GLADD v. LUCARELLI (2021)

Respondent challenges a restraining order entered against him under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735. Petitioner and respondent were a couple for eight or nine years and have a young child together. After they separated, petitioner obtained a restraining order against respondent, based on an incident of abuse on January 26, 2020. Respondent contested the restraining order. After hearing testimony from both parties, the court continued the restraining order. Respondent appeals. We affirm.

A FAPA restraining order is available upon a showing that (1) the petitioner has been the victim of abuse committed by the respondent within the 180 days preceding the filing of the petition, (2) there is an imminent danger of further abuse to the petitioner, and (3) the respondent represents a credible threat to the physical safety of the petitioner or the petitioner's child. ORS 107.718(1). As relevant here, “abuse” includes “[i]ntentionally, knowingly, or recklessly placing another in fear of imminent bodily injury.” ORS 107.705(1)(b). The “fear” at issue is judged by an objective standard, considering the totality of the circumstances. Fielder v. Fielder, 211 Or. App. 688, 694, 157 P.3d 220 (2007).

Respondent challenges the sufficiency of the evidence on all three points. He argues that, as a matter of law, the January 26 incident—which was the only alleged incident of abuse within the 180-day period—does not qualify as “abuse” under FAPA. Alternatively, respondent argues that the evidence was legally insufficient to establish that there was an imminent danger of further abuse to petitioner or that he posed a credible threat to her physical safety.

On non-de novo review,¹ “we are bound by the trial court's factual findings if they are supported by any evidence; if the trial court did not make express factual findings on disputed issues, we presume that it made implicit findings consistent with its ultimate judgment.” J. V.-B. v. Burns, 284 Or. App. 366, 367, 392 P.3d 386 (2017). We review the trial court's legal conclusions for legal error. Id.

Having reviewed the record, we conclude that there was evidence to support the trial court's express and implied factual findings and that those findings, in turn, were legally sufficient to support the restraining order. In short, the relevant facts are as follows. The parties were in a relationship for eight or nine years and have a young child. In August 2017, during an argument, respondent hit petitioner in the face and threatened to kill her. In July 2019, around the time that the parties separated and respondent moved out of the family home, respondent hit petitioner in the face “very hard” during another argument. On at least two other occasions, respondent told petitioner that she was “lucky” not to “have a black eye.” On January 26, 2020, petitioner told respondent on the phone that he could no longer watch the child at her home because of his disrespect of her and his disrespect of the home. In response, respondent threatened to “come over there and beat down the door and beat [her] ass so bad and take [the child] from [her].” Sometime there-after, respondent arrived to pick up the child for the day and, while there, cursed petitioner, including calling her a “fucking cunt” in front of the child. Later that evening, respondent called petitioner “more choice words” on the phone, and, when returning the child to petitioner's home, kicked and beat on her front door “like a crazy person” and told her to “get [her] fat ass outside” to get the child. Petitioner testified that she was “incredibly fearful” when respondent was kicking and beating on the door on January 26 and that, without a restraining order, she was “very afraid” of him generally.

That evidence was legally sufficient to establish that respondent at least recklessly (if not knowingly or intentionally) placed respondent in fear of imminent bodily injury on January 26. Respondent's past physical violence towards petitioner, his express threat of physical violence on the morning of January 26, and his repeated expressions of hostility toward petitioner that day are all relevant context for why his physical act of kicking and beating on her front door would put a reasonable person in fear of imminent bodily injury. ORS 107.705(1)(b); see M. A. B. v. Buell, 366 Or. 553, 565, 466 P.3d 949 (2020). For similar reasons, the evidence was legally sufficient for the trial court to determine that there was an imminent danger of further abuse to petitioner and that respondent posed a credible threat to her physical safety. Respondent's past violence and threats toward petitioner, the parties’ ongoing relationship (due to their young child), and respondent's ongoing hostility toward petitioner six months after their separation are all relevant. See M. A. B., 366 Or. at 565, 466 P.3d 949.

Respondent contests petitioner's version of events and disagrees with the trial court's ruling. However, where the parties disagree about the facts, it is for the trial court to make the necessary credibility determinations and factual findings, and, if there is any evidence to support the trial court's findings, we are bound by those findings. J. V.-B., 284 Or. App. at 367, 392 P.3d 386. Here, the trial court expressly credited petitioner's version of events and disbelieved respondent's version. The only question before us as an appellate court is whether the evidence was legally sufficient to allow the trial court to make the findings that it did and reach the conclusions that it did. Botofan-Miller and Miller, 365 Or. 504, 505, 446 P.3d 1280 (2019), cert. den., ––– U.S. ––––, 141 S. Ct. 134, 207 L.Ed.2d 1079 (2020). That standard is met in this case. Accordingly, we affirm the trial court's judgment continuing the restraining order for one year.

Affirmed.

FOOTNOTES

1.   Appellant has not requested de novo review, and we do not exercise our discretion to provide de novo review. See ORS 19.415(3)(b); ORAP 5.40(8)(c).

AOYAGI, J.