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L. M. B. v. Cohn

Court of Appeals of Oregon

August 7, 2019

L. M. B., Petitioner-Respondent,
v.
Benjamin S. COHN, Respondent-Appellant. 298 Or.App. 782

          Submitted May 3, 2019.

          Washington County Circuit Court 18SK02343 Theodore E. Sims, Judge.

          Benjamin Cohn fled the brief pro se.

          Leanna Brennan waived appearance pro se.

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

         Case 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.

         Reversed.

         [298 Or.App. 783]TOOKEY, J.

         Respondent appeals from a final stalking protective order (SPO) and judgment under ORS 30.866.[1] 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.

         Petitioner 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 respondent.

         At a 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 petitioner.

         Other 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."

         On 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.[2]

         [298 Or.App. 785] To obtain an SPO against a person under ORS 30.866(1), a petitioner must demonstrate the following ...


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