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State v. Feyko

Court of Appeals of Oregon

February 7, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
LARRY CHARLES FEYKO, Defendant-Appellant.

          Argued and submitted August 30, 2017

         Yamhill County Circuit Court 15CN00518; Carroll J. Tichenor, Senior Judge. (Judgment) John L. Collins, Judge. (Amended Judgment)

          Vanessa Areli, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Nathan Riemersma, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of two counts of contempt based on his violation of a Family Abuse Prevention Act (FAPA) restraining order. Defendant contends that the trial court erred in finding him in contempt of court on Count 1, because the restraining order did not prohibit him from providing legally required notices to the protected person through certified mail. Held: The trial court erred in finding defendant in contempt of the restraining order on Count 1. Both the wording of the FAPA order and the statutes describing legally permissible service methods demonstrate that certified mail is a manner permitted by law by which defendant could have served the legal notices upon the protected person.

          [290 Or. 160] TOOKEY, J.

         Defendant appeals a judgment of two counts of contempt based on his violation of a Family Abuse Prevention Act (FAPA) restraining order. ORS 107.700 - 107.735. Defendant raises two assignments of error; we write only to address defendant's first assignment of error, in which he contends that the trial court erred in finding him in contempt of court on Count l.[1] For the reasons that follow, we reverse the trial court's finding of contempt on Count 1, and otherwise affirm.

         The pertinent facts relating to Count 1 are few and undisputed. A obtained a FAPA restraining order that prohibited defendant from, among other things, contacting or attempting to contact A by mail, "except for mailing court-ordered emergency monetary assistance, checks or money orders directly or through third parties." The order also provided, in boldface font, that

"nothing in this order prevents [defendant] from serving or providing documents related to a court (or administrative) case to [A] in a manner permitted by law. However, [defendant] may not personally deliver legally-related documents to [A]."

         While the order was in effect, defendant sent A, via certified mail, an envelope that contained a notarized "Notice of Claim of Lien upon Chattels" and a notarized "Claim of Possessory Lien-Notice of Foreclosure Sale." The envelope's letterhead contained the name and address of a law firm, but the attorneys and staff of that firm were "confident" that the envelope was not sent from anyone at the firm. Attached to the back of the envelope was a green form used by the post office to send certified mail that listed defendant as the sender and provided his address. The envelope was delivered to A by a postal worker.

         Subsequently, the state moved the court for an order directing defendant to show cause why it should not find him in contempt of court for violation of the FAPA order. The [290 Or. 161] trial court granted the show cause order that had alleged, as to Count 1, that defendant "contacted or attempted to contact [A] by mail." Following a hearing on that order, the trial court found defendant in contempt of court, explaining:

"The Court issued an order to [defendant] that he was not to have any contact, direct, indirect, personal, or ...

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