                                                In the
                            Missouri Court of Appeals
                                       Western District
 RON JONES,                                           )
                                                      )
                  Respondent,                         )   WD82528 Consolidated with
                                                      )   WD82529
 v.                                                   )
                                                      )   OPINION FILED:
 DALE STANDFUSS,                                      )   November 26, 2019
          Appellant,                                  )
                                                      )
 MARY LEE STANDFUSS,                                  )
                                                      )
                   Appellant.                         )

                 Appeal from the Circuit Court of Adair County, Missouri
                        The Honorable Thomas P. Redington, Judge

Before Division Three: Alok Ahuja, Presiding Judge, Gary D. Witt, Judge and Anthony
                               Rex Gabbert, Judge


        Dale Standfuss and Mary Standfuss (collectively "the Standfusses")1 each appeal

from a judgment of the Circuit Court of Adair County entering full Orders of Protection in

favor of Ron Jones against the Standfusses. The Standfusses each raise two allegations of




        1
           Because Dale Standfuss and his wife Mary Standfuss share a last name, we refer to the Standfusses
individually by their first names for purposes of clarity. No familiarity or disrespect is intended.
error, and because the Standfusses raise similar points on appeal, we have consolidated

their appeals. We reverse and vacate both orders of protection.

                                 Factual and Procedural Background

         Dale and Mary live across the street from Jones in Kirksville, Missouri. At some

point in 2018, Mary petitioned for an order of protection against Jones, and the parties

appeared at a hearing in the circuit court in December 2018. At that hearing, the circuit

court ordered the parties "to leave each other alone."2 On January 15, 2019, Jones

petitioned for an order of protection against both of the Standfusses individually. On

January 24, 2019, the circuit court held a joint hearing, and evidence introduced at the

hearing is discussed in more detail below. At the January hearing, the circuit court entered

full orders of protection against the Standfusses in favor of Jones. The Standfusses

separately filed timely notices of appeal, and on our own motion we consolidated the

appeals.

                                                      Analysis

         The Standfusses raise two points on appeal. First, they allege the trial court erred

in entering full orders of protection because the evidence was insufficient to prove that the

Standfusses engaged in an unwanted course of conduct that served no legitimate purpose.

Second, they allege the circuit court erred because Jones failed to prove by a preponderance

of the evidence that the Standfusses's actions caused alarm to Jones.




         2
           It is unclear from the record if this was just a statement from the trial court, if it was contained in a
judgment, or if any final order was entered against either party. If any judgment was entered in that matter it is not
before us and is not contained in our record on appeal.

                                                           2
                                            Standard of Review

        We review an order of protection under the Adult Abuse Act ("Act")3 "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 competent evidence from which the trier of fact could

reasonably decide the case." Wallace v. Van Pelt, 969 S.W.2d 380, 382 (Mo. App. W.D.

1998). The trial court is in the best position to determine credibility of witness and we

defer to its findings. Id. at 383.

                                               Proof of Alarm

        Because the second point raised on appeal is dispositive in this case, we need not

address the first. The Standfusses allege that Jones failed to meet his burden of proof to

sufficiently demonstrate that the Standfusses's actions caused Jones alarm as required by

the Act. We agree.

        Section 455.020.1 states 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 sections 455.010 to 455.085 by filing a

verified petition alleging such domestic violence, stalking, or sexual assault by the

respondent." Jones and the Standfusses are not related and are not members of the same

household; therefore, allegations of stalking were the bases of Jones's petitions. The Act


        3
         Section 455.005, et seq. All statutory references are to the Revised Statutes of Missouri 2016 as
supplemented through January 24, 2019, unless otherwise indicated.

                                                         3
is not "intended to be a solution for minor arguments between adults." Binggeli v.

Hammond, 300 S.W.3d 621, 624 (Mo. App. W.D. 2010). "[T]rial courts must exercise

great care to ensure that sufficient evidence exists to support all elements of the [Act]

before entering a full order of protection" because there is real harm that can result in

abusing the Act including the stigma of being labeled a "stalker." McGrath v. Bowen, 192

S.W.3d 515, 517 (Mo. App. E.D. 2006).

      The General Assembly defines "stalking" 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) (emphasis added). "'Alarm' means to cause fear of danger of physical harm."

Section 455.010(14)(a). Thus, Jones bore the burden to produce sufficient evidence that

he was in fear of danger of physical harm. "Alarm has a subjective and objective

component." E.D.H v. T.J., 559 S.W.3d 60, 64 (Mo. App. E.D. 2018). To establish the

element of alarm, a petitioner must prove by a preponderance of the evidence that he or

she subjectively fears danger of physical harm and a reasonable person in the same

situation would fear danger of physical harm. Id.; Binggeli, 300 S.W.3d at 623-24.

                          A. Jones's Fear of Alarm as to Dale

      When addressing Dale's conduct, the majority of Jones's testimony was that he felt

"intimidated" because Dale, a courthouse employee, followed Jones around the courthouse

and "looked at [Jones]." He also alleged Dale waits by the courthouse exit to try to see

what papers Jones filed with the court. However, Jones also testified, "I'm not scared of

[Dale], no, sir." Jones's chief complaint was that "I just don't want him following me and

                                            4
watching everything I do." Jones did not produce evidence of any threats or physical

contact by Dale, testified that Dale had never touched him, and testified that "[Dale] doesn't

speak, he just stares." In one sentence of testimony, Jones alleged that Dale had attempted

to run Jones off the road without any detail as to when, where or how this occurred.4

         In its Judgment, the court found that Jones had proven allegations of stalking against

Dale. Because we defer to the trial court on issues of credibility, we presume that Jones's

statement he was intimidated was more credible than his statement that "he was not scared

of Dale." Based on that presumption, Jones met his burden to demonstrate that he

subjectively feared Dale would cause physical harm. However, the trial court found that

merely staring at another individual is not intimidating; therefore, Jones failed to

demonstrate that a reasonable person under the same circumstances would have feared

physical harm. Because Jones did not establish an objective fear of physical harm by a

preponderance of the evidence, the circuit court erred in entering a full order of protection

in favor of Jones and against Dale.

                                 B. Jones's Fear of Alarm as to Mary

         Jones's chief complaint against Mary was that "she continuously goes to the police

department and makes contact with them and wants me arrested."                                     The evidence

demonstrates that from 2014 through 2018, Mary called the police to complain about Jones



         4
           In each petition for an order of protection that he filed with the court he provides details regarding this
allegation. He alleged that at various times the Standfusses (Mary twice and Dale once), "tried to hit me with his car
by not yielding to on coming [sic] cars. He was in the 900 block of Kingsroad and his lane was block [sic] by
parked cars so he cross [sic] into my lane making me come to a complete stop or be hit by Dale." Jones's testimony,
even when considered in light of the allegations in the Petition, was too vague and indefinite to support the
Judgment.

                                                          5
three times; the nature of the complaints is not in the record. Jones alleged that Mary was

"using the police department to harass me." Jones also attempted to establish that Mary

had "anger issues" through the testimony of a neighbor and a former neighbor, but neither

witness testified about any specific incidents between Mary and Jones. Further, in one

sentence of testimony, Jones alleged that Mary had almost hit him twice with her vehicle.

See Footnote 4. Jones also testified that he was not afraid of Mary.

       Direct testimony of fear of physical harm is not required for a petitioner to obtain

relief under the Act. In C.L. v. Hartl, 495 S.W.3d 241, 244 (Mo. App. W.D. 2016), this

Court found that a petitioner's statement that she "felt safe" was not dispositive when a trial

court granted a full order of protection. In that case, the petitioner, in discussing a single

incident, stated she "felt safe" during that incident because she was inside her home with

the door locked and had set the alarm on her home and had her dog next to her. Id. While

she may not have felt unsafe at that time, the fact she set her alarm and brought her dog to

the door with her suggested she was fearful of her ex-boyfriend who was on the other side

of the door. Id. When a petitioner fails to produce direct testimony of his or her fear or,

as in the instant case, provides testimony to the contrary, the petitioner may demonstrate

his or her fear through conduct.

       Most of the evidence against Mary was that of disgruntled current or former

neighbors, which alleged that Mary: (1) refused to return whiffle balls that went over her

fence, (2) destroyed a whiffle ball before throwing it back over the fence, (3) "yelled" at

children if they entered her property, (4) used foul language to address neighbors, and (5)

had beaten her own child. None of these acts were directed at Jones and do not support the

                                              6
relief requested. These incidents are examples of "minor arguments between adults" for

which the Act is not intended to provide a solution, especially when Jones did not even

witness most of the events. Binggeli, 300 S.W.3d at 624. Furthermore, the trial court found

that "what we're doing right now is rehashing all of the issues from [the December hearing].

Because all of you have told me that there haven't been any problems since I ordered all of

you to leave each other alone. There haven't been any new problems. . . ."

       Jones expressly testified that he was not afraid of Mary, and Jones did not produce

evidence of actions taken by Mary that would reasonably cause him fear. Therefore, Jones

did not meet his burden of proving by the preponderance of the evidence that he

subjectively feared Mary would cause him physical harm. Even if Jones had met his burden

of proving he subjectively feared Mary, he failed to establish that Mary's conduct would

cause a reasonable person to be afraid. Therefore, the circuit court erred in entering a full

order of protection in favor of Jones and against Mary.

                                        Conclusion

       While we are sympathetic to the trial court's desire to have these parties stay away

from each other so as to avoid confrontation, the judgments of the circuit court granting

Jones's Orders of Protection against the Standfusses are reversed, and the Full Orders of

Protection entered against the Standfusses are vacated.


                                          __________________________________
                                          Gary D. Witt, Judge

All concur



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