L. M. B., Petitioner-Respondent,
Benjamin S. COHN, Respondent-Appellant. 298 Or.App. 782
Submitted May 3, 2019.
Washington County Circuit Court 18SK02343 Theodore E. Sims,
Benjamin Cohn fled the brief pro se.
Brennan waived appearance pro se.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Respondent appeals from a final stalking protective
order (SPO) and judgment under ORS 30.866. Respondent
contends that the trial court erred when it entered the final
SPO because petitioner did not testify or offer any evidence
against respondent to support the entry of the SPO.
Held: In the absence of any evidence in the record
from petitioner, the evidence was insufficient to support the
trial court's entry of the SPO.
Or.App. 783]TOOKEY, J.
appeals from a final stalking protective order (SPO) and
judgment under ORS 30.866. Respondent contends that the trial
court erred when it entered the final SPO because petitioner
did not testify or offer any evidence against respondent to
support the entry of the SPO. Petitioner waived appearance on
appeal and, because respondent does not request de
novo review, we "review the facts for any evidence
and the legal conclusions based on those facts for errors of
law." Travis v. Strubel, 238 Or.App. 254, 256,
242 P.3d 690 (2010). We conclude that, in the absence of any
evidence in this record from petitioner, the evidence is
insufficient to support the trial court's entry of the
SPO. Accordingly, we reverse.
and respondent were acquaintances. Petitioner filed a
petition in the trial court for an SPO against respondent,
alleging that she had been subjected to repeated and unwanted
contacts by respondent. More specifically, petitioner alleged
that respondent had knocked on her apartment door on multiple
occasions and left flowers, gifts, and notes on her door with
words of praise about her. Petitioner also alleged that
respondent had left similar items on the windshield of
petitioner's car and that respondent had waited around
petitioner's apartment and workplace to contact her.
According to the allegations in the petition, petitioner
thought that the gifts were "disturbing and
invasive" and she was also "alarmed" by
respondent's presence at her apartment "because it
gave him the opportunity to become violent." After an
ex parte hearing, at which respondent did not
appear, the trial court entered a temporary SPO against
subsequent hearing to determine whether the temporary SPO
should be continued for an indefinite period, petitioner and
respondent both appeared without counsel. The trial court
began by swearing in the parties and stating, "So, from
the first appearance, I pretty well have what [petitioner] is
saying is going on, so [respondent] tell me your [298 Or.App.
784] side of this." Respondent admitted that he had left
several gifts for petitioner at her home and that he had
gotten coffee at petitioner's workplace, but respondent
argued that the allegations in the petition were duplicative,
"misleading, assumptions, and padded." Respondent
also testified that petitioner's alleged apprehension
about his potential to commit violent or aggressive acts was
unfounded because respondent had "no history of any kind
of violence." For his part, respondent stated that
petitioner had wanted the gifts and that this was really just
a matter of miscommunication between respondent and
than petitioner stating, during respondent's testimony,
that she was "not comfortable" with telling
respondent the date that she moved in to her apartment,
petitioner did not testify or offer any evidence in support
of the SPO. After respondent testified for a period, the
trial court stated, "I've heard enough," and it
ruled that the SPO would become final and it continued the
SPO for an indefinite period. When respondent attempted to
address the trial court after its ruling, the court told
respondent, "No, we're done here."
appeal, respondent contends, among other things, that there
is insufficient evidence in the record to support the SPO
because the record is devoid of any evidence that those
contacts caused petitioner apprehension for her personal
safety or the safety of a member of her immediate family or
household. For his argument, respondent relies on
Falkenstein v. Falkenstein, 236 Or.App. 445, 449,
236 P.3d 798 (2010), in which we held that, unless a
respondent admits to a petitioner's allegations, the
factual allegations made in an SPO petition are not evidence.
We agree with respondent that, on this record, the trial
court erred when it ruled that the evidence was sufficient to
continue the SPO for an indefinite period.
Or.App. 785] To obtain an SPO against a person under ORS
30.866(1), a petitioner must demonstrate the following ...