§10.21 Subjective Fear—Petitioner Must Actually Have Fear of Danger of Physical Harm

• Library: Family Law Deskbook (2025 Ed.)

i. (§10.21) Subjective Fear—Petitioner Must Actually Have Fear of Danger of Physical Harm

The appellate courts have extensively scrutinized the issue of subjective fear in stalking cases.

The courts have made it clear that a respondent’s annoying behavior is not sufficient to establish the petitioner’s requisite fear of danger of physical harm. George v. McLuckie, 227 S.W.3d 503, 509–10 (Mo. App. W.D. 2007). Moreover, behavior that is merely stressful to the petitioner is also not sufficient. Id.; see also Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo. App. E.D. 2007). Vulgar and boorish behavior is also not recognized as satisfying the subjective fear element necessary for obtaining a PO. Dennis v. Henley, 314 S.W.3d 786, 791 (Mo. App. S.D. 2010). Obnoxious or concerning behavior will not suffice. H.R. v. Foley, 356 S.W.3d 210, 214 (Mo. App. E.D. 2011). But note the lower standard for “harassment,” a form of abuse.

Fear of losing one’s job because of the respondent’s repeated calls to the petitioner’s employer does not satisfy the statutory requirement. Binggeli v. Hammond, 300 S.W.3d 621, 625 (Mo. App. W.D. 2010). In this case, the petitioner indicated that, despite all of the respondent’s acts, she was never in fear of physical harm, which automatically ends the stalking inquiry. In Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo. App. E.D. 2003), however, the court found that threats made to one’s employee, causing her to fear for her physical safety, were a legitimate basis for a stalking PO. Id. at 260.

Text messages that include threats of litigation but the majority of which provide “information about the parties’ children” or that seek to “coordinate matters related to the children” would not cause a reasonable person to suffer substantial emotional distress. Lawyer v. Fino, 459 S.W.3d 528, 532 (Mo. App. S.D. 2015). Text messages that do not involve a threat of physical harm or even imply a threat of physical harm cannot cause alarm as defined by the statute. Id. at 533. See also Clark v. Wuebbeling, 217 S.W.3d 352, 355 (Mo. App. E.D. 2007) (“Litigation is not the type of behavior the Adult Abuse Act seeks to prevent.”); N.L.P. v. C.G.W., 415 S.W.3d 800, 804 (Mo. App. E.D. 2013).

The appellate courts are not satisfied with a “bare answer of ‘yes’” when asking the petitioner if the petitioner was alarmed. C.B. v. Buchheit, 254 S.W.3d 210, 213 (Mo. App. E.D. 2008). More facts relating to fear need to be developed. A petitioner “must show that a defendant’s conduct caused him or her fear of danger of physical harm. . . .” Id.; Schwalm, 217 S.W.3d at 337. There must be “testimony articulating . . . fear of physical harm at the hands of [the respondent].” Foley, 356 S.W.3d at 214. In D.A.T. v. M.A.T., 413 S.W.3d 665 (Mo. App. E.D. 2013), the court reversed the trial court’s full protection order because the petitioner “did not specifically state that he was afraid of physical harm”—despite the fact that the petitioner testified that he did not “feel safe.” Id. at 669. In this case, the finding of no subjective fear was apparent. “Husband has proffered no evidence of threats, physical altercations or other events that...