Denial of the respondent-husband's motion to terminate the ex parte personal protection order (PPO) requested by the petitioner-wife; Whether the trial court properly granted the ex parte PPO; MCR 3.703(G); MCL 600.2950(4); Pickering v. Pickering; Whether defendant was denied the due process of law when the trial court refused to hear the full presentation of his case because it found he violated the PPO provision prohibiting him from contacting petitioner; MCR 3.707(A)(2); MCR 3.310(B)(5); Whether the PPO violated respondent's constitutional right to freedom of speech; Plain error review; In re Contempt of Dudzinski; Hill v. Colorado
While the trial court did not abuse its discretion in granting the petitioner-wife's request for an ex parte PPO, the court concluded the respondent-husband was denied a "meaningful opportunity" to present his defense to the issuance of the ex parte PPO when the trial court refused to hear his presentation of his case after questioning him and finding he violated the PPO provision prohibiting him from contacting petitioner. Petitioner's handwritten statement was evidence respondent had already engaged in at least two of the activities listed in MCL 600.2950(1), including possessing a firearm and interfering with petitioner at her place of employment. The court concluded the trial court had reasonable cause, based on petitioner's statement, to believe "respondent intended to commit the actions sought to be enjoined by the PPO." Further, it was also reasonable for the trial court to assume, pursuant to MCR 3.703(G), "immediate and irreparable injury" could result to petitioner if respondent was given notice of her intent to try to obtain a PPO. Thus, it was not an abuse of discretion for the trial court to issue the ex parte PPO. However, the court agreed with respondent the trial court was required to hold the hearing on his motion to terminate the PPO and to permit him a meaningful opportunity to challenge the merits of the ex parte PPO. The trial court relied solely on respondent's violation of a provision of the PPO in refusing to hear his motion to terminate the PPO and did not allow him the opportunity to present evidence to be considered in determining whether there were sufficient facts justifying the earlier entry of the ex parte PPO. Under the circumstances, respondent was essentially denied any right to be heard regarding whether the ex parte PPO was erroneously entered. He was entitled to a hearing on his motion to terminate the PPO, and the court ordered the trial court to hold the hearing within 14 days of the issuance of the court's opinion. Affirmed in part, reversed in part, and remanded.
Full Text Opinion
State Bar of Michigan
306 Townsend St
Lansing, MI 48933-2012