McAlister v. Strohmeyer, WD 75160.

• Citation: 395 S.W.3d 546
• Decision Date: 30 April 2013
• Docket Number: No. WD 75160.,WD 75160.
• Parties: Alyssa F. McALISTER, Appellant, v. Ethan T. STROHMEYER, Respondent.
• Court: Court of Appeal of Missouri (US)

395 S.W.3d 546

Alyssa F. McALISTER, Appellant,

v.Ethan T. STROHMEYER, Respondent.

No. WD 75160.

Missouri Court of Appeals, Western District.

Jan. 8, 2013.

Application for Transfer to Supreme Court Denied March 5, 2013.

Application for Transfer to Supreme Court Denied April 30, 2013.

Leonard K. Breon, Warrensburg, MO, for Appellant.

John H. Edmiston, Warrensburg, MO, for Respondent.

Before Division Two: LISA WHITE HARDWICK, Presiding Judge, and JAMES M. SMART, JR., and KAREN KING MITCHELL, Judges.

KAREN KING MITCHELL, Judge.

Alyssa McAlister appeals the denial, following a bench trial, of her request for a full order of protection against her child's father, Ethan Strohmeyer. McAlister argues that the undisputed evidence demonstrated that Strohmeyer pointed a gun at her and that such conduct constituted an attempt to place her in fear of physical harm under section 455.010. Consequently, McAlister argues, the trial court was required by section 455.040.1 to issue a full order of protection on McAlister's behalf against Strohmeyer. Finding no error in the trial court's decision, we affirm.

Factual Background ¹

McAlister and Strohmeyer have never been married to one another, but they have one child together.² On January 13, 2012, McAlister and Strohmeyer agreed to meet at a restaurant for the purpose of giving Strohmeyer some time to visit with their child. When they met, McAlister informed Strohmeyer that she had plans that evening and that their child would be staying with Strohmeyer. Before that time, Strohmeyer had no plans of keeping their child that night. Although he initially resisted the idea, he eventually agreed, but he informed McAlister that he would need some time to prepare for the child's stay.

After leaving the restaurant, McAlister and Strohmeyer met at Strohmeyer's home. Strohmeyer took the child from McAlister on the curb outside his residence and advised McAlister that she was not welcome in his home and that she needed to leave. McAlister then followed Strohmeyer to his front door and remained outside while Strohmeyer put their child to bed. After putting the child in his room, Strohmeyer returned to the front door to make sure it was closed. When he saw McAlister still standing there, he tried to shut the door, but McAlister used her foot to prevent the door from shutting. Strohmeyer continued advising McAlister that she was not welcome at his home and that she needed to leave. Strohmeyer told McAlister that she was trespassing, and he picked up a phone, threatening to call the police. McAlister smacked the phone out of Strohmeyer's hand, causing the phone to stop working. While Strohmeyer was distracted with the phone, McAlister forced her way inside Strohmeyer's home, indicating that she wanted to say goodbye to their child. McAlister then went to their child's room, and Strohmeyer, “knowing that when [McAlister] gets into these moods she tends to get violent,” went to retrieve a handgun.

When McAlister emerged from their child's room, Strohmeyer was waiting outside the room, holding the handgun at his side “just in case.” The two continued to argue as McAlister headed toward the door to leave. While McAlister was walking out, Strohmeyer attempted to close the door, but McAlister again forced her way inside and began striking Strohmeyer, landing three direct hits to his genitals, as well as other blows to his stomach, arm, and leg. At that point, Strohmeyer pointed the weapon at McAlister and told her to “get out of [his] house.” Strohmeyer later testified that the only reason he did so was to stop McAlister's attack against him. McAlister acknowledged striking Strohmeyer and conceded that he did not point the weapon at her or use it in a threatening manner before her physical attack on him. McAlister then left the residence without further incident.

Nineteen days later, McAlister filed an Adult Abuse Petition for Order of Protection based upon Strohmeyer's act of pointing the handgun at her. McAlister did not seek an ex parte order of protection. On March 12, 2012, the court held a hearing to determine whether McAlister was entitled to a full order of protection against Strohmeyer. After hearing testimony from both McAlister and Strohmeyer, the court denied McAlister's petition. McAlister appeals.

Standard of Review

We will “affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Cuda v. Keller, 236 S.W.3d 87, 89 (Mo.App. W.D.2007) (quoting Suhr v. Okorn, 83 S.W.3d 119, 120 (Mo.App. W.D.2002)). When reviewing the record below, we are cognizant of, and defer to, “the trial court's superior ability to evaluate the issues by the testimony and demeanor of the witnesses.” Id.

Analysis

McAlister's sole claim on appeal is that the trial court misapplied the law when it denied her petition for a full order of protection. The crux of her argument is that, because the undisputed evidence demonstrated that Strohmeyer pointed a gun at her—an act she claims constitutes an attempt to place her in fear of physical harm as described in section 455.010—the trial court was required to grant her petition for a full order of protection. We disagree.

“Any adult who has been subject to domestic violence by a present or former family or household member ... may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such domestic violence ... by the respondent.” § 455.020.1. “Domestic violence” is defined as “abuse or stalking.” § 455.010(5). “Abuse” is defined as “the occurrence of any of the following acts, attempts or threats against a person who may be protected pursuant to this chapter ...”: assault, battery, coercion, harassment, sexual assault, or unlawful imprisonment. § 455.010(1)(a)–(f).

“Assault” is defined as “purposely or knowingly placing or attempting to place another in fear of physical harm....” § 455.010(1)(a). Here, McAlister argues that Strohmeyer's undisputed act of pointing a gun at her constituted the assault form of “abuse” under the Adult Abuse Act.³ McAlister then relies on the following language of section 455.040.1 to argue that, in light of the undisputed evidence of Strohmeyer's “assault,” the court was required to grant her a full order of protection: “At the hearing, if the petitioner has proved the allegation of abuse ... by a preponderance of the evidence, the court shall issue a full order of protection....” (emphasis added). Specifically, she argues that her actions before the alleged act of abuse should have been irrelevant to the court's determination. We disagree.

Although not raised by the parties, there are two issues we must address in order to resolve McAlister's claim: (1) identifying the elements a petitioner is required to prove under section 455.040.1 to obtain a full order of protection, and (2) what, if any, discretion a trial court has once a petitioner satisfies that burden of proof.

The statutory scheme of the Adult Abuse Act allows a petitioner to seek protection in three different, albeit related, forms: (1) an ex parte order of protection; (2) a full order of protection; or (3) renewal of a full order of protection. The relevant statutory language is as follows: “Upon the filing of a verified petition [for an order of protection] and for good cause shown in the petition, the court may immediately issue an ex parte order of protection. An immediate and present danger of abuse of the petitioner shall constitute good cause....” § 455.035 (emphasis added). “Not later than fifteen days after the filing of a petition ... a hearing shall be held.” § 455.040.1. “At the hearing, if the petitioner has proved the allegation of abuse ... by a preponderance of the evidence, the court shall issue a full order of protection for ... at least one hundred eighty days and not more than one year.” Id. (emphasis added). “Upon motion by the petitioner, and after a hearing by the court, the full order of protection may be renewed for ... at least one hundred eighty days and not more than one year from the expiration date of the originally issued full order of protection.” Id. (emphasis added). Further, “[t]he court may, upon finding that it is in the best interest of the parties, include a provision that any full order of protection for one year shall automatically renew” upon the expiration of the original full order of protection, unless a hearing is timely requested by the respondent. Id. (emphasis added). And, “[w]hen an automatic renewal is not authorized, upon motion by the petitioner, and after a hearing by the court, the second full order of protection may be renewed for an additional period of time ... [of] at least one hundred eighty days and not more than one year.” Id. (emphasis added).

The remedies afforded a petitioner under the Adult Abuse Act consist primarily of injunctions. See § 455.050.1. Injunctions are designed “to prohibit future damage.” Goerlitz v. City of Maryville, 333 S.W.3d 450, 455 (Mo. banc 2011); see also State ex rel. Williams v. Marsh, 626 S.W.2d 223, 231 (Mo. banc 1982) (indicating that the purpose of the Adult Abuse Act is to provide “a mechanism whereby the state can intervene when abuse of one adult by another household member occurs or is threatened and thus prevent further violence”). Ordinarily, to be entitled to injunctive relief, one must demonstrate “that irreparable harm will result if the injunction is not granted.” City of Kansas City v. New York–Kansas Bldg. Assoc., L.P., 96 S.W.3d 846, 855 (Mo.App. W.D.2002). Accordingly, section 455.035.1 requires a petitioner seeking an ex parte order of protection to demonstrate “[a]n immediate and present danger of abuse.” Section 455.040.1 has been interpreted to mean that, as with an ex parte order, when seeking a renewal of a full order of protection, the petitioner is again required to prove “by a preponderance of the...