OTLA Trial Lawyer Fall 2020

51 Trial Lawyer • Fall 2020 See Sheets 52 of further abuse” to the petitioner re- quires a showing that the respondent represented a continuing threat to the petitioner such that, within the near future, he was reasonably likely to abuse her. M.A.B. v. Buell , 366 Or 553 (2020); Nelson, J. The petitioner was repre- sented by Emily Rena-Dozier. Sarah Feldman filed the brief for amicus curiae OTLA. The trial court issued the petitioner a Family Abuse Prevention Act (FAPA) restraining order and, upon the request of the respondent, held a hearing, from which the entirety of the record in this case was derived. At the hearing, the petitioner testified she has a son with the respondent, the respondent raped her twice, and the respondent told her if petitioner left or divorced him, he would kill her and take their son. The peti- tioner testified she subsequently left the respondent, moved in with her parents and filed for divorce. Respondent made frequent attempts to contact her by phone, email and text message. The mes- sages were erratic, sometimes loving, other times angry, and sometimes in- cluded attacks on the petitioner’s family. At prearranged meetings, such as meet- ings to transfer their son from one to the other, the respondent would exhibit anger toward the petitioner. A mediator testified at the hearing that at mediation over custody and parenting-time, the respondent exhibited extreme rage, and because he could not calm down, the mediation ended. After the hearing, the trial court con- tinued the protective order in its entirety. The trial court made brief findings, find- ing that the petitioner was credible about the rape and the respondent’s threat to kill her. The trial court characterized the messages and conduct at the mediation as incidents of intimidation. The trial court found the respondent’s denials were not credible. The respondent appealed and the Court of Appeals reversed and remanded. Under FAPA, a petitioner may obtain a protective order by establishing, by a preponderance of the evidence, that (1) the petitioner has been the victim of abuse within the last 180 days (which the respondent conceded); (2) there is an imminent danger of further abuse to the petitioner; and (3) the respondent repre- sents a credible threat to the physical safety of the petitioner or the petitioner’s child. The Court of Appeals held the evidence was insufficient to show the petitioner was in imminent danger of further abuse from the respondent. Be- cause of that finding, the Court of Ap- peals did not reach the third factor. The Supreme Court held that the record established imminent danger, and reversed and remanded to the Court of Appeals for further proceedings on the third factor. On review, the petitioner argued the Court of Appeals misinter- preted the phrase “imminent danger of further abuse” by imposing a temporal limit on potential abuse and by requiring a petitioner who has left the respondent to show a pattern of abuse after separa- tion. The Supreme Court concluded the plain meaning of “imminent”— “near at hand” or “impending”— evidenced the Legislature’s intent to impose a temporal limit within the statute. The Supreme Court also concluded the Court of Ap- peals was not requiring the showing of a pattern of abuse after separation but rather was conducting a totality-of-cir- cumstances analysis. The Supreme Court reasoned that while FAPA prohibits a court from determining no imminent threat solely based upon the fact the petitioner no longer lives with the re- spondent, a court may still consider all the circumstances, as the Court of Ap- peals did here, without giving decisive weight to one fact. However, the Supreme Court held the record and trial court’s findings were sufficient to support the trial court’s conclusion that the petitioner was in