M. Q. v. Mar

242 October 28, 2026 No. 1038 IN THE COURT OF APPEALS OF THE STATE OF OREGON M. Q. Petitioner-Respondent, v. DANNI MAR, Respondent-Appellant. Marion County Circuit Court 25PO07705; A188800 Amy M. Queen, Judge. Argued and submitted September 9, 2026. Jason E. Thompson argued the cause for appellant. Also on the brief was Thompson Law, LLC. No appearance for respondent. Before Joyce, Presiding Judge, O’Connor, Judge, and DeVore, Senior Judge. O’CONNOR, J. Reversed. Cite as 354 Or App 242 (2026) 243 O’CONNOR, J. Respondent appeals from an order granting a petition for a restraining order under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735, and from the order continuing the FAPA order, which prohibits him from contact with petitioner. Respondent raises two assignments of error. In his first assignment of error, respondent argues that the trial court erred in granting the petition for the FAPA order ex parte because there was insufficient evidence that petitioner was in imminent danger from respondent. In his second assignment of error, respondent argues that the trial court erred when it continued the FAPA order because there was insufficient evidence that respondent posed a cred- ible threat to petitioner. Petitioner does not appear on appeal. We conclude that there was insufficient evidence to find that respondent posed a credible threat to petitioner under ORS 107.716(3)(a)(C) and, thus, that the trial court erred when it continued the FAPA order. Accordingly, we reverse.1 ORS 107.718(1) provides that a trial court shall issue an ex parte FAPA order “[u]pon a showing that the petitioner has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, that there is an immi- nent danger of further abuse to the petitioner and that the respondent represents a credible threat to the physical safety of the petitioner or the petitioner’s child[.]” ORS 107.716(3) further provides that a trial court may con- tinue a FAPA order if the court finds that abuse has occurred within 180 days of the filing of the petition, the petitioner reasonably fears for their physical safety, and the respon- dent represents a credible threat to the physical safety of the petitioner. Respondent does not request de novo review, and this is not an exceptional case that merits exercising our 1 Although respondent also challenges the legal sufficiency of the evidence to support the trial court’s issuance of the FAPA order after the ex parte hearing, it is not necessary for us to resolve that issue on appeal because we reverse the con- tinuance of the FAPA order. On remand, the trial court should cancel the FAPA order. See ORS 107.716(3)(b) (authorizing the court to “cancel” any order issued under ORS 107.718). That renders moot the challenge to the issuance of the order after the ex parte hearing. 244 M. Q. v. Mar discretion to do so. See ORS 19.415(3)(b) (authorizing this court to review the facts de novo as a matter of discretion); ORAP 5.40(8) (limiting exercise of de novo review to excep- tional cases). Therefore, we review the trial court’s conclu- sions regarding a FAPA order for legal error and are bound by the trial court’s express and implied factual findings if they are supported by any evidence in the record. J. V.-B. v. Burns, 284 Or App 366, 367, 392 P3d 386 (2017). We state the facts in accordance with that stan- dard. On August 6, 2025, petitioner filed an ex parte peti- tion for a restraining order under FAPA. The following day, the trial court held an ex parte hearing on the petition. The trial court granted the petition and issued the FAPA order prohibiting respondent from contact with petitioner. The provisions of the FAPA order were in effect for a period of two years, or until the order was withdrawn, amended, or superseded. Respondent opposed the restraining order and requested a hearing. At the hearing, petitioner and respon- dent both testified and petitioner offered one exhibit, which consisted of an email exchange between her and respondent. Petitioner testified that after a disagreement over text mes- sage on the morning of July 16, 2025, she ended her relation- ship with respondent via text message. Petitioner did not live with respondent at that time. In response, respondent sent her numerous text messages and emails. She blocked his phone number and email. Petitioner testified that around 10:30 p.m. on that same day, July 16, respondent came to her home and knocked on the door a number of times. After she opened the door, respondent entered her home. Petitioner attempted to get respondent to leave and was eventually able to get him to exit by pushing the door closed. She locked the door. Petitioner “had a hard time walking for three days after how much [she] had to try and push on the door to get [respon- dent] out” of her home. Petitioner and respondent then sent a series of emails to each other, which were included in peti- tioner’s exhibit. Petitioner testified that he continued to send her emails, and that respondent also texted her brother and interacted with her friends over social media. Petitioner Cite as 354 Or App 242 (2026) 245 also testified that none of the messages that respondent sent included any threats to physically harm her, but rather were “bid[s] for [them] to see each other.” Over email, petitioner and respondent agreed that they needed to stay in communication to settle shared accounts and finances. Petitioner testified that all of those tasks were taken care of by July 29 or 30. The last time respondent was in petitioner’s physical presence was when he exited her home on July 16, and petitioner testified that respondent had not attempted to be in her physical presence or attempted to come to her house since then. Petitioner testified that she thought that respondent had been out of the country from sometime in July until August 9, after she filed the petition for the FAPA order, which is one reason she believed that he had not attempted to be in her physical presence. At the close of petitioner’s case, respondent moved for a directed verdict, arguing that the evidence was insuf- ficient to show that petitioner had a reasonable fear for her physical safety or that respondent posed a credible threat. The trial court denied the motion. Respondent then pre- sented evidence. In closing argument, respondent argued that petitioner had not established that he “was a credible threat to her physical safety moving forward” and that there was no evidence of “ongoing abuse.” Relying primarily on the July 16 incident, the trial court found that petitioner had met her burden to show: (1) that abuse was committed by respondent within the 180 days of filing the petition; (2) that petitioner reasonably feared for her physical safety; and (3) that respondent posed a credi- ble threat to petitioner’s physical safety. The trial court also found that petitioner and respondent were in a qualifying relationship. The trial court issued an order continuing the FAPA order pursuant to ORS 107.716(3). In that written order, the trial court memorialized the findings it made at the contested hearing. Respondent filed this appeal. We conclude that there was insufficient evidence to support a determination that respondent posed a credible threat to petitioner’s physical safety as required by ORS 107.716(3)(a)(C). Even relying on petitioner’s own testimony, 246 M. Q. v. Mar there was no evidence that respondent returned to petition- er’s home after the July 16 incident or threatened to do so. Although respondent sent numerous messages to petitioner, based on petitioner’s testimony, respondent never threatened to harm petitioner in those messages. See A. J. T. v. Croft, 311 Or App 574, 575-77, 492 P3d 778 (2021) (holding that there was insufficient evidence that the respondent posed a credible threat to the petitioner when “[t]here [was] no evi- dence that * * * communications” from the respondent “were threatening, abusive, or inappropriate”). Rather, respon- dent’s messages in this case expressed unhappiness that the relationship was ending and a desire to see petitioner again. Based on the evidence presented at the contested hearing, the last email that respondent sent to petitioner was on August 6, the day before the FAPA order was issued, and stated that he would “honor” petitioner’s “request for no contact from here forward.” In all, there was insufficient evidence that respondent posed a credible threat to petition- er’s physical safety. See id. (insufficient evidence of a cred- ible threat when there were multiple emails and messages from the respondent expressing his unhappiness about a breakup, but those communications eventually stopped). Therefore, the trial court erred in ordering that the FAPA order be continued. Reversed.