R. M. v. McNeer

No. 561 June 25, 2025 425 IN THE COURT OF APPEALS OF THE STATE OF OREGON R. M., Petitioner-Respondent, v. DAVID McNEER, Respondent-Appellant. Lane County Circuit Court 22PO01637; A179857 Debra K. Vogt, Judge. Argued and submitted January 9, 2024. George W. Kelly argued the cause and filed the briefs for appellant. Rachael A. Federico argued the cause for respondent. Also on the brief was Rachel M. Hungerford and Legal Aid Services of Oregon. Rosemary W. Brewer, Emily S. La Brecque and Margaret Garvin filed the brief amicus curiae for National Crime Victim Law Institute and Oregon Crime Victims Law Center. Before Ortega, Presiding Judge, Powers, Judge, and Hellman, Judge. POWERS, J. Affirmed. 426 R. M. v. McNeer Cite as 341 Or App 425 (2025) 427 POWERS, J. In this domestic relations proceeding, respondent seeks reversal of a Family Abuse Prevention Act (FAPA) restraining order, ORS 107.700 to 107.735. On appeal, respondent raises two assignments of error. First, respon- dent asserts that the trial court erred by granting petition- er’s Motion to Assert Petitioner’s Rights and for Protective Order that limited respondent’s ability to depose petitioner before the FAPA trial. Second, respondent asserts that the trial court erred by ruling that respondent posed a credible threat to petitioner’s physical safety. For the reasons dis- cussed below, we conclude that the trial court did not err by granting petitioner’s motion to limit discovery or by deter- mining that respondent posed a threat to petitioner’s physi- cal safety. Accordingly, we affirm. We begin with a brief overview to give our decision context. Respondent and petitioner are divorced parents of two minor children. The parties continued an on-again-off- again intimate relationship after their divorce. Although some sexual contact was consensual, petitioner asserted that respondent repeatedly exceeded the boundaries that she set for consensual sex acts and alleged instances of abuse. Due to respondent’s conduct, petitioner filed a petition for a FAPA restraining order against respondent. Before respondent was able to depose petitioner to prepare for the FAPA trial, the state brought criminal charges against respondent for the same conduct underlying the FAPA petition. Petitioner then moved for a protective order to postpone her deposition until after the criminal charges were resolved. Petitioner argued that ORCP 36 C gave the trial court discretion to limit discovery because it would pose an undue burden.1 Specifically, petitioner argued that 1 ORCP 36 C(1) provides, in full: “On motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order that justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: that the discovery not be had; that the discovery may be had only on specified terms and conditions, including a designation of the time or place; that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; that certain matters not be inquired into, or that the scope of the discovery be limited to certain 428 R. M. v. McNeer allowing respondent to depose her in the FAPA restraining order case would circumvent her rights under Article I, sec- tion 42(1)(c), of the Oregon Constitution, and that it would be an undue burden to be deposed for a civil proceeding regard- ing the same set of facts as a concurrent criminal proceed- ing.2 She also argued that requiring her to be deposed would expose her to intimidation and harassment. After a hearing on petitioner’s motion, the trial court granted a protective order that prohibited respondent from deposing petitioner until the criminal charges were resolved. At the contested FAPA hearing, petitioner testified about numerous instances of physical abuse, including bite marks and bruising, strangulation, and coerced vaginal penetration. Petitioner introduced photos, which the trial court noted were “pretty darn damning” to corroborate her testimony of abuse. Petitioner also testified that respondent repeatedly threatened to kill and rape her, including telling her in detailed ways how he would carry out these actions. Ultimately, the trial court granted the FAPA restraining order, and respondent timely appealed. However, at the time of this appeal and before either party submitted their appellate briefs, both the FAPA restraining order and criminal case