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C.J.R. v. Fleming

Court of Appeals of Oregon

September 10, 2014

C. J. R., Petitioner-Respondent,
v.
ANDREW EDSON FLEMING, Respondent-Appellant

Submitted February 10, 2014

Jackson County Circuit Court 124278Z0. Ronald D. Grensky, Judge.

Donald Scales filed the briefs for appellant.

Cynthia Jean Ragsdale filed the brief Pro se.

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

OPINION

Page 535

[265 Or.App. 343] WOLLHEIM, J.

Respondent appeals from a judgment granting petitioner a permanent stalking protective order (SPO) and awarding petitioner

Page 536

attorney fees, arguing that the record contained insufficient evidence to support entry of the SPO under ORS 30.866(1). We conclude that the trial court did not err in issuing the permanent SPO under ORS 30.866(1) and affirm.[1]

Neither party requests de novo review, and this is not an exceptional case that merits exercising our discretion to do so. See ORS 19.415(3)(b) (authorizing discretion by this court to review the facts de novo ); ORAP 5.40(8) (limiting exercise of de novo review to exceptional cases). Therefore, " we review the facts for any evidence and the legal conclusions based on those facts for errors of law." S.A.B. v. Roach, 249 Or.App. 579, 580, 277 P.3d 628(2012) (internal quotation marks omitted).

Petitioner and respondent had an intimate relationship from March 2008 to May 2010. Petitioner was pregnant when they met. Although respondent is not the biological father, petitioner and respondent agreed to list respondent on the birth certificate when the child was born in June 2008. The effect of the agreement was to establish respondent as the legal father. Respondent moved in with petitioner five months later. Petitioner ended the relationship in May 2010, because respondent had become physically and emotionally abusive towards her. Petitioner allowed respondent to continue seeing their daughter because respondent had never shown aggression towards the child. However, over approximately the next two years, petitioner became increasingly concerned about respondent's conduct during the exchanges of the child. Petitioner tried to avoid meeting respondent unless other people were present. Petitioner repeatedly told respondent that she did not want to have contact with him and attempted to limit their contacts to public places. At first, respondent was sometimes agreeable to meet in public [265 Or.App. 344] places, but then he frequently refused, especially after April 2012, when he relied on an order in the parties' custody case. Respondent asserted that it was better for the child to make the exchange at their homes.

Petitioner contacted the police several times between March and August 2012 to report conduct by respondent that made her feel unsafe and, on August 30, 2012, filed a petition for an SPO. The trial court issued a temporary SPO on September 7, 2012. The hearing for a permanent SPO began in February 2013, and petitioner, respondent, a police officer with whom petitioner had made contact, and an administrator from the child's preschool all testified. Petitioner testified that respondent became emotionally and physically abusive towards her after he moved in with her. Respondent " tracked everything [she] did," got upset if she was on the phone with family or anyone else, demanded that she look him in the eyes while he criticized her, and had angry outbursts during which he would throw down a dish or slam doors, once breaking the laundry room door. More than once, respondent physically blocked petitioner from driving away in her car by throwing himself between her and the steering wheel, " still scolding [her], or yelling at [her]," and physically keeping her from driving the car until she heard what he had to say.

Petitioner testified that, based on respondent's statements to her, both casually and in anger, she believed that respondent had been abusive and violent in the past. For example, in a casual conversation, he told her about a prior romantic relationship that had ended suddenly, when the woman had refused to talk to him, and he kept going to her house until she called the police to stop him. Another time, in anger, respondent remarked that everyone takes advantage of him, no one listens to him, and no one sees his side. Then he told her another story about his brother, who had disagreed with him, verbally " bash[ed]" respondent, and would not listen to him, and so respondent punched and beat up his brother because his brother " needed that."

Page 537

Petitioner ended her intimate relationship with respondent in May 2010, because of respondent's violent [265 Or.App. 345] behavior towards her. Petitioner testified that there was a specific incident when she realized that respondent had crossed the line physically. This was in April 2010, when respondent blocked her in the bedroom and, while yelling at her, grabbed her hard and shoved her back a little, all the time looking at her with anger and rage. She was afraid for her life: " [T]he way he was looking at me with the anger, and the rage he had, and the way * * * I mean, just how he gets, the way he held me; I thought that he was going to hurt me or kill me. * * * I was in complete fear[.]"

Petitioner described numerous unwanted contacts with respondent in the months before she filed the petition for an SPO, including multiple instances during which respondent had lingered in his car--in front of her home, at their daughter's preschool, and other places where they exchanged the child--either watching or video-recording petitioner and her family. Petitioner also testified to specific instances when respondent threw a plastic toy at her, lunged at her while yelling in her face, and followed her in his car. She explained that those repeated contacts with respondent only increased her alarm and made her more afraid for her personal safety because, in the context of respondent's controlling behavior towards her during their relationship, she was afraid when he continued to follow, track, and wait for her in parking lots after she asked him to stop. She did not know what respondent would do next and felt like he was " capable of anything" and could " harm [her] severely."

Respondent's testimony conflicted with petitioner's testimony. He denied ever threatening petitioner with violence, either by his words or actions. He understood that, as of August 2012, petitioner did not want him at her house but denied knowledge of the particular behavior that was making petitioner uncomfortable. Respondent believed that everyone was conspiring against him.

The trial court found petitioner to be credible and was persuaded by the e-mails submitted into evidence that she was afraid of respondent. In contrast, the court found that respondent lacked credibility, and that he was " a passive-aggressive individual" who used the unwanted contacts " to impose himself on the life of [petitioner]" and cause [265 Or.App. 346] stress to her and her new companion. On February 20, 2013, the trial court issued the permanent SPO, orally explaining:

" [Respondent] lacks credibility. You know, you can explain an occasional contact as coincidence. You can't explain all of these coincidences. And for me to disbelieve entirely [petitioner']s story, I have to assume she totally fabricated all these emails, and I'm not going to assume that. Those emails tell a story. And they tell a story of somebody who doesn't want to have the contact she's ...

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