e-Journal Summary

e-Journal Number : 45730
Opinion Date : 05/06/2010
e-Journal Date : 05/17/2010
Court : Michigan Court of Appeals
Case Name : Roesner v. Hutchings
Practice Area(s) : Personal Protection Orders
Judge(s) : Per Curiam - Bandstra and Borrello; Concurrence - Shapiro
Full Text Opinion

Whether the trial court's findings of fact establishing "stalking" (MCL 750.411h(1)(d)) occurred were clearly erroneous; Nastal v. Henderson & Assocs. Investigations, Inc.; Special deference given to the trial court's findings based on its assessment of the witnesses' credibility; H J Tucker & Assocs., Inc. v. Allied Chucker & Eng'g Co.; Determination of the weight to be afforded evidence; People v. Nowack; "Harassment" (MCL 750.411h(1)(c)); "Unconsented contact" (MCL 750.411h(1)(e)); "Course of conduct" (MCL 750.411h(1)(a)); Rebuttable presumption under MCL 750.411h(4); Burden on the petitioner to prove "reasonable cause" for the issuance of a PPO; Hayford v. Hayford; MCL 600.2950a(1); Whether the trial court properly considered an incident described in the petitioner's testimony but not contained in the original PPO petition or in any amendment; MCL 600.2950(4)(a) and (b); Whether the trial court articulated sufficient factual findings on the record or in writing as required by MCR 3.705(B)(6); MCL 600.2950a(7); Effect of the trial court's failure to provide a writing as required by MCR 3.705(B)(6); Zdrojewski v. Murphy; MCR 2.613(A); Whether the trial court violated the respondent's right to due process by issuing a PPO containing terms differing from the trial court's oral ruling at the final hearing; Mathews v. Eldridge


Finding no clear error in the trial court's factual findings, the court held based on those findings, the trial court did not abuse its discretion in granting the petitioner a PPO against the respondent. The case arose from several incidents in the late summer and fall of 2007, which led petitioner to file a petition for a PPO to restrain respondent from engaging in stalking under MCL 750.411h or 750.411i. The trial court initially denied her request for an ex parte PPO, finding the factual allegations insufficient, but allowed petitioner to schedule a hearing for the trial court to make factual determinations. Respondent filed a written response to the petition. After holding four hearings on the case, between January 2008 and October 2008, the trial court issued a PPO against respondent at the conclusion of the last hearing, noting it found petitioner was a credible witness and while respondent was credible to some extent, he was not credible as to a number of issues the trial court found crucial to the petition. On appeal, respondent argued the trial court's findings of fact establishing stalking occurred were clearly erroneous, the trial court improperly granted the PPO based in part on an alleged April 2008 incident involving respondent's conduct while on a golf cart (which was not in the original PPO request or in any later amendment), and the trial court did not articulate specific findings of fact on the record or in writing as required by MCR 3.705(B)(6). The court noted the trial court's factual findings supporting its conclusion stalking occurred were based almost entirely on its assessment of the credibility of the parties' testimony. The trial court was in a better position than the court to weigh each witness's credibility and to resolve the factual disputes presented by their testimony. Further, determining the weight to be given to evidence is the fact-finder's responsibility and the court will not interfere with the fact-finder's role in this regard. The court also concluded, as to the golf cart incident, nothing in MCL 600.2950(4) suggested the trial court was limited to incidents alleged in the PPO petition. Rather, the trial court had to consider all the proffered evidence and testimony. Further, while respondent was correct the trial court did not provide a writing giving specific reasons for issuing the PPO as required by MCR 3.705(B)(6), the court did not find this ministerial error was grounds for disturbing the trial court's order because the error was "not inconsistent with substantial justice." Reversal was unwarranted. Affirmed.

Full Text Opinion