M. A. v. Mouktabis , 336 Or. App. 332 ( 2024 )

332 November 20, 2024 No. 835
This is a nonprecedential memorandum opinion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
M. A.,
Petitioner-Respondent,
v.
Nour Eddine MOUKTABIS,
Respondent-Appellant.
Clackamas County Circuit Court
18PO11790; A177857
Kathie F. Steele, Judge.
Argued and submitted September 30, 2024.
Nour Eddine Mouktabis argued the cause and filed the
briefs pro se.
Sandra M. Faber argued the cause for respondent. Also
on the brief was Faber Family Law Clinic LLC.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
AOYAGI, P. J.
Affirmed.
Nonprecedential Memo Op: 336 Or App 332 (2024) 333
AOYAGI, P. J.
Petitioner obtained a Family Abuse Protection Act
(FAPA) restraining order against respondent, her then-hus-
band, in 2018. The restraining order came up for renewal
a year later, the trial court dismissed it, a stay was issued
pending appeal, and the order was dismissed with finality
in January 2021. Meanwhile, immediately before it came up
for renewal, respondent moved to set aside the restraining
order under ORCP 71 B, based on fraud, misrepresentation,
and newly discovered evidence. After appeal-related delays,
a hearing was held on the ORCP 71 B motion in September
2021. The trial court denied the motion. Respondent appeals,
arguing that he was entitled to relief under ORCP 71
B(1)(b), (c), and (e). Having reviewed the record and consid-
ered the parties’ arguments, we affirm.
Standard of review. Respondent requests de novo
review. See ORS 19.415(3)(b) (giving us discretion to make fac-
tual findings de novo in “an equitable action or proceeding”).
It is unusual for us to be asked for de novo review of an ORCP
71 B ruling. Indeed, neither party has identified any prior
case in which we have reviewed de novo an ORCP 71 B ruling.
Even assuming that we have authority to do so, however, we
are unpersuaded to do so here. The nature of the motion, the
long history of this case, and the live testimony at the set-
aside hearing all favor deferring to the trial court’s view of
the facts after making credibility assessments. Further, there
is nothing so unusual about this case as to merit supplanting
the trial court’s view of the evidence with our own. See ORAP
5.40(8)(c) (limiting de novo review to “exceptional cases”).
We therefore apply the normal standard of review
for the denial of a motion to set aside under ORCP 71 B.
An ORCP 71 B ruling “implicate[s] multiple standards of
review.” Union Lumber Co. v. Miller, 360 Or 767, 777, 388
P3d 327 (2017). As to factual findings underpinning the
decision, we defer to the trial court’s express or implied fac-
tual findings. Id. Whether a cognizable ground for relief has
been shown is a question of law that we review for errors of
law. Id. Finally, the decision whether to grant relief is a dis-
cretionary one that we review only for abuse of discretion.
Id. at 778.
334 M. A. v. Mouktabis
ORCP 71 B(1)(b). Respondent moved to set aside
the restraining order under ORCP 71 B(1)(b), which allows
relief from a judgment based on “newly discovered evidence
which by due diligence could not have been discovered in
time to move for a new trial under Rule 64 F.” As “new evi-
dence” that the abuse allegations were false, respondent
points to the testimony of three witnesses at the ORCP 71 B
hearing, as well as petitioner’s medical records admitted at
that hearing. Respondent asserts that none of that evidence
was available previously. The trial court denied the motion,
reasoning that respondent had not persuasively shown that
such evidence was unavailable in December 2018 and, thus,
had not established a cognizable ground for relief under
ORCP 71 B(1)(b). Having reviewed the record under the
applicable standards of review, we find no reversible error.
ORCP 71 B(1)(c). Respondent also moved to set aside
the restraining order under ORCP 71 B(1)(c), which allows
the trial court to relieve a party from a judgment based on
“fraud (whether previously called intrinsic or extrinsic), mis-
representation, or other misconduct of an adverse party.” In
essence, respondent alleged that petitioner had lied at the
December 2018 hearing and fabricated evidence to support
her false testimony. The trial court denied the motion, reason-
ing that respondent had not proved to the court’s satisfaction
that petitioner had engaged in fraud or misrepresentation
and, thus, had not established a cognizable ground for relief
under ORCP 71 B(1)(c). Having reviewed the record under the
applicable standards of review, we find no reversible error.
ORCP 71 B(1)(e). Respondent lastly moved to set
aside the restraining order under ORCP 71 B(1)(e), which
allows the trial court to relieve a party from a judgment
when “the judgment has been satisfied, released, or dis-
charged, or a prior judgment upon which it is based has
been reversed or otherwise vacated, or it is no longer equi-
table that the judgment should have prospective application.”
(Emphasis added.) The trial court did not expressly rule on
respondent’s ORCP 71 B(1)(e) motion, thus implicitly deny-
ing it. On appeal, respondent argues that the trial court
erred, because it is no longer equitable for the restraining
order to have prospective application.
Nonprecedential Memo Op: 336 Or App 332 (2024) 335
As a preliminary matter, we are skeptical that a
dismissed restraining order can be said to have “prospec-
tive application.” Public records of a past restraining order
against respondent may have practical consequences for
respondent, as he asserts, but that does not necessarily
equate to the restraining order having “prospective applica-
tion” within the meaning of ORCP 71 B(1)(e). The restraining
order was dismissed long before the hearing on the ORCP
71 B motion, so it had no ongoing application to anyone as
a court order.1 See Kerridge v. Jester, 316 Or App 599, 608,
502 P3d 1206 (2021), rev den, 369 Or 507 (2022) (describing
ORCP 71 B(1)(e) as allowing relief when “the enforcement of
a judgment is no longer equitable” (emphasis added)).
Even if the order could be said to have prospective
application, however, respondent did not establish a cog-
nizable ground for relief under ORCP 71 B(1)(e).
ORCP 71 B(1)(e) “codifies the common law remedy of audita
querela[,]” which was a “writ brought by a judgment defen-
dant to obtain relief against the consequences of the judg-
ment on account of some matter of defense or discharge aris-
ing since its rendition and which could not have been taken
advantage of otherwise.” Wimber v. Timpe, 109 Or App 139,
145, 818 P2d 954 (1991) (internal quotation marks omitted);
see also Dept. of Human Resources v. Shinall, 148 Or App
560, 565-66, 941 P2d 616 (1997) (the “no longer equitable”
provision in ORCP 71 B(1)(e) codifies the common law rule
“that a judgment with prospective operation may be subject
to change based upon changed conditions” (internal quo-
tation marks omitted)). We have treated ORCP 71 B(1)(e)
as being limited to “what was available under the writ of
audita querela.” Wimber, 109 Or at 145.
As such, the key to a successful motion under ORCP
71 B(1)(e) is changed conditions since the entry of the judg-
ment. No changed conditions were proved here. Respondent
tried to prove changed conditions by arguing the discovery
1
To be clear, no one is suggesting that the appeal is moot. Mootness has to
do with whether obtaining the desired relief (set aside of the restraining order)
would have a practical effect on respondent. Respondent asserts that it would,
and we assume that is true. But whether a dismissed order has ongoing practi-
cal effects is a different question from whether it has “prospective application”
within the meaning of ORCP 71 B(1)(e).
336 M. A. v. Mouktabis
of new evidence under ORCP 71 B(1)(b), but that effort was
unsuccessful. Respondent argues that the parties no longer
live together and are able to interact regarding their chil-
dren without incident, but that argument too is unavailing.
That a restraining order is no longer needed is significant
to whether it can be renewed, but it is not a basis to set
aside a past order. Respondent did not establish a cognizable
ground for relief under ORCP 71 B(1)(e).
For those reasons, we affirm the trial court’s order
denying set aside of the 2018 restraining order under ORCP
71 B.
Affirmed.