J. S. E. v. Cubic

                                       826

          Argued and submitted January 28, affirmed August 12, 2020


                               J. S. E.,
                       Petitioner-Respondent,
                                  v.
                       Robert James CUBIC,
                       Respondent-Appellant.
                   Josephine County Circuit Court
                        14CV0077; A169863
                                    

    This is an appeal from an order denying respondent’s motion to terminate a
stalking protective order (SPO) to which he had stipulated four and a half years
earlier. Respondent assigns error to that denial, arguing that (1) he met his burden by the passage of time without SPO violations and his declaration that he
desired no contact with petitioner and (2) petitioner’s failure to offer any evidence
at the hearing required dismissal. Held: The trial court did not err in denying
respondent’s motion to terminate the SPO. Respondent did not carry his burden
because he did not address the concerns that underlay the issuance of the SPO
or why a four-year period of compliance with a legal mandate would sufficiently
abate those concerns.
    Affirmed.



    Pat Wolke, Judge.
   Edward H. Talmadge argued the cause for appellant.
Also on the brief was Edward H. Talmadge P.C.
    No appearance for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
    MOONEY, J.
    Affirmed.
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 (2020)                                              827

           MOONEY, J.
         This is an appeal from an order denying respondent’s1 motion to terminate a stalking protective order
(SPO) to which he had stipulated four and one-half years
earlier. Respondent assigns error to that denial, arguing
(1) that he met his burden by the passage of time without
SPO violations and his declaration that he desired no contact with petitioner and (2) that petitioner’s failure to offer
any evidence at the hearing required dismissal. We conclude
that respondent’s argument improperly shifts the burden of
proof on his motion to terminate from himself to petitioner,
and that, when correctly viewed, the trial court permissibly
determined that respondent did not carry his burden. We
affirm.
         As an initial matter, respondent contends that we
should conduct de novo review. However, while we have
discretion to do so, we generally reserve that discretion
for “exceptional cases.” ORS 19.415(3)(b); ORAP 5.40(8)(c);
Carter v. Bowman, 

, 592 n 2, 

,
rev den, 

 (2012). This is not such a case. We review
for errors of law. Carter, 

. We presume that
the circuit court found facts consistent with its judgment, see
Lefebvre v. Lefebvre, 

, 302 n 2, 

(2000), and we are bound by those implicit factual findings if
any evidence in the record supports them, Maffey v. Muchka,

, 

 (2011). We state the following pertinent facts consistent with those standards.
         In 2014, petitioner sought an SPO against respondent by filing a stalking complaint with a law enforcement
officer pursuant to ORS 163.744. A stalking citation was
issued prohibiting contact and notifying respondent of a
hearing date. Both parties appeared for the hearing and
represented themselves. Petitioner testified about her relationship with respondent, several threats she had received
from respondent and his family, and several instances of
damage to her house, including a “smashed” bedroom window, graffiti, and being “egg[ed].” Petitioner testified that
    1
      In stalking protective order cases, we refer to the parties by their status
in the circuit court. Edwards v. Biehler, 

, 273 n 1, 

(2005).
828                                             J. S. E. v. Cubic

those threats and incidents prompted her to move out of
that house but that the threats continued after she moved.
The court adjourned at the close of petitioner’s testimony,
continuing the rest of the hearing to another date. In the
meantime, the parties retained lawyers through whom they
appeared at the next hearing date. At that time, the parties
stipulated through counsel to entry of a final SPO. No additional evidence was offered or received. The court accepted
the stipulation and issued a final stalking protective order
and judgment of unlimited duration.
        In 2016, respondent moved to terminate the SPO
but withdrew the motion four months later because he was
unable to serve petitioner. In 2018, respondent again filed
a motion to terminate the SPO along with a declaration, in
which he averred:
      “1. I, [respondent], am the defendant in the above captioned matter.
     “2. The criteria for the ORS 163.738 of the stalking
  order against me no longer exists.
     “3. I have not seen or had contact with the petitioner in
  this matter, …, [subsequent] to the stalking order being
  put in place.
     “4. I have no desire to meet her or see the petitioner
  ever again.
     “5. I personally do not intend to contact the petitioner
  in any fashion.
      “6. There is an issue of a judgement [sic] against [petitioner] related to my late father’s estate.
     “7. If necessary, any contact with [petitioner] would be
  through attorneys and not by me.
     “8. Therefore, I request that the stalking order put in
  place be removed.”
        A hearing was held on respondent’s motion and the
court heard counsel’s oral arguments. No testimony or other
evidence was offered or received. Counsel for petitioner
argued that the SPO was issued based on a stipulation
from respondent and that petitioner was “still terrified” of
respondent. Counsel for respondent argued that the family
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dispute that led to the SPO “ha[d] ended” and that respondent did not know where petitioner lived, as demonstrated
by his difficulty serving her with motions to terminate in
2016 and 2018. Counsel for petitioner argued that respondent was unable to locate her “because she lives in fear, she
hides from him.” The court denied the motion to terminate
the SPO. Respondent appeals.
        The issue on a motion to terminate an SPO is
whether, in view of all of the circumstances, the criteria for
issuing the order are no longer present. Edwards v. Biehler,

, 

 (2005). Here, the SPO
was issued under ORS 163.738(2)(a)(b), which provides that
the court may enter a
   “stalking protective order if the court finds by a preponderance of the evidence that:
      “(i) The person intentionally, knowingly or recklessly
   engages in repeated and unwanted contact with the other
   person or a member of that person’s immediate family or
   household thereby alarming or coercing the other person;
      “(ii) It is objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact; and
      “(iii) The repeated and unwanted contact causes the
   victim reasonable apprehension regarding the personal
   safety of the victim or a member of the victim’s immediate
   family or household.”
         The first two criteria for issuance of an SPO under
ORS 163.738—“(1) repeated and unwanted contact (2) that
results in objectively reasonable coercion or alarm—‘will be
absent if the respondent has complied with the order prior
to seeking termination.’ ” Carter, 

 (quoting
Edwards, 

 n 5). Therefore, in such a case,
a court presented with a motion to terminate must “focus
primarily on the third criterion: whether the petitioner continues to suffer ‘reasonable apprehension’ regarding his or
her personal safety … due to the past acts of the respondent.” 

 (brackets omitted). The court’s function “is not to
re-evaluate the correctness of the original order or to determine whether the circumstances since the issuance of the
original SPO would be sufficient to justify the issuance of a
830                                           J. S. E. v. Cubic

new SPO.” Benaman v. Andrews, 

, 

 (2007) (emphasis in original).
         Further, it is a respondent’s burden to demonstrate
“that the concerns that underlay the issuance of the original SPO have sufficiently abated that the order should be
set aside.” 

 To satisfy that burden, a “respondent must
show that the petitioner no longer subjectively fears for his
or her personal safety or that ‘the circumstances since the
issuance of the SPO are such that a person would not continue to have reasonable apprehension for his or her safety
based on the conduct that gave rise to the issuance of the
SPO.’ ” Carter, 

 (quoting Benaman, 

) (brackets omitted)). The court considers “all of
the parties’ history and circumstances, before and after the
issuance of the SPO.” 

         We do not understand respondent to argue that,
based on the evidence he presented, the trial court was
required to find that petitioner does not subjectively fear for
her safety. Instead, the issue is whether, on this record, the
trial court had no choice but to conclude that respondent carried his burden to establish that the concerns that resulted
in the issuance of the original SPO have sufficiently abated
such that the order should now be set aside.
         Respondent contends that, because petitioner did
not present any evidence to contradict his declaration that
he had not seen petitioner since the issuance of the SPO,
and that he does not desire further contact with her, he satisfied his burden of proof and the SPO should have been
terminated. That argument, however, does not address his
burden to demonstrate that petitioner does not continue to
have reasonable apprehension for her safety based on the
conduct that gave rise to the issuance of the SPO in the first
place. See 

 He argues that the burden shifts to petitioner
because a few years have passed during which he has not
violated the SPO and because he now declares he will have
no further contact with petitioner.
         As in Edwards, we look to the statutory framework
for the Family Abuse and Prevention Act (FAPA) to better
understand the framework for SPOs because FAPA restraining orders and SPOs serve similar purposes through the use
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of restraining orders. In addition to the similarities, there
are important durational differences that, when understood
correctly, provide insight into respondent’s burden of proof
on his motion to terminate the SPO. FAPA
   “is related to [the] stalking statutes in that both are directed
   at similar harms and address those harms through entry
   of orders—SPOs in the case of stalking and restraining
   orders in the case of FAPA—requiring the respondent
   to, among other things, avoid contact with the petitioner.
   FAPA permits a court to issue a restraining order against
   domestic abusers when the victim has been abused and is
   in imminent danger of further abuse by the respondent.
   ORS 107.710-107.718.”
Edwards, 

.
         A restraining order issued under FAPA is effective
for one year at most. ORS 107.718(3). An SPO, on the other
hand, becomes permanent once a court has determined that
the statutory criteria are met. ORS 30.866; ORS 163.738.
A FAPA restraining order may be continued for more than
a year “only if the court finds that ‘a person in the petitioner’s situation would reasonably fear further acts of abuse by
the respondent’ based on (at minimum) ‘a sworn ex parte
petition alleging facts supporting the required finding’; the
respondent may request a hearing to contest the renewal.
ORS 107.725.” Edwards, 

. Importantly,
FAPA places the burden on the petitioner (as the moving
party) to produce evidence in support of continuing the
restraining order beyond a year, while the burden for termination of a permanent SPO resides with the respondent
(as the moving party). The mechanics of FAPA work to automatically terminate FAPA restraining orders after one year
unless the petitioner can prove that it should continue. The
mechanics of SPOs work in the other direction so that the
SPO remains in effect unless the respondent can prove that it
should terminate. In other words, respondent was required
to establish that all three criteria for issuing the SPO were
no longer present.
         With that understanding of the burden of proof in
mind and viewing the evidence in the light most favorable
to the circuit court’s conclusions, we conclude that the trial
832                                          J. S. E. v. Cubic

court permissibly determined that respondent did not carry
his burden. Respondent simply presented evidence that he
did not violate the SPO, but his declaration did not address
the concerns that underlay the issuance of the SPO or why a
four-year period of compliance with a legal mandate would
sufficiently abate those concerns—concerns to which he stipulated. He did not attempt to prove that petitioner’s subjective fear was not objectively reasonable. Nor did he attempt
to explain how the passage of four years would have changed
petitioner’s understanding of the threat that he posed to
her. Instead of offering evidence, for example, that respondent had moved to another state or had completed counseling or anger management therapy or that prior relationship
or family dynamics had changed in such a way as to make
continued fear less objectively reasonable, he attempted to
carry his burden—not by meeting it—but by placing it onto
petitioner’s shoulders. The circuit court did not err in denying respondent’s motion to terminate the SPO.
        Affirmed.