J.V.B. v. Kevin Louis Burns

Petitioner obtained a temporary restraining order

against respondent pursuant to the Family Abuse Prevention

Act (FAPA), ORS 107.700 to 107.735. After a contested hearing,

the trial court continued the restraining order. On

appeal, respondent argues that the order was not supported

by legally sufficient evidence. We agree and reverse.

Neither party requests that we exercise our discretion

to review de novo, nor do we view this case as exceptional

and warranting such review. See ORAP 5.40(8)(c).

Consequently, we are bound by the trial court’s factual findings

if they are supported by any evidence; if the trial court

did not make express factual findings on disputed issues,

we presume that it made implicit findings consistent with

its ultimate judgment. T. K. v. Stutzman, 281 Or App 388,

389, 383 P3d 287 (2016). We review the trial court’s legal

conclusions for legal error. Id.

We state the facts in a manner consistent with our

standard of review. Petitioner and respondent were married

in 2008. At the time of the precipitating incidents in April

2015, the two lived together, along with petitioner’s adult

daughter and daughter’s two children. At around the time

that petitioner sought the restraining order against respondent,

the couple initiated divorce proceedings.

In mid-April, respondent, petitioner, daughter, and

daughter’s children went fishing on respondent’s boat. While

on the boat, petitioner and daughter drank beer. Respondent

smoked marijuana and did not drink. Petitioner and respondent

argued before and during the trip. After daughter

asked respondent to slow the boat down, respondent stopped

it abruptly, causing the children to bump their heads (they

were uninjured) and frightening petitioner and daughter.

After the trip, petitioner and daughter drove the two

children home in one vehicle, while respondent drove home

by himself. After the group returned home, respondent told

daughter outside of petitioner’s presence that she and petitioner

“should be shot” for driving daughter’s children after

drinking alcohol. In response, daughter told respondent to

stay away from her children and called 9-1-1. When police

368 J. V.-B. v. Burns

arrived, respondent was not present. The responding officer

observed that daughter was “really intoxicated” and “very

upset,” and the officer had “a hard time making sense of

the situation.” Neither petitioner nor daughter reported or

showed signs of physical injury, and no arrests were made.

After the fishing trip incident, respondent left the

home for several days. A few days after the incident, daughter

contacted petitioner at work and said that respondent

had been calling and texting her. Petitioner called respondent,

who said that he was going to the house “no matter

what” and that daughter and her children should not be

present when he arrived. Respondent told petitioner that

she and daughter should “find a new place to live.” Petitioner

asked respondent not to go to the house. After the call, petitioner

was upset and cried uncontrollably, and she told her

supervisor that she was afraid of respondent. The supervisor

concluded that petitioner was too upset to drive and

called daughter to pick her up.

Later that day, respondent arrived at the house

while petitioner was home. The screen door was locked;

although respondent could have forced it open, he did not.

Petitioner called 9-1-1. Respondent was not present when

the police arrived, but before he left, he told one or both of

petitioner and daughter that he would “come back” and “get”

them.1 Petitioner reported that she had had a verbal altercation

with respondent and that she was afraid for her safety.

The police informed petitioner that they could not prevent

respondent from returning to the house. Consequently, petitioner,

daughter, and the children left the house and stayed

in a hotel for the next several nights.

Petitioner sought a restraining order. In her petition,

she asserted that, in November 2014, respondent “tried to

hit [her]” and “instead made a hole in the wall,” and that on

“numerous” occasions, respondent had gotten “mad” and “cornered

[her]” so that she “ha[d] no place to go.” She recounted

the fishing trip incident and its aftermath, averring that

respondent had “started pushing * * * daughter around and

1 The court expressly found that respondent made “threatening remarks”

during this incident, but it is not clear from the record whether it was crediting

petitioner’s or daughter’s description of the events.

Cite as 284 Or App 366 (2017) 369

said ‘You and [petitioner] should be shot to death.’ ” With

respect to respondent trying to enter the house a few days

later, petitioner averred that respondent “was coming to get

his guns” and that she “was afraid because [respondent’s]

behavior has been aggressive lately and escalating.”

After an ex parte hearing, the trial court entered a

restraining order, ordered respondent to vacate the home,

and prohibited respondent from purchasing or possessing

firearms. Respondent requested a hearing to contest the

order.

At the time of the contested hearing, petitioner was

no longer residing in the home she had previously shared

with respondent. At the hearing, petitioner testified that,

among other things, she believed that respondent had

returned to the house at some point to retrieve his firearms

because she discovered that “things were moved around” in

the location where she had hidden his firearms. She acknowledged

that the firearms were not actually taken from the

house.2 Petitioner further testified that, after the restraining

order was in place, respondent had sent her blank text

messages, which she interpreted as threats. She also said

that respondent was “stopping on the road where he knew”

daughter would be driving by and respondent “would flip

her off.” Petitioner also recounted one occasion in which she

saw respondent in a grocery store, and, as she “ran out of

the grocery store,” respondent “went after [her] screaming,

‘Run, [petitioner], Run.’ ”

Respondent testified at the hearing. He admitted

that, four years before the hearing, he had thrown a phone

at the wall hard enough to make a dent. He also admitted

that he told daughter that she and petitioner “should be

shot” for driving with the children in the car after drinking.

He stated that it was “a bad choice of words,” but that

he was letting daughter know “that [he] didn’t approve of

them drinking and driving with two little kids in the car.”

He acknowledged that he had stopped the boat at one point

during the fishing trip because petitioner had disregarded

his requests to bring him water. He testified that he and

2 It is not clear from the record at what point petitioner believed that respondent

had been in the house looking for the firearms.

370 J. V.-B. v. Burns

petitioner were getting divorced and that he did not know or

care where she was residing.

The court continued the restraining order. The

court observed that, although the incident four years earlier

where respondent threw the phone was not sufficient

to justify continuing the restraining order, it was evidence

that he “can get mad and do volatile things.” The court

also remarked that “the boat incident was bad” and “made

everybody afraid that they were going to fall over,” and that

petitioner “did in fact stumble and fall.”3 The court credited

respondent’s description of “the drinking” and daughter’s

behavior, and the court agreed that respondent’s statement

that petitioner and her daughter should be “shot” was not an

“immediate threat.” The court nevertheless pointed to testimony

from petitioner and daughter that respondent was

“scary” on that day and that petitioner “had a meltdown at

work over this.” The court also cited respondent’s “threatening

remarks” that he made when he returned to the home

several days later. The court explained that it was upholding

the order in part because petitioner and respondent should

not “have contact,” they “should get a divorce,” and respondent

was partly responsible for the “high level of conflict

going on in th[eir] home.” The court continued the firearm

restriction based on petitioner’s statement that she would

feel threatened if respondent was in possession of firearms.

In order to obtain a restraining order, petitioner

had the burden to show by a preponderance of evidence

(1) that respondent “abused” her in the 180 days preceding

the filing of the petition,4 (2) that respondent presents

an “imminent danger of further abuse” to petitioner, and

3 There is no evidence in the record to support the trial court’s finding that

petitioner fell or stumbled during the fishing trip incident.

4 “Abuse” is defined as “the occurrence of one or more of the following acts

between family or household members”:

“(a) Attempting to cause or intentionally, knowingly or recklessly causing

bodily injury.

“(b) Intentionally, knowingly or recklessly placing another in fear of

imminent bodily injury.

“(c) Causing another to engage in involuntary sexual relations by force

or threat of force.”

ORS 107.705(1).

Cite as 284 Or App 366 (2017) 371

(3) that respondent “represents a credible threat to the physical

safety of the petitioner.” ORS 107.718(1). “A petitioner

must meet each of those requirements to obtain a FAPA

restraining order.” T. K., 281 Or App at 391 (internal quotation

marks omitted). Applying that standard, we conclude

that, even assuming that petitioner proved a qualifying incident

of abuse, there was insufficient evidence to support a

conclusion that respondent presented a “credible threat” to

petitioner’s physical safety.

In continuing the restraining order, the trial court

placed primary emphasis on petitioner’s (and daughter’s)

subjective fear of respondent. Yet, evidence of subjective fear

alone is insufficient to justify issuance of a FAPA restraining

order. Id. Instead, petitioner was required to present evidence

establishing that “respondent’s conduct, in fact, create[

d] an imminent danger of further abuse and a credible

threat to the physical safety of the petitioner.” Id. (emphasis

added; internal quotation marks omitted). In other words,

petitioner had the burden to prove that her ongoing fear

of harm from respondent was objectively reasonable. See

K. L. D. v. Daley, 280 Or App 448, 453, 380 P3d 1226 (2016)

(viewing the evidence supporting a FAPA restraint order

“objectively”); G. M. P. v. Patton, 278 Or App 720, 722, 377

P3d 657 (2016) (same).

Here, the record lacks evidence that respondent

presented a credible threat to petitioner’s physical safety at

the time of the hearing. The record shows that, while petitioner

and respondent cohabited, they had a volatile relationship

punctuated by acts of physical aggression, threats,

and anger by respondent. At the time of the FAPA hearing,

however, the couple had ceased cohabiting. Respondent left

the couple’s home after the fishing trip incident, and the

record reflects only sporadic contact between him and petitioner

since then. Cf. Daley, 280 Or App at 453-54 (restraining

order was not supported by sufficient evidence in part

because there was no evidence of abuse or concerns about

abuse between the time that the petitioner left the respondent’s

home and the FAPA hearing); Patton, 278 Or App at

722-23 (restraining order was not supported by sufficient

evidence—despite the respondent’s “aggressive behavior,

his threat to destroy [the] petitioner’s car,” and his stated

372 J. V.-B. v. Burns

interest in acquiring a firearm—because the respondent’s

behavior was isolated and not persistent); C. M. V. v. Ackley,

261 Or App 491, 495-96, 326 P3d 604 (2014) (restraining

order was not supported by sufficient evidence despite the

parties’ “tumultuous relationship” involving volatile and

sometimes violent episodes because “the volatility that characterized

the parties’ relationship ended once the parties

ceased cohabiting”).

The limited contact between respondent and petitioner

since the fishing trip incident falls short of what would

be required to prove that respondent posed an imminent

threat to petitioner’s safety. We agree with the trial court

that respondent’s comment that petitioner and daughter

“should be shot” for driving the children after drinking alcohol

cannot reasonably be understood, on this record, as an

actual threat of harm, as opposed to a hyperbolic expression

of anger. Respondent’s demand that petitioner and daughter

find a new place to live suggests that respondent wanted

less contact with petitioner, not more. There was nothing

unlawful about respondent’s attempt to return to his home

several days after the fishing trip, and, although petitioner

testified to her belief that respondent wanted to retrieve the

firearms that he kept at the home, nothing in the record

supports a conclusion that respondent actually did so or that

he ever threatened to use them against petitioner.

Although petitioner testified that she perceived the

blank text messages from respondent to be threats, she provided

no evidence demonstrating that those messages could

be reasonably construed as threats of harm (instead of, for

example, attempts to harass or annoy). Further, the incident

in which respondent screamed at petitioner in the grocery

store does not show that respondent had a persistent intent

to seek petitioner out in order to menace and intimidate her.

Cf. Maffey v. Muchka, 244 Or App 308, 314, 261 P3d 26 (2011)

(sufficient evidence supported FAPA restraining order when

the respondent told the petitioner that he would “make her

life a living hell,” expressed a desire to take their child from

the petitioner, and violated an ex parte restraining order by

coming near the petitioner’s safe house on multiple occasions

and having a friend call petitioner); Hubbell v. Sanders, 245

Or App 321, 327, 263 P3d 1096 (2011) (sufficient evidence

Cite as 284 Or App 366 (2017) 373

supported FAPA restraining order when the respondent

had a “dangerous obsession” with the petitioner, including

evidence that he chased petitioner in his car, repeatedly

trespassed on her property, and threatened petitioner after

the ex parte restraining order issued); Lefebvre v. Lefebvre,

165 Or App 297, 301-02, 996 P2d 518 (2000) (sufficient evidence

supported FAPA restraining order when the respondent

engaged in “erratic, intrusive, volatile, and persistent”

behavior and had an “obsess[ion] with the idea of killing

another person”).

For the foregoing reasons, we conclude that the

record lacks sufficient evidence to support issuance of the

FAPA restraining order.

Reversed.