W.M. v. Muck

Under ORS 30.866(3), a child overhearing a conversation she assumes to be about her father in an abstract though unpleasant way is not sufficient to subjectively place her in apprehension of her father’s safety when the comment was made during a telephone call to someone else, on the declarant’s property, while not attempting to contact or even look at the child.

Muck appealed from a judgment which imposed a stalking protective order. Muck was a neighbor of W.M., who was fourteen years old. W.M.’s father called the police about a noise complaint against Muck one night. The following day, W.M. was playing basketball with a neighbor and heard Muck, who was checking his mail, say that he would call the police if they kept making so much noise. Later that evening, W.M. heard Muck making unflattering comments about someone she assumed to be her father while Muck was on his cell phone. These facts led the trial court to issue a stalking protective order against Muck. Muck claims that the court erred by imposing the stalking protective order because there was insufficient evidence for it. Because this was not an exceptional case, the Court reviewed the judgment for an error of law rather than using de novo review. The Court determined that the cumulative effect of the contact between W.M. and Muck was not sufficient for W.M. to be objectively reasonable in feeling “apprehension regarding the personal safety of [her] or a member of [her] immediate family or household.” Reversed.