S. L. S. v. Tippery , 306 Or. App. 487 ( 2020 )

487
Submitted August 11, reversed September 16, 2020
S. L. S.,
Petitioner-Respondent,
v.
Kyle Robert TIPPERY,
Respondent-Appellant.
Linn County Circuit Court
19PO06806; A172069
475 P3d 131
Petitioner obtained a Family Abuse Prevention Act (FAPA) restraining order
against respondent, her former boyfriend. At a contested hearing, the trial court
continued the order because it found that respondent had choked petitioner
shortly before petitioner moved out of respondent’s home. Respondent appeals,
challenging the sufficiency of the evidence supporting the order. Held: The trial
court erred in continuing the order. Under the totality of the circumstances
and Court of Appeals case law, the record was not sufficient to support the trial
court’s finding that respondent presented an imminent danger of further abuse
to petitioner at the time that the court continued the FAPA order.
Reversed.
Michael B. Wynhausen, Judge.
Andrew S. Noonan and Heilig Misfeldt & Armstrong,
LLP, filed the brief for appellant.
No appearance for respondent.
Before Lagesen, Presiding Judge, and Kamins, Judge, and
Kistler, Senior Judge.
LAGESEN, P. J.
Reversed.
488 S. L. S. v. Tippery
LAGESEN, P. J.
Petitioner obtained a Family Abuse Prevention
Act (FAPA) restraining order against respondent, her for-
mer boyfriend with whom she lived for just over one month.
The trial court continued the order after a contested hear-
ing. Respondent appeals, challenging the sufficiency of the
evidence supporting the order, which was based on a sin-
gle incident of abuse that occurred shortly before petitioner
moved out of respondent’s home. Petitioner has not appeared
on appeal. We agree with respondent that the evidence,
when viewed in accordance with the trial court’s explicit
and implicit factual findings, is insufficient to support the
order and, accordingly, reverse.
Respondent has not requested de novo review so we
state the facts in accordance with the trial court’s explicit
and implicit findings, to the extent there is evidence to sup-
port them. Hess v. Hess, 305 Or App 801, 802, 473 P3d 103
(2020).
Petitioner and respondent were romantically involved
for a brief period of time, and petitioner moved into respon-
dent’s house for about a month. The relationship did not work
out and, shortly before petitioner moved out, respondent put
his hands around petitioner’s neck, choking her and causing
her to experience ongoing pain in her neck. Based on that
incident, and other allegations, petitioner sought a FAPA
order ex parte, which the trial court entered. Respondent
requested a hearing to contest the order.
Approximately one month after the entry of the
original FAPA order, the trial court held a hearing to decide
whether to continue the order. By that time, petitioner was
no longer living in respondent’s house, having moved out
shortly after obtaining the FAPA order. At the hearing, peti-
tioner testified that, while they were living together, respon-
dent had essentially forced her to have sex with him “[b]y
threat of force and intimidating with guns,” although she
acknowledged that respondent had never directly threat-
ened her with a weapon. She also testified to an incident in
which she believed petitioner had taken her car keys from
her to prevent her from leaving. And she testified about the
choking incident. She explained that she wanted the order
Cite as 306 Or App 487 (2020) 489
to be continued because her father was a vulnerable person,
because she was a nurse who worked with vulnerable peo-
ple, and because she was scared to have respondent around
her. Petitioner did not testify that respondent had contacted
her since she moved out of the house.
Respondent denied most of petitioner’s allegations.
He testified that he had just wanted her to leave the house
and had not made contact with her since she was gone.
Respondent also called his roommate as a witness, and the
roommate testified that he never heard or saw respondent
being abusive to petitioner.
At the close of the hearing, the trial court continued
the order. The court stated that it was not able to find that
respondent forced petitioner to engage in sexual activity,
as petitioner alleged. It did find, however, that respondent
had choked petitioner, and that the choking caused peti-
tioner physical injury. Based on that, the court ruled that
it was “going to maintain the restraining order in place.”
Respondent appealed.
On appeal, respondent argues that there is insuf-
ficient evidence to support the continuation of the order.
In particular, respondent argues that there is insufficient
evidence to support a finding that there was an imminent
danger of future further abuse, or a credible threat to peti-
tioner’s safety, as the court was required to find to continue
the order. ORS 107.718; Hess, 305 Or App at 805. We agree
that the evidence, when viewed in accordance with the trial
court’s findings—including the court’s finding rejecting peti-
tioner’s claim that respondent had forced her to engage in
sexual activity—is insufficient to support a finding of immi-
nent danger of future abuse and reverse for that reason.
“For the imminent-danger requirement to be met,
the trial court had to make a finding—supported by
evidence—that respondent is reasonably likely to abuse
petitioner in the near future.” Hess, 305 Or App at 806(internal quotation marks omitted). As we recently observed
in Hess, although it is possible that a single incident could
support a FAPA order, “we have yet to affirm the contin-
uance of a FAPA restraining order based on a single inci-
dent.” Id. at 807. There, we reversed an order continuing a
490 S. L. S. v. Tippery
FAPA restraining order that—like the order at issue here—
had been based on a single, similar incident of abuse. In
Hess, the incident involved the respondent pushing the peti-
tioner such that she fell to the ground and hit her head on a
concrete driveway. Id. at 803. We concluded that there was
insufficient evidence to support a finding that there was an
imminent danger of further abuse. Id. at 809-10. We noted
that “there is no evidence that respondent had ever previ-
ously physically assaulted or injured petitioner, that he has
ever threatened to physically injure petitioner, or that he
has ever used force or threat of force against petitioner to
engage in involuntary sexual relations.” Id. at 809. We also
noted that the parties were no longer living together, some-
thing that also undercut the inference that there was an
imminent danger of future abuse. Id. at 811.
For similar reasons, we conclude that the record in
this case, viewed consistently with the trial court’s factual
determinations, is insufficient to support the required find-
ing that petitioner was in imminent danger of future fur-
ther abuse at the time of the hearing. The FAPA order at
issue was predicated on a single act of abuse. Although peti-
tioner testified to additional abuse—being forced to engage
in sexual relations with petitioner—the trial court explicitly
ruled that it was not able to find that that alleged abuse had
occurred. Beyond that, petitioner did not testify that respon-
dent had threatened harm on other occasions. As in Hess,
the parties’ living arrangement had changed, and they were
no longer in the same household. Moreover, neither party
testified to facts that would support an inference that the
relationship would be ongoing. The parties’ relationship had
been short, and there was no indication that either wished
to prolong it rather than escape from it.
Considering the “totality of the circumstances,”
as we must in assessing the sufficiency of the evidence to
support an imminent-danger finding, the record is not suf-
ficient to support the trial court’s finding that respondent
presented an imminent danger of further abuse to peti-
tioner at the time that the court continued the FAPA order.
Much as was the case in Hess, the single act of abuse that
the trial court found had occurred—the choking incident—
“constitutes a predicate act of abuse for a FAPA restraining
Cite as 306 Or App 487 (2020) 491
order, but it is not enough on its own to support a finding
of imminent danger of further abuse to petitioner.” Id. at
812-13. And no other evidence, viewed consistently with the
court’s factual determinations, allows for that finding.
Reversed.