ROY L. RICHTER, Judge.
In this court-tried case, C.B. sought renewal of a previously granted full order of protection against her former boyfriend, J.B. Following a hearing, the trial court entered judgment, ordering renewal of the full order of protection for another year. On appeal, J.B. argues the trial court erred because the judgment was not supported by substantial evidence and the trial court erroneously applied the law. We affirm.
Following a multi-year relationship, C.B. ended her involvement with her boyfriend, J.B. However, unable to independently sever ties with J.B., on May 18, 2009, C.B. filed a petition seeking an Adult Abuse/Stalking Order in the Circuit Court of St. Charles County. Along with C.B.'s petition, she included a single-page attachment that painted a tumultuous picture of the relationship itself and the time since its conclusion. During their time together, C.B. alleged a single incident of physical violence during which J.B. tore her shirt and threw her against a wall. Following the break-up, C.B. claimed that, despite her requests that J.B. cease contact with her, J.B. persisted with his harassing behavior. Among the incidents described in her petition, C.B. averred that J.B.: repeatedly drove past her home; parked on her street and then peered through the windows of her home; repeatedly knocked on her door and rang the doorbell; and repeatedly came to her work. An ex parte order of protection was issued against J.B. on May 18, 2009, and a hearing was set for November 18, 2009.
At the November 18, 2009 hearing, prior to the introduction of any evidence, J.B. consented to the issuance of a full order of protection, effective until November 17, 2010. On October 29, 2010, C.B. moved to
At the November 17, 2010 renewal hearing, C.B. testified that although J.B. had obeyed the existing order and not contacted her during the past year, she remained in fear of J.B. and believed the order of protection was the reason that J.B. had kept away. Following further inquiry by J.B.'s counsel, C.B. added that J.B. previously had trapped her in her garage, pounded on her front door, and received a trespassing ticket for parking in front of her home and refusing to leave. Throughout her testimony, C.B. consistently reiterated that she was fearful of J.B. and felt in danger.
Following the conclusion of C.B.'s testimony, in response to a question from J.B.'s counsel regarding the standard for renewal, the trial court stated:
Likewise, at the conclusion of J.B.'s testimony, the following exchange took place regarding the standard the trial court would apply for renewal:
The trial court entered its judgment renewing the full order of protection for an additional year; expiring November 18, 2011. This appeal follows.
In this court-tried case, we will affirm the judgment unless it is not supported by substantial evidence, it is against the great weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "Substantial evidence is competent evidence from which the trier of fact could reasonably decide the case." Vinson v. Adams, 192 S.W.3d 492, 494 (Mo.App. E.D.2006).
Moreover, the violent acts the Adult Abuse Act is intended to prevent frequently occur unpredictably, without warning or reason. Accordingly, it is "[t]he trial judge [who] is in the best position to gauge the credibility of the witnesses and to determine the existence of
In order to obtain a full order of protection under the Adult Abuse Act, a petitioner must prove the allegation of abuse or stalking by a preponderance of the evidence. Section 455.040.1 RSMo Cum. Supp.2009.
In Capps, this Court was confronted with whether a renewal of a full order of protection is a civil action for purposes of a Rule 51.05(a) change of judge motion. 715 S.W.2d at 551-52. In finding that a renewal proceeding is not a civil proceeding for purposes of Rule 51.05, the Capps Court noted the lack of a renewal standard and set out to establish one. Id. at 552. With no guidance from the statutory language, the Capps Court looked to the legislature's purpose in enacting the Adult Abuse Act.
Id. (quoting State ex rel. Williams v. Marsh, 626 S.W.2d 223, 226 (Mo. banc 1982)). With that purpose in mind, the Capps Court held that the legislature intended an order of protection to be renewed if "a petitioner . . . proves by a preponderance of the evidence that the expiration of the Full Order will place petitioner in an immediate and present danger of abuse."
In J.B.'s first point on appeal, he asserts the trial court erred in renewing the full order of protection because the judgment was not supported by substantial evidence. Specifically, J.B. argues that C.B. failed to present sufficient evidence of either abuse or stalking at the original protection order hearing or the renewal hearing. We disagree.
Normally, in order to be granted a full order of protection, C.B. would have to prove her allegation of abuse or stalking by a preponderance of the evidence at the original, November 18, 2009 hearing. Section 455.040.1. Yet, in this case, J.B. consented to the entry of the original order; rendering any such presentation of proof moot.
In this case, sufficient evidence was adduced that C.B. was harassed by J.B. Abuse by harassment will be found "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." Section 455.010(1)(d). This definition contains both subjective and objective criteria. The conduct must not only cause the petitioner to actually suffer substantial emotional distress, but the conduct must also be sufficient to cause a reasonable person to suffer such distress. C.B. v. Buchheit, 254 S.W.3d 210, 213 (Mo.App. E.D.2008); Section 455.010(1)(d). In order to rise to the level of "substantial emotional distress," the offending conduct "must produce a considerable or significant amount of emotional distress in a reasonable person; something markedly greater than the level of uneasiness, nervousness, unhappiness or the like which are commonly experienced in day to day living." Buchheit, 254 S.W.3d at 213. "Conduct that merely causes alarm or distress to the victim but which would not cause substantial emotional distress to a reasonable person does not qualify as harassment." Id.
As a threshold matter, the testimony initially offered by C.B. was insufficient to support a renewal of the full order of protection. During direct examination by her counsel, C.B.'s testimony simply stated that she remained in fear of J.B. and, for that reason, sought renewal of the order of protection. A bare statement of fear fails to meet the standard required for renewal. Bandelier v. Bandelier, 757 S.W.2d 281, 283 (Mo.App. W.D.1988); see also Parkhurst, 793 S.W.2d at 637 (Although a statement of fear is, by itself, not enough for the issuance of a full order of protection, "the trial court is in best position to determine the necessity of the order at the time of the hearing.").
Despite the insufficiency of C.B.'s initial testimony, J.B.'s trial counsel cross examined C.B. regarding the foundation for her fear of J.B.
Likewise, the record is replete with support that C.B. actually suffered substantial emotional distress. C.B. requested that J.B. cease contact with her. Undeterred, J.B. continued his unwelcome, unannounced, and threatening behavior. Not until C.B. filed for an ex parte order of protection did J.B.'s worrisome behavior cease. Throughout the renewal hearing, C.B. reiterated her fear of J.B. She stated, "I feel I'm still in danger of him. I'm in fear of him. I feel that the order of protection works and keeps him away from me." This statement not only demonstrates her substantial emotional distress but also her belief that a failure to renew the order would result in the resumption of J.B.'s harassing behavior.
Despite J.B.'s assertion that his adherence to the full order of protection militates against the order's renewal, the trial court is not required to find a subsequent act of abuse to renew an order of protection. Vinson, 192 S.W.3d at 494-95. We review the evidence and reasonable inferences in a light most favorable to the judgment. Brethorst v. Brethorst, 50 S.W.3d 864, 866 (Mo.App. E.D.2001). When considered together—C.B.'s tumultuous experience with J.B. in the time preceding her petition for an order of protection, J.B.'s cessation of those activities only upon the issuance of such order, and C.B.'s testimony regarding her continued fear of J.B. and the efficacy of the order—we find that the trial court did not err in finding that expiration of the full order would place C.B. in an "immediate and present danger of abuse." Point denied.
In J.B.'s second point on appeal, he argues the trial court erred in renewing the order of protection because it misapplied the law and based its judgment solely on C.B.'s statement that she was still in fear. We disagree.
We will defer to the trial court's factual determinations, reviewing the evidence in a light most favorable to the judgment and disregarding all contrary evidence. Langdon v. United Rests., Inc., 105 S.W.3d 882, 886 (Mo.App. W.D.2003). Questions of law, however, are reserved for the independent judgment of the appellate court without deference to the trial court's determination. Id.
At various points in the renewal hearing, the trial court alluded to what it would consider sufficient proof for renewal of the order. J.B. asserts that those statements prove the trial court misstated the law and renewed the order solely based on C.B.'s
At the conclusion of the hearing, following testimony by both C.B. and J.B., the trial court gave a brief explanation for its decision to renew the order of protection.
Throughout the hearing the trial court made similar statements regarding the burden of proof. Contrary to J.B.'s contention, such statements are not evidence that the trial court ignored the standard for renewal set forth in Capps, 715 S.W.2d at 551-52. Upon review of the record, it appears the trial court was instead attempting to demonstrate, in an admittedly circuitous manner, its proper application of the Capps standard.
As outlined above, the trial court was presented with substantial evidence concerning the abuse that led C.B. to seek the original order of protection and the renewal of that order. Furthermore, C.B. testified that she considered herself to be in an immediate danger of abuse if the full order was not renewed. After consideration of that evidence, the trial court held that C.B. proved by a preponderance of the evidence that: (1) she was reasonably in fear of J.B.; (2) absent the protection order, J.B. would have unwanted contact or communication with C.B.; and (3) those factors were sufficient proof to renew the order of protection. Put another way, the trial court was persuaded that allowing the full order of protection to expire would subject C.B. to an immediate and present danger of abuse. This was a proper application of the standard for renewal. See Capps, 715 S.W.2d at 552; Vinson, 192 S.W.3d at 494-95. Point denied.
The judgment is affirmed.
CLIFFORD H. AHRENS, P.J., and GARY M. GAERTNER, JR., J., concur.