M. G. S. v. Odyne

492 November 4, 2026 No. 1085 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON M. G. S., Petitioner-Respondent, v. ODYNE ODYNE, Respondent-Appellant. Multnomah County Circuit Court 25PO05557; A188351 Christine A. Martin, Judge. Submitted June 3, 2026. Odyne Odyne filed the brief pro se. No appearance for respondent. Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán, Judge. PER CURIAM Affirmed. Nonprecedential Memo Op: 354 Or App 492 (2026) 493 PER CURIAM Respondent appeals the continuation of a restrain- ing order issued pursuant to the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735. She contends that the trial court (1) erred by continuing the restraining order, because the parties do not have a qualifying relationship; and (2) violated her due process rights by failing to make required findings and by excluding evidence. Petitioner has not appeared on appeal. As explained below, we affirm. As a preliminary matter, we note that our review is limited to plain error because respondent did not argue to the trial court that petitioner failed to prove a qualify- ing relationship, nor did she make any due-process objection below. “Generally, an issue not preserved in the trial court will not be considered on appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). However, we have discretion to correct a “plain” error. ORAP 5.45(1). An error is “plain” when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). Whether an error is “plain” is a question of law. State v. Gornick, 340 Or 160, 167, 130 P3d 780 (2006). If a plain error occurred and was not harmless, then it is a matter of discretion whether we will correct it. State v. B. W. C., 347 Or App 755, 760, 589 P3d 197 (2026) (discretion); ORS 19.415(2) (harmlessness). Here, respondent has requested plain-error review, and we proceed with plain-error review. ORS 107.716(3) states the standard for continuing a FAPA restraining order after a contested hearing. In short, the trial court may continue the restraining order if it finds that abuse occurred within the 180 days preceding the fil- ing of the petition, that the petitioner reasonably fears for their physical safety, and that the respondent represents a credible threat to the petitioner’s physical safety. As rele- vant to this appeal, “abuse” is defined to mean one or more specified acts “between family or household members,” ORS 107.705(1), and “family or household members” is defined to include “[p]ersons * * * who have cohabited with each other,” ORS 107.705(4)(d). 494 M. G. S. v. Odyne The trial court did not plainly err in finding a qual- ifying relationship under FAPA. Petitioner testified at the contested hearing that the parties lived together in 2000. Respondent now claims that is false, but there was no con- trary evidence at the hearing, and, in any event, the trial court credited petitioner’s testimony. To the extent that respondent perceives that some other kind of evidence was needed, she is mistaken—testimony is evidence. To the extent that respondent reads the statute to require cohab- itation within the past two years, that is also mistaken, because a two-year limitation applies for sexually intimate relationships, ORS 107.705(4)(e), but no such time limitation applies for cohabitation, ORS 107.705(4)(d). Finally, to the extent that there was any inconsistency between the allega- tions in the petition and petitioner’s hearing testimony, the trial court properly relied on the hearing testimony.1 As for respondent’s due process claim of error, respondent has not developed any argument as to how her due process rights under the federal constitution were vio- lated, instead seemingly using “due process” as an umbrella term for procedural concerns. We have considered each of those procedural concerns and are unpersuaded that the trial court committed any plain error. We recognize how difficult it is to appear without an attorney, but the trial court could not counsel respondent on how to make objec- tions or otherwise advise her on how to represent herself. As for the trial court’s evidentiary rulings, the court tried to focus the parties on the relevant issues, which appropri- ately included a focus on the 180-day period preceding the filing of the petition. The court admitted the video offered by respondent, so respondent is mistaken in claiming that it was excluded, and the court did not plainly err in making any of the other evidentiary rulings identified by respon- dent. The trial court also did not plainly err in making its credibility findings; as the factfinder, the court was free to 1 A petition is akin to a complaint—it contains allegations, not evidence. Respondent asserts that the trial court treated the petition as evidence, but we find nothing in the record suggesting that to be so. To the contrary, we under- stand the trial court to have properly relied only on the hearing testimony in determining whether the requirements for a FAPA order were met. As for peti- tioner’s testimony not aligning perfectly with the petition, that is neither remark- able nor legally significant. Nonprecedential Memo Op: 354 Or App 492 (2026) 495 credit petitioner’s testimony and discredit respondent’s tes- timony, as it did. Finally, the trial court expressly found that “petitioner established by a preponderance of evidence that he was subjected to abuse by respondent within the last 180 days, that he reasonably fears for his physical safety, and respondent represents a credible threat to his physical safety.” The court was not required to make any further findings, as a matter of due process or otherwise. Affirmed.