270 P.3d 375
Or. Ct. App.2012Background
- Hemingway petitioned for continued restraining order under FAPA during ongoing dissolution custody dispute.
- A DHS investigation into alleged abuse of Hemingway's child was underway; DHS concerns were addressed at the hearing.
- Husband/Mauer was not represented by counsel at the hearing.
- The court allowed DHS's social worker Boyd to address the court despite not being sworn initially, and then swore him in.
- Hearing record shows the court declined to allow cross-examination of Boyd and ultimately continued the restraining order with DHS-supervised contact conditions.
- On appeal, Hemingway argues the court violated procedural due process by limiting cross-examination; the court vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the trial court abuse discretion by denying cross-examination of Boyd? | Hemingway argues the court curtailed cross-examination, violating due process. | Mauer contends the court properly managed the hearing and evidence. | Yes; the court abused discretion and the order was vacated and remanded. |
| Can the appellate court review the order de novo given an incomplete hearing? | Hemingway asserts the record is incomplete to sustain the order. | Mauer contends de novo review is appropriate on the merits. | Not reached; the case was vacated and remanded for a full proceeding. |
Key Cases Cited
- Howell-Hooyman v. Hooyman, 113 Or. App. 548 (1992) (trial court error in depriving pro se party of complete cross-examination)
- State ex rel. Fulton v. Fulton, 31 Or. App. 669 (1977) (reasonableness of evidentiary control; due process in evidence presentation)