Holbert v. Noon

260 P.3d 836, 245 Or. App. 328, 2011 Ore. App. LEXIS 1263

• Court: Court of Appeals of Oregon
• Decided: September 8, 2011
• Docket: 091449; A142678
• Status: Published

Opinions

HASELTON, P. J.

Respondent in proceedings under the Family Abuse Prevention Act (FAPA) appeals, challenging the trial court’s continuance of a FAPA restraining order pursuant to ORS 107.718. On appeal, as before the trial court, respondent invokes State ex rel Juv. Dept. v. Dompeling, 171 Or App 692, 17 P3d 535 (2000), and contends that the evidence is insufficient under the standard of imminence that we endorsed in Dompeling to establish that respondent had “abuse[d]” petitioner within 180 days of the filing of her petition for a restraining order, ORS 107.718(1), by “[intentionally, knowingly or recklessly placing [petitioner] in fear of imminent bodily injury,” ORS 107.705(l)(b). We disagree and, accordingly, affirm.

The notice of appeal in this matter was filed after June 4,2009; consequently, and in the absence of any request pursuant to ORAP 5.40(8)(a) that we exercise our discretion to review this matter de novo, we decline to exercise our discretion to engage in such review.¹ ORS 19.415(3)(b). Rather, we review to determine whether “any evidence” establishes the requisites for the issuance of the FAPA restraining order. See State v. B. B., 240 Or App 75, 77, 245 P3d 697 (2010) (reasoning, in the context of a mental commitment case, that, “[p]ursuant to ORS 19.415(3), unless we exercise our discretion to review the matter de novo, we are bound by the trial court’s findings of historical fact that are supported by any evidence in the record; we further review the court’s dispositional conclusions, predicated on those findings, for errors of law”).

Viewed consistently with that standard of review, the record discloses the following: Petitioner and respondent lived together for roughly eight years and have two children, who were ages three and four at the time the FAPA petition was filed in late May 2009. The parties’ relationship was volatile long before the events that precipitated the filing of the FAPA petition. Petitioner recounted two incidents that antedated the 180-day period preceding the filing of the petition:

“Well, one night he pulled a gun while I was holding [one of the children] in my arms, put it in my hand and held it to his head and told me if I had any balls I would shoot him in the head. * * * The cops came out one night, he got on the phone with his buddy and said, ‘We’ll just throw her in the wood chipper.’ ”²

In late March or early April 2009, approximately two months before the FAPA petition was filed, petitioner moved out of the family home in Sweet Home and began living in an apartment in Albany. The parties’ children remained with respondent after petitioner moved to Albany. Respondent told petitioner that, “if I ever take my kids from him that I would not be able to hide, that he would find me and he would kill me.” Indeed, in the six months preceding the filing of the petition for a FAPA restraining order, respondent told petitioner a “numerous amount[ ] of times that he was going to kill me if I took my children and left.”

The question of custody of the children became acutely contentious in late April. Respondent learned that petitioner had been dating another man, White; that White had pending sexual abuse charges against him in Linn County; and that White had been present when the parties’ children had spent a night at petitioner’s residence. Respondent filed a petition for custody of the parties’ children on April 29, and petitioner was served with notice of the custody proceedings on May 2. Over the following two-week period, respondent sent petitioner several text messages that petitioner understood to threaten her with physical harm.

In particular, on May 4, respondent sent text messages to petitioner that read, ‘You fucked up bad this time, I won’t rest and neither will my resources,” and “Let the games begin, it’s all over.” Also on May 4, respondent drove by petitioner’s residence and threatened White’s cousin and, in petitioner’s recounting, said, “[I]f he helped us out in any way, he was gonna kill him and his family.”

On May 12, respondent sent petitioner another text message that read:

“One chance to set it right. No guy friends, no Wal-Mart, no cell phone, no old friends. Think hard if you want your life back and what you’re willing to sacrifice for it. No more games. Last shot or it’s all over and not just us.”

Petitioner understood that message to convey a threat.³

On May 27, petitioner filed for, and the court issued, an ex parte FAPA restraining order. Respondent requested a hearing. At the conclusion of the testimony at the FAPA hearing, respondent’s counsel argued that the evidence was insufficient to establish that respondent had “abused” petitioner within 180 days of the filing of the petition:

“[S]he needs to show that there was a threat to cause imminent bodily injury, and I do not get that out of the text messages, not any of the ones that she’s alleged. And I don’t think that there’s any statutory basis to issue the order.”

In that connection, respondent’s counsel explicitly and exclusively invoked Dompeling “for the proposition that imminent means immediate or close at hand.” The trial court disagreed:

“I think that there! 1 [are] veiled threats in there. Based upon her testimony, which I believe, about violence in the past, I think those threats are legitimate.”

Accordingly, the trial court continued the FAPA restraining order, and this appeal ensued.

ORS 107.718(1) provides that a court may issue a FAPA restraining order on a showing

“[(1)] that the petitioner has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, [(2)] that there is an imminent danger of further abuse to the petitioner!,] and [(3)] that the respondent represents a credible threat to the physical safety of the petitioner or the petitioner’s child!.]”

(Emphasis added.) “Abuse” is defined, in turn, 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) (emphasis added).

On appeal, respondent reiterates his contention before the trial court that the evidence was legally (and factually) insufficient to establish the requisite “imminent” threat constituting “abuse” within the meaning of ORS 107.705(l)(b). Respondent’s argument in that regard reads, in its entirety, as follows:

“There was certainly no evidence at all of any communication from [respondent] that could conceivably place [petitioner] in ‘fear of imminent bodily injury.’ There were some text messages that clearly related to the tensions raised by a prospective custody fight. The context and timing of the text messages were such that any reasonable person would understand them as showing frustration over the ending of a relationship and the beginning of a custody fight. This is especially true in light of the testimony concerning [petitioner’s] post move out visits to [respondent’s] house. It is also true in light of the fact [respondent] was concerned that [petitioner] was living with a person charged with a sex abuse crime.

“[Respondent] cited the case of [Dompeling] to the trial court. The court construed the word ‘imminent’ in this case. It found it to mean a threatened injury that is ‘near at hand, impending or menacingly near.’ 171 Or App at 695. Again, there are no facts in this case that can be said to show, by a preponderance of the evidence, that [respondent] committed abuse by placing [petitioner] in fear of imminent injury.”⁴

(Record citation omitted.)

Thus, as before the trial court, respondent relies exclusively on the majority opinion in Dompeling. Respondent does not offer any analysis as to the content and construction of “imminent” beyond invoking and embracing Dompeling. Much less does respondent suggest that Dompeling, on which his position is predicated, was wrongly decided.

In Dompeling — a juvenile delinquency case, which did not involve the issuance of a FAPA order — we construed the meaning of “imminent” for purposes of the crime of menacing. ORS 163.190. Specifically, we addressed whether the evidence there established that the youth had “by word or conduct * * * intentionally attempted] to place [her mother] in fear of imminent serious physical injury.” Id.

The facts in Dompeling were simple: The youth lived with her mother and became very upset after her mother unplugged the telephone to keep her from using it. 171 Or App at 694. In an escalating confrontation, the youth became more and more angry and told her mother, “I wish you were dead, I um, I could stab you right now.” Id. (internal quotation marks omitted). A minute later — apparently after briefly disengaging — the youth returned and said to her mother, “I thought about doing it while you were in your sleep.” Id. (internal quotation marks omitted). The youth was subsequently adjudicated for engaging in conduct that would have constituted menacing if she had been an adult. Id.

On appeal, the youth’s only argument was that her words did not embody or express the statutorily requisite threat of “imminent serious physical injury.” Id. at 695. As we explained,

“[y]outh reasons that she did not threaten to stab her mother immediately. Rather, youth argues that she only ‘threatened to get a weapon and return, some hours later, and attack her mother after the mother had gone to bed.’ Youth concludes that!,] because ‘the threatened harm was not imminent,’ the state failed to prove its case.”

Id.

In Dompeling, we began by construing the pivotal statutory term “imminent”:

“We look initially to the common understanding of the word. See PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). Imminent is defined as:

“ ‘ready to take place: near at hand: impending <our ~ departure»; usu : hanging threateningly over one’s head: menacingly near <in - jeopardy» <this ~ danger».’

“Webster’s Third New Int’l Dictionary, 1130 (unabridged ed 1993) (capitalization omitted). Understood in its usual sense, the word does not require that the state prove a threat of immediate injury. It is sufficient if the threatened injury is ‘near at hand,’ ‘impending,’ or ‘menacingly near.’ Nothing in the remainder of the statute suggests that the word is not used in its usual sense, and youth does not argue that the constitution requires a more restrictive interpretation. See State v. Garcias, 296 Or 688, 698, 679 P2d 1354 (1984).”

171 Or App at 695.

Applying that definition, we determined that both of the youth’s statements threatened the requisite “imminent” injury. Id. at 695-96. In that regard, we noted, in part, that “[t]he threat of being stabbed within the next few hours is sufficiently near at hand to be imminent.” Id. at 696.⁵

Dompeling is not, of course, a FAPA case. Nor have we ever cited its construction of “imminent,” for purposes of criminal menacing, in the context of a FAPA appeal. However — and whatever the propriety or validity of the crosscutting linkage of concepts of “imminent” in the criminal menacing context with those in the FAPA context — it is apparent that in our FAPA precedents we have endorsed an understanding of “imminent” akin to that expressed in Dompeling. See, e.g., Lefebvre v. Lefebvre, 165 Or App 297, 301-02, 996 P2d 518 (2000) (affirming issuance of FAPA restraining order where the respondent, who had engaged in no actual or overtly threatening physical violence, had, inter alia, engaged in volatile and “obsessive” conduct toward his estranged wife, including screaming obscenities at her in the presence of the parties’ child, rummaging through her drawers and her garbage, making frequent hang-up calls to her house, calling her late at night and describing accurately what she was wearing to bed, and tapping at her window at 1:30 a.m.); see also Cottongim v. Woods, 145 Or App 40, 44, 928 P2d 361 (1996) (affirming issuance of FAPA restraining order where the respondent’s conduct included telling the petitioner, his former girlfriend, that “he could not live without her and, if he were going to die, she should too” and that “he would do anything he could to make [her] life hell” (internal quotation marks omitted; brackets in original)).

Applying that construct to this case, and viewing the evidence and reasonable attendant inferences as we must— that is, in the light most favorable to the trial court’s disposition — we conclude that the trial court did not err in issuing the FAPA restraining order.

Consistently with the trial court’s disposition and its explicit finding that wife was credible in her testimony “about violence in the past,” the record discloses the following salient circumstances:

First — as informative context of the parties’ relationship — respondent had threatened to kill petitioner on numerous occasions antedating the 180-day statutory “window.” In one instance, respondent had told a friend that “[w]e’ll just throw her in the wood chipper.”

Second, within the 180-day period, including after petitioner had left respondent and begun dating another man (White), respondent repeatedly told petitioner that, if she ever tried to take their children, he would find and kill her.

Third, again as context, after petitioner began dating White, and as respondent’s preoccupation and animosity about that relationship heightened, on May 4, 2009, respondent threatened to kill one of White’s relatives and his family if the relative supported petitioner and White in their relationship.

Fourth, also on May 4, respondent sent petitioner text messages saying, “I won’t rest and neither will my resources,” and “Let the games begin, it’s all over.”

Fifth, and finally, on May 12, 2009, and in the totality of the foregoing circumstances, respondent sent petitioner the following text message:

“One chance to set it right. No guy friends, no Wal-Mart, no cell phone, no old friends. Think hard if you want your life back and what you’re willing to sacrifice for it. No more games. Last shot or it’s all over and not just us.”

(Emphasis added.)

Consistently with our prior FAPA decisions addressing and applying the “imminent” requirement — and with Dompeling to the extent that its construction is (as respondent urges) transferable to the FAPA context — those circumstances were legally sufficient to establish that respondent “plac[ed] [petitioner] in fear of imminent bodily injury.” ORS 107.705(l)(b). Specifically, regardless of whether respondent’s conduct toward petitioner antedating the May 12 text message was sufficient, the trial court could properly determine that, in the totality of the circumstances, including respondent’s repeated death threats, that message — and especially its final phrase (“it’s all over and not just us”)— evinced the requisite imminence. See, e.g., Lefebvre, 165 Or App at 301-02 (assessing the respondent’s obsessive conduct in context of the petitioner’s familiarity with the respondent’s protracted obsession nine years before with killing his former employer); cf. Dompeling, 171 Or App at 695 (for purposes of ORS 163.190, state need not “prove a threat of immediate injury. It is sufficient if the threatened injury is ‘near at hand,’ ‘impending,’ or ‘menacingly near.’ ”).

To be sure, under our former regimen of de novo review, we could have determined the matter differently. That is not because we would have, or could have, employed a different construct of “imminent.” Rather, it is because we could have drawn different reasonable inferences from the ominous, arguably ambiguous, final phrase of the May 12 text message.⁶ But that is not the point: Rather, subject to limited exceptions not invoked here, we are no longer in the business of de novo review. Accordingly, we are not free to substitute our inferential assessment of the facts for the trial court’s differing, but nevertheless reasonable, assessment. Thus, we affirm the issuance of the FAPA order.

We do so without addressing the substance of the dissent for the following reasons.

First, the dissent bears no relationship to respondent’s arguments before the trial court and on appeal. Respectfully, and with due appreciation for what is so clearly the product of careful thought by an esteemed colleague, the dissent is entirely a freelance exercise by the author. Its only point of even fleeting contact with respondent’s arguments is Dompeling — which respondent embraces, and the dissent argues must be overruled. See 245 Or App at 354, 361-62 (Armstrong, J., dissenting).

We fully acknowledge the dictates of Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997), in matters of statutory construction. But Stull does not confer, much less mandate, a roving commission to reexamine our precedents that have construed and applied statutory language when no party has disputed those precedents. We recently reiterated that essential principle:

“We understand that, under [Stull], we are ‘responsible for identifying the correct interpretation [of a statute], whether or not asserted by the parties.’ That responsibility arises, however, only when the parties have put the issue of statutory interpretation before us by disagreeing as to what a statute means; in such situations, we are not limited to choosing the better of two erroneous interpretations. Here, the factual and procedural predicates for statutory interpretation simply have not arisen. Defendant loses, not because a correct interpretation of ORS 137.101(1) compels that outcome, but because she has not adequately preserved the argument that would have put the meaning of the statute at issue.”

State v. Shepherd, 236 Or App 157, 163, 236 P3d 738 (2010) (second brackets in Shepherd). So too here.⁷

Second, prudential principles of stare decisis compellingly militate against adopting the dissent’s putative approach as the law of this court. That is so regardless of any abstract merit of the dissent’s deconstruction of the provenance and linkage of common-law assault, the crime of menacing, and the FAPA statutes — matters, again, on which we imply no view. Rather, our transcendent prudential concern arises from the coincidence of three circumstances: (1) The dissent is, necessarily, predicated on its construction of “imminent” as used in the criminal menacing statute, ORS 163.190 — which, in turn, necessitates overrulingDompeling; (2) the state is not a party to this appeal; and (3) petitioner has never appeared on appeal. The upshot is that, if we were to adopt the dissent, we would be overruling our construction of ORS 163.190 in a case in which the state is not a party and cannot seek reconsideration or Supreme Court review — and, indeed, in which no reconsideration or review is ever possible because petitioner has not appeared before us. There may be cases in which, even within the strictures of stare decisis, Dompeling might be revisited — but this is not one of them.

Finally, we offer a practical observation that may, in its own way, partake of stare decisis. Over the years, as evidenced by our case law, trial courts have employed FAPA orders to defuse volatile, sometimes potentially lethal, domestic disputes. There is always the risk — which the present respondent emphasizes — of manipulation of that process, especially in the context of custody disputes. But the protective utility of FAPA orders, albeit imperfect, is patent. If the dissent were adopted, an estranged spouse could tell another, “I’m going to kill you tomorrow,” or “If you get custody, you’re dead” — and no FAPA order could issue.

That would, presumably, be surprising — more likely, shocking — to the trial court judges and attorneys, including family law specialists, who litigate and adjudicate FAPA matters every day in Oregon courtrooms. If we were to adopt the dissent’s approach in this procedural posture, we would be sponsoring a parade of horribles without any potential for prompt Supreme Court review of that result. We decline to do so.

The trial court did not err in issuing the FAPA restraining order.

Affirmed.

1 In his brief on appeal, respondent erroneously identifies our standard of review as de novo, citing Strother and Strother, 130 Or App 624, 883 P2d 249 (1994), rev den, 320 Or 508 (1995), without any reference to ORS 19.415(3)(b) and without any request pursuant to ORAP 5.40(8).

2 Although the timing of those events is imprecise, it appears that the first described event was roughly three years before the FAPA proceeding.

3 At the FAPA hearing, when asked by the court if respondent had caused her any physical injury within the preceding six months, petitioner responded, “He’s gotten close to, but told me he didn’t want to leave bruises on me as evidence.”

4 Respondent filed a five-page appellate brief; petitioner did not appear on appeal.

5 Judge Armstrong filed a lengthy dissent in Dompeling, most of which was predicated on a constitutional analysis never suggested by the appellant. Dompeling, 171 Or App at 696-702 (Armstrong, J., dissenting). The two concluding paragraphs of the dissent took issue with the majority’s application of the plain-meaning construction of “imminent”:

“The conditional nature of youth’s first statement indicates that the utterance, even if a threat, did not satisfy the imminence requirement of ORS 163.190. Because the statement was made in the conditional tense, and thus merely indicated the theoretical possibility of an assault, it was necessarily too indefinite to convey the idea that such an assault was immediately forthcoming or impending. See Webster’s Third New Int’l Dictionary, 1130, 1132 (unabridged ed 1993) (defining ‘imminent’ as ‘ready to take place: near at hand: impending* and defining ‘impend’ as ‘to threaten from near at hand or as in the immediate future’). The majority errs in relying on youth’s use of the words ‘right now’ to conclude otherwise. Because the statement expressed a possibility rather than a purported certainty or even a probability, the words ‘right now’ add no substance to the indefinite statement.

“Similarly, the second statement cannot be construed as indicative of ‘imminent’ danger because it cannot be read to signify that such danger was near at hand or forthcoming in the immediate future; in fact, the second statement has no specific future reference point. Even accepting the majority’s conclusion that an assault that evening while the mother slept would have been imminent, the statement does not indicate that the proposed harm is any more likely to occur that evening than any other day or evening. Phrased as a

description of youth’s past state of mind and lacking any reference to the future, the statement merely indicates that thoughts about hurting mother have crossed youth’s mind at some point in the past. The majority errs in reading into the statement a reference to that very evening.”

Id. at 702-03.

6 As noted, 245 Or App at 332, the trial court found that respondent had communicated “veiled threats” to petitioner. On appeal, respondent, as appellant, does not contend that imposition of a FAPA order in the circumstances presented here would violate Article I, section 8, of the Oregon Constitution.

7 The dissent remonstrates that “respondent is entitled to have us decide his case correctly.” 245 Or App at 363 (Armstrong, J., dissenting) (emphasis in original). With respect, the “case” posited and decided by the dissent bears no resemblance to the “case” presented by respondent. Reasonable minds can, and do, differ about the proper role of appellate judges in divining and reaching the “correct” outcome. And yet, in the end, we are — as we must be — subject to the constraints of the principled functioning of our adversarial system of justice.