1) FINAL ORDER--NO FINDING OF DOMESTIC ABUSE AND/OR STALKING OF INTIMATE PARTNER OR CHILD. Federal firearms prohibition does not apply.
2) FINAL ORDER--DOMESTIC ABUSE AND/ OR STALKING . Following the hearing of which Defendant had actual notice and opportunity to appear and respond, the Court finds that the Defendant represents a credible threat to the physical safety of an intimate partner or child . Defendant is prohibited from possession of firearms or ammunition for the term of this Order.
The trial court checked the box for option 2 and ordered the final protective order to remain in effect until May 17, 2026. The final order lists only Matthews as Petitioner and does not include her minor daughter. ¶10 Webb appeals.
STANDARD OF REVIEW
¶11 "A protection order under the Protection from Domestic Abuse Act, 22 O.S.2022, §§ 60 --60.18, is reviewed for an abuse of discretion." Hayes v. Penkoski , 2024 OK 49 , ¶ 2, 550 P.3d 931 . "Under an abuse of discretion standard, the appellate court examines the evidence in the record and reverses only if the trial court's decision is clearly against the evidence or is contrary to a governing principle of law." Curry v. Streater , 2009 OK 5 , ¶ 8, 213 P.3d 550 .
ANALYSIS
¶12 The Protection from Domestic Abuse Act, specifically (A), states, "A victim of domestic abuse, a victim of stalking, a victim of harassment, a victim of rape . . . may seek relief under the provisions of the Protection from Domestic Abuse Act."
¶13 The requirements for a protective order when the petitioner is a victim of domestic violence or a family or household member of the defendant differ from the requirements when no such relationship exists between the parties. For the reasons that follow, we reverse the trial court's order for an abuse of discretion in granting the protective order.
I. The trial court abused its discretion in granting a protective order based on domestic abuse and/or stalking. ¶14 The trial court's final order of protection contains a finding of domestic abuse and/or stalking, which states that "the Defendant represents a credible threat to the physical safety of an intimate partner or child. " The order states: " Notice:
Federal Firearm Prohibition : As a result of this order, it may be unlawful for you (the person subject to this Protective Order) to possess or purchase a firearm, including a rifle, pistol or revolver, or ammunition pursuant to federal law under
18 U.S.C. §922(g)(8) and/or state law."
¶15 The trial court's finding of domestic abuse and/or stalking of an intimate partner or child and its consequent firearm prohibition resulted from an abuse of discretion because this was never asserted as the basis for the issuance of a protective order and the record contains no support for this finding. Webb is unquestionably not Matthews' intimate partner, but simply her acquaintance, as Matthews described him in her testimony. There is no evidence on which to conclude that Webb posed a credible threat to an intimate partner or child as a ground for the protective order granted in this case. To hold otherwise is against the clear weight of the evidence and contrary to the governing principles of the Protection from Domestic Abuse Act on which this case is based.
II. Matthews failed to support a claim of stalking. ¶16 The evidence presented to the trial court falls far short of that needed to support the entry of a protective order. Matthews complained of one incident in her petition and testified at the hearing to a second event. The first incident occurred at the Flower Child restaurant where Webb was having a business meeting with an out-of-town friend which lasted for some time before Matthews and her daughter entered the restaurant. When the parties saw each other, Matthews began videotaping Webb and Webb "flipped her off."
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¶17 The second instance occurred at the Oklahoma County Courthouse during the jury trial of a civil case in which Matthews' husband had sued Webb. 2 During a break, Webb exited the courtroom and was conversing with his attorney in the hall outside the courtroom where Matthews was waiting to be called as a witness, the rule of sequestration having been invoked. According to her testimony at the protective order hearing, when Matthews saw Webb, she told him to stay away from her. Webb said he immediately returned to the courtroom. She reported him to a nearby sheriff's deputy, but no charges were filed as a result. 3
¶18 Despite Matthews' characterization in her appellate brief of Webb's conduct as "pernicious harassment," no reasonable assessment of his conduct on these two occasions as described in the record can result in a finding of "stalking."
Webb did not follow Matthews to the restaurant--he was in the restaurant for a considerable time before Matthews appeared, and there is no reasonable basis for believing he had any way of knowing she and her daughter would appear for lunch at the same place at the same time as his business meeting. Matthews further agrees that Webb was required to be in the courtroom during her husband's trial against him and he had the right to converse with his attorney in the hall during breaks. Neither of these events can under any reasonable assessment be construed to constitute "stalking" as defined by the Protection from Domestic Abuse Act.
¶19 In addition, Matthews failed to present a police report--either in her petition or at any of the hearings held by the trial court--in support of her stalking claim as required by 22 O.S. Supp. 2022 § 60.2 (A)(1), the statute in effect when she filed her petition. This section states:
If the person seeking relief is not a family or household member or an individual who is or has been in a dating relationship with the defendant, the person seeking relief must file a complaint against the defendant with the proper law enforcement agency before filing a petition for a protective order with the district court.
"Because of the potential for misuse and the potential for unwarranted harmful results, only protective orders which meet the legislative requirements should issue." Curry v. Streater , 2009 OK 5 , ¶ 11, 213 P.3d 550 . ¶20 There is no police report in the record showing Matthews made a report before filing her protective order petition. Even if she had made a report, her failure to present it to the court in the proceedings shows she failed to meet the statutory requirements of § 60.2(A)(1). See, e.g., Marler ex rel. Nowata Senior Citizens Ctr. v. Kloehr, 2012 OK CIV APP 23 , ¶ 9, 274 P.3d 849 (concluding that although the filings suggested petitioner may have filed a complaint before seeking a protective order, a copy of that complaint was not before the trial court when it decided the matter, and the petitioner therefore failed to meet the requirements of
§ 60.2(A)(1)).
¶21 This requirement, instituted for situations like the current one not involving an intimate or domestic relationship, is designed to deter frivolous claims of entitlement to a protective order for alleged stalking and to minimize "the potential for misuse and the potential for unwarranted harmful results." Curry , 2009 OK 5 , ¶ 11. Section 60.2(A)(1) provides that,
"Failure to provide a copy of the complaint filed with the law enforcement agency shall constitute a frivolous filing and the court may assess attorney fees and court costs against the plaintiff pursuant to paragraph 2 of subsection C of this section."
22 O.S. Supp. 2022 § 60.2 (A)(1). In addition to the reasons given above, we are not at liberty to disregard the requisites enacted by the Legislature in this instance by allowing a non-domestic protective order to stand in the absence of the mandated police report.
CONCLUSION
¶22 The protective order was granted without support in the record and against the clear weight of the evidence. There was no intimate or familial relationship to support a finding of domestic abuse and/or stalking of an intimate partner or child. Further, this protective order cannot be sustained when the evidence clearly fails to support a finding of stalking and, in violation of the statutory mandate, no police report was submitted to the court. The trial court's decision is reversed, and the order of protection is vacated.
¶23 REVERSED AND VACATED.
FISCHER, J., and BLACKWELL, J., concur.
FOOTNOTES
1 Appendix 2 of the form defines stalking as:
The willful, malicious, and repeated following or harassment of a person by an adult, emancipated minor, or minor thirteen (13) years of age or older, in a manner that would cause a reasonable person to feel frightened, intimidated, threatened, harassed, or molested and actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed or molested. Stalking also means a course of conduct composed of a series of two or more separate acts over a period of time, however short, evidencing a continuity of purpose or unconsented contact with a person that is initiated or continued without the consent of the individual or in disregard of the expressed desire of the individual that the contact be avoided or discontinued.
3
County Court Clerk did not transmit the exhibit as part of the record because the appellate rule at the time required an order from the Supreme Court to transmit non-paper exhibits. Neither party sought such an order, and the exhibit was not made part of the record.
4