Parkhurst v. Parkhurst, 57529

• Decision Date: 07 August 1990
• Docket Number: No. 57529,57529
• Parties: M. Louise PARKHURST, Respondent, v. Raymond G. PARKHURST, Appellant.
• Court: Missouri Court of Appeals

Page 634

793 S.W.2d 634

M. Louise PARKHURST, Respondent, v. Raymond G. PARKHURST, Appellant.

No. 57529.

Missouri Court of Appeals,

Eastern District,

Division One.

Aug. 7, 1990.

Benjamin Frederick Lewis, Cape Girardeau, for appellant.

Edward L. Downs, Cape Girardeau, for respondent.

GARY M. GAERTNER, Presiding Judge.

This is an appeal from an order of the Circuit Court of Cape Girardeau, Missouri, which granted respondent's, M. Louise Parkhurst's, petition for a full order of protection pursuant to RSMo sections 455.010-455.085 (1986). Respondent, in this unusual case, has not provided this court with a brief. We affirm.

Appellant, Raymond G. Parkhurst, and respondent were 75 years of age and 62 years of age respectively at the time of the hearing below. They were married on March 12, 1972. On August 25, 1989, the respondent filed a petition for dissolution of marriage and a petition for an order of protection pursuant to RSMo sections 455.010-455.085, the Adult Abuse Act. The trial court issued an ex parte order of protection prohibiting appellant from abusing or threatening the respondent and prohibiting him from entering respondent's dwelling, formerly the marital home of the parties. A hearing on respondent's entitlement to a full order of protection was scheduled for September 6, 1989.

After a change of judge, a hearing was held on September 14, 1989. Upon hearing the parties' testimony, the court entered a full order of protection which extended for 180 days. The order extended the ex parte prohibitions and also divided certain personal property between the parties, restricted appellant from transferring or encumbering the parties' property, required appellant to pay certain bills, and awarded respondent attorney's fees and costs. RSMo sections 455.040 and 455.050. Appellant appeals from this order. Appellant argues that the ex parte petition did not state grounds entitling respondent to a temporary order of protection and that the evidence adduced at the hearing was insufficient to sustain the full order of protection.

Our review of the court's order is limited by the oft cited maxims of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); the order will be sustained unless no substantial evidence supports it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.

Appellant's first claim is that respondent's petition did not plead facts entitling her to relief. Missouri Revised Statutes section 455.035 states, in part, that: "Upon the filing of a verified petition under sections 455.010 to 455.085 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 to the petitioner shall constitute good cause for purposes of this section." Therefore, in order to be entitled to such an order, respondent must allege that an immediate and present danger of abuse exists. Id.; Bandelier v. Bandelier, 757 S.W.2d 281, 283 (Mo.App., W.D.1988).

In pertinent part, respondent's petition alleges as follows: "March 31, 1989, physical abuse, he knocked her down bruised her back, kicked her. There has been this kind of abuse in the past. She is afraid of him under certain conditions. She is filing for divorce and is afraid of what he might do." We note that when we are asked to review the sufficiency of a petition after a decision has been rendered, the petition is given its broadest intendment and it is liberally construed on the side of the pleader. Stites v. Ray, 781 S.W.2d 165, 166 (Mo.App., E.D.1989).

The instant petition cites an incident of violence inflicted upon respondent by appellant and also indicates incidents of prior abuse by appellant. The Supreme Court of Missouri has stated that the specific purpose behind the legislative enactment of the Adult Abuse Act was to allow state intervention "when abuse of one adult by another household member occurs or is threatened and thus prevent further violence." State ex rel. Williams v. Marsh, 626 S.W.2d 223, 231 (Mo. banc 1982) (emphasis added). Respondent's petition, while it should not be used as a model for future petitions, sufficiently averred that violence had occurred and that respondent was in immediate fear of another incident. We believe this to be sufficient under RSMo sections 455.010 to 455.085.

The question of the sufficiency of the evidence to sustain the entry of a full order of protection is a more difficult one. According to the testimony, the parties' marriage had been marred by many fights, mainly regarding money and food. Respondent testified that during one episode, each party threw a glass at the other; respondent's toss hit its mark and appellant required stitches to his face as a result. On March 29, 1989, ¹ respondent was cooking a chicken dinner when the appellant complained that she was overcooking the meal. This dispute led to a fight in which respondent was pushed to the floor and kicked by appellant. Respondent claims to have missed two days of work due to the bruises on her face and back. Appellant denied that he knocked her down and kicked her, but claimed that she was preparing to stab him with a knife after an argument over money. Appellant claims he slapped her, giving her a black (or pink) eye.

Sometime in June, respondent testified that she and appellant argued about the payment of her hospital bills (unrelated to any incident of abuse) and appellant threatened to "knock [her] teeth down [her] throat." Appellant denied this incident occurred. According to respondent, such threats were relatively common. However, respondent admitted that no incident of physical violence or threats of violence occurred after this incident in June.

On August 25, 1989, respondent filed for dissolution of marriage. Along...