R. R. v. Roberts ( 2024 )

No. 554 August 7, 2024 279
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
R. R.,
Petitioner-Respondent,
v.
PHILIP ROBERTS,
Respondent-Appellant.
Deschutes County Circuit Court
21PO12359; A180648
Bethany P. Flint, Judge.
Argued and submitted February 21, 2024.
David G. Brown argued the cause and filed the brief for
appellant.
No appearance for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
PAGÁN, J.
Affirmed.
280 R. R. v. Roberts
PAGÁN, J.
Respondent appeals the trial court’s renewal of a
restraining order under the Family Abuse and Prevention
Act (FAPA). Respondent assigns error to the trial court’s
finding that there was sufficient evidence to renew the FAPA
order. To support his assertion, we understand respondent
to posit three arguments on appeal.1 First, he challenges the
sufficiency of the evidence to establish petitioner’s subjective
and objective fear of further acts of abuse. Second, respon-
dent argues that the trial court impermissibly used the lens
of a victim of domestic violence to examine the effects that
his communications and actions had on petitioner. Third,
respondent argues that the trial court improperly inserted
its own experience into the matter when it found that law
enforcement’s characterization of petitioner lacked cred-
ibility. For the reasons we discuss below, we reject those
arguments and affirm the trial court’s renewal of the FAPA
order.
Respondent requests de novo review. We decline his
request because this is not an exceptional case that warrants
de novo review. ORS 19.415(3); ORAP 5.40(8)(c). Accordingly,
we review the renewal of a FAPA order for legal error, and
when doing so, are bound by the trial court’s findings if they
are supported by any evidence in the record. Sacomano v.
Burns, 245 Or App 35, 36, 261 P3d 54 (2011).
The renewal of a FAPA order is appropriate when
“[a] person in the petitioner’s situation would reasonably
fear further acts of abuse by the respondent if the order
is not renewed.” ORS 107.725(1)(a). Put differently, a trial
court may renew a FAPA order when a petitioner reason-
ably fears for their physical safety. K. E. B. v. Bradley, 327
Or App 39, 45, 533 P3d 1128 (2023). No further acts of abuse
are required to renew a FAPA order. ORS 107.725(2).
Having reviewed the record, we conclude that there
is sufficient evidence to support the trial court’s finding
that a person in petitioner’s situation would reasonably fear
1
Although respondent raises three assignments of error, they are more prop-
erly characterized as arguments in support of his overall assertion that the evi-
dence was insufficient to support the trial court’s decision to renew the restrain-
ing order.
Nonprecedential Memo Op: 334 Or App 279 (2024) 281
for her physical safety. Specifically, the evidence that the
court relied upon demonstrated that respondent was send-
ing “manipulative” and “controlling” texts, which were all
“outside the scope of the permitted communication in the
modification order.” See N. F. M. v. Khalidi, 315 Or App 668,
671, 503 P3d 468 (2021) (holding that “a direct violation of
the ex parte order, * * * when coupled with abuse during the
relationship, can support an inference that [the] respondent
poses a credible threat to [the] petitioner’s physical safety”);
see also P. K. W. v. Steagall, 299 Or App 820, 826, 452 P3d
1059 (2019) (finding that violations of an ex parte restrain-
ing order were evidence of “a continuing threat to the peti-
tioner’s safety”).
Here, in response to petitioner having company
over, respondent said, “[a]nd so you agree that bringing
another man into our home or around our kids is Wrong and
emotionally unfair to our children.” He asked for petitioner’s
new phone number, stating that it was “[ir]responsible to
not share * * * as our children are concerned.” Respondent
also sent text messages that insinuated that he knew where
petitioner’s new house was located. Finally, respondent sent
several messages to petitioner blaming her for his strained
relationship with the children. For example, he wrote, “I
really don’t appreciate what appears to be manipulation and
alienation of my children towards me to prevent my par-
enting time and bond. It’s a tragedy what has happened to
my relationship with the older kids because of this process,
and you have the power to make things right and healthy
again.” Because the record supports the finding that respon-
dent acted in a manipulative manner to seek information
outside the bounds of the order, coupled with the abusive
behavior that formed the basis of the FAPA order, the trial
court did not err in concluding that a person in petitioner’s
situation would reasonably fear for her physical safety in the
absence of the FAPA order.
On appeal, respondent relies on what is now an
abrogated legal standard for the renewal of a FAPA order
in support of his argument that the evidence was insuffi-
cient. Respondent argues that, in order for the trial court to
find sufficient evidence to renew a FAPA order, petitioner’s
282 R. R. v. Roberts
reasonable fear must have been based on “alleged conduct
[that] creates an imminent danger of further abuse and
a credible threat to the physical safety of the petitioner.”
Hubbell v. Sanders, 245 Or App 321, 326, 263 P3d 1096
(2011); see also J. N. D. v. Dehkordi, 309 Or App 198, 203,
481 P3d 422 (2021), overruled by K. E. B., 327 Or App at 48(holding that petitioner’s “fear must be objectively reason-
able—that is, it must be based on evidence that respondent
continues to pose an imminent danger of further abuse and
a credible threat to petitioner’s physical safety”). Respondent
argues that the trial court failed to consider whether there
was conduct sufficient to meet the imminent danger stan-
dard. However, shortly after this appeal was filed, we rec-
ognized that, because of amendments to the FAPA statute
in 2019, “[i]t is no longer necessary that the trial court find
an imminent danger of further abuse * * *; it is now enough
for the court to find that ‘the petitioner reasonably fears for
the petitioner’s physical safety.’ ” K. E. B., 327 Or App at 45(quoting ORS 107.716(3)(a)(B) (2019), amended by Or Laws
2023, ch 140, § 3). Thus, the trial court needed only to deter-
mine that a person in petitioner’s situation would reason-
ably fear for her physical safety.
Addressing respondent’s second and third argu-
ments, we reject his assertion that the trial court erred when
it considered the evidence from petitioner’s perspective as a
victim of domestic violence. The applicable statute not only
allows but requires the court to consider the evidence within
the context of a petitioner’s experiences. ORS 107.725(1)(a).
Additionally, to the extent that respondent relied upon law
enforcement’s characterization of petitioner as histrionic or
demanding in order to demonstrate that petitioner’s reac-
tions were unreasonable, the trial court made permissible
credibility findings that are supported by the record. See
K. R. M. v. Baker, 321 Or App 313, 314, 515 P3d 905 (2022).
Given the record presented on appeal, and accept-
ing the trial court’s findings that have evidence to support
them, the trial court did not err in renewing the FAPA order.
Affirmed.