Washburn v. Kirk
| Decision Date | 12 August 2014 |
| Docket Number | No. SD 33077.,SD 33077. |
| Citation | 437 S.W.3d 831 |
| Parties | Betsy Deann WASHBURN, Petitioner–Respondent, v. Sheila Lynn KIRK, Respondent–Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Derrick S. Kirby, Doniphan, for Appellant.
Betsy Deann Washburn, Neelyville, Respondent Acting Pro Se.
Respondent Betsy Deann Washburn, a middle school teacher (“Teacher”), and Appellant Sheila Lynn Kirk, the mother (“Mother”) of a middle school child, had a verbal confrontation at Walmart about Mother's child. According to both parties, the meeting was accidental as both parties were shopping there and ended up close to each other in the check-out line. Mother introduced herself and politely asked Teacher to talk to her about the child. Teacher, who was on her cell phone,
asked [Mother] to not talk to me, I was on the cell[ ]phone, and she said she tried to contact me at school and I wasn't returning her phone calls. And I said,
And then she just continued to raise her voice, would not leave me alone. I asked her more than once to leave me alone. She kind of had me in a spot where I was in this spot where I was—her family was behind me and I was—my cart was there and she was kind of standing there, I couldn't get out and she just kept, you know, “You need to—You need to talk to me.” You're—You're—Basically, she was saying I had—was mistreating her son and—in class and that I needed to stop and that she had enough of me and she was tired of dealing with me and I wouldn't respond to her phone calls.
Teacher tried to get her groceries out quickly and Mother returned to her family but loudly continued to complain about Teacher not talking to her and treating her son badly in class. Mother did not follow Teacher out of Walmart and there was no further contact until the night of the parent/teacher conferences. Unbeknownst to Mother, Teacher filed an ex parte order of protection claiming that Mother was stalking her; however, the order was not served on Mother prior to the school conferences. Mother was speaking with a teacher across the hall. When Teacher saw her, she shut her door and tried to walk out. Teacher testified that:
[Mother] said, “You have to talk to me.”
And I said,
[Mother] goes, “You're going to talk to me.”
And I said,
And she said, “Well, I can come to the office.”
And I said,
Teacher went to the office and the “principal dealt with it after that point.” In her sole point, Mother claims the trial court erred in issuing the full order of protection in that these contacts do not meet the definition of “stalking” under section 455.020.1 Mother is correct.
Section 455.020 provides that “[a]ny person who has been subject to domestic violence by a present or former family or household member, or who has been the victim of stalking, may seek relief ... by filing a verified petition alleging such domestic violence or stalking by the respondent.” There is no dispute that Teacher was not a person who was subject to domestic violence by a present or former family or household member. What remains is a claim by Teacher that she had been stalked.
“ ‘Stalking’ is when any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person's situation to have been alarmed by the conduct.” Section 455.010(13). The undisputed evidence of both parties challenges both the “purposely and repeatedly” and “course of conduct” prongs that are necessary to find stalking.
“ ‘Alarm’ means to cause fear of danger of physical harm[.]” Section 455.010(13)(a).
The first confrontation as set forth above in Teacher's words was a random meeting at Walmart. The facts are that Mother (who stated Teacher was avoiding her) wanted to speak to her child's teacher, accidentally ran into her at Walmart, and chose that opportunity to speak to her. Teacher, who was on her cell phone in the checkout line, stated she was off-duty and did not need to speak to Mother. Mother was angry for being brushed aside and ended up in a verbal confrontation with her. The first event cannot be classified under the definition of stalking as it was not “purposely and repeatedly” or a “course of conduct,” that served no legitimate purpose.
The second event was a parent-teacher conference, an event that Mother was invited to and should attend, according to Teacher. In fact, while in Walmart, Teacher specifically told Mother that she should talk to her at the school. Mother was visiting with a teacher across the hall from Teacher and did not know that Teacher had taken out an Order of Protection against Mother. She was in the school for a legitimate purpose. It was an appropriate time for Teacher and Mother to talk about Mother's concerns about her child. It could not have caused alarm in Teacher to see Mother as a parent at a parent-teacher conference. Although Mother asked repeatedly to speak with Teacher at the time set aside when parents and teachers are supposed to talk, Teacher chose not to talk to Mother and walked off. There is no evidence that Mother followed, harassed, or stalked Teacher in any way. The entry of the Order of Protection was a misapplication of the law.
As we have said:
It is important to note that the Adult Abuse Act was not intended to be a solution for minor arguments between adults. Prior courts have warned us...
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...is important to note that the Adult Abuse Act was not intended to be a solution for minor arguments between adults.” Washburn v. Kirk, 437 S.W.3d 831, 833 (Mo.App.S.D.2014). There is a great potential for abuse, and real harm can result from improper use of the Act, “not the least of which ......