L.E.C. v. K.R.C.

674 S.W.3d 97

L.E.C., Respondent,

v.K.R.C., Appellant.

No. ED 110515

Missouri Court of Appeals, Eastern District, DIVISION ONE.

Filed: June 20, 2023 Application for Transfer to Supreme Court Denied September 26, 2023

Robert N. Hamilton, 2016 S. Big Bend Blvd, St. Louis, Mo. 63117, for appellant.

Lawrence G. Gillespie, 120 South Central Ave, Suite 650, Clayton, Mo. 63105, for respondent.

Angela T. Quigless, Judge

Introduction

Husband K.R.C. appeals the judgment of the circuit court, by which the circuit court entered a full order of protection against Husband under Missouri's Adult Abuse Act. Husband challenges the sufficiency of the evidence to support the order, given the four-plus years that passed between the alleged actions giving rise to Wife L.E.C.’s petition, filed in September of 2017, and the hearing on that petition, held in October of 2021. This Court holds that insufficient evidence existed to support the full order of protection entered against Husband. We therefore reverse the circuit court's judgment and remand the cause to the circuit court with directions to vacate its judgment.¹

Factual and Procedural Background

On September 26, 2017, Wife sought an order of protection against Husband for alleged stalking and domestic violence. Wife had filed for dissolution of her marriage to Husband the previous month, after twenty-three years of marriage.

In her petition, Wife alleged Husband had knowingly and intentionally: caused or attempted to cause her physical harm, coerced her, stalked her, harassed her, followed her from place to place, and threatened to do any of the above. She alleged Husband had done so by two specific acts. First, Wife alleged Husband broke into the barn at the marital residence on September 22, 2017, stole items from the barn, and stated everything was his. Second, Wife alleged that Husband tried to break through the office window of the marital home on September 26, 2017, while her son was at home.

Wife further generally alleged that Husband was stalking and following her, and peeking in windows. She alleged that Husband told her in a belligerent manner that he was not giving her a divorce. She claimed Husband was threatening her and stating that he was coming for her, that he would find her, that he would take care of her, and that she would not live through the divorce. Wife alleged she was in fear and scared for her life. Lastly, she asked the court to keep Husband from her and to keep him from peeking in windows until her divorce was final.

The circuit court issued an ex parte order of protection, and Husband was served with that order, on the same day Wife filed her petition, September 26, 2017. Missouri's Adult Abuse Act mandates that a hearing shall be held "not later than fifteen days" after the filing of a petition for an order of protection, unless the court deems that a continuance should be granted for good cause shown. Section 455.040. The circuit court here, however, did not hold a hearing on Wife's petition for an order of protection until four years later, when the court heard the matter as part of the dissolution trial in October of 2021.

Upon issuing the ex parte order, the circuit court initially continued the hearing for one month, until October 23, 2017, for good cause shown. The circuit court did not specify what constituted that good cause. The parties then consented to another month-long continuance. In March of 2018, after the hearing had been continued twice more without explanation, Wife requested a continuance, and the circuit court continued the matter for another month. In April 2018, the circuit court ordered the cause transferred to a different division of the circuit court that was assigned the parties’ dissolution case. From that point on, the hearing on Wife's petition was repeatedly continued for over three years until trial, and was done so without explanation, request, consent, or a statement of good cause shown on the record.

At trial in October of 2021, Wife testified to events that purportedly occurred in 2017. The last complained-of act took place on September 29, 2017. Wife made no allegations and testified to no acts or threats between that date and trial. When asked what led her to request an order of protection, Wife responded: "There were many things. He tried to break in the house when my son was home." She also stated that Husband broke into the barn and took all the items when she was gone for a weekend. Wife believed Husband was harassing her and stalking her, and said that he followed her on more than one occasion, and that he was trying to figure out where she was at certain times. Wife provided no details. Wife further testified that she sought an order of protection because of Husband's verbal communications "through the texts and things he would say to me."² She also claimed Husband disconnected the internet cables to her house, and claimed that he placed a camera on his mother's house, pointed toward her house.

Wife also testified that Husband physically abused her "two maybe three times" during the twenty-three-year marriage. She stated: "He has restrained me, he has pushed me, he has shoved me ... multiple times." She provided details as to only two incidences, without specific dates. She explained the first time "was more of a restraint and verbal abuse calling me a cunt." The second time Wife claimed Husband pushed her and shoved her into the garage wall. Wife testified that she had no physical injuries and that she had not sought medical care.

Wife affirmed the allegation in her petition that Husband had threatened her. When asked what Husband said as a threat, Wife responded: "[N]ormally what he would say is that he would kill me or take care of me; I won't have to worry about it. You know, I'm going to get what's mine. You'll get what's coming to you and stuff like that." She testified that Husband also stated that "It's all mine in the garage ... It's none of yours," that he would never grant her a divorce, that she wouldn't live through the divorce, and that he was coming for her.

Lastly, Wife testified she was afraid of Husband at the time she sought the order of protection in 2017, and that she was "still afraid of him." When asked why she was afraid of Husband, Wife stated: "I think he would hurt me, absolutely without a doubt. His problems would be over. And as long as he does it before we're divorced, he gets whatever I have." When asked if there were any other times, other than the time in September 2017, when Husband made her afraid for her life or afraid of harm from him, Wife testified "the day he left," which was at the end of March 2017. No other instances were cited and no further details were given.

Husband countered, denying he was ever violent with Wife. He testified he never pushed or shoved Wife against the wall, even lightly. He also noted Wife never had bruises. He denied threatening Wife and testified that he never told Wife that she was not going to live through the divorce. He denied cutting the cables to the house, and explained the camera was installed at his mother's house for security, as she lived alone. He stated he did not instruct his mother to focus the camera on Wife's property.

Husband admitted going to the marital home on September 26, 2017. He explained he did so upon the advice of his attorney, who told him he needed to go get his belongings from the house. He explained that when he arrived, he tried the garage door code, but that the code had been changed. He tried both the front and back doors, but found both doors locked. He then started checking windows. He stated that when he reached the office window, blinds began to open, so he left. He had assumed his son was at school. Husband explained that he was going to retrieve many of his personal belongings – clothes, his class ring, and other personal incidentals – and that he never entered the house. Lastly, Husband testified he had not spoken with Wife since the ex parte order of protection had been issued.

In addition to the parties’ testimony, two police reports were introduced at trial. The first report concerns removal of items from the garage (also referred to as a barn) at the marital residence on September 22, 2017. The report shows that Wife sent a text message to Husband prior to September 22, stating he could retrieve any of his equipment or tools from the detached garage located at the marital residence. Wife was away from home from September 21 through September 22. When she returned home, she noticed several items missing from the garage and called the sheriff's office. The deputy sheriff responding to the call contacted Husband, who stated he had the items in his possession. Husband also advised that he had not broken the locking system on the shed, as Wife claimed. The deputy sheriff did not observe any damage to the locking system on the garage.

The second report concerns the camera at the home of Husband's mother. Wife called the sheriff's department on October 1, 2017, and reported that on September 29, she observed a red light in a garage window of the neighboring residence, which belonged to her mother-in-law. Wife also mentioned the light to her son who, upon investigation, discovered the light to be originating from a camera inside the window, which was pointed in the direction of Wife's residence. The son placed shipping tape on the window, to block the view of the camera.

The circuit court entered judgment and full order of protection against Husband on January 14, 2022. Husband now appeals. Before addressing the substantive merits of Husband's appeal, and his contention that insufficient evidence exists to support the full order of protection, we pause to address two issues: mootness, and the significant delay in holding a hearing on the ex parte order of protection.

Mootness Doctrine

At the outset of any appellate review, this Court has an obligation to determine whether the case presents a "real,...