M. A. B. v. Buell

                                       98

         Submitted on remand October 19, affirmed December 16, 2020


                            M. A. B.,
                     Petitioner-Respondent,
                                v.
                    Anthony Nicholis BUELL,
                      Respondent-Appellant.
                 Washington County Circuit Court
                      17PO09823; A166273
                                  

     This case is on remand from the Supreme Court. Buell v. Buell, 

,

 (2020) (Buell II). In Buell v. Buell, 

, 

(2019) (Buell I), the Court of Appeals reversed the trial court’s continuation of a
Family Abuse Prevention Act (FAPA) protective order, concluding that petitioner
failed to prove that respondent presented an “imminent danger of further abuse”
to petitioner. ORS 107.718(1). In Buell II, the Supreme Court reversed, concluding
that petitioner carried her burden as to that element under ORS 107.718(1). The
Supreme Court remanded the case for the Court of Appeals to address, in the first
instance, whether the trial court erred by concluding that respondent presented
“a credible threat to petitioner’s physical safety.” Held: The trial court did not
err. Petitioner presented sufficient evidence about the credibility of respondent’s
threat to permit the court to continue the FAPA order.
    Affirmed.



  On remand from the Oregon Supreme Court, Buell v.
Buell, 

, 

 (2020).
    Kirsten E. Thompson, Judge.
    George W. Kelly filed the brief for appellant.
    No appearance for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
    MOONEY, J.
    Affirmed.
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         MOONEY, J.

          This Family Abuse Prevention Act (FAPA) case
comes to us on remand from the Supreme Court. Buell v.
Buell, 

, 

 (2020) (Buell II). Petitioner
obtained a FAPA protective order against respondent, which
respondent contested. The trial court continued the order
following a full evidentiary hearing. Respondent appealed,
arguing that the trial court erred in continuing the order
because: (1) he did not present an “imminent danger of further abuse” to petitioner; and (2) he did not present “a credible threat to petitioner’s physical safety.” ORS 107.718(1).
We agreed with respondent’s first argument—that the evidence was insufficient to support the court’s conclusion that
he presented an imminent danger of further abuse to petitioner. Buell v. Buell, 

, 

(2019) (Buell I). Because that argument was dispositive,
we did not reach the second argument. Petitioner appealed
and the Supreme Court reversed our decision on respondent’s first argument, remanding the case for us to address
respondent’s second argument. Buell II, 

. For
the reasons set out below, we affirm the trial court’s order
continuing the FAPA protective order.

         The facts of this case have been recited at length
in both Buell I and Buell II. Thus, we provide only a brief
factual and procedural summary, borrowing from those two
opinions. In Buell II, the Supreme Court summarized the
key underlying facts:
      “Respondent and petitioner were married in 2014.
   Together, they have a son, J, who was born in 2015. During
   the marriage, respondent suffered from depression, for
   which he took medication. He sometimes also drank to
   excess. Petitioner testified that respondent raped her twice:
   once in March 2017 and once in May 2017. The incident in
   May included respondent dragging petitioner away from J
   while petitioner was breast feeding. In June 2017, petitioner
   expressed her unhappiness with the marriage. Respondent
   replied that, if petitioner left or divorced him, he would kill
   her and take J.”

.
100                                              M. A. B. v. Buell

         In Buell I, we described the events surrounding the
parties’ separation:
      “In June 2017, petitioner told respondent that she was
  very unhappy in their marriage. Respondent told petitioner
  that he would kill her and take J if she ever left or divorced
  him. Respondent seemed ‘very relaxed’ and, had petitioner
  not looked at his face, she ‘would have thought maybe he
  was joking.’ However, after looking at respondent, petitioner ‘felt like he was completely serious.’
      “The following month, petitioner and respondent were
  showering together with J, and respondent urinated on
  petitioner and laughed about it. After those events, petitioner and J began spending more nights at the home of
  petitioner’s parents, which was located near her workplace. Petitioner and respondent went to a marriage counseling session, but respondent said that, if petitioner was
  unhappy, it was her problem and that she needed to work
  on it.
      “…
      “In August, petitioner told J’s pediatrician about what
  had happened between her and respondent. Respondent
  subsequently went to the pediatrician’s office several times
  without an appointment, seeking to discuss J’s well-being.
  The pediatrician was concerned that respondent had gone
  to the office ‘several times in-person with demands,’ and
  she directed respondent by letter to reach the office by telephone in the future unless he came in with J because of
  an emergency. The pediatrician found respondent’s behavior, which she described as ‘repeatedly asking for information from my staff and sitting in the waiting room’ very
  unusual; she had not seen that in her practice. Twice when
  father visited, it was to obtain medical records to which he
  was entitled, although the office would have preferred that
  he request the records in advance, instead of coming in and
  asking for them to be gathered while he waited. Father
  also requested that a chart note mentioning allegations of
  marital rape be amended to say that the allegations ‘are
  no more than allegations,’ and the pediatrician informed
  father that she would append that statement to the chart
  note that he was concerned about.
     “In late August, petitioner and respondent reached a
  temporary agreement about parenting time. Under that
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   agreement, respondent saw J twice weekly and there was
   no requirement that visits be supervised. At meetings when
   J was transitioned from one parent to the other, respondent
   ‘made it a habit to drive around the block’ and find petitioner’s car, driving slowly by with an ‘angry, rage-filled
   stare’ at petitioner and whoever was with her. Respondent
   frequently called, emailed, and sent text messages to petitioner, some of which were admitted as exhibits at the
   FAPA hearing. Petitioner described respondent’s messages
   as sometimes being ‘loving and asking [petitioner] to come
   home’; sometimes, however, ‘they were angry, demanding
   that [she] return home right away with [J].’ Respondent
   also said untrue things about petitioner and her family,
   claiming that they were crazy. Those communications
   made petitioner feel ‘threatened, upset, scared, [and] frustrated’ because she felt that the messages ‘exhibited some
   sort of instability in [respondent’s] thought process.’
       “Petitioner and respondent participated in a mediation
   session on October 5, 2017, about custody and parentingtime issues. Toward the beginning of the mediation,
   respondent glared intensely at petitioner for a long period,
   which led petitioner to feel that respondent was very angry
   at her. The mediator, Carr, also felt that respondent’s stare
   was ‘meant to communicate extreme anger and rage.’
   Carr asked respondent to quit staring, and he did, apologizing to Carr. At one point during the mediation, petitioner began to talk about the possibility of respondent’s
   parenting time being supervised, and respondent asked
   that such a requirement not be imposed. Later, respondent
   described how ‘his parenting time takes place at his parents’ anyway.’ Petitioner said something like, ‘thank you
   for admitting supervision is necessary’ or that she ‘thought
   it was really wonderful that he felt like supervision was
   necessary as well.’ At that point, respondent became ‘very
   upset and angry,’ and he said ‘Fuck you’ three times consecutively while again staring intensely at petitioner.
   Respondent did not lunge toward petitioner or ‘come at’ her
   as he made those statements, but he began to lean forward
   in his chair.”

 (brackets in original).
         Petitioner filed a FAPA petition soon after the mediation session, and the court granted her petition ex parte and
issued a protective order. Respondent contested the order
102                                                         M. A. B. v. Buell

and requested a hearing. To continue the protective order,
petitioner needed to establish three elements by a preponderance of evidence: (1) that petitioner “has been the victim
of abuse committed by the respondent within 180 days preceding the filing of the petition”;1 (2) that “there is an imminent danger of further abuse to petitioner”; and (3) that
“respondent represent[ed] a credible threat to the physical
safety of” petitioner or her child. ORS 107.718(1).
         At the contested hearing, petitioner testified about
the events described above and explained that she was
afraid for her safety, and for the safety of J. Respondent
denied much of the alleged conduct, including petitioner’s
assertion that he threatened to kill her if they separated.
The court continued the protective order, concluding that
petitioner had met her burden to establish each of the three
elements. The court specifically found that petitioner was
credible in her testimony about (1) respondent’s threat to kill
her and take J and (2) respondent’s “subsequent incidents of
intimidation by text [message and] at mediation.” The court
found that respondent was not credible in his denials of that
conduct.
         Respondent appealed, arguing that the evidence
was insufficient to establish that petitioner was in imminent
danger of further abuse or that he posed a credible threat
to her physical safety. We concluded that the court erred
in continuing the FAPA order because respondent’s single threat was insufficient to establish that there was “ ‘an
imminent danger of further abuse to petitioner.’ ” Buell I,

 (quoting ORS 107.718(1)). We did not
address whether the evidence supported the court’s finding
that respondent represented a credible threat to petitioner’s
physical safety. As noted, upon review, the Supreme Court
reversed our decision, holding that the evidence was sufficient to establish that respondent placed petitioner in an
“imminent danger of further abuse.” Buell II, 

.
The court remanded the case for us to address in the first
instance whether the trial court had correctly determined

    1
       Respondent concedes that the abuse alleged was sufficient to support the
trial court’s finding that petitioner was the victim of abuse within 180 days preceding the filing of the petition.
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that “respondent represent[ed] a credible threat to the physical safety of the petitioner or of the petitioner’s child.” ORS
107.718(1). We turn to that question now.
         We review the trial court’s legal conclusions for
legal error. Kargol v. Kargol, 

, 

 (2019). We are bound by the court’s express factual
findings if there is any evidence in the record to support
them. Buell II, 

. Where the court did not make
express factual findings, “ ‘we will presume that the facts
were decided in a manner consistent with the [trial court’s]
ultimate conclusion’ as long as there is evidence in the record
to support those implicit findings.” 

 at 565 (quoting Ball
v. Gladden, 

, 

 (1968) (brackets
in Buell II)). That includes accepting “reasonable inferences
and reasonable credibility choices that the trial court could
have made.” Botofan-Miller and Miller, 

,

 (2019).
          Respondent argues that the same lack of evidence
requiring the court to reject petitioner’s “imminent danger”
argument should be used to reject her argument that respondent represented a credible threat to her physical safety.
Specifically, he focuses on the fact that he and petitioner
are now separated, and that any in-person contact that they
have is prearranged and always involves J. And, he asserts,
despite his preseparation threat to kill petitioner if they
separated, he has not followed through on that threat after
their separation. Relying on the separation and respondent’s
lack of follow-through on his threat, respondent argues that
there is “no evidence” that he represented a credible threat
to petitioner’s physical safety.
         The same evidence available to show that a petitioner is in imminent danger of further abuse may be used
to demonstrate that a respondent represents a credible
threat to the petitioner’s physical safety. Hubbell v. Sanders,

, 

 (2011). That is because
the two elements are closely related. As a practical matter, it
is hard to imagine concluding that petitioner is in imminent
danger of further abuse from respondent if respondent does
not also present a credible threat to her safety. Our role “is
to determine whether, based on the totality of circumstances
104                                           M. A. B. v. Buell

[reflected in the record], a reasonable factfinder could draw
the factual inferences necessary” to conclude that respondent posed a credible threat to petitioner’s safety. Buell II,

.
         Although the parties’ separation is a significant factor to weigh in determining whether respondent represents
a credible threat to petitioner’s safety, it is not dispositive
of that issue. Walton v. Steagall, 

, 

 (2019). Likewise, finding that respondent actually threatened petitioner’s physical safety might outweigh
any mitigating effects of separation; but it might not. In its
analysis of the danger of further abuse, the Supreme Court
reasoned that, while “there might be cases where the parties’ separation necessarily represents a change in circumstances that mitigates the risk of further abuse, there are
also likely to be many cases where a trial court would be
entitled to conclude that the parties’ separation could be the
impetus for further abuse.” Buell II, 

. That reasoning logically applies to the issue of whether respondent
is a credible threat to petitioner’s safety as well. Although,
here, respondent threatened to kill petitioner, the threat
itself need not be “[a]n overt threat of physical violence” to
prove that a respondent posed a credible threat to the petitioner’s physical safety. Hubbell, 

 (emphasis added). And post-separation events can establish a continuing threat to the petitioner’s safety. Walton, 

.
         Here, the trial court determined that petitioner had
made an overt threat of physical violence before the parties
separated. It specifically found that petitioner was credible
in her assertion that respondent “serious[ly]” threatened
to kill her if they separated or divorced. It also found that
respondent’s denial of that threat was not credible. In addition to the evidence of abuse and respondent’s threat to kill
petitioner, the record contained evidence that respondent
behaved aggressively toward petitioner after their separation, including by: searching for petitioner’s car and driving
by with an “angry, rage-filled stare”; calling, emailing, and
texting her “angry” demands to return home with J; and
angrily ending a mediation session by directing expletives
at petitioner, while leaning forward in his chair. Even if
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there are other explanations for respondent’s behavior, the
trial court was permitted to choose among competing inferences and, based on its choices, conclude that petitioner represented a credible threat to petitioner’s physical safety. See
Buell II, 

 (appellate court accepts reasonable
inferences and credibility choices made by trial court).
         To be sure, it is “significant” that the parties separated and have had reduced contact since respondent
threatened to kill petitioner. Kargol, 

.
However, respondent specifically threatened to kill petitioner if they separated. Given that the parties’ separation
was the circumstance upon which respondent’s threat was
conditioned and given that they were separated, the trial
court was permitted to conclude that respondent’s threat
and his threatening behavior outweighed any mitigating effects of the parties’ separation. See Buell II, 

 (“An evidentiary record may support a range of factual inferences about the extent to which a respondent is
likely to engage in abusive conduct.”); Walton, 

 (explaining that post-separation contacts may provide
evidence of a continuing threat to the petitioner’s safety).
Moreover, notwithstanding their separation, the parties are
required to stay in limited contact to facilitate the transfer
of J, they had volatile contacts just prior to the issuance of
the FAPA order, and respondent continued to send angry
messages and to “circle” petitioner in his car. Those facts,
combined with respondent’s history of abuse and his threat
to kill petitioner if they separated, are sufficient to support
the trial court’s conclusion that respondent posed a credible threat to petitioner’s safety. Accordingly, the record supported the court’s conclusion that petitioner met her burden
to prove each of the elements required by ORS 107.718(1).
        Affirmed.