M. D. D. v. Alonso

• Decision Date: 17 May 2017
• Docket Number: A160408
• Citation: 396 P.3d 961,285 Or.App. 620
• Parties: M. D. D., Petitioner-Respondent, v. Kassten F. ALONSO, aka Kassten F. Alsonso, Respondent-Appellant.
• Court: Oregon Court of Appeals

285 Or.App. 620

396 P.3d 961

M. D. D., Petitioner-Respondent,

v.Kassten F. ALONSO, aka Kassten F. Alsonso, Respondent-Appellant.

A160408

Court of Appeals of Oregon.

Argued and submitted December 6, 2016.

May 17, 2017

Mark T. McLeod and McLeod & McLeod Attorneys at Law filed the brief for appellant.

Brenna Tanzosh argued the cause for respondent. With her on the brief was Tanzosh Family Law LLC.

Before Sercombe, Presiding Judge, and DeHoog, Judge, and Flynn, Judge pro tempore.

DEHOOG, J.

In this appeal, respondent in a proceeding under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735, challenges a restraining order prohibiting his contact with petitioner. Respondent assigns error to the trial court's issuance of the FAPA restraining order. In support of his position, respondent first contends that the record does not support the trial court's finding that abuse occurred. See ORS 107.718(1). Second, respondent asserts that the court erred by failing to make two findings that were essential to the issuance of a FAPA restraining order, specifically, that petitioner was in imminent danger of further abuse, and that respondent represented a credible threat to petitioner's safety. See id. Third, respondent argues that the court could not have made those findings, because the record does not support them. In response, petitioner argues that respondent failed to preserve each of those contentions, but that, to the extent that we consider them, the record supports each of the trial court's express and implicit findings and the restraining order as a whole.

As explained below, we agree with petitioner that respondent failed to raise before the trial court some of the contentions that he seeks to have us consider on appeal, and, accordingly, we do not consider the merits of those contentions. Respondent did preserve his argument that the trial court's finding that the abuse occurred is unsupported by the record. However, we decline respondent's request to conduct de novo review in this case and conclude that evidence in the record supports the trial court's finding of abuse. Accordingly, we affirm.

We begin with a brief overview of the procedural history of the case and the evidence presented at the FAPA hearing. On July 20, 2015, petitioner filed a "Petition for Restraining Order to Prevent Abuse" under

ORS 107.718(1).¹

In her petition, she alleged that, on July 15, 2015, respondent, who was petitioner's husband, had committed abuse within the meaning of FAPA. Petitioner alleged that, on that date, respondent "came home from work, after a few drinks[.] * * * [H]e physically attacked me. I had to fight for my safety. It was terrifying." The trial court reviewed the petition ex parte and issued the requested restraining order. See ORS 107.718(1) (authorizing the initial issuance of a restraining order through ex parte proceedings). Respondent filed a timely request for a hearing to contest the issuance of that order. See ORS 107.718(10) (imposing hearing request deadline of 30 days after service of the order).

At the contested hearing, the court began by clarifying the scope of respondent's challenge:

"THE COURT: I'll describe how I'd like to proceed. First of all, I'd like to know the position [of respondent] * * * on the restraining order itself; and that is, is it his position that if we go through and hear all the facts, I will determine that the incident did not occur? Is that the position?

"[RESPONDENT]: Yes, Your Honor, that no abusive incident occurred, yes.

"THE COURT: * * * I want to determine first that issue, and then obviously if it did not occur, then we're done. * * * I have read the petition. It establishes a prima facie case for granting the restraining order, and that's what a restraining order is based on in the initial stage. And so I want to treat the petition as direct testimony of the petitioner, and start with allowing any cross-examining of the petitioner on that."

Respondent voiced no objection to the court's proposed reliance on the petition and proceeded to question petitioner regarding her allegations of abuse. Petitioner testified that, following a heated argument with respondent, she had gone outside and sat on the steps of their home with her cell phone in her hand. She stated that respondent had followed her outside and

"had a big glass of wine in his right hand, and he lunged at me with his left hand and he tried to get the phone out of my hand[.] * * * I was determined not to let go of that phone; and he grabbed my left hand and bent my hand backwards to try to force me to let go of it, and he knocked me backwards on the stairs. I didn't fall over, but I was afraid of falling over and I had to struggle between hanging onto the phone and not falling off the stairs onto the cement, where there was a pile of construction debris below[.]"

According to petitioner, when respondent "lunged" at her, she was "knocked around" and "screamed at the top of [her] lungs * * * and that's when he let go of [her]." Petitioner further testified that she had "bruising on [her] forearm" as a result of the incident. To corroborate her testimony, petitioner introduced into evidence a brief video of the incident that she had taken with her cell phone.

Respondent disputed petitioner's account of the incident. To impeach petitioner's testimony that he had bruised her forearm, respondent cross-examined her regarding a photograph taken on July 16, the day after the alleged abuse, which showed no apparent bruising. Respondent also testified to a different version of events. He recalled "t[aking] the phone out of [petitioner's] hand" during the July incident, but denied that there had been a struggle or that he had pushed petitioner. According to respondent, the only physical contact that occurred was when petitioner "rake[d] my arm with her fingernails, trying to get her phone back, and when she realized she couldn't get it back she started screaming ‘Help’ at the top of her lungs. * * * I was surprised and kind of scared by the volume * * * so I handed her her cell phone back."

At the conclusion of respondent's testimony, the trial court summarized the relevant aspects of the parties' evidence. The court recounted that petitioner first had testified that respondent " ‘physically attacked me, I had to fight for my safety.’ Then there was the video, and then there was [respondent's] testimony that said, ‘I snatched the phone out of her hand.’ " Based on that evidence, the court found that respondent "subjected [petitioner] to this offensive physical contact [and] placed her in fear[.]" Upon concluding that "a restraining order [was] appropriate for that action," the court entered an order upholding the ex parte restraining order.

Respondent now appeals that order and, as noted, raises three arguments in support of his contention that the court erred in entering the order. As a preliminary matter, we first address petitioner's contention that respondent failed to preserve his arguments before the trial court and that we therefore should not consider them. As petitioner correctly observes, generally, "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court," ORAP 5.45(1). See State v. Reynolds , 250 Or.App. 516, 519, 280 P.3d 1046, rev. den. , 352 Or. 666, 293 P.3d 1045 (2012). To preserve an issue for appellate review, a litigant must raise the relevant issue below and provide an explanation of his or her position to the trial court. State v. Liviu , 209 Or.App. 249, 252, 147 P.3d 371 (2006), rev. den. , 345 Or. 158, 190 P.3d 379 (2008). Preservation gives a trial court the chance to consider and rule on an argument, which may avoid an error altogether or correct one already made and obviate the need for an appeal. Shields v. Campbell , 277 Or. 71, 77, 559 P.2d 1275 (1977). Preservation also ensures fairness to an opposing party by permitting that party to respond to a contention and not be taken by surprise. Davis v. O'Brien , 320 Or. 729, 737, 891 P.2d 1307 (1995). Accordingly, our jurisprudence has embraced the preservation requirement "not to promote form over substance but to promote an efficient administration of justice and the saving of judicial time." Shields , 277 Or. at 77-78, 559 P.2d 1275.

With those principles in mind, we conclude that respondent adequately raised and preserved his first argument, in which he asserts that the trial court's finding of abuse lacked sufficient evidentiary support.² In support of her view that respondent did not preserve that argument for appeal, petitioner notes that respondent never objected to the court's conclusion that respondent's conduct constituted abuse. Respondent does not dispute that point, nor does his briefing "demonstrate that the question or issue presented by [that] assignment of error timely and properly was raised and preserved" in the trial court, ORAP 5.45(4)(a).³ Despite that failing, however, we conclude that respondent's contention is preserved.

As noted, in response to the trial court's pre-hearing inquiry, respondent confirmed that his "position" was that "no abusive incident occurred." He proceeded to present evidence disputing petitioner's version of events, including her account of the alleged abuse in July 2015. Respondent thus notified petitioner that he contested the factual sufficiency of her abuse claim and alerted her to the fact that he would hold her to her burden of proof on that issue. See Vanik-Burns v. Burns , 284 Or.App. 366, 370-71, 392 P.3d 386 (2017) (petitioner must prove each element in ORS 107.718(1) to obtain a restraining order). Those same actions informed the court that respondent's contention was that he had not abused petitioner, a contention that the court directly addressed in its oral ruling. As a result, those actions fulfilled the purposes of the preservation requirement—notably, fairness, notice to the opposing party, and efficient judicial administration—and,...