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M. D. D. v. Alonso

Court of Appeals of Oregon

May 17, 2017

M. D. D., Petitioner-Respondent,
v.
Kassten F. ALONSO, aka Kassten F. Alsonso, Respondent-Appellant.

          Argued and submitted December 6, 2016.

         Multnomah County Circuit Court 15PO04551 G. Philip Arnold, Senior Judge.

          Mark T. McLeod and McLeod & McLeod Attorneys at Law fled the brief for appellant.

          Brenna Tanzosh argued the cause for respondent. With her on the brief was Tanzosh Family Law LLC.

          Before Sercombe, Presiding Judge, and DeHoog, Judge, and Flynn, Judge pro tempore.

         Case Summary:

         Respondent in a proceeding under the Family Abuse Prevention Act (FAPA) appeals an order prohibiting contact with petitioner. Respondent contends that the issuance of the FAPA restraining order was inappropriate for three reasons. First, respondent contends that the record does not support the trial court's finding that abuse occurred. Second, respondent asserts that the court erred by failing to make two findings that were essential to the issuance of a FAPA restraining order, specifically, that petitioner was in imminent danger of further abuse, and that respondent represented a credible threat to petitioner's safety. Third, respondent argues that the court could not have made those findings, because the record does not support them. In response, petitioner argues that respondent failed to preserve each of those contentions, but that, to the extent that we consider them, the record supports the trial court's findings and the restraining order as a whole.

         Held:

         As to respondent's first argument, evidence in the record supports the trial court's finding of abuse. The Court of Appeals did not consider the merits of respondent's second and third arguments, because it concluded that they were unpreserved.

         Affirmed.

          DEHOOG, J.

         In this appeal, respondent in a proceeding under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735, challenges a restraining order prohibiting his contact with petitioner. Respondent assigns error to the trial court's issuance of the FAPA restraining order. In support of his position, respondent first contends that the record does not support the trial court's finding that abuse occurred. See ORS 107.718(1). Second, respondent asserts that the court erred by failing to make two findings that were essential to the issuance of a FAPA restraining order, specifically, that petitioner was in imminent danger of further abuse, and that respondent represented a credible threat to petitioner's safety. See id. Third, respondent argues that the court could not have made those findings, because the record does not support them. In response, petitioner argues that respondent failed to preserve each of those contentions, but that, to the extent that we consider them, the record supports each of the trial court's express and implicit findings and the restraining order as a whole.

         As explained below, we agree with petitioner that respondent failed to raise before the trial court some of the contentions that he seeks to have us consider on appeal, and, accordingly, we do not consider the merits of those contentions. Respondent did preserve his argument that the trial court's finding that the abuse occurred is unsupported by the record. However, we decline respondent's request to conduct de novo review in this case and conclude that evidence in the record supports the trial court's finding of abuse. Accordingly, we affirm.

         We begin with a brief overview of the procedural history of the case and the evidence presented at the FAPA hearing. On July 20, 2015, petitioner filed a "Petition for Restraining Order to Prevent Abuse" under ORS 107.718(1).[1] In her petition, she alleged that, on July 15, 2015, respondent, who was petitioner's husband, had committed abuse within the meaning of FAPA. Petitioner alleged that, on that date, respondent "came home from work, after a few drinks[.] *** [H]e physically attacked me. I had to fight for my safety. It was terrifying." The trial court reviewed the petition ex parte and issued the requested restraining order. See ORS 107.718(1) (authorizing the initial issuance of a restraining order through ex parte proceedings). ...


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