395 S.W.3d 546
Mo. Ct. App.2013Background
- McAlister seeks full order of protection against Strohmeyer after he pointed a handgun at her during a dispute over custody of their child.
- They are unmarried but share a child; meeting at a restaurant and then at Strohmeyer’s home led to a confrontation where McAlister entered his home and argued to say goodbye to the child.
- Strohmeyer told McAlister she was trespassing; after a phone was knocked out and a struggle ensued, he retrieved a handgun.
- McAlister later filed an Adult Abuse Petition for Order of Protection alleging abuse by Strohmeyer; the court denied a full order after a hearing.
- The issues focus on whether the undisputed act of pointing a gun constitutes abuse sufficient for a full order and whether Strohmeyer’s conduct was legally justified.
- The appellate court reviews for substantial evidence and legal error, with deference to the trial court’s assessment of witness credibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether proof of abuse requires a full order | McAlister argues act of pointing gun mandates full order | Strohmeyer argues act justified; no mandatory grant | No; discretion exists; act must be weighed with justification defense. |
| Whether the court must grant a full order upon proven abuse | Once abuse shown, full order must issue | Statutory language permits discretion; justification can defeat grant | No; the act of abuse can be justified, denying the full order. |
| Whether Strohmeyer’s justified use of force defeats the petition | Abuse occurred regardless of justification | Justified under §563.031; absolute defense under §563.074 | Strohmeyer’s actions were justified; no error in denial. |
| How Martinelli and Parkhurst affect the analysis | Discretion should apply like ex parte cases | Parkhurst misapplied; focus on statutory text | Martinelli/Parkhurst analyzed; proper reading supports presumption but allows justification to negate relief. |
| What is the effect of the presumption of immediate danger | Presumption forces grant of full order | Presumption exists but does not bar justification defenses | Presumption applies with justification defense; not dispositive. |
Key Cases Cited
- Martinelli v. Mitchell, 386 S.W.3d 148 (Mo.App. S.D.2012) (discusses necessity of immediate danger for full order; allows act-of-abuse proof without explicit immediate danger requirement for initial grant; permits consideration of justification later)
- Parkhurst v. Parkhurst, 793 S.W.2d 634 (Mo.App. E.D.1990) (discretion in granting full orders; connection to ex parte reasoning)
- Cuda v. Keller, 236 S.W.3d 87 (Mo.App. W.D.2007) (absence of require-ment to prove fear from abuse; informs initial/full order analysis)
- McGrath v. McGrath, 939 S.W.2d 46 (Mo.App. W.D.1997) (dicta on full order standard; pre-563.074 context)
- Bandelier v. Bandelier, 757 S.W.2d 281 (Mo.App. W.D.1988) (discretion in ex parte/renewals; related to standard for full orders)
- Capps v. Capps, 715 S.W.2d 547 (Mo.App. E.D.1986) (interpretation of renewal burden; immediate danger standard for renewals)
- Merrick v. State, 257 S.W.3d 676 (Mo.App. S.D.2008) (pointing a gun at a person may be threat or use of force)