Marriage of Strother v. Strother

883 P.2d 249, 130 Or. App. 624, 1994 Ore. App. LEXIS 1492
CourtCourt of Appeals of Oregon
DecidedOctober 19, 1994
Docket933321; CA A81421
StatusPublished
Cited by18 cases

This text of 883 P.2d 249 (Marriage of Strother v. Strother) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marriage of Strother v. Strother, 883 P.2d 249, 130 Or. App. 624, 1994 Ore. App. LEXIS 1492 (Or. Ct. App. 1994).

Opinion

RIGGS, J.

Father appeals from a restraining order entered pursuant to the Abuse Prevention Act, ORS 107.700 et seq. He argues that the trial court failed to make adequate findings to support the restraining order, that the trial court did not hold a hearing within the proper time and that the trial court imposed an improper condition in the restraining order. We affirm.

Father and mother were divorced in 1988. Mother lives with their two sons in Otis, Oregon. Father had been living in California, but returned to Oregon sometime in 1993. At the time of the incident that gave rise to the restraining order, father was living in a motorhome parked on mother’s property.

Pursuant to their dissolution agreement, father has visitation rights with his sons for six weeks during the summer. On July 23,1993, the boys were with their father in the motorhome when mother attempted to speak with the children. Mother and father got into an argument and then, mother asserts that:

“He [father] was drunk. When I tried to talk with my children, he restrained them in his motorhome. I heard screaming ‘No-No!’ and crying. He left my property, driving while drunk. I later received a collect call from [my son] who had run out to a pay phone while [father] was registering at an R.V. office. He was very scared and ask[ed] what he should do. I called the police and together we found them. [Father] was arrested.”

Mother petitioned the circuit court under the Abuse Prevention Act, requesting that father be restrained from “molesting, interfering with or menacing” mother or their two children. She alleged that father had abused her in the previous 180 days and that she was placed in fear of imminent serious bodily injury. ORS 107.710(1).1 The trial court [627]*627conducted an ex parte hearing pursuant to ORS 107.718(1) 2 and thereafter issued a restraining order that prohibited father from molesting, interfering with or menacing the children and denied father visitation with the children.

Father requested a hearing pursuant to ORS 107.718(6).3 At the same time, he moved to disqualify the judge who had issued the original order. The motion to disqualify was granted and, at the second hearing before a different judge, mother testified that, in February, 1993, father had grabbed her by the hair and tried to pull her through a window. Because of that incident and previous battering by father, she stated that at the time of the incident on July 23, 1993, she was afraid of letting father near her when he started yelling at her. The trial court found that mother was placed in fear of imminent serious bodily injury and modified the restraining order to prohibit father from “interfering” with her. The trial court also modified the order to “[a]llow [father] to have visitation with the children in the [628]*628presence of a counselor with experience in family counseling.” Father now appeals from that order. Both parties appear in this appellate proceeding pro se.

Although neither party addressed the issue, we first must determine whether we have jurisdiction to hear this appeal. The Abuse Prevention Act does not specifically provide for appeals from restraining orders issued pursuant to the act. Father cites ORS 19.010 as a basis for appellate jurisdiction. ORS 19.010(4) provides:

“An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment decree or order entered in an action or suit, unless such appeal is expressly prohibited by the law authorizing such special statutory proceeding.”

The question is whether the procedure established by the Abuse Prevention Act is a “special statutory proceeding.” In State v. Threet, 294 Or 1, 653 P2d 960 (1982), the Oregon Supreme Court traced the history of special statutory proceedings and held that a necessary attribute of a special statutory proceeding under ORS 19.010(4) is that it be a “separate judicial proceeding with clearly defined parties.” 294 Or at 4-6. It is instructive to consider what the court has held not to be a “special statutory proceeding.” In State v. Endsley, 214 Or 537, 542, 331 P2d 338 (1958), the court held that a motion in the nature of coram nobis is not a special statutory proceeding, because it is “simply part of the original criminal proceedings.” In State v. Threet, supra, the court held that an order compelling a witness to testify in front of a grand jury is not a special statutory proceeding, because appeals from such orders could disrupt, or even abort, the grand jury proceedings. 294 Or at 7.

A proceeding under the Abuse Prevention Act involves clearly defined parties, see ORS 107.710, and is not a part of any other judicial proceedings. Accordingly, we hold that a proceeding under the Abuse Prevention Act is a special statutory proceeding and that a restraining order issued under the Act, following the hearing provided for in ORS 107.718(6), is an appealable order.

[629]*629The next issue is our standard of review. The Abuse Prevention Act does not provide for any standard of review and the parties did not brief the issue. However, the Oregon Supreme Court has provided some guidance. In State ex rel Hathaway v. Hart, 300 Or 231, 241, 708 P2d 1137 (1985), the court analogizéd Abuse Prevention Act restraining orders to “traditional injunctions preventing spouses from harassing each other during a pending divorce suit.” Such injunctions are “decrees in a suit in equity” and, therefore, we review de novo. ORS 19.125(3).

Father’s first two assignments of error challenge the basis of the restraining order. He argues that the trial court erred in issuing the restraining order without finding that the statutory prerequisites were satisfied and in issuing the restraining order with respect to the children only.4 We need not reach father’s arguments regarding the original order, because any error was corrected, or at least made moot, by the modified restraining order, which, as discussed below, was properly supported.

Under ORS 107.718

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Bluebook (online)
883 P.2d 249, 130 Or. App. 624, 1994 Ore. App. LEXIS 1492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-strother-v-strother-orctapp-1994.