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Hanger v. Dawson

Court of Appeals of Missouri, Western District, Third Division

September 17, 2019

AMELIA FAY HANGER, Respondent,
v.
DILLON MICHAEL JAMES DAWSON, Appellant.

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE KEVIN D. HARRELL, JUDGE

          Before: Thomas H. Newton, Presiding Judge, Anthony Rex Gabbert, Judge and Edward R. Ardini, Jr., Judge

          EDWARD R. ARDINI, JR JUDGE

         Dillon Michael James Dawson ("Dawson") appeals the entry of a Full Order of Protection - Child by the Circuit Court of Jackson County. He asserts two points on appeal. In his first point, Dawson argues that the trial court lacked authority to enter judgment against him, claiming it was not alleged that he had personally engaged in acts of domestic violence, stalking or sexual assault as required under chapter 455, RSMo.[1] He asserts in his second point that the Full Order of Protection - Child modified an existing child custody order in violation of section 455.523.2(1). We affirm.

         BACKGROUND

         The facts, in the light most favorable to the judgment, [2] are as follows. Respondent Amelia Hanger ("Hanger") and Appellant Dawson shared custody of their then five-year-old son ("Child") pursuant to a custody agreement entered in a separate case granting equal legal and physical custody to both parents. In December of 2016, Dawson's mother ("Grandmother") first entered Child's life. In December of 2017, Grandmother began living with Dawson and he relied on Grandmother to watch Child when he was at work.

         On February 9, 2018, Hanger arrived at Dawson's residence to pick up Child and found only Child and Grandmother present. Child was sitting in his room with the door closed eating ice cream, a situation she described as "strange." Usually, Child would enthusiastically greet Hanger when she arrived to pick him up. Hanger briefly discussed future childcare plans with Grandmother before leaving with Child.

         Sensing an issue with Child, Hanger stopped at a gas station to ask if something had occurred at Dawson's residence. In response, Child explained that Grandmother had punched him in the stomach, and then, after he fled, Grandmother dragged him from a hiding spot. Hanger proceeded to her home with Child, called family and friends for support, and contacted the police to report the incident.

         The following day, a social worker met with Child with Hanger present. Child explained to the social worker that he did not feel safe around Grandmother when his father was absent because she would punch him in the stomach and strike his hands and feet. The social worker also spoke with Child's principal and a school social worker.

         On February 13, 2018, Hanger filed a Petition for Order of Protection - Child against both Dawson and Grandmother.[3] In her petition against Dawson, Hanger alleged that Dawson had witnessed Grandmother abuse Child, that he had "grabbed [Grandmother's] arm to stop her" but that he continued to permit Grandmother to provide unsupervised care for Child. The trial court conducted an initial hearing on February 28, 2018. Hanger, the social worker, Grandmother, and Dawson all testified. Hanger was represented by counsel, and Dawson and Grandmother appeared pro se. After hearing evidence, the trial court continued the hearing until April 25, 2018. The trial court ordered that Dawson was not to "allow the minor child to be left alone with the Paternal Grandmother or to visit the residence of Paternal Grandmother while [Dawson] and his mother reside together. The minor child is not to have any visitation with Paternal Grandmother pending the investigation of these cases and the DFS investigation."[4]

         At the April 25, 2018, hearing, Dawson was represented by counsel. Dawson moved to dismiss the petition arguing that section 455.505 only allows orders of protection to be entered where the respondent is directly accused of domestic violence, stalking, or sexual assault. The trial court denied the motion.

         Hanger, the social worker, and Dawson testified again, as did Dawson's current girlfriend. Hanger's testimony was largely unchanged from the first hearing but she noted that she had seen Grandmother at Dawson's residence since the February hearing and, on one occasion, she found Child sleeping in Grandmother's room which was still filled with Grandmother's belongings.

         At the close of evidence, Dawson again asserted that the trial court lacked authority to enter an order of protection against him arguing that he had not been directly accused of abuse. After the parties concluded their arguments, the trial court discussed its intention that Grandmother not have access to Child's residence, wherever that may be, and its concern that because Grandmother was on the lease for Dawson's residence, she would continue to be granted access to the home.

         The trial court entered its Judgment of Full Order of Protection - Child on May 25, 2018, finding that Dawson had "abused and neglected the minor child by purposely or knowingly placing the child in fear of physical harm by allowing the child to be in the presence of [Grandmother] who this Court found represents a [credible] threat to minor child."[5] The judgment further ordered that Dawson not have "any contact with the minor child at [Dawson's] primary residence, wherever that may be." Dawson appeals.

         DISCUSSION

         Point I

         For his first point on appeal, Dawson argues that the trial court erred in entering an order of protection against him because he is not a proper "respondent" under chapter 455, RSMo. He claims that entry of an order of protection is proper only against a respondent who directly commits an act constituting domestic violence, stalking or sexual assault, and that in this case, it was never alleged that Dawson engaged in such acts against Child. Rather, he argues, the Full Order of Protection - Child was entered against him for the independent acts of a third party. We disagree.

         "In this court-tried case, we must affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Cima v. Fansler, 345 S.W.3d 875, 877 (Mo. App. W.D. 2011) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). "We view the facts and reasonable inferences in a light most favorable to the judgment and must defer to the trial court's determination of witness credibility." Id. "We review questions of law independently, and reach our own conclusions on the issue presented, without deference to the trial court's conclusions." In re GF, 276 S.W.3d 327, 329 (Mo. App. E.D. 2009) (citing City of St. Joseph v. Vill. of Country Club, 163 S.W.3d 905, 906 (Mo. banc 2005)).

         The "primary rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning." Young v. Boone Elec. Coop., 462 S.W.3d 783, 791 (Mo. App. W.D. 2015) (quoting In re Boland, 155 S.W.3d 65, 67 (Mo. banc 2005)). We "look beyond the plain meaning of the statute only when the language is ambiguous or would lead to an absurd or illogical result." Id. (citation omitted) (emphasis in original). "It is presumed that the General Assembly legislates with knowledge of existing laws." Turner v. Sch. Dist. of Clayton, 318 S.W.3d 660, 667 (Mo. banc 2010) (citation omitted). "Under the doctrine of in pari materia, statutes relating to the same subject matter should be construed to achieve a harmonious interpretation." Roesing v. Dir. of Revenue, 573 S.W.3d 634, 639 (Mo. banc 2019) (citation omitted). "A specific statute controls over a more general statute where both statutes purport to address the same issue." Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 673 n.2 (Mo banc 2009).

         Dawson argues that the trial court lacked statutory authority to enter its Judgment of Full Order of Protection - Child, claiming "[n]o allegations were made, nor findings [of] fact were set forth in the Judgment…wherein [Dawson] was said to have himself, committed acts of domestic violence, stalking, or sexual assault on the subject child." Dawson asserts that under the statutory framework of chapter 455, RSMo, an order of protection cannot be entered against an individual based on the independent acts of a third party. In constructing this argument, Dawson mischaracterizes the trial court's findings and misconstrues the breadth of what constitutes an "assault" under the definition provided in section 455.010(1)(a).

         Under chapter 455, RSMo, an order of protection may be entered in favor of a child who "has been subject to domestic violence by a present or former household member or sexual assault or stalking by any person[.]" § 455.505.1. "Domestic violence" is defined as "abuse or stalking committed by a family or household member, as such terms are defined in this section[.]" § 455.010(5) (emphasis added). Relevant to this appeal, "abuse" encompasses the term "assault," which is defined as "purposely or knowingly placing or attempting to place another in fear of physical harm[.]" § 455.010(1)(a).

         The gravamen of Dawson's complaint is that the trial court lacked statutory authority to enter a full order of protection against him for the "independent acts" of Grandmother. While rhetorically appealing, this characterization of the allegations leveled against him and the trial court's findings does not survive scrutiny. To be clear, the trial court made findings directed at conduct committed by Dawson. The trial court specifically found that Dawson "abused and neglected the minor child by purposely or knowingly placing the child in fear of physical harm by allowing the child to be in the presence of Paternal Grandmother" who the trial court found was a credible threat to the safety of Child.[6] Nevertheless, Dawson posits that this does not constitute a finding that he "committed acts of domestic violence" against Child. This exercise in redirecting focus from him to Grandmother collapses upon close examination.

         It bears repeating that the trial court found that it was Dawson who "plac[ed] the child in fear of physical harm." He accomplished this "by allowing the child to be in the presence of Paternal Grandmother."[7] In other words, Dawson is not being held responsible for the "independent acts" of Grandmother but instead is being held to account for his own conduct that "purposely or knowingly plac[ed] the child in fear of physical harm." Although the source of the "fear of physical harm" may have been Grandmother, that distinction does not provide a reprieve to Dawson. The plain language of the statutory definition of "assault" does not permit an individual who "purposely or knowingly plac[es] or attempt[s] to place another in fear of physical harm" to escape a full order of protection under chapter 455, RSMo, simply because the physical harm feared might be from the hands of a third party.[8] See In re KCP&L Greater Mo. Operations Co., 408 S.W.3d 175, 186 (Mo. App. W.D. 2013) (where a statute is unambiguous, the court will give effect to the language as written).

         Dawson was found to have "knowingly or purposely" placed Child in "fear of physical harm by allowing the child to be in the presence of Paternal Grandmother" and that conduct, committed by Dawson, constituted abuse under section 455.010(1)(a) and formed a proper basis for the trial court's entry of the Full Order of Protection - Child.

         Point I denied.

         Point II

         In his second point, Dawson argues that the Full Order of Protection - Child entered against him modified an existing custody order involving Hanger, Dawson and Child by restricting his right to have visitation with Child at his primary residence in violation of section 455.523.2(1).

         Section 455.523.2(1) states that:

When the court has, after hearing for any full order of protection, issued an order of protection, it may, in addition: (1) [a]ward custody of any minor child born to or adopted by the parties when the court has jurisdiction over such child and no prior order regarding custody is pending or has been made, and the best interests of the child require such order be issued[.]

         The language of this provision is clear: following a hearing on a full order of protection, a condition precedent to a trial court awarding custody of a minor is that there exists "no prior order regarding custody." It is undisputed in this case that there was a "prior order regarding custody" of Child pending when the trial court issued its Final Order of Protection - Child. Therefore, the relevant question is whether the provision in the Full Order of Protection - ...


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