Raney v. Raney

86 S.W.3d 484, 2002 Mo. App. LEXIS 2089, 2002 WL 31299613
CourtMissouri Court of Appeals
DecidedOctober 15, 2002
DocketNo. WD 60619
StatusPublished
Cited by2 cases

This text of 86 S.W.3d 484 (Raney v. Raney) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raney v. Raney, 86 S.W.3d 484, 2002 Mo. App. LEXIS 2089, 2002 WL 31299613 (Mo. Ct. App. 2002).

Opinion

JAMES M. SMART, JR., Judge.

John W. Raney appeals the trial court’s order granting a full order of protection, pursuant to the Adult Abuse Act (§§ 455.010-455.085 et seq., RSMo 2000) in favor of Karen R. Raney.

Statement of Facts

On October 2, 2001, Karen Raney (“Wife”), filed a petition for an ex parte order of protection against John W. Raney (“Husband”). Wife alleged in the petition [485]*485that an argument between the two ensued while she was driving a vehicle the previous evening and that Husband “intentionally physically injured” her, “attempted to physically injure” her, “harassed” her, and “placed [her] in apprehension” by the following acts: “[T]ook my purse and wallet to take credit cards and checkbook ... grabbed my right arm and pushed me away. Then placed van in neutral while I was driving down street.... Called on October 2, 2001, and ... threatened to get nasty if I filed for order of protection or had him arrested.”

Wife also alleged in the petition that Husband has abused/stalked her before, in the following ways: “Physical — pushing, choking; Verbal — cussing, yelling, screaming; and Emotional — control games making me account for where I’ve been at all times, belittling.” Wife submitted evidence of her injuries, consisting of a hospital report and two photographs, attached to her petition and marked “Exhibit B.” Wife also requested primary custody of the three minor children residing in the home, and asked for child support by marking the appropriate boxes on the petition form.

The court granted Wife’s request for an ex parte order of protection that same day and scheduled a hearing within fifteen days in order to determine whether a full order of protection should be issued.

A hearing on Wife’s petition was held on October 15, 2001. Present at the hearing were Wife, Husband, and Husband’s attorney. At the outset of the hearing, Husband’s attorney stated that the parties had reached an agreement under which Husband would voluntarily move out of the parties’ residence, with the parties’ pastor overseeing the move. Whereupon the court stated: “So we’ll enter you an order of protection.” Husband’s attorney then denied the allegations contained within Wife’s petition. After questioning Wife as to whether an order of protection was what she was seeking, the court again stated: “I’ll issue an order for her. That’s what she wants.” Husband’s attorney again stated, “He’s denying it, so .... ”, but was interrupted when the court asked about the children.

The court immediately turned its attention to the children. Wife testified that she was asking for child support for two of her three children. Wife acknowledged that she was currently receiving child support for the oldest child pursuant to a prior dissolution order. Wife testified that she and Husband had married on October 19, 1995, and that all children were born prior to the marriage. Husband twice denied being the father of any of the children. Wife submitted, as evidence of his paternity, copies of birth certificates of the two youngest children. The certificates named Husband as the father. The court stated that it would order custody to the Wife and would give Husband thirty days to submit to a paternity test and get the results back to him or to the divorce court.

The court allowed Husband to remove his belongings from the home under the supervision of the pastor, but no further testimony or evidence was presented. The court entered judgment granting Wife a full order of protection, ordering Husband to undergo paternity testing within thirty days, and allowing Husband to get his personal belongings. Husband appeals.

Standard of Review-

As with all judge-tried cases, this court will sustain the trial court’s order unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law, pursuant to Murphy v. Carron, 586 S.W.2d 30, 82 (Mo. banc 1976). Wallace v. Van Pelt, 969 S.W.2d 380, 382 (Mo.App.1998).

[486]*486Failure to Hold a “Hearing”

In his first point, Husband contends that the court erred in issuing a full order of protection because the court erroneously applied the law by failing to hold an “adversarial proceeding,” in that the Adult Abuse Act, § 455.040.1 RSMo 2000, requires the petitioner to prove the allegations of abuse at a hearing, and no “hearing,” within the meaning of the statute, was held in this case.

Husband points out that pursuant to § 455.040.1,1 after an ex parte order of protection is granted, a hearing must be scheduled within fifteen days in order to determine whether a full order of protection (and attendant relief) should issue. Pursuant to the statute, a full order of protection shall issue if, at that hearing, the petitioner proves the allegations of abuse by a preponderance of the evidence. § 455.040.1. In Grist v. Grist, 946 S.W.2d 780, 782 (Mo.App.1997), the court discussed the “due process” purpose behind the requirement that a hearing be conducted after an ex parte order is issued:

The purpose of the ex parte order is to maintain the safety of the petitioner and prevent further acts of abuse until the party against whom the order is entered receives due process. Accordingly, in order to balance the right of the petitioner to be free from abuse and the right of the adverse party to due process before being deprived of his liberty and property interests, the maximum period of time an ex parte order can be effecate without either a hearing or a valid continuance is fifteen days.

(citations omitted).

Here, a hearing was scheduled for October 15, 2001, and on that date, the Wife, Husband, and Husband’s attorney appeared before the court for the purpose of conducting the hearing. The following excerpt from the transcript is the sum and substance of the “hearing” up to the point at which the court pronounced that the order would be granted and then immediately directed its attention to the matter of the children’s support:

(October 15, 2001)
THE CLERK: Karen Raney, John Raney.
[COURT]: Karen Raney, John Ra-ney.
MR. PENDER [attorney for Husband]: Petitioner appears in person. Respondent appears in person, and I am—
[COURT]: You’re representing who? MR. PENDER: Respondent, Mr. Ra-ney.
[COURT]: You’re representing Mr. Raney?
MR. PENDER: Yes. But prior to having this hearing, Your Honor— [COURT]: Huh?
MR. PENDER: Depending on what might happen here on — when people testify, the parties have agreed Mr. Raney will voluntarily remove himself from the residence, and the parties have agreed that their pastor — or Reverend Messner [487]*487will be a witness when he gets his stuff out — that she’s willing to get his stuff out. So—
[COURT]: So we’ll enter you an order of protection.
MR. PENDER: Well, no. He’s denying. I’m saying when we have a hearing, if things get heated, I don’t want them to change their mind.

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Cite This Page — Counsel Stack

Bluebook (online)
86 S.W.3d 484, 2002 Mo. App. LEXIS 2089, 2002 WL 31299613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raney-v-raney-moctapp-2002.