Opinion
359622
04-13-2023
DU, Petitioner-Appellee, v. CU, Respondent-Appellant.
UNPUBLISHED
Livingston Circuit Court Family Division LC No. 21-056628-PP
Before: GADOLA, P.J., and GARRETT and FEENEY, JJ.
PER CURIAM.
Respondent appeals as of right the trial court's order denying his motion to terminate an ex parte personal protection order (PPO) entered in favor of petitioner. We reverse and remand for entry of an order granting respondent's motion.
I. FACTS
On November 25, 2021, Thanksgiving Day, petitioner and respondent, who were then husband and wife, had an argument while at their home. During the argument, petitioner asked respondent to give her some space. According to respondent, he went upstairs and changed his clothes, then went outdoors and sat in his van, where he eventually fell asleep. Respondent later explained to the trial court that he did not drive the van anywhere because he was still emotional from the argument and thought it would be unwise to drive.
According to petitioner, before leaving the home respondent said that he was going to kill himself, and she therefore grew afraid because she knew that respondent kept a gun in his van. Respondent testified that he is an electrician and regularly works in dangerous neighborhoods in Detroit, and therefore has a concealed pistol license (CPL) and keeps a pistol in his van for protection while working. Respondent denied that he said he was going to kill himself, and also testified that on the day of the argument petitioner had been smoking marijuana. Petitioner agreed that she uses marijuana, but could not remember whether she had been using it on the day of the argument. Both petitioner and respondent agreed that respondent did not threaten petitioner in any way, either verbally or physically, and did not access the gun nor brandish it.
While respondent slept in the van, petitioner texted his phone. When respondent did not reply, she texted her mother and respondent's mother, then called the police and told them she was afraid respondent might shoot her and take his own life. Respondent awoke in the van to discover police officers outside the van. The officers took respondent to a hospital for evaluation, where he was released within two hours after medical personnel concluded that he was not suicidal.
Two days later, petitioner filed for divorce and sought an ex parte PPO. In her petition, she alleged that on November 25, 2021, she "was absolutely terrified that he would kill me and then himself." On November 29, 2021, the trial court granted petitioner an ex parte PPO against respondent, which was to remain in effect until November 29, 2022. Respondent timely moved to terminate the PPO on the basis that petitioner had falsely represented that he had threatened to kill himself.
Petitioner also alleged that in 2017 respondent threw a handrail from a dog gate at her. The couple nonetheless were married in 2018. Petitioner alleged that thereafter, in 2019, respondent threw a vase at her head during an argument. In denying the motion to terminate the ex parte PPO, the trial court discussed the allegations of earlier conflict between the parties, but based its decision solely upon the events of November 25, 2021. The dissent suggests that the trial court erred by limiting its consideration to events close in time to the November 2021 incident and failing to consider the allegations and testimony regarding the parties' earlier disputes. We note that the trial court did not fail to consider the allegations of earlier disputes; the trial court discussed the allegations, but stated that it was not giving any weight to the parties' contentions about those disputes. How much weight, if any, to accord a given piece of evidence is the sole prerogative of the fact-finder. Mitchell v Kalamazoo Anesthesiology, PC, 321 Mich.App. 144, 156; 908 N.W.2d 319 (2017). The trial court's decision to accord more weight to some evidence and none to other evidence was well within its discretion as fact-finder, and this Court does not interfere with the trial court's determinations on such matters. See Berger v Berger, 277 Mich.App. 700, 715; 747 N.W.2d 336 (2008). If, however, we were to examine the parties' allegations about their earlier disputes, it would be necessary to consider respondent's testimony that the parties' 2017 dispute was precipitated by petitioner driving away after declaring in front of her daughter and respondent that she was going to kill herself, thus engaging in the same conduct in 2017 that she found so dire when respondent acted similarly in 2021.
The trial court denied respondent's motion to terminate the PPO. The trial court explained that it found respondent to be credible, but also thought it likely that respondent had threatened to kill himself, which frightened petitioner. The trial court stated that the decision was "a very close call" and that resolution of the motion "could have gone either way," but "in this time in our world, people are doing very serious things that would scare a lot of people." The trial court further stated that "I think in order to make the Petitioner feel safe during this divorce, I am going to sign an order. I'm continuing the PPO." Respondent now appeals.
II. DISCUSSION
Respondent contends that the trial court abused its discretion by denying his motion to terminate the ex parte PPO against him. We agree.
Although the PPO has expired, the issue on appeal is not rendered moot. See TM v MZ, 501 Mich. 312, 319; 916 N.W.2d 473 (2018).
We review for an abuse of discretion the trial court's decision to grant or deny a PPO, as well as the trial court's decision on a respondent's motion to terminate a PPO. CAJ v KDT, 339 Mich.App. 459, 463; 984 N.W.2d 504 (2021). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Berryman v Mackey, 327 Mich.App. 711, 717; 935 N.W.2d 94 (2019). A trial court necessarily abuses its discretion when it makes an error of law. CAJ, 339 Mich.App. at 464. We review for clear error the trial court's underlying factual findings. CNN v SEB,__ Mich. App__,__;__ N.W.2d__ (2023) (Docket No. 359007); slip op at 4. A finding is clearly erroneous if we are left with a definite and firm conviction that a mistake has been made. Berryman, 327 Mich.App. at 717-718. We review de novo questions of statutory interpretation. Le Gassick v Univ of Mich. Regents, 330 Mich.App. 487, 495; 948 N.W.2d 452 (2019).
PPOs in the context of domestic relationships are governed by MCL 600.2950. See TM v MZ, 501 Mich. 312, 315; 916 N.W.2d 473 (2018). MCL 600.2950(1) states, in relevant part:
[A]n individual may petition the family division of circuit court to enter a personal protection order to restrain or enjoin a spouse . . . from doing 1 or more of the following:
(a) Entering onto premises.
(b) Assaulting, attacking, beating, molesting, or wounding a named individual.
(c) Threatening to kill or physically injure a named individual.
(d) Removing minor children from the individual having legal custody of the children, except as otherwise authorized by a custody or parenting time order issued by a court of competent jurisdiction.
(e) Purchasing or possessing a firearm.
(f) Interfering with petitioner's efforts to remove petitioner's children or personal property from premises that are solely owned or leased by the individual to be restrained or enjoined.
(g) Interfering with petitioner at petitioner's place of employment or education or engaging in conduct that impairs petitioner's employment or educational relationship or environment.
(h) If the petitioner is a minor who has been the victim of sexual assault, as that term is defined in section 2950a, by the respondent and if the petitioner is enrolled in a public or nonpublic school that operates any of grades K to 12, attending school in the same building as the petitioner.
(i) Having access to information in records concerning a minor child of both petitioner and respondent that will inform respondent about the address or telephone number of petitioner and petitioner's minor child or about petitioner's employment address.
(j) Engaging in conduct that is prohibited under [MCL 750.411h (stalking) or MCL 750.411i (aggravated stalking)].
(k) Any of the following with the intent to cause the petitioner mental distress or to exert control over the petitioner with respect to an animal in which the petitioner has an ownership interest.
(i) injuring, killing, torturing, neglecting, or threatening to injure, kill, torture, or neglect the animal. A restraining order that enjoins conduct under this subparagraph does not prohibit the lawful killing or other use of the animal as described in section 50(11) of the Michigan penal code, 1931 PA 328, MCL 750.50.
(ii) Removing the animal from the petitioner's possession.
(iii) Retaining or obtaining possession of the animal.
(l) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.
An ex parte PPO is a "restraining order granted without notice" under MCR 3.310(B)(5). Pickering v Pickering, 253 Mich.App. 694, 698; 659 N.W.2d 649 (2002). MCL 600.2950(12) provides:
A court shall issue an ex parte personal protection order without written or oral notice to the individual restrained or enjoined or his or her attorney if it clearly appears from specific facts shown by a verified complaint, written motion, or affidavit that immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that the notice will itself precipitate adverse action before a personal protection order can be issued.
An individual who is restrained or enjoined by an ex parte PPO issued under MCL 600.2950(12) may file a motion to modify or rescind the PPO and request a hearing. MCL 600.2950(13). When a respondent moves to dissolve a restraining order granted without notice, the petitioner must justify the continuation of the PPO. MCR 3.310(B)(5) provides, in relevant part:
. . . At a hearing on a motion to dissolve a restraining order granted without notice, the burden of justifying continuation of the order is on the applicant for the restraining order whether or not the hearing has been consolidated with a hearing on a motion for a preliminary injunction or an order to show cause.
Under MCL 600.2950(4), a trial court must issue a PPO if the trial court determines that there is reasonable cause to believe that the person to be restrained may commit an act stated in MCL 600.2950(1). MCL 600.2950(4) provides:
The court shall issue a personal protection order under this section if the court determines that there is reasonable cause to believe that the individual to be restrained or enjoined may commit 1 or more of the acts listed in [MCL 600.2950(1)]. In determining whether reasonable cause exists, the court shall consider all of the following:
(a) Testimony, documents, or other evidence offered in support of the request for a personal protection order.
(b) Whether the individual to be restrained or enjoined has previously committed or threatened to commit 1 or more of the acts listed in subsection (1).
Thus, a trial court must issue a PPO if it determines that reasonable cause exists to believe that the respondent may commit one or the more of the acts listed in MCL 600.2950(1). The trial court, however, "must make a positive finding of prohibited behavior by the respondent before issuing a PPO." SP v BEK, 339 Mich.App. 171, 181; 981 N.W.2d 500 (2021), quoting Kampf v Kampf, 237 Mich.App. 377, 386; 603 N.W.2d 295 (1999). The burden of establishing reasonable cause for the issuance of the PPO, and the burden of establishing justification for the court to continue a PPO upon a motion to terminate an ex parte PPO, is upon the person petitioning the court for the PPO. SP, 339 Mich.App. at 181.
We conclude that the trial court in this case abused its discretion by denying respondent's motion to terminate the PPO. The trial court did not make a positive finding of prohibited behavior by respondent before issuing the PPO, and petitioner did not establish justification for continuing the PPO upon respondent's motion to terminate the PPO. See SP, 339 Mich.App. at 181; MCR 3.310(B)(5). The only act alleged against respondent is that he stated that he was going to kill himself. Respondent left the couple's home on November 25, 2021 because petitioner asked him to give her "space." Petitioner agreed that respondent did not verbally or physically threaten her in any way, but that she nonetheless became afraid for her own safety because of respondent's statement. Petitioner testified that she could not remember whether she had been using marijuana at the time of the incident.
As the dissent accurately notes, petitioner testified that she did not remember whether she had been using marijuana that day. She testified in detail regarding the events of that day, including a detailed description of respondent's conduct, who she called, what was said, and the extent of her fear. She also testified that if she used marijuana that day, she used an amount that did not affect her or heighten her emotions. That is, she remembered how much she used if she used it, and what effect it had on her if she used it, but did not remember whether she used it. And she remembers everything else that occurred that day with great clarity, even though perhaps she was using marijuana, which she testified had no effect on her if she used it. But she did not remember whether she used it.
After leaving the home at petitioner's request, respondent did not engage in any conduct to justify petitioner's fear. When police arrived, respondent was sleeping in his van. He cooperated with police and participated in evaluation at a hospital, where he was quickly determined not to be suicidal and was released. In the days following the incident and leading up to the hearing on his motion, respondent did not engage in any "act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence." See MCL 600.2950(1)(l). The only basis found by the trial court to support the PPO was petitioner's allegation that she became afraid when respondent stated that he was going to kill himself. The trial court found the decision to be "a very close call" whether a PPO was warranted, and that the decision "could go either way," but concluded that current events in general were frightening and speculated that petitioner might be comforted if a PPO were issued against respondent. The PPO was thus continued not because respondent had engaged in any prohibited conduct, but to allay petitioner's general fearfulness. The record thus is insufficient to meet petitioner's burden to justify continuation of the PPO.
In addition, the evidence presented by petitioner was insufficient to support a finding of reasonable cause to believe that respondent might in the future commit an act prohibited under MCL 600.2950(1). As discussed, under MCL 600.2950(4), a trial court must issue a PPO if the trial court determines that there is reasonable cause to believe that the person to be restrained may commit an act stated in MCL 600.2950(1). Here, the only alleged prohibited conduct by respondent was his alleged statement that he would harm himself. The only support for this allegation is petitioner's uncorroborated testimony that he made this statement.
The dissent observes that "[a] domestic violence victim's testimony can be believed as credible even if uncorroborated." We agree. Nonetheless, we observe that the only evidence supporting the PPO is petitioner's statement that respondent threatened to harm himself. The trial court found this statement by petitioner credible, and we give regard to the special opportunity of the trial court to judge the credibility of the witnesses that appear before it. MCR 2.613(C). But, like the trial court, we are constrained by the concepts of burden of proof and sufficiency of the evidence. Petitioner, whether a domestic violence victim or not, had the burden to justify continuation of the PPO. Similarly, the trial court was required to make a positive finding of prohibited conduct by respondent before issuing the PPO. See SP, 339 Mich.App. at 181. Petitioner's lone statement, even accepted as credible, neither carries her burden of proof nor supports a positive finding of prohibited conduct by respondent.
The trial court was in the best position to assess the credibility of the witnesses, and we do not weigh the credibility of the witnesses on appeal. Brandt v Brandt, 250 Mich.App. 68, 74; 645 N.W.2d 327 (2002). In this case, however, the trial court found both petitioner and respondent credible, found the case to be a close call, but nonetheless chose to defer to the uncorroborated version of events presented by petitioner, who admitted that she did not remember if she was using marijuana on the day of the events in question. Although we do not second-guess the trial court's finding that petitioner experienced fear, her fear alone is not sufficient to meet petitioner's burden to justify continuation of the PPO. Nor did petitioner demonstrate reasonable cause to believe that respondent may commit an act prohibited under MCL 600.2950(1) in the future. Accordingly, the trial court abused its discretion by denying respondent's motion to terminate the PPO.
The trial court's order is reversed, the PPO is vacated, and this matter is remanded to the trial court, with instructions that the PPO be updated in LEIN as having been rescinded. We do not retain jurisdiction.
FEENEY, J. (dissenting).
Because I believe that the trial court's order did not constitute an abuse of discretion, I respectfully dissent.
"The granting of injunctive relief [in the form of a PPO] is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion." Pickering v Pickering, 253 Mich.App. 694, 700; 659 N.W.2d 649 (2002) (citations omitted). "An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say there is no justification or excuse for the ruling made." Id., citing Ellsworth v Hotel Corp of America, 236 Mich.App. 186, 188; 600 N.W.2d 129 (1999).
Pursuant to MCL 600.2950(4), a trial court is required to issue a PPO if it finds "reasonable cause to believe that the individual to be restrained or enjoined may commit 1 or more of the acts listed in subsection (1)" of MCL 600.2950. As this Court stated in Pickering, supra at 701,
The acts listed in subsection 1 include "[a]ny other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence." MCL 600.2950(1)(j). In determining whether good cause exists [to issue the PPO], the trial court is required to consider "[t]estimony, documents, or other evidence" and
"[w]hether the individual to be restrained . . . has previously committed or threatened to commit 1 or more of the acts listed in subsection (1)." MCL 600.2950(4)(a) and (b).
Subsection 1 also includes "[t]hreatening to kill or physically injure a named individual." MCL 600.2950(1)(c).
Notably, MCL 600.2950(1) does not limit consideration of the facts stated in the PPO application-facts that must be stated with "particularity," per MCR 3.703(B)(2)-to events that happened contemporaneously with or close in time to the PPO application. MCR 3.703(G) does specify, however, that when requesting an ex parte order, the petition "must set forth specific facts showing that immediate and irreparable injury, loss or damage will result to the petitioner from the delay required to effect notice or from the risk that notice will itself precipitate adverse action before an order can be issued." There is no limitation in either the statute or court rules that permits the court to disregard the written allegations in the application.
In the instant case, petitioner's PPO application referenced more than the Thanksgiving incident where respondent threatened to "blow his brains out" and had access to a loaded gun in his van which put petitioner "in fear of my life" and "prevented me from walking outside." Petitioner also stated "I was fearful of him shooting me and taking my life which was why I called the police." She also referenced a May 2019 incident involving an argument in the bedroom where respondent "picked up a large vase made of heavy glass. He went to throw it at my head and it ended up falling out of the way. But he was aiming at my face." The petition also referenced a June 3, 2017 argument that escalated with respondent ripping the handrail off the steps to the upstairs: he threw the railing towards petitioner and her daughter damaging a large painting in the dining room. Petitioner's PPO affidavit asserted that she had a video of this event as "proof of his violent outbursts;" "[i]t terrifies me that I could be seriously injured and killed during one of his outbursts." Petitioner also stated that respondent punched holes in the walls at the home multiple times. Finally, the petitioner described an argument while respondent was driving and he got mad so he started "slamming on the breaks to cause me to hit my face into the dash so many times, that I took my seat belt off and dove to the back seat" and laid down to avoid being injured.
Clearly, petitioner gave several examples of behavior that would lead a reasonable person to believe that the respondent may commit one or more of the acts listed in MCL 600.2950(1). While petitioner's counsel attempted to elicit testimony regarding all these events, the trial court refused to consider anything other than the Thanksgiving 2021 event because, in its view, the allegations "have to be fairly close in time" to the PPO application date. No such limitations exist in the statute or court rules. While the trial court incorrectly limited its consideration to only some of the facts underlying petitioner's PPO application, I believe that the trial court still made the proper decision to uphold the PPO after examining the entirety of the evidence presented during the 99-minute hearing.
The trial court arguably discussed the other allegations but gave them no weight. The trial court made several statements expressing incredulity over why petitioner would include a 2017 allegation in her application when she married respondent in 2018: "[I]f you're scared for your life, you don't usually end up marrying people." Other statements reflect the court's apparently generic skepticism regarding petitioner's fear of harm: "[p]eople have arguments all the time;" "[e]veryone who asks for a PPO says they're afraid for their lives;" "I'm sure there have been [incidents]. There have been in every marriage.. .I mean, it's questionable if there were incidents, why didn't she get a PPO earlier? . ..Petitioner has the burden of proving that he actually said these things." The trial court chastised petitioner's counsel for "going back" to the other allegations in the petition: "I have-we have heard about the 2017 case, even though it was a long time ago. What I wanted to focus on was the lethal threat which would be a primary, serious, point of this PPO. And the other things, throwing a vase, throwing a railing, is not exactly something that a reasonable person would be scared for their life. That's why we didn't concentrate on that."
The trial court elicited testimony that respondent would get emotional during the parties' arguments-emotional enough to say he would hurt himself or someone else. Respondent admitted that he had outbursts in the past and had a gun in his van. Respondent did not remember punching holes in the walls and admitted that his outbursts would cause a reasonable person to feel like they might become injured if he was physical towards them. Respondent testified that he did not threaten to shoot himself in the head but instead said "[i]f I drive, I could kill myself" because he was so upset at Thanksgiving. Respondent denied throwing things at petitioner but admitted he kicked the gate in a "tantrum" and threw it away from, not at, petitioner. He also admitted to having outbursts but was not proud of those outbursts, and the Court considered these admissions. These are the respondent's statements that the trial court apparently found to be credible. Petitioner testified that respondent got emotional enough during their arguments to say he would hurt himself or someone else. The court agreed and found that it "understand[s] where the Petitioner would be afraid that he might hurt her, especially if he's having uncontrolled outbursts."
After denying all the allegations in petitioner's PPO application, when asked, "So what you're saying is over the years, she just made up all these incidents of violence of you towards her" respondent testified "[s]he's altered the situation."
The court found that "I do believe he threatened to hurt himself," a critical determination of credibility and found as supporting evidence petitioner's call for police assistance. The court also recognized the coercive and manipulative impact of a statement like "I'll kill myself;" the court correctly observed that people in a relationship who "threaten to take their lives [will] try to make the other person concerned enough so that they have a relationship again or make up. That's my concern." Respondent admitted to having outbursts and he carries a gun, which also concerned the trial court. "But again, it's been kind of-it's kind of a PPO by innuendo in that he says he's going to blow up his brains, I'm [sic] afraid for my life. I can understand why she would be afraid if he said that to her."
The majority states that the "only support for this allegation is Petitioner's uncorroborated testimony that he made this statement." Ante, at 3. A domestic violence victim's testimony can be believed as credible even if uncorroborated.
Respondent's counsel argued that petitioner was using the PPO as "leverage in the divorce. Even if she was scared, there was no reasonable basis for her to be scared. She alleges that he threatened to commit suicide, and that's the best she can come up with." The court responded by observing that "I think that's very coercive. I think that is very manipulating to her. Because if she cares about him, and he says I'm going to blow out my brains, she's obviously-it's going to make her fearful that he might do that."
Notably, petitioner's attorney properly argued that the history of violence and respondent's admission to having a violent temper justified issuance of the PPO, but the trial court, without permitting counsel to elicit evidence on the other allegations, said it had seen and heard more graphic and tragic allegations than what petitioner alleged and "would not issue a PPO on the other parts that she brought up." The trial court recognized, however, that it had to be very careful due to his threats to kill himself. "If you did [apply for a PPO] because you were sincerely afraid for yourself, then that would be a reason to get a PPO_. I believe him when he said I've had outbursts before. He makes it very credible." The court also took note that respondent did not point the gun at petitioner. Then the trial court made the following findings:
So I am going to continue the order on the PPO. Again, this could have gone either way. It's very difficult, but in this time in our world, people are doing very serious things that would scare a lot of people. And these people are going through a divorce. I don't want anything to happen to either one of them.
Mr. U[], if you feel so shaky that you can't drive, that is a concern to me. Because you couldn't leave the residence, you were so upset, you were so emotional, and in that emotional state, I do believe you could have made the statement well, I'll just blow my brains out. Because people do say that. They threaten suicide when they don't get their way in a relationship. I think, in order to make the Petitioner feel safe during this divorce, I am going to sign an order. I'm continuing the PPO, as I said. [Emphasis added.]
The court then made some dicta-like comments about wishing respondent could receive a psychological evaluation to make "everyone feel more safe. I'm just erring on the side of safety at this time."
The majority references more than once that petitioner did not remember if she used marijuana on the day in question. She did testify that she used on occasion because she was nervous when respondent was home, that she more than likely used in the early morning, and that she did not use enough to change her personality or make her more emotional. See ante, slip op at 4 n 3. Specifically, the majority contrasts the clarity with which petitioner recalls the events of the day with her lack of memory as to whether she smoked marijuana that day. This point is arguably irrelevant regarding petitioner's credibility in relating the events of that day. But at the risk of being drawn into assessing petitioner's credibility, which, as the majority correctly points out, is the province of the trial court, I offer the following observations. When asked by the trial court whether she had smoked marijuana that day, petitioner responded the she did on occasion but that she "couldn't say for a fact if I did or not that day. But I have on occasion. I do get nervous when he's at home. So it'll [sic] more than likely that I did in early morning." Then, in response to a follow-up question regarding whether she had smoked marijuana that morning, she responded, "I'm not 100 percent sure, so I don't want to say yes or no." When pressed a third time about whether she remembered smoking marijuana that day, she replied, "I just don't want to say yes or no because I-I don't definitively remember." She also stated that she would not have smoked enough to make her more upset than normal or enough to change her personality. Petitioner's testimony suggests that it was common for her to smoke marijuana when respondent was present in the home. That is to say, that it was routine. Nothing in the record reflects that the trial court found petitioner incredible as a result of either this exchange or her likely use of marijuana on the day in question.
When these last comments are read outside the context of the entire hearing, it appears that the trial court is basing its decision on a desire to mollify petitioner. When read as a passing attempt to provide petitioner with some assurances in the light of all testimony, the "erring on the side of safety" comment neither diminishes nor eliminates the court's findings that respondent's actions created a reasonable apprehension of violence. And respondent's statement that he would "blow his brains out" qualified as a threat "to kill or injure...a named individual" per MCL 600.2950(1). The totality of the circumstances reveals no abuse of discretion here because an unprejudiced person, considering the facts on which the trial court acted, would say there was justification for the ruling made. Pickering, 253 Mich.App. at 700. Accordingly, I would uphold the trial court's order denying respondent's motion to terminate the PPO.