In the Missouri Court of Appeals Eastern District DIVISION TWO
H.E.S., ) ED108988 ) Respondent, ) Appeal from the Circuit Court ) of St. Louis County v. ) 20SL-PN01569 ) T.J.B., ) Honorable Nicole S. Zellweger ) Appellant. ) Filed: June 29, 2021
T.J.B. 1 (Defendant) appeals from the trial court’s judgment granting H.E.S. (Victim) a
Full Order of Protection pursuant to the Adult Abuse Act (Act). 2 We affirm.
BACKGROUND
On April 21, 2020, Victim filed a Petition for Order of Protection (Petition) in the Circuit
Court of St. Louis County. Victim’s Petition stated that Defendant had been stalking her and she
was afraid that he might hurt her or her daughter. The trial court entered an Ex Parte Order of
Protection, and a hearing was set for June 8, 2020. The hearing was conducted remotely via
Zoom, and adduced the following evidence.
Victim testified she and Defendant were previously in a romantic relationship and resided
together. Their relationship began around the time when Victim’s daughter was one year old.
1 Both parties full names are redacted pursuant to Section 595.226 RSMo (2017). 2 See Section 455.040 RSMo. All statutory references are to RSMo (2016) as updated, unless otherwise indicated. Victim moved out of her “living situation” with Defendant in March of 2019, and asked him to
stop contacting her. In December of 2019, Victim had to block multiple phone numbers and
three email accounts to prevent Defendant from contacting her. Victim also sent Defendant
nineteen emails between February 6, 2020, and April 20, 2020, telling him to leave her alone.
She told him she would get a “cease and desist” order, but he was undeterred.
On April 20, 2020, Victim received seven emails from Defendant. Around 9 a.m.,
Defendant parked a block away from Victim’s home, and approached her then six-year-old
daughter in Victim’s back yard. Defendant refused to leave and said he had already called the
police. Victim stated that Ferguson police told her they saw Defendant drive by her house. She
said that her neighbor, who was a retired Ferguson police officer, witnessed these events and
actually was the one who called the police. Victim testified Defendant’s emails and phone calls
were annoying at first, but when she told him to leave her alone and he showed up at her house,
she became scared because he didn’t believe he was crossing boundaries.
Defendant continually referred to Victim’s child as “my daughter” throughout the
hearing, even though he is not the child’s father. He agreed he made multiple attempts to contact
Victim against her will, but only because he wanted to see “my daughter.” He had not seen “my
daughter” since September of 2019, and his emails were trying to determine how “my daughter”
was faring. He stated he was “trying to resolve this peacefully.” He admitted his contact was
unwanted by Victim. He also admitted going to Victim’s house three times knowing she did not
want him there. Defendant said he did not intend to hurt Victim, and he “gave her seven months
to try and sort this out peacefully.”
Defendant called Elizabeth Bennett (Bennett) as a witness. Bennett testified she was a
counselor who had been providing Defendant with mental health counseling since 2018. She
2 stated she knew both parties to this case and spent time talking to Defendant about his anxiety
over his inability to see Victim’s daughter.
After hearing the testimony, the trial court found that Defendant’s course of conduct
merited an Order of Protection. The trial court found that Defendant’s conduct in attempting to
contact Victim was initially justifiable, but became unjustifiable once Victim told him that she
did not want any further contact with him.
This appeal follows.
DISCUSSION
Defendant raises one point on appeal arguing the trial court “erred and abused its
discretion and misapplied RSMo § 455.010-455.085” in granting Victim a full order of
protection against Defendant because there was insufficient evidence that Defendant’s acts
satisfied the statutory definitions of abuse, domestic violence, or stalking pursuant to Section
455.010. Victim asserts that Defendant’s actions met Section 455.010’s definition of
harassment, which constitutes abuse under the Act.
Standard of Review
“We review orders of protection under the Act ‘the same as in any other court-tried case;
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.’” G.E.G.
v. Gauert, 620 S.W.3d 676, 678 (Mo. App. W.D. 2021) (quoting M.N.M. v. S.R.B., 499 S.W.3d
383, 384 (Mo. App. E.D. 2016)). “Substantial evidence is evidence that, if believed, has some
probative force on each fact that is necessary to sustain the circuit court’s judgment.” Ivie v.
Smith, 439 S.W.3d 189, 199 (Mo. banc 2014). We defer to the circuit court’s credibility
3 determinations and consider the evidence in the light most favorable to the circuit court’s
judgment. Id. at 200.
Analysis
The Act defines “abuse” as “the occurrence of any of the following acts, attempts or
threats against a person who may be protected pursuant to this chapter,” including assault,
battery, coercion, harassment, sexual assault, and unlawful imprisonment. Section 455.010(1).
“Harassment” is “engaging in 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.” Section 455.010(1)(d). The phrase “substantial emotional distress” means
“the offending conduct must produce a considerable or significant amount of emotional distress
in a reasonable person; something markedly greater than the level of uneasiness, nervousness,
unhappiness or the like which are commonly experienced in day to day living.” Burke v. DeLay,
583 S.W.3d 97, 100 (Mo. App. S.D. 2019) (quoting Wallace v. Van Pelt, 969 S.W.2d 380, 384
(Mo. App. W.D. 1998)). Harassment has been found where there was physical contact and an
offer to fight, and where there was evidence of drunken outbursts, pushing, and repeated
communications despite official requests to discontinue communication. Lawyer v. Fino, 459
S.W.3d 528, 532 (Mo. App. S.D. 2015). However, repeated communication alone “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.” Id.
There is no harassment when the course of conduct serves a legitimate purpose. See
Section 455.010(1)(d). “For conduct to have ‘no legitimate purpose,’ it must be found to be not
4 sanctioned by law or custom, to be unlawful, or not allowed.” Fino, 459 S.W.3d at 533 (quoting
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
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In the Missouri Court of Appeals Eastern District DIVISION TWO
H.E.S., ) ED108988 ) Respondent, ) Appeal from the Circuit Court ) of St. Louis County v. ) 20SL-PN01569 ) T.J.B., ) Honorable Nicole S. Zellweger ) Appellant. ) Filed: June 29, 2021
T.J.B. 1 (Defendant) appeals from the trial court’s judgment granting H.E.S. (Victim) a
Full Order of Protection pursuant to the Adult Abuse Act (Act). 2 We affirm.
BACKGROUND
On April 21, 2020, Victim filed a Petition for Order of Protection (Petition) in the Circuit
Court of St. Louis County. Victim’s Petition stated that Defendant had been stalking her and she
was afraid that he might hurt her or her daughter. The trial court entered an Ex Parte Order of
Protection, and a hearing was set for June 8, 2020. The hearing was conducted remotely via
Zoom, and adduced the following evidence.
Victim testified she and Defendant were previously in a romantic relationship and resided
together. Their relationship began around the time when Victim’s daughter was one year old.
1 Both parties full names are redacted pursuant to Section 595.226 RSMo (2017). 2 See Section 455.040 RSMo. All statutory references are to RSMo (2016) as updated, unless otherwise indicated. Victim moved out of her “living situation” with Defendant in March of 2019, and asked him to
stop contacting her. In December of 2019, Victim had to block multiple phone numbers and
three email accounts to prevent Defendant from contacting her. Victim also sent Defendant
nineteen emails between February 6, 2020, and April 20, 2020, telling him to leave her alone.
She told him she would get a “cease and desist” order, but he was undeterred.
On April 20, 2020, Victim received seven emails from Defendant. Around 9 a.m.,
Defendant parked a block away from Victim’s home, and approached her then six-year-old
daughter in Victim’s back yard. Defendant refused to leave and said he had already called the
police. Victim stated that Ferguson police told her they saw Defendant drive by her house. She
said that her neighbor, who was a retired Ferguson police officer, witnessed these events and
actually was the one who called the police. Victim testified Defendant’s emails and phone calls
were annoying at first, but when she told him to leave her alone and he showed up at her house,
she became scared because he didn’t believe he was crossing boundaries.
Defendant continually referred to Victim’s child as “my daughter” throughout the
hearing, even though he is not the child’s father. He agreed he made multiple attempts to contact
Victim against her will, but only because he wanted to see “my daughter.” He had not seen “my
daughter” since September of 2019, and his emails were trying to determine how “my daughter”
was faring. He stated he was “trying to resolve this peacefully.” He admitted his contact was
unwanted by Victim. He also admitted going to Victim’s house three times knowing she did not
want him there. Defendant said he did not intend to hurt Victim, and he “gave her seven months
to try and sort this out peacefully.”
Defendant called Elizabeth Bennett (Bennett) as a witness. Bennett testified she was a
counselor who had been providing Defendant with mental health counseling since 2018. She
2 stated she knew both parties to this case and spent time talking to Defendant about his anxiety
over his inability to see Victim’s daughter.
After hearing the testimony, the trial court found that Defendant’s course of conduct
merited an Order of Protection. The trial court found that Defendant’s conduct in attempting to
contact Victim was initially justifiable, but became unjustifiable once Victim told him that she
did not want any further contact with him.
This appeal follows.
DISCUSSION
Defendant raises one point on appeal arguing the trial court “erred and abused its
discretion and misapplied RSMo § 455.010-455.085” in granting Victim a full order of
protection against Defendant because there was insufficient evidence that Defendant’s acts
satisfied the statutory definitions of abuse, domestic violence, or stalking pursuant to Section
455.010. Victim asserts that Defendant’s actions met Section 455.010’s definition of
harassment, which constitutes abuse under the Act.
Standard of Review
“We review orders of protection under the Act ‘the same as in any other court-tried case;
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.’” G.E.G.
v. Gauert, 620 S.W.3d 676, 678 (Mo. App. W.D. 2021) (quoting M.N.M. v. S.R.B., 499 S.W.3d
383, 384 (Mo. App. E.D. 2016)). “Substantial evidence is evidence that, if believed, has some
probative force on each fact that is necessary to sustain the circuit court’s judgment.” Ivie v.
Smith, 439 S.W.3d 189, 199 (Mo. banc 2014). We defer to the circuit court’s credibility
3 determinations and consider the evidence in the light most favorable to the circuit court’s
judgment. Id. at 200.
Analysis
The Act defines “abuse” as “the occurrence of any of the following acts, attempts or
threats against a person who may be protected pursuant to this chapter,” including assault,
battery, coercion, harassment, sexual assault, and unlawful imprisonment. Section 455.010(1).
“Harassment” is “engaging in 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.” Section 455.010(1)(d). The phrase “substantial emotional distress” means
“the offending conduct must produce a considerable or significant amount of emotional distress
in a reasonable person; something markedly greater than the level of uneasiness, nervousness,
unhappiness or the like which are commonly experienced in day to day living.” Burke v. DeLay,
583 S.W.3d 97, 100 (Mo. App. S.D. 2019) (quoting Wallace v. Van Pelt, 969 S.W.2d 380, 384
(Mo. App. W.D. 1998)). Harassment has been found where there was physical contact and an
offer to fight, and where there was evidence of drunken outbursts, pushing, and repeated
communications despite official requests to discontinue communication. Lawyer v. Fino, 459
S.W.3d 528, 532 (Mo. App. S.D. 2015). However, repeated communication alone “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.” Id.
There is no harassment when the course of conduct serves a legitimate purpose. See
Section 455.010(1)(d). “For conduct to have ‘no legitimate purpose,’ it must be found to be not
4 sanctioned by law or custom, to be unlawful, or not allowed.” Fino, 459 S.W.3d at 533 (quoting
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.” Id. (emphasis added).
Defendant seems to assert that his conduct served a legitimate purpose because he was an
“estranged parent.” Clark v. Wuebbeling, 217 S.W.3d 352, 355 (Mo. App. E.D. 2007)
(“Communication by one parent to another regarding the care of a child is sanctioned, and even
encouraged, by law and is accordingly an activity with a legitimate purpose.”). However, we
find this argument disingenuous because he is not the child’s father. Moreover, it is utterly
unreasonable for Defendant to attempt to justify his course of conduct based upon his belief that
he has some right of access to Victim’s child. Defendant is not an estranged parent having
difficulty communicating with the other parent about their shared child. Instead, he is merely an
ex-partner using Victim’s child as a weapon to intimidate her, including baseless allegations of
child abuse. We find Defendant’s course of conduct does not remotely serve a “legitimate
purpose,” to justify his decision to repeatedly disregard Victim’s request to stop contacting her.
Victim testified that she became scared of Defendant when he ignored her nineteen
requests to stop contacting her and showed up at her house because “he doesn’t believe that he’s
crossing boundaries, and I’ve asked him to stop contacting me, and he’s pushing it further and
further.” Defendant’s course of conduct, which was escalating from obsessive, repeated
communications to inappropriate contact with Victim’s child in her own yard and confronting
Victim in person, claiming she was abusing her daughter, is such that it would produce
substantial emotional distress in any reasonable person.
5 Defendant “engag[ed] in 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,”
by failing to heed Victim’s requests to stop contacting her and showing up to her home and
accusing her of child abuse. The Act is intended to protect victims from this exact type of
alarming conduct. See L.M.M. v. J.L.G., 619 S.W.3d 593, 597 (Mo. App. E.D. 2021) (“The
Adult Abuse Act is intended to prevent potential violence. . .”); see also Van Pelt, 969 S.W.2d at
387 (“The [Act’s] laudatory purpose is to prevent potential violence, and unnecessary and
unjustified infliction of emotional distress.”). Thus, the trial court did not err in granting Victim
an order of protection against Defendant because there was sufficient evidence of abuse by
harassment. Defendant’s point is denied.
CONCLUSION
The trial court’s judgment is affirmed.
__________________________________ Lisa P. Page, Judge
Sherri B. Sullivan, P.J. and Thomas C. Clark, II, J., concur.