M. A. B. v. Buell

• Decision Date: 18 June 2020
• Docket Number: CC 17PO09823 (SC S066752)
• Citation: 466 P.3d 949,366 Or. 553
• Parties: M. A. B., Petitioner on Review, v. Anthony Nicholis BUELL, Respondent on Review.
• Court: Oregon Supreme Court

366 Or. 553

466 P.3d 949

M. A. B., Petitioner on Review,

v.Anthony Nicholis BUELL, Respondent on Review.

CC 17PO09823 (SC S066752)

Supreme Court of Oregon, En Banc.

Argued and submitted January 13, 2020.

June 18, 2020

Emily Rena-Dozier, Legal Aid Services of Oregon, Portland, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Caleb Mammen, Oregon Law Center, Hillsboro.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent on review.

Kelsey Benedick, Larkins Vacura Kayser LLP, Portland, filed the brief for amicus curiae Oregon Attorney General's Sexual Assault Task Force. Also on the brief was John C. Rake.

Sarah E. Feldman, Forum Law Group, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Kathryn Moakley, Domestic Violence Clinic, Eugene, filed the brief for amici curiae Oregon Coalition Against Domestic and Sexual Violence, National Crime Victim Law Institute, and Oregon Crime Victims Law Center.

NELSON, J.

Under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735, a petitioner may obtain a protective order by establishing, among other things, an "imminent danger of further abuse" by the respondent. ORS 107.718(1). In this case, the trial court concluded that petitioner had met that standard, but the Court of Appeals disagreed. M. A. B. v. Buell , 296 Or. App. 380, 438 P.3d 465 (2019). Petitioner contends that the Court of Appeals erred. For the reasons stated below, we reverse the Court of Appeals decision.

I. BACKGROUND

A court may issue a FAPA protective order when a petitioner establishes, by a preponderance of the evidence, that (1) the petitioner "has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition"; (2) "that there is an imminent danger of further abuse to the petitioner"; and (3) "that the respondent represents a credible threat to the physical safety of the petitioner or the petitioner's child." ORS 107.718(1). "Abuse" is defined as "the occurrence of one or more of the following acts between family or household members:

"(a) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury.

"(b) Intentionally, knowingly or recklessly placing another in fear of imminent bodily injury.

"(c) Causing another to engage in involuntary sexual relations by force or threat of force."

ORS 107.705(1). If the court issues a protective order, then the respondent may request a hearing to contest any relief granted. ORS 107.718(10). At the hearing, the court may cancel or change the protective order or may continue the order as it was issued. ORS 107.716(3) (2017).¹

Petitioner applied for a FAPA protective order against respondent on October 9, 2017. The court issued an ex parte FAPA restraining order the same day. Respondent requested a hearing to contest the restraining order. The hearing was held on October 20, 2017. The testimony and evidence provided at that hearing comprise the record in this case. The Court of Appeals detailed the historical facts with due deference to the trial court's findings. Buell , 296 Or. App. at 381-85, 438 P.3d 465. We review the facts here only in summary.

Respondent and petitioner were married in 2014. Together, they have a son, J, who was born in 2015. During the marriage, respondent suffered from depression, for which he took medication. He sometimes also drank to excess. Petitioner testified that respondent raped her twice: once in March 2017 and once in May 2017. The incident in May included respondent dragging petitioner away from J while petitioner was breast feeding. In June 2017, petitioner expressed her unhappiness with the marriage. Respondent replied that, if petitioner left or divorced him, he would kill her and take J.

In July 2017, petitioner took J, moved in with her parents, and filed for dissolution. After the separation, respondent made frequent attempts to contact petitioner by phone, email, and text message. The messages were erratic, including expressions of love, angry demands, and attacks on petitioner's family. Respondent once came to petitioner's parent's home unannounced, but no one answered the door. There was no evidence of other attempts by respondent to make face-to-face contact with petitioner outside of prearranged meetings. At those prearranged meetings, however, respondent regularly exhibited anger toward petitioner. At meetings to transfer J from one parent to the other, respondent would sometimes drive around the block to find petitioner's car, and then drive slowly by with an "angry, rage-filled stare" at petitioner and whoever was with her.

The event that immediately preceded petitioner seeking the protective order occurred on October 5, 2017, when petitioner and respondent met with a mediator to discuss custody and parenting-time issues. Toward the beginning of the mediation, respondent stared intensely at petitioner for a long time and did not respond when the mediator asked him a question. The mediator felt like the stare was "meant to communicate extreme anger and rage" and asked respondent to stop staring, which he did. Later, when petitioner understood a statement by respondent as an admission that his parenting time should be supervised, respondent became "very upset and angry," and he said "fuck you" three times while again staring intensely at petitioner.

The mediator asked respondent to leave the room and then, outside the room, asked whether he would be able to calm down enough to continue the mediation. Respondent said that he could not and would like to leave. After respondent left, the mediator spoke with petitioner, who was crying and shaking. The mediator suggested that petitioner speak with somebody at a domestic violence resource center and provided her with an escort to her car.

Following the October 20 hearing, the trial court continued the protective order in its entirety. The trial court made brief express findings, noting that petitioner was credible in her testimony about respondent's prior acts of involuntary sexual relations and his threat to kill her and take J. The trial court also characterized respondent's text messages and conduct at the mediation as "incidents of intimidation." The trial court found respondent's denials not credible.

On appeal, respondent conceded that the trial court's findings were sufficient to establish that he had abused petitioner within 180 days of petitioner seeking the protective order. Respondent argued, however, that the evidence was insufficient to establish the two other elements: that petitioner was in imminent danger of further abuse from respondent and that respondent presented a credible threat to petitioner's physical safety.

The Court of Appeals agreed with respondent that the evidence was insufficient to show that petitioner was in imminent danger of further abuse from respondent. The court, as a result, reversed the trial court's order without considering whether respondent represented a credible threat to petitioner's physical safety. Buell , 296 Or. App. at 385, 438 P.3d 465.

The court made several observations in assessing the sufficiency of the evidence that petitioner presented. As an initial matter, the court noted that petitioner's most serious allegations concerned abuse that occurred while petitioner and respondent were still living together and that, at the time petitioner applied for the protective order, they were no longer living together. The court stated, "In those circumstances, even when the relationship was abusive and volatile when the parties lived together, that past history may—at least in some circumstances—not be sufficient to demonstrate that the petitioner remains in imminent danger of being abused." Id . According to the court, the evidence of abuse that occurred while the parties lived together needed to be considered along with "the evidence of the parties’ interactions leading up to and following their separation." Id. at 388, 438 P.3d 465.

The court then examined respondent's conduct prior to the separation in the context of his conduct after the separation. Although respondent twice raped petitioner while they lived together, the court noted that "petitioner has not suggested that respondent has sought, threatened, or attempted to engage in sexual conduct with her since they separated." Id. at 389, 438 P.3d 465. And although respondent told petitioner in June 2017 that he would kill her if she ever left him, the court noted that "respondent made the threat only once and there is no evidence that he has repeated the threat or taken any steps to harm petitioner or compromise her safety." Id. at 390, 438 P.3d 465.

The court concluded that respondent's conduct after the separation was not threatening. Instead, the erratic messages from respondent merely reflected his "emotional reaction to petitioner having left their marriage and his anger and frustration regarding restrictions on his time with J." Id. at 389, 438 P.3d 465. And the court discounted respondent's "persistently angry demeanor" in his face-to-face meetings with petitioner. Id. According to the court, while petitioner's distress was understandable, "in the absence of any evidence that respondent has caused or attempted to cause petitioner bodily injury, and in the absence of any evidence that respondent has sought out or pursued petitioner in any other contexts since they separated[,] respondent's conduct is insufficient to demonstrate that petitioner is in imminent danger of further abuse." Id. Petitioner sought review in this court, which we allowed.

II. ANALYSIS

Petitioner presents two arguments on review. First, petitioner argues that the Court of Appeals misinterpreted, and therefore misapplied, the statutory phrase "imminent danger of further abuse." ORS 107.718(1). Second, petitioner argues that the Court of Appeals erred in concluding that the record failed to support the trial court's conclusion granting the protective...