When is a Hearing not a Hearing? Can It Affect Whether You Seek a Restraining Order?

Oregon’s domestic violence protection statutes include a provision that in a hearing on a request for a restraining order, the judge may order either side to pay the other’s attorney fees. A recent case, C.R. v. Gannon, 282 Or App 1 (2016), <http://www.publications.ojd.state.or.us/docs/A156763.pdf>, explains what a hearing is and when the attorney fee provision comes into effect.

C.R. filed a request for a domestic violence restraining order against Mr. Gannon. He requested a hearing. On the day of the hearing, C.R.’s lawyer asked to withdraw the request, subject to the possibility that C.R. could refile. Mr. Gannon’s lawyer requested over $9,000 in attorney fees.

The Court of Appeals had to decide whether the hearing had happened. If it hadn’t, there was no legal ground to award fees. If it had, the trial judge would have to decide whether to award fees.

This, in turn, led to a discussion of what the phrase “hearing pursuant to [the statute]” meant. The core function of a hearing was ruled to be the opportunity to be heard and a ruling on either what happened or what the law was. The relevant issues for a hearing pursuant to the statute were ruled to be those issues necessary to decide whether to grant a restraining order. When the request for the hearing was withdrawn, nobody was heard on the issues and no decision was made. Therefore, the court ruled that there had been no hearing and attorney fees could not be awarded.

This ruling has an important effect. People may request restraining orders and withdraw the requests without fear of being charged their opponents’ attorney fees. If you are uncertain whether a restraining order is the best way to resolve your problem, you are able to sequent the order and then change your mind, as long as you do so before a hearing starts. If testimony is given, I think the court would find that the hearing had happened.

If you’re worried about the risk of going forward, please be aware that the judge is not required to award attorney fees. If you present a reasonable case, most of the time, the judge won’t award fees. A discussion with a lawyer about your case may put you at ease as to the risk.