JOHN SCOTT LAWYER, Petitioner-Respondent v. KIMBERLY DIANE FINO

JOHN SCOTT LAWYER, )
)
Petitioner-Respondent, )
)
vs. ) No. SD33448
)
KIMBERLY DIANE FINO, ) Filed: May 6, 2015
)
Respondent-Appellant. )

APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY

Honorable Mark A. Stephens, Associate Circuit Judge

REVERSED

Kimberly Diane Fino ("Mother") appeals from the trial court's entry of a

full order of protection against Mother in favor of John Scott Lawyer ("Father").

Mother argues there was insufficient evidence to support the trial court's finding

of abuse or stalking under the Missouri Adult Abuse Act. See § 455.020.1

Mother's arguments are correct, and the trial court's judgment is reversed.

Standard of Review

Review of the grant of a full order of protection under the Adult Abuse Act

is under the same standard as any other court-tried case; that is, this Court "will

uphold the trial court's judgment as long as it is supported by substantial

1 All statutory references are to RSMo Cum. Supp. (2013).
evidence, it is not against the weight of the evidence, and it does not erroneously

declare or apply the law." Patterson v. Pilot, 399 S.W.3d 889, 897 (Mo. App.

S.D. 2013). The facts and inferences are viewed in the light most favorable to the

trial court's ruling. Id. However, "[i]t is important to note that the Adult Abuse

Act was not intended to be a solution for minor arguments between adults."

Washburn v. Kirk, 437 S.W.3d 831, 833 (Mo. App. S.D. 2014). There is a

great potential for abuse, and real harm can result from improper use of the Act,

"not the least of which will be the stigma that attaches by virtue of a person

having been found to be a stalker." Id. (quoting Patterson, 399 S.W.3d at 898

n.17). For those reasons, courts must "exercise great vigilance to prevent abuse of

the stalking provisions in the Adult Abuse Act and in making sure that sufficient

credible evidence exists to support all elements of the statute before entering a

protective order." Id. (quoting Patterson, 399 S.W.3d at 898 n.17).

Factual and Procedural Background

Mother and Father were married and had two children together. Mother

and Father divorced in 2007 and experienced many subsequent conflicts

regarding their children.

On May 27, 2014, Father filed a petition for an adult order of protection

under the Missouri Adult Abuse Act. On June 10, 2014, the trial court held a

hearing regarding the petition. The parties appeared and tried the case without

the assistance of lawyers.

Father testified that Mother sent him numerous threatening text messages

that disrupted his home and his work. Father also stated that on May 26, 2014,

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there had been a prowler at his home. Father explained that he filed a police

report regarding the incident, but was unable to identify the prowler.

Father also submitted into evidence copies of some of the text message

conversations between himself and Mother.2 The exhibits show a handful of text

exchanges regarding the children's health and education. On May 27, 2014,

Mother texted Father regarding an appointment with an eye doctor that the

children were scheduled to attend. Later that evening, Mother texted Father

expressing dismay that Father had let the children sleep outside in a tent with no

adult supervision and that Father had let one of the children eat foods containing

gluten when, according to Mother, that child was supposed to be on a gluten-free

diet. A series of texts during the afternoon of May 29, 2014, involved the dates

for visitation in the summer. During the evening of May 29, 2014, Mother sent

Father a number of texts regarding a motion to modify child custody which

Father had filed. On June 2, 2014, Mother sent Father a series of text messages

regarding the fact that Father did not take the children to summer school.

After admitting the text messages into evidence, the trial court permitted

Mother to testify. Mother stated the text messages were all about the children,

and denied that she had been the prowler at Father's house.

A full order of protection was entered on June 10, 2014. The trial court

found Father had proven domestic violence or stalking. Mother appeals.

Discussion

The Missouri Adult Abuse Act provides that "[a]ny person who has been

subject to domestic violence by a present or former family or household member,

2 The full text of Father's exhibits is reproduced in the appendix to this opinion.

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or who has been the victim of stalking, may seek relief under sections 455.010 to

455.085 by filing a verified petition alleging such domestic violence or stalking by

the respondent." § 455.020.1. As Mother and Father had been married at one

time, they meet the statutory definition of family or household member. See

§ 455.010(7) (defining family or household member to include, inter alia, former

spouses). Thus, Father could seek a full order of protection under either ground

listed in the statute. Compare Cuda v. Keller, 236 S.W.3d 87, 90 (Mo. App.

W.D. 2007) (noting that family members do not need to prove stalking in order

to obtain a full order of protection), with Fowler v. Minehart, 412 S.W.3d 917,

921 (Mo. App. S.D. 2013) (noting that a petitioner who did not allege the

defendant was a family or household member was limited to seeking an order of

protection under the stalking provision of the statute). It is not apparent as to

which ground the trial court relied upon, and Mother challenges both grounds in

her point relied on.3 Each ground will be addressed in turn.

Abuse

In the first portion of her sole point relied on, Mother argues there was no

evidence presented to show abuse because the text messages did not cause

substantial emotional distress, would not cause a reasonable person to suffer

substantial emotional distress, and served a legitimate purpose. Based on the

plain language of the statute and the case law interpreting that statute, Mother is

correct.

3 "Points relied on containing multifarious claims violate Rule 84.04(d) and ordinarily are subject

to dismissal." Patterson, 399 S.W.3d at 897 n.15. Nevertheless, we exercise our discretion to
review the point because the deficiency does not impede our ability to understand the nature of
Mother's claims. See Levine v. Schmidt, 421 S.W.3d 465, 470 (Mo. App. S.D. 2013).

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 Under Chapter 455, the term "[a]buse" encompasses assault, battery,

coercion, harassment, sexual assault, or unlawful imprisonment. § 455.010(1).

Here, there were no allegations of assault,4 battery, coercion, sexual assault, or

unlawful imprisonment, so the resolution of this issue depends on the definition

of the term "[h]arassment." The statute defines the term "[h]arassment" as

follows:

a purposeful or knowing course of conduct involving more than one
incident that alarms or causes distress to an adult or child and
serves no legitimate purpose. The course of conduct must be such
as would cause a reasonable adult or child to suffer substantial
emotional distress and must actually cause substantial emotional
distress to the petitioner or child.

§ 455.010(1)(d). The statutory definition of harassment requires proof of two

things: that the conduct was "such as to cause a reasonable person to suffer

substantial emotional distress" and that the conduct "actually cause[d] such

distress to the petitioner." C.B. v. Buchheit, 254 S.W.3d 210, 213 (Mo. App.

E.D. 2008). To meet this requirement, the petitioner must show "something

markedly greater than the level of uneasiness, nervousness, unhappiness or the

like which are commonly experienced in day to day living." Id. (quoting

Wallace v. Van Pelt, 969 S.W.2d 380, 386 (Mo. App. W.D. 1998)). For

example, harassment has been found where there was physical contact and an

offer to fight, Cuda, 236 S.W.3d at 90, or where there was evidence of drunken

outbursts, pushing, and repeated communications despite official requests to

discontinue communication, H.R. v. Foley, 356 S.W.3d 210, 214-15 (Mo. App.

4 The petition did mention that Mother had been arrested for domestic violence. However, the

domestic violence incident involved Mother's teenage daughter from a previous relationship. As
the violence was not directed at Father, it is not relevant to the issues raised in this appeal, i.e.,
whether Father had been subject to domestic violence or had been the victim of stalking.
§ 455.020.1. Also, the domestic violence allegation proved to be unfounded.

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E.D. 2011). Repeated communication alone, on the other hand, typically does not

rise to the level of harassment because, while annoying and boorish, such conduct

would not cause substantial emotional distress in a reasonable person. E.g.,

Nenninger v. Smith, 400 S.W.3d 400, 405 (Mo. App. W.D. 2013); C.B., 254

S.W.3d at 213.

In the present case, Father stated he felt harassed and threatened by

Mother's repeated text communications. This testimony does not rise above the

uneasiness or nervousness commonly experienced in everyday life. In fact, while

Father did request on one occasion for Mother to "[s]top texting me your

threats[,]" he never asked her to stop communicating with him. The fact that

Father made one request distinguishes this case from other cases where courts

have found harassment and further supports the inference that Father did not

suffer substantial emotional distress.

Even if that testimony were sufficient to show Father subjectively felt

substantial emotional distress, there is no evidence to meet the second prong of

the test, i.e., that Mother's conduct would cause a reasonable person to suffer

substantial emotional distress. It is clear from examination of the texts

themselves that a reasonable person would not feel substantial emotional distress

upon receiving them. The majority of Mother's communications simply provided

information about the parties' children or sought to coordinate matters related to

the children. Although Mother made some comments indicating she would use

information against Father in court, "[l]itigation is not the type of behavior the

Adult Abuse Act seeks to prevent." Clark v. Wuebbeling, 217 S.W.3d 352, 355

(Mo. App. E.D. 2007).

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 Furthermore, there is no evidence that the communications in this case

were without legitimate purpose. "For conduct to have 'no legitimate purpose,' it

must be found to be not sanctioned by law or custom, to be unlawful, or not

allowed." Dennis v. Henley, 314 S.W.3d 786, 789 (Mo. App. S.D. 2010).

Missouri's appellate courts have repeatedly found that repeated communications

regarding the care of children between estranged parents are appropriate. E.g.,

Clark, 217 S.W.3d at 355. Here, the text messages were entirely related to issues

involving the parties' children including their health, education, visitation issues,

and the ongoing custody litigation.

The only other potentially relevant event involving the parties was the

prowler incident. However, in his testimony on that issue, Father never

identified the prowler. Mere speculation that Mother was involved is not

sufficient to support the entry of a full order of protection. See Suhr v. Okorn,

83 S.W.3d 119, 123 (Mo. App. W.D. 2002).

There was no evidence to support a finding of abuse by harassment.

Stalking

In support of her contention that the trial court's finding of stalking was

not supported by the evidence, Mother argues Father failed to present any

evidence showing he felt fear of danger of physical harm. Again, Mother is

correct.

The statute defines the term "[s]talking" as occurring "when any person

purposely and repeatedly engages in an unwanted course of conduct that causes

alarm to another person when it is reasonable in that person's situation to have

been alarmed by the conduct." § 455.010(13). The statute goes on to define the

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term "[a]larm" as "to cause fear of danger of physical harm[.]" § 455.010(13)(a).

To meet these definitions, "[a] plaintiff is required to do more than simply assert

a bare answer of 'yes' when asked if he or she was alarmed." H.R., 356 S.W.3d at

214 (quoting C.B., 254 S.W.3d at 209). Appellate courts will reverse orders of

protection based on this definition where there was no evidence of overt threats

of physical harm and no evidence of physical confrontations. E.g., D.A.T. v.

M.A.T., 413 S.W.3d 665, 668-69 (Mo. App. E.D. 2013); C.B., 254 S.W.3d at 213;

Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo. App. E.D. 2007); Clark, 217

S.W.3d at 354-55.

In the present case, although Father characterized Mother's text messages

as "threats," none of those messages involved a threat of physical harm. In fact,

none of the messages even implied a threat of physical harm. At most, Mother

threatened Father with litigation, but as stated above, "[l]itigation is not the type

of behavior the Adult Abuse Act seeks to prevent." Clark, 217 S.W.3d at 355.

There was no evidence that Mother's text messages caused alarm as that term is

defined by the statute.

There was no evidence to support a finding of either abuse or stalking.

Mother's point is granted.

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 Decision

The trial court's judgment is reversed. The trial court is directed to vacate

the full order of protection and enter a judgment, consistent with this opinion,

denying Father's petition.

MARY W. SHEFFIELD, P.J. – OPINION AUTHOR

GARY W. LYNCH, J. – CONCURS

DON E. BURRELL, J. – CONCURS

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 APPENDIX

Below is a transcription of the exhibits Father submitted at trial. The
messages have been organized by date, and all photographs have been omitted.
No corrections have been made to spelling or grammar.

Undated
Mother (7:17 AM) – The nurse checked her out. She was not to be at school. She
also DOES NOT HAVE HER MEDICINE! You did not listen to instructions. You
didn't look in Mikayla's mouth! She has blisters all over! She has hives all over!
I have a note for her from the nurse to be sent home. Please drop her medicine
off at the school. I will pick it up. You will not be getting her this weekend.
Mother (12:56 PM) – She may be ok to go back. As of now she has big white
blisters. She was screaming yesterday. Pain wise she is so much better with the
"magic mouthwash" it has nystatin, lidocaine and diaphenhydramine in it. She
has to swish really good than swallow 10ml every 4 hrs. I'm sending the bottle.
She can finally eat now bit numbs everything. Doc said it could take 7-10 days to
run it's course. We are on day 4. She will be fine. She WAS miserable!

May 27, 2014
Mother (10:47 AM) – Your vision insurance does not list co-pays or anything it
only list where the children can go I need to make sure what the co-pays are
please get me that information ASAP for their appointment. I need it before 230
today
Mother (10:47 AM) – All you provided was a phone number
Mother (11:21 AM) – I have it handled. If glasses are necessary it will be $35
dollars each child for everything. Exam. Lenses. Scratch resistant. Warranty and
frames at this office. So $70 total. This is if BOTH GIRLS NEED IT. THE
APPTS ARE AT 4 and 5 today! I will need you to call in payment so you must be
available. I was robbed and do not even have an active card! Thank you.
Mother (12:29 PM) – Expect a call between 4-6 pm. Not sure if they want
payment before. I'm assuming at the end so more like 5:30ish.
Mother (3:08 PM) – We are still here. Jesse needs glasses. Kayla is in the exam.
Still need to finish. May be closed to 6:30
Mother (3:09 PM) – Closer
Father (3:57 PM) – I told you I would take them. If you can't afford to pay your
half you need to let me handle medical stuff.
Mother (4:34 PM) – They are holding off on Jesse. Kayla deffinately needs
Prescription. They are having it all set up. You will have to come pay here they
said.
Mother (4:35 PM) – They will be ready Thursday when you pick up the girls.

Mother (5:02 PM) – This includes Jesse's visit also and glasses and they gave me
a $40 warranty free
Mother (5:04 PM) – Pear vision. Pick up and pay Thursday at 1518 E. Battlefield
Springfield across from the battlefield mall. They close at 6pm.

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Mother (5:19 PM) – Did you look at mikayla's throat? She told me she told you
that she was hurting. She has bumps all over again. She told me you told her to
chill
Mother (5:25 PM) – It was the night after you left them sleep in a tent alone with
no Adult supervision. No adults sleeping with them outside.
Mother (7:14 PM) – Kayla just told me all the gluten food you gave her all
weekend! You are ridiculous! Pancakes. Quesadilla. Almond bars. Sandwich
with non gluten bread. Cheese puffs. WTF?????
Mother (7:14 PM) – She has a migraine asshole!!!
Mother (7:15 PM) – You are not getting her anymore!!!!

May 28, 2014
Father (6:02 AM) – Did Mikayla go to school
Father (6:47 AM) – Where is the diagnosis you said you would get be stating she
needs to be on a gluten free diet?
Father (6:49 AM) – Where is the diagnosis you said you would get me stating she
needs to be on a gluten free diet?
Mother (7:15 AM) – There is not a diagnosis yet. They are running test. If you
ever showed up to a doctor appointment you would know what's going on
Mother (7:15 AM) – Read up on gluten John educate yourself
Mother (7:16 AM) – She's at school
Mother (7:16 AM) – The school knows she's gluten-free so do you so do it
Father (3:48 PM) – Have the girls call me please
Father (4:58 PM) – Please have the girls call me.

Mother (6:27 PM) – Corn tortillas and cheese for quesadillas. And gluten free
bread for a sandwhich or GF wrap from walmart in the deli

May 29, 2014
Mother (9:24 AM) – Melanie is getting married on June 15. I don't get in until
June 16 at 10 PM. She had already booked my flight I thought that you had had
the girls again as usual on their birthday with your vacation when she booked it.
I've already talk to the girls and we have our birthday plan set. Would you like to
keep them and I'll pick them up from summer school on Tuesday, June 17? If not
our friends the neighbors will be happy to pick them up from summer school
until I get home at 10pm and play with their friends. Obviously you first option
since it's their birthday You are their dad
Mother (9:25 AM) – I wish I could cancel the flight but she already spent the
money and it's nonrefundable I am made of honor
Mother (1:30 PM) – Okay never mind I actually have something really fun
planned for them
Mother (1:58 PM) – Nixa Public Schools: Don't forget! Tomorrow (5/30/14) is a
half-day for all students.
Mother (1:58 PM) – Please send a pic with Mikayla and her new glasses
Father (2:15 PM) – I can keep them in june
Mother (6:40 PM) – Hey I just wanted to thank you for opening at case about the
girls here in June. I was preparing to do it myself that you have me that

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jumpstart and I thank you for that. I'm really getting tired of struggling on food
stamps and this low child support with no income. I also want my full custody
back. I spoke with CPS today and they're really getting tired of you wanting to
take the girls from me. They have no interest in doing that in fact they support
me as a mother. Your calls are uneventful and unproven and they have no
interest in doing anything of the sort. In fact I may have a fraud case. Alex's BS
is also getting canceled and I would even have a case against her for fraud. She
has a history as well as you don’t you remember all those restraining orders in jail
time you've done. I've already sent for records from Dr. Lieberman and all of the
records from California against you.
Also all the records here in Missouri that you developed through the last six
years. All the the police reports. All your fault CSP reports. All your judgments.
And so on and so on. I also have all the medical records coming to me that you
never paid from pregnancy birth and the three years in California where you
never paid a dime. I paid it all equaling over $20,000. I'm so excited to finally
get this all resolved and finally get the child support and time back with my kids
thank you again. I'm also excited that my children are old enough to have a voice

Mother (6:40 PM) – By the way I have not been served I'm just not dumb
Mother (6:41 PM) –Good luck going pro se. I seem to remember winning a move
away case going pro per against the Newport Beach attorney
Mother (6:42 PM) – Good thing I've been reading up on the law hope you have
time
Mother (6:44 PM) – I'm also glad you present yourself as an army ranger fraud
it's going to look great in court
Mother (6:45 PM) – Please have the girls call me I told them I would say good
night to them
Mother (6:47 PM) – Oh by the way Mikayla's new doctor is a specialist and it is
not in your insurance and there's no way around it. You're going to have to fork
up the money sorry. It's for your daughter!
Mother (6:48 PM) – The only two doctors under your insurance have referred
her to this guy that's it end of story. So her to doctors happen to be my doctors
that's it we're in a small town you don't have a choice
Mother (6:49 PM) – The other doctor is under the insurance but this one's not.
He's out of network I will find out tomorrow how much out of network the
insurance covers mine only covers 35% I have to deal with it. Same goes for her.
Mother (6:49 PM) – My apt is like $43
Mother (6:49 PM) – The big appointments are like $100
Mother (6:50 PM) – That's if your insurance covers like 35%
Mother (6:50 PM) – I will see and get back to you
Mother (6:51 PM) – If you fight this it doesn't make you look good it's your
daughter's health. You already look bad in front of CPS in regards to the hospital
events. If you want to lose rights for custody on medical decisions I would watch
it
Mother (6:51 PM) – It took a year just to get vision insurance from you and
Mikayla needed glasses. It's taken a year to get Dental from you so I hope they
don’t have cavities!

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Mother (6:51 PM) – I will bring that stuff to court
Mother (6:53 PM) – Your stupid munchehousens is bullshit. Your biggest
mistake was talking to John Lewis I have genetic testing linking me to my disease
you idiot!
Mother (6:54 PM) – The longer you keep saying I'm a bad mother the bigger the
whole you're going to dig yourself I would stop if I were you! Or keep going ….it'll
help me!!!!!!!!!
Mother (6:54 PM) – Is shouldn't talk to someone's ex are you that ignorant
seriously?!?! He just wants his house back come on! He's trying to win in court
also you guys are both dumb! Because both of you it's hurting each other you
guys are so ridiculous!
Mother (6:56 PM) – It's actually funny
Mother (6:56 PM) – Keep it up boys
Mother (6:56 PM) – I'm going to ask the girls what time they went to bed they tell
me everything so you better not be playing a game
Mother (6:57 PM) – Will have lunch tomorrow tell the girls good night since you
won't let them call. At least I don’t do that crap to my girls

May 30, 2014
Father (5:31 AM) – They were in bed by 830 I didn't get these messages till this
morning I'll have them call you after school
Mother (5:51 AM) – John you never respond what's different nothing

June 1, 2014
Mother (8:32 AM) – Please have the girls call me
Mother (12:48 PM) – Call you right back. I'm on a conference call
Father (12:59 PM) – Call tonight they are swimming
Mother (2:43 PM) – L
Mother (2:43 PM) – L
Mother (2:43 PM) – L
Mother (2:43 PM) – K
Mother (2:43 PM) – My phone is sticking
Mother (2:43 PM) – Just have them call me as soon as you can
Mother (3:08 PM) – Do you have the kids the 29th and 30 June
Father (3:08 PM) – Yes
Mother (3:10 PM) – I was chosen for a scholarship to attend a migraine
conference AHMA in LA June 29 my flight and hotel are paid for along with
everything else! I can't believe they picked me. It's because of my administrative
volunteer work with the hemiplegic migraine foundation. I'm so honored! I just
wanted to make sure that weekend I was available.
Mother (3:16 PM) – Even Mikayla's and I new Dr. Will be there on board of
doctors. He's originally with the mayo clinic. He is a good friend of the president
of this association that chose me. I just found that out last night.
Mother (3:20 PM) – Prowler btw lol
Father (5:44 PM) – The girls want to sleep in. Can Nichole drop them off at your
house by 10am. If not she'll drop them off at school.

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Father (6:11 PM) – Fwd: May 30th to June 6th and July 11th to July 18th are my
other 2 weeks of vacation with the girls. I've already notified you about keeping
them June 20th to June 27th. This is all of my 3 weeks and your notification
prior to May 15th per the custody agreement.
Mother (6:12 PM) – They are committed to summer school. It's only 4 wks

June 2, 2014
Mother (9:55 AM) – Why aren't the kids at summer school? This is their first
day! I'm here for lunch and my kids are not here!!
Mother (10:01 AM) – The school is not happy and either am I
Mother (10:06 AM) – I made sour you got this last night "They are committed to
summer school. Its only 4 wks" summer school is serious They are committed to
summer school. Its only 4 wks"
Father (3:07 PM) – They got great grades. Jesse brought up her D….so I'd rather
reward them with a good Summer start. If you want to take them next week on
your days that's fine.
Mother (3:23 PM) – They are scheduled, enrolled and assigned teachers and are
expected to be in summer school. The school hired teachers by number of
students enrolled. They've already missed one day which costs the school. They
are expected to be there tomorrow. Make sure they are there on time. This is not
up to you this is been handled through the school and done in advance with the
teachers and the principal. The school will be notifying me once they get there.
Mother (3:24 PM) – I will have the truant officer get involved if they're not there
Mother (3:24 PM) – Jesse had reading and math tutors all year this is not up to
you.
Mother (3:25 PM) – She is still behind in her grade level and she needs summer
school to be up to par for next year. I'm involved with the school not you
Mother (3:26 PM) – She is not even at the bottom of the standard for fourth
grade level for entry for next year
Mother (3:26 PM) – She needs to be retested after summer school

June 3, 2014
Mother (3:25 PM) – Once again no school I'm getting a letter from the principal
Father (3:36 PM) – It's our vacation. Stop texting me your threats. Do what ever
you need to. I do not need these senseless and threatening text messages daily.
Mother (3:37 PM) – There are threats this are information from the school
principal I'm making you aware. You really should get a dictionary or a
thesaurus. Seems you don't understand vocabulary
Mother (3:38 PM) – And you don't care about the needs of your children
Mother (3:40 PM) – Me being custodial parent have just passed on the
information you've provided me via text about your priorities for the kids to the
school since I signed contracts in their best interest based on what the school has
provided me on based on Jesse's best interest. I meant Support and Jesse not
struggling through fourth-grade life is not a big party. I want my children to be
successful!

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Mother (3:42 PM) – We don't believe in the same things so will just see what a
court thinks. I'm just getting the paperwork that they gave me! I'm doing my
part as a mother to benefit my child!
Mother (3:42 PM) – You are disregarding it as usual

June 4, 2014
Mother (9:11 AM) – Mrs. Wilkerson had called me and said you told her the kids
are on vacation with you. I'm having her put this in writing and getting Jesse's
reading scores and tutoring info supplied to me for court to show once against
your lack of patenting skills.
Mother (9:13 AM) – Jesse's reading is at 3 rd grade level. Summer school was to
help get it up to beginning of 4th grade. You are hurting your child once again.

June 5, 2014
Mother (10:01 AM) – Please have the girls call me

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