Benaman v. Andrews

• Decision Date: 20 June 2007
• Docket Number: No. CCV0106315.,No. A129153.,CCV0106315.,A129153.
• Parties: Heidi Ann BENAMAN, Petitioner-Respondent, v. Lisa ANDREWS, Respondent-Appellant.
• Court: Oregon Court of Appeals

162 P.3d 280

213 Or. App. 467

Heidi Ann BENAMAN, Petitioner-Respondent, v. Lisa ANDREWS, Respondent-Appellant.

No. CCV0106315.

No. A129153.

Court of Appeals of Oregon.

Argued and Submitted February 20, 2007.

Decided June 20, 2007.

Adam Dean, Portland, argued the cause for appellant. On the briefs were Donald J. Molnar and Coit & Dean, PC.

Arthur B. Knauss argued the cause and filed the brief for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

ARMSTRONG, J.

Respondent appeals a limited judgment of the Clackamas County Circuit Court denying her motion to vacate or modify a June 2001 permanent stalking protective order (SPO) issued pursuant to ORS 163.735, as well as two supplemental judgments awarding attorney fees to petitioner under ORS 20.105(1) based on the court's determination that respondent's efforts to have the SPO set aside were not objectively reasonable. We review de novo, Hanzo v. deParrie, 152 Or.App. 525, 953 P.2d 1130 (1998), rev. den., 328 Or. 418, 987 P.2d 512 (1999); Boyd v. Essin, 170 Or.App. 509, 12 P.3d 1003 (2000), rev. den., 331 Or. 674, 21 P.3d 96 (2001), giving due deference to the trial court's demeanor-based determinations of credibility, see Krueger v. Ropp, 282 Or. 473, 479, 579 P.2d 847 (1978); State ex rel. Juv. Dept. v. G. P., 131 Or.App. 313, 319, 884 P.2d 885 (1994). We affirm the trial court's denial of the motion to vacate or modify the SPO, but we reverse its award of attorney fees.

The parties were next-door neighbors and friends in West Linn. In March 2001, they had a dispute over the location of a fence. In June 2001, petitioner sought, and the circuit court issued, a permanent uniform stalking citation against respondent based on findings that respondent was making vulgar phone calls to petitioner, harassing her, degrading her friends, sending faxes and emails, following petitioner through the neighborhood, giving petitioner "the finger," and playing loud hate music. The circuit court's order prohibited respondent from having contact with petitioner. The order defined "contact" as:

"Coming into visual or physical presence of the petitioner except for incidental contact as neighbor.

"Following the petitioner * * *.

"Waiting outside the home, property, place of work or school of the petitioner * * *.

"Sending or making written communications in any form to the petitioner * * *.

"Speaking by any means with the petitioner * * *.

"Communicating through a third person with the petitioner * * *.

"Committing a crime against the petitioner * * *.

"Communicating with a third person who has some relationship to the petitioner * * * with the intent of affecting the third person's relationship with the petitioner * * *.

"Damaging the home, property, place of work or school of the petitioner * * *.

"Delivering directly or through a third person any object to the home, property, place of work or school of the petitioner * * *.

"Not play [sic] music audible on petitioner's property, specifically, but not limited to songs `TNT' or `Dirty Deeds Done Dirt Cheap.'"

In August 2004, respondent filed a pro se motion to terminate the SPO, which she voluntarily dismissed two days before the scheduled hearing. In January 2005, respondent again sought relief from the SPO, this time represented by an attorney, asserting that, in light of changed circumstances since the issuance of the SPO—primarily her having moved away—the justification for the order no longer exists. At the hearing, the court heard testimony from petitioner concerning respondent's conduct after issuance of the SPO. Petitioner testified that, three days after the issuance of the SPO, in June 2001, respondent placed unsightly boards on a gazebo in her yard on the side facing petitioner's house. In August 2001, within two months after the issuance of the SPO, respondent directed threatening communications toward petitioner, including telling her, "If you thought you were scared before, you should be really scared now," and pointing a finger at petitioner and saying, "You are going to get it." Petitioner was arrested in August 2001 for violating the SPO. After her arrest, respondent began shining a large vapor light from the outside of her house into petitioner's yard. The parties later signed a civil compromise allowing for dismissal of the charges against respondent. Petitioner testified that, as required by the civil compromise, respondent removed the boards from the gazebo, cleaned up her yard and moved the light that was shining onto petitioner's property.

Petitioner and respondent have not had any personal contact since the end of 2001; however, petitioner testified that, since the signing of the civil compromise, respondent has engaged in other conduct that causes her to remain fearful. Petitioner believes that on Christmas Eve 2001, respondent or her husband parked two 26-foot U-Haul trucks on the street adjacent to petitioner's residence. Also on Christmas Eve 2001, respondent erected a clothes line in her yard, from which she hung women's undergarments for a period of three months, illuminated with spotlights at night. Petitioner also testified that, after the civil compromise, and until about six months before respondent moved in the fall of 2003, respondent would frequently stare at petitioner from her house for up to 45 minutes at a time. In August 2003, the day after the statute of limitations ran on respondent's alleged August 2001 violations of the SPO, respondent returned the spotlight to its original location so that it once again shone into petitioner's yard. In that same month, respondent filed a lawsuit against petitioner seeking damages of $500,000, which was subsequently dismissed. The trial court took judicial notice of the judgment in that case, in which the court had awarded attorney fees to petitioner for the reason that respondent's claims were malicious and motivated by a desire to retaliate against petitioner.

In the fall of 2003, respondent moved to a new residence several miles from the property, but she continued to own the property. Since that time, apart from legal filings, respondent and petitioner have had no interaction. However, in October 2004, after respondent filed her first motion for relief from the SPO, unsightly boards reappeared on the side of respondent's gazebo facing petitioner's property. Petitioner testified that the above-described incidents cause her to remain in fear of respondent. Petitioner testified that respondent

"continues to make herself available for me to see things to remind me that she's still there, and even though she can't get arrested for trashing her gazebo, or hanging a vapor light, or hanging up bras and a pair of panties inside out with the crotch facing my yard spotlighted for months, maybe she can't get arrested for that but she's telling me that she's still there."

The court also heard from respondent. She testified that the SPO has made her life difficult and prevented her from enjoying her yard. She has undergone mental health counseling relating to the SPO and her relationship with petitioner. Respondent denied ever having threatened petitioner and specifically denied the conduct that gave rise to the civil compromise in August 2001. She denied placing boards on the gazebo in her yard, using or shining a spotlight on her clothesline, shining a light onto petitioner's property, or parking trucks in front of petitioner's house. She testified that as a result of the SPO, she has lived her life in fear.

The trial court denied respondent's motion, concluding that it had no authority under the statutes to modify the order. Further, the court said, assuming that it had authority to grant the requested relief, it would not do so, finding that respondent was "one of the least credible people I have had occasion to see in court,"¹ and had not met her burden of proof. The court explained that respondent's answers to questions relating to the gazebo, the trucks, and the lingerie were "so unbelievable as to approach the level of perjury in my estimation, and you're utterly and totally unbelievable, Mrs. Andrews, and you're your own worst enemy, and your conduct in court I probably—as indicated in Mr. Dean's closing, I'm not going to modify the order as respondents requested to order that you have a mental health evaluation, because I don't think I have the authority to do that either, but I think I probably missed the mark based on what I've seen of your conduct here in court. You scare me as well. [Petitioner] has a right to have reasonable apprehension of you, and let the record reflect that [respondent] is nodding her head in agreement with me as I say this, and is speaking in a soft voice of, `Oh, really?' * * * By outright threatening the petitioner on August 4th and 5th of 2001, by parking trucks or having trucks parked in a fashion that was intended to frighten the petitioner, by filing these frivolous and unwarranted motions, which were without any merit, which were clearly filed for a desire to retaliate against the petitioner, that when you take all of those things together with the statements they can only be intended, the fact finder can conclude that it was intended to intimidate the petitioner in this case.

"The petitioner's apprehension of imminent physical injury from the respondent was objectively reasonable at the time I issued this order. It continues to be to this very day based on what I've heard here in court, what I've observed personally of the respondent's demeanor here in these judicial proceedings."

(Emphasis added.) The court found that respondent

"has engaged in a continuous course of conduct, which the court finds was motivated by her desire to retaliate against petitioner for having originally been granted a permanent Stalking Order. These activities included:

"a. The trashing of a gazebo on respondent's property causing an unsightly view towards petitioner's...