Kelley v. Stutzman
383 P.3d 287
Or. Ct. App.2016Background
- Petitioner (niece, 28) obtained a FAPA temporary restraining order against respondent (uncle, 51); after a contested hearing the trial court continued the order.
- Incident prompting the petition: after church respondent accused petitioner of drug use and pornography, grabbed her arm as she walked away, followed her to the parking lot, stood in front of her car and said “If we weren’t at church you’d be dead right now.” Petitioner left in her car while fearful.
- Petitioner also alleged respondent had come onto her property about three months earlier but left when she went outside.
- Trial court found petitioner “seems to be in fear of imminent danger” and continued the restraining order.
- On appeal respondent argued insufficient evidence of (1) abuse, (2) imminent danger of further abuse, and (3) a credible threat to petitioner’s physical safety. The court assumed abuse might be shown but reversed on the latter two elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner showed she was a victim of abuse within 180 days | Petitioner: church incident (arm grab, verbal threats, parking-lot conduct) constituted abuse | Respondent: conduct was isolated, mostly verbal, insufficient to prove abuse | Court assumed, for argument’s sake, petitioner’s evidence could show past abuse but did not rely on this to sustain the order |
| Whether petitioner was in imminent danger of further abuse | Petitioner: respondent’s threats and following behavior made further abuse imminent | Respondent: no history of violence or attempts to harm; conduct was isolated and nonviolent | Held: evidence insufficient to show imminent danger of further abuse |
| Whether respondent presented a credible threat to petitioner’s physical safety | Petitioner: the verbal threat and blocking the car constituted a credible threat | Respondent: no objective evidence of intent or ability to carry out harm; no past violence toward petitioner | Held: evidence did not establish a credible threat to physical safety |
| Standard and scope of appellate review | Petitioner: trial court findings supported by petitioner’s testimony and fear | Respondent: asked for de novo review | Held: appellate court declined de novo review, applied standard review (accepting trial findings supported by any evidence) but reversed on legal conclusion that elements were not met |
Key Cases Cited
- Maffey v. Muchka, 244 Or App 308 (2011) (appellate standard: accept trial court factual findings if supported by any evidence)
- Hubbell v. Sanders, 245 Or App 321 (2011) (petitioner’s subjective fear alone is insufficient for FAPA relief)
- Fielder v. Fielder, 211 Or App 688 (2007) (three-element test for FAPA restraining order must all be met)
- Patton v. Patton, 278 Or App 720 (2016) (isolated aggressive conduct without history or follow-through was insufficient to show imminent danger or credible threat)
- Daley v. Daley, 280 Or App 448 (2016) (verbal aggression and raised voice insufficient to establish imminent risk or credible threat)
- Hannemann v. Anderson, 251 Or App 207 (2012) (presumption of findings consistent with judgment when trial court makes no express finding)
- Poulalion v. Lempea, 251 Or App 656 (2012) (minor physical contact and ownership of weapons, standing alone, insufficient to support FAPA order)