M. A. B. v. Buell

Under FAPA, a petitioner seeking a restraining order has the burden of proving by a preponderance of the evidence that the respondent "(1) 'abused' petitioner in the 180 days preceding the filing of the petition, (2) presents an 'imminent danger of further abuse' to petitioner, and (3) 'represents a credible threat to the physical safety of the petitioner.'" Kargol v. Kargol, 295 Or App 529, 532 (2019) (quoting ORS 107.718(1)).

Respondent appealed the trial court’s order to continue the Family Abuse Prevention Act (“FAPA”) restraining order that Petitioner, his former wife, filed against him. On appeal, Respondent argued that Petitioner did not prove that he, the Respondent, presented an imminent danger of further abuse to Petitioner, or that he represented a credible threat to her physical safety. Under FAPA, a petitioner seeking a restraining order has the burden of proving by a preponderance of the evidence that the respondent "(1) 'abused' petitioner in the 180 days preceding the filing of the petition, (2) presents an 'imminent danger of further abuse' to petitioner, and (3) 'represents a credible threat to the physical safety of the petitioner.'" Kargol v. Kargol, 295 Or App 529, 532 (2019) (quoting ORS 107.718(1)). The Court found that the record did not establish a repetitive pattern of conduct qualifying as "abuse" under FAPA sufficient to support an inference that the abuse would occur again in the near future. Thus, the Court held that 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 context since they separated, Respondent's conduct is insufficient to demonstrate that Petitioner is in imminent danger of further abuse. Reversed.