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Burke v. Tyson Delay

Court of Appeals of Missouri, Southern District, First Division

August 5, 2019

LINDSAY EMMA BURKE, Petitioner-Respondent,


          GARY W. LYNCH, P.J.

         Hubert Lloyd Tyson DeLay III appeals the trial court's judgment of full order of protection entered against him, see section 455.040, [1] 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 court's judgment.

         Standard of Review

         Our 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. 1990).

         Trial 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).[2]

         Factual and Procedural Background

         DeLay 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.

         On 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 stable."

         Mother 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 attention.

         Burke 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, ...

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