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M. A. B. v. Buell

Court of Appeals of Oregon

March 6, 2019

M. A. B., Petitioner-Respondent,
v.
Anthony Nicholis BUELL, Respondent-Appellant.

          Argued and submitted December 20, 2018

          Washington County Circuit Court 17PO09823 Kirsten E. Thompson, Judge.

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

          No appearance for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case 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.

         Reversed.

         [296 Or.App. 381] HADLOCK, P. J.

         Petitioner 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.

         We 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.

         Petitioner 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.

         The 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 [her]."

         In June 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."

         The 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 ...


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