Submitted February 12, 2014.
Marion County Circuit Court. 11C20713. Courtland Geyer, Judge.
Denny Maison and Sara Williams filed the brief for appellant.
No appearance for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.
[262 Or.App. 410] DUNCAN, P. J.
Respondent appeals the trial court's entry of a stalking protective order (SPO), challenging the sufficiency of the evidence supporting the order. We agree with respondent that the evidence is not sufficient to support the SPO, and we therefore reverse.
Although respondent requests de novo review, we do not view this as an " exceptional case" in which de novo review is appropriate. ORS 19.415(3) (providing for de novo review at the court's discretion); ORAP 5.40(8)(c) (" The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases." ). Therefore, " we review the facts for any evidence and the legal conclusions based on those facts for errors of law." Brown v. Roach, 249 Or.App. 579, 580, 277 P.3d 628 (2012) (citations and internal quotation marks omitted).
We state the facts consistently with that standard. Petitioner and respondent were previously in a romantic relationship and have a son, J. At a hearing before the trial court, petitioner presented evidence of contact by respondent on four separate dates. In April 2011, respondent and his mother arrived at petitioner's home to pick up J for supervised visitation. Petitioner testified that respondent engaged her in " negative conversation" about J's haircut. She asked respondent to stop and retreated into the garage with J. Respondent followed petitioner and J into the garage, " screaming and yelling, coming towards us, advancing on us." Petitioner testified that she was apprehensive because of previous incidents in 2003 and 2004 (seven and eight years earlier) during which respondent had physically abused her.
Petitioner testified that, in June 2011, respondent repeatedly called and texted her regarding J and threatened to call the police and the Department of Human Services (DHS) if she failed to respond. When petitioner did not respond, respondent drove by her house and had the Keizer Police Department perform a welfare check on the residence.
On September 3, 2011, respondent and his mother came to petitioner's home to pick up J. Petitioner accused [262 Or.App. 411] respondent of engaging in unsupervised time with J. Petitioner testified that respondent " advanced toward me at the step and stated that he wished I was dead. And I asked him and his mother to leave and [told him] that he would not be taking our son, he then again verbally started accosting me, and got in the car and left." Petitioner testified that she was afraid because of previous instances of physical abuse.
Finally, petitioner testified that, on September 12-13, 2011, respondent issued a missing child report for J and left messages with petitioner threatening to attempt to gain custody if she failed to return his calls within 15 minutes. According to petitioner, the messages stated that " people had driven by [petitioner's] house * * * that could confirm [she] was home now, and that [respondent] needed to know where [J] was." Petitioner testified that, in light of previous instances of physical abuse by respondent, the messages alarmed her.
Petitioner also testified that respondent was " not allowed to have contact with us unless it has to do with [J]" and that she had repeatedly asked respondent not to contact her unless it concerned J. Petitioner requested the SPO after ...