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K.M.V. v. Williams

Court of Appeals of Oregon

June 3, 2015

K.M.V., Petitioner-Respondent,
v.
Debbera Marie WILLIAMS, Respondent-Appellant

Submitted May 7, 2015.

Lake County Circuit Court. 130260CV. Dan Bunch, Judge.

Andy Simrin and Andy Simrin PC filed the brief for appellant.

No appearance for respondent.

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

OPINION

Page 809

[271 Or.App. 467] DUNCAN, P. J.

Respondent appeals from a stalking protective order (SPO) issued pursuant to ORS 30.866, contending that the trial court erred in concluding that she committed the requisite " repeated and unwanted" contacts within two years preceding the filing of the petition. We agree with respondent that the evidence is not sufficient to support the issuance of the SPO, and, therefore, we reverse.

Respondent has not requested de novo review, and we do not view this as an " exceptional case" in which de novo review would be appropriate. 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." ). Accordingly, we review the trial court's factual findings for " any evidence" and its legal conclusions for errors of law. See Travis v. Strubel, 238 Or.App. 254, 256, 242 P.3d 690 (2010) (explaining the standards of review applicable to SPO appeals). In the absence of explicit findings, we assume that the trial court made findings consistent with its ultimate conclusion that petitioner had established the basis for the SPO. See State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993) (" If findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion." ). When the sufficiency of the evidence supporting an SPO is challenged on appeal, we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record is legally sufficient to permit that outcome. Christensen v. Carter/Bosket, 261 Or.App. 133, 135, 323 P.3d 348 (2014).

Petitioner and respondent were in a long-term domestic partnership that ended against respondent's wishes. Petitioner filed his petition for an SPO against respondent on November 20, 2013, which, according to petitioner, was approximately two years after he had told respondent that their relationship was over, and one year after a lawsuit was filed to divide the property from their domestic partnership. [271 Or.App. 468] According to petitioner, the parties have not communicated since the suit was filed.

On December 10, 2013, the trial court held a hearing on the SPO petition, at which both petitioner and respondent testified. Petitioner identified three actions by respondent as the basis for his requested SPO. First, petitioner alleged that, in September 2010, before the parties ended their relationship, respondent struck him on the arm while he slept. A week later, he learned that his arm was broken. Second, petitioner alleged that, on several occasions between 2010 and October 2013, respondent parked near petitioner's place of employment and watched him. Third, petitioner alleged that respondent made contact with him by scheduling an appointment with a realtor as a prospective purchaser of the house that petitioner was renting. The realtor contacted petitioner to arrange the showing. Petitioner left the house for the showing, which was on November 19, 2013, but returned because he was curious to see who was looking at it. He saw respondent's vehicle in the driveway, and he went into the house and told the realtor to tell respondent to leave. He then left the

Page 810

house briefly to call the police. When he returned, respondent was gone.

Petitioner testified that, before the incident on November 19, he had not been concerned for his physical well-being, but that after the incident he was concerned for his physical well-being, because he believed that ...


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