S.D. v. Wallace

• Decision Date: 27 March 2012
• Docket Number: No. SD 31296.,SD 31296.
• Citation: 364 S.W.3d 252
• Parties: S.D., Petitioner–Respondent, v. Melinda Gail “Mindy” WALLACE, Respondent–Appellant.
• Court: Missouri Court of Appeals

364 S.W.3d 252

S.D., Petitioner–Respondent,
v.
Melinda Gail “Mindy” WALLACE, Respondent–Appellant.

No. SD 31296.

Missouri Court of Appeals,
Southern District,
Division One.

March 27, 2012.

[364 S.W.3d 253]

James M. McClellan, Sikeston, MO, for Appellant.

Respondent, S.D., East Prairie, MO, acting pro se.

DON E. BURRELL, Presiding Judge.

Melinda Gail “Mindy” Wallace (“Appellant”) appeals the “Judgment Entry Full Order of Protection” (“the full order”) granted to S.D. (“Petitioner”) that ordered Appellant, among other things, not to abuse, stalk, or disturb the peace of Petitioner wherever Petitioner might be. See section 455.040. ¹

In a single point relied on, Appellant contends “the parties did not have a ‘family or household relationship’ ” ² and “Appellant's

[364 S.W.3d 254]

alleged conduct” did not constitute “stalking” as required by “the Adult Abuse Act.” ³ Because no substantial evidence supported the necessary element of stalking that Appellant's conduct would have caused a reasonable person in Petitioner's situation to fear physical harm, we reverse the judgment and remand the matter to the trial court to vacate the full order.

Applicable Principles of Review and Governing Law

“[T]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). “Substantial evidence is competent evidence from which the trier of fact could reasonably decide the case.” Wallace v. Van Pelt, 969 S.W.2d 380, 382 (Mo.App. W.D.1998).

Section 455.040.1 requires a petitioner seeking a full order of protection to “prove[ ] the allegation of abuse or stalking by a preponderance of the evidence.” “Stalking statutes should be construed narrowly enough to prevent serious abuse, but broadly enough to maximize victim protection.” Towell v. Steger, 154 S.W.3d 471, 476 (Mo.App. S.D.2005). Because harm can result from an abuse of the Adult Abuse Act, “trial courts must exercise great care to make certain that sufficient evidence exists to support all elements of the statute before entering a full order of protection.” ⁴Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo.App. E.D.2003).

Facts and Procedural Background

Petitioner filed her “Adult Abuse/Stalking Petition for Order of Protection” on

[364 S.W.3d 255]

March 8, 2011. As is common for such petitions, it was completed using a pre-printed form that contained various boxes that could be checked or left blank and sections that called for handwritten text. By checking the applicable box, Petitioner averred that she and Appellant “have no relationship other than Respondent has stalked [Petitioner].” A handwritten portion of the petition identified Appellant as “the mother of [K.W.] in [sic] which I have filed charges on for harassment.” Petitioner alleged that the last act of stalking occurred on March 3, 2011. Petitioner alleged she was “afraid of [Appellant], and there is an immediate and present danger of abuse or stalking of me because: [ ] [s]he is upset at me because of her daughter. She is constantly stalking me with her car.” (Underlining used to indicate the hand-written portion of the averment.) The box preceding the statement “placed or attempted to place me in apprehension of immediate physical harm” was not checked by Petitioner. Based on the contents of the petition, the trial court entered an ex parte order of protection on March 8, 2011, and it set the matter for trial.

Petitioner's request for a full order of protection was tried to the court on March 22, 2011. The evidence adduced at trial is summarized here in the light most favorable to the judgment. See H.K.R., 295 S.W.3d at 221. Petitioner testified that Appellant was “the parent of one of [Petitioner's] old friends.” When asked by the trial court what prompted Petitioner to seek an order of protection, she replied, “Well, there are many instances where I feel that I've needed protection against her. Not only does she drive her car around town and stare at me out her windows and not necessarily follow, but she makes—makes it known that she's there.” Petitioner further testified that Appellant would roll down her car window and “turn her head” and that these actions intimidated Petitioner and made her “feel scared.” When asked how many times this had occurred, Petitioner replied, “Many. It's not—It hasn't just been me by myself. If I've been with my friends, just anything. Anytime she's been in town. So multiple times.” On cross-examination, Petitioner indicated that similar incidents had also happened on Saturday nights as many as “20, 30” times.

Petitioner specifically recalled one incident that occurred around 9:00 p.m. on a school night and another incident that occurred on a Saturday night when she was riding in a car late at night with friends. During this particular Saturday night incident, Appellant's car approached a stop sign as a car Petitioner was riding in also approached. Petitioner related that Appellant “sat on her side of the stop sign and just glared like we were the most disgusting things she's ever seen.” Petitioner also recalled an instance that happened at a “home football game.” Petitioner saw Appellant and felt uncomfortable because Appellant stared at her, whispered about her, and giggled at her.

Petitioner testified that she had “a longtime dispute” with Appellant's daughter, K.W. Both Petitioner and K.W. were students at the same high school. Petitioner said that K.W. shoved her in the hallways and screamed at her in the cafeteria. Petitioner said her problems with Appellant started “[w]henever [Appellant's] daughter stopped being [Petitioner's] friend.”

On cross-examination, Petitioner was asked to clarify a reference to Appellant “drop[ping] her daughter off to fight girls[,]” and the following exchange ensued:

[Petitioner]: At the beginning of, I think it was this school year, she—[K.W.] had called my friend [ ] and said,

[364 S.W.3d 256]

“Why do you keep staring at me in the hallways? I'm coming over. We're taking care of this.” [Appellant] brought her to [the friend's] house. [K.W.] had every intention of fighting [the friend] that day, jumping in her face, telling she wasn't going to do anything—

[Appellant's counsel]: Were you there at that incident?

[Petitioner's mother]: Uh-huh.

[Petitioner]: Yes, sir, I was there.

Petitioner further testified that K.W. and the friend fought, and the friend struck K.W.

The trial court took the case under advisement and entered the full order two days later, finding “pursuant to [s]ection 455.040 RSMo that [Petitioner] ha[d] proved the allegations of abuse or stalking.” The term of the full order was for one year—a term that could be extended upon application and hearing. This appeal timely followed the trial court's denial...