J. K., Petitioner-Respondent,
David KARGOL, Respondent-Appellant.
and submitted September 27, 2018
Deschutes County Circuit Court 17PO08413; Beth M. Bagley,
W. Kelly argued the cause and fled the brief for appellant.
appearance for respondent.
Ortega, Presiding Judge, and Powers, Judge, and Garrett,
Judge pro tempore.
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.
Or.App. 530] ORTEGA, P. J.
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,
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.
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.
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.
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.
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 ...