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Perren v. Perren

Court of Appeals of Missouri, Southern District, Second Division

December 11, 2015

STEVEN E. PERREN, Petitioner-Respondent,
v.
DANIEL A. PERREN, Respondent-Appellant

APPEAL FROM THE CIRCUIT COURT OF RIPLEY COUNTY. Honorable John H. Shock, Associate Circuit Judge.

STEVEN A. WATERKOTTE, St. Louis, MO, for Appellant.

JONATHAN T. STERNBERG, Kansas City, MO, for Respondent.

DON E. BURRELL, P.J. -- OPINION AUTHOR, GARY W. LYNCH, J. -- CONCURS, WILLIAM W. FRANCIS, JR., J. -- CONCURS.

OPINION

Page 742

DON E. BURRELL, P.J.

Appellant Daniel A. Perren and Respondent Steven E. Perren are brothers.[1] The two have a " strained" relationship, and there have been " all kinds of ex partes and fights and quarrels between" them.[2] One of those fights resulted in a bench trial on Steven's petition for an order of protection. The trial court found that Steven had " proven allegations of domestic violence and/or stalking against" Daniel, and it entered a full order of protection that ordered Daniel not to communicate with Steven and " not [to] commit or threaten to commit domestic violence, molest, stalk, or disturb the peace" of Steven for one year. See section 455.050.1.[3]

Daniel now appeals that order, claiming in a single point relied on that the " evidence was insufficient to enter the full order of protection, in that [Daniel]'s use of physical force in defense of his property was justified under [section] 563.041.1 RSMO and this justification constituted an absolute defense[.]" Because the trial court was not required to believe the evidence supporting Daniel's claim that he was justified in assaulting Steven, we affirm.[4]

" Because there is real harm that can result in abusing the Adult Abuse Act

Page 743

and its provisions [. . .] trial courts must exercise great care to ensure that sufficient evidence exists to support all elements of the statute before entering a full order of protection." McGrath v. Bowen, 192 S.W.3d 515, 517 (Mo.App.2006); see Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo.App.2003); Glover v. Michaud, 222 S.W.3d 347, 351-52 (Mo.App.2007). The Act is not, nor was it intended to be, " a solution for minor arguments between adults." Binggeli v. Hammond, 300 S.W.3d 621, 624 (Mo.App.2010).
Nevertheless, we presume the trial court's judgment is correct, and [the appellant] bears the burden of proving it erroneous. Surrey Condominium Ass'n, Inc. v. Webb, 163 S.W.3d 531, 535 (Mo.App.2005). Appellate review in this court-tried case is governed by Rule 84.13(d). Dennis v. Henley, 314 S.W.3d 786, 787 (Mo.App.2010). " The trial court's judgment must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Id. ; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).
On appeal, this Court views all facts and inferences in a light most favorable to the judgment. C.B. v. J.B., 356 S.W.3d 790, 793 (Mo.App.2011); Vinson v. Adams, 188 S.W.3d 461, 464 (Mo.App.2006). " The trial judge is in the best position to gauge the credibility of the witnesses and to determine the existence of any reasonable apprehension of abuse that a petitioner may harbor; conversely, the judge can determine whether a given respondent appears capable of the feared abuse." Parkhurst v. Parkhurst, 793 S.W.2d 634, 636 (Mo.App.1990); C.B., 356 S.W.3d ...

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