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V.L.M. v. Miley

Court of Appeals of Oregon

August 13, 2014

V.L.M., Petitioner-Respondent,
KEVIN LEE MILEY, Respondent-Appellant

Submitted June 6, 2014

Marion County Circuit Court No. 13C11474, Donald Abar, Judge.


Ann Lechman-Su and Law Office of Ann Lechman-Su filed the brief for appellant.

Melanie Kebler and Oregon Crime Victims Law Center filed the brief for respondent.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.


Page 854

[264 Or.App. 720] LAGESEN, J.

Respondent appeals from a judgment entering a permanent stalking protective order (SPO) against him. He contests the sufficiency of the evidence supporting the SPO.[1] Because this is not an " exceptional case" warranting de novo review, we review the trial court's factual findings for " any evidence" and its legal conclusions for errors of law. Travis v. Strubel, 238 Or.App. 254, 256, 242 P.3d 690 (2010). Applying that standard of review, we conclude that the evidence is insufficient to support the entry of the SPO against respondent. Accordingly, we reverse.

To be entitled to the issuance of an SPO,[2] a petitioner must prove, among other

Page 855

things, that the respondent subjected the petitioner to repeated unwanted contacts [3] that [264 Or.App. 721] caused " the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim's immediate family or household." ORS 163.738(2)(a)(B)(iii). Specifically, the petitioner must prove facts demonstrating that " the contacts, cumulatively, [gave] rise to subjective apprehension regarding the petitioner's personal safety or the personal safety of a member of the petitioner's immediate family or household, and that apprehension must be objectively reasonable." T.M.B. v. Holm, 248 Or.App. 414, 418, 273 P.3d 304 (2012).

Viewing the evidence, and all reasonable inferences therefrom, in the light most favorable to petitioner, Delgado v. Souders, 334 Or. 122, 134, 46 P.3d 729 (2002), we conclude that petitioner failed to prove such facts here, and the trial court erred by concluding otherwise. Certainly, the evidence supports the trial court's finding that respondent subjected petitioner to repeated unwanted contacts within the meaning of the SPO statutes. The evidence also would support a finding that those repeated unwanted contacts upset, angered, and embarrassed petitioner. However, there is simply no evidence in the record to support a finding that the contacts caused petitioner subjectively to fear for her personal safety, or to permit the conclusion that, under the particular circumstances, any such fear was objectively reasonable.

Specifically, the evidence presented below demonstrates the following facts, when that evidence is viewed in the light most favorable to petitioner. Respondent is petitioner's ex-husband; their divorce was finalized in January 2013. After the parties separated, petitioner moved to Mt. Angel, but did not tell respondent where she was living. Notwithstanding the parties' separation, respondent continued to contact petitioner by phone, mail, and e-mail between the date petitioner moved to Mt. Angel and April 3, 2013, the date of the SPO hearing. The record is silent with respect to the content of respondent's communications to petitioner, with the exception of two. On March 29, 2013, respondent sent a letter to petitioner stating, " Hello, [petitioner]. Here's a little something for you, since you are a slutty whore now. How many guys have you slept with since you left your husband? I know of four." A box of condoms [264 Or.App. 722] accompanied that letter. Shortly thereafter, respondent sent an e-mail to petitioner. The email read, " I sent you a birthday card with a picture in it and a letter. Kevin." Apart from encountering petitioner on one occasion at the barn where petitioner boarded her horse, respondent did not have any direct, in-person contact with petitioner.

During the same time period, respondent also began appearing in Mt. Angel " a lot," including showing up at the barn and driving by the street where petitioner lives. In addition, respondent sent anonymous letters to 27 or so of petitioner's friends and acquaintances, including petitioner's boss, the " guy that works on [petitioner's] car," and petitioner's fellow members of a car club. The record does not disclose the content of the letters, apart from the fact that they said " horrible things" about petitioner.

As noted, those facts--which are supported by the evidence in the record--show that respondent subjected petitioner to repeated unwanted contacts that were upsetting and inappropriate. But nothing in the record permits the finding or inference that those repeated contacts caused petitioner to fear for the personal safety of herself or a family member, or that any such fear would be reasonable. Petitioner did not testify that she felt threatened by respondent. There is no evidence that respondent and petitioner's

Page 856

marriage had been violent, or that respondent had any other history of violence. There is no evidence that the content of the communications were threats of any sort. To the extent that the record contains evidence of the content of respondent's communications, that evidence reflects that the communications involved vindictive name-calling, rather than threats. See Osborne v. Fadden, 225 Or.App. 431, 439, 201 P.3d 278, rev den, 346 Or. 213, 208 P.3d 963 (2009) (reversing SPO where contents of some contacts contained " sexual solicitations," but no threat of harm, and, thus, were not sufficient to cause petitioners reasonable apprehension regarding their personal safety); Sparks v. Deveny, 221 Or.App. 283, 291-93, 189 P.3d 1268 (2008) (concluding record lacked evidence that unwanted contacts caused the petitioner reasonable apprehension regarding physical safety where there was no evidence that the respondent had a history of violence, where the respondent had not made express threats, and where the [264 Or.App. 723] petitioner did not testify that she was apprehensive regarding her own or anyone else's personal safety). And there is no other evidence about respondent, petitioner, or the circumstances of their particular relationship that would support a finding that petitioner in fact feared for her personal safety as a result of petitioner's contacts, or permit the conclusion that any such fear, in context, was objectively reasonable.[4]


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