Woodard v. Conde

• Decision Date: 05 May 2022
• Docket Number: SD 37047
• Citation: 648 S.W.3d 760
• Parties: William C. WOODARD, Respondent, v. Steven W. CONDE, Appellant.
• Court: Missouri Court of Appeals

648 S.W.3d 760

William C. WOODARD, Respondent,

v.Steven W. CONDE, Appellant.

No. SD 37047

Missouri Court of Appeals, Southern District, Division Two.

Filed: May 5, 2022

Rehearing and/or Transfer Denied May 24, 2022

Application for Transfer Denied August 30, 2022

Appellant's attorney: Michael L. Jackson, Jefferson City.

Respondent's attorney: James J. McClellan.

GARY W. LYNCH, C.J.

A full order of child protection, effective for one year, was entered by the circuit court against Steven W. Conde ("Appellant") under the Child Protection Orders Act, see sections 455.500 et seq.¹ Appellant did not appeal that order. William C. Woodard, the petitioner who sought the initial order, timely filed a motion to renew the full order of child protection and, after an evidentiary hearing, the circuit court entered its judgment renewing the full order of child protection for another year.² Appellant timely appeals the renewal judgment and raises one point relied on claiming there is no substantial evidence in the record "upon which the trial court could have reasonably found that expiration of the Full Order of Child Protection ... would place the child ... in imminent present danger of abuse." Because this claim has no merit, we affirm.

Standard of Review

We will affirm the circuit 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. Ivie v. Smith , 439 S.W.3d 189, 198-99 (Mo. banc 2014) (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) ). " ‘It is appellant's burden (as the moving party) to overcome our presumption that the judgment of the trial court is correct.’ " D.D.W. v. M.F.A. , 594 S.W.3d 274, 279 (Mo. App. 2020) (quoting TracFone Wireless v. City of Springfield , 557 S.W.3d 439, 445 (Mo. App. 2018) ).

Analysis

Houston v. Crider , 317 S.W.3d 178 (Mo. App. 2010), describes and discusses appellate challenges to the evidentiary basis of a circuit court's judgment and, in that context, the analytical framework for a cogent not-supported-by-substantial-evidence challenge in three sequential steps and an against-the-weight-of-the-evidence challenge in four sequential steps. Id. at 186-87. The first step in both requires that an appellant "identify a challenged factual proposition, the existence of which is necessary to sustain the judgment[.]" Id. at 187. This step is logically first in the sequence and is dispositive of the evidentiary challenge if the existence of the identified challenged factual proposition is not necessary to sustain the judgment. In that circumstance, this Court's consideration of the challenged factual proposition's evidentiary basis has no bearing upon or relevance to the judgment's evidentiary basis and, therefore, is outside the purview of our standard of review. See Ivie , 439 S.W.3d at 198-99 (circuit court judgment will be affirmed on appeal unless there is no substantial evidence to support the judgment , the judgment is against the weight of the evidence, or the judgment erroneously declares or applies the law).

Here, Appellant identifies and challenges, as not supported by substantial evidence, the factual proposition that the expiration of the full order of child protection would place the child in imminent present danger of abuse. The first issue for decision in this appeal is whether the existence of that factual proposition is necessary to sustain the renewal judgment. We determine that it is not and that determination is dispositive of Appellant's point and this appeal.

Although not cited, addressed, or even mentioned in Appellant's brief, we begin with the applicable statutory provisions in section 455.516.1, which provide, in relevant part:

Upon motion by either party, ... and after a hearing by the court, the full order of protection may be renewed for a period of time the court deems appropriate, except that the protective order shall be valid for at least one hundred eighty days and not more than one year from the expiration date of the originally issued full order of protection.... For purposes of this subsection, a finding by the court of a subsequent act of abuse is not required for a renewal order of protection.

(Emphasis added.) In exercising its expressly granted discretion to renew the originally issued full order of child protection, nothing in this statute requires the circuit court to find that expiration of the original full order of child protection would place the child in imminent present danger of abuse. Moreover, Appellant cites to no other statute that requires such a finding for renewal of a full order of child protection.

Similarly, Appellant cites to no case law that requires the circuit court to make such a finding for renewal of a full order of child protection, conceding that he had not found any. Our ex gratia independent research found none.

Rather, Appellant argues that "[g]iven the very similar nature of the remedies (in the form of injunctive relief) provided under both the Adult Abuse and Child Protection Acts, the case law relating to renewal of Adult Abuse orders should be equally applicable to proceedings for renewal of Child Protection orders." This argument fails for two reasons.

First, Appellant cites us to McAlister v. Strohmeyer , 395 S.W.3d 546, 551 (Mo. App. 2013), and Doza v. Kitcher , 987 S.W.2d 826 (Mo. App. 1999), as purported legal authority for the proposition that renewal of a full order of adult protection under section 455.040.1 requires a finding that the expiration of the order will place petitioner in an immediate or imminent and present danger of abuse. Neither case so held.

In McAlister , McAlister challenged on appeal the circuit court's refusal to issue a full order of adult protection against Strohmeyer. 395 S.W.3d at 548. The undisputed evidence demonstrated that McAlister, after forcing her way inside Strohmeyer's home, initiated the physical encounter by attacking him to which he responded by pointing a gun at her (McAlister's asserted act of abuse by Strohmeyer). Id. at 553-54. The McAlister court held that the plain language of section 455.040.1 requires a circuit court to grant a full order of protection upon proof of an act of abuse, but where respondent demonstrates that his or her actions were justified under the law, a trial court does not err in denying the full order of protection. Id . at 556. Because the holding in McAlister is directed toward issuance of a full order of adult protection, any discussion mentioning renewal requirements of a full order of adult protection is dicta.

In Doza , Kitcher appealed the circuit court's judgment granting Doza's request for renewal of a full order of adult protection without first holding a hearing. 987 S.W.2d at 826. This Court held that the circuit court committed reversible error in failing to hold a hearing, as procedurally required by section 455.040.1, and remanded the case to the circuit court for a hearing. Id. at 827. Any discussion in Doza mentioning substantive renewal requirements for a full order of adult protection is dicta.

Nevertheless, and in any event, we observe that in its brief mention of the substantive renewal requirements for a full order of adult protection, the McAlister court...