Section 13.21 Subjective Fear—Petitioner Must Actually Have Fear of Danger of Physical Harm

• Library: Family Law Deskbook and 2014 Supp

i. (§13.21) 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). Furthermore, “vulgar and boorish” behavior is 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.

A threat of litigation is also not recognized as a basis for a PO on stalking grounds. Clark v. Wuebbeling, 217 S.W.3d 352, 355 (Mo. App. E.D. 2007). “Litigation...