                  In the Missouri Court of Appeals
                                      Western District

    N.M.,                            )
                        Respondent, )                       WD79313
    v.                               )
                                     )                      FILED: November 29, 2016
    MATTHEW RAY MARTIN,              )
                          Appellant. )



             APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
                    THE HONORABLE PATRICIA S. JOYCE, JUDGE

            BEFORE DIVISION TWO: LISA WHITE HARDWICK, PRESIDING JUDGE,
                 GARY D. WITT AND ANTHONY REX GABBERT, JUDGES

        Matthew Martin appeals from a judgment granting his ex-wife, N.M.,1 a full

order of protection against him. Martin contends there was insufficient evidence to

support the entry of the order. He also asserts that the court erred in failing to

award him damages on his counterclaim. For reasons explained herein, we affirm

the judgment granting N.M. a full order of protection against Martin and dismiss his

counterclaim for damages.




1
 We refer to the victim using only her initials to protect her privacy. § 566.226, RSMo Noncum.
Supp. 2014.
                               FACTUAL AND PROCEDURAL HISTORY2

       Martin and N.M. were married in 1988 and had one child. They separated in

May 2014. N.M. filed a petition for dissolution of marriage in June 2014, and

Martin filed a counter-petition for dissolution a month later.

       Shortly before N.M. filed her dissolution petition, there was an incident in

which N.M. alleged that Martin cut her with a knife. Based upon this incident,

N.M. filed a petition for an adult order of protection. An ex parte order was issued.

The court held a contested hearing on N.M.'s petition for a full order of protection

on July 17, 2014, and entered a full order of protection on that date.

       Martin's and N.M.'s marriage was dissolved in April 2015. In September

2015, after N.M.'s July 17, 2014 full order of protection had expired, Martin began

making intimidating and offensive gestures and comments to N.M. Martin and

N.M. work in the same building. Whenever Martin would see N.M. drive past him

as he was walking to work, Martin would always flip her off with his middle finger.

Because of this, N.M. changed her route to work. Although N.M. and Martin

normally did not run into each other in their office building, a few weeks after the

full order of protection expired, Martin purposely went into the office building's

elevator with N.M. While the two were in the elevator together, he called her a

"cunt." Martin also repeatedly texted N.M. and demanded that she give him the



2
 N.M. has filed a motion to strike Martin's brief or dismiss his appeal based on his violations of Rule
84.04. We exercise our discretion to review the merits of Martin's appeal despite the numerous
briefing deficiencies, because the violations do not impede our review. See Travelers Commercial
Cas. Co. v. Vac-It-All Servs., Inc., 451 S.W.3d 301, 304 n.1 (Mo. App. 2014). N.M.'s motion is
denied.

                                                  2
keys to the house that she lives in with their child, even though Martin has not

lived there since June 2014.

      N.M. filed a petition for an adult order of protection on September 9, 2015.

In the petition, she alleged that she was afraid of Martin and that there was an

immediate and present danger of domestic violence to her or other good cause for

an emergency temporary order of protection because Martin previously physically

harmed her and, since the last order of protection had expired, continued to harass

and scare her. An ex parte order was issued.

      Martin then filed a "Pro Per Rebuttal and Counterclaim," in which he denied

that he had ever physically harmed or harassed N.M. He asked the court to award

him $4,902.23 in damages "for legal expenses, personal stress and lost time at

work" he allegedly suffered as a result of N.M.'s "false claims" against him.

Following a contested hearing, the court entered a full order of protection for N.M.

against Martin. Martin filed this appeal.

                                 STANDARD OF REVIEW

      Appellate review of this court-tried case is governed by Murphy v. Carron,

536 S.W.2d 30, 32 (Mo. banc 1976). Skovira v. Talley, 369 S.W.3d 780, 781

(Mo. App. 2012). 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. Murphy, 536 S.W.2d at 32. We view all

facts and inference in the light most favorable to the judgment and defer to the

circuit court's credibility determinations. Skovira, 369 S.W.3d at 781-82. This is

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because "'[t]he trial judge is in the best position to gauge the credibility of the

witnesses and to determine the existence of any reasonable apprehension of abuse

that a petitioner may harbor; conversely, the judge can determine whether a given

respondent appears capable of the feared abuse.'" Id. at 782 (citation omitted).

                                            ANALYSIS

       In Point I, Martin contends the court erred in granting N.M. a full order of

protection against him because the evidence was insufficient to support the order.

He argues that the evidence showed that his communications with N.M. were

consistent with "normal inquiries for his joint legal custody of his child" and his

attempt to obtain his property from N.M.

       The Adult Abuse Act 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 or sexual assault, may seek relief under [the Act] by

filing a verified petition alleging such domestic violence, stalking, or sexual assault

by the respondent." § 455.020.1.3 "Abuse," as defined by the statute:

       includes but is not limited to the occurrence of any of the following
       acts, attempts or threats against a person who may be protected
       pursuant to [Chapter 455] . . .:

       (a) "Assault", purposely or knowingly placing or attempting to place
       another in fear of physical harm;

       (b) "Battery", purposely or knowingly causing physical harm to
       another with or without a deadly weapon;


3
 All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2015
Noncumulative Supplement, unless otherwise indicated.

                                                4
        ....

       In her petition, N.M. alleged that Martin had previously physically harmed her

and, since the last order had expired, had continued to harass and to scare her. To

support these allegations, N.M. testified that Martin was violent to her during their

marriage. Referring to the 2014 knife incident that led to the first full order of

protection, N.M. testified that Martin physically harmed her during that incident,

requiring her to go to the emergency room and get stitches. N.M. further testified

that, after the full order of protection based upon this incident expired, Martin's

actions of going into their office building's elevator with her and calling her a

"cunt," his making offensive gestures to her every time she would pass him on his

way to work, and his demanding the keys to the home she shares with their child

made her feel threatened by him and fearful of him.4

       N.M.'s testimony and evidence demonstrated that Martin purposely or

knowingly caused physical harm to her with a deadly weapon in 2014.5 After the

first full order of protection against him based upon this incident expired, his


4
  The 2014 knife incident could not be used as the basis for the current full order of protection
because it was used as the basis for the prior full order of protection that had expired without
renewal. However, the knife incident was relevant to show why N.M. was reasonable in her fear of
Martin based on Martin's current actions.

5
  Martin argues that the 2014 knife incident was proven to be a "false accusation" because, after
the State charged him with second-degree domestic assault, the State filed a nolle prosequi
dismissing the charge. Martin contends the dismissal demonstrates his innocence. We disagree.
N.M. testified that the State dropped the criminal charge at her request because she did not want
Martin to go to jail. Moreover, that the State decided not to pursue proving, beyond a reasonable
doubt, a criminal charge based upon the incident did not foreclose the court from determining in this
adult abuse action that N.M. proved, by a preponderance of the evidence, that the incident occurred
and provided a reasonable basis for his subsequent actions to cause her fear.

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subsequent conduct of purposely going into their office building's elevator with her

and calling her a lewd name, his making offensive gestures to her every time he

saw her, and his demanding the keys to her home, even though he did not live

there anymore, could reasonably be construed as knowingly placing or attempting

to place her in fear of physical harm. See Cuda v. Keller, 236 S.W.3d 87, 90 (Mo.

App. 2007). This evidence was sufficient to support the court's entry of the full

order of protection. See id.

      Martin argues that his text messages and contacts with N.M. were simply

innocuous attempts to communicate with her about their child's well-being and

about his personal property that remained in her possession. The court was not

required to believe him. Skovira, 369 S.W.3d at 781-82. We must defer to the

circuit court's decision to accept N.M.'s testimony over Martin's. Id. Point I is

denied.

      In Point II, Martin contends the circuit court erred in failing to award him

damages on his counterclaim. In response to N.M.'s petition for an adult order of

protection, Martin filed a counterclaim asking the court to award him $4,902.23 in

damages "for legal expenses, personal stress and lost time at work" he allegedly

suffered as a result of N.M.'s "false claims" against him. The court entered the full

order of protection but did not rule on the counterclaim. Martin asserts that it was

error for the court not to award him his requested damages or to at least issue a

ruling on his counterclaim.




                                          6
      Martin's claim for damages was not a proper counterclaim in N.M.'s adult

abuse action. "The legislature created the specific right of action for adult abuse

and may condition the right as it sees fit." Kennedy v. Kennedy, 924 S.W.2d 579,

580 (Mo. App. 1996). Pursuant to Section 455.070, RSMo 2000, "All

proceedings under sections 455.010 to 455.085 are independent of any

proceedings for dissolution of marriage, legal separation, separate maintenance and

other actions between the parties and are in addition to any other available civil or

criminal remedies, unless otherwise specifically provided herein." Thus, in

Kennedy, 924 S.W.2d at 579-80, the court found that the circuit court properly

dismissed a husband's counterclaim for dissolution of marriage that was filed in

response to his wife's adult abuse act petition against him.

      In this case, Martin's counterclaim for damages was an "other action"

between the parties that could not be part of the adult abuse case under Section

455.070. Therefore, the only proper course of action for the circuit court to have

taken would have been to dismiss the counterclaim. Pursuant to Rule 84.14, we

may issue the ruling that the circuit court should have entered. Accordingly, we

dismiss Martin's counterclaim for damages. Point II is denied.

                                     CONCLUSION

      The judgment granting N.M. a full order of protection against Martin is

affirmed. Martin's counterclaim for damages is dismissed.




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                  ________________________________
                  LISA WHITE HARDWICK, JUDGE
ALL CONCUR.




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