M.S.C., Respondent, v. S.W., Appellant.

M.S.C.,

Respondent,

v.

S.W.,

Appellant. ) ) ) ) ) ) ) ) ) No. ED113307

Appeal from the Circuit Court of Lewis County The Honorable Corey R. Moon, Judge In this appeal, appellant SW challenges the trial court's grant of a full order of protection. MSC filed a petition on November 15, 2024 under the Adult Abuse Act, sections 455.010 – 455.095, 1 in which she alleged that her neighbor SW repeatedly threatened and harassed her and her family. After an evidentiary hearing at which MSC, her husband, and their two sons all testified, the court entered a full order of protection in favor of MSC upon its finding that SW's conduct constituted stalking as defined in section 455.010(15).

1 All statutory references are to the Revised Statutes of Missouri (2016).

2

SW now appeals asserting that the evidence was insufficient to prove that his conduct constituted stalking. We disagree because the extensive record of SW's conduct here – both the conduct he directed to MSC specifically and the conduct he directed to MSC's husband and two sons of which MSC was well-aware – was sufficient to prove that SW purposely engaged in an unwanted course of conduct that subjectively caused MSC alarm and that it was objectively reasonable for her to be alarmed by his conduct. Background MSC, her husband, and their two sons each filed a separate petition for an order of protection against SW but only MSC's is before us. Because the four petitions involved related claims as to SW's conduct, the trial court chose to conduct one evidentiary hearing which it did on January 7, 2025. MSC, SW, and MSC's three family members testified. MSC and her family live in a house in La Grange, Missouri. SW is their next-door neighbor. The relationship among these neighbors was good until March 2024 when it began to sour. In early July 2024, as MSC stood on her front porch to smoke a cigarette, SW stopped and called her a "stupid bitch" and a "whore." The next day, MSC was on her front porch as SW drove by and MSC made an offensive gesture to SW. SW stopped suddenly and again verbally insulted MSC before getting out of his car and inviting MSC to fight. MSC said to SW, "Let's put an end to it" as she approached him to within an arm's length. MSC testified she would have fought SW "if it came down to it." In October 2024, SW threatened MSC and again invited her to fight him. Nothing in the

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record indicates that MSC accepted this invitation. When this encounter occurred, MSC was at the end of her driveway and SW across the street. Moreover, SW regularly drove slowly by MSC's home while video-recording MSC and her family members and also he frequently video-recorded MSC from across the street. MSC's husband and two sons each testified to their own clashes with SW, clashes of which MSC was aware. Husband JC testified that while driving to work one day, SW aggressively swerved into his path and then followed him home. He also told the court that whenever he and SW would see each other, SW would barrage JC with vulgar insults. Son AS told the court that on one occasion SW, who was on foot, lunged at AS as he rode by on a four-wheeler. AS similarly alleged that SW has employed vulgar insults and threats of violence when AS takes out the trash and that SW has also followed him in his vehicle through town. MSC's husband and sons testified they were not afraid of SW. MSC testified that initially she was not alarmed by SW's conduct, but that she became afraid when his conduct became increasingly more threatening. For instance, she was aware of SW's statement directed to her family that "I'm going to shoot your shit up." And MSC testified that SW shot his BB gun at her family's home and at their vehicle. For his part, SW denied all of the allegations. Standard of Review

This court will affirm a judgment granting a full order of protection unless there is no evidence to support it, it is against the weight of the evidence, or it erroneously

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declares or applies the law. S.A.B. v. J.L.R., 675 S.W.3d 245, 252 (Mo. App. 2023) (citation omitted). This Court views the evidence and the reasonable inferences therefrom in the light most favorable to the verdict. Davis v. Davis, 107 S.W.2d 425, 429 (Mo. App. 2003). "Because the trial judge is in the best position to gauge the credibility of the witnesses, in cases under the Adult Abuse Act, the discretion of the trial court should not often be superseded." Id. (internal quotation omitted). Given the "potential stigma that may attach to an individual who is labeled a 'stalker' under the Missouri Adult Abuse Act, trial courts must exercise great care ... to ensure sufficient evidence exists to support all elements of the statute before entering a full order of protection." M.L.G. v. R.W., 406 S.W.3d 115, 117 (Mo. App. 2013). The Act is not intended to be used to resolve minor arguments between parties. Binggeli v. Hammond, 300 S.W.3d 621, 624 (Mo. App. 2010). Discussion

We are faced with a simple question: whether, given our standard of review and the deference we give the trial court in these matters, there is sufficient evidence on this record that that SW "stalked" MSC as that term is described in the Act. We find there is and therefore affirm the trial court's grant of the full order of protection. "Stalking" under the Act occurs when an adult "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(15). A course of conduct is a pattern of repeated acts over a period of time, however short, that is not

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sanctioned by law or custom. Section 455.010(15)(b); Towell v. Steger, 154 S.W.3d 471, 475 (Mo. App. 2005). "Alarm" means "to cause fear of danger of physical harm." Section 455.010(15)(a). The "alarm" element requires the complaining party to prove both that the respondent's conduct caused her to fear the danger of physical harm from a subjective standpoint and also that objectively a reasonable person in her situation would have experienced such fear. Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo. App. 2007). Turning to the circumstances before us, we find that the record establishes that SW engaged in a purposeful, repeated, and certainly unwanted course of conduct directed not only at MSC but at her entire family. S.A.B. v. J.L.R., 675 S.W.3d 245, 253 (Mo. App. 2023) ("It is the entire course of conduct, not each individual act in isolation, that must reasonably harm the petitioner in order to support a full order of protection on stalking grounds ...."). As for the two-part "alarm" element, we first find that the record supports the trial court's conclusion that SW's conduct subjectively alarmed MSC. MSC testified that although SW's erratic behavior did not frighten her at first, she became so as it escalated, particularly when SW began shooting his BB gun at their property. Moreover, we also consider as relevant and supportive of the trial court's decision SW's aggressive conduct toward MSC's husband and two sons, all of whom lived in the same household. The case of B.L.M. v. D.L.O., 643 S.W.3d 910 (Mo. App. 2022) is applicable here. In B.L.M., this court affirmed the trial court's entry of a full order of protection for petitioner where the respondent directed his conduct at both her and her son since they lived in the same

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household. Id. at 912-13. In addition, much of the conduct directed at the son also indirectly targeted the petitioner. Id. at 915. We also find satisfied the second part of the "alarm" element – whether it was objectively reasonable for MSC to be alarmed. SW's conduct targeted MSC personally and her entire household and his conduct escalated from name-calling to threats of physical violence and property damage that were accompanied by the acts of shooting a BB gun at the family home and vehicle. Again, B.L.M. is instructive. There, the court held that "D.L.O.'s threats to Mother and her household would have been objectively alarming to a reasonable person because they were repeated and escalated in nature from written threats to physical destruction of property and threats of physical violence. It is objectively reasonable to conclude that such conduct could have escalated further to physical harm." Id. at 916. Such is the case here. We next address MSC's role in at least two of the initial clashes between the parties in which MSC engaged with SW in verbal insults and then seemed to accept at least one of SW's invitations to fight. The first issue is a factual one regarding the impact this conduct may have on MSC's ability to prove (1) that SW's course of conduct was unwanted and not sanctioned by law or custom and (2) that his conduct was objectively alarming and caused MSC to be subjectively alarmed. An order-of-protection petitioner who hurls insults at and then shows her willingness to fight her nemesis would seem to undermine her claims. Nevertheless, we defer to the trial court's assessment of the testimony and the parties' credibility especially since SW's course of conduct was so

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extensive and MSC explained that initially she was not alarmed but became so as SW's conduct increased in its aggressiveness. The second issue raised by MSC's conduct is a legal one – the clean hands doctrine. Purcell v. Cape Girardeau Cnty. Comm'n, 322 S.W.3d 522, 524 (Mo. banc 2010) ("A litigant with unclean hands generally is not entitled to equitable relief such as an injunction or declaratory judgment."). We are guided by McAlister v. Strohmeyer, 395 S.W.3d 546 (Mo. App. 2013) in which the court reviewed the denial of an order of protection to a mother who claimed the father of her child pointed a gun at her during a violent encounter between the two during which the woman repeatedly attacked the man. Id. at 554. The court declined to apply the equitable doctrine of clean hands because while the injunctive remedy section 455.040 provides is certainly equitable in nature, it remains a statutory remedy. Id. at 554 n.9. Instead, the court analyzed the matter in the framework of the Act and considered whether the man's conduct in pointing the gun at the woman was justified conduct on his part. Id. at 556. For our purposes, then, MSC's conduct does not preclude her from seeking relief under the Act based on the clean hands doctrine and instead her conduct was properly considered by the trial court in the context of the elements of stalking established by the Act. For his part, SW cites to George v. McLuckie, 227 S.W.3d 503, 508-10 (Mo. App. 2007) in support of his argument that his conduct here does not satisfy the alarm element so as to warrant a full order of protection. We find George to be distinguishable. There, the court opined that several harassing text messages, driving by the petitioner's place of employment, and "flipping off" the petitioner was not sufficient to warrant a full order of

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protection, despite the petitioner's testimony that these actions made him fearful, because there was no evidence that the behavior caused the petitioner a fear of physical harm. Id. at 507. But here, MSC testified to her fear of physical harm from SW's behaviors that included lunging at members of her family, threatening to fight her and at least one of her sons, shooting at their vehicle and house with a BB gun, and threatening that "I'm going to shoot your shit up." Conclusion For the foregoing reasons, we affirm.

______________________ J AMES M. DOWD, JUDGE Rebeca Navarro-McKelvey., P.J., and Gary M. Gaertner, Jr. J., concur.