Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Eric D.
Eighmy, Associate Circuit Judge
Steffen Rahmeyer, J. - Opinion Author
D. Rivero ("Respondent") appeals from the trial
court's grant of a full order of protection against him
in favor of Tracy Lynne Gimlen ("Petitioner"). In a
single point, Respondent claims that the trial court erred
because there was not "substantial evidence" to
support a finding that Petitioner was subjectively alarmed by
Respondent's conduct or that a reasonable person in the
same situation would be alarmed by Respondent's conduct.
We disagree and affirm.
court-tried case, we will affirm:
the trial court's judgment as long as it is supported
by substantial evidence, it is not against the weight of
the evidence, and it does not erroneously declare or apply
the law. [Schwalm v. Schwalm, 217 S.W.3d 335, 336
(Mo.App. E.D. 2007)]. "Substantial evidence has been
defined as competent evidence from which the trier of fact
could reasonably decide the case." Towell v.
Steger, 154 S.W.3d 471, 474 (Mo.App. S.D. 2005). In
reviewing the trial court's judgment, we view all facts
and inferences in a light most favorable to the judgment
and defer to the trial court's determination of
credibility. Id.; Binggeli v. Hammond,
300 S.W.3d 621, 623 (Mo.App.W.D.2010).
Fowler v. Minehart, 412 S.W.3d 917, 920 (Mo.App.
S.D. 2013). "[W]e presume the trial court's judgment
is correct, and [the appellant] bears the burden of proving
it erroneous." Skovira v. Talley, 369 S.W.3d
780, 781 (Mo.App. S.D. 2012). Further, the Adult Abuse Act
"is not, nor was it intended to be, 'a solution for
minor arguments between adults, '" and,
"'[b]ecause there is real harm that can result in
abusing the . . . Act and its provisions, including the
stigma that may attach to a respondent who is ultimately
labeled a 'stalker, ' 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.'" Id. (citations
omitted); see also Fowler, 412 S.W.3d at 920 &
n.5 (same with an expanded explanation of the potential
and Procedural Background
September 21, 2015, Petitioner filed a verified petition in
which she appears to have sought an ex parte order
of protection and a full order of protection from
Respondent.In the petition, it appears
Petitioner's request for the orders is based on her
allegation that Respondent was stalking her - i.e.,
Petitioner marked the relationship box labeled
"Stalking, " and marked boxes that stated
"Respondent has knowingly and intentionally"
"coerced me, " "stalked me, "
"harassed me, " and "followed me from place to
place."Petitioner also alleged Respondent
"started back to work today in my office."
Petitioner did not mark available boxes to allege
that Respondent "caused or attempted to cause me
physical harm, " or "placed or attempted to place
me in apprehension of immediate physical harm, " or
"sexually assaulted me, " or "threatened to do
any of the above." In support of her request for an
ex parte order, Petitioner alleged that "I am
afraid of Respondent, " and also that Respondent
"has continuously harassed me for 2 yr at my work,
" and "I'm in fear for my safety, my
life." The trial court denied the requested ex
parte order of protection on September 22, 2015, and
scheduled a hearing on the request for a full order of
protection on December 16, 2015.
counsel for Respondent indicated at the outset of the hearing
that Respondent would testify, Petitioner was the only
witness at the hearing. Petitioner testified that Respondent
was "married, " and that Petitioner and Respondent
"work together in the post office, " but
"don't have any [other] kind of relationship."
Respondent also was Petitioner's "union
steward." Beginning in February 2012 and continuing into
January 2013 and then again on January 11, 2014, Respondent
made unwanted contact with Petitioner when she was out on her
mail route on "eight to ten" occasions. On the
first occasion, Respondent told Petitioner that flowers she
had received were "from him." On subsequent
occasions, Respondent told Petitioner "how good [she]
looked when [she] was wet" from the rain. On other
occasions, including on January 11, 2014, Respondent would
find and follow Petitioner for a short time on her mail
route. Respondent's conduct "was reviewed
administratively by the post office." In January 2013,
the "postal service" prohibited Respondent from
talking to Petitioner. And, "for a time, "
Respondent "was not allowed to work in the same
building" as Petitioner. At the time of the hearing,
Petitioner and Respondent again were working in the
"same building." Petitioner filed a report with the
police after Respondent followed her on January 11, 2014. In
July 2014, unsolicited "magazine subscriptions" and
bills for those subscriptions began showing up at
Petitioner's home. The unsolicited subscriptions and
bills continued until Respondent was arrested in December
2014 and charged with "six felony charges for
I've tried and tried to protect myself through the postal
service. Now, he's harassed me at home by sending this
stuff and the bills. I want to know --make sure that I am
protected because we do not have a court date till May ...