H.E.S. v. T.J.B.

628 S.W.3d 234

H.E.S., Respondent,

v.T.J.B., Appellant.

ED 108988

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: June 29, 2021

Lisa P. Page, Judge

T.J.B.¹ (Defendant) appeals from the trial court's judgment granting H.E.S. (Victim) a Full Order of Protection pursuant to the Adult Abuse Act (Act).² We affirm.

BACKGROUND

On April 21, 2020, Victim filed a Petition for Order of Protection (Petition) in the Circuit Court of St. Louis County. Victim's Petition stated that Defendant had been stalking her and she was afraid that he might hurt her or her daughter. The trial court entered an Ex Parte Order of Protection, and a hearing was set for June 8, 2020. The hearing was conducted remotely via Zoom, and adduced the following evidence.

Victim testified she and Defendant were previously in a romantic relationship and resided together. Their relationship began around the time when Victim's daughter was one year old. Victim moved out of her "living situation" with Defendant in March of 2019, and asked him to stop contacting her. In December of 2019, Victim had to block multiple phone numbers and three email accounts to prevent Defendant from contacting her. Victim also sent Defendant nineteen emails between February 6, 2020, and April 20, 2020, telling him to leave her alone. She told him she would get a "cease and desist" order, but he was undeterred.

On April 20, 2020, Victim received seven emails from Defendant. Around 9 a.m., Defendant parked a block away from Victim's home, and approached her then six-year-old daughter in Victim's back yard. Defendant refused to leave and said he had already called the police. Victim stated that Ferguson police told her they saw Defendant drive by her house. She said that her neighbor, who was a retired Ferguson police officer, witnessed these events and actually was the one who called the police. Victim testified Defendant's emails and phone calls were annoying at first, but when she told him to leave her alone and he showed up at her house, she became scared because he didn't believe he was crossing boundaries.

Defendant continually referred to Victim's child as "my daughter" throughout the hearing, even though he is not the child's father. He agreed he made multiple attempts to contact Victim against her will, but only because he wanted to see "my daughter." He had not seen "my daughter" since September of 2019, and his emails were trying to determine how "my daughter" was faring. He stated he was "trying to resolve this peacefully." He admitted his contact was unwanted by Victim. He also admitted going to Victim's house three times knowing she did not want him there. Defendant said he did not intend to hurt Victim, and he "gave her seven months to try and sort this out peacefully."

Defendant called Elizabeth Bennett (Bennett) as a witness. Bennett testified she was a counselor who had been providing Defendant with mental health counseling since 2018. She stated she knew both parties to this case and spent time talking to Defendant about his anxiety over his inability to see Victim's daughter.

After hearing the testimony, the trial court found that Defendant's course of conduct merited an Order of Protection. The trial court found that Defendant's conduct in attempting to contact Victim was initially justifiable, but became unjustifiable once Victim told him that she did not want any further contact with him.

This appeal follows.

DISCUSSION

Defendant raises one point on appeal arguing the trial court "erred and abused its discretion and misapplied RSMo § 455.010 - 455.085" in granting Victim a full order of protection against Defendant because there was insufficient evidence that Defendant's acts satisfied the statutory definitions of abuse, domestic violence, or stalking pursuant to Section 455.010. Victim asserts that Defendant's actions met Section 455.010 ’s definition of harassment, which constitutes abuse under the Act.

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.’ " G.E.G. v. Gauert , 620 S.W.3d 676, 678 (Mo. App. W.D. 2021) (quoting 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 defines "abuse" as "the occurrence of any of the following acts, attempts or threats against a person who may be protected pursuant to this chapter," including assault, battery, coercion, harassment, sexual assault, and unlawful imprisonment. Section 455.010(1). "Harassment" is "engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to an adult or child and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable adult or child to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner or child." Section 455.010(1)(d). The phrase "substantial emotional distress" means "the offending conduct must produce a considerable or significant amount of emotional distress in a reasonable person; something markedly greater than the level of uneasiness, nervousness, unhappiness or the like which are commonly experienced in day to day living." Burke v. DeLay , 583 S.W.3d 97, 100 (Mo. App. S.D. 2019) (quoting Wallace v. Van Pelt , 969 S.W.2d 380, 384 (Mo. App. W.D. 1998) ). Harassment has been found where there was physical contact and an offer to fight, and where there was evidence of drunken outbursts, pushing, and repeated communications despite official requests to discontinue communication. Lawyer v. Fino , 459 S.W.3d 528, 532 (Mo. App. S.D. 2015). However, repeated communication alone "typically does not rise to the level of harassment because, while annoying and boorish, such conduct would not cause substantial emotional distress in a reasonable person." Id.

There is no harassment when the course of conduct serves a legitimate purpose. See Section 455.010(1)(d). "For conduct to have ‘no legitimate purpose,’ it must be found to be not sanctioned by law or custom, to be unlawful, or not allowed." Fino , 459 S.W.3d at 533 (quoting Dennis v. Henley , 314 S.W.3d 786, 789 (Mo. App. S.D. 2010) ). "Missouri's appellate courts have repeatedly found that repeated communications regarding the care of children between estranged parents are appropriate." Id. (emphasis added).

Defendant seems to assert that his conduct served a legitimate purpose because he was an "estranged parent." Clark v. Wuebbeling , 217 S.W.3d 352, 355 (Mo. App. E.D. 2007) (...