642
Submitted November 26, 2019, affirmed January 2, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
TINA MICHELLE ARNOLD,
aka Tina Arnold,
Defendant-Appellant.
Multnomah County Circuit Court
18CN02084; A168230
458 P3d 725
Defendant appeals a judgment of contempt, ORS 33.015(2)(b). Defendant was
found in contempt for violating an Elderly Persons and Persons with Disabilities
Abuse Prevention Act (EPPDAPA) restraining order, ORS 124.005 to 124.040,
that had prohibited defendant from entering or attempting to enter J’s home.
Defendant argues that the trial court erred in denying her motion for judgment
of acquittal and finding that she “willfully” violated the restraining order, as
is required for a finding of contempt under ORS 33.015(2)(b), because the order
did not correctly name her. Held: When a defendant is personally served with a
restraining order and has notice that the order applies to her, a defendant may
not violate the order and then collaterally attack the validity of the order in a
subsequent contempt proceeding. The record contained sufficient evidence from
which the trial court could find that defendant knew that the order applied to her
and restrained her from entering or attempting to enter J’s residence and, thus,
that the violation of the order was done “willfully.” Therefore, the trial court did
not err when it denied defendant’s motion for judgment of acquittal and found
defendant in contempt.
Affirmed.
Kathryn L. Villa-Smith, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Lauren P. Robertson, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Sercombe, Senior Judge.
TOOKEY, P. J.
Affirmed.
Cite as 301 Or App 642 (2020) 643
TOOKEY, P. J.
Defendant appeals a judgment of contempt, ORS
33.015(2)(b).1 Defendant was found in contempt for violating
a restraining order issued under the Elderly Persons and
Persons with Disabilities Abuse Prevention Act (EPPDAPA),
ORS 124.005 to 124.040. Defendant argues that the trial
court erred by denying her motion for judgment of acquittal (MJOA) and concluding that there was sufficient evidence that she “willfully” violated the restraining order, as
required for a finding of contempt under ORS 33.015(2)(b).
Defendant argues that she did not willfully violate the
restraining order because it did not correctly name her.
We hold that, when a defendant is personally served with
a restraining order and has notice that the order applies to
her, a defendant may not violate the order and then collaterally attack the validity of the underlying order in a subsequent contempt proceeding. Here, our review of the record
leads us to conclude that the record contains sufficient evidence from which the trial court could find that defendant
had notice that the order applied to her and restrained her
from entering or attempting to enter the petitioner’s residence, and, thus, the violation of the order was “done willfully.” ORS 33.015(2). Accordingly, we affirm.
We “review the denial of a motion for judgment of
acquittal on punitive contempt to determine whether the
record contains evidence from which a rational trier of fact,
drawing all reasonable inferences in the light most favorable to the state, could find all elements of contempt beyond
a reasonable doubt.” State v. Graham, 251 Or App 217, 218,
284 P3d 515 (2012). In accordance with that standard of
review, we recite the material facts in the light most favorable to the state.
Defendant’s name is Tina Arnold. Defendant was
married to F Ball, but defendant did not legally change her
last name to Ball.
1
ORS 33.015(2) provides, in part:
“ ‘Contempt of court’ means the following acts, done willfully:
“…
“(b) Disobedience of, resistance to or obstruction of the court’s authority,
process, orders or judgments.”
644 State v. Arnold
J is defendant’s father-in-law, and defendant lived
at J’s residence. J knew defendant “[a] little by Arnold but
[mostly by the name] Ball because of the marriage” to J’s
step son, F Ball. In April 2018, J obtained a restraining
order against defendant that prohibited “Tina Ball” from
willfully entering or attempting to enter J’s residence.
See ORS 124.010(1)(b) (an elderly person subject to abuse
within the preceding 180 days may petition for relief if the
abuser presents an immediate and present danger of further abuse). Leahy, a deputy with the Multnomah County
Sheriff’s Office, personally served defendant with that
restraining order at the residence that defendant shared
with J. See ORS 124.022(1) (“A sheriff may serve a restraining order issued under ORS 124.020[.]”). When Leahy served
defendant with the restraining order, he provided defendant
with a copy of the restraining order, the restraining order
petition, and a notice to defendant that she could request a
hearing to contest the order. After serving defendant with
the order, Leahy told defendant that she needed to leave the
residence immediately and defendant complied.
In May 2018, J’s daughter contacted the police
because defendant was at J’s residence. Officer Maul received
the report of the restraining order violation and went to J’s
residence. When Maul arrived, defendant was at the door
asking for help to go inside. Defendant told Maul that “she
had been served the restraining order,” but “she felt it didn’t
apply to her because … [t]hey had used her married name
and … she had not legally changed her name to that name.”
Maul arrested defendant for violating the restraining order.
The state charged defendant with violating the
restraining order based on defendant willfully entering or
attempting to enter J’s residence. The complaint listed defendant in the caption of the complaint as “Tina Michelle Arnold
… also known as Tina Ball.”
At trial, the parties adduced evidence of the historical facts that we outlined above. In addition, the state presented evidence that defendant got mail at J’s “address with
Tina Ball on it,” that defendant was known by others as Tina
Ball, and that, when defendant was served with the restraining order, the attached petition for the restraining order
Cite as 301 Or App 642 (2020) 645
described defendant’s relationship to J as his “daughter-inlaw,” and stated that she lived at J’s residence. Moreover, the
attached petition specifically alleged that “Tina … moved
into [J’s] home and then moved her husband [F] Ball in,” and
defendant admitted that she looked at the order after being
served and recognized J’s name.
Defendant moved for judgment of acquittal, arguing
that the trial court could not find her in contempt because
defendant’s name is “Tina Arnold,” and “Tina Ball was
the person that the restraining order was served on” and
“the person that the restraining order was to be enforced
against[,] … so there’s no actual evidence that Tina Arnold
violated a restraining order.” More specifically, defendant
contended that the trial court could not find her in contempt
for “willfully” violating that order under State v. Nicholson,
282 Or App 51,
383 P3d 977 (2016), because “she was served
with a restraining order that did not have her correct name
on it, so she believed she was allowed to go back there.” The
state responded that the evidence of defendant being served
with the order, the contents of the order, and the evidence
adduced at trial were sufficient for the court to find that
defendant knew that the order was intended to apply to her
and, thus, defendant willfully violated the order.
The trial court subsequently made the following
findings:
“[F]irst I note that the charging instrument is this: ‘Tina
Michelle Arnold, … also known as Tina Ball.’
“So, the evidence … shows that [defendant] was served
with the restraining order. She testified that she was served
and that she had to leave right away, and so, she knew that
she had this restraining order.
“And, the person who has the restraining order, [J],
testified that he’d known her as Ms. Ball. And, I find [J’s
daughter’s] testimony that [defendant] also receives mail in
the name of Ball to be credible. In addition, she’s married
to a Mr. Ball.
“So, I do find that there’s a willful violation of the
restraining order and do find that [defendant] is in contempt of court for violating that order.”
646 State v. Arnold
Accordingly, the trial court denied defendant’s MJOA and
entered a judgment finding defendant in contempt.
On appeal, defendant argues that the trial court
erred when it entered a judgment of contempt because
(1) the state “failed to present evidence that the restraining order applied to defendant at all, much less that the
order prohibited defendant from going to the residence” and,
(2) “the state did not prove that defendant willfully violated the order.” (Emphases in defendant’s brief.)2 The state
responds that (1) the record is sufficient to support a finding that the restraining order applied to defendant and,
(2) “[d]efendant’s knowledge of the restraining order permitted the trial court to infer that defendant willfully violated
the order.” We agree with the state.
“To prove contempt, the state must establish the
existence of a valid court order, the defendant’s knowledge of
that order, and the defendant’s willful noncompliance with
that order.” State v. Beleke, 287 Or App 417, 421,
403 P3d
481, rev den,
362 Or 208 (2017). However, “in the context of
punitive contempt, the validity of the order is not dispositive” and, if the defendant is aware of the requirements of
that order and willfully violates it, a trial court does not err
in denying a defendant’s motion for judgment of acquittal.
Graham,
251 Or App at 221 (a “court may hold the noncomplying party in contempt even if it later appears that the
original order or decree was … erroneous” (internal quotation marks omitted)). As we have discussed, “ ‘willfully’ for
purposes of ORS 33.015(2) meant, and means, intentionally
and with knowledge that the act or omission was forbidden
conduct.” Nicholson,
282 Or App at 62 (internal quotation
marks and brackets omitted). But a “defendant who acts
based on a good faith belief that a judicial order has been
dismissed cannot be deemed to have acted with knowledge
that it was forbidden conduct.”
Id. (internal quotation marks
omitted).
Defendant points to Nicholson as controlling precedent under these circumstances, but defendant’s reliance
2
Although defendant assigns error to the trial court finding defendant in
contempt, we understand her to be assigning error to the trial court’s denial of
her MJOA.
Cite as 301 Or App 642 (2020) 647
on Nicholson is misplaced. In that case, there was no factual issue concerning the defendant’s “contemporaneous,
good faith belief” that the FAPA order had been dismissed.
Id. at 62. Rather, the issue was whether, after the trial
court explicitly credited the defendant’s testimony that her
estranged husband had told the defendant that he was at
the courthouse getting the FAPA order dismissed and found
that the defendant “actually, and in good faith, believed that
the order had been set aside,” the defendant could be found
in contempt.3 Id. at 55-56. On appeal, in light of the trial
court’s express finding that the defendant had a “contemporaneous, good faith belief” that the FAPA order had been
dismissed, we concluded that the trial court erred in finding
the defendant in contempt, because “[a] defendant who acts
based on a good faith belief that a judicial order has been
dismissed cannot be deemed to have acted with knowledge
that it was forbidden conduct,” i.e., “ ‘willfully’ for purposes
of ORS 33.015(2)(b).” Id. at 62.
Here, by contrast, the issue is whether there was
sufficient evidence for the trial court to find that defendant
knew that the order applied to her when it was served.
Defendant contends that she had a good faith belief that
the order did not apply to her because it listed her name as
Tina Ball. For the following reasons, we reject defendant’s
argument that, although the sheriff personally served
defendant with the restraining order where she resided, “a
reasonable person would not understand that a court’s order
applies to him or her unless it lists his or her legal name,”
and, thus, defendant could not have willfully violated the
order.
First, as we have explained, the rules for personal
service under ORCP 7 “do not require an actual in-hand
delivery, or a face-to-face encounter with an acknowledgement of identity from the person to be served,” because “[t]o
so require would allow a defendant to defeat service simply by refusing to identify himself or accept the papers” and
“[i]t would make personal service a degrading game of wiles
and tricks, rather than a procedure for insuring that a
3
The essential question in Nicholson was one of statutory interpretation, not
sufficiency of the evidence.
648 State v. Arnold
defendant receive actual notice of the subject and pendency
of an action.” Business & Prof. Adj. Co. v. Baker, 62 Or App
237, 240-41,
659 P2d 1025 (1983); see ORCP 9 A (“every
order … and every … notice … shall be served on each
of the parties”). And, even when a defendant is not served in
compliance with ORCP 7, we determine whether the service
was adequate to provide a defendant notice of the court’s
order by “examining the totality of the circumstances.” Hoek
v. Schwabe, Williamson & Wyatt,
149 Or App 607, 617,
945
P2d 534 (1997).
Under the circumstances of this case, involving a
household dispute among cohabiting family members, there
was ample evidence to support the trial court’s finding that
defendant knew that the restraining order applied to her.
Defendant was personally served at her home with the
restraining order, and defendant complied with the officer’s
instruction that she needed to leave the residence immediately. See Business & Prof. Adj. Co., 62 Or App at 239-40 (concluding that personal service was adequate, notwithstanding the lack of a face-to-face encounter between the process
server and the defendant, when the former recognized the
latter’s voice through a closed door, announced to the defendant standing behind the door that he was being served, and
wedged the papers securely in the area of the door); State v.
Tryon,
242 Or App 51, 53-59,
255 P3d 498 (2011) (trial court
did not err in admitting the sheriff’s unsworn return of service of the EPPDAPA restraining order on respondent to
establish defendant’s knowledge of the restraining order in
a contempt proceeding). Moreover, there was testimony from
J and J’s daughter that defendant was also known as Tina
Ball and received mail at J’s residence under that name.
See Nicholson,
282 Or App at 56 (observing that “if the trial
court discredited defendant’s testimony that she believed
that the order was no longer in effect, then that alone would
have established willfulness”). Additionally, defendant was
married to J’s son, [F] Ball, and the petition attached to the
order specifically described defendant’s relationship to J and
alleged that “Tina … moved in [J’s] home and then moved
her husband [F] Ball in.” Therefore, there was sufficient evidence for the trial court to find that defendant knew that the
order applied to her.
Cite as
301 Or App 642 (2020) 649
We turn to the second reason that we reject defendant’s argument. To the extent that defendant intends to
challenge the validity of the underlying order, it is an impermissible collateral attack.
“As a general rule, a contemnor may not attack the
underlying [order] that he or she violated in an appeal of a
judgment of contempt, although there are exceptions to that
rule.” Barrett and Barrett, 320 Or 372, 380,
886 P2d 1 (1994).
The Supreme Court stated that general rule as follows:
“If a court has jurisdiction over the parties and the subject matter, and its order or decree is not complied with,
that court may hold the noncomplying party in contempt
even if it later appears that the original order or decree
was either erroneous or in excess of the court’s authority.
The integrity of the judicial process demands compliance
with court orders until such time as they are altered by
orderly appellate review. Litigants are not entitled to sit
in judgment on their own cases, and they must follow the
appropriate channels for review of decisions they believe to
be invalid. Unless and until an invalid order is set aside, it
must be obeyed.”
State ex rel Mix v. Newland, 277 Or 191, 200,
560 P2d 255
(1977).4 The exception to that general rule applies when
“there has been no other opportunity to raise the issue.”
Id.; see also State v. Crenshaw,
307 Or 160, 168,
764 P2d
1372 (1988) (holding “that a challenge to the merits of the
underlying order may be made in any appeal from an order
of contempt where, for constitutional, statutory or practical
reasons, no other remedy, either by appeal or mandamus,
was available”).
In this case, as explained below, that exception does
not apply because defendant had an adequate opportunity
to contest the validity of the underlying order and have “the
legal efficacy of the order” examined “in a meaningful way.”
Id. at 165.
4
The trial court’s exercise of jurisdiction over defendant or the subject matter in this case has never been challenged by defendant. See ORS 124.010(1)(d)
(“The circuit court has jurisdiction over all proceedings under ORS 124.005 to
124.040.”).
650 State v. Arnold
“A restraining order shall remain in effect until
the order expires or is terminated by court order.” ORS
124.030(2)(a). Under ORS 124.020, if the petitioner is
granted a restraining order at an ex parte hearing, the order
is valid “for a period of one year” and “[t]he county sheriff
shall serve the respondent personally unless the petitioner
… elects to have the respondent served personally by a private party or by a peace officer who is called to the scene of
a domestic disturbance at which the respondent is present.”
Under ORS 124.020(9)(a), “[w]ithin 30 days after a restraining order is served on the respondent,” the respondent “may
request a court hearing on any relief granted” by submitting
a hearing request form. When the respondent “requests a
hearing pursuant to ORS 124.020(9),” the “court shall hold
a hearing within 21 days following the request … and may
cancel or change any order issued under ORS 124.020.” ORS
124.015(1). Thus, defendant had a statutory right to request
a hearing to contest the validity of the underlying order,
and, thus, the opportunity to obtain meaningful relief and
to protect her rights.
Furthermore, if defendant was denied relief at that
hearing, she also had the opportunity to appeal the final
order. See ORS 19.205(5) (concerning appeals from special
statutory proceedings); Crenshaw, 307 Or at 166 (“In cases of
indirect contempt, a direct appeal normally is available and,
where the harm that will result from the finding of contempt
is apparent and an appeal is either unavailable or would
come too late to avert the harm caused by the challenged
order, a discretionary writ of mandamus may be sought.”);
Smith v. Baker,
296 Or App 96, 97-98,
437 P3d 1213 (2019)
(appeal of the continuation of an EPPDAPA order from a
hearing held at the respondent’s request pursuant to ORS
124.020(9) and ORS 124.015).
Here, defendant testified that she reviewed the order
and noticed that it listed her name as Tina Ball instead of Tina
Arnold. The front of the order states prominently, “TO THE
RESPONDENT: VIOLATION OF THIS RESTRAINING ORDER MAY RESULT IN YOUR ARREST AND
IN OTHER PENALTIES. REVIEW THIS ORDER
CAREFULLY. EACH PROVISION MUST BE OBEYED.
Cite as 301 Or App 642 (2020) 651
SEE YOUR RIGHTS TO A HEARING.” (Uppercase and
boldface in original.) Furthermore, a “notice to respondent/
request for hearing” form was attached to the order that
was served on defendant. That form explains:
“THIS FORM MUST BE ATTACHED TO ALL
COPIES OF THE RESTRAINING ORDER
“TO RESPONDENT: A Temporary Restraining
Order has been issued by the court which affects
your rights and is now in effect. THIS ORDER
BECOMES EFFECTIVE IMMEDIATELY. If you wish
to contest the continuation of this Order, you must
complete this form and mail or deliver it to [the trial
court.]
“…
“Requests for hearing must be filed within 30 days
after you receive the order. … The hearing will be held
within 21 days. At the hearing a judge will decide whether
the order should be canceled or changed. The only purpose
of this hearing will be to determine if the terms of the order
should be canceled, changed, or extended.
“Keep in mind this order remains in effect until the
court that has issued the order amends or dismisses, or
until it expires.”
(Uppercase, boldface, underscoring, and emphasis in original).
Because the evidence supports the trial court’s finding that defendant was served with the order and knew that
the order applied to her, defendant was required to comply
with the order and follow the process that she was given
notice of to raise her challenge to the validity of the order.
What defendant could not do is fail to follow the appropriate channels to challenge the order that she believed was
invalid, violate the order, and then collaterally attack the
validity of the underlying order in a contempt proceeding.
That is not how our judicial process functions, and
accepting defendant’s argument would invite “a degrading
game of wiles and tricks” by respondents who are accused
of contempt of court for violating the underlying restraining
order. Business & Prof. Adj. Co., 62 Or App at 240.
In sum, defendant did precisely what Newland
admonishes against—there was sufficient evidence that
652 State v. Arnold
defendant knew that the order applied to her, and there was
also sufficient evidence that she unilaterally “sat in judgment of [her] own case” and willfully went to J’s home in
violation of the order. Barrett, 320 Or at 382. Defendant had
the opportunity to contest the order after it was served and
did not do so. Because evidence in the record supports a reasonable inference that defendant knew that the restraining
order applied to her and that defendant willfully violated
the restraining order, the trial court did not err when it
denied defendant’s MJOA.
Affirmed.
