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C.M.V. v. Ackley

Court of Appeals of Oregon

March 5, 2014

C. M. V., Petitioner-Respondent,
JEFFREY J. ACKLEY, Respondent-Appellant

Submitted November 01, 2013

Multnomah County Circuit Court. 121071036. David W. Knofler, Judge.

Kristen L. Winemiller and Pacific Northwest Law LLP filed the brief for appellant.

Respondent Cynthia Valenti waived appearance Pro se.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.


[261 Or.App. 492] ORTEGA, P. J.

Petitioner sought a restraining order against respondent, her former boyfriend, under the Family Abuse Prevention Act (FAPA). ORS 107.700 - 107.735. The court issued an ex parte FAPA restraining order under ORS 107.718, and respondent requested a hearing pursuant to ORS 107.718(10). After the hearing, the trial court continued the restraining order. Respondent appeals that decision, contending that petitioner failed to present sufficient evidence that (1) she had been a victim of abuse within 180 days of filing her petition for a restraining order, (2) she was in imminent danger of further abuse, and (3) respondent represented a credible threat to petitioner's physical safety. ORS 107.718(1). We conclude that the second and third of those elements lack support in the record and, accordingly, we reverse.

On appeal, respondent requests that we exercise our discretion to review de novo, but because this is not an " exceptional case," we decline that request. See ORAP 5.40(8)(c). Accordingly, because the court made no express findings, we presume that the court found facts consistent with its judgment in petitioner's favor, and we are bound by those implicit factual findings if any evidence in the record supports them. Hannemann v. Anderson, 251 Ore App 207, 208, 283 P.3d 386 (2012). We review the trial court's legal conclusions for error of law. Id.

Viewed consistently with that standard of review, the relevant facts are as follows. Respondent and petitioner work together; they also were in an intimate relationship and lived together for three and one-half years. On October 15, 2012, petitioner and respondent had an argument in petitioner's car as they were arriving home from work. Petitioner, who was in the driver's seat, testified that, once they had parked at home, respondent became angry and slammed his hands down on the steering wheel in front of her. Respondent then got out of the car, ran around to petitioner's side, squatted down,

Page 605

looked her straight in the eye, and called her a " psycho" and " some really terrible names." Petitioner felt trapped and afraid, and she screamed to attract her neighbors' attention. Respondent then walked away to " cool off," [261 Or.App. 493] and petitioner went inside the house and locked the doors. When respondent returned about 20 minutes later, he found that he was locked out of the house. He saw petitioner inside the house and asked her, through the locked door, to let him in. Petitioner refused, telling respondent that he could not come in until he " cool[ed] off" and until he apologized for scaring her. Respondent refused to apologize and, instead, repeatedly hit the door with his shoulder, breaking the locked deadbolt and ruining the door. Petitioner testified that when respondent broke down the door, she was " petrified" and " didn't know what would happen next." Petitioner asked respondent to leave. When he did not do so immediately, she called the police, who then arrested respondent. According to petitioner, she was fearful because she and respondent had been " engaged in a very vicious cycle" of her " over dependence on him and his abusiveness on [her]."

At the hearing, petitioner also testified about two other incidents, the first of which preceded the filing of the petition by more than 180 days. On that occasion in May 2011, according to petitioner, respondent allowed her to borrow his car. When she returned to the house, respondent was angry because his wallet had been in the car. When respondent saw that petitioner was becoming upset, he told her to " shut the F up" and called her a " psycho." During an ensuing struggle, petitioner sustained a blow to her nose, causing it to bleed all over her clothes and the carpet. Petitioner testified that she missed several days of work after the incident because she had a black eye.

The second additional incident described by petitioner occurred in June 2012. During that incident, petitioner borrowed respondent's car while he was at work. When she returned, she did not park in respondent's usual spot, and she did not remember to inform him of that. When respondent left work at 2:30 a.m., he could not find his car. He called petitioner, who was asleep, and left a number of increasingly angry voicemail messages. Petitioner testified that when they finally spoke, she was afraid because respondent continued to " berate [her] and threaten [her] over the phone" and was in a " crazy state." The next morning, when petitioner went back to work, she brought a knife to protect herself because she feared that respondent would physically harm her.

[261 Or.App. 494] On October 16, 2012, petitioner obtained an ex parte FAPA restraining order which allowed for only e-mail contact between the parties. Respondent then moved out of their shared home. With the assistance of their employer, respondent and petitioner continued to work together without having to interact. After a permitted exchange of several e-mails, on November 5, respondent informed petitioner by e-mail that he wished to end their relationship and asked that she stop contacting him. Respondent also resigned from a music events group that he and petitioner had founded together. However, after resigning from that group, respondent continued to post comments to the group's e-mail list. In one comment, respondent informed the group that he was planning to attend an event where he knew that petitioner would be performing. When petitioner learned of respondent's intentions, she became concerned and contacted the venue owners to inform them about the restraining order. Ultimately, respondent did not attend the event. In addition, ...

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