M. A. B. v. Buell

553

Argued and submitted January 13; decision of Court of Appeals reversed, case

remanded to Court of Appeals for further proceedings June 18, 2020

M. A. B.,

Petitioner on Review,

v.

Anthony Nicholis BUELL,

Respondent on Review.

(CC 17PO09823) (CA A166273) (SC S066752)

466 P3d 949

Petitioner sought a protective order under the Family Abuse Prevention Act

(FAPA) against respondent, her husband of three years. During their marriage,

respondent twice raped petitioner and threatened to kill her if she left him. Not

long after the threat, petitioner took their child, separated from respondent, and

filed for marriage dissolution. During their interactions after separation, respon-

dent was erratic and hostile, including yelling expletives at petitioner during a

mediation. In concluding that petitioner was entitled to a FAPA protective order,

the trial court determined that respondent presented “an imminent danger of

further abuse” to petitioner. ORS 107.718(1). On appeal, the Court of Appeals

reversed the trial court’s order after holding that the evidence was insufficient

to show that petitioner was in imminent danger of further abuse from respon-

dent. Held: (1) The term “imminent danger of further abuse” requires a court

to consider whether potential future abuse would occur in the near future;

(2) whether a respondent presents an imminent danger of further abuse is subject

to the totality of the circumstances, including whether the parties’ separation

had reduced the danger to the petitioner; (3) the record is sufficient to support

the trial court’s conclusion that respondent presented an “imminent danger of

further abuse” to petitioner.

The decision of the Court of Appeals is reversed. The case is remanded to the

Court of Appeals for further proceedings.

En Banc

On review from the Court of Appeals.*

Emily Rena-Dozier, Legal Aid Services of Oregon,

Portland, argued the cause and filed the briefs for petitioner

on review. Also on the briefs was Caleb Mammen, Oregon

Law Center, Hillsboro.

George W. Kelly, Eugene, argued the cause and filed the

brief for respondent on review.

______________

* On appeal from Washington County Circuit Court, Kirsten E. Thompson,

Judge. 296 Or App 380, 438 P3d 465 (2019).

554 M. A. B. v. Buell

Kelsey Benedick, Larkins Vacura Kayser LLP, Portland,

filed the brief for amicus curiae Oregon Attorney General’s

Sexual Assault Task Force. Also on the brief was John C.

Rake.

Sarah E. Feldman, Forum Law Group, Portland, filed the

brief for amicus curiae Oregon Trial Lawyers Association.

Kathryn Moakley, Domestic Violence Clinic, Eugene,

filed the brief for amici curiae Oregon Coalition Against

Domestic and Sexual Violence, National Crime Victim Law

Institute, and Oregon Crime Victims Law Center.

NELSON, J.

The decision of the Court of Appeals is reversed. The case

is remanded to the Court of Appeals for further proceedings.

Cite as 366 Or 553 (2020) 555

NELSON, J.

Under the Family Abuse Prevention Act (FAPA),

ORS 107.700 to 107.735, a petitioner may obtain a protective

order by establishing, among other things, an “imminent

danger of further abuse” by the respondent. ORS 107.718(1).

In this case, the trial court concluded that petitioner had

met that standard, but the Court of Appeals disagreed.

Buell v. Buell, 296 Or App 380, 438 P3d 465 (2019).

Petitioner contends that the Court of Appeals erred. For

the reasons stated below, we reverse the Court of Appeals

decision.

I. BACKGROUND

A court may issue a FAPA protective order when a

petitioner establishes, by a preponderance of the evidence,

that (1) the petitioner “has been the victim of abuse com-

mitted by the respondent within 180 days preceding the fil-

ing of the petition”; (2) “that there is an imminent danger

of further abuse to the petitioner”; and (3) “that the respon-

dent represents a credible threat to the physical safety of the

petitioner or the petitioner’s child.” ORS 107.718(1). “Abuse”

is defined as “the occurrence of one or more of the following

acts between family or household members:

“(a) Attempting to cause or intentionally, knowingly or

recklessly causing bodily injury.

“(b) Intentionally, knowingly or recklessly placing

another in fear of imminent bodily injury.

“(c) Causing another to engage in involuntary sexual

relations by force or threat of force.”

ORS 107.705(1). If the court issues a protective order, then

the respondent may request a hearing to contest any relief

granted. ORS 107.718(10). At the hearing, the court may

cancel or change the protective order or may continue the

order as it was issued. ORS 107.716(3) (2017).1

1

In 2019, the legislature amended ORS 107.716(3). Or Laws 2019, ch 144, § 1.

That provision now states:

“The court may continue any order issued under ORS 107.718 if the court finds

that: (A) Abuse has occurred within the period specified in ORS 107.710 (1);

(B) The petitioner reasonably fears for the petitioner’s physical safety; and

556 M. A. B. v. Buell

Petitioner applied for a FAPA protective order

against respondent on October 9, 2017. The court issued an

ex parte FAPA restraining order the same day. Respondent

requested a hearing to contest the restraining order. The

hearing was held on October 20, 2017. The testimony and

evidence provided at that hearing comprise the record in

this case. The Court of Appeals detailed the historical facts

with due deference to the trial court’s findings. Buell, 296 Or

App at 381-85. We review the facts here only in summary.

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.

In July 2017, petitioner took J, moved in with her

parents, and filed for dissolution. After the separation,

respondent made frequent attempts to contact petitioner by

phone, email, and text message. The messages were erratic,

including expressions of love, angry demands, and attacks

on petitioner’s family. Respondent once came to petitioner’s

parent’s home unannounced, but no one answered the door.

There was no evidence of other attempts by respondent to

make face-to-face contact with petitioner outside of pre-

arranged meetings. At those prearranged meetings, how-

ever, respondent regularly exhibited anger toward peti-

tioner. At meetings to transfer J from one parent to the other,

respondent would sometimes drive around the block to find

petitioner’s car, and then drive slowly by with an “angry,

rage-filled stare” at petitioner and whoever was with her.

(C) The respondent represents a credible threat to the physical safety of the

petitioner or the petitioner’s child.”

ORS 107.716(3)(a) (2019). The events in this case took place before that legislative

change.

Cite as 366 Or 553 (2020) 557

The event that immediately preceded petitioner

seeking the protective order occurred on October 5, 2017,

when petitioner and respondent met with a mediator to

discuss custody and parenting-time issues. Toward the

beginning of the mediation, respondent stared intensely

at petitioner for a long time and did not respond when the

mediator asked him a question. The mediator felt like the

stare was “meant to communicate extreme anger and rage”

and asked respondent to stop staring, which he did. Later,

when petitioner understood a statement by respondent as

an admission that his parenting time should be super-

vised, respondent became “very upset and angry,” and he

said “fuck you” three times while again staring intensely at

petitioner.

The mediator asked respondent to leave the room

and then, outside the room, asked whether he would be able

to calm down enough to continue the mediation. Respondent

said that he could not and would like to leave. After respon-

dent left, the mediator spoke with petitioner, who was crying

and shaking. The mediator suggested that petitioner speak

with somebody at a domestic violence resource center and

provided her with an escort to her car.

Following the October 20 hearing, the trial court

continued the protective order in its entirety. The trial court

made brief express findings, noting that petitioner was

credible in her testimony about respondent’s prior acts of

involuntary sexual relations and his threat to kill her and

take J. The trial court also characterized respondent’s text

messages and conduct at the mediation as “incidents of

intimidation.” The trial court found respondent’s denials not

credible.

On appeal, respondent conceded that the trial

court’s findings were sufficient to establish that he had

abused petitioner within 180 days of petitioner seeking the

protective order. Respondent argued, however, that the evi-

dence was insufficient to establish the two other elements:

that petitioner was in imminent danger of further abuse

from respondent and that respondent presented a credible

threat to petitioner’s physical safety.

558 M. A. B. v. Buell

The Court of Appeals agreed with respondent that

the evidence was insufficient to show that petitioner was

in imminent danger of further abuse from respondent. The

court, as a result, reversed the trial court’s order without

considering whether respondent represented a credible

threat to petitioner’s physical safety. Buell, 296 Or App at

385.

The court made several observations in assessing

the sufficiency of the evidence that petitioner presented. As

an initial matter, the court noted that petitioner’s most seri-

ous allegations concerned abuse that occurred while peti-

tioner and respondent were still living together and that,

at the time petitioner applied for the protective order, they

were no longer living together. The court stated, “In those

circumstances, even when the relationship was abusive and

volatile when the parties lived together, that past history

may—at least in some circumstances—not be sufficient to

demonstrate that the petitioner remains in imminent dan-

ger of being abused.” Id. According to the court, the evi-

dence of abuse that occurred while the parties lived together

needed to be considered along with “the evidence of the par-

ties’ interactions leading up to and following their separa-

tion.” Id. at 388.

The court then examined respondent’s conduct

prior to the separation in the context of his conduct after

the separation. Although respondent twice raped petitioner

while they lived together, the court noted that “petitioner

has not suggested that respondent has sought, threatened,

or attempted to engage in sexual conduct with her since

they separated.” Id. at 389. And although respondent told

petitioner in June 2017 that he would kill her if she ever

left him, the court noted that “respondent made the threat

only once and there is no evidence that he has repeated the

threat or taken any steps to harm petitioner or compromise

her safety.” Id. at 390.

The court concluded that respondent’s conduct after

the separation was not threatening. Instead, the erratic

messages from respondent merely reflected his “emotional

reaction to petitioner having left their marriage and his

anger and frustration regarding restrictions on his time

Cite as 366 Or 553 (2020) 559

with J.” Id. at 389. And the court discounted respondent’s

“persistently angry demeanor” in his face-to-face meetings

with petitioner. Id. According to the court, while petition-

er’s distress was understandable, “in the absence of any

evidence that respondent has caused or attempted to cause

petitioner bodily injury, and in the absence of any evidence

that respondent has sought out or pursued petitioner in any

other contexts since they separated[,] respondent’s conduct

is insufficient to demonstrate that petitioner is in imminent

danger of further abuse.” Id. Petitioner sought review in this

court, which we allowed.

II. ANALYSIS

Petitioner presents two arguments on review. First,

petitioner argues that the Court of Appeals misinterpreted,

and therefore misapplied, the statutory phrase “imminent

danger of further abuse.” ORS 107.718(1). Second, petitioner

argues that the Court of Appeals erred in concluding that

the record failed to support the trial court’s conclusion

granting the protective order.

A. Interpretation of the Statute

Petitioner argues that the Court of Appeals mis-

interpreted the statutory phrase “imminent danger of fur-

ther abuse,” ORS 107.718(1), by imposing a temporal limit

on potential future abuse and by requiring a petitioner who

has separated from the respondent to satisfy specific factual

standards—namely, demonstrating a pattern of abuse that

continued after the separation. In considering these issues

of statutory interpretation, we begin with the text and con-

text of the statute and consider the legislative history as

appropriate. State v. Gaines, 346 Or 160, 171-72, 206 P3d

1042 (2009).

1. Temporal limit

In determining whether petitioner established

imminent danger of further abuse, the Court of Appeals

considered whether there was a chance of further abuse

“in the near future.” Buell, 296 Or App at 389. Petitioner

contends that the court erred in imposing the temporal

limit of “near future.” Respondent points out that the plain

560 M. A. B. v. Buell

meaning of the term “imminent” imposes a temporal limit.

See Webster’s Third New Int’l Dictionary 1130 (unabridged

ed 2002) (defining “imminent” to mean “ready to take place,”

“near at hand,” “impending,” “hanging threateningly over

one’s head,” and “menacingly near”). As a result, respondent

argues that the Court of Appeals did not err.

Although the legislature did not define the phrase

“imminent danger,” it provided that “[i]mminent danger

under this section includes but is not limited to situations

in which the respondent has recently threatened petitioner

with additional bodily harm.” ORS 107.718(5). That is con-

sistent with, and provides no reason to depart from, the

plain meaning of “imminent.” Further, when the legislature

has not defined a word and the word is not a term of art, as

“imminent” is here, we usually give a term its plain meaning.

State v. Turnidge (S059155), 359 Or 364, 383, 374 P3d 853

(2016).

Petitioner’s argument for not giving “imminent”

its plain meaning turns largely on legislative history. That

history indicates that, before 1999, the statute required a

petitioner to establish an “immediate and present danger

of further abuse.” ORS 107.718(1) (1997). In 1999, however,

the legislature changed that standard to “imminent danger

of further abuse.” Or Laws 1999, ch 1052, §§ 9, 9a. That

change from “immediate and present danger” to “imminent

danger” was proposed to “soften the standard” imposed on

petitioners seeking restraining orders. Testimony, House

Committee on Judiciary, Subcommittee on Civil Law,

SB 318, May 12, 1999, Ex A (statement of Judge Stephen

Herrell).

According to petitioner, the plain meanings of

“immediate” and “present” are the same as the plain

meaning of “imminent”—they all mean “near at hand” or

something equivalent. Petitioner contends that the legisla-

ture could not have intended to give “imminent” its plain

meaning while also intending to soften the “immediate and

present” standard that was already in place. As a result,

petitioner argues that, to soften the previous standard, we

should interpret “imminent danger of further abuse” as

imposing no temporal limit at all.

Cite as 366 Or 553 (2020) 561

We disagree. When the text is clear, “there is no

more persuasive evidence of the intent of the legislature

than the words by which the legislature undertook to give

expression to its wishes.” Gaines, 346 Or at 171 (internal

citation and quotation marks omitted). When the text is

unclear, the words chosen by the legislature might not be

the best evidence of the legislature’s intent. But, in this

case, the text is clear that the legislature intended to retain

a temporal limit. That is clear because the word “imminent”

is, and functions solely as, a temporal limit. It is, therefore,

not possible to reconcile the legislature’s use of the word

“imminent” with petitioner’s argument that the legislature

intended to impose no temporal limit.

The legislative history does not suggest otherwise.

Although both “immediate and present danger” and “immi-

nent danger” refer to dangers that are “near at hand,” Judge

Herrell testified that trial courts and petitioners frequently

understood the phrase “immediate and present danger” as

referring only to dangers that are more near at hand than

would be required to satisfy an “imminent danger” stan-

dard. Whether or not that is a fair description of the distinc-

tion between those phrases, Judge Herrell reported that it

was a distinction that parties and trial courts were mak-

ing.2 However, that does not suggest an abandonment of a

temporal limit. Instead, it suggests a relaxation of the tem-

poral limit, as compared to how the previous limit was being

applied. We therefore find no error in the Court of Appeals’

2

Judge Herrell testified:

“For example[,] at present, the Court cannot issue a FAPA restraining

order in a situation whereby [a] petitioner [who has previously been abused]

has just received a telephone threat from the abuser who happens to live

in another town or another state but is threatening to come to harm the

petitioner sometime in the imminent future. The same would be true if the

abuser is incarcerated but the abuser’s release date is imminent but not

immediate. There are, of course, many such examples.

“The usual response we get from petitioners in these cases is: ‘I guess I

have to wait until something bad actually happens to me.’ Frankly, I have to

agree, but it certainly seems like the wrong approach to me.

“Perhaps the solution would be to replace the words ‘immediate and

present danger’ in ORS 107.710 [and ORS 107.718] with the words ‘imminent

danger.’ ”

Testimony, House Committee on Judiciary, Subcommittee on Civil Law, SB 318,

May 12, 1999, Ex A (statement of Judge Stephen Herrell).

562 M. A. B. v. Buell

requirement that the danger of future abuse must exist in

the “near future.”

2. Requiring petitioners who have moved out to estab-

lish a pattern of abuse

Petitioner also argues that the Court of Appeals

erred in considering that petitioner had moved out and in

imposing categorical factual requirements on petitioner

because she had moved out. Specifically, petitioner reads the

Court of Appeals opinion as holding that, if any petitioner

has moved out of the home that had been shared with the

respondent, then the petitioner must demonstrate that the

respondent has engaged in a pattern of abuse that contin-

ued after the parties separated.

a. Considering that petitioner moved out

Petitioner relies on ORS 107.710(3) to argue that

the Court of Appeals erred in considering the fact that peti-

tioner had moved out of the home. That statute provides that

a person’s right to relief under FAPA “shall not be affected

by the fact that the person left the residence or household to

avoid abuse.” Based on that statute, petitioner argues that

it is always improper for a court to deny relief under FAPA

based, even in part, on the fact that a petitioner has left the

home once shared with a respondent.

We do not, however, read ORS 107.710(3) as pro-

hibiting the type of totality-of-circumstances analysis per-

formed by the Court of Appeals in this case. Instead, ORS

107.710(3) prohibits a court from concluding that a peti-

tioner is not in imminent danger of further abuse based

solely on the fact that petitioner moved out to avoid abuse.

A totality-of-circumstances analysis may include consider-

ing whether, after a petitioner has moved out, the danger

to the petitioner changed. In doing so here, the Court of

Appeals was considering all the circumstances in determin-

ing whether the petitioner was in imminent danger of fur-

ther abuse, rather than giving decisive weight to one fact.

As a result, the Court of Appeals’ analysis is consistent with

ORS 107.710(3).

Cite as 366 Or 553 (2020) 563

b. Pattern of abuse

Petitioner next argues that the Court of Appeals

erred by requiring petitioner to establish a pattern of abuse

that continued after the parties separated. According to peti-

tioner, there are circumstances where abuse that occurred

before the parties separated—even a single incident of

abuse—may be sufficient to establish that a petitioner is in

imminent danger of further abuse. We agree with petitioner

that it would be inappropriate for a court to require that all

petitioners who have moved establish a pattern of abuse that

continued after the separation. But we do not read the Court

of Appeals opinion as imposing such a categorical test.

Instead, the Court of Appeals appropriately

reviewed “the totality of the circumstances.” Buell, 296 Or

App at 390. As part of that analysis, the court first stated

that “it can be significant, in the FAPA context, if the rela-

tionship between victim and abuser has changed once they

no longer live[ ] together.” Id. at 385 (emphasis added; inter-

nal citations and quotation marks omitted). The court then

stated, “In those circumstances [where a petitioner has

moved out], even when the relationship was abusive and

volatile when the parties lived together, that past history

may—at least in some circumstances—not be sufficient to

demonstrate that the petitioner remains in imminent dan-

ger of being abused.” Id. (emphasis added). The court did

not say that the parties’ separation would be significant in

every case. And the court did not say that, when parties

have separated, a respondent’s history of abuse while liv-

ing with the petitioner could never be sufficient, by itself, to

establish an imminent danger of further abuse.

The court did conclude, as petitioner points out,

that the record in this case “does not establish a repetitive

pattern of conduct that qualifies as abuse under FAPA that

could support an inference that the abuse will occur again

in the near future.” Id. at 389. But we do not read that state-

ment as requiring a pattern of abuse. Instead, the Court of

Appeals held that respondent’s behavior while the parties

lived together, together with his behavior after the sepa-

ration, failed to establish that petitioner was in imminent

danger of further abuse. We understand the court’s opinion

564 M. A. B. v. Buell

as stating that petitioner’s case would have been stronger if

she had established a more consistent pattern of abuse while

the parties lived together or if she had established that the

pattern of abuse continued after the parties no longer lived

together. Those were specific statements about petitioner’s

case and not a general statement about the elements needed

to establish imminent danger of further abuse. We there-

fore reject petitioner’s argument that the Court of Appeals

misinterpreted the statutory phrase “imminent danger of

further abuse.” ORS 107.718(1).

B. Whether the Record Was Sufficient to Support the Trial

Court’s Conclusion

Even though the Court of Appeals did not err in its

interpretation of the statute, petitioner nevertheless argues

that the Court of Appeals erred in its determination that

the record was insufficient to support the trial court’s con-

clusion that respondent represented an imminent risk of

further abuse to petitioner. Appellate courts review a trial

court’s legal determinations for legal error and the trial

court’s findings of fact for any evidence in the record to sup-

port those findings. Botofan-Miller and Miller, 365 Or 504,

505, 446 P3d 1280 (2019); Buell, 296 Or App at 381.3 The

dispute is whether the trial court’s findings of fact are suf-

ficient to support the trial court’s conclusion that petitioner

was in imminent danger of further abuse.

To support that conclusion, the trial court was

required to find that respondent was reasonably likely to

abuse petitioner in the near future. The trial court was not

required to find that respondent had a specific plan to abuse

petitioner. If respondent represented a continuing threat

to petitioner such that, within the near future, he was

reasonably likely to abuse her, then she was in imminent

3

On appeal in an equitable action, which includes this case, the Court of

Appeals has the discretion to review the record de novo and make its own find-

ings of fact, thus affording no deference to the trial court’s factual findings. See

ORS 19.415(3)(b) (“Upon an appeal in an equitable action or proceeding other

than an appeal from a judgment in a proceeding for the termination of parental

rights, the Court of Appeals, acting in its sole discretion, may try the cause anew

upon the record or make one or more factual findings anew upon the record.”).

But the court did not exercise that discretion in this case.

Cite as 366 Or 553 (2020) 565

danger of further “abuse,” as that term is defined under

ORS 107.705(1).

The trial court made no express findings of fact

on that issue. Instead, the trial court’s findings consisted

primarily of its conclusion that petitioner credibly testified

as to respondent’s past behavior, including past incidents

of abuse, and that respondent’s denials were not credible.

The trial court used its conclusions about respondent’s past

behavior to draw factual inferences about respondent’s

intentions and future state of mind. That was as it should

be. In deciding whether to issue a protective order, a trial

court always will be making an assessment about the like-

lihood of a respondent’s future behavior. Here, although the

trial court did not make that assessment expressly, it did

issue the protective order signifying its conclusion that it

was reasonably likely that respondent would abuse peti-

tioner in the near future.

When a trial court does not make express findings

of fact, “we will presume that the facts were decided in a

manner consistent with the [trial court’s] ultimate conclu-

sion” as long as there is evidence in the record to support

those implicit findings. Ball v. Gladden, 250 Or 485, 487,

443 P2d 621 (1968); see also State v. Jackson, 364 Or 1, 21,

430 P3d 1067 (2018) (“To the extent that the trial court did

not make express findings, this court will presume that the

court decided the facts in the light most favorable to the

defendant, who prevailed below.”). That includes accepting

“reasonable inferences and reasonable credibility choices

that the trial court could have made.” Botofan-Miller, 365

Or at 505-06.

The question on review, therefore, is whether the

evidentiary record is capable of supporting the trial court’s

inference that respondent was reasonably likely to abuse

petitioner in the near future. An evidentiary record may

support a range of factual inferences about the extent to

which a respondent is likely to engage in abusive conduct. In

some cases, that range might be wide; in others, it might be

narrow. And, depending on the evidentiary record, different

courts might reasonably draw contrary inferences that lead

to different outcomes. The role of the reviewing court is to

566 M. A. B. v. Buell

determine whether, based on the totality of circumstances,

a reasonable factfinder could draw the factual inferences

necessary to support the conclusion that petitioner was in

imminent danger of further abuse.

In this case, there is ample evidence in the record

to support the factual inferences that we must presume that

the trial court made. Although respondent acknowledges the

trial court’s findings of historical fact—namely, that respon-

dent twice raped petitioner and threatened to kill her if she

left him—respondent argues here, as he did in the Court

of Appeals, that the parties’ circumstances had changed

between when the prior incidents of abuse occurred and,

months later, when petitioner sought the protective order.

Respondent relies on the fact that the parties were no longer

living together and on the fact that respondent had not yet

acted on or repeated the threat to kill petitioner. Respon-

dent is correct that, as a part of a totality-of-circumstances

assessment, a court must consider those facts, but respon-

dent is incorrect in arguing that those facts, as a matter of

law, preclude a conclusion that respondent posed an immi-

nent risk of further abuse to petitioner.

Respondent’s reliance on the fact that the parties

were no longer living together is unpersuasive. Although

there might be cases where the parties’ separation necessar-

ily 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.

Abuse often occurs not because the parties were incompat-

ible roommates, where the tension between them could be

expected to dissipate when they are no longer living together.

Instead, abuse is frequently the result of one party attempt-

ing to control the other party. See Oregon Domestic Violence

Fatality Review Team, Report and Recommendations on

Improving the Efficacy of Oregon’s Family Abuse Prevention

Act (FAPA) Order, 1 (2015) (noting that domestic violence is

often committed “with the goal of establishing and main-

taining power and control”). In those cases, the parties’

separation might heighten the risk of further abuse. See

id. at 3 (“It has been consistently shown that at the time of

Cite as 366 Or 553 (2020) 567

separation a domestic violence perpetrator will increase his

abuse in order to maintain control over her and the relation-

ship.”). Based on the trial court’s findings, this is clearly one

of those cases. Respondent threatened to kill petitioner if

she left him. And the parties were no longer living together

because petitioner left respondent. As a result, the trial court

was entitled to weigh the fact of the parties’ separation in

favor of granting the protective order.

The passage of time and the fact that petitioner

had not acted on or repeated the threat also do not pre-

clude the trial court’s conclusion. The question remains one

about respondent’s intentions and state of mind. The trial

court, as a finder of fact, could reasonably view respondent’s

persistently erratic and angry behavior between June and

October as establishing that respondent maintained the

hostility and profound disregard for petitioner previously

demonstrated through the incidents of rape and threat

of murder. Respondent discounts that erratic and angry

behavior as an emotional response to the breakup of his

family. Whether or not that is a reasonable assessment of

those facts, it is certainly not the only reasonable assess-

ment. Not all erratic and angry behavior will be grounds for

a protective order. But where the erratic and angry behavior

is persistent and carried out by a respondent who has raped

and threatened to kill a petitioner, a trial court reasonably

may infer from those facts that the respondent is reasonably

likely to abuse the petitioner in the near future. The trial

court’s conclusion that petitioner was in “imminent danger

of further abuse” is supported by evidence in the record and

we therefore must affirm it.

As noted, the Court of Appeals did not resolve

respondent’s argument that the record in this case could not

support the trial court’s conclusion that respondent repre-

sented a credible threat to petitioner’s physical safety. Buell,

296 Or App at 385. We remand for the court to address that

issue in the first instance.

The decision of the Court of Appeals is reversed.

The case is remanded to the Court of Appeals for further

proceedings.