R.K. v. Kelly
| Decision Date | 31 August 2021 |
| Docket Number | WD 84037 |
| Parties | R.K., Respondent, v. John M. KELLY, Appellant. |
| Court | Missouri Court of Appeals |
R.K., Braymer, MO, Respondent, pro se.
John M. Kelly, Braymer, MO, Appellant, pro se.
Before Division Two: Thomas N. Chapman, Presiding Judge, and Karen King Mitchell and W. Douglas Thomson, Judges
John Kelly appeals the entry of a full order of protection against him and in favor of R.K.1 Kelly raises four points on appeal. In his first point, he argues that the trial court erred in entering the order because R.K.’s petition was unverified. For his remaining points, Kelly argues that the court erred in entering the order based on a finding of stalking because there was insufficient evidence of the following elements:
subjective alarm (Point II), objective alarm (Point III), and an unwanted course of conduct (Point IV). Because there was insufficient evidence of an unwanted course of conduct that caused R.K. alarm, we reverse the judgment and remand the case to the trial court with instructions to vacate the order of protection and deny R.K.’s petition.
This case involves a long-standing dispute between Kelly and R.K. arising from Kelly's habit of letting his dogs defecate on purported public easements on properties owned or controlled by R.K. and Husband. On August 26, 2020, R.K. filed a petition for an order of protection against Kelly, claiming that he stalked her and caused, or attempted to cause, her physical harm. The petition, which bears R.K.’s typed signature, lists incidents occurring on April 22, 25, and 27 and August 21 and 22 and asserts that R.K. felt "unsafe" and "very threatened" by Kelly. The court issued an ex parte order of protection and scheduled a hearing on September 9, 2020.
At the hearing, Kelly and R.K. both appeared pro se. The record is less than clear, but it appears that R.K. and Husband owned two pieces of property—their residence and a piece of commercial property. There was evidence that Kelly had a history of allowing his dogs to defecate on the portion of his neighbors’ property that he believed was subject to public easement. R.K. testified that, on multiple occasions, Kelly came to her house and lingered in the public easement just to start trouble and "make [her] life a living hell." In April of 2020, R.K. recorded by video an oral confrontation between Kelly and a neighbor over Kelly's dogs defecating in the neighbor's yard. Husband testified that, later in April 2020, he was in the family residence watching television when he heard Kelly screaming outside, R.K. asked Kelly to stop coming onto the portion of her property subject to a public easement and letting his dogs defecate there; Kelly agreed and, according to R.K., Kelly did not return to R.K.’s residence.
On August 22, 2020, Kelly came down the road with his dogs and entered the purported public easement on the commercial property owned by R.K. and Husband. R.K. told Kelly to leave; he told her to suck his dick and called her a skanky bitch and other derogatory names. R.K. yelled at Kelly to leave her property. Kelly replied, "make me bitch," and then got in R.K.’s face and chest bumped her, knocking her back about two steps. R.K. shoved Kelly, who then left the property, walking down the street with his dogs.
Kelly testified that, on August 21, 2020, he noticed five vehicles shining their headlights at his house. When he went outside to investigate, Husband chest bumped Kelly and then struck him in the face twice.
Kelly also testified that Husband hit him five times during the August 22 incident. R.K. denied that Husband hit Kelly.
At the conclusion of the hearing, the court found there was sufficient evidence of stalking and issued a judgment granting a full order of protection against Kelly and in favor of R.K. Kelly timely appealed.
"In reviewing the trial court's grant or denial of full orders of protection [under the Missouri Adult Abuse Act, we] will sustain the judgment of the trial court unless there is no evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." L.M.M. v. J.L.G. , 619 S.W.3d 593, 596 (Mo. App. E.D. 2021). "Because the trial judge is in the best position to gauge the credibility of the witnesses, in cases under the Adult Abuse Act, the discretion of the trial court should not often be superseded." Id. (quoting K.M.C. v. M.W.M. , 518 S.W.3d 273, 276-77 (Mo. App. E.D. 2017) ). "Nevertheless, 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." Id. The Adult Abuse Act "is not, nor was it intended to be, ‘a solution for minor arguments between adults.’ " L.M.D. v. D.W.D. , 540 S.W.3d 472, 475 (Mo. App. W.D. 2018) (quoting Dennis v. Henley , 314 S.W.3d 786, 790 (Mo. App. S.D. 2010) ).
Kelly raises four points on appeal. In his first point, he argues that the court erred in entering the order of protection because R.K.’s petition was unverified. For his remaining points, Kelly argues that the court erred in entering the order because there was insufficient evidence of the following elements of stalking: subjective alarm (Point II), objective alarm (Point III), and an unwanted course of conduct (Point IV). R.K. did not file a brief.3
§ 455.010(14)(a)-(b). "Alarm has both a subjective and objective component, meaning that a person must subjectively fear the danger of physical harm and a reasonable person in the situation would likewise fear the danger of physical harm." L.M.M. , 619 S.W.3d at 596. "The petitioner has the burden of proof under the statute to establish the allegations by a preponderance of the evidence." Id. (citing § 455.040.1).
Kelly first argues that R.K. did not file a verified petition, as required by § 455.020.1 and Rule 55.03(a),5 because her petition bears only her typed signature and no verification certificate and, thus, she is not entitled to relief under the Adult Abuse Act. We disagree.
There is no indication in the record that Kelly called the verification issue to anyone's attention before or during the hearing. Instead, it appears that he raised the issue for the first time on appeal. Thus, by failing to object to the lack of verification earlier, Kelly waived any claim of error pertaining to that issue. "[I]ssues not presented to the trial court are waived for the purposes of appellate review." Jacoby v. Hamptons Cmty. Ass'n, Inc. , 602 S.W.3d 869, 873 (Mo. App. E.D. 2020).
Moreover, it is not clear from the legal file submitted by Kelly whether R.K.’s petition was electronically filed and, thus, whether the verification requirement was triggered. But assuming it was, the lack of verification does not render the judgment erroneous because "[t]he absence of verification is effectively cured by the judgment following the hearing." In re Estate of Basler v. Delassus , 690 S.W.2d 791, 795 (Mo. banc 1985) (evaluating a claim of error under the probate code based upon the lack of verification). Because the court entered its judgment granting the protective order after a hearing on the matter, the absence of a verification certificate on R.K.’s petition was cured.
Point I is denied.
For his remaining points, Kelly argues that the court erred in entering the order because there was insufficient evidence of the following elements of stalking: subjective alarm (Point II), objective alarm (Point III), and an unwanted course of conduct (Point IV).6 As the petitioner, R.K. bore the burden at trial of proving, by a preponderance of the evidence, that Kelly engaged in an unwanted course of conduct that caused her to subjectively fear physical harm and that a reasonable person in the same situation would likewise fear physical harm. Our review of the record reveals that R.K. failed to meet her burden.
R.K.’s petition alleges that she felt "unsafe" and "very threatened" by Kelly, but she offered no...
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