BETSY DEANN WASHBURN,                        )
                                             )
       Petitioner-Respondent,                )
                                             )
vs.                                          )              No. SD33077
                                             )
SHEILA LYNN KIRK,                            )              Filed: August 12, 2014
                                             )
       Respondent-Appellant.                 )

           APPEAL FROM THE CIRCUIT COURT OF BUTLER COUNTY

                   Honorable William J. Clarkson, II, Associate Judge

REVERSED

       Respondent Betsy Deann Washburn, a middle school teacher (“Teacher”), and

Appellant Sheila Lynn Kirk, the mother (“Mother”) of a middle school child, had a verbal

confrontation at Walmart about Mother’s child. According to both parties, the meeting

was accidental as both parties were shopping there and ended up close to each other in

the check-out line. Mother introduced herself and politely asked Teacher to talk to her

about the child. Teacher, who was on her cell phone,

       asked [Mother] to not talk to me, I was on the cell[]phone, and she said
       she tried to contact me at school and I wasn’t returning her phone calls.
       And I said, “[Mother], I can’t talk to you about this right now. This is a
       school matter. You need to make an appointment. Meet me at -- you
       know, contact me at school we can discuss it there.”



                                            1
                   And then she just continued to raise her voice, would not leave me
           alone. I asked her more than once to leave me alone. She kind of had me
           in a spot where I was in this spot where I was -- her family was behind me
           and I was -- my cart was there and she was kind of standing there, I
           couldn’t get out and she just kept, you know, “You need to -- You need to
           talk to me.” You’re -- You’re -- Basically, she was saying I had -- was
           mistreating her son and -- in class and that I needed to stop and that she
           had enough of me and she was tired of dealing with me and I wouldn’t
           respond to her phone calls.

           Teacher tried to get her groceries out quickly and Mother returned to her family

but loudly continued to complain about Teacher not talking to her and treating her son

badly in class. Mother did not follow Teacher out of Walmart and there was no further

contact until the night of the parent/teacher conferences. Unbeknownst to Mother,

Teacher filed an ex parte order of protection claiming that Mother was stalking her;

however, the order was not served on Mother prior to the school conferences. Mother

was speaking with a teacher across the hall. When Teacher saw her, she shut her door

and tried to walk out. Teacher testified that:

           [Mother] said, “You have to talk to me.
                   And I said, “No, I don’t. Please leave me alone.”
                   [Mother] goes, “You’re going to talk to me.”
                   And I said, “No, I’m not going to talk to you. You need to leave
           me alone. I’m going to go to the office and you need not to follow me.”
                   And she said, “Well, I can come to the office.”
                   And I said, “I wouldn’t come to the office if I were you. I would
           just leave me alone. I’m going to go in here.”

           Teacher went to the office and the “principal dealt with it after that point.” In her

sole point, Mother claims the trial court erred in issuing the full order of protection in that

these contacts do not meet the definition of “stalking” under section 455.020.1 Mother is

correct.




1
    All references to statutes are to RSMo Cum. Supp. 2013, unless otherwise specified.


                                                      2
       Section 455.020 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, may seek relief . . . by filing a verified petition alleging such domestic

violence or stalking by the respondent.” There is no dispute that Teacher was not a

person who was subject to domestic violence by a present or former family or household

member. What remains is a claim by Teacher that she had been stalked.

       “‘Stalking’ is when any person purposely and repeatedly 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(13). The

undisputed evidence of both parties challenges both the “purposely and repeatedly” and

“course of conduct” prongs that are necessary to find stalking.

       “‘Alarm’ means to cause fear of danger of physical harm[.]” Section

455.010(13)(a).

       “‘Course of conduct’ means a pattern of conduct composed of repeated acts over

a period of time, however short, that serves no legitimate purpose. Such conduct may

include, but is not limited to, following the other person or unwanted communication or

unwanted contact[.]” Section 455.010(13)(b).

       The first confrontation as set forth above in Teacher’s words was a random

meeting at Walmart. The facts are that Mother (who stated Teacher was avoiding her)

wanted to speak to her child’s teacher, accidentally ran into her at Walmart, and chose

that opportunity to speak to her. Teacher, who was on her cell phone in the checkout

line, stated she was off-duty and did not need to speak to Mother. Mother was angry for

being brushed aside and ended up in a verbal confrontation with her. The first event




                                               3
cannot be classified under the definition of stalking as it was not “purposely and

repeatedly” or a “course of conduct,” that served no legitimate purpose.

       The second event was a parent-teacher conference, an event that Mother was

invited to and should attend, according to Teacher. In fact, while in Walmart, Teacher

specifically told Mother that she should talk to her at the school. Mother was visiting

with a teacher across the hall from Teacher and did not know that Teacher had taken out

an Order of Protection against Mother. She was in the school for a legitimate purpose. It

was an appropriate time for Teacher and Mother to talk about Mother’s concerns about

her child. It could not have caused alarm in Teacher to see Mother as a parent at a

parent-teacher conference. Although Mother asked repeatedly to speak with Teacher at

the time set aside when parents and teachers are supposed to talk, Teacher chose not to

talk to Mother and walked off. There is no evidence that Mother followed, harassed, or

stalked Teacher in any way. The entry of the Order of Protection was a misapplication of

the law.

       As we have said:

       It is important to note that the Adult Abuse Act was not intended to be a
       solution for minor arguments between adults. Prior courts have warned us
       that there is great potential for adults to abuse the stalking provision of the
       Adult Abuse Act:

               The potential for abuse of the stalking provision of the
               Adult Abuse Act is great. And, the harm that can result is
               both real and significant, not the least of which will be the
               stigma that attaches by virtue of a person having been
               found to be a stalker. Moreover, such a finding could lead
               to criminal prosecution for violation of the criminal
               stalking statute, § 565.225. Thus, it is incumbent that the
               trial courts exercise great vigilance to prevent abuse of the
               stalking provisions in the Adult Abuse Act and in making
               sure that sufficient credible evidence exists to support all
               elements of the statute before entering a protective order.



                                             4
Patterson v. Pilot, 399 S.W.3d 889, 898 n.17 (Mo. App. S.D. 2013) (quoting Wallace v.

Van Pelt, 969 S.W.2d 380, 387 (Mo. App. W.D. 1998)).

       This was an argument between two adults about a child. Orders of Protection are

an attempt by the legislature to solve serious problems of adult abuse. Mother’s point is

granted. The judgment granting the Order of Protection is reversed.


Nancy Steffen Rahmeyer, J. - Opinion Author

Gary W. Lynch, J. - Concurs in Result in Separate Opinion

Mary W. Sheffield, P.J. - Concurs




                                            5
BETSY DEANN WASHBURN,                         )
                                              )
       Petitioner-Respondent,                 )
                                              )
vs.                                           )       No. SD33077
                                              )
SHEILA LYNN KIRK,                             )
                                              )
       Respondent-Appellant.                  )

                         OPINION CONCURRING IN RESULT

       I concur in the result.

       “The trial court’s judgment must be affirmed unless it is not supported by

substantial evidence, it is against the weight of the evidence, or it erroneously declares or

applies the law. Dennis v. Henley, 314 S.W.3d 786, 787 (Mo.App. 2010) (citing Murphy

v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). This Court views the evidence in the

light most favorable to the judgment. Id.

       In her sole point relied on, Mother claims there is no substantial evidence to

support the trial court’s implied finding that she engaged in two or more incidents of

conduct evidencing a continuity of purpose that caused alarm to Teacher when it was

reasonable in Teacher’s situation to have been alarmed by Mother’s conduct. Therefore,
there was no course of conduct from which to find “stalking” as defined by section

455.010.13. I agree.

       Teacher presented evidence of only two incidents of Mother’s conduct toward

her. Regardless of whether the Walmart incident caused Teacher alarm when it was

reasonable for her to be alarmed, Teacher produced no evidence that the parent-teacher

conference incident did so. With regard to this incident, the evidence in the light most

favorable to the trial court’s judgment is Teacher’s testimony that Mother’s son was in

her class, she told Mother at Walmart to contact her at school to talk about her son, a few

weeks later Mother came into her school building for a parent-teacher conference with

another teacher right across the hall from Teacher’s room, Mother approached Teacher

outside her room, they had a conversation about whether they could have a conversation

as Teacher moved toward the school’s office, and Teacher did not feel threatened during

that incident. Nothing in this evidence supports a finding that Teacher was alarmed by

Mother’s conduct during this incident or that it was reasonable for Teacher to have been

alarmed by Mother’s conduct during this incident. Therefore, there is no substantial

evidence that Mother engaged in the statutorily-required course of conduct that is

essential to prove stalking, as defined by section 455.010.13. See Dennis, 314 S.W.3d at

791.



GARY W. LYNCH, J. - author of opinion concurring in result




                                             2
