435 P.3d 814
Or. Ct. App.2019Background
- Petitioner (wife) obtained an ex parte FAPA restraining order against respondent (husband) after a May 4, 2017 incident in which respondent shouted, approached with a raised fist, pushed petitioner with a pillow, prevented her leaving by taking her phone, and followed her while driving side-by-side in a manner petitioner believed was an attempt to run her off the road. Criminal charges were filed.
- The parties continued to live together without further physical violence after May 2017, then separated in early August 2017; petitioner and their child moved out.
- Petitioner filed for a FAPA order on August 31, 2017 (more than 180 days after a prior 2015 incident), citing fear that respondent escalated arguments to “frightening and unsafe levels.”
- At the contested hearing petitioner relied on the May 2017 incident plus post-separation communications (email admitting fault, texts repeatedly contacting her, and a recorded call in which respondent said he “could have” killed her but had no intent) to show ongoing danger.
- Respondent conceded the May 2017 conduct was abusive but argued there had been no violent or threatening conduct since separation and his contacts were limited to calls/emails concerning parenting and not in-person threats.
- The trial court continued the restraining order, finding the abuse was established and that petitioner believed respondent was a credible threat and in danger of further abuse; the Court of Appeals reversed for insufficient evidence of imminent danger or a credible threat.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner showed imminent danger of further abuse under ORS 107.718(1) | May 2017 incident plus post-separation communications show risk of another violent episode | No violent or volatile contact after separation; contacts were limited and non‑violent | Reversed: insufficient evidence of imminent danger |
| Whether respondent presented a "credible threat" to petitioner’s physical safety | Prior violence, admissions in calls, and persistent post-separation contact show a credible threat | Change in relationship after separation and lack of in-person threats undermine any credible threat | Reversed: no credible threat shown |
Key Cases Cited
- J. V.-B. v. Burns, 284 Or. App. 366 (explaining standard of review for FAPA findings and conclusions)
- T. K. v. Stutzman, 281 Or. App. 388 (describing FAPA elements petitioner must prove)
- C. M. V. v. Ackley, 261 Or. App. 491 (holding cessation of cohabitation reduces weight of past violence for imminent danger/credible threat)
- Hubbell v. Sanders, 245 Or. App. 321 (noting overt threat not required; courts may consider events outside 180-day window)