third parties. The order also provided Appellant shall not commit or threaten to commit domestic violence, molest, stalk, or disturb the peace of Respondent. The order further stipulated Appellant shall not harass, stalk, or threaten Respondent or engage in other conduct that would place Respondent in reasonable fear of bodily injury to Respondent. Finally, the order commanded Appellant shall not use, attempt to use, or threaten to use physical force against Respondent that would reasonably cause bodily injury. We affirm.

Appeal

Points I-III

Appellant presents four points on appeal. His first three points allege the Adult Abuse Act and the trial court's judgment entered pursuant to the Act are unconstitutional, in that they violate the ban on ex post facto laws by punishing his past actions in harassing and stalking Respondent; prohibit his first amendment right to free association and speech in that they ban him from communicating, harassing, or stalking Respondent; and violate his right to due process in prohibiting his first amendment right to associate with and speak to Respondent as he sees fit, as well as deprive him of his constitutionally protected right to conceal and carry firearms by prohibiting him from threatening to or using physical force against Respondent.

Appellant filed his brief on November 16, 2016. In his jurisdictional statement, Appellant alleged the Missouri Supreme Court has jurisdiction because his appeal questions the constitutionality of a state statute. This Court entered an Order on November 28, 2016, noting that to preserve a constitutional question for appellate review, a litigant must, among other things, raise the question at the earliest opportunity consistent with good pleading and orderly procedure. Brethorst v. Brethorst , 50 S.W.3d 864, 868 (Mo.App. E.D. 2001). The Order further noted if Appellant's constitutional challenges had been preserved for review, this Court would not have jurisdiction and the appeal would be transferred to the Missouri Supreme Court but if Appellant failed to preserve the constitutional challenges for appellate review, this Court would have jurisdiction of any remaining issues and the waived constitutional issues would not be reviewed by this Court. State v. Bowens , 964 S.W.2d 232, 236 (Mo.App. E.D. 1998). The Order directed Appellant to brief the issue "addressing whether this appeal should be transferred to the Supreme Court" in a memorandum to be filed with the Court by December 14, 2016.

Appellant filed a motion and memorandum addressing these issues on December 6 and December 8, 2016. In the motion and memorandum, he requests transfer to the Supreme Court and states he did not raise these issues in a timely fashion at the trial court because of his inexperience. The motion was taken with the case.

A pro se litigant is held to the same standards as a licensed attorney. Portwood–Hurt v. Hurt , 988 S.W.2d 613, 618 (Mo.App. W.D. 1999). Judicial impartiality, judicial economy, and fairness to all parties preclude courts from granting pro se litigants preferential treatment. Ward v. United Engineering Co. , 249 S.W.3d 285, 287 (Mo.App. E.D. 2008). Because Appellant failed to raise his constitutional claims at the earliest opportunity, they are not preserved for transfer to the Supreme Court nor can we review them. Points I, II and III are therefore denied. Appellant's motion is likewise denied. We retain jurisdiction to proceed to review Appellant's remaining point on appeal, Point IV.

Point IV

In Point IV, Appellant alleges certain elements of the statute were not met by Respondent. Specifically, Appellant contends Respondent failed to present evidence fulfilling the "illegitimate purpose and course of conduct" and "reasonable person" elements of the statute because Appellant was only engaged in legitimate, lawful, and protected activity; and there is no objective evidence Respondent ever feared physical harm or suffered substantial emotional distress caused by Appellant.

Standard of Review

We review an order of protection the same as in any other court-tried case. M.N.M v. S.R.B. , 499 S.W.3d 383, 384 (Mo.App. E.D. 2016). We will uphold the trial court's judgment as long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Id. All facts and inferences are viewed in the light most favorable to the trial court's ruling. Id. Reviewing the evidence in the light most favorable to the trial court's order, we defer to the trial court's superior ability to evaluate the potential for abuse by the testimony and demeanor of witnesses. A.S. v. Decker , 318 S.W.3d 751, 756 (Mo.App. W.D. 2010). 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. S.A. v. Miller , 248 S.W.3d 96, 97 (Mo.App. W.D. 2008). The trial judge 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).

Discussion

An adult who has been the victim of stalking and harassment may request relief by filing a verified petition under the Adult Abuse Act. Section 455.020. Section 455.020, titled "Relief may be sought—order of protection effective, where," provides in pertinent part:

1. Any person who has been subject to domestic violence by a present or former family or household member, or who has been the victim of stalking or sexual assault, may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such domestic violence, stalking, or sexual assault by the respondent.

On April 1, 2016, Respondent filed a verified petition for an order of protection for adult abuse/stalking against Appellant, a 59-year-old male who is approximately six feet tall and 250 pounds. Appellant was a patient at the dental office where Respondent was employed as a dental hygienist. Respondent alleged in her petition that Appellant had stalked her, harassed her, and followed her from place to place. Respondent set out three significant dates where Appellant had followed and stopped her at an Aldi's and a Wal–Mart. Respondent also alleged he had called her place of employment and her church four times in the span of two weeks. Respondent alleged she lives alone and was afraid of Appellant because he would not leave her alone and he could easily hurt her because of their difference in age and size.

Section 455.010, titled "Definitions," provides in pertinent part:

As used in this chapter, unless the context clearly indicates otherwise, the following terms shall mean:

(1) "Abuse" includes but is not limited to the occurrence of any of the following acts, attempts or threats against a person who may be protected pursuant to this chapter, except abuse shall not include abuse inflicted on a child by accidental means by an adult household member or discipline of a child, including spanking, in a reasonable manner:

(a) "Assault", purposely or knowingly placing or attempting to place another in fear of physical harm;

(b) "Battery", purposely or knowingly causing physical harm to another with or without a deadly weapon;

(c) "Coercion", compelling another by force or threat of force to engage in conduct from which the latter has a right to abstain or to abstain from conduct in which the person has a right to engage;

(d) "Harassment" , engaging 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. The course of conduct must be such as would cause a reasonable adult or child to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner or child. Such conduct might include, but is not limited to:

a. Following another about in a public place or places;

b. Peering in the window or lingering outside the residence of another; but does not include constitutionally protected activity....

...

(14) "Stalking" is 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 been alarmed by the conduct. As used in this subdivision:

(a) "Alarm" means to cause fear of danger of physical harm; and

(b) "Course of conduct" means a pattern of conduct composed of two or more 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 contact.

Section 455.010 RSMo Cum.Supp.2015 (emphasis added).

Abuse by harassment requires a dual showing, that the conduct must be such as to cause a reasonable person to suffer substantial emotional distress, and also that it must actually cause such distress to the petitioner. C.B. v. Buchheit , 254 S.W.3d 210, 213 (Mo.App. E.D. 2008) ; Wallace v. Van Pelt ,...