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S. P. Z. v. Kirkwood

Court of Appeals of Oregon

January 16, 2019

S. P. Z., Petitioner-Respondent,
v.
Gregory Michael KIRKWOOD, Respondent-Appellant.

          Submitted December 21, 2017

          Washington County Circuit Court 16SK00421; James Lee Fun, Jr., Judge., Eric Butterfeld, Judge.

          Steven J. Sherlag fled the briefs for appellant.

          Charles R. Markley and Williams Kastner Greene & Markley fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Respondent appeals a stalking protective order (SPO) and a subsequent order denying his motion to vacate the firearms certification in that SPO. Respondent assigns error to the trial court's order mandating a firearm disability pursuant to the grant of the permanent SPO. He argues that the certification is erroneous because petitioner does not satisfy the definition of "intimate partner" in ORS 166.255(3)(d) (2015), amended by Or Laws 2018, ch 5, §1, because he and petitioner were not spouses and never lived together as if they were. Held: Respondent's arguments do not provide a basis for setting aside the firearms restriction; although state and federal law were mentioned during the SPO hearing, the SPO itself contained no findings as to whether petitioner and respondent had the type of relationship described in ORS 166.255(3)(d) (2015). The firearms certifications addressed only federal law and respondent did not supply any arguments addressing the federal law under which the trial court made the certification.

         Affirmed.

         [295 Or.App. 687] LAGESEN, P. J.

         Respondent relentlessly contacted petitioner after she ended their romantic relationship. This contact caused petitioner to fear for her physical safety. To stop it, petitioner sought a permanent stalking protective order (SPO) under ORS 30.866. The trial court granted the SPO after respondent waived his right to a hearing and informed the court that he did not contest petitioner's allegations. The court then made a firearms certification, determining that the order "meets the requirements of federal law as set out below and subjects Respondent to federal prosecution for possession, receipt, shipping, transportation, or purchase of firearms * * * while it is in effect." That determination included a finding that petitioner and respondent had the type of qualifying relationship necessary for the firearms certification under federal law. On appeal, respondent assigns error to the trial court's determination that the relationship between petitioner and him was the type that allowed for entry of the firearms certification. For the reasons that follow, we affirm.

         The relevant facts are procedural and not disputed. Respondent, who was not represented, waived his right to a hearing and told the trial court he did not contest petitioner's allegations regarding unwanted contacts. The court then determined that those contacts established that petitioner was entitled to an SPO. After explaining the limits that the order placed on respondent's contact with petitioner, the court inquired whether petitioner and respondent had been "involved in a sexually intimate relationship." Petitioner confirmed that the relationship had been sexually intimate. The court then explained to respondent that that fact meant that respondent needed to get rid of any firearms that he possessed and would not be able to possess them upon entry of the SPO.

         That came as a surprise to respondent, and the trial court asked if he would prefer to have a hearing on the SPO, explaining that "I understand that's a significant right, and you know, again, I don't want to replace my judgment for yours." Respondent ultimately decided to go forward without a hearing and agreed to make arrangements to dispose of his firearms. The court then entered the SPO. As noted, [295 Or.App. 688] the order contained a finding that petitioner and respondent had the type of relationship that would mean that the entry of the order would "subject [] Respondent to federal prosecution for possession, receipt, shipping, transportation, or purchase of firearms or ammunition while it is in effect." Specifically, the court checked the box on the order next to the line stating that petitioner was "[a] person who does or did cohabit (live in a sexually intimate relationship) with Respondent."

         Sometime thereafter, respondent retained counsel and moved to vacate the firearms certification. Respondent argued that the finding about the parties' relationship was based on an "incorrect understanding of the 2015 revisions to ORS [sic] under Senate Bill 525, codified at ORS 166.255." In support of the motion, respondent's lawyer represented that he had contacted the lawyer who represented petitioner at the SPO hearing and that she had "indicated her belief the restriction was ordered in error" because "her understanding was that Petitioner and Respondent were not 'intimate partners' as defined in ORS 166.255." Petitioner, who was represented by new counsel, opposed the motion on the ground that respondent had not identified any procedural authority for the motion and, in particular, had not demonstrated that the ORCP 71 criteria for vacating an order were satisfied. Following a hearing, the trial court summarily denied the motion. Respondent appealed the SPO and, following the court's entry of the order denying the motion to vacate the firearms certification, amended the notice of appeal to include that order.

         On appeal, respondent assigns error as follows: "The trial court erred in ordering a firearm disability pursuant to the grant of a permanent stalking order where Petitioner and Respondent did not cohabitate." In support of that assignment of error, he contends, as he did in his motion to vacate the firearms certification, that the certification is erroneous because, in respondent's view, petitioner does not satisfy the definition of "intimate partner" in ORS 166.255(3)(d) (2015).[1] Respondent points out that [295 Or.App. 689] that provision defines an "intimate partner" of a person to be "the person's spouse, the person's former spouse, a parent of the person's child or another person who has cohabited or is cohabiting with the person in a relationship akin to a spouse." ORS 166.255(3)(d). According to respondent, that definition demonstrates that he did not have the type of relationship with petitioner that subjects him to a firearms certification because, as petitioner's lawyer acknowledged at the original SPO hearing, the parties were not spouses and never lived ...


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