# M. A. B. v. Buell

> Oregon Supreme Court · June 18, 2020 · 366 Or. 553

URL: https://www.frixlaw.com/law-library/cases/10627319

## Case

- **Court:** Oregon Supreme Court
- **Decided:** June 18, 2020
- **Citations:** 366 Or. 553; 466 P.3d 949
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Nelson
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10627319

## How later opinions describe it (automated extraction)

- concluding that the respondent’s angry behavior towards the peti- tioner after their divorce was not sufficient for the imminent danger require- ment when there was no abuse after their separation, and the only threat had been communicated before the petitioner left the home
- explaining that appellate courts review a trial court’s resolution of a question of law for legal error, but review a trial court’s findings of fact for whether any evidence in the record supports the finding
- concluding that the passage of time and that the petitioner “had not acted on or repeated the threat also do not pre- clude the trial court’s” issuance of a protective order
- holding that the evidence at the contested hearing was insufficient to prove “immi- nent danger of further abuse”

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10627319. Public record. Not legal advice.