Pinkham v. Brubaker

• Decision Date: 19 December 2001
• Citation: 37 P.3d 186,178 Or. App. 360
• Parties: Susan Lea PINKHAM, Respondent, and Sydney Rebekah Green and Sophie Rachelle Green, Minor Children, Petitioners, v. Michael Lee BRUBAKER, Appellant.
• Court: Oregon Court of Appeals

37 P.3d 186

178 Or. App. 360

Susan Lea PINKHAM, Respondent, and Sydney Rebekah Green and Sophie Rachelle Green, Minor Children, Petitioners, v. Michael Lee BRUBAKER, Appellant.

00-1696-ZO; A111021

Court of Appeals of Oregon.

Submitted on Record and Briefs September 7, 2001.

Decided December 19, 2001.

Kendra M. Matthews and Ransom Blackman LLP filed the brief for appellant.

Susan Lea Pinkham filed the brief pro se for respondent.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

LINDER, J.

Respondent appeals from a judgment granting petitioner's requested permanent stalking protective order (SPO). See ORS 30.866.¹ The sole issue on appeal is the adequacy of the evidence to support issuance of the SPO. We review the facts de novo, Hanzo v. deParrie, 152 Or.App. 525, 537, 953 P.2d 1130 (1998), rev. den. 328 Or. 418, 987 P.2d 512 (1999), giving deference to the trial court's express and implicit credibility determinations.² We affirm.

Respondent worked in the produce section of a grocery store in Ashland, Oregon, where petitioner shopped. Respondent first befriended Sydney, petitioner's youngest daughter, who was then nine years old. He would talk to her when she came into the store with her mother, frequently giving her samples of fruit and otherwise focusing attention on her. Sydney liked the attention and looked forward to seeing him at the store.

Sometime after respondent and Sydney became friends, petitioner's domestic companion died of cancer. Petitioner's daughters told respondent of that death, after which respondent reached out to petitioner as well. He became a family friend and occasionally did things with petitioner and her daughters, such as coming to their home for dinner. Eventually, respondent let petitioner know that he was trying to find an apartment in Ashland. At that time, he was living in Grants Pass but was having difficulty with the commute because of mechanical problems with his car. Petitioner initially let respondent store some of his belongings in her garage. When respondent was unable to find an apartment, petitioner also let him stay in her home. Petitioner and respondent agreed that the arrangement was temporary.

The arrangement worked well at first. Petitioner considered respondent a pleasure to be around, grew fond of him, and the two became intimate. They had a "pretty good" relationship for a few months, until petitioner became concerned about respondent's interaction with her older daughter, Sophie. While respondent continued to cultivate a close friendship with Sydney—buying her things, taking her places, and, in general, making his relationship with her "fun"—he had little patience for Sophie. With Sophie, respondent was often tense and verbally insulting, and grew more so as time passed. Petitioner became particularly concerned about respondent's behavior with children one day when she heard a girl screaming in her living room. She entered to discover respondent laughing and pushing one of her daughter's 10-year-old friends to the floor with what respondent later referred to as a "Spock hold." The maneuver was obviously hurting the child. To get respondent to stop, petitioner had to yell at him and grab his arm. Petitioner expressed anger with respondent for his behavior, and respondent reacted defensively, describing the 10-year-old as deserving his treatment because she had been "mean" to him first and because she was a "hyper kid" generally. After that incident, because of her concerns about how respondent reacted to and handled children, petitioner asked respondent to move out.

Respondent apparently looked for another place to live but found no acceptable apartments. He therefore continued to live in petitioner's home. While living there, he continued to pick Sydney up at school and take her home. One day, without permission, he drove her to Grants Pass instead of taking her home. Petitioner was upset that he did so, primarily because she considered respondent's car unsafe. That and other disagreements over the children caused petitioner and respondent to argue on an ongoing basis. Petitioner continued to press respondent to move out, which he finally did. About the time that respondent did so, the lease expired on petitioner's home and she and her children also moved into a new residence. At that point, which was about 10 months after he had moved in with her, petitioner told respondent that he should "move on with his life" and that her children did not want to stay in touch with him.

Respondent continued to contact the children, however. At least twice, he called them at home when petitioner was at work and, when he found out that they were alone, he came over uninvited. Because the children knew he was coming, they called petitioner, who came home. Respondent brought gifts for the children. In particular, he brought art supplies for Sydney, which she was especially fond of and had difficulty declining. Respondent stayed only a few minutes on those visits and left without incident.

A few months after respondent moved out, petitioner discovered that two dresses in her closet that she had not worn in some time had been shredded with scissors. Respondent had given petitioner both dresses as presents, and petitioner suspected respondent of destroying them after a fight they had some months before. Petitioner testified to her fear upon finding the dresses:

"My stomach dropped, because I just—it felt like—it frightened—it was frightening to me that he could be that—it just seemed vicious to—just to cut up my clothes."

The incident also frightened Sophie, who considered it "creepy" and was scared at what else respondent might do. Respondent admitted to petitioner that he had cut the dresses after an argument that they had several months before. At the hearing on the SPO, respondent testified that he damaged the dresses so that petitioner would know he was capable of expressing anger. After finding the dresses, petitioner sent a letter to respondent, telling him that she had found the dresses and instructing him not to call or otherwise contact her family, and "not to come to our home ever."

For about a month, respondent did not contact either petitioner or her daughters. Then one day, when petitioner and Sophie were walking home, respondent drove up alongside them and offered them a ride. Petitioner told Sophie not to worry, because she felt respondent would not bother them with lots of other people around. Petitioner told respondent to leave them alone. Respondent smiled, asked her why she was being so unfriendly, persisted in trying to give them a ride, and wanted to know where Sydney was. When petitioner ignored him, he drove off, but Sophie believed he would be waiting at their home when they got there. She was right. When they arrived at their home, respondent was parked in front of the house. He asked again where Sydney was. Petitioner told him that Sydney was at a friend's house, but she would not tell him which one. Petitioner and Sophie then got in petitioner's car and left. When they came home later, respondent was gone.

In the months that followed, petitioner had limited contact with respondent. Petitioner urged respondent to obtain professional counseling, and she was hopeful that, as a result of counseling, respondent would leave her and her children alone. At one point, respondent approached petitioner in a parking lot, told her that he was really sorry for his behavior, that he was getting counseling, and that he "felt terrible about the fear that he had caused and was very upset that Sydney might think he was some kind of monster." He urged petitioner to let him visit her daughters so that they could see he was not a terrible person. Petitioner was very reluctant, but respondent assured petitioner that he was getting counseling and would not bother the family again if he could have that visit. Petitioner finally agreed to let respondent come to her home for a few minutes. Respondent brought gifts for petitioner's daughters, was very polite, stayed only a few minutes, and then left. Petitioner felt relieved, and felt safer because she thought that she and her daughters would not have to go "through this any more."

Not long afterwards, however, respondent called petitioner's home and left a message on the answering machine that he was coming over. He then arrived, uninvited. He visited briefly and brought gifts for petitioner's daughters, as he usually did. He asked to see some of Sydney's artwork. Sydney showed him a picture of some mountains that she had drawn. Respondent told her that the mountains looked like "boobs," and that they specifically looked like petitioner's, Sophie's, and Sydney's "boobs." Petitioner considered the sexual comparison inappropriate and told Sydney to take the picture to her room and not to show any additional artwork to respondent. Respondent left soon afterwards. Shortly after that visit, respondent contacted petitioner, expressing a desire to remain friends. Petitioner wrote him a letter saying that she would think about it, but emphasizing to him that he should not try to see Sydney without petitioner's knowledge and that he should not come to the house uninvited or show up anytime when petitioner was not home.

During that time period, petitioner twice agreed to have lunch with respondent. The second time she did so, respondent said that the reason he wanted to have lunch with her was to tell her about his plans to move to Alaska and to ask her some questions that would help him with his counseling. When they met for lunch, however, respondent told her within the first few minutes that he was not going to Alaska after all and that he was done with counseling because his counselor had told him that it was petitioner, not him, who had problems. Petitioner was angry because she felt that respondent had manipulated her again, and she left without staying for lunch. She then wrote respondent...