Suhr v. Okorn, WD 60515.

• Decision Date: 30 August 2002
• Docket Number: No. WD 60515.,WD 60515.
• Citation: 83 S.W.3d 119
• Parties: Meredith SUHR, Respondent, v. Ash OKORN, Appellant.
• Court: Missouri Court of Appeals

Page 119

83 S.W.3d 119

Meredith SUHR, Respondent, v. Ash OKORN, Appellant.

No. WD 60515.

Missouri Court of Appeals, Western District.

August 30, 2002.

Meredith Suhr, Kingston, pro se.

Scott C. Hamilton, Lexington, for Appellant.

Before: BRECKENRIDGE, P.J., and HOWARD and HOLLIGER, JJ.

VICTOR C. HOWARD, Judge.

Ash Okorn appeals from the trial court's judgment granting a full order of protection to petitioner/respondent, Meredith Suhr, pursuant to § 455.040 RSMo 2000. He alleges in his sole point on appeal that there was no credible evidence presented to support the trial court's finding that allegations of abuse or stalking were proven by a preponderance of the evidence pursuant to § 455.040.

We hold that the evidence was insufficient to support the trial court's finding that Ms. Suhr was entitled to an order of protection against Mr. Okorn. Thus, we reverse and remand to the trial court with directions to vacate the full order of protection entered against Mr. Okorn.

Background

The parties were previously married and have two children, Ashley and Austin, ages nine and ten, respectively, at the time of the proceedings at issue. They divorced on October 31, 1994.

On August 20, 2001, Ms. Suhr filed an "Adult Abuse/Stalking Petition for Order of Protection"¹ in the Circuit Court of Caldwell County, Missouri, naming Mr. Okorn as respondent. In her petition, which was a "fill-in-the-blank" form, Ms. Suhr alleged that Mr. Okorn had knowingly and intentionally "stalked [her]," "harassed [her]" and "placed or attempted to place [her] in apprehension of immediate physical harm" by "driving past [her] home" on August 19, 2001, and by making "strange calls," the most recent of which was on August 8, 2001.

Judge Chadwick entered an "Adult Abuse/Stalking Ex Parte Order of Protection"² on August 20, 2001, and set an August 30, 2001, hearing date on the petition. This order was served upon Mr. Okorn on August 24, 2001.

On August 29, 2001, attorney Scott Hamilton entered his appearance on behalf of Mr. Okorn. At Mr. Hamilton's request, the ex parte order was extended and the cause continued to September 12, 2001.

On September 12, 2001, Judge Chadwick heard evidence on the petition from Ms. Suhr, her current husband, Mr. Okorn, and Mr. Okorn's current wife. Further details of their testimony are set forth below in our discussion of the issue on appeal. At the close of the hearing, the court found that Ms. Suhr had proven her allegations of abuse under § 455.040 and entered an "Adult Abuse/Stalking Judgment/Full Order of Protection" against Mr. Okorn. The court made no further evidentiary findings. The court ordered Mr. Okorn not to "abuse, threaten to abuse, molest, stalk or disturb the peace of [Ms. Suhr, not to] communicate with [her] in any manner or through any medium[, and not to] enter or stay upon the premises of wherever [she] may reside." The order was made effective until September 11, 2002, unless sooner terminated or extended.

This appeal follows.³

Discussion

Mr. Okorn challenges the sufficiency of the evidence to sustain the trial court's entry of a full order of protection. Ms. Suhr did not file a Respondent's brief. Pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), we must affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. We review the content of the record below in order to determine the sufficiency of the evidence, keeping in mind the trial court's superior ability to evaluate the issues by the testimony and demeanor of the witnesses. Wallace v. Van Pelt, 969 S.W.2d 380, 383 (Mo.App. W.D.1998).

Section 455.020.1 of Missouri's Adult Abuse Act states that "[a]ny adult who has been subject to abuse by a present or former adult family or household member, or who has been the victim of stalking, may seek relief under sections 455.010 to 455.085 by filing a verified petition alleging such abuse or stalking by the respondent." As explained in our discussion of this case's background, Ms. Suhr filed a petition pursuant to this section, alleging that she "[had] been getting strange calls" and "[had] possibly sighted Mr. Okorn driving by [her] house late at night at least once."

At the September 12, 2001, hearing on Ms. Suhr's petition, Ms. Suhr, to be entitled to a full order of protection, bore the burden of proving her allegations of abuse or stalking by a preponderance of the evidence. § 455.040.1. "`Preponderance of the evidence' is defined as that degree of evidence that `is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows the fact to be proved to be more probable than not.'" State Bd. of Nursing v. Berry, 32 S.W.3d 638, 642 (Mo.App. W.D.2000) (quoting Vaught v. Vaughts, Inc./S. Mo. Constr., 938 S.W.2d 931, 941 (Mo.App. S.D. 1997)). Mr. Okorn maintains that Ms. Suhr did not meet this burden with regard to her allegations against him because she did not prove that he had made the phone calls or that he was the individual driving past her house.

"Stalking" is defined for purposes of the Act at § 455.010(10) as follows:

"Stalking" is when an adult purposely and repeatedly harasses or follows with the intent of harassing another adult. As used in this subdivision, "harasses" means to engage in a course of conduct directed at a specific adult that serves no legitimate purpose, that would cause a reasonable adult to suffer substantial emotional distress. As used in this subdivision, "course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct."

Mr. Okorn argues that the evidence was insufficient to show he engaged in any conduct that met the definition of "stalking" found in the statute. We agree.

Ms. Suhr appeared pro se at the hearing on her petition, so the trial court directly questioned her concerning her allegations in the petition. The evidence is somewhat fragmented and difficult to follow, especially as to the specific dates of when the alleged incidents occurred.

Ms. Suhr provided to the court some historical information about her relationship with Mr. Okorn, which, while relevant, is not part of the course of conduct she alleged in her petition. Ms. Suhr testified that she was married to Mr. Okorn until October 31, 1994, and that he had been physically abusive toward her during their marriage. Ms. Suhr also testified that Mr. Okorn had called her at work with comments to "belittle" and "harass" her. After they divorced, Mr. Okorn received custody of their children, but she explained that about a year before the current proceedings DFS had taken the children away from him because of physical abuse allegations. She explained that after DFS placed the children with her, Mr. Okorn and his father continuously called their home insisting to speak to the children, but she told him that any communications should go through DFS.

With regard to the allegations of harassment complained of in the petition, we first consider the phone calls allegedly made by Mr. Okorn. She explained that about a week before the custody modification proceedings began,⁴ she "started receiving strange calls [at home] where [she] would answer the phone and there was nobody there." If she gave someone else such as her husband the phone, the caller would hang up. She said that she was receiving these calls as often as twice a day. She claimed that she was "a little bit" concerned about the calls, but her husband, who "has been a police officer for years," was not concerned. Ms. Suhr told the court that after she was given "full custody" of the children, she received more calls, but they were "more sporadic, just here and there." Her husband told her it "might be somebody playing a prank, so [she] didn't really act upon that." On cross-examination, Ms. Suhr admitted that she did not have any proof, "just fear," that the "strange" phone calls came from Mr. Okorn. She admitted that the last time Mr. Okorn had physically harmed her was seven years ago, when they were still married, and he had never threatened to kill her.

The court also questioned Russell Suhr, Ms. Suhr's current husband. With regard to the phone call allegation, Mr. Suhr testified that when DFS placed the children in the Suhr home, both Mr. Okorn and Mr. Okorn's father had called Mr. Suhr at work wanting to see or talk to the kids, but the calls had not included any threats. Mr. Suhr also confirmed that they had received calls at home around the time of the custody dispute, but he did not know who had made the calls. He explained that they had their phone placed out of service "when the different things began to unfold."

With regard to Ms. Suhr's allegations that she had seen Mr. Okorn driving by her house in his truck late at night, Ms. Suhr explained to the court as follows: She and her husband were on their patio grilling with a friend at around 9:30 p.m. when "[they] saw a truck that [was] identical to the one [they'd] seen [her] ex-husband drive" driving past their house on their gravel road. She said the truck pulled into their next-door neighbors' driveway, with its lights off, and "slowly proceeded back up the road, lights off, [past the house] until they hit about where [Ms. Suhr's] yard meets ... the neighbor's property." She explained that once the truck passed their house, it turned on its lights, sped up and "drove away...