F. A. S. K. v. Aljundi ( 2022 )

477
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted December 5, affirmed December 29, 2022, petition for review denied
March 30, 2023 (370 Or 827)
F. A. S. K.,
Petitioner-Respondent,
v.
Mohammad Awni ALJUNDI,
Respondent-Appellant.
Washington County Circuit Court
21PO04675; A176677
Kelly D. Lemarr, Judge.
Raymond Tindell filed the briefs for appellant.
Michael J. Fearl and Schulte, Anderson, Downes, Aronson
& Bittner, PC filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
478 F. A. S. K. v. Aljundi
EGAN, J.
Respondent appeals an order continuing a restrain-
ing order issued against him under the Family Abuse
Prevention Act (FAPA),1 assigning error to that ruling. We
affirm.
Respondent requests that we exercise our discre-
tion to review de novo, but because this is not an “excep-
tional case” we decline that request. See ORAP 5.40(8)(c).
We review “a trial court’s legal determinations for legal
error and the trial court’s findings of fact for any evidence
in the record to support those findings.” M. A. B. v. Buell,
366 Or 553, 564, 466 P3d 949 (2020). Under that standard
of review, we are bound by the trial court’s findings of his-
torical fact that are supported by any evidence in the record,
and we review the court’s dispositional conclusions, predi-
cated on those findings, for legal error. J. M. H. and Noon,
245 Or App 328, 330, 260 P3d 836 (2011).
We recently explained:
“An initial FAPA order must be supported by evidence of
(1) abuse committed by the respondent within 180 days
of filing, (2) imminent danger of further abuse, and (3) a
credible threat to petitioner’s safety from respondent. ORS
107.718(1). * * * [T]he FAPA statutes were amended by the
2019 legislature. Or Laws 2019, ch 144, § 1. And, although
ORS 107.718(1) was not amended, the legislature did
amend ORS 107.716(3), which governs hearings to contest
initial FAPA orders issued under ORS 107.718. Or Laws
2019, ch 144, § 1. Now, for a court to continue a FAPA order
following a contested hearing, the record must include
evidence (1) of past abuse committed by the respondent
(within 180 days of filing), (2) that the petitioner reasonably
fears for her physical safety, and (3) that the respondent
represents a credible threat to the petitioner’s safety or the
safety of her child. ORS 107.716(3).”
A. J. T. v. Croft, 311 Or App 574, 576, 492 P3d 778 (2021).
Here, after the contested hearing on the restraining
order, the trial court determined that petitioner had suffered
1
In this opinion, we refer to the parties by their designations in the trial
court; thus, appellant is referred to as “respondent,” and respondent on appeal is
referred to as “petitioner.”
Nonprecedential Memo Op: 323 Or App 477 (2022) 479
from two incidents of abuse committed by respondent within
180 days of filing, that respondent was a credible threat to
petitioner’s physical safety, and that respondent posed an
imminent danger of further abuse to petitioner.2
On appeal, respondent does not contest the trial
court’s finding that petitioner suffered abuse committed
by respondent within 180 days of filing for the restraining
order. As we understand respondent’s argument, it is that
because petitioner and petitioner’s children have relocated
to Florida, while he remains in Oregon, the evidence does
not allow for a determination that petitioner fears for her
safety or that respondent poses a credible threat to her
safety. Respondent also argues that, because there was no
arrest made or police report included in this case, there
can be no finding of a credible threat to petitioner’s safety.
Furthermore, respondent argues that, in determining that
respondent had violated the ex parte restraining order and
poses a credible threat, the court erred by relying on a con-
tact in which he texted petitioner to tell her that he was in
the emergency room, because the initial restraining order in
this case had an exception for contact in case of “family or
kids emergency.”
Considering the totality of the circumstances, we
conclude that there was legally sufficient evidence to sup-
port the trial court’s decision to continue the FAPA order.
Respondent’s violation of the restraining order, his recent
abuse of petitioner, and his contradictory testimony as to
whether he would continue to contact petitioner if the FAPA
restraining order was revoked, together support a determi-
nation that petitioner’s fear of respondent was reasonable,
ORS 107.716(3)(a)(B), and that respondent was a credible
2
We understand the trial court to have considered the petition under the
standard that governed the continuation of FAPA orders that was in place prior
to 2019 amendments that “relaxed the requirements for an initial contested
FAPA order from ‘imminent danger of further abuse’ to ‘reasonably fears for the
petitioner’s physical safety.’ ” N. F. M. v. Khalidi, 315 Or App 668, 669 n 1, 503
P3d 468 (2021), rev den, 369 Or 504 (2022). On appeal, we apply the more “relaxed
requirements” that are appliable under the current version of ORS 107.716(3),
which were in effect at the time of the trial court’s ruling. The trial court’s find-
ing of “imminent danger of further abuse” would also support the finding that
petitioner had reasonable fear for her physical safety. In any event, we conclude
that respondent’s challenge to the trial court’s order would fail under either
standard.
480 F. A. S. K. v. Aljundi
threat. ORS 107.716(3)(a)(C). Further, as noted, respondent
does not contest the trial court’s finding that petitioner suf-
fered abuse by respondent within 180 days of filing for the
restraining order, a finding that has ample support in the
record.
In so concluding, we highlight that respondent vio-
lated the restraining order after petitioner had relocated to
Florida—including during an unannounced trip to Florida—
which supports the finding that respondent poses a credible
threat to petitioner, notwithstanding her relocation. N. F. M.
v. Khalidi, 315 Or App 668, 670, 503 P3d 468 (2021), rev den,
369 Or 504 (2022), (determining that “respondent’s violation
of the restraining order after their cohabitation ended sup-
ported the finding that respondent continued to pose a cred-
ible threat to petitioner”); see also H. M. H. v. Hess, 305 Or
App 801, 812, 473 P3d 103 (2020) (noting that “[l]ack of com-
pliance with a restraining order tends to be more relevant
than compliance when it comes to assessing whether there
is an imminent danger of further abuse”). Although we may
consider the fact that petitioner and her children have relo-
cated, under the totality of circumstances, that “does not
necessarily decrease the danger of further abuse.” H. M. H.,
305 Or App at 811; see also ORS 107.710(3) (“A person’s right
to relief * * * shall not be affected by the fact that the person
left the residence or household to avoid abuse.”).
As to respondent’s argument that there can be no
determination that he is a credible threat to petitioner or
that petitioner reasonably fears for her safety because he
was never arrested and there is no police report in the
record regarding his abuse of petitioner, we flatly reject it.
That contention flies in the face of the foundations of FAPA
law. The presence or absence of an arrest or police report is
not a prerequisite for continuation of the restraining order.
Additionally, we reject respondent’s argument that the trial
court must be reversed because it erroneously relied on his
“emergency” contact with petitioner. The trial court consid-
ered several incidents other than that particular contact
in upholding the restraining order, and we do not under-
stand that particular contact to have been central to its
analysis.
Nonprecedential Memo Op: 323 Or App 477 (2022) 481
In sum, we conclude that legally sufficient evidence
supported the trial court’s continuation of the restraining
order and thus the trial court did not err.
Affirmed.