Lawyer v. Fino

• Decision Date: 06 May 2015
• Docket Number: No. SD 33448,SD 33448
• Citation: 459 S.W.3d 528
• Parties: John Scott Lawyer, Petitioner–Respondent, v. Kimberly Diane Fino, Respondent–Appellant.
• Court: Missouri Court of Appeals

459 S.W.3d 528

John Scott Lawyer, Petitioner–Respondent

v.Kimberly Diane Fino, Respondent–Appellant.

No. SD 33448

Missouri Court of Appeals, Southern District, Division Two.

Filed: May 6, 2015

Robert R. Paulson II, Forsyth, MO, Attorney for Appellant

John S. Lawyer, Kimberling City, MO, Pro Se Respondent

MARY W. SHEFFIELD, P.J.

Kimberly Diane Fino (“Mother”) appeals from the trial court's entry of a full order of protection against Mother in favor of John Scott Lawyer (“Father”). Mother argues there was insufficient evidence to support the trial court's finding of abuse or stalking under the Missouri Adult Abuse Act. See § 455.020.¹ Mother's arguments are correct, and the trial court's judgment is reversed.

Standard of Review

Review of the grant of a full order of protection under the Adult Abuse Act is under the same standard as any other court-tried case; that is, this Court “will uphold the trial court's judgment as long as it is supported by substantial evidence, it is not against the weight of the evidence, and it does not erroneously declare or apply the law.” Patterson v. Pilot, 399 S.W.3d 889, 897 (Mo.App.S.D.2013). The facts and inferences are viewed in the light most favorable to the trial court's ruling. Id. However, “[i]t is important to note that the Adult Abuse Act was not intended to be a solution for minor arguments between adults.” Washburn v. Kirk, 437 S.W.3d 831, 833 (Mo.App.S.D.2014). There is a great potential for abuse, and real harm can result from improper use of the Act, “not the least of which will be the stigma that attaches by virtue of a person having been found to be a stalker.” Id. (quoting Patterson, 399 S.W.3d at 898 n. 17 ). For those reasons, courts must “exercise great vigilance to prevent abuse of the stalking provisions in the Adult Abuse Act and in making sure that sufficient credible evidence exists to support all elements of the statute before entering a protective order.”Id. (quoting Patterson, 399 S.W.3d at 898 n. 17 ).

Factual and Procedural Background

Mother and Father were married and had two children together. Mother and Father divorced in 2007 and experienced many subsequent conflicts regarding their children.

On May 27, 2014, Father filed a petition for an adult order of protection under the Missouri Adult Abuse Act. On June 10, 2014, the trial court held a hearing regarding the petition. The parties appeared and tried the case without the assistance of lawyers.

Father testified that Mother sent him numerous threatening text messages that disrupted his home and his work. Father also stated that on May 26, 2014, there had been a prowler at his home. Father explained that he filed a police report regarding the incident, but was unable to identify the prowler.

Father also submitted into evidence copies of some of the text message conversations between himself and Mother.² The exhibits show a handful of text exchanges regarding the children's health and education.

On May 27, 2014, Mother texted Father regarding an appointment with an eye doctor that the children were scheduled to attend. Later that evening, Mother texted Father expressing dismay that Father had let the children sleep outside in a tent with no adult supervision and that Father had let one of the children eat foods containing gluten when, according to Mother, that child was supposed to be on a gluten-free diet. A series of texts during the afternoon of May 29, 2014, involved the dates for visitation in the summer. During the evening of May 29, 2014, Mother sent Father a number of texts regarding a motion to modify child custody which Father had filed. On June 2, 2014, Mother sent Father a series of text messages regarding the fact that Father did not take the children to summer school.

After admitting the text messages into evidence, the trial court permitted Mother to testify. Mother stated the text messages were all about the children, and denied that she had been the prowler at Father's house.

A full order of protection was entered on June 10, 2014. The trial court found Father had proven domestic violence or stalking. Mother appeals.

Discussion

The Missouri Adult Abuse Act provides that “[a]ny 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, may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such domestic violence or stalking by the respondent.” § 455.020.1. As Mother and Father had been married at one time, they meet the statutory definition of family or household member. See § 455.010(7) (defining family or household member to include, inter alia, former spouses). Thus, Father could seek a full order of protection under either ground listed in the statute. Compare Cuda v. Keller, 236 S.W.3d 87, 90 (Mo.App.W.D.2007) (noting that family members do not need to prove stalking in order to obtain a full order of protection), with Fowler v. Minehart , 412 S.W.3d 917, 921 (Mo.App.S.D.2013) (noting that a petitioner who did not allege the defendant was a family or household member was limited to seeking an order of protection under the stalking provision of the statute). It is not apparent as to which ground the trial court relied upon, and Mother challenges both grounds in her point relied on.³ Each ground will be addressed in turn.

Abuse

In the first portion of her sole point relied on, Mother argues there was no evidence presented to show abuse because the text messages did not cause substantial emotional distress, would not cause a reasonable person to suffer substantial emotional distress, and served a legitimate purpose. Based on the plain language of the statute and the case law interpreting that statute, Mother is correct.

Under Chapter 455, the term “[a]buse” encompasses assault, battery, coercion, harassment, sexual assault, or unlawful imprisonment. § 455.010(1). Here, there were no allegations of assault,⁴ battery, coercion, sexual assault, or unlawful imprisonment, so the resolution of this issue depends on the definition of the term “[h]arassment.” The statute defines the term “[h]arassment” as follows:

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.

§ 455.010(1)(d). The statutory definition of harassment requires proof of two things: that the conduct was “such as to cause a reasonable person to suffer substantial emotional distress” and that the conduct “actually cause[d] such distress to the petitioner.” C.B. v. Buchheit, 254 S.W.3d 210, 213 (Mo.App.E.D.2008). To meet this requirement, the petitioner must show “something markedly greater than the level of uneasiness, nervousness, unhappiness or the like which are commonly experienced in day to day living.” Id. (quoting Wallace v. Van Pelt, 969 S.W.2d 380, 386 (Mo.App.W.D.1998) ). For example, harassment has been found where there was physical contact and an offer to fight, Cuda , 236 S.W.3d at 90, or where there was evidence of drunken outbursts, pushing, and repeated communications despite official requests to discontinue communication, H.R. v. Foley , 356 S.W.3d 210, 214–15 (Mo.App.E.D.2011). Repeated communication alone, on the other hand, typically does not rise to the level of harassment because, while annoying and boorish, such conduct would not cause substantial emotional distress in a reasonable person. E.g., Nenninger v. Smith, 400 S.W.3d 400, 405 (Mo.App.W.D.2013) ; C.B., 254 S.W.3d at 213.

In the present case, Father stated he felt harassed and threatened by Mother's repeated text communications. This testimony does not rise above the uneasiness or nervousness commonly experienced in everyday life. In fact, while Father did request on one occasion for Mother to “[s]top texting me your threats[,]” he never asked her to stop communicating with him. The fact that Father made one request distinguishes this case from other cases where courts have found harassment and further supports the inference that Father did not suffer substantial emotional distress.

Even if that testimony were sufficient to show Father subjectively felt substantial emotional distress, there is no evidence to meet the second prong of the test, i.e., that Mother's conduct would cause a reasonable person to suffer substantial emotional distress. It is clear from examination of the texts themselves that a reasonable person would not feel substantial emotional distress upon receiving them. The majority of Mother's communications simply provided information about the parties' children or sought to coordinate matters related to the children. Although Mother made some comments indicating she would use information against Father in court, “[l]itigation is not the type of behavior the Adult Abuse Act seeks to prevent.” Clark v. Wuebbeling , 217 S.W.3d 352, 355 (Mo.App.E.D.2007).

Furthermore, there is no evidence that the communications in this case were without legitimate purpose. “For conduct to have ‘no legitimate purpose,’ it must be found to be not sanctioned by law or custom, to be unlawful, or not allowed.” Dennis v. Henley, 314 S.W.3d 786, 789 (Mo.App.S.D.2010). Missouri's appellate courts have repeatedly found that repeated communications regarding the care of children between estranged parents are appropriate. E.g., Clark, 217 S.W.3d at 355. Here, the text messages were entirely related to issues involving the parties' children including their health, education, visitation issues, and the ongoing custody litigation.

The only other potentially relevant event involving the parties was the prowler incident. However, in his testimony on that issue, Father never identified the prowler. Mere speculation that Mother was involved is not sufficient to...