MCL 600.2950 et seq.; MCR 3.700 et seq.; Requirement that the trial court hold a hearing on the record and state the reasons for granting or denying a personal protection order (PPO) on the record; MCR 3.705(B)(3) & (5); MCL 600.2950(7); Due process; Cummings v. Wayne Cnty.; MRE 103(a)(2); Detroit v. Detroit Plaza Ltd. P'ship; Questions of credibility; Drew v. Cass Cnty.; The trial court's discretion about the mode and order of witnesses and the presentation of evidence; MRE 611(a); Barksdale v. Bert's Marketplace; Labeling of an order; Johnson v. City of Livonia; Whether PPOs may be mutual; MCL 600.2950(8)
In these consolidated cases, the court concluded that a review of the hearing on the PPO petition showed that "the trial court deprived the parties of a meaningful opportunity to be heard." Thus, it vacated the trial court's orders denying the petitioner's request for a PPO against the respondent (her ex-husband), the mutual restraining order, and the orders denying motions for reconsideration. The parties' divorce was finalized after a bench trial in 6/12. Petitioner sought a PPO the next month. At the hearing on her petition, she testified that an incident occurred on 7/4/12 and asserted that her brother-in-law and a "mutual friend" witnessed the incident. Respondent objected to the continuation of the proceedings and sought an adjournment. He denied striking petitioner and asserted he had a witness who would counter her testimony. The trial court declined to hear the testimony of petitioner's additional witnesses or to grant an adjournment to allow respondent to secure counsel and his witness. "Instead, it concluded that it would rely on the credibility determination made at trial and held that the allegations were 'not new.' Contrary to the trial court's statements, this proceeding did involve a matter that was 'new.' After the divorce was finalized," petitioner claimed that respondent assaulted her. Despite the fact that each party asserted that there were witnesses that would support their respective positions, the trial court declined to hear the testimony and did not provide them the opportunity to present an offer of proof. While the trial court has discretion as to the mode and order of witnesses and the presentation of evidence, it "should not forecast that a witness will be disbelieved in light of the calling party or an affiliation with a party." The court also noted that in lieu of hearing the testimony, the trial court sua sponte ruled that a mutual restraining order would be entered in the divorce case. "Although the trial court labeled the order as mutual restraint, it repeatedly and mistakenly referred to the order as a PPO." Further, while it indicated that it had issues with petitioner's credibility, the order contained language commonly used in PPOs, by precluding the parties "from assaulting, attacking, threatening, molesting, stalking, or wounding each other." Despite the trial court's "label of the order as a mutual restraining order, it effectively constituted a PPO, and PPOs may not be mutual." While the parties appeared for oral argument on appeal, they did not provide supplemental information about any extension of the mutual restraining order or any violations. Thus, the court remanded for further proceedings "if necessary."
Full Text Opinion
State Bar of Michigan
306 Townsend St
Lansing, MI 48933-2012