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T. J. N. v. Schweitzer

Court of Appeals of Oregon

May 15, 2019

T. J. N., Petitioner-Respondent,
v.
Peter Michael SCHWEITZER, Respondent-Appellant.

          Submitted May 17, 2018

          Columbia County Circuit Court 17SK0 02 81; Cathleen B. Callahan, Judge.

          James D. Huffman fled the brief for appellant.

          T. J. N. waived appearance pro se.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Respondent appeals a final permanent stalking protective order (SPO) and judgment entered against him. He argues that the trial court erred because evidence was not admitted at the hearing to establish the allegations in petitioner's SPO petition and that a birthday card he sent to petitioner was not a legally qualifying contact. Held: Respondent's first argument was unpreserved and respondent did not request plain error review, thus, it was rejected. Respondent's second argument was preserved, but, because the SPO was supported by two other contacts described in the petition, respondent's argument provided no basis on which to reverse.

         Affirmed.

         [297 Or.App. 482] ARMSTRONG, P. J.

         Respondent appeals a final permanent stalking protective order (SPO) and judgment entered against him. On appeal, he asserts that the trial court erred in entering the SPO because evidence was not admitted at the hearing to establish the allegations in petitioner's SPO petition. Respondent also argues that a birthday card he sent to petitioner was not a legally qualifying contact for SPO purposes. We reject respondent's first argument because it is unpreserved, and respondent has not requested plain-error review. We reject respondent's second argument, which was preserved, because, even if respondent is correct, the SPO was based on two other contacts that respondent has not challenged on appeal. Accordingly, we affirm.

         The facts relevant to our disposition are undisputed. In February 2017, petitioner, who is respondent's ex-wife, filed an ex parte petition for an SPO that described the qualifying information for a protective order and included supporting documents. Specifically, petitioner described three unwanted contacts: (1) a birthday card that respondent sent to her at her home that she received on January 27, 2017; (2) text messages that respondent sent to her on November 4, 2016; and (3) an email that respondent sent to her on May 19, 2016. A copy of the birthday card was included in the documents attached to the petition, but the texts and email were not. Petitioner also attached to her petition an agreement signed by respondent on November 11, 2016, stating that he would not contact petitioner in person or in writing. Based on that petition, the trial court granted petitioner a temporary SPO and set a hearing on whether to continue the SPO at which respondent was directed to appear. Along with that order, respondent was served with a copy of the petition and attached documents. See ORS 30.866 (setting out procedure to obtain an SPO).

         At the hearing, both petitioner and respondent appeared without attorneys. The trial court began the hearing by apparently treating the petition, along with the documents attached to it, as evidence supporting the SPO. Neither party gave sworn testimony, and no documents were entered as exhibits at the hearing. The trial court questioned both [297 Or.App. 483] petitioner and respondent about the contacts described in petitioner's petition and the no-contact agreement attached to it. During that colloquy with the court, respondent admitted to the contacts; admitted that at various times in the past two years petitioner had told him to not contact her, although they would get in contact again; admitted that he had signed the no-contact agreement after heated text exchanges with petitioner; and admitted that the birthday card violated that agreement. However, he objected to the issuance of an SPO and essentially argued that petitioner could not have been subjectively or objectively alarmed by the birthday card.

         At the hearing, the court granted the permanent SPO to petitioner. In doing so, the court found that

"there's been intentional and knowing and recklessly engaging [sic] in repeated and unwanted contact that has alarmed [petitioner] within the last two years, and that this contact has made [petitioner] fear for her physical safety, the safety of her family, and last but not least, there is [a ...

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