e-Journal Summary

e-Journal Number : 71838
Opinion Date : 11/26/2019
e-Journal Date : 12/12/2019
Court : Michigan Court of Appeals
Case Name : LBP v. BWW
Practice Area(s) : Personal Protection Orders
Judge(s) : Per Curiam – Tukel, Sawyer, and Riordan
Full Text Opinion
Issues:

Personal protection orders (PPOs) pursuant to MCL 600.2950a; Hayford v. Hayford; Whether there was reasonable cause to believe respondent committed any acts of stalking as prohibited by MCL 750.411h (stalking) & 411i (aggravated stalking); Pobursky v. Gee; Stalking defined; MCL 750.411h(1)(d); MCL 750.411i(1)(e); Credible threat defined; MCL 750.411i(1)(b); Whether respondent showed good cause for the five-month delay in filing the motions to terminate the PPOs; MCR 3.707(A)(1)(b); Whether respondent’s incarceration constituted good cause

Summary

The court held that petitioners’ allegations provided a sufficient factual basis for the issuance of the ex parte PPOs pursuant to MCL 600.2590a and MCL 750.411i. Also, the “trial court acted within its discretion under MCR 3.707(A)(1)(b) by denying respondent’s motions to terminate on the ground that mere incarceration was not a reasonable excuse for the five-month delay in responding to the PPOs.” Thus, the court affirmed the orders dismissing as untimely his motions to terminate the 4/17/18 ex parte PPOs entered in petitioners’ favor. The petition alleged that in 7/11, respondent hit his mother-in-law, petitioner-LBP, multiple times; that in 8/12, he threatened to kill both petitioners (his father-in-law RWP was the other petitioner); that in 10/12, they obtained a protective order in Virginia; that on 7/18/14, “a federal arrest warrant was issued for respondent for possession and distribution of child pornography on the basis of allegations that included conduct indicating respondent’s desire to sexually molest his young daughter; that respondent was sentenced to federal prison for the offense and was scheduled for release on [11/27/18]; and that petitioners believed that respondent was capable of causing harm to petitioners and their grandchild upon his release.” He argued that they failed to show that his conduct constituted stalking as defined by MCL 750.411h and MCL 750.411i. “In order for the trial court to issue a PPO on the basis of a credible threat, petitioners only needed to allege facts demonstrating that respondent made ‘1 or more credible threats,’ MCL 750.411i(2)(c), and a threat to kill is considered a ‘credible threat’ if made in a manner that would cause a reasonable person to fear for his safety.” RWP alleged that respondent threatened to kill him and LBP in 8/12. “RWP also alleged that a prior protective order was issued on this basis by an out-of-state court in [10/12]. Although these events happened several years ago, RWP suggested that respondent’s pending prison release gave him reason to believe that respondent was capable of causing” them and their grandchild harm. LBP claimed that respondent assaulted her in 7/11 and that he “had threatened to kill her and RWP.” The facts alleged supported a finding that petitioners “reasonably feared for their safety and that respondent’s threat was therefore credible.” Thus, the alleged threat to kill them “constituted aggravated stalking under MCL 750.411i(2)(c) and the trial court did not abuse its discretion by granting the PPOs under MCL 600.2950a(1).”

Full Text Opinion