[DV_listserv] FAPA case

[Domestic Violence issues]

New FAPA case: SMH v. Gerald Wayne Anderson
Filed: 7/11/12

http://courts.oregon.gov/Publications/A147165.pdf

Holding:
A FAPA restraining order will be upheld only if the
evidence established that "the alleged conduct create[d] an imminent danger of further
abuse and a credible threat to the physical safety of the petitioner." Hubbell v. Sanders,
245 Or App 321, 326, 263 P3d 1096 (2011). The evidence in this case--even viewed in
the light most favorable to petitioner, with all permissible inferences drawn in her favor--
is not sufficient to establish those prerequisites for a FAPA restraining order.

Facts: (These facts are unusual, but the Holding is helpful in determining when there is an “imminent danger” and “credible threat”)

SMH obtained a restraining order against Anderson under the Family
Abuse Prevention Act (FAPA). Anderson appealed the trial court’s
decision to continue the restraining order. SMH and Anderson
lived together in the 90′s in Arizona, and Anderson was
abusive. Less than two weeks after the last abusive incident, Anderson was arrested and sent
to jail in Utah for unrelated reasons. SMH and her
children moved back to Oregon, taking some of Anderson’s stuff.
Several years later, Anderson contacted SMH asking how she and her
parents were doing and to let her know he might come for his stuff.
She told him to leave her and her family alone. In 2009, Anderson
spoke with a mutual friend of his and SMH, and asked the friend about
SMH. SMH then obtained the FAPA restraining order (arguing that Anderson’s incarceration tolled the abuse w/i 180-day provision)
Anderson argued that there was no evidence that he presented an imminent danger of
further abuse or a credible threat to SMH’s physical safety. The Court
of Appeals agreed, explaining that, although close, Anderson never
overtly threatened SMH, made an effort to come to Oregon from Arizona,
or otherwise made contact with her except for the one letter.
Reversed.



Erin S. Greenawald
Sr. AAG
Domestic Violence Resource Prosecutor
Oregon Department of Justice
Criminal Justice Division
(503) 378-6347


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