A.O. v. V.O.

• Decision Date: 11 February 2020
• Docket Number: No. ED 107707,ED 107707
• Parties: A.O., Respondent, v. V.O., Appellant.
• Court: Missouri Court of Appeals

593 S.W.3d 130

A.O., Respondent,

v.V.O., Appellant.

No. ED 107707

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: February 11, 2020

FOR APPELLANT, Richard J. Magee, The Magee Law Firm, LLC, 200 South Hanley Road, Suite 500, Clayton, Missouri 63105.

FOR RESPONDENT, Allison S. Lee, Alan E. Freed, Paule, Camazine & Blumenthal, P.C., 165 North Meramec, Suite 110, Clayton, Missouri 63105.

Philip M. Hess, Presiding Judge

Introduction

V.O. ("Father") appeals the trial court’s judgment of full order of protection entered against him under the Adult Abuse Act, section 455.010 et seq.,¹ claiming the trial court’s finding he engaged in stalking against A.O. ("Mother") was not supported by substantial evidence. The trial court’s judgment found Mother "prove[d] allegations of domestic violence, stalking, and/or sexual assault against [Father] and [Father] c[ould not] show that his ... actions alleged to constitute abuse were otherwise justified under the law." (emphasis added). Proof of any one of these bases would be sufficient to uphold the trial court’s judgment. Because there was substantial evidence Father harassed Mother and, therefore, committed an act of domestic violence, Father’s claim is without merit. The trial court’s judgment is affirmed.

Factual and Procedural Background²

Viewed in the light most favorable to the judgment,³ the evidence is as follows. Father and Mother are former spouses with two children ("Children") together and separated after ten years of marriage. Mother filed for divorce on July 5, 2016. The trial court entered a Judgment of Dissolution of Marriage ("Judgment") on August 8, 2016, awarding Father and Mother joint legal and physical custody of Children. Then, Father and Mother stipulated the Judgment should be modified because Mother’s work schedule made it difficult for exchanges of Children to occur regularly. The trial court entered the first modification of the Judgment ("First Modified Judgment") on February 21, 2017. The First Modified Judgment provided Father would maintain legal custody of Children but would only have physical custody of Children every Wednesday from 3:00 p.m. to 7:30 p.m., when Mother is working a 24-hour shift beginning at 7:30 a.m., and every other weekend.

A few months after the trial court’s entry of the First Modified Judgment, Mother sought a second modification of the Judgment, alleging "[Father]’s behavior ha[d] become more erratic and volatile." She alleged Father threatened to keep Children from her and physically restrained Children from going to her home. She alleged Father grabbed one of the Children by the arm, causing arm bruising and soreness. She alleged, after this incident, Children’s Division investigated Father. She also alleged "[Father] seem[ed] incapable of controlling his temper and/or his anger toward [her] and [wa]s taking his emotions out physically on ... [C]hildren." She also sought a temporary restraining order against Father, which the trial court granted.

The trial court entered the second modification of the Judgment ("Second Modified Judgment") on April 4, 2018. The Second Modified Judgment awarded Mother sole legal and physical custody of Children and awarded Father unsupervised visitation. The Second Modified Judgment provided Father could talk to Children by phone or FaceTime twice per week and attend Children’s activities. The Second Modified Judgment provided Father must remain at least 100 feet from Mother and consult with Dr. Rick Scott, a therapist, at least twice per month.

One month after the trial court’s entry of the Second Modified Judgment, Mother sought a third modification of the Judgment, alleging Father engaged in "blatant" and "repeated violations" of the Second Modified Judgment, including initiating inappropriate communication with Mother and Children, coming within 100 feet of Mother at Children’s activities, and failing to consult with Dr. Scott at least twice per month. The trial court entered the third modification of the Judgment on July 2, 2018 ("Third Modified Judgment"). The Third Modified Judgment provided Father’s visitation with Children must be supervised. The Third Modified Judgment provided "unsupervised contact by Father with the children is not in the children’s best interest ... because of the findings by Dr. Scott with regard to Father."⁴

The Third Modified Judgment provided Father’s supervised visitation with Children would occur on Sundays at a location arranged by a supervisor. The Third Modified Judgment provided, "[Father] shall not attempt to contact the children in any manner" except during his supervised visits on Sundays. The Third Modified Judgment prohibited Father from requesting or receiving any information from Children’s school. In addition, the Third Modified Judgment provided:

1) FATHER SHALL NOT ATTEND ANY OF [CHILDREN'S] ACTIVITIES NOR SHALL HE GO THE CHILDREN'S SCHOOL.

2) IF FATHER MISSES A VISIT WITH [CHILDREN] BECAUSE OF HIS INABILITY TO ATTEND THE VISIT, SUCH VISIT SHALL NOT BE MADE UP.

...

4) FATHER SHALL NOT LIVE WITHIN 1 MILE OF MOTHER.

On January 15, 2019, Mother filed her petition ("Petition") in the St. Louis County Circuit Court, seeking a full order of protection against Father. Mother’s Petition alleged Father followed her in his car to several prohibited locations on these occasions:

• Wednesday, August 22, 2018: Father followed Mother in his car as she dropped Children off at school in the morning.

• Wednesday, September 5, 2018: Father drove by Children’s school in his car twice when she picked up Children from school in the afternoon.

• Tuesday, November 27, 2018: Father drove into Mother’s subdivision, stopped at the stop sign, "waited for an unusual amount of time," and remained at the stop sign as she pulled her car into her driveway.

• Wednesday, November 28, 2018: After Mother dropped Children off at school in the morning, Father turned onto the road outside the school in his car and "dramatically wave[d]" to Mother.

• Thursday, November 29, 2018: Father drove his car in Mother’s subdivision in the morning as Mother got in her car to drive Children to school.

• Friday, December 7, 2018: Mother took Children to flag football practice from 5:00-6:00 p.m. When Mother arrived with Children, Father’s car was parked in a lot near the entrance. He sat in his car.

• Friday, January 4, 2019: Mother took Children to flag football practice from 5:00-6:00 p.m. When Mother arrived with Children, Father’s car was parked in a lot near the entrance.

• Saturday, January 5, 2019: At approximately "4:20 p.m.," Father drove by Mother’s home and honked his horn at her and Children.

• Monday, January 14, 2019: Father followed Mother in his car as she dropped Children off at school in the morning. Father appeared in his car at Children’s school as Mother was picking Children up from an after-school activity in the afternoon, rolled his window down, and waved to her and Children.

Mother’s Petition alleged she feared Father and felt there was an immediate and present danger of domestic violence to her because "his behavior [wa]s becoming more erratic and escalating." Mother attached the Third Modified Judgment to her Petition.

The trial court held a hearing on Mother’s Petition on February 11, 2019. Mother testified she was asking the trial court for an order of protection because Father was "following [her] and harassing [her]." She testified Father was "following [her] places where he’s not supposed to be, to ... [C]hildren’s school; to ... "[C]hildren’s activities, and also [their] home in the subdivision." She testified regarding the incidents of Father following her alleged in her Petition. She testified none of the incidents occurred on a Sunday or were allowed under the Third Modified Judgment. She testified Father knew Children attended flag football practice on Friday nights from 5:00-6:00 p.m. She testified she video recorded Father following her in his car while she dropped Children off at school. She testified Father "continually violates" the Third Modified Judgment and has repeated this conduct "throughout the modification."

Father testified he works out at a gym near Children’s flag football practice. He testified he did not know Children attended flag football on Friday evenings from 5:00-6:00 p.m. He testified he did not drive by Mother’s home and honk his horn at her and Children. He testified he did not drive to Children’s school. Father testified Mother recorded him at the gas station near Children’s school around the time Children’s school day ended.

The trial court told Father:

I've had this case and I've had it for a long time, sir, and you appear to think that rules don't apply to you. And here’s what’s going to happen, because now we've moved this to the big time. Now we've moved this and you're going to have violations, they're going to come back here, and I am going to put you in jail.

The trial court entered its judgment, finding Mother "prove[d] allegations of domestic violence, stalking, and/or sexual assault against [Father] and [Father] c[ould not] show that his ... actions alleged to constitute abuse were otherwise justified under the law." The trial court’s judgment granted Mother a full order of protection against Father until February 10, 2021.

Father appeals.

Standard of Review

Our review of the entry of a full order of protection under the Adult Abuse Act is "the same as any bench-tried case" and is governed by Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). P.D.J. v. S.S. , 535 S.W.3d 821, 823 (Mo. App. E.D. 2017) (citing C.D.R. v. Wideman , 520 S.W.3d 839, 843 (Mo. App. W.D. 2017) ). Therefore, we will uphold 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." Id. We "defer to the trial court’s determination of credibility." Binggeli v. Hammond , 300 S.W.3d 621, 623 (Mo. App. W.D. 2010) (citing Schwalm v. Schwalm , ...