835
Argued and submitted February 8, affirmed April 21, 2021
K. G. G.,
Petitioner-Respondent,
v.
David John LUCARELLI,
Respondent-Appellant.
Deschutes County Circuit Court
20PO00882; A173777
486 P3d 860
Respondent challenges a restraining order entered under the Family Abuse
Prevention Act (FAPA), ORS 107.700 to 107.735. Petitioner and respondent were
a couple for eight or nine years and have a young child together. After they separated, petitioner obtained a FAPA restraining order against respondent, based
on an incident of abuse on January 26, 2020. Respondent contested the restraining order. After hearing testimony from both parties, the court continued the
restraining order. Respondent appeals, challenging the sufficiency of the evidence. He contends that the only incident during the 180 days preceding the
filing of the petition did not legally qualify as an incident of “abuse” as defined
in ORS 107.705(1)(b), i.e., that respondent intentionally, knowingly, or recklessly
placed petitioner in fear of imminent bodily injury, which is an objective standard
based on the totality of the circumstances. He also disputes the sufficiency of the
evidence to establish an imminent danger of further abuse to petitioner or that
respondent represents a credible threat to her physical safety. Held: The evidence
was sufficient to support the restraining order.
Affirmed.
Beth M. Bagley, Judge.
David G. Brown argued the cause for appellant. Also on
the brief was Merrill O’Sullivan, LLP.
No appearance for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
AOYAGI, J.
Affirmed.
836 K. G. G. v. Lucarelli
AOYAGI, J.
Respondent challenges a restraining order entered
against him under the Family Abuse Prevention Act
(FAPA), ORS 107.700 to 107.735. Petitioner and respondent
were a couple for eight or nine years and have a young
child together. After they separated, petitioner obtained a
restraining order against respondent, based on an incident
of abuse on January 26, 2020. Respondent contested the
restraining order. After hearing testimony from both parties, the court continued the restraining order. Respondent
appeals. We affirm.
A FAPA restraining order is available upon a showing that (1) the petitioner has been the victim of abuse committed by the respondent within the 180 days preceding
the filing of the petition, (2) there is an imminent danger of
further abuse to the petitioner, and (3) the respondent represents a credible threat to the physical safety of the petitioner or the petitioner’s child. ORS 107.718(1). As relevant
here, “abuse” includes “[i]ntentionally, knowingly, or recklessly placing another in fear of imminent bodily injury.”
ORS 107.705(1)(b). The “fear” at issue is judged by an objective standard, considering the totality of the circumstances.
Fielder v. Fielder, 211 Or App 688, 694,
157 P3d 220 (2007).
Respondent challenges the sufficiency of the evidence on all three points. He argues that, as a matter of law,
the January 26 incident—which was the only alleged incident of abuse within the 180-day period—does not qualify
as “abuse” under FAPA. Alternatively, respondent argues
that the evidence was legally insufficient to establish that
there was an imminent danger of further abuse to petitioner
or that he posed a credible threat to her physical safety.
On non-de novo review,1 “we are bound by the trial
court’s factual findings if they are supported by any evidence; if the trial court did not make express factual findings on disputed issues, we presume that it made implicit
findings consistent with its ultimate judgment.” J. V.-B. v.
1
Appellant has not requested de novo review, and we do not exercise our
discretion to provide de novo review. See ORS 19.415(3)(b); ORAP 5.40(8)(c).
Cite as 310 Or App 835 (2021) 837
Burns,
284 Or App 366, 367,
392 P3d 386 (2017). We review
the trial court’s legal conclusions for legal error.
Id.
Having reviewed the record, we conclude that there
was evidence to support the trial court’s express and implied
factual findings and that those findings, in turn, were
legally sufficient to support the restraining order. In short,
the relevant facts are as follows. The parties were in a relationship for eight or nine years and have a young child. In
August 2017, during an argument, respondent hit petitioner
in the face and threatened to kill her. In July 2019, around
the time that the parties separated and respondent moved
out of the family home, respondent hit petitioner in the face
“very hard” during another argument. On at least two other
occasions, respondent told petitioner that she was “lucky”
not to “have a black eye.” On January 26, 2020, petitioner
told respondent on the phone that he could no longer watch
the child at her home because of his disrespect of her and his
disrespect of the home. In response, respondent threatened
to “come over there and beat down the door and beat [her]
ass so bad and take [the child] from [her].” Sometime thereafter, respondent arrived to pick up the child for the day and,
while there, cursed petitioner, including calling her a “fucking cunt” in front of the child. Later that evening, respondent called petitioner “more choice words” on the phone, and,
when returning the child to petitioner’s home, kicked and
beat on her front door “like a crazy person” and told her to
“get [her] fat ass outside” to get the child. Petitioner testified
that she was “incredibly fearful” when respondent was kicking and beating on the door on January 26 and that, without
a restraining order, she was “very afraid” of him generally.
That evidence was legally sufficient to establish that
respondent at least recklessly (if not knowingly or intentionally) placed respondent in fear of imminent bodily injury on
January 26. Respondent’s past physical violence towards
petitioner, his express threat of physical violence on the
morning of January 26, and his repeated expressions of hostility toward petitioner that day are all relevant context for
why his physical act of kicking and beating on her front door
would put a reasonable person in fear of imminent bodily
injury. ORS 107.705(1)(b); see M. A. B. v. Buell, 366 Or 553,
565,
466 P3d 949 (2020). For similar reasons, the evidence
838 K. G. G. v. Lucarelli
was legally sufficient for the trial court to determine that
there was an imminent danger of further abuse to petitioner
and that respondent posed a credible threat to her physical safety. Respondent’s past violence and threats toward
petitioner, the parties’ ongoing relationship (due to their
young child), and respondent’s ongoing hostility toward
petitioner six months after their separation are all relevant.
See M. A. B.,
366 Or at 565.
Respondent contests petitioner’s version of events
and disagrees with the trial court’s ruling. However, where
the parties disagree about the facts, it is for the trial court to
make the necessary credibility determinations and factual
findings, and, if there is any evidence to support the trial
court’s findings, we are bound by those findings. J. V.-B.,
284 Or App at 367. Here, the trial court expressly credited
petitioner’s version of events and disbelieved respondent’s
version. The only question before us as an appellate court is
whether the evidence was legally sufficient to allow the trial
court to make the findings that it did and reach the conclusions that it did. Botofan-Miller and Miller,
365 Or 504,
505,
446 P3d 1280 (2019), cert den, ___ US ___,
141 S Ct 134
(2020). That standard is met in this case. Accordingly, we
affirm the trial court’s judgment continuing the restraining
order for one year.
Affirmed.
