M. A. B. v. Buell ( 2020 )

98
Submitted on remand October 19, affirmed December 16, 2020
M. A. B.,
Petitioner-Respondent,
v.
Anthony Nicholis BUELL,
Respondent-Appellant.
Washington County Circuit Court
17PO09823; A166273
479 P3d 1087
This case is on remand from the Supreme Court. Buell v. Buell, 366 Or 553,
466 P3d 949 (2020) (Buell II). In Buell v. Buell, 296 Or App 380, 438 P3d 465
(2019) (Buell I), the Court of Appeals reversed the trial court’s continuation of a
Family Abuse Prevention Act (FAPA) protective order, concluding that petitioner
failed to prove that respondent presented an “imminent danger of further abuse”
to petitioner. ORS 107.718(1). In Buell II, the Supreme Court reversed, concluding
that petitioner carried her burden as to that element under ORS 107.718(1). The
Supreme Court remanded the case for the Court of Appeals to address, in the first
instance, whether the trial court erred by concluding that respondent presented
“a credible threat to petitioner’s physical safety.” Held: The trial court did not
err. Petitioner presented sufficient evidence about the credibility of respondent’s
threat to permit the court to continue the FAPA order.
Affirmed.
On remand from the Oregon Supreme Court, Buell v.
Buell, 366 Or 553, 466 P3d 949 (2020).
Kirsten E. Thompson, Judge.
George W. Kelly filed the brief for appellant.
No appearance for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Affirmed.
Cite as 308 Or App 98 (2020) 99
MOONEY, J.
This Family Abuse Prevention Act (FAPA) case
comes to us on remand from the Supreme Court. Buell v.
Buell, 366 Or 553, 466 P3d 949 (2020) (Buell II). Petitioner
obtained a FAPA protective order against respondent, which
respondent contested. The trial court continued the order
following a full evidentiary hearing. Respondent appealed,
arguing that the trial court erred in continuing the order
because: (1) he did not present an “imminent danger of fur-
ther abuse” to petitioner; and (2) he did not present “a cred-
ible threat to petitioner’s physical safety.” ORS 107.718(1).
We agreed with respondent’s first argument—that the evi-
dence was insufficient to support the court’s conclusion that
he presented an imminent danger of further abuse to peti-
tioner. Buell v. Buell, 296 Or App 380, 390, 438 P3d 465
(2019) (Buell I). Because that argument was dispositive,
we did not reach the second argument. Petitioner appealed
and the Supreme Court reversed our decision on respon-
dent’s first argument, remanding the case for us to address
respondent’s second argument. Buell II, 366 Or at 567. For
the reasons set out below, we affirm the trial court’s order
continuing the FAPA protective order.
The facts of this case have been recited at length
in both Buell I and Buell II. Thus, we provide only a brief
factual and procedural summary, borrowing from those two
opinions. In Buell II, the Supreme Court summarized the
key underlying facts:
“Respondent and petitioner were married in 2014.
Together, they have a son, J, who was born in 2015. During
the marriage, respondent suffered from depression, for
which he took medication. He sometimes also drank to
excess. Petitioner testified that respondent raped her twice:
once in March 2017 and once in May 2017. The incident in
May included respondent dragging petitioner away from J
while petitioner was breast feeding. In June 2017, petitioner
expressed her unhappiness with the marriage. Respondent
replied that, if petitioner left or divorced him, he would kill
her and take J.”
366 Or at 556.
100 M. A. B. v. Buell
In Buell I, we described the events surrounding the
parties’ separation:
“In June 2017, petitioner told respondent that she was
very unhappy in their marriage. Respondent told petitioner
that he would kill her and take J if she ever left or divorced
him. Respondent seemed ‘very relaxed’ and, had petitioner
not looked at his face, she ‘would have thought maybe he
was joking.’ However, after looking at respondent, peti-
tioner ‘felt like he was completely serious.’
“The following month, petitioner and respondent were
showering together with J, and respondent urinated on
petitioner and laughed about it. After those events, peti-
tioner and J began spending more nights at the home of
petitioner’s parents, which was located near her work-
place. Petitioner and respondent went to a marriage coun-
seling session, but respondent said that, if petitioner was
unhappy, it was her problem and that she needed to work
on it.
“* * * * *
“In August, petitioner told J’s pediatrician about what
had happened between her and respondent. Respondent
subsequently went to the pediatrician’s office several times
without an appointment, seeking to discuss J’s well-being.
The pediatrician was concerned that respondent had gone
to the office ‘several times in-person with demands,’ and
she directed respondent by letter to reach the office by tele-
phone in the future unless he came in with J because of
an emergency. The pediatrician found respondent’s behav-
ior, which she described as ‘repeatedly asking for informa-
tion from my staff and sitting in the waiting room’ very
unusual; she had not seen that in her practice. Twice when
father visited, it was to obtain medical records to which he
was entitled, although the office would have preferred that
he request the records in advance, instead of coming in and
asking for them to be gathered while he waited. Father
also requested that a chart note mentioning allegations of
marital rape be amended to say that the allegations ‘are
no more than allegations,’ and the pediatrician informed
father that she would append that statement to the chart
note that he was concerned about.
“In late August, petitioner and respondent reached a
temporary agreement about parenting time. Under that
Cite as 308 Or App 98 (2020) 101
agreement, respondent saw J twice weekly and there was
no requirement that visits be supervised. At meetings when
J was transitioned from one parent to the other, respondent
‘made it a habit to drive around the block’ and find peti-
tioner’s car, driving slowly by with an ‘angry, rage-filled
stare’ at petitioner and whoever was with her. Respondent
frequently called, emailed, and sent text messages to peti-
tioner, some of which were admitted as exhibits at the
FAPA hearing. Petitioner described respondent’s messages
as sometimes being ‘loving and asking [petitioner] to come
home’; sometimes, however, ‘they were angry, demanding
that [she] return home right away with [J].’ Respondent
also said untrue things about petitioner and her family,
claiming that they were crazy. Those communications
made petitioner feel ‘threatened, upset, scared, [and] frus-
trated’ because she felt that the messages ‘exhibited some
sort of instability in [respondent’s] thought process.’
“Petitioner and respondent participated in a mediation
session on October 5, 2017, about custody and parenting-
time issues. Toward the beginning of the mediation,
respondent glared intensely at petitioner for a long period,
which led petitioner to feel that respondent was very angry
at her. The mediator, Carr, also felt that respondent’s stare
was ‘meant to communicate extreme anger and rage.’
Carr asked respondent to quit staring, and he did, apol-
ogizing to Carr. At one point during the mediation, peti-
tioner began to talk about the possibility of respondent’s
parenting time being supervised, and respondent asked
that such a requirement not be imposed. Later, respondent
described how ‘his parenting time takes place at his par-
ents’ anyway.’ Petitioner said something like, ‘thank you
for admitting supervision is necessary’ or that she ‘thought
it was really wonderful that he felt like supervision was
necessary as well.’ At that point, respondent became ‘very
upset and angry,’ and he said ‘Fuck you’ three times con-
secutively while again staring intensely at petitioner.
Respondent did not lunge toward petitioner or ‘come at’ her
as he made those statements, but he began to lean forward
in his chair.”
296 Or App at 382-84 (brackets in original).
Petitioner filed a FAPA petition soon after the medi-
ation session, and the court granted her petition ex parte and
issued a protective order. Respondent contested the order
102 M. A. B. v. Buell
and requested a hearing. To continue the protective order,
petitioner needed to establish three elements by a prepon-
derance of evidence: (1) that petitioner “has been the victim
of abuse committed by the respondent within 180 days pre-
ceding the filing of the petition”;1 (2) that “there is an immi-
nent danger of further abuse to petitioner”; and (3) that
“respondent represent[ed] a credible threat to the physical
safety of” petitioner or her child. ORS 107.718(1).
At the contested hearing, petitioner testified about
the events described above and explained that she was
afraid for her safety, and for the safety of J. Respondent
denied much of the alleged conduct, including petitioner’s
assertion that he threatened to kill her if they separated.
The court continued the protective order, concluding that
petitioner had met her burden to establish each of the three
elements. The court specifically found that petitioner was
credible in her testimony about (1) respondent’s threat to kill
her and take J and (2) respondent’s “subsequent incidents of
intimidation by text [message and] at mediation.” The court
found that respondent was not credible in his denials of that
conduct.
Respondent appealed, arguing that the evidence
was insufficient to establish that petitioner was in imminent
danger of further abuse or that he posed a credible threat
to her physical safety. We concluded that the court erred
in continuing the FAPA order because respondent’s sin-
gle threat was insufficient to establish that there was “ ‘an
imminent danger of further abuse to petitioner.’ ” Buell I,
296 Or App at 385 (quoting ORS 107.718(1)). We did not
address whether the evidence supported the court’s finding
that respondent represented a credible threat to petitioner’s
physical safety. As noted, upon review, the Supreme Court
reversed our decision, holding that the evidence was suffi-
cient to establish that respondent placed petitioner in an
“imminent danger of further abuse.” Buell II, 366 Or at 565.
The court remanded the case for us to address in the first
instance whether the trial court had correctly determined
1
Respondent concedes that the abuse alleged was sufficient to support the
trial court’s finding that petitioner was the victim of abuse within 180 days pre-
ceding the filing of the petition.
Cite as 308 Or App 98 (2020) 103
that “respondent represent[ed] a credible threat to the phys-
ical safety of the petitioner or of the petitioner’s child.” ORS
107.718(1). We turn to that question now.
We review the trial court’s legal conclusions for
legal error. Kargol v. Kargol, 295 Or App 529, 530, 435 P3d
814 (2019). We are bound by the court’s express factual
findings if there is any evidence in the record to support
them. Buell II, 366 Or at 564. Where the court did not make
express factual findings, “ ‘we will presume that the facts
were decided in a manner consistent with the [trial court’s]
ultimate conclusion’ as long as there is evidence in the record
to support those implicit findings.” Id. at 565 (quoting Ball
v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968) (brackets
in Buell II)). That includes accepting “reasonable inferences
and reasonable credibility choices that the trial court could
have made.” Botofan-Miller and Miller, 365 Or 504, 505-06,
446 P3d 1280 (2019).
Respondent argues that the same lack of evidence
requiring the court to reject petitioner’s “imminent danger”
argument should be used to reject her argument that respon-
dent represented a credible threat to her physical safety.
Specifically, he focuses on the fact that he and petitioner
are now separated, and that any in-person contact that they
have is prearranged and always involves J. And, he asserts,
despite his preseparation threat to kill petitioner if they
separated, he has not followed through on that threat after
their separation. Relying on the separation and respondent’s
lack of follow-through on his threat, respondent argues that
there is “no evidence” that he represented a credible threat
to petitioner’s physical safety.
The same evidence available to show that a peti-
tioner is in imminent danger of further abuse may be used
to demonstrate that a respondent represents a credible
threat to the petitioner’s physical safety. Hubbell v. Sanders,
245 Or App 321, 327, 263 P3d 1096 (2011). That is because
the two elements are closely related. As a practical matter, it
is hard to imagine concluding that petitioner is in imminent
danger of further abuse from respondent if respondent does
not also present a credible threat to her safety. Our role “is
to determine whether, based on the totality of circumstances
104 M. A. B. v. Buell
[reflected in the record], a reasonable factfinder could draw
the factual inferences necessary” to conclude that respon-
dent posed a credible threat to petitioner’s safety. Buell II,
366 Or at 565-66.
Although the parties’ separation is a significant fac-
tor to weigh in determining whether respondent represents
a credible threat to petitioner’s safety, it is not dispositive
of that issue. Walton v. Steagall, 299 Or App 820, 826, 452
P3d 1059 (2019). Likewise, finding that respondent actu-
ally threatened petitioner’s physical safety might outweigh
any mitigating effects of separation; but it might not. In its
analysis of the danger of further abuse, the Supreme Court
reasoned that, while “there might be cases where the par-
ties’ separation necessarily represents a change in circum-
stances that mitigates the risk of further abuse, there are
also likely to be many cases where a trial court would be
entitled to conclude that the parties’ separation could be the
impetus for further abuse.” Buell II, 366 Or at 566. That rea-
soning logically applies to the issue of whether respondent
is a credible threat to petitioner’s safety as well. Although,
here, respondent threatened to kill petitioner, the threat
itself need not be “[a]n overt threat of physical violence” to
prove that a respondent posed a credible threat to the peti-
tioner’s physical safety. Hubbell, 245 Or App at 327 (empha-
sis added). And post-separation events can establish a con-
tinuing threat to the petitioner’s safety. Walton, 299 Or App
at 826.
Here, the trial court determined that petitioner had
made an overt threat of physical violence before the parties
separated. It specifically found that petitioner was credible
in her assertion that respondent “serious[ly]” threatened
to kill her if they separated or divorced. It also found that
respondent’s denial of that threat was not credible. In addi-
tion to the evidence of abuse and respondent’s threat to kill
petitioner, the record contained evidence that respondent
behaved aggressively toward petitioner after their separa-
tion, including by: searching for petitioner’s car and driving
by with an “angry, rage-filled stare”; calling, emailing, and
texting her “angry” demands to return home with J; and
angrily ending a mediation session by directing expletives
at petitioner, while leaning forward in his chair. Even if
Cite as 308 Or App 98 (2020) 105
there are other explanations for respondent’s behavior, the
trial court was permitted to choose among competing infer-
ences and, based on its choices, conclude that petitioner rep-
resented a credible threat to petitioner’s physical safety. See
Buell II, 366 Or at 565 (appellate court accepts reasonable
inferences and credibility choices made by trial court).
To be sure, it is “significant” that the parties sep-
arated and have had reduced contact since respondent
threatened to kill petitioner. Kargol, 295 Or App at 533.
However, respondent specifically threatened to kill peti-
tioner if they separated. Given that the parties’ separation
was the circumstance upon which respondent’s threat was
conditioned and given that they were separated, the trial
court was permitted to conclude that respondent’s threat
and his threatening behavior outweighed any mitigat-
ing effects of the parties’ separation. See Buell II, 366 Or
at 565 (“An evidentiary record may support a range of fac-
tual inferences about the extent to which a respondent is
likely to engage in abusive conduct.”); Walton, 299 Or App at
826 (explaining that post-separation contacts may provide
evidence of a continuing threat to the petitioner’s safety).
Moreover, notwithstanding their separation, the parties are
required to stay in limited contact to facilitate the transfer
of J, they had volatile contacts just prior to the issuance of
the FAPA order, and respondent continued to send angry
messages and to “circle” petitioner in his car. Those facts,
combined with respondent’s history of abuse and his threat
to kill petitioner if they separated, are sufficient to support
the trial court’s conclusion that respondent posed a credi-
ble threat to petitioner’s safety. Accordingly, the record sup-
ported the court’s conclusion that petitioner met her burden
to prove each of the elements required by ORS 107.718(1).
Affirmed.