260 P.3d 836
Or. Ct. App.2011Background
- Respondent appeals a trial court’s continuance of a FAPA restraining order under ORS 107.718(1).
- Petitioner and respondent cohabitated for about eight years and have two children aged three and four when petition filed.
- Petitioner moved out ~March–April 2009; custody litigation followed; respondent feared losing custody of children.
- Within 180 days before petition, respondent made repeated threats to petitioner and her associates, including death threats and coercive threats related to custody.
- May 27, petitioner obtained an ex parte FAPA order; at hearing, respondent argued there was no imminent threat of abuse.
- The trial court found veiled threats and credible past violence; it continued the FAPA order; respondent appealed, relying on Dompeling’s imminence standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 'imminent' threat under ORS 107.705(1)(b) requires immediate danger | Holbert (plaintiff) argues threats within 180 days sufficed under Dompeling. | Noon (defendant) contends 'imminent' requires immediate or near-immediate injury. | Imminence found; order affirmed |
| Whether the trial court erred by applying Dompeling’s imminence standard to FAPA | Dompeling’s standard should apply to FAPA as used previously in Oregon cases. | Dompeling should not govern FAPA; imminence in FAPA differs from criminal menacing. | No error; trial court’s rationale sustained |
| Whether the court should overrule Dompeling or apply it in this FAPA context | Dompeling's interpretation should govern since closest precedent. | Dompeling should be overruled in favor of a correct FAPA reading aligned with legislative history. | Court affirmed, declining to overrule Dompeling on this record |
| Whether the evidence supports abuse within 180 days that placed petitioner in fear of imminent bodily injury | Totality of threats (May 4 and May 12 texts, past conduct) created fear of imminent injury. | Threats were conditional/future-oriented; not imminent in the required sense. | Evidence sufficient; FAPA order continued (majority view) |
Key Cases Cited
- State v. B.B., 240 Or.App. 75 (2010) (review standard for FAPA under ORS 19.415(3))
- Dompeling, 171 Or.App. 692 (2000) (imminence in mens rea context; previously used to require immediate threat)
- Lefebvre v. Lefebvre, 165 Or.App. 297 (2000) (FAPA precedent addressing 'imminent' within context of abuse)
- Cottongim v. Woods, 145 Or.App. 40 (1996) (FAPA issuance based on volatile conduct toward petitioner)
- Garcias, 296 Or. 688 (1984) (construction of 'imminent' linked to common-law assault origins)
- Stull v. Hoke, 326 Or. 72 (1997) (interpretive duty when statutory interpretation contested)
- Shepherd, 236 Or.App. 157 (2010) (precedential stance on preservation and statutory interpretation)