G.E.G. v. Gauert

620 S.W.3d 676

G.E.G., Respondent,

v.Robert W. GAUERT, Appellant.

WD 83815

Missouri Court of Appeals, Western District.

OPINION FILED: April 6, 2021

Ryan P. Waters, Jefferson City, MO, for respondent.

Joshua J. Sieg, Columbia, MO, for appellant.

Before Division Three: Karen King Mitchell, Presiding Judge, Gary D. Witt, Judge and Anthony Rex Gabbert, Judge

Gary D. Witt, Judge

Robert Gauert ("Gauert") appeals from the judgment of the Circuit Court of Callaway County entering a full order of protection in favor of G.E.G.¹ We reverse and vacate the judgment.

Procedural and Factual Background²

G.E.G. works as a hired hand for R.D. and L.D. on their farm and lives in an apartment on the farm. R.D.'s and L.D.'s farm adjoins Gauert's farm. There have been longstanding disputes between R.D. and L.D. and Gauert. On August 14, 2019, G.E.G. and L.D. were bathing a horse in R.D.'s and L.D.'s pasture approximately twenty-five yards from the property line to Gauert's property. G.E.G. had her dog with her, which was off-leash and wandered onto Gauert's property. G.E.G. heard a gunshot from a small caliber firearm, but she did not think anything of it because it is not unusual to hear gunshots in the rural area where they live. G.E.G. noticed her dog was missing and looked through trees that lined the fence-line between Gauert's property and the pasture and saw her dog lying dead on Gauert's property.

Immediately, G.E.G. and L.D. went to the property line and telephoned the Callaway County Sheriff's Department. While waiting for law enforcement to arrive, Gauert moved the dog's body away from the middle of his yard so it was closer to his porch and removed the dog's collar. Gauert testified G.E.G.'s dog was being aggressive towards Gauert's cats, and Gauert retrieved a .22 caliber rifle. Gauert testified that after he returned with the rifle, G.E.G.'s dog showed his teeth to Gauert, and Gauert shot the dog for his own protection.

Gauert offered to let G.E.G. come onto his property and retrieve her dog's body, but G.E.G. refused because she "wasn't go [sic] onto his property and give him an excuse to shoot me." After the Callaway County Sheriff's deputy arrived, the deputy returned the dog's body to G.E.G. Prior to this incident, G.E.G. and Gauert had not had any interaction between them of any kind, either positive or negative.

Several days later, as G.E.G. was leaving the property, she saw another car leaving Gauert's driveway. Gauert's girlfriend was driving the other car with Gauert in the passenger seat. After both vehicles turned onto the highway, Gauert's girlfriend moved to the passing lane and slowed down until her vehicle was parallel to G.E.G.'s vehicle, and Gauert began taking photographs of G.E.G. through the window of the car.

Two weeks later on September 3, 2019, G.E.G. filed a petition seeking an order of protection based on an allegation of stalking. The circuit court conducted a bench trial on January 23, 2020 and entered its judgment granting G.E.G. a full order of protection against Gauert ("Judgment") on that date. The Judgment prohibited Gauert from coming within fifty feet of G.E.G.; communicating with G.E.G. in any fashion; harassing, stalking, or threatening G.E.G.; and using, attempting to use, or threatening to use physical force against G.E.G. The Judgment further ordered Gauert not to possess firearms while the Judgment is in effect. The circuit court also found that it was in the parties' best interests that the Judgment automatically renew after one year; thus, the Judgment is effective until January 22, 2022. After various post-trial motions were filed, heard, and ruled on, the Judgment became final on May 20, 2020. This timely appeal followed.³

Discussion

Gauert raises two claims of error. First, he asserts that the circuit court erred in granting the Judgment because the record lacks substantial evidence in that G.E.G. failed to prove all of the elements required to establish stalking under the Adult Abuse Act ("Act").⁴ Second, he argues the circuit court erred in ordering that Gauert may not possess firearms because the circuit court exceeded its jurisdiction in that the Act does not provide for a remedy of prohibiting the possession of firearms except when the parties are "intimate partners." Because Gauert's first point on appeal is dispositive, we do not address his second point.

Standard of Review

We review orders of protection under the Act "the same as in any other court-tried case; we will uphold the trial court's judgment as long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law." M.N.M. v. S.R.B. , 499 S.W.3d 383, 384 (Mo. App. E.D. 2016). "Substantial evidence is evidence that, if believed, has some probative force on each fact that is necessary to sustain the circuit court's judgment." Ivie v. Smith , 439 S.W.3d 189, 199 (Mo. banc 2014). We defer to the circuit court's credibility determinations and consider the evidence in the light most favorable to the circuit court's judgment. Id. at 200.

Analysis

The Act provides that a person who has been subject to domestic violence or has been the victim of stalking or sexual assault may seek an order of protection. Section 455.020.1. Because it is undisputed that G.E.G. and Gauert are not related and are not members of the same household as defined by the Act, the Judgment could only be entered if G.E.G. sufficiently demonstrated she was a victim of stalking by Gauert.

The Act defines "[s]talking" as "when any person purposely 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(14). " " ‘Course of conduct’ " means a pattern of conduct composed of two or more acts over a period of time, however short, that serves no legitimate purpose." Section 455.010(14)(b). " ‘Alarm’ means to cause fear of danger of physical harm[.]" Section 455.010(14)(a). Therefore, to obtain relief under the Act a petitioner must demonstrate by a preponderance of the evidence: (1) that the respondent engaged in a pattern of conduct of at least two or more acts, (2) which served no legitimate purpose, (3) causing the petitioner to fear danger of physical harm, and (4) that the petitioner's fear was reasonable. Binggeli v. Hammond , 300 S.W.3d 621, 624 (Mo. App. W.D. 2010) (applying section 455.010(10)(a)-(c) RSMo 2000 ).⁵

The facts adduced at trial established only two acts: (1) the shooting of the dog and (2) the incident on the highway. Because we hold that these two incidents when considered together would not cause a reasonable person to fear a danger of physical harm, we address only that portion of Gauert's argument.

In E.M.B. v. A.L. , 462 S.W.3d 450, 451 (Mo. App. E.D. 2015), E.M.B. and A.L. were coworkers at a restaurant, and E.M.B. filed a complaint against A.L. accusing A.L. of sexual harassment. A.L. was subsequently terminated, and sent a series of text messages to E.M.B., which demonstrated A.L. was upset with E.M.B. Id. at 453. A.L. also ordered food to be delivered from the restaurant and expected E.M.B. to be the delivery person at that time. Id. Later, A.L. videotaped E.M.B. at the restaurant when she returned from a delivery, and when E.M.B. confronted him, A.L. did not respond but kept videotaping. Id. The court held that this conduct along with the previous interactions was insufficient to cause the requisite reasonable fear to E.M.B. Id.

In contrast, the Southern District of this Court affirmed a judgment entering a full order of protection where a stalker had taken photographs of a victim in Skovira v. Talley , 369 S.W.3d 780 (2012). Talley and Skovira were soldiers, who worked together in a warehouse at Fort Leonard Wood. Id. at 782. Talley made numerous telephone calls and sent multiple text messages to Skovira inviting Skovira to go on dates with him. Id. When Skovira refused, Talley would "constantly beg," and eventually a platoon sergeant counseled Talley to stop calling and texting. Id. Instead, Talley continued to call and send text messages and began to drive by Skovira's barracks. Id. The platoon sergeant "issued a negative counseling" for this continued behavior. Id.

Even after the platoon sergeant issued his order, Talley would talk to Skovira whenever possible, stare at her, eye her up and down, lick his lips, groan, and make sexual comments while working with Skovira. Id. The company commander issued a no-contact order, prohibiting communication with Skovira and requiring that he stay at least 100 feet away from her. Id. at 783. In violation of this order, Talley took additional photographs of Skovira, which made her uncomfortable. Id. Talley divorced his wife, and moved into the barracks right next to Skovira's barracks in violation of the no-contact order. Id. Because Talley's conduct was escalating and he had repeatedly violated his...