Perren v. Perren, SD 33817

• Court: Court of Appeal of Missouri (US)
• Citation: 475 S.W.3d 741
• Docket Number: No. SD 33817,SD 33817
• Parties: Steven E. Perren, Petitioner–Respondent, v. Daniel A. Perren, Respondent–Appellant.
• Decision Date: 11 December 2015

475 S.W.3d 741

Steven E. Perren, Petitioner–Respondent,
v.
Daniel A. Perren, Respondent–Appellant.

No. SD 33817

Missouri Court of Appeals, Southern District, Division Two .

Filed: Dec. 11, 2015

Steven A. Waterkotte, St. Louis, MO, for Appellant.

Jonathan T. Sternberg, Kansas City, MO, for Respondent.

DON E. BURRELL, P.J.

Appellant Daniel A. Perren and Respondent Steven E. Perren are brothers.¹ The two have a "strained" relationship, and there have been "all kinds of ex partes and fights and quarrels between" them.² One of those fights resulted in a bench trial on Steven's petition for an order of protection. The trial court found that Steven had "proven allegations of domestic violence and/or stalking against" Daniel, and it entered a full order of protection that ordered Daniel not to communicate with Steven and "not [to] commit or threaten to commit domestic violence, molest, stalk, or disturb the peace" of Steven for one year. See section 455.050.1.³

Daniel now appeals that order, claiming in a single point relied on that the "evidence was insufficient to enter the full order of protection, in that [Daniel]'s use of physical force in defense of his property was justified under [section] 563.041.1 RSMO and this justification constituted an absolute defense[.]" Because the trial court was not required to believe the evidence supporting Daniel's claim that he was justified in assaulting Steven, we affirm.⁴

"Because there is real harm that can result in abusing the Adult Abuse Act

475 S.W.3d 743

and its provisions [...] 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." McGrath v. Bowen, 192 S.W.3d 515, 517 (Mo.App.2006) ; see Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo.App.2003) ; Glover v. Michaud, 222 S.W.3d 347, 351–52 (Mo.App.2007). The Act is not, nor was it intended to be, "a solution for minor arguments between adults." Binggeli v. Hammond, 300 S.W.3d 621, 624 (Mo.App.2010).

Nevertheless, we presume the trial court's judgment is correct, and [the appellant] bears the burden of proving it erroneous. Surrey Condominium Ass'n, Inc. v. Webb, 163 S.W.3d 531, 535 (Mo.App.2005). Appellate review in this court-tried case is governed by Rule 84.13(d). Dennis v. Henley, 314 S.W.3d 786, 787 (Mo.App.2010). "The 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." Id. ; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

On appeal, this Court views all facts and inferences in a light most favorable to the judgment. C.B. v. J.B., 356 S.W.3d 790, 793 (Mo.App.2011) ; Vinson v. Adams, 188 S.W.3d 461, 464 (Mo.App.2006). "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.1990) ; C.B., 356 S.W.3d at 792–93. We therefore defer to the trial court's credibility determinations. C.B., 356 S.W.3d at 793 ; Vinson, 188 S.W.3d at 464.

Skovira v. Talley, 369 S.W.3d 780, 781–82 (Mo.App.S.D.2012).

As earlier noted, Daniel concedes that his assault of Steven would constitute adult abuse supporting a full order of protection in the absence of proof of his affirmative defense of justification, and he argues that such proof included Steven's own testimony. In making this argument, Daniel overlooks the fact that "[t]he party asserting an affirmative defense bears the burden of proof." Kansas City Power & Light Co. v. Bibb & Assocs., Inc., 197 S.W.3d 147, 156...