Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY Honorable D.
W. LYNCH, P.J.
Lloyd Tyson DeLay III appeals the trial court's judgment
of full order of protection entered against him, see
section 455.040,  claiming that the trial court's
finding that he engaged in domestic violence, stalking, or
sexual assault against Lindsay Emma Burke was not supported
by substantial evidence. We disagree and affirm the trial
review of the entry of a full order of protection under the
Adult Abuse Act
is governed by Murphy v. Carron, 536 S.W.2d 30, 32
(Mo. banc 1976). We, therefore, will uphold 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. In reviewing the trial court's judgment, we consider
the evidence in a light most favorable to the judgment and
defer to the trial court's determination of credibility.
Binggeli v. Hammond, 300 S.W.3d 621, 623 (Mo.App.
2010) (internal citations omitted). "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.
courts are free to believe any, all, or none of the evidence
presented at trial. Ivie v. Smith, 439 S.W.3d 189,
200 (Mo. banc 2014). Appellate courts, therefore, in the
absence of specific findings of fact otherwise, accept as
true the evidence and inferences favorable to the judgment
and disregard all evidence and inferences contrary to the
judgement. Id.; Rule 73.01(c).
and Procedural Background
and Burke are former spouses, who had a child
("Child") together, and separated after fourteen
months of marriage. DeLay's abusive and violent behaviors
toward Burke lead to the separation. Burke filed for divorce
and, ultimately, was awarded sole legal and physical custody
of Child. Thereafter, a criminal case was filed against DeLay
involving charges of aggravated stalking of Burke and
violation of a protection order in favor of Burke. That
criminal case was pending during the events leading to the
entry of the trial court's judgment in this case. As part
of the criminal case, DeLay secured pre-trial release by bond
that ordered him to not engage in any contact with Burke.
August 19, 2018, Burke's mother (individually referred to
as "Mother" and, with Burke's father,
collectively as "Mother and Father") received a
telephone call from DeLay. Mother described the ensuing
conversation in the following manner:
When I answered the phone, his first words were, "Ms.
Carol Jane, this is Tyson DeLay. Please don't hang
up." And I was completely stunned because I haven't
heard from him in many years because the relationship has
been so tumultuous. And he asked if I would be willing to
talk to my husband, Stephen, and he would like to tell us how
he always had done the wrong thing; Lindsay had always the
correct thing, and -- that Lindsay had done the correct
thing, and that he just wanted to get that off his chest.
There would be things that we were aware of that he had done
wrong, and then there would be some things that we probably
did not know. Twice he told me he was sober, but he was not
stable. He stated that his parents had had to try to have him
committed, and that the doctor deemed him competent and that
that didn't go through. And that's when he, on one of
those occasions said, "I am sober, but I am not
recounted that, during the telephone conversation, she felt
"so nervous and uncertain and scared[.]" Having
observed DeLay's "mental instability through these
years," the one thing Mother learned was "that can
flip, he's dangerous." Mother understood DeLay's
statements that he's not stable as a threat intended for
Burke and, thereafter, brought the matter to Burke's
and her family regularly attend Sunday service at Charleston
United Methodist Church ("the church"). On
September 2, 2018, prior to the start of Sunday service,
Mother and Father were seated in the church where their
family usually sits. Unbeknownst to Mother and Father, DeLay
entered the church and seated himself behind them. Burke and
Child then arrived. Burke noticed DeLay sitting behind Mother
and Father and immediately sought help from the local police
chief who was seated nearby. The local police chief, aware
that DeLay was not allowed to have contact with Burke, went
over to DeLay, informed him that he would have to leave, and
escorted him outside. DeLay does not regularly attend
services at the church and his presence there was unusual.
Before the September 2, ...