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J. V.- B. v. Burns

Court of Appeals of Oregon

March 15, 2017

J. V.-B., Petitioner-Respondent,
v.
Kevin Louis BURNS, Respondent-Appellant.

          Submitted February 6, 2017

         Columbia County Circuit Court 15PO02316; Jenefer Stenzel Grant, Judge.

          James D. Huffman fled the briefs for appellant.

          Susan M. Muzik fled the brief for respondent.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary:

         Petitioner obtained a temporary restraining order against respondent pursuant to the Family Abuse Prevention Act, ORS 107.700 to 107.735. After a contested hearing, the trial court continued the restraining order. On appeal, respondent asserts that the order was not supported by legally sufficient evidence.

         Held: The restraining order was not supported by legally sufficient evidence because the record lacks evidence that respondent presented a credible threat to petitioner's physical safety.

         Reversed.

          GARRETT, J.

         Petitioner obtained a temporary restraining order against respondent pursuant to the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735. After a contested hearing, the trial court continued the restraining order. On appeal, respondent argues that the order was not supported by legally sufficient evidence. We agree and reverse.

         Neither party requests that we exercise our discretion to review de novo, nor do we view this case as exceptional and warranting such review. See ORAP 5.40(8)(c). Consequently, we are bound by the trial court's factual findings if they are supported by any evidence; if the trial court did not make express factual findings on disputed issues, we presume that it made implicit findings consistent with its ultimate judgment. T. K. v. Stutzman, 281 Or.App. 388, 389, 383 P.3d 287 (2016). We review the trial court's legal conclusions for legal error. Id.

         We state the facts in a manner consistent with our standard of review. Petitioner and respondent were married in 2008. At the time of the precipitating incidents in April 2015, the two lived together, along with petitioner's adult daughter and daughter's two children. At around the time that petitioner sought the restraining order against respondent, the couple initiated divorce proceedings.

         In mid-April, respondent, petitioner, daughter, and daughter's children went fishing on respondent's boat. While on the boat, petitioner and daughter drank beer. Respondent smoked marijuana and did not drink. Petitioner and respondent argued before and during the trip. After daughter asked respondent to slow the boat down, respondent stopped it ...


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