TRACY LYNNE GIMLEN, Petitioner-Respondent v. RUBEN D. RIVERO
2016 Mo. App. LEXIS 1238
| Mo. Ct. App. | 2016Background
- Petitioner Tracy Gimlen (pro se at trial) sought an ex parte and then a full order of protection against coworker Ruben Rivero, alleging stalking and harassment at their postal workplace and at home.
- Petitioner testified to repeated unwanted contacts while on her mail route (about 8–10 times between 2012–2014), following on one occasion (Jan. 11, 2014), comments about her appearance, unsolicited magazine subscriptions and bills sent to her home in 2014, and that administrative postal restrictions had been imposed against Rivero.
- Petitioner reported one follow and filed a police report; Rivero was later arrested in Dec. 2014 on forgery charges; bond conditions at the time of the hearing prohibited contact with Petitioner.
- The trial court denied the ex parte order, held a hearing where only Petitioner testified, and entered a full order of protection finding stalking by Rivero.
- Rivero appealed, arguing insufficient substantial evidence that Petitioner was subjectively alarmed or that a reasonable person would be alarmed such that the statutory stalking standard was met.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was substantial evidence that Rivero stalked Gimlen under Mo. Rev. Stat. §455.010(14) | Gimlen asserted Rivero’s repeated unwanted contacts, following, and sending magazines/bills caused her fear for safety and constituted stalking | Rivero argued evidence did not show Gimlen was subjectively alarmed or that a reasonable person would fear physical harm from his conduct | Court affirmed: testimony of repeated contacts, following, and unsolicited mail supported both subjective fear (deferred to trial court credibility) and an objective reasonable-person alarm finding |
| Whether petitioner’s delay in filing undermines stalking finding | Gimlen emphasized ongoing harassment and administrative actions; sought protection while bond and criminal case pending | Rivero highlighted long delays since last contact and last mailed items | Court noted delay was troubling but did not overturn the protection order based on the evidence presented |
Key Cases Cited
- Schwalm v. Schwalm, 217 S.W.3d 335 (Mo. App. E.D.) (standard of review in court-tried cases)
- Towell v. Steger, 154 S.W.3d 471 (Mo. App. S.D.) (definition of substantial evidence)
- Fowler v. Minehart, 412 S.W.3d 917 (Mo. App. S.D.) (warnings on careful application of Adult Abuse Act; harassment vs. stalking distinctions)
- Skovira v. Talley, 369 S.W.3d 780 (Mo. App. S.D.) (requirements for proving stalking: subjective alarm and objective reasonableness)
- N.L.P. v. C.G.W., 415 S.W.3d 800 (Mo. App. E.D.) (limits on relying on unadmitted verified petitions for proving subjective fear)
- E.A.B. v. C.G.W., 415 S.W.3d 795 (Mo. App. E.D.) (same principle regarding petition allegations vs. in-court testimony)