M. A. B., Petitioner-Respondent,
Anthony Nicholis BUELL, Respondent-Appellant.
and submitted December 20, 2018
Washington County Circuit Court 17PO09823 Kirsten E.
W. Kelly argued the cause and fled the brief for appellant.
appearance for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: Petitioner and respondent were married in 2014 and
have one young child, J. After the parties separated in 2017,
petitioner sought and obtained a restraining order against
respondent under the Family Abuse Prevention Act (FAPA), ORS
107.700 to ORS 107.735. Respondent appeals the trial
court's decision to grant and continue the FAPA
restraining order. Held: The evidence in the record,
viewed in the light most favoring petitioner, was insuffcient
to establish that "there [was] an imminent danger of
further abuse to petitioner." ORS 107.718(1). Thus, the
trial court erred in issuing the FAPA order.
Or.App. 381] HADLOCK, P. J.
and respondent were married in 2014 and they have one young
child, J. Petitioner separated from respondent in July 2017,
and she and J moved in with petitioner's parents. In
October of that year, petitioner sought and obtained a
restraining order against respondent under the Family Abuse
Prevention Act (FAPA), ORS 107.700 to 107.735. On
respondent's appeal, we conclude that petitioner did not
meet her burden of proving that she was in imminent danger of
further abuse from respondent at the time of the FAPA
hearing. Accordingly, we reverse.
review the trial court's legal conclusions for legal
error. Kargol v. Kargol, 295 Or.App. 529, 530,
___P.3d__(2019). We are bound by the trial court's
factual findings-both those that are explicit and those that
are necessarily implied by its rulings-if any evidence in the
record supports them. Hannemann v. Anderson, 251
Or.App. 207, 208, 283 P.3d 386 (2012). We therefore describe
the facts in a manner that reflects the court's findings
and its ultimate decision to grant the FAPA order.
and respondent were married in 2014. During his marriage to
petitioner, respondent took medications for depression; he
sometimes also drank alcohol to excess, despite warnings to
the contrary associated with his medications. J was just
under two years old at the time of the FAPA hearing.
Petitioner worked part time and was J's primary
caregiver; respondent was employed full time.
physical incidents of abuse described by petitioner relate to
involuntary sex. See ORS 107.700(1)(c) (defining
"abuse" to include "[c]ausing another to
engage in involuntary sexual relations by force or threat of
force"). Sometime before March 2017, respondent joined
petitioner while she was taking a shower. She told him that
she did not want to have sex, but he pushed her against the
shower wall and had intercourse with her, despite her telling
him to stop. In May 2017, respondent subjected petitioner to
involuntary sex again while forcibly holding her down on a
bed, after having dragged her away from J, who was breast
feeding. Petitioner suffered bruising on her arms as a
result. [296 Or.App. 382] Petitioner testified at the FAPA
hearing that it had taken her a while to realize that
respondent's actions toward her were wrong because
respondent "was often sexually aggressive even if it was
consensual and so the lines were very blurred for
2017, petitioner told respondent that she was very unhappy in
their marriage. Respondent told petitioner that he would kill
her and take J if she ever left or divorced him. Respondent
seemed "very relaxed" and, had petitioner not
looked at his face, she "would have thought maybe he was
joking." However, after looking at respondent,
petitioner "felt like he was completely serious."
following month, petitioner and respondent were showering
together with J, and respondent urinated on petitioner and
laughed about it. After those events, petitioner and J began
spending more nights at the home of petitioner's parents,
which was located near her workplace. Petitioner and
respondent went to a marriage counseling session, but