T.K. v. Stutzman

Under the Family Abuse Protection Act, a petitioner requesting a temporary restraining order must meet each of the following requirements: (1) that petitioner has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, (2) that there is an imminent danger of further abuse to the petitioner and (3) that the respondent represents a credible threat to the physical safety of the petitioner.

Respondent appealed a temporary restraining order granted by the trial court under the Family Abuse Prevention Act (FAPA) ORS 107.700-107.735. In Respondent’s assignment of error, he contended Petitioner failed to present sufficient evidence to demonstrate she was in “imminent danger of further abuse” and that Respondent was “a credible threat to [her] physical safety” ORS 107.718(1). Per the trial court’s factual finding, there is no evidence that Respondent had ever harmed or attempted to harm Petitioner (or another person). The Court held that person’s subjective fear is insufficient to support a FAPA restraining order. Hubbel v. Sanders, 245 Or App 321, 326, 263 P3d 1096 (2011). During the single event that triggered Petitioner to seek this temporary restraining order, the court found that even if respondent’s actions were to be considered “abuse”, Petitioner still failed to establish the other two requirements: (1) that she was in “imminent danger of further abuse” and (2) that Respondent was “a credible threat to [her] physical safety”. Reversed.