No. 361 July 12, 2023 39

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

K. E. B.,

Petitioner-Appellant,

v.

John W. BRADLEY,

Respondent-Respondent.

Multnomah County Circuit Court

16PO02279; A178936

Amy Holmes Hehn, Judge.

Argued and submitted April 20, 2023.

Janet M. Schroer argued the cause for appellant. Also on 

the briefs were Taylor B. Lewis and Hart Wagner LLP.

Dean N. Alterman argued the cause and filed the brief 

for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and 

Jacquot, Judge.

AOYAGI, P. J.

Vacated and remanded.
40 K. E. B. v. Bradley

AOYAGI, P. J.

Petitioner obtained a Family Abuse Prevention Act 

(FAPA) restraining order against respondent in 2016. It 

was renewed in 2017, 2018, 2019, 2020, and 2021. The trial 

court denied renewal in 2022, resulting in dismissal of the 

restraining order. In her sole assignment of error, petitioner 

challenges the denial of renewal, arguing that the trial court 

misapplied the renewal standard or, alternatively, that our 

description of the renewal standard in J. N. D. v. Dehkordi, 

309 Or App 198, 203, 481 P3d 422 (2021) (Dehkordi), is 

plainly wrong, such that Dehkordi should be overruled on 

that point.1

 As explained below, we agree that we misstated 

the renewal standard in Dehkordi, as we failed to take into 

account a recent legislative amendment to FAPA that indirectly affected that standard. We therefore vacate the order 

dismissing petitioner’s restraining order and remand for 

further proceedings under the correct legal standard.

The facts underlying the original issuance of the 

FAPA restraining order and intervening renewals are 

immaterial to the issue on appeal. It is sufficient to say 

that petitioner was granted a FAPA restraining order in 

2016, which was renewed annually through 2021. In the 

2022 contested renewal proceeding, the trial court found 

that petitioner continued to be subjectively “very fearful” 

of respondent and that such fear was “objectively reasonable,” but the court nonetheless denied renewal due to the 

lack of evidence of “imminent danger.” The court explained 

that, under Dehkordi, the “imminent danger” requirement 

1 Petitioner did not argue to the trial court that Dehkordi is wrong and should 

be overruled. However, petitioner raised the relevant issue in the trial court—the 

proper renewal standard for a FAPA order—including arguing for renewal under 

Dehkordi. On appeal, she reiterates her argument made below, as well as arguing 

in the alternative that we should overrule Dehkordi. Under the circumstances, 

petitioner adequately preserved the issue that she raises on appeal. Arguing to 

the trial court that Dehkordi is wrong would not have served any meaningful 

purpose, as it would not have prompted different development of the record, and 

at most the trial court would have stated on the record what it in fact did state on 

the record—that it was bound by Dehkordi even if it disagreed with it. In short, 

the general issue was raised, and it is only a particular argument that did not 

need to be raised, as making that particular argument would have been futile, 

and petitioner obtained no “unfair advantage or surprise” in waiting to raise the 

issue on appeal. See State v. Merrill, 303 Or App 107, 112-13, 463 P3d 540 (2020), 

adh’d to as modified on recons, 309 Or App 68, 481 P3d 441, rev den, 368 Or 402 

(2021) (very similar circumstances). 
Cite as 327 Or App 39 (2023) 41

applies in FAPA renewal proceedings, although it also noted 

that it found that aspect of Dehkordi “confusing” given the 

legislature’s recent removal of that requirement from FAPA 

continuation proceedings:

“[T]he Court of Appeals in Dehkordi has made it clear 

that for the fear of a FAPA petitioner to be considered 

‘objectively reasonable’ in the FAPA renewal context, the 

respondent must present a credible threat to the survivor’s 

physical safety. Dehkordi holds further that in the FAPA 

renewal context, not only must the respondent present 

a credible threat to the petitioner’s physical safety, [but] 

the respondent must pose an imminent danger of further 

abuse to Petitioner, even though the legislature removed 

the requirement of ‘imminent danger’ from the standard 

applied for continuing a FAPA restraining order at the contested hearing stage. ORS 716.716(3)(a). The Court finds 

this to be confusing. Nevertheless, the Court is bound to 

apply the standard articulated in Dehkordi to the fact[s] 

of this case. That standard, as the Court understands it, 

requires the Court to find that if [petitioner’s] restraining 

order is not renewed, it is more likely than not that not only 

will [respondent] harm [petitioner] physically, [but] he will 

do so imminently.

“Applying that standard, on the evidentiary record 

before it, even given the history known to the Court, this 

Court is unable to find that this standard has been met. 

Given the circumstances as they appear today, and the 

potential consequences for [respondent] that could flow 

from it, it appears to this Court unlikely that [respondent] 

will seek out [petitioner] and harm her physically. It’s possible that this will happen, but ‘possible’ is not the legal 

standard that the Court is required to apply.”

(Emphases in original.)

Given its central role in the trial court’s decision, 

we begin our analysis with a discussion of Dehkordi. In 

Dehkordi, the trial court renewed a FAPA restraining order, 

expressly finding that the petitioner reasonably feared for 

her personal safety and that the respondent represented a 

credible threat. 309 Or App at 201. The respondent appealed 

the renewal order, challenging the court’s factual findings. 

Id. We began our analysis by stating the legal standard for 

renewal of a FAPA restraining order under ORS 107.725(1), 
42 K. E. B. v. Bradley

relying on a 2005 case for the proposition that the renewal 

standard essentially requires the trial court to find “that 

the reasons for entry of the FAPA order still exist”:

“The requirement for the renewal of a FAPA order—

that the court find that the petitioner has a reasonable fear 

of further abuse from the respondent, ORS 107.725(1)—is, 

practically speaking, a requirement that the court find 

that the reasons for entry of the FAPA order still exist. See 

[A. M. E.] v. Biehler, 203 Or App 271, 277, 124 P3d 1256 

(2005) (statutory requirements for termination of FAPA 

order require court to determine that the bases for entry 

of the order—recent abuse or imminent danger of further 

abuse—have ceased to exist and the petitioner no longer has reason to fear the respondent). Thus, in seeking 

to renew the FAPA order, petitioner bears the burden to 

present evidence that her subjective fear of petitioner is 

objectively reasonable—that is, that respondent continues 

to pose an imminent danger of further abuse and a credible 

threat to petitioner’s physical safety. ORS 107.710(2).”

Id. at 201-02 (emphasis in original; footnote omitted).

Relying on that articulation of the legal standard, 

we assumed that the trial court had implicitly found that 

the respondent posed an “imminent danger of further 

abuse” to the petitioner in Dehkordi, because such a finding 

was “necessary for and consistent with the determination to 

renew the order.” Id. at 202; see M. A. B. v. Buell, 366 Or 553, 

565, 466 P3d 949 (2020) (“When a trial court does not make 

express findings of fact, we will presume that the facts were 

decided in a manner consistent with the [trial court’s] ultimate conclusion as long as there is evidence in the record to 

support those implicit findings.” (Internal quotation marks 

omitted.)). We then reviewed the record and concluded that 

the evidence was legally insufficient to support an implicit 

finding of “imminent danger of further abuse,” citing several cases regarding what constitutes “imminent danger of 

further abuse” for purposes of continuing a FAPA restraining order. 309 Or App at 202-03 (citing M. A. B., 366 Or at 

559-64; J. K. v. Kargol, 295 Or App 529, 532-33, 435 P3d 814 

(2019); and C. M. V. v. Ackley, 261 Or App 491, 494-95, 326 

P3d 604 (2014)). On that and other bases, we reversed the 

order renewing the restraining order. Id at 202-04.
Cite as 327 Or App 39 (2023) 43

At the time that we decided Dehkordi, it appears 

that A. M. E. was the only Oregon appellate opinion describing the FAPA renewal standard, and we summarily relied 

on it as correctly stating the standard. See Dehkordi, 309 

Or App at 201. A. M. E. itself involved the denial of a motion 

to terminate a stalking protective order (SPO). A. M. E., 

203 Or App at 276-77. However, in deciding the legal standard to terminate an SPO, we relied heavily on the FAPA 

statutory scheme and “the analogous nature of FAPA.” Id. 

Regarding FAPA renewal and termination, we stated in 

A. M. E.:

“[I]n the FAPA context, a judge may terminate a renewed 

FAPA order upon a respondent’s showing that the petitioner lacks a reasonable fear of future abuse. The legislative requirement that the court must find that the 

petitioner lacks reasonable fear of future abuse is, practically speaking, a requirement that the court find that the 

reasons for entering the FAPA in the first place—recent 

abuse or imminent danger of further abuse—have ceased 

to exist and the petitioner no longer has reason to fear the 

respondent.”

Id. at 277. We ultimately concluded “that the legislature 

intended that the criteria for terminating unlimited duration SPOs be comparable to the criteria for removing FAPA 

restraining orders[,]” i.e., that the order should terminate 

when “the criteria for issuing the order *** are no longer 

present.” Id. (emphasis added).

What we failed to take into account in Dehkordi 

was that in May 2019, just a few months before the trial 

court entered the renewal order at issue—see Dehkordi, 309 

Or App at 200 n 1 (noting that the renewal petition was 

filed in August 2019)—the legislature had amended FAPA 

to lower the standard for continuing a restraining order. See 

Or Laws 2019, ch 144, § 1 (amendment). The new lower standard applies to orders issued on or after May 22, 2019. Id.

§§ 2-3 (applicability and effective date). Although the 2019 

amendment does not expressly affect the FAPA renewal 

standard, it alters the continuance standard in such a way 

that our statement in A. M. E. ceased to be good law. We 

pause to explain what we mean in more detail.
44 K. E. B. v. Bradley

Prior to 2019, to obtain a restraining order at an 

ex parte hearing, the petitioner had to show abuse within 

the preceding 180 days, imminent danger of further abuse, 

and a credible threat. ORS 107.718(1) (2017); ORS 107.718(1) 

(2003). If a restraining order was granted, the respondent 

had 30 days to request a contested hearing, after which 

the court would decide whether to continue or dismiss the 

restraining order. ORS 107.716(3), (5) (2017); ORS 107.718(10) 

(2017); ORS 107.718(1), (4) (2003); ORS 107.718(8) (2003). 

The statute was silent as to what needed to be proved at a 

contested hearing to support continuance, see ORS 107.716 

(2017); ORS 107.716 (2003), so we and the Supreme Court 

understood it to necessarily require the same findings as 

an ex parte hearing, including an “imminent danger” finding. See, e.g., M. A. B., 366 Or at 555 (determining whether 

evidence was sufficient to prove “imminent danger” for purposes of continuing a restraining order in 2017); W. J. F. v. 

Fielder, 211 Or App 688, 691-93, 157 P3d 220 (2007) (same, 

as to continuing a restraining order in 2006). If continued, 

the restraining order would remain in effect up to one year. 

ORS 107.716(6) (2017); ORS 107.716(5) (2003). It also could 

be renewed annually, if the court found that “[a] person in 

the petitioner’s situation would reasonably fear further acts 

of abuse” if the order was not renewed, regardless of whether 

any “further act of abuse” had occurred. ORS 107.725(1)(a), 

(2) (2017); see also ORS 107.725 (2003) (nearly identical).

In 2019, in response to our decision in M. A. B. v. 

Buell, 296 Or App 380, 388-90, 438 P3d 465 (2019), rev’d, 

366 Or 553, 466 P3d 949 (2020) (holding that the evidence 

at the contested hearing was insufficient to prove “imminent danger of further abuse”), the legislature “relaxed the 

requirements” for continuing a FAPA restraining order. 

N. F. M. v. Al Khalidi, 315 Or App 668, 669 n 1, 503 P3d 468 

(2021), rev den sub nom, M. v. Khalidi, 369 Or 504 (2022). 

The legislature did so by adding a new FAPA provision 

that allows the trial court to continue the restraining order 

issued at an ex parte hearing, after a contested hearing, if 

the court finds that:

“(A) Abuse has occurred within the period specified in 

ORS 107.710 (1) [which is currently within 180 days preceding the filing of the petition];
Cite as 327 Or App 39 (2023) 45

“(B) The petitioner reasonably fears for the petitioner’s 

physical safety; and

“(C) The respondent represents a credible threat to the 

physical safety of the petitioner or the petitioner’s child.”

Or Laws 2019, ch 144, § 1; ORS 107.716(3)(a) (codified).2

The 2019 amendments to FAPA did not alter the 

requirements for obtaining a restraining order at an ex parte 

hearing—the petitioner still must show abuse within the 

preceding 180 days, imminent danger of further abuse, and 

a credible threat. ORS 107.718(1). If a restraining order is 

granted, the respondent still has 30 days to request a contested hearing, after which the court will decide whether to 

continue or dismiss the restraining order. ORS 107.716(3); 

ORS 107.718(10). But the standard for continuing the 

restraining order has changed. It is no longer necessary 

that the trial court find an imminent danger of further 

abuse, as previously required at the continuation stage; 

it is now enough for the court to find that “[t]he petitioner 

reasonably fears for the petitioner’s physical safety.” ORS 

107.716(3)(a)(B).

As for renewal of a FAPA restraining order, the 

statutory language remains the same as it was before 2019. 

The restraining order may be renewed upon a finding that 

“[a] person in the petitioner’s situation would reasonably 

fear further acts of abuse by the respondent if the order 

is not renewed[,]” ORS 107.725(1)(a), regardless of whether 

any “further act of abuse” has occurred, ORS 107.725(2). 

However, the statutory context for the renewal provision has 

substantially changed. Prior to the 2019 amendment, the 

legal standard for a FAPA restraining order was the same 

at every stage—initial (the ex parte hearing), continuation 

(the contested hearing), and renewal. See M. A. B., 366 Or 

at 555 (regarding continuation); A. M. E., 203 Or App at 

277 (regarding renewal). That is no longer the case after 

the 2019 FAPA amendment. There is now a statutorily proscribed step down between the initial stage and the continuation stage as to what must be proved. Moreover, the nature 

2 In 2023, the legislature again amended ORS 107.716, ORS 107.718, and 

ORS 107.725. Or Laws 2023, ch 130, §§ 1-3. However, those amendments are not 

yet in effect. Id. § 4 (applicability and effective date). 
46 K. E. B. v. Bradley

and purpose of the 2019 amendment make clear that the 

legislature intends the “imminent danger of further abuse” 

requirement to apply only at the initial stage. It would make 

no sense given the overall scheme to construe ORS 107.725 

as requiring more for renewal than ORS 107.716 requires 

for continuation.

We will “depart from precedent when the statutory 

context for a particular decision has substantially changed.” 

Farmers Ins. Co. v. Mowry, 350 Or 686, 693, 261 P3d 1 (2011). 

Here, in light of the 2019 FAPA amendment, our statement 

in A. M. E., 203 Or App at 277, that the standard for renewing or terminating a FAPA restraining order is the same as 

the standard “for entering the FAPA in the first place” can 

no longer be considered good law. It follows that we should 

not have relied on that statement in deciding Dehkordi, 

which involved a FAPA renewal order issued a few months 

after the 2019 amendment went into effect.

Notably, we were not actually interpreting the 

FAPA renewal standard in Dehkordi—we were simply 

applying existing case law. Had we been aware of the 2019 

amendment to the continuance standard and recognized its 

indirect effect on the renewal standard, we almost certainly 

would have held—as we do now—that the renewal standard 

for a FAPA restraining order is in line with the current standard for continuing a FAPA restraining order, rather than 

the standard for initially obtaining one. We readily conclude 

that this is an appropriate circumstance to recognize our 

error and correct course.3 See State v. McCarthy, 369 Or 

129, 144-45, 501 P3d 478 (2021) (deciding whether to overrule a prior opinion requires “an exercise of judgment that 

takes all appropriate factors into consideration,” for which 

there is “no fixed list,” but one appropriate consideration 

is “whether the factual or legal underpinnings of the case 

have changed, including whether the case was based on a 

3 We note that our mistaken reliance on A. M. E. affected the analysis in 

Dehkordi, in that we assumed that the trial court had made an implicit finding of 

“imminent danger” and concluded that such finding was unsupported by the evidence. See Dehkordi, 309 Or App at 202. It did not affect the outcome of Dehkordi, 

however, because we independently concluded that the “credible threat” finding 

was unsupported. Id. at 203.
Cite as 327 Or App 39 (2023) 47

significant assumption that has proven to be erroneous” 

(internal quotation marks and footnote omitted)).

In sum, to renew a FAPA restraining order, it is no 

longer necessary for the trial court to find an “imminent 

danger of further abuse.” Dehkordi wrongly stated that such 

a finding was required for renewal, and we therefore overrule that portion of Dehkordi.

4 See State v. Civil, 283 Or App 

395, 405-06, 388 P3d 1185 (2017) (we will overrule existing 

precedent if it is “plainly wrong,” which is “a rigorous standard grounded in presumptive fidelity to stare decisis”).

That brings us to the disposition of this appeal. In 

denying petitioner’s 2022 renewal request, the trial court 

expressly relied on the FAPA renewal standard articulated 

in Dehkordi, particularly the need for an “imminent danger” finding. We have now overruled Dehkordi insofar as it 

required an “imminent danger” finding to renew a FAPA 

restraining order. Under the circumstances, we agree with 

petitioner that the appropriate disposition is to vacate the 

order dismissing the restraining order and remand to the 

trial court for further proceedings.5

Vacated and remanded.

4 Because this opinion overrules our existing precedent, the panel specifically advised all members of the court of the effect of its decision, but neither the 

chief judge nor a majority of the regularly elected or appointed judges referred, 

under ORS 2.570(5), the cause to be considered en banc.

5 During oral argument, respondent raised an issue regarding how remand 

proceedings would be conducted in the event of reversal, given the timing of 

FAPA restraining order renewals and the timeline of this case. We agree with 

the parties that that issue is best addressed in the trial court on remand.