                  In the Missouri Court of Appeals
                          Eastern District
                                     DIVISION THREE

M.N.M.,                                        )      No. ED103606
                                               )
          Petitioner/Respondent,               )      Appeal from the Circuit Court of
                                               )      St. Louis County
vs.                                            )
                                               )
S.R.B.,                                        )      Hon. Mary Bruntrager Schroeder
                                               )
          Respondent/Appellant.                )      FILED: September 27, 2016



                                         OPINION

          Appellant S.R.B. appeals the judgment of the circuit court granting an Order of

Protection against her in favor of Respondent M.N.M. We reverse and vacate the

judgment.

                                        Background

          The parties were roommates for four weeks in 2015. Appellant moved out of

Respondent’s apartment and into a neighbor’s unit. Three months later, Respondent

sought an order of protection alleging that Appellant took something from Respondent’s

apartment and failed to return it, defaced her front door and mailbox, telephoned her

friends, and made her uncomfortable by remaining in the complex.

          At a hearing on the petition, Respondent testified that: she believed but couldn’t

prove that Appellant wrote the obscenities on her door and mailbox; Appellant contacted
two of Respondent’s friends “to talk about me in a negative way;” Appellant “contacted

me with a nasty test message;” and Appellant saw Respondent in the parking lot and

called her a bitch. On cross-examination, Respondent conceded that she was not afraid of

Appellant but didn’t know what she was capable of and didn’t want her around.

Respondent testified as follows:

       Q:      So, my only question to you is: you are not afraid of her?
       A:      No, I’m not afraid of her.
       Q:      So what harm do you believe she could do to you based on your petition?
       A:      I believe she wrote on my house. She can come back and write on my
               house.
       Q:      But you’re not afraid of her harming you physically?
       A:      She could. … I believe that people can harm you and people can do things
               maliciously.

       At the close of the evidence, the trial court orally granted a full order of

protection. However, in its standard form written judgment, the court did not check the

box confirming an evidentiary finding that Respondent had proven allegations

constituting abuse or stalking. Appellant appeals the court’s order and asserts that the

evidence in the record was insufficient to support findings of stalking or harassment.

                                   Standard of Review

       Our standard of review of an order of protection under the Adult Abuse Act is 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. Lawyer v. Fino, 459 S.W.3d 528, 530 (Mo.

App. S.D. 2015). We view all facts and inferences in the light most favorable to the trial

court’s ruling. Id.




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                                        Discussion

       In two related points, Appellant asserts that the evidence on the record is

insufficient to support a finding of stalking or harassment. She is correct. Section 455.010

defines those terms as follows:

       "Stalking" is when any person purposely engages in an unwanted course
       of conduct that causes alarm to another person, or a person who resides
       together in the same household with the person seeking the order of
       protection when it is reasonable in that person's situation to have been
       alarmed by the conduct. As used in this subdivision:
               (a) "Alarm" means to cause fear of danger of physical harm; and
               (b) "Course of conduct" means a pattern of conduct composed of
               two or more 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.
       "Harassment" [means] 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.
        Such conduct might include, but is not limited to:
               Following another about in a public place or places; [and]
               Peering in the window or lingering outside the residence of another; but
               does not include constitutionally protected activity.

       Even viewing the record in the light most favorable to the trial court’s judgment,

the evidence is wholly insufficient to establish that Appellant stalked or harassed

Respondent as defined in the statute. Respondent admitted that she was not afraid of

Appellant, and nothing in her testimony indicated that she genuinely was alarmed or

substantially emotionally distressed by Appellant’s alleged conduct. The trial court made

no findings of fact to support its order, nor can such findings be inferred from this record.

Points I and II are granted.

       “The Adult Abuse Act was not intended to be a solution for minor arguments


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between adults.” Lawyer, 459 S.W.3d at 530. “There is a great potential for abuse, and

real harm can result from improper use of the Act.” Id. Thus, “courts must 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.” Id.

                                       Conclusion

       The trial court’s judgment is not supported by substantial evidence and, therefore,

is hereby reversed and vacated.




                                      ______________________________________
                                      Lisa Van Amburg, Judge


Robert G. Dowd, Jr. and
Angela T. Quigless, P.J., concur.




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