Nenninger v. Smith

• Decision Date: 25 June 2013
• Docket Number: WD 75153.,Nos. WD 75152,s. WD 75152
• Parties: Pedro M. NENNINGER, Appellant, v. Jamie Lynne SMITH, Respondent.
• Court: Missouri Court of Appeals

400 S.W.3d 400

Pedro M. NENNINGER, Appellant,

v.Jamie Lynne SMITH, Respondent.

Nos. WD 75152, WD 75153.

Missouri Court of Appeals,

Western District.

March 19, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 30, 2013.

Application for Transfer Denied June 25, 2013.

Tony R. Nenninger, for appellant.

Douglas F. Pugh, Columbia, for respondent.

Before Division Three: CYNTHIA L. MARTIN, Presiding Judge, JOSEPH M. ELLIS, Judge and GARY D. WITT, Judge.

JOSEPH M. ELLIS, Judge.

Pedro Nenninger appeals from a judgment entered in the Circuit Court of Boone County issuing a full order of adult protection to Jamie Smith, granting Smith sole physical and legal custody of the child Nenninger had with Smith, and denying Nenninger's request for visitation with the child. Nenninger also challenges the circuit court's dismissal of his petition for an order of adult protection against Smith. For the following reasons, the judgment granting the order of protection to Smith is reversed, and the dismissal of Nenninger's petition is affirmed.

Nenninger and Smith were living together and involved in an intimate relationship when their child, C.N., was born on September 15, 2009. Eventually, after viewing what she believed to be manic behavior from Nenninger on August 14, 2010, Smith filed a petition for a full order of adult protection on August 19, 2010. That same day, prior to being served with that petition, Nenninger approached Smith and C.N. at a gathering of their friends at a park. When Smith refused to let him have contact with C.N., who she was holding in her arms, Nenninger sprayed Smith with mace, causing harm to both Smith and C.N.

Following that incident, a consent judgment granting Smith's requested full order of adult protection was issued on September 2, 2010. Nenninger subsequently entered a plea of guilty to one count of second degree domestic assault, § 565.073.1, and one count of first degree endangering the welfare of a child, § 568.045. He was sentenced to concurrent terms of five years imprisonment for those convictions.

In compliance with the order of adult protection, Nenninger had no contact with Smith or C.N. until after the order expired September 2, 2011. At that point, Nenninger began sending C.N. letters and attempting to make telephone contact with C.N. After repeatedly fielding phone calls from Nenninger and telling him that he could not talk to C.N., Smith had telephone calls from the Department of Corrections blocked from her telephone. Subsequently, on November 30, 2011, she filed a new petition for a full order of adult protection asking the circuit court to prohibit Nenninger from any attempt to communicate with herself or C.N. and to award her full custody of C.N. An ex parte order of protection was entered that day.

Nenninger filed an answer challenging Smith's petition and a counter-petition requesting visitation with C.N. He attached a proposed parenting plan to that pleading that would grant him visitation at least once a month and reasonable telephone and mail communication with C.N. Nenninger also filed a Petition for Order of Protection against Smith claiming that she had previously stabbed him once, attempted to stab him on two other occasions, and was harassing him by denying him contact with C.N. by phone or mail and alienating her affection for him. In that petition, he requested that the parties be granted joint legal custody and that he be awarded visitation once per month.

At a hearing on February 7, the court denied Nenninger's request to participate in the proceedings via videoconference and his alternative request for a continuance to allow his videoconference testimony at a later date. The circuit court dismissed Nenninger's petition for an adult protection order, noting that it was impossible for him to fear abuse by Smith while he was in the Missouri Department of Corrections. The court then heard Smith's evidence on her petition for an order of protection against Nenninger and, later that same day, entered a judgment granting Smith the requested order of protection. In that judgment, the court awarded sole physical and legal custody of C.N. to Smith and ordered Nenninger to have no contact with Smith or C.N., aside from allowing Nenninger to send one piece of mail to C.N. per month to be handled at Smith's discretion.

Nenninger brings six points on appeal. In his first point, Nenninger claims that the trial court erroneously declared that § 452.375.3 and § 452.400.1 precluded any grant of custody or visitation to him based upon his conviction of first degree endangerment of a child and improperly excluded evidence related to the custody of or visitation with C.N. based on that conclusion of law. In his second point, Nenninger contends that the trial court erred in refusing to accept evidence related to the possibility of having supervised visitation in the Department of Corrections. In his third point, Nenninger argues that the trial court erred in failing to make specific findings of fact and to include a parenting plan in its judgment as required by statute. In his fourth point, Nenninger claims that the trial court erred in refusing to grant his application for a writ of habeas corpus ad testificandum to allow him to participate and testify in the hearing via videoconference. In his fifth point, Nenninger asserts that the trial court erred in dismissing his petition for an order of adult protection because his petition sufficiently pleaded every element necessary for an order of adult protection. Finally, in his sixth point, Nenninger argues that the trial court erred in granting an order of protection to Smith because the record does not contain substantial evidence that he was stalking or abusing Smith through his letters and phone calls because his contact with her was for the legitimate purpose of maintaining contact with his child. He further claims that the pleadings and evidence establish that Smith could not have a reasonable fear of harm from him in light of his incarceration.

As in any court-tried case, our review of a judgment granting a full order of adult protection is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). A.S. v. Decker, 318 S.W.3d 751, 753 (Mo.App. W.D.2010) (internal quotation omitted). Accordingly, “[t]he trial court's judgment must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Skovira v. Talley, 369 S.W.3d 780, 781 (Mo.App. S.D.2012) (internal quotation omitted). “In reviewing the trial court's judgment, we consider the evidence in a light most favorable to the judgment and defer to the trial court's determination of credibility.” A.S., 318 S.W.3d at 753 (internal quotation omitted).

We begin with Nenninger's final point and consider whether substantial evidence was submitted that could support the full order of protection granted to Smith. “Because there is real harm that can result in abusing the Adult Abuse Act and its provisions, including the stigma that may attach to a respondent who is ultimately labeled a ‘stalker,’ trial courts must exercise great care to ensure that sufficient evidence exists to support all elements of the statute before entering a full order of protection.” Skovira, 369 S.W.3d at 781. “The Act is not, nor was it intended to be, a solution for minor arguments between adults.” Id.

“The Act states that ‘[a]ny 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 [the Act] by filing a verified petition alleging such abuse or stalking by the respondent.’ ” Cuda v. Keller, 236 S.W.3d 87, 90 (Mo.App. W.D.2007) (quoting § 455.020 ). “ ‘Abuse,’ for purposes of orders of protection, includes assault, battery, coercion, harassment, sexual assault, and unlawful imprisonment.” Martinelli v. Mitchell, 386 S.W.3d 148, 150 (Mo.App. S.D.2012) (citing § 455.010.1 ). Section 455.040 provides that “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.”

Having had a child together, Nenninger and Smith are deemed to be family members for purposes of the adult abuse act. § 455.010(5). Because they are family members, in order to obtain her initial full order of protection, Smith was only required to plead and prove that Nenninger subjected her to one or more instances of abuse. Cuda, 236 S.W.3d at 90–91. In order to have that order of protection renewed, however, Smith would have been required to prove by a preponderance of the evidence that the expiration of the full order would place her “in immediate and present danger of abuse.” Vinson v. Adams, 192 S.W.3d 492, 495 (Mo.App. E.D.2006); see also Capps v. Capps, 715 S.W.2d 547, 552 (Mo.App. E.D.1986).

While Smith's petition most certainly avers and the evidence establishes that Nenninger committed an act of battery against her by spraying her with mace, that was the evidentiary basis for her previous protective order, for which she did not seek renewal. It would be wholly illogical for Smith to be allowed to avoid the burden of proving an immediate and present danger of abuse, as required for the renewal of a full order of protection, by simply letting the initial full order of protection lapse and then filing a new motion for a full order of protection averring the same allegations of abuse that formed the basis for the initial order. Indeed, allowing such practice would improperly enable any petitioner who has previously been abused by a family or household member to obtain full orders of protection ad infinitem, whereas § 455.040.1 only authorizes a maximum of two renewals of a full order of protection. In short, to obtain a new order of protection, Smith was required...