Braude v. Braude
Braude v. Braude
Opinion of the Court
Respondents appeal the trial court’s entry of two stalking protective orders (SPOs).
Petitioner and respondent Evan Braude married in the early 1990s and have two children together, a son and a daughter. The couple separated in the fall of 2004 and, following acrimonious divorce proceedings, a judgment dissolving their marriage was entered in 2007. Evan married respondent Karla Braude roughly a year later. Shortly thereafter, he moved to modify the judgment that had dissolved his marriage to petitioner. One hearing in the ongoing modification proceedings was held on May 10, 2010. Petitioner filed civil stalking complaints against respondents the next day.
At a July 2010 hearing on petitioner’s request for permanent SPOs, petitioner accused Karla of having made inappropriate inquiries into petitioner’s accounts at a bank and a gas company, of having contacted the children’s school in violation of petitioner’s custody agreement with Evan, and of having walked past petitioner in the parking lot of the tile
Focusing on events that had occurred the previous year, petitioner also accused both respondents of having repeatedly driven by her rural home in a manner that caused her alarm. Respondents own two cars, a silver Audi with dark tinted windows and a Nissan Armada. On more than a dozen days between mid-August and mid-October 2009, one or the other of those cars was spotted in petitioner’s neighborhood. Sometimes, one of the cars was being driven very slowly along the road in front of petitioner’s house; on other days, one of respondents’ cars stopped for a short time on the road near the entrance to petitioner’s driveway, staying there for up to roughly 10 minutes. Those incidents generally occurred between 5:00 and 8:30 in the morning. Petitioner saw respondents’ cars some of the times they were in her neighborhood; on other occasions, only her neighbors saw the cars. One of those neighbors, Kathleen Hendrix, testified that she saw one of respondents’ cars pass by petitioner’s home “over a dozen [times] easily, and it was very concerning.” After one such incident, Hendrix saw that petitioner was “trembling” and “very, very upset.” Another neighbor also observed a number of the incidents; she found them threatening because it appeared that someone was “trying to watch [petitioner].”
On September 18, 2009, following an e-mail exchange about disputed financial matters, petitioner sent Evan another e-mail stating, in part, “[I]f you and Karla continue to drive by and stop in front of my house everyday it will be considered threatening, menacing and or stalking, continuation of this behavior is a direct acknowledgement of yours and Karla’s intent to threaten as well as stalk me.” Karla testified that she drove by petitioner’s house and photographed it once more, on October 19, 2009, although no evidence suggests that anybody saw her car in petitioner’s neighborhood
At the July 2010 permanent-SPO hearing, respondents acknowledged that Karla repeatedly had driven by petitioner’s home to gather evidence for use in the post-judgment modification proceedings in Evan’s divorce case. Respondents believed that petitioner’s boyfriend had been living with her — contrary to what petitioner had indicated in her Uniform Support Affidavit — and so, on the advice of Evan’s attorney, Karla had sought to prove the boyfriend’s residency by taking photographs that showed his car parked at petitioner’s house early in the morning. As noted, Karla took the last of those pictures on October 19, 2009 — about a month after petitioner had told Evan that respondents should stop driving by her residence. Both respondents asserted, however, that neither of them had driven by petitioner’s house again after that date, disputing petitioner’s claim that they had been in her neighborhood on May 1, 2010. Respondents also testified that Evan never had accompanied Karla on her photography trips and that he never had driven by petitioner’s home to take photographs himself.
Much of the evidence introduced at the July 2010 hearing related to whether the incidents involving respondents’ cars caused petitioner reasonable alarm or apprehension regarding her safety. Undisputed evidence established that nobody who observed the incidents ever saw either of respondents’ cars travel onto petitioner’s property. Nobody saw either respondent get out of the cars, gesture toward petitioner’s house, or attempt to speak with petitioner or with anybody else. In addition, nobody who saw the cars in petitioner’s neighborhood could tell who was driving or riding in
At the SPO hearing, petitioner described two incidents in which Evan had behaved violently toward or around her. The first occurred soon after she and Evan separated in 2004, when Evan was living in an apartment in a separate building on the marital property and petitioner and the children were living in the main house. One day while petitioner and the couple’s daughter were at home, Evan broke open a locked door to enter the house and then broke open the locked door to the master bathroom where the daughter — then 12 years old — was bathing. Although Evan did nothing to physically harm either petitioner or his daughter, he “rant[ed] and raved and went on” in a manner that “was very frightening” while he retrieved his business clothes from the bathroom closet.
Roughly two months later, the couple’s daughter called petitioner from Evan’s new apartment in tears, and petitioner could hear Evan swearing in the background. Petitioner testified that, when she arrived at the apartment to pick up her daughter, Evan told her to “get the F out of there” and then “physically grabbed” her, lifted her onto her toes, and then “tossed” her on the floor. Petitioner obtained a restraining order against Evan following that incident, which she later dismissed. In light of those past events, petitioner testified, she felt frightened for her personal safety when respondents’ cars were repeatedly spotted driving slowly past her home in 2009 and, she claimed, in May 2010.
The trial court concluded that the evidence was sufficient to support entry of permanent SPOs. First, the court determined that the only conduct by respondents that constituted “contacts” for purposes of entering the SPOs were “the contacts at the house, the coming to the house repeatedly early in the morning and parking.”
On appeal, respondents argue that petitioner’s evidence did not satisfy the requirements of ORS 30.866, under which the trial court entered the SPOs. That statute provides, in part:
“(1) A person may bring a civil action in a circuit court for a court’s stalking protective order or for damages, or both, against a person if:
“(a) The person intentionally, knowingly or recklessly engages in repeated and unwanted contact with the other person or a member of that person’s immediate family or household thereby alarming or coercing the other person;
“(b) It is objectively reasonable for a person in the victim’s situation to have been alarmed or coerced by the contact; and
“(c) The repeated and unwanted contact causes the victim reasonable apprehension regarding the personal safety of the victim or a member of the victim’s immediate family or household.”
ORS 30.866.
That statute creates several requirements for entry of an SPO. First, a respondent’s conduct must meet the statutory definition of “repeated and unwanted contact” with the petitioner or a member of the petitioner’s immediate family or household. Reitz v. Erazo, 248 Or App 700, 705, 274 P3d 214 (2012). Second, the petitioner must subjectively — i.e.,
In this case, the record does not support the trial court’s determination that unwanted contacts caused petitioner reasonable apprehension for her personal safety. For purposes of reviewing the trial court’s ruling, we assume (without deciding) that the record supports the court’s implicit finding that each respondent intentionally, knowingly, or recklessly engaged in at least two unwanted contacts with petitioner in the two years before petitioner filed for the SPOs.
Respondents’ behavior in driving by petitioner’s house and photographing it, although unwelcome and unsettling to petitioner, did not itself evince any threat to petitioner’s safety. Respondents did not enter petitioner’s property during those incidents, did not make threatening gestures or comments (indeed, they did not attempt to communicate with petitioner or her neighbors in any way), and did not wait at the end of her driveway for lengthy periods of
Nor do the driveway incidents become objectively threatening when considered in the context of Evan’s earlier violent acts. We recognize that conduct that might appear benign when viewed in isolation can take on a different character when viewed either in combination with or against the backdrop of one party’s aggressive behavior toward the other. Boyd v. Essin, 170 Or App 509, 518, 12 P3d 1003 (2000), rev den, 331 Or 674 (2001). In this case, however, the parties’ past relationship was not so characterized by violence or abuse as to make the more recent contacts objectively threatening. Rather, Evan’s past aggression toward petitioner
Reversed.
In civil stalking proceedings, the party applying for relief is called the “petitioner” and the party against whom relief is sought is called the “respondent.” As we previously have noted, “that nomenclature can be confusing in an appeal like this, where the ‘respondent’ below is the appellant, and the ‘petitioner’ below is the respondent.” Schiffner v. Banks, 177 Or App 86, 88 n 1, 33 P3d 701 (2001). In accordance with our rule governing the designation of parties in briefs, ORAP 5.15, all references to “petitioner” in this opinion are to J. L. B. and all references to “respondents” are to Evan Braude and Karla Braude. Because they share the same last name, we sometimes refer to the individual respondents by their first names.
The record does not indicate on what date each of those events occurred, except that respondents visited petitioner’s place of work in 2008.
Evan acknowledged at the SPO hearing that he had waited in his vehicle at the end of petitioner’s driveway on a handful of occasions when one of the children called him from petitioner’s house, seeking a ride. Petitioner does not argue that any of those incidents constituted “contacts” that could justify entering an SPO against either respondent.
The trial court determined that other incidents, like Karla going to the store where petitioner worked, were “relevant to the entire situation” but did not constitute unwanted contacts on which an SPO could be based. Petitioner does not challenge that determination, with which we agree.
Although Karla testified that she took the photographs and Evan testified that he did not, the trial court found that “[i]t wasn’t made clear who took all these photographs.”
Article I, section. 8, of the Oregon Constitution imposes an additional requirement in stalking cases in which the petitioner “seeks to rely on a contact that involves speech.” Falkenstein v. Falkenstein, 236 Or App 445, 451, 236 P3d 798 (2010). “To avoid constitutional overbreadth problems, a contact that involves speech can serve as a predicate contact for an SPO only if it is a threat.” Id. Petitioner does not allege that any of the contacts in this case involved speech or other expression.
See ORS 30.866(6) (SPO actions “must be commenced within two years of the conduct giving rise to the claim”).
Reference
- Full Case Name
- Jennifer Lee BRAUDE, Petitioner-Respondent v. Karla Prescott BRAUDE, Respondent-Appellant Jennifer Lee BRAUDE, Petitioner-Respondent v. Evan Paul BRAUDE and Karla Prescott Braude
- Cited By
- 18 cases
- Status
- Published