R.K. v. Kelly
WD84037
Opinion filed on 8/31/21
Appeal from the Circuit Court of Caldwell County to Missouri Court of Appeal – Western District
R.K. filed an Order of Protection Against J. Kelly (hereinafter “Appellant”). The two parties are neighbors and frequently got into disputes because Appellant would allow his dogs to defecate on purported public easements on properties owned b R.K. and her husband.
On August 26, 2020 R.K. filed an order of protection against Appellant alleging that he had stalked her and attempted to cause her physical harm. In her petition, R.K. noted that Appellant had called her derogatory names and chest bumped her causing her to fall back of a couple of steps. The trial court entered the ex-parte order and a full hearing was scheduled on September 9, 2020.
Appellant then filed a four point appeal on the following grounds: (1) the trial court erred in entering the order because R.K.’s petition was unverified. For his remaining points, Appellant argues that the court erred in entering the order based on a finding of stalking because there was insufficient evidence of (2) subjective alarm, (3) objective alarm and (4) an unwanted course of conduct (Point IV).
The Appellate Court dismissed Point 1 on appeal noting that, “There is no indication in the record that Kelly called the verification issue to anyone’s attention before or during the hearing. Instead, it appears that he raised the issue for the first time on appeal. Thus, by failing to object to the lack of verification earlier, Kelly waived any claim of error pertaining to that issue.”
With respect to points 2, 3 and 4, the Appellate Court agreed with Appellant that there was insufficient evidence of the following elements of stalking: (1) subjective alarm; (2) objective alarm and (3) an unwanted course of conduct.
R.K. noted in her testimony that while she found Appellant’s behavior irritating and unpleasant, she did not testify that she felt unsafe. With the exception of Appellant chest bumping R.K., no evidence was present that Appellant engaged in an unwanted course of conduct over a period of time towards R.K. or she felt frightened of him. Finally, the Appellant ruling noted that: “The remainder of the incidents described by R.K. and Husband involved Kelly’s use of obscene language and hand gestures directed at R.K. But there was no evidence that these incidents caused R.K. to fear physical harm.” Therefore, points 2 and 4 are granted.
Order of Protection is vacated.
