Vanik-Burns v. Burns, 392 P.3d 386

Background

Petitioner and respondent (married, later separated and divorcing) lived together with petitioner’s adult daughter and her children; in April 2015 a fishing-trip confrontation led to further conflict.
On the boat respondent smoked marijuana and stopped abruptly after daughter asked him to slow down; children bumped heads but were uninjured. Respondent told daughter petitioner and daughter “should be shot” for driving with children after drinking. No physical injuries reported. Police responded but made no arrests.
A few days later respondent left the home for several days; he later returned while petitioner was home, reportedly said he would “come back” and “get” them, and petitioner, daughter, and the children stayed in a hotel afterward. Petitioner feared respondent and sought a FAPA restraining order.
At the contested hearing petitioner testified about respondent’s post-order texts (blank messages she perceived as threats), a grocery-store encounter where respondent screamed at her, and a belief respondent had searched the house for firearms (no evidence firearms were taken). Respondent admitted past volatility (phone thrown 4 years earlier), admitted the “shot” comment, and denied intent to harm.
The trial court continued the restraining order and firearm prohibition, citing the boat incident, petitioner’s and daughter’s fear and petitioner’s work meltdown, respondent’s threatening remarks when he returned to the house, and a concern that the parties should have no contact and get divorced.
On appeal the court reviewed factual findings for substantial evidence and legal conclusions for error and held the record lacked sufficient evidence that respondent presented a "credible threat" or imminent danger at the time of the hearing.

Issues

Issue	Petitioner’s Argument	Respondent’s Argument	Held
Whether there was legally sufficient evidence of abuse in the 180 days before filing	Petitioner relied on the boat incident, respondent’s post-trip return and statements, and other volatile history to show abuse	Respondent argued incidents were isolated, hyperbolic, or historical and did not amount to recent actionable abuse	Court presumed at least one qualifying incident but focused on sufficiency for other elements; not dispositive alone
Whether respondent presented an "imminent danger of further abuse"	Petitioner argued her ongoing fear, recent contacts, and threatening remarks showed imminent danger	Respondent argued limited, sporadic contact after he left the home and no objective basis for imminent harm	Held: Evidence of imminent danger was insufficient — subjective fear alone is inadequate
Whether respondent was a "credible threat to the physical safety" of petitioner	Petitioner pointed to the “should be shot” comment, his return to the house, blank texts, grocery-store encounter, and history of volatility	Respondent characterized the statements as hyperbole, denied intent to retrieve or use firearms, and showed no persistent obsessive conduct	Held: No sufficient evidence that respondent posed an objectively reasonable credible threat at hearing; continued order reversed
Whether firearm prohibition was supported	Petitioner testified she would feel threatened if respondent had firearms and believed he had searched for them	Respondent denied possessing intent to use firearms against petitioner; no evidence firearms were taken or threatened to be used	Held: Firearm restriction unsupported on this record because no evidence respondent possessed or threatened to use firearms against petitioner

Key Cases Cited

T. K. v. Stutzman, 281 Or. App. 388 (Or. Ct. App.) (standard of review; burden on petitioner to prove FAPA elements)
K. L. D. v. Daley, 280 Or. App. 448 (Or. Ct. App.) (FAPA requires objective proof that conduct creates imminent danger)
G. M. P. v. Patton, 278 Or. App. 720 (Or. Ct. App.) (isolated or non-persistent behavior insufficient for FAPA relief)
C. M. V. v. Ackley, 261 Or. App. 491 (Or. Ct. App.) (volatility that ceased after cohabitation ended does not support continued order)
Maffey v. Muchka, 244 Or. App. 308 (Or. Ct. App.) (contrasting facts where persistent, unlawful proximity and threats supported FAPA relief)
Hubbell v. Sanders, 245 Or. App. 321 (Or. Ct. App.) (dangerous obsession and repeated trespass/supporting restraining order)
Lefebvre v. Lefebvre, 165 Or. App. 297 (Or. Ct. App.) (erratic, intrusive, persistent behavior supporting FAPA relief)