On October 5, 2016, the Oregon Court of Appeals issued an opinion regarding the findings necessary to uphold a temporary restraining order. In TK v. Stutzman, 281 Or App 388 (2016), the Court reviewed the validity of a temporary restraining order issued under the Family Abuse Prevention Act (FAPA). To support such an order, a petitioner must establish that (1) the respondent had abused the petitioner within 180 days before the petition was filed, (2) there was an imminent danger of further abuse to the petitioner, and (3) the respondent presented a credible threat to the physical safety of the petitioner. ORS 107.718(1).
In the underlying case, the petitioner was the respondent's 28-year-old niece. The two were estranged, and the respondent believed the petitioner had a drug problem. The incident that led to the restraining order took place after a church service attended by both parties and the petitioner's fiancé. The petitioner testified that after the service, the respondent approached her, accused her of using drugs and being involved with pornography, and grabbed her by the arm when she attempted to walk away. The petitioner pulled free and continued walking. The respondent then stood in front of the petitioner's car door in the parking lot and told her, "If we weren't at church, you'd be dead right now." The petitioner pushed the respondent out of the way and drove out of the parking lot while the respondent continued to yell. The petitioner testified that she was "very fearful for her life."
The Court of Appeals expressed some reservation regarding whether the incident after the church service constituted "abuse," but focused its inquiry on whether (1) the petitioner was in imminent danger of further abuse and (2) the respondent represented a credible threat to the petitioner's physical safety.
In holding that those two elements were not met, the Court noted that "a petitioner's subjective fear is insufficient to support a FAPA restraining order." The Court further explained that this case involved "an isolated incident of aggressive, primarily verbal, conduct;" that there was no evidence the respondent made any effort to harm the petitioner during the incident; and that there was no evidence the respondent had ever harmed, or attempted to harm, the petitioner or anyone else.
The Court of Appeals reversed the trial court's continuance of the temporary restraining order, concluding that "although the church incident caused petitioner fear, in context, it was insufficient to show that respondent posed an imminent danger and credible threat to petitioner's physical safety."