JOHN SCOTT LAWYER, Petitioner-Respondent v. KIMBERLY DIANE FINO

JOHN SCOTT LAWYER, )

)

Petitioner-Respondent, )

)

vs. ) No. SD33448

)

KIMBERLY DIANE FINO, ) Filed: May 6, 2015

)

Respondent-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY

Honorable Mark A. Stephens, Associate Circuit Judge

REVERSED

Kimberly Diane Fino ("Mother") appeals from the trial court's entry of a

full order of protection against Mother in favor of John Scott Lawyer ("Father").

Mother argues there was insufficient evidence to support the trial court's finding

of abuse or stalking under the Missouri Adult Abuse Act. See § 455.020.1

Mother's arguments are correct, and the trial court's judgment is reversed.

Standard of Review

Review of the grant of a full order of protection under the Adult Abuse Act

is under the same standard as any other court-tried case; that is, this Court "will

uphold the trial court's judgment as long as it is supported by substantial

1 All statutory references are to RSMo Cum. Supp. (2013).

evidence, it is not against the weight of the evidence, and it does not erroneously

declare or apply the law." Patterson v. Pilot, 399 S.W.3d 889, 897 (Mo. App.

S.D. 2013). The facts and inferences are viewed in the light most favorable to the

trial court's ruling. Id. However, "[i]t is important to note that the Adult Abuse

Act was not intended to be a solution for minor arguments between adults."

Washburn v. Kirk, 437 S.W.3d 831, 833 (Mo. App. S.D. 2014). There is a

great potential for abuse, and real harm can result from improper use of the Act,

"not the least of which will be the stigma that attaches by virtue of a person

having been found to be a stalker." Id. (quoting Patterson, 399 S.W.3d at 898

n.17). For those reasons, 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. (quoting Patterson, 399 S.W.3d at 898 n.17).

Factual and Procedural Background

Mother and Father were married and had two children together. Mother

and Father divorced in 2007 and experienced many subsequent conflicts

regarding their children.

On May 27, 2014, Father filed a petition for an adult order of protection

under the Missouri Adult Abuse Act. On June 10, 2014, the trial court held a

hearing regarding the petition. The parties appeared and tried the case without

the assistance of lawyers.

Father testified that Mother sent him numerous threatening text messages

that disrupted his home and his work. Father also stated that on May 26, 2014,

2

there had been a prowler at his home. Father explained that he filed a police

report regarding the incident, but was unable to identify the prowler.

Father also submitted into evidence copies of some of the text message

conversations between himself and Mother.2 The exhibits show a handful of text

exchanges regarding the children's health and education. On May 27, 2014,

Mother texted Father regarding an appointment with an eye doctor that the

children were scheduled to attend. Later that evening, Mother texted Father

expressing dismay that Father had let the children sleep outside in a tent with no

adult supervision and that Father had let one of the children eat foods containing

gluten when, according to Mother, that child was supposed to be on a gluten-free

diet. A series of texts during the afternoon of May 29, 2014, involved the dates

for visitation in the summer. During the evening of May 29, 2014, Mother sent

Father a number of texts regarding a motion to modify child custody which

Father had filed. On June 2, 2014, Mother sent Father a series of text messages

regarding the fact that Father did not take the children to summer school.

After admitting the text messages into evidence, the trial court permitted

Mother to testify. Mother stated the text messages were all about the children,

and denied that she had been the prowler at Father's house.

A full order of protection was entered on June 10, 2014. The trial court

found Father had proven domestic violence or stalking. Mother appeals.

Discussion

The Missouri Adult Abuse Act provides that "[a]ny person who has been

subject to domestic violence by a present or former family or household member,

2 The full text of Father's exhibits is reproduced in the appendix to this opinion.

3

or who has been the victim of stalking, may seek relief under sections 455.010 to

455.085 by filing a verified petition alleging such domestic violence or stalking by

the respondent." § 455.020.1. As Mother and Father had been married at one

time, they meet the statutory definition of family or household member. See

§ 455.010(7) (defining family or household member to include, inter alia, former

spouses). Thus, Father could seek a full order of protection under either ground

listed in the statute. Compare Cuda v. Keller, 236 S.W.3d 87, 90 (Mo. App.

W.D. 2007) (noting that family members do not need to prove stalking in order

to obtain a full order of protection), with Fowler v. Minehart, 412 S.W.3d 917,

921 (Mo. App. S.D. 2013) (noting that a petitioner who did not allege the

defendant was a family or household member was limited to seeking an order of

protection under the stalking provision of the statute). It is not apparent as to

which ground the trial court relied upon, and Mother challenges both grounds in

her point relied on.3 Each ground will be addressed in turn.

Abuse

In the first portion of her sole point relied on, Mother argues there was no

evidence presented to show abuse because the text messages did not cause

substantial emotional distress, would not cause a reasonable person to suffer

substantial emotional distress, and served a legitimate purpose. Based on the

plain language of the statute and the case law interpreting that statute, Mother is

correct.

3 "Points relied on containing multifarious claims violate Rule 84.04(d) and ordinarily are subject

to dismissal." Patterson, 399 S.W.3d at 897 n.15. Nevertheless, we exercise our discretion to

review the point because the deficiency does not impede our ability to understand the nature of

Mother's claims. See Levine v. Schmidt, 421 S.W.3d 465, 470 (Mo. App. S.D. 2013).

4

Under Chapter 455, the term "[a]buse" encompasses assault, battery,

coercion, harassment, sexual assault, or unlawful imprisonment. § 455.010(1).

Here, there were no allegations of assault,4 battery, coercion, sexual assault, or

unlawful imprisonment, so the resolution of this issue depends on the definition

of the term "[h]arassment." The statute defines the term "[h]arassment" as

follows:

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.

§ 455.010(1)(d). The statutory definition of harassment requires proof of two

things: that the conduct was "such as to cause a reasonable person to suffer

substantial emotional distress" and that the conduct "actually cause[d] such

distress to the petitioner." C.B. v. Buchheit, 254 S.W.3d 210, 213 (Mo. App.

E.D. 2008). To meet this requirement, the petitioner must show "something

markedly greater than the level of uneasiness, nervousness, unhappiness or the

like which are commonly experienced in day to day living." Id. (quoting

Wallace v. Van Pelt, 969 S.W.2d 380, 386 (Mo. App. W.D. 1998)). For

example, harassment has been found where there was physical contact and an

offer to fight, Cuda, 236 S.W.3d at 90, or where there was evidence of drunken

outbursts, pushing, and repeated communications despite official requests to

discontinue communication, H.R. v. Foley, 356 S.W.3d 210, 214-15 (Mo. App.

4 The petition did mention that Mother had been arrested for domestic violence. However, the

domestic violence incident involved Mother's teenage daughter from a previous relationship. As

the violence was not directed at Father, it is not relevant to the issues raised in this appeal, i.e.,

whether Father had been subject to domestic violence or had been the victim of stalking.

§ 455.020.1. Also, the domestic violence allegation proved to be unfounded.

5

E.D. 2011). Repeated communication alone, on the other hand, typically does not

rise to the level of harassment because, while annoying and boorish, such conduct

would not cause substantial emotional distress in a reasonable person. E.g.,

Nenninger v. Smith, 400 S.W.3d 400, 405 (Mo. App. W.D. 2013); C.B., 254

S.W.3d at 213.

In the present case, Father stated he felt harassed and threatened by

Mother's repeated text communications. This testimony does not rise above the

uneasiness or nervousness commonly experienced in everyday life. In fact, while

Father did request on one occasion for Mother to "[s]top texting me your

threats[,]" he never asked her to stop communicating with him. The fact that

Father made one request distinguishes this case from other cases where courts

have found harassment and further supports the inference that Father did not

suffer substantial emotional distress.

Even if that testimony were sufficient to show Father subjectively felt

substantial emotional distress, there is no evidence to meet the second prong of

the test, i.e., that Mother's conduct would cause a reasonable person to suffer

substantial emotional distress. It is clear from examination of the texts

themselves that a reasonable person would not feel substantial emotional distress

upon receiving them. The majority of Mother's communications simply provided

information about the parties' children or sought to coordinate matters related to

the children. Although Mother made some comments indicating she would use

information against Father in court, "[l]itigation is not the type of behavior the

Adult Abuse Act seeks to prevent." Clark v. Wuebbeling, 217 S.W.3d 352, 355

(Mo. App. E.D. 2007).

6

Furthermore, there is no evidence that the communications in this case

were without legitimate purpose. "For conduct to have 'no legitimate purpose,' it

must be found to be not sanctioned by law or custom, to be unlawful, or not

allowed." Dennis v. Henley, 314 S.W.3d 786, 789 (Mo. App. S.D. 2010).

Missouri's appellate courts have repeatedly found that repeated communications

regarding the care of children between estranged parents are appropriate. E.g.,

Clark, 217 S.W.3d at 355. Here, the text messages were entirely related to issues

involving the parties' children including their health, education, visitation issues,

and the ongoing custody litigation.

The only other potentially relevant event involving the parties was the

prowler incident. However, in his testimony on that issue, Father never

identified the prowler. Mere speculation that Mother was involved is not

sufficient to support the entry of a full order of protection. See Suhr v. Okorn,

83 S.W.3d 119, 123 (Mo. App. W.D. 2002).

There was no evidence to support a finding of abuse by harassment.

Stalking

In support of her contention that the trial court's finding of stalking was

not supported by the evidence, Mother argues Father failed to present any

evidence showing he felt fear of danger of physical harm. Again, Mother is

correct.

The statute defines the term "[s]talking" as occurring "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." § 455.010(13). The statute goes on to define the

7

term "[a]larm" as "to cause fear of danger of physical harm[.]" § 455.010(13)(a).

To meet these definitions, "[a] plaintiff is required to do more than simply assert

a bare answer of 'yes' when asked if he or she was alarmed." H.R., 356 S.W.3d at

214 (quoting C.B., 254 S.W.3d at 209). Appellate courts will reverse orders of

protection based on this definition where there was no evidence of overt threats

of physical harm and no evidence of physical confrontations. E.g., D.A.T. v.

M.A.T., 413 S.W.3d 665, 668-69 (Mo. App. E.D. 2013); C.B., 254 S.W.3d at 213;

Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo. App. E.D. 2007); Clark, 217

S.W.3d at 354-55.

In the present case, although Father characterized Mother's text messages

as "threats," none of those messages involved a threat of physical harm. In fact,

none of the messages even implied a threat of physical harm. At most, Mother

threatened Father with litigation, but as stated above, "[l]itigation is not the type

of behavior the Adult Abuse Act seeks to prevent." Clark, 217 S.W.3d at 355.

There was no evidence that Mother's text messages caused alarm as that term is

defined by the statute.

There was no evidence to support a finding of either abuse or stalking.

Mother's point is granted.

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Decision

The trial court's judgment is reversed. The trial court is directed to vacate

the full order of protection and enter a judgment, consistent with this opinion,

denying Father's petition.

MARY W. SHEFFIELD, P.J. – OPINION AUTHOR

GARY W. LYNCH, J. – CONCURS

DON E. BURRELL, J. – CONCURS

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APPENDIX

Below is a transcription of the exhibits Father submitted at trial. The

messages have been organized by date, and all photographs have been omitted.

No corrections have been made to spelling or grammar.

Undated

Mother (7:17 AM) – The nurse checked her out. She was not to be at school. She

also DOES NOT HAVE HER MEDICINE! You did not listen to instructions. You

didn't look in Mikayla's mouth! She has blisters all over! She has hives all over!

I have a note for her from the nurse to be sent home. Please drop her medicine

off at the school. I will pick it up. You will not be getting her this weekend.

Mother (12:56 PM) – She may be ok to go back. As of now she has big white

blisters. She was screaming yesterday. Pain wise she is so much better with the

"magic mouthwash" it has nystatin, lidocaine and diaphenhydramine in it. She

has to swish really good than swallow 10ml every 4 hrs. I'm sending the bottle.

She can finally eat now bit numbs everything. Doc said it could take 7-10 days to

run it's course. We are on day 4. She will be fine. She WAS miserable!

May 27, 2014

Mother (10:47 AM) – Your vision insurance does not list co-pays or anything it

only list where the children can go I need to make sure what the co-pays are

please get me that information ASAP for their appointment. I need it before 230

today

Mother (10:47 AM) – All you provided was a phone number

Mother (11:21 AM) – I have it handled. If glasses are necessary it will be $35

dollars each child for everything. Exam. Lenses. Scratch resistant. Warranty and

frames at this office. So $70 total. This is if BOTH GIRLS NEED IT. THE

APPTS ARE AT 4 and 5 today! I will need you to call in payment so you must be

available. I was robbed and do not even have an active card! Thank you.

Mother (12:29 PM) – Expect a call between 4-6 pm. Not sure if they want

payment before. I'm assuming at the end so more like 5:30ish.

Mother (3:08 PM) – We are still here. Jesse needs glasses. Kayla is in the exam.

Still need to finish. May be closed to 6:30

Mother (3:09 PM) – Closer

Father (3:57 PM) – I told you I would take them. If you can't afford to pay your

half you need to let me handle medical stuff.

Mother (4:34 PM) – They are holding off on Jesse. Kayla deffinately needs

Prescription. They are having it all set up. You will have to come pay here they

said.

Mother (4:35 PM) – They will be ready Thursday when you pick up the girls.

<photograph of bill omitted>

Mother (5:02 PM) – This includes Jesse's visit also and glasses and they gave me

a $40 warranty free

Mother (5:04 PM) – Pear vision. Pick up and pay Thursday at 1518 E. Battlefield

Springfield across from the battlefield mall. They close at 6pm.

10

Mother (5:19 PM) – Did you look at mikayla's throat? She told me she told you

that she was hurting. She has bumps all over again. She told me you told her to

chill

Mother (5:25 PM) – It was the night after you left them sleep in a tent alone with

no Adult supervision. No adults sleeping with them outside.

Mother (7:14 PM) – Kayla just told me all the gluten food you gave her all

weekend! You are ridiculous! Pancakes. Quesadilla. Almond bars. Sandwich

with non gluten bread. Cheese puffs. WTF?????

Mother (7:14 PM) – She has a migraine asshole!!!

Mother (7:15 PM) – You are not getting her anymore!!!!

May 28, 2014

Father (6:02 AM) – Did Mikayla go to school

Father (6:47 AM) – Where is the diagnosis you said you would get be stating she

needs to be on a gluten free diet?

Father (6:49 AM) – Where is the diagnosis you said you would get me stating she

needs to be on a gluten free diet?

Mother (7:15 AM) – There is not a diagnosis yet. They are running test. If you

ever showed up to a doctor appointment you would know what's going on

Mother (7:15 AM) – Read up on gluten John educate yourself

Mother (7:16 AM) – She's at school

Mother (7:16 AM) – The school knows she's gluten-free so do you so do it

Father (3:48 PM) – Have the girls call me please

Father (4:58 PM) – Please have the girls call me.

<three photographs of gluten-free food omitted>

Mother (6:27 PM) – Corn tortillas and cheese for quesadillas. And gluten free

bread for a sandwhich or GF wrap from walmart in the deli

May 29, 2014

Mother (9:24 AM) – Melanie is getting married on June 15. I don't get in until

June 16 at 10 PM. She had already booked my flight I thought that you had had

the girls again as usual on their birthday with your vacation when she booked it.

I've already talk to the girls and we have our birthday plan set. Would you like to

keep them and I'll pick them up from summer school on Tuesday, June 17? If not

our friends the neighbors will be happy to pick them up from summer school

until I get home at 10pm and play with their friends. Obviously you first option

since it's their birthday You are their dad

Mother (9:25 AM) – I wish I could cancel the flight but she already spent the

money and it's nonrefundable I am made of honor

Mother (1:30 PM) – Okay never mind I actually have something really fun

planned for them

Mother (1:58 PM) – Nixa Public Schools: Don't forget! Tomorrow (5/30/14) is a

half-day for all students.

Mother (1:58 PM) – Please send a pic with Mikayla and her new glasses

Father (2:15 PM) – I can keep them in june

Mother (6:40 PM) – Hey I just wanted to thank you for opening at case about the

girls here in June. I was preparing to do it myself that you have me that

11

jumpstart and I thank you for that. I'm really getting tired of struggling on food

stamps and this low child support with no income. I also want my full custody

back. I spoke with CPS today and they're really getting tired of you wanting to

take the girls from me. They have no interest in doing that in fact they support

me as a mother. Your calls are uneventful and unproven and they have no

interest in doing anything of the sort. In fact I may have a fraud case. Alex's BS

is also getting canceled and I would even have a case against her for fraud. She

has a history as well as you don’t you remember all those restraining orders in jail

time you've done. I've already sent for records from Dr. Lieberman and all of the

records from California against you.

Also all the records here in Missouri that you developed through the last six

years. All the the police reports. All your fault CSP reports. All your judgments.

And so on and so on. I also have all the medical records coming to me that you

never paid from pregnancy birth and the three years in California where you

never paid a dime. I paid it all equaling over $20,000. I'm so excited to finally

get this all resolved and finally get the child support and time back with my kids

thank you again. I'm also excited that my children are old enough to have a voice

<smiling emoticon omitted>

Mother (6:40 PM) – By the way I have not been served I'm just not dumb

Mother (6:41 PM) –Good luck going pro se. I seem to remember winning a move

away case going pro per against the Newport Beach attorney

Mother (6:42 PM) – Good thing I've been reading up on the law hope you have

time

Mother (6:44 PM) – I'm also glad you present yourself as an army ranger fraud

it's going to look great in court

Mother (6:45 PM) – Please have the girls call me I told them I would say good

night to them

Mother (6:47 PM) – Oh by the way Mikayla's new doctor is a specialist and it is

not in your insurance and there's no way around it. You're going to have to fork

up the money sorry. It's for your daughter!

Mother (6:48 PM) – The only two doctors under your insurance have referred

her to this guy that's it end of story. So her to doctors happen to be my doctors

that's it we're in a small town you don't have a choice

Mother (6:49 PM) – The other doctor is under the insurance but this one's not.

He's out of network I will find out tomorrow how much out of network the

insurance covers mine only covers 35% I have to deal with it. Same goes for her.

Mother (6:49 PM) – My apt is like $43

Mother (6:49 PM) – The big appointments are like $100

Mother (6:50 PM) – That's if your insurance covers like 35%

Mother (6:50 PM) – I will see and get back to you

Mother (6:51 PM) – If you fight this it doesn't make you look good it's your

daughter's health. You already look bad in front of CPS in regards to the hospital

events. If you want to lose rights for custody on medical decisions I would watch

it

Mother (6:51 PM) – It took a year just to get vision insurance from you and

Mikayla needed glasses. It's taken a year to get Dental from you so I hope they

don’t have cavities!

12

Mother (6:51 PM) – I will bring that stuff to court

Mother (6:53 PM) – Your stupid munchehousens is bullshit. Your biggest

mistake was talking to John Lewis I have genetic testing linking me to my disease

you idiot!

Mother (6:54 PM) – The longer you keep saying I'm a bad mother the bigger the

whole you're going to dig yourself I would stop if I were you! Or keep going ….it'll

help me!!!!!!!!!

Mother (6:54 PM) – Is shouldn't talk to someone's ex are you that ignorant

seriously?!?! He just wants his house back come on! He's trying to win in court

also you guys are both dumb! Because both of you it's hurting each other you

guys are so ridiculous!

Mother (6:56 PM) – It's actually funny

Mother (6:56 PM) – Keep it up boys

Mother (6:56 PM) – I'm going to ask the girls what time they went to bed they tell

me everything so you better not be playing a game

Mother (6:57 PM) – Will have lunch tomorrow tell the girls good night since you

won't let them call. At least I don’t do that crap to my girls

May 30, 2014

Father (5:31 AM) – They were in bed by 830 I didn't get these messages till this

morning I'll have them call you after school

Mother (5:51 AM) – John you never respond what's different nothing

June 1, 2014

Mother (8:32 AM) – Please have the girls call me

Mother (12:48 PM) – Call you right back. I'm on a conference call

Father (12:59 PM) – Call tonight they are swimming

Mother (2:43 PM) – L

Mother (2:43 PM) – L

Mother (2:43 PM) – L

Mother (2:43 PM) – K

Mother (2:43 PM) – My phone is sticking

Mother (2:43 PM) – Just have them call me as soon as you can

Mother (3:08 PM) – Do you have the kids the 29th and 30 June

Father (3:08 PM) – Yes

Mother (3:10 PM) – I was chosen for a scholarship to attend a migraine

conference AHMA in LA June 29 my flight and hotel are paid for along with

everything else! I can't believe they picked me. It's because of my administrative

volunteer work with the hemiplegic migraine foundation. I'm so honored! I just

wanted to make sure that weekend I was available.

Mother (3:16 PM) – Even Mikayla's and I new Dr. Will be there on board of

doctors. He's originally with the mayo clinic. He is a good friend of the president

of this association that chose me. I just found that out last night.

Mother (3:20 PM) – Prowler btw lol

Father (5:44 PM) – The girls want to sleep in. Can Nichole drop them off at your

house by 10am. If not she'll drop them off at school.

13

Father (6:11 PM) – Fwd: May 30th to June 6th and July 11th to July 18th are my

other 2 weeks of vacation with the girls. I've already notified you about keeping

them June 20th to June 27th. This is all of my 3 weeks and your notification

prior to May 15th per the custody agreement.

Mother (6:12 PM) – They are committed to summer school. It's only 4 wks

June 2, 2014

Mother (9:55 AM) – Why aren't the kids at summer school? This is their first

day! I'm here for lunch and my kids are not here!!

Mother (10:01 AM) – The school is not happy and either am I

Mother (10:06 AM) – I made sour you got this last night "They are committed to

summer school. Its only 4 wks" summer school is serious They are committed to

summer school. Its only 4 wks"

Father (3:07 PM) – They got great grades. Jesse brought up her D….so I'd rather

reward them with a good Summer start. If you want to take them next week on

your days that's fine.

Mother (3:23 PM) – They are scheduled, enrolled and assigned teachers and are

expected to be in summer school. The school hired teachers by number of

students enrolled. They've already missed one day which costs the school. They

are expected to be there tomorrow. Make sure they are there on time. This is not

up to you this is been handled through the school and done in advance with the

teachers and the principal. The school will be notifying me once they get there.

Mother (3:24 PM) – I will have the truant officer get involved if they're not there

Mother (3:24 PM) – Jesse had reading and math tutors all year this is not up to

you.

Mother (3:25 PM) – She is still behind in her grade level and she needs summer

school to be up to par for next year. I'm involved with the school not you

Mother (3:26 PM) – She is not even at the bottom of the standard for fourth

grade level for entry for next year

Mother (3:26 PM) – She needs to be retested after summer school

June 3, 2014

Mother (3:25 PM) – Once again no school I'm getting a letter from the principal

Father (3:36 PM) – It's our vacation. Stop texting me your threats. Do what ever

you need to. I do not need these senseless and threatening text messages daily.

Mother (3:37 PM) – There are threats this are information from the school

principal I'm making you aware. You really should get a dictionary or a

thesaurus. Seems you don't understand vocabulary

Mother (3:38 PM) – And you don't care about the needs of your children

Mother (3:40 PM) – Me being custodial parent have just passed on the

information you've provided me via text about your priorities for the kids to the

school since I signed contracts in their best interest based on what the school has

provided me on based on Jesse's best interest. I meant Support and Jesse not

struggling through fourth-grade life is not a big party. I want my children to be

successful!

14

Mother (3:42 PM) – We don't believe in the same things so will just see what a

court thinks. I'm just getting the paperwork that they gave me! I'm doing my

part as a mother to benefit my child!

Mother (3:42 PM) – You are disregarding it as usual

June 4, 2014

Mother (9:11 AM) – Mrs. Wilkerson had called me and said you told her the kids

are on vacation with you. I'm having her put this in writing and getting Jesse's

reading scores and tutoring info supplied to me for court to show once against

your lack of patenting skills.

Mother (9:13 AM) – Jesse's reading is at 3 rd grade level. Summer school was to

help get it up to beginning of 4th grade. You are hurting your child once again.

June 5, 2014

Mother (10:01 AM) – Please have the girls call me

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