658 December 11, 2024 No. 886
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
A. A.,
Petitioner-Appellant,
v.
ANTHONY CUNIAL,
Respondent-Respondent.
Marion County Circuit Court
23SK00612; A181961
Jennifer K. Gardiner, Judge.
Argued and submitted October 4, 2024.
Rachael A. Federico argued the cause for appellant. Also
on the brief were Legal Aid Services of Oregon and Emily
Rena-Dozier and Oregon Law Center.
No appearance for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and Pagán,
Judge.
SHORR, P. J.
Vacated and remanded.
Cite as 336 Or App 658 (2024) 659
SHORR, P. J.
Petitioner appeals from a general judgment dismissing her stalking protective order (SPO) under ORS
30.866. Petitioner contends that the trial court erred in
its determination that a prior period of voluntary contact
precluded—as a matter of law—subsequent contacts from
qualifying as unwanted and objectively alarming to petitioner. We agree, and therefore vacate and remand so that
the court can reconsider its decision in light of this opinion.
Absent de novo review, which petitioner does not
request, “[w]e review the trial court’s factual findings for
any supporting evidence and its legal conclusions for legal
error.” H. L. P. v. Jones, 309 Or App 108, 109,
481 P3d 415
(2021). We state the facts and all reasonable inferences that
may be drawn from them in the light most favorable to the
trial court’s disposition.
Id.
In 2012, petitioner and respondent began an intimate relationship and moved in together. They had two
daughters together, before separating in 2017. During that
separation, petitioner became pregnant by another man and
had a third child, A, who was born in 2018. In March 2018,
petitioner and respondent reconciled and resumed cohabitation. After A’s birth, petitioner tried to end the relationship
several times, moving out briefly in 2020. Both petitioner
and respondent agree that the relationship was “always
kind of rocky” and “on and off.” In June 2021, petitioner
moved out for the last time and ended the relationship.
Following their breakup, petitioner and respondent
initially attempted to coparent harmoniously, but the relationship soon deteriorated. Respondent would repeatedly
drive by petitioner’s residence at all hours and bang loudly
on her doors and windows, causing petitioner’s neighbors
concern about her safety. However, from June to October of
2022, petitioner and respondent took multiple voluntary outings together with their children. They took trips together
to the beach, a fast-food restaurant, a theme park, and to
visit petitioner’s family in California. Interspersed between
those voluntary family outings were several unwanted contacts that caused petitioner to feel unsafe. Then, in late
660 A. A. v. Cunial
October 2022, petitioner “decided that she was finished.”
She blocked respondent’s number and would not answer his
calls. Respondent also confirmed that he “got cut off” in late
October of 2022, following an argument with petitioner.
On November 4, 2022, respondent appeared to be
following petitioner by car from her residence to multiple
locations. At one point while she was parked, he knocked on
the window, but she refused to open the car door and asked
him to leave her alone. He remained outside her car for several minutes, accusing her of psychologically damaging her
children. On November 24, 2022, respondent broke down
petitioner’s front door in front of their children. Petitioner
then threatened to call the police if he did not leave. On
December 9, 2022, respondent followed petitioner by car
from her residence to an oil-service shop and insulted her
there until she drove away. That same month, while petitioner was on a trip in Mexico, respondent drove by petitioner’s home repeatedly, in a way that her neighbors found concerning. On January 13, 2023, respondent showed up while
petitioner was waiting with A for the school bus. Respondent
alternated between calling petitioner pathetic and telling
A that he missed him, while petitioner “kept asking him to
leave.” On February 7, 2023, respondent saw petitioner at
their daughters’ school, followed her from the school to her
residence, and “started banging on the door.” She repeatedly
pleaded with him to leave, said she did not feel safe, threatened to call the police, and then locked the door. Around this
time, petitioner told respondent that if he kept coming by,
she would report him for trespassing. On February 15, 2023,
petitioner filed a petition for an SPO against respondent,
and the court issued a temporary SPO.
At the subsequent hearing to determine whether
the SPO should be made permanent, the trial court found
that a “clear demarcation” in the relationship occurred in
late October 2022 when petitioner “decided that she was
finished.” The court also “credit[ed] [petitioner’s] testimony
… that she was exhausted because the way [respondent]
treated her is exhausting. The constant beratements, the
constant dragging the children along to degrade her in
front of the children would be exhausting, and so she cut
Cite as 336 Or App 658 (2024) 661
off communication.” The court understood that petitioner
“didn’t feel safe” due to respondent’s “threats against her”
and the “control and power exerted over her.” However, the
court ultimately dismissed the SPO. Although the court
found repeated contacts and a “clear demarcation” in late
October 2022 where petitioner did not want contact with
respondent going forward, it questioned “whether or not
[respondent] [was] sufficiently on notice” that contact was
unwanted. Moreover, the court concluded that the earlier
voluntary family outings before late October 2022 precluded it from finding that the later contacts occurring after
November 1, 2022, objectively alarmed petitioner:
“It’s hard for the [c]ourt to organize that information in a
way that would qualify for alarming fear of physical safety
and repeated contacts.
“And for those same reasons, it’s difficult to evaluate
the November contacts … as being contacts that would be
objectively alarming for her physical safety because of the
context in which they occurred; that being repeated communications to leave me alone, but then engaging in these
family outings that are not incidental to shared parenting.
“So for those reasons, I’m going to dismiss the stalking
order.”
Although the court dismissed the SPO, the court “struggled with” the decision because respondent’s “behavior [was]
unsettling” and scary. The court concluded, “I am in no
way precluding [petitioner] from petitioning the Court for a
stalking order … now that we have a clear mark. We have
a clear mark in November going forward.”
ORS 30.866 authorizes the issuance of an SPO
against a person who “intentionally, knowingly or recklessly engages in repeated and unwanted contact with the
petitioner.” ORS 30.866(1)(a). “Repeated” and “unwanted”
contact means that a petitioner must establish at least two
instances where the respondent contacted the petitioner
while “aware of a substantial and unjustifiable risk” that
contact was unwanted, and then consciously “disregarded
that risk when a reasonable person would not have done
so.” Delgado v. Souders, 334 Or 122, 134,
46 P3d 729 (2002).
Additionally, a petitioner must prove that (a) he or she was
662 A. A. v. Cunial
alarmed or coerced as a result of the contacts, (b) the alarm
or coercion was objectively reasonable, and (c) the repeated
and unwanted contacts caused “the petitioner reasonable
apprehension regarding [his or her] personal safety.” ORS
30.866(1)(a) - (c).
We understand the trial court to have found that
a clear demarcation in the relationship occurred in late
October 2022 and that, thereafter, repeated contacts
occurred, causing petitioner subjective fear for her safety.
We further understand the trial court’s ruling to conclude
that, in light of the prior period of voluntary contact from
June to October of 2022, the post-demarcation contacts could
not qualify—as a matter of law—as unwanted and could not
have caused petitioner objectively reasonable alarm. We disagree and conclude that the prior period of voluntary contact
did not categorically preclude the contacts from qualifying
as unwanted and objectively alarming to petitioner.
We begin with whether the post-demarcation contacts could qualify as unwanted. A petitioner can establish
that contact was unwanted by demonstrating that a respondent was subjectively “aware of a substantial and unjustifiable risk that the contacts in question [were] … unwanted
by the recipient, and then consciously and unreasonably disregard[ed] that risk.” Delgado, 334 Or at 133. Here, the trial
court found that petitioner was “finished” with respondent
in October 2022. Thereafter, on November 24, 2022, respondent broke down petitioner’s door. We have previously concluded that such damage to a petitioner’s home or property
“unequivocally qualifie[s] as an unwanted contact.” Pinkham
v. Brubaker,
178 Or App 360, 370,
37 P3d 186 (2001) (concluding that an unwanted contact occurred when the respondent
shredded two of the petitioner’s dresses, thereby damaging
the petitioner’s property).
After respondent broke down petitioner’s door,
respondent continued to make unwelcome contact with
petitioner. In particular, on February 7, 2023, respondent
followed petitioner to her home, banged on the door, and
argued while she said she did not feel safe and threatened
to call the police. Respondent’s own testimony establishes
that during that time period petitioner blocked respondent’s
Cite as 336 Or App 658 (2024) 663
phone number, actively avoided contact, and threatened to
have him “trespassed” from the property. That evidence
was “surely sufficient to make [respondent] aware of a substantial risk that further contact was unwanted.” Bryant
v. Walker,
190 Or App 253, 257,
78 P3d 148 (2003), rev dismissed,
337 Or 585 (2004) (concluding that the petitioner’s
one spoken exchange with the respondent, when she told
him to stop staring at her, was sufficient for the contacts to
qualify as unwanted).
Nor do the prior voluntary outings during the turbulent period from June to October of 2022 legally preclude the
subsequent contacts from qualifying as unwanted. See D. A.
v. White, 253 Or App 754, 764,
292 P3d 587 (2012) (concluding that, even though the petitioner voluntarily continued to
work with the respondent after a rift, that did not preclude
subsequent threats from qualifying as unwanted contacts);
Pinkham,
178 Or App at 370-71 (contacts occurring after
the petitioner cut off contact qualified as unwanted, even
though the parties had a previous romantic relationship and
some voluntary on-and-off contact following termination of
the relationship). We therefore conclude that the trial court
erred in determining that, because of the prior voluntary
contacts, the post-demarcation contacts could not qualify—
as a matter of law—as unwanted.
We turn next to the issue of whether the trial court
erred in concluding that, as a legal matter, the post-demarcation contacts could not be objectively alarming to
petitioner in light of the prior voluntary outings. We have
emphasized in prior case law that “unwanted contacts must
be considered in the context of the parties’ entire history.”
Pinkham, 178 Or App at 372; see also M. C. H. v. Milligan,
208 Or App 229, 237,
145 P3d 180 (2006) (considering the
effect of unwanted contacts in the context of the respondent’s
persistent overtures and “directive and demanding style of
interaction”). We have never concluded, however, that prior
voluntary contacts preclude a petitioner from demonstrating that the petitioner is objectively alarmed by more recent
offensive contacts.
Here, even though petitioner and respondent previously took several voluntary outings together with their
664 A. A. v. Cunial
children, they also had a strained relationship in which
respondent exercised “a lot of control and power” over petitioner. As noted, on one occasion when petitioner refused to
let him in, respondent broke down her front door. He would
repeatedly drive by petitioner’s home at all hours, call her
excessively, and berate her in front of her children. He also
followed petitioner in her car and arrived uninvited at her
residence, ignoring requests for him to leave. See Bryant, 190
Or App at 255, 257 (concluding that the petitioner’s alarm
was objectively reasonable where the respondent would follow the petitioner around in the store where she worked
but never threatened her). Moreover, respondent’s conduct
caused petitioner’s neighbors concern about petitioner’s
safety. See M. C. H.,
208 Or App at 239 (other people’s concern for the petitioner contributed to the reasonableness of
the petitioner’s alarm). Considering the entire context of the
parties’ history, the prior voluntary outings do not legally
preclude a finding that petitioner’s alarm from the more
recent contacts was objectively reasonable. The trial court
erred in applying such a legal standard.
Having determined that the prior voluntary contacts do not, as a matter of law, disqualify subsequent contacts from being unwanted or objectively alarming to petitioner, we conclude that the trial court’s dismissal of the
SPO was premised upon legal error. We vacate and remand
for the court to reconsider its decision in light of this opinion.
Vacated and remanded.
