Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

J. K. v. Kargol

Court of Appeals of Oregon

January 3, 2019

J. K., Petitioner-Respondent,
v.
David KARGOL, Respondent-Appellant.

          Argued and submitted September 27, 2018

          Deschutes County Circuit Court 17PO08413; Beth M. Bagley, Judge.

          George W. Kelly argued the cause and fled the brief for appellant.

          No appearance for respondent.

          Before Ortega, Presiding Judge, and Powers, Judge, and Garrett, Judge pro tempore.

         Reversed.

         Case Summary: Respondent seeks reversal of a Family Abuse Prevention Act (FAPA) order. He argues that the trial court erred in its decision because petitioner failed to prove that she was in "imminent danger of further abuse" or that he presented a "credible threat to [her] physical safety." ORS 107.718(1). Held: The trial court erred. The evidence in the record falls short of what would be required to prove imminent danger of further abuse and a credible threat to petitioner's physical safety.

         [295 Or.App. 530] ORTEGA, P. J.

         Petitioner sought a restraining order against respondent, her husband, under the Family Abuse Prevention Act (FAPA). ORS 107.700 - 107.735. The court issued an exparte FAPA order, and respondent requested a hearing, at which the court continued the restraining order. On appeal, respondent seeks reversal of the FAPA order, arguing that the trial court erred in its decision because petitioner failed to prove that she was in "imminent danger of further abuse" or that he presented a "credible threat to [her] physical safety," ORS 107.718(1). We agree and, therefore, reverse.

         We are bound by the trial court's factual findings if they are supported by any evidence in the record and, in the absence of explicit findings on disputed issues, we presume that the court found facts consistent with its judgment in petitioner's favor. J. V.-B. v. Burns, 284 Or.App. 366, 367, 392 P.3d 396 (2017). We review the trial court's legal conclusions for errors of law. Id.[1]

         Before the incident that led to the FAPA order, petitioner and respondent were married and living together with their two-year-old daughter. On May 4, 2017, an argument between petitioner and respondent escalated. Respondent began swearing and screaming at petitioner, approached her with a raised fist, but did not strike her. Instead, he grabbed a pillow from their sofa and pushed her with it.

         At some point, petitioner left the house with her daughter to get away from respondent. She got into her car and tried to drive away, but respondent prevented her from leaving by getting into her car and taking her cell phone. He eventually got out of petitioner's car but, once she started driving away, he got into his car and followed her down a two-way dirt road. He drove around petitioner so that they were driving side-by-side, at which point petitioner believed [295 Or.App. 531] that he was attempting to "run [her] off the road," risking her life. He eventually turned around while petitioner drove to her friend's house and called the police. Criminal charges were filed against respondent.

         After the May 2017 incident, petitioner and respondent continued to live together without further violent altercations. However, the couple separated at the beginning of August 2017, and petitioner and their daughter moved out of the family home. On August 31, petitioner sought an exparte FAPA restraining order out of fear of respondent's tendency to escalate arguments to "frightening and unsafe levels." The court granted the order, and respondent requested a hearing.

         At the contested hearing, petitioner testified about the May 2017 incident, but also described a physical altercation that occurred in 2015-significantly more than 180 days before filing of the petition-which started out as a verbal argument but resulted in respondent grabbing her aggressively. Petitioner stated that when she finally moved out of the couple's home, she agreed to a 50/50 parenting plan. However, out of concern for her own and her daughter's safety, she believed that the parenting plan had to be modified. As evidence supporting her concern, petitioner introduced an email exchange, text messages, and a recorded phone call, all of which occurred after they separated. In the email, respondent admitted his fault during the May 2017 incident. Nevertheless, petitioner still felt unsafe because respondent would not respect her boundaries when they talked. Petitioner also pointed to some text messages which showed that respondent would repeatedly ignore her requests that he stop contacting her until she was ready to talk about the new parenting plan. A day later, petitioner and respondent had a phone conversation where respondent stated that he "did not try to kill her" in May 2017 and that he "could have because [he] was out of control" but had no intent to kill her on ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.