Drake v. Alonso
396 P.3d 961
Or. Ct. App.2017Background
- Petitioner (wife) filed a FAPA petition alleging respondent (husband) physically attacked her on July 15, 2015; an ex parte restraining order issued and respondent requested a contested hearing.
- At the hearing the court treated the petition as direct testimony, petitioner testified she was lunged at, had her hand bent backward, was knocked back on stairs, screamed, and had a bruised forearm; she submitted a short cell‑phone video.
- Respondent denied pushing or striking her, testified he snatched the phone and returned it after petitioner scratched his arm and screamed; he impeached the bruising with a photo taken the next day.
- The trial court found respondent committed offensive physical contact and placed petitioner in fear, sustained the restraining order, and entered findings consistent with abuse under ORS 107.705 and the FAPA standard in ORS 107.718(1).
- On appeal respondent argued (1) the record does not support the finding of abuse, (2) the court erred by not expressly finding imminent danger and a credible threat, and (3) those findings were unsupported by the record.
- The Court of Appeals held respondent preserved only the sufficiency‑of‑evidence challenge, declined de novo review, concluded there was any‑evidence support for abuse, and affirmed.
Issues
| Issue | Petitioner’s Argument | Respondent’s Argument | Held |
|---|---|---|---|
| Preservation of evidentiary‑sufficiency challenge | Petitioner argued respondent failed to preserve several contentions but recognized he contested occurrence of an abusive incident | Respondent contended the record lacks evidence that abuse occurred and sought review | Court found respondent preserved his challenge that the abuse finding lacked evidentiary support because he contested occurrence at hearing; issue preserved |
| Requirement for express findings of imminent danger and credible threat | Petitioner argued respondent did not preserve challenge to the absence of explicit findings | Respondent argued the court erred by failing to make those required findings under ORS 107.718(1) | Court held respondent did not preserve that claim and declined to address it on appeal |
| Standard of review (de novo vs any‑evidence/abuse of discretion) | Petitioner argued review is whether any evidence supports the trial court’s finding | Respondent requested de novo review, contending uncontroverted evidence required it | Court declined de novo review as not an exceptional case and applied the any‑evidence standard |
| Sufficiency of evidence to support FAPA "abuse" finding | Petitioner pointed to her petition, testimony, bruising, and video as supporting abuse or placing in fear | Respondent argued petitioner’s testimony was not credible/specific and other evidence contradicted it | Held there was evidence to support finding of abuse (physical contact and placing in fear); appellate court will not reweigh credibility; affirmed |
Key Cases Cited
- State v. Reynolds, 250 Or App 516 (appellate preservation principles)
- Vanik‑Burns v. Burns, 284 Or App 366 (burden on petitioner to prove FAPA elements)
- Patton v. Patton, 278 Or App 720 (standard: appellate review asks whether any evidence supports trial court finding)
- Shields v. Campbell, 277 Or 71 (purpose of preservation rule; efficiency and fairness)
- Davis v. O’Brien, 320 Or 729 (preservation protects opposing party from surprise)
- Migis v. AutoZone, Inc., 282 Or App 774 (requirements of ORAP 5.45 and preservation compliance)
- Kelley v. Stutzman, 281 Or App 388 (evidence required to show imminent danger and credible threat under FAPA)
- Daley v. Daley, 280 Or App 448 (insufficient evidence to support imminent danger/credible threat findings)