Skovira v. Talley

• Citation: 369 S.W.3d 780
• Decision Date: 15 June 2012
• Docket Number: No. SD 31629.,SD 31629.
• Parties: Anna M. SKOVIRA, Petitioner–Respondent, v. Donnie TALLEY, Respondent–Appellant.
• Court: Court of Appeal of Missouri (US)

369 S.W.3d 780

Anna M. SKOVIRA, Petitioner–Respondent,

v.Donnie TALLEY, Respondent–Appellant.

No. SD 31629.

Missouri Court of Appeals,

Southern District,

Division Two.

June 15, 2012.

Appellant Acting pro se.

Respondent Acting pro se.

JEFFREY W. BATES, J.

Donnie Talley (Talley) appeals from a judgment granting Anna Skovira (Skovira) a full order of protection pursuant to the Adult Abuse Act (the Act) after a bench trial. See§§ 455.010–.090.¹ The trial court found that Talley was stalking Skovira and granted a full order of protection. On appeal, Talley contends there was insufficient evidence to support the court's finding. We disagree and affirm.²

I. Standard of Review

“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.” 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 Talley 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.

II. Factual and Procedural Background

In July 2011, Skovira filed a verified petition requesting an order of protection.³ The petition alleged, inter alia, that she was being stalked by Talley. An ex parte order of protection was issued that same day. Thereafter, Talley filed a motion to dismiss and an alternative motion to make the allegations of the petition more definite and certain. The trial court denied the motion to dismiss, but it granted the motion for a more definite statement and allowed Skovira to amend her petition to add the dates, places and details that she could remember. Skovira then filed an amended verified petition that included an attached two-and-a-half page narrative containing the dates, times and places that Talley's actions against Skovira had occurred. The hearing on the full order of protection was held in September 2011. Viewed most favorably to the judgment, the testimony and evidence presented at trial reveal the following facts.

Skovira and Talley are both soldiers who worked in the same warehouse at Fort Leonard Wood. Skovira arrived on base in early July 2010 and lived in the barracks in single-soldier housing. Talley was a much older married man in his 50's, who lived off post. When Skovira first arrived, Talley began calling and texting Skovira after work and on weekends to ask her out. When she would say no, he would “constantly beg.” On July 16, 2010, Skovira's platoon sergeant held a counseling session with Talley to tell him to stop calling and texting. Instead of ceasing that conduct, Talley not only continued to call and text, but began driving by Skovira's barracks. On July 26, 2010, the platoon sergeant again “issued a negative counseling to Talley ... for driving past [Skovira's] barracks up and down the street and the excessive calling and texting.” ⁴ At work, Talley would try to talk to Skovira whenever possible. He would stare at Skovira, eye her up and down, lick his lips, groan and say sexual comments like “mmmm” and “okay Sko I see you.”

On September 8, 2010, Talley texted Skovira messages telling her that he was crazy about her and decided to file his divorce paperwork so that they could be together. Skovira forwarded the messages to her platoon sergeant, who “issued him another counseling,” this time “a negative counseling on disobeying a direct order” stating that Talley's conduct was “inappropriate” and “unbecoming of a soldier.” The next day, Skovira submitted a written statement stating she had been harassed by Talley since she arrived in early July. On September 23, 2010, the company commander issued a no-contact order, restraining Talley from initiating any contact or communication with Skovira and requiring that he stay at least 100 feet away from her.

During the holidays, Skovira caught Talley snapping photos of her, which made her feel very uncomfortable. On April 18, 2011, Skovira received a text from Talley saying “I will be able to give you a date on the 5th of May.” When asked to explain, Talley said “we are getting married remember?” In no uncertain terms, Skovira clarified that they were definitely not getting married and to leave her alone. Later in April, Skovira's roommate came home with a wedding ring Talley had given the roommate to give to Skovira, explaining that Skovira had asked for it. On May 25, 2011, Talley was issued a second no-contact order, again stating that he was not to have any contact with Skovira and to stay at least 100 feet away from her.

In early June, after finalizing his divorce, Talley moved into the barracks right next door to Skovira in direct violation of the no-contact orders. She reported Talley to her platoon sergeant, who made sure housing was aware of the no-contact orders to prevent Talley from moving into the next-door barracks. On June 31, 2011, Talley showed up at the house of Skovira's friend. The friend had no idea how Talley knew how to get to his house, except to follow the friend there. Talley told the friend that Talley and Skovira were getting married in November, and asked the friend to call Skovira from the friend's phone to finalize the marriage. Talley explained that he could not call or text her because he was not permitted to do so. Although the friend called, Skovira did not answer, and the friend thought she was probably sleeping. Talley didn't think so and explained that Skovira was not home “because [he'd] been driving by her house.” When Skovira discovered the missed call, she called her friend. After learning what happened, Skovira reported the incident to her commander.

On July 5, 2011, a third no-contact order was issued, which also put a “watch” on Talley. He was to be escorted wherever he went, his car was taken from him and he was to “sleep up at the battalion where he could be watched by staff duty all night long.” Because the military protection orders had been broken in the past, however, and Talley's conduct was escalating, Skovira decided to seek a civil protection order.

That same day, Skovira filed her original petition for an order of protection, alleging that Talley stalked her, harassed her and followed her from place to place. In her petition, Skovira briefly summarized Talley's actions described above and stated that “Talley has been continuous with his actions pursuing me for 1 year now. After some of the things he's done this man is obviously deranged! I honestly don't know what he will do next and me living by myself with no family here for protection, I am scared of him coming around.” Along with her petition, she also filed a police report. The ex parte order of protection was issued later that day.

Following the grant of Talley's motion for a more definite statement, Skovira filed her amended petition. Therein, Skovira stated that “I do not feel safe anymore knowing I am in the area of this individual. He's just progressing with everything he's done and I'm scared to even think about what's next.” Skovira then again summarized Talley's acts against her, describing his actions as “sexual stares, gestures, driving up and down my street, phone calls, texts, third party messages, wedding dates, wedding ring, breaking military protection orders.” In support of these allegations,Skovira attached the narrative detailing Talley's actions.

At trial, the judge initially stated that he had read Skovira's petition and asked her to “tell me in your own words what Mr. Talley has done that led to you filing this order of protection, why you're worried about him, apprehensive and so on.” Skovira then testified as to Talley's advances and unrelenting conduct in pursuing her over the past year. She referred to Talley's calls, texts, driving by her barracks, setting wedding dates, giving her a wedding ring and attempting to move in next door. She further reported Talley's behavior had not stopped. She testified that she only recently learned that about a month before trial, Talley again tried to move in next door to her, but this time, housing was aware of the no-contact orders and thwarted Talley's efforts to move. During cross-examination, Talley asked the court to review the allegations in Skovira's verified petition. Talley then questioned Skovira about some of the allegations in those documents. The trial court expressly found Skovira credible and that Talley had been stalking her. The court granted a full...