Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Franklin County Honorable David L.
B. SULLIVAN, P.J.
(Appellant) appeals from the trial court's May 25, 2016
Judgment of the Full Order of Protection entered pursuant to
the Adult Abuse Act, Sections 455.010 to
455.085.After both parties presented
their sides at a full hearing, the court issued K.M.C.
(Respondent) a full order of protection mandating that
Appellant shall not communicate with Respondent in any manner
or through any medium, including through the use of third
parties. The order also provided Appellant shall not commit
or threaten to commit domestic violence, molest, stalk, or
disturb the peace of Respondent. The order further stipulated
Appellant shall not harass, stalk, or threaten Respondent or
engage in other conduct that would place Respondent in
reasonable fear of bodily injury to Respondent. Finally, the
order commanded Appellant shall not use, attempt to use, or
threaten to use physical force against Respondent that would
reasonably cause bodily injury. We affirm.
I - III
presents four points on appeal. His first three points allege
the Adult Abuse Act and the trial court's judgment
entered pursuant to the Act are unconstitutional, in that
they violate the ban on ex post facto laws by
punishing his past actions in harassing and stalking
Respondent; prohibit his first amendment right to free
association and speech in that they ban him from
communicating, harassing, or stalking Respondent; and violate
his right to due process in prohibiting his first amendment
right to associate with and speak to Respondent as he sees
fit, as well as deprive him of his constitutionally protected
right to conceal and carry firearms by prohibiting him from
threatening to or using physical force against Respondent.
filed his brief on November 16, 2016. In his jurisdictional
statement, Appellant alleged the Missouri Supreme Court has
jurisdiction because his appeal questions the
constitutionality of a state statute. This Court entered an
Order on November 28, 2016, noting that to preserve a
constitutional question for appellate review, a litigant
must, among other things, raise the question at the earliest
opportunity consistent with good pleading and orderly
procedure. Brethorst v. Brethorst, 50 S.W.3d 864,
868 (Mo.App. E.D. 2001). The Order further noted if
Appellant's constitutional challenges had been preserved
for review, this Court would not have jurisdiction and the
appeal would be transferred to the Missouri Supreme Court but
if Appellant failed to preserve the constitutional challenges
for appellate review, this Court would have jurisdiction of
any remaining issues and the waived constitutional issues
would not be reviewed by this Court. State v.
Bowens, 964 S.W.2d 232, 236 (Mo.App. E.D. 1998). The
Order directed Appellant to brief the issue "addressing
whether this appeal should be transferred to the Supreme
Court" in a memorandum to be filed with the Court by
December 14, 2016.
filed a motion and memorandum addressing these issues on
December 6 and December 8, 2016. In the motion and
memorandum, he requests transfer to the Supreme Court and
states he did not raise these issues in a timely fashion at
the trial court because of his inexperience. The motion was
taken with the case.
pro se litigant is held to the same standards as a
licensed attorney. Portwood-Hurt v. Hurt, 988 S.W.2d
613, 618 (Mo.App. W.D. 1999). Judicial impartiality, judicial
economy, and fairness to all parties preclude courts from
granting pro se litigants preferential treatment.
Ward v. United Engineering Co., 249 S.W.3d 285, 287
(Mo.App. E.D. 2008). Because Appellant failed to raise his
constitutional claims at the earliest opportunity, they are
not preserved for transfer to the Supreme Court nor can we
review them. Points I, II and III are therefore denied.
Appellant's motion is likewise denied. We retain
jurisdiction to proceed to review Appellant's remaining
point on appeal, Point IV.
Point IV, Appellant alleges certain elements of the statute
were not met by Respondent. Specifically, Appellant contends
Respondent failed to present evidence fulfilling the
"illegitimate purpose and course of conduct" and
"reasonable person" elements of the statute because
Appellant was only engaged in legitimate, lawful, and
protected activity; and there is no objective evidence
Respondent ever feared physical harm or suffered substantial
emotional distress caused by Appellant.
review an order of protection the same as in any other
court-tried case. M.N.M v. S.R.B., 499 S.W.3d 383,
384 (Mo.App. E.D. 2016). We will uphold the trial court's
judgment as long as it is supported by substantial evidence,
is not against the weight of the evidence, and does not
erroneously declare or apply the law. Id. All facts
and inferences are viewed in the light most favorable to the
trial court's ruling. Id. Reviewing the evidence
in the light most favorable to the trial court's order,
we defer to the trial court's superior ability to
evaluate the potential for abuse by the testimony and
demeanor of witnesses. A.S. v. Decker, 318 S.W.3d
751, 756 (Mo.App. W.D. 2010). 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. S.A. v.
Miller, 248 S.W.3d 96, 97 (Mo.App. W.D. 2008). 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. E.D. 1990).
adult who has been the victim of stalking and harassment may
request relief by filing a verified petition under the Adult
Abuse Act. Section 455.020. Section 455.020, titled
"Relief may be sought - order of protection effective,
where, " provides in pertinent part:
1. Any person who has been subject to domestic violence by a
present or former family or household member, or who has been
the victim of stalking or sexual assault, may seek relief
under sections 455.010 to 455.085 by filing a verified
petition alleging such domestic violence, stalking, or sexual
assault by the respondent.
April 1, 2016, Respondent filed a verified petition for an
order of protection for adult abuse/stalking against
Appellant, a 59-year-old male who is approximately six feet
tall and 250 pounds. Appellant was a patient at the dental
office where Respondent was employed as a dental hygienist.
Respondent alleged in her petition that Appellant had stalked
her, harassed her, and followed her from place to place.
Respondent set out three significant dates where Appellant
had followed and stopped her at an Aldi's and a Wal-Mart.
Respondent also alleged he had called her place of employment
and her church four times in the span of two weeks.