Motion to terminate ex parte personal protection order (PPO); Pickering v. Pickering; MCL 600.2950(1) & (4); People v. Freeman; Hayford v. Hayford; “May commit”; An abuse of discretion; Pirgu v. United Servs Auto Ass’n; Assault with intent to do great bodily harm less than murder (AWIGBH)
Holding that the trial court abused its discretion in denying respondent’s motion to terminate the ex parte PPO entered in petitioner’s favor, the court reversed and remanded for entry of an order granting respondent’s motion. It found that the record supported the trial court’s conclusion that “respondent had previously committed one the prohibited acts by MCL 600.2950(1), when he assaulted and wounded petitioner” (his ex-girlfriend) in 2013. The trial court took judicial notice of his 2013 AWIGBH conviction for injuries that he had inflicted upon her. Also, the hearing testimony supported its conclusion that his “previous actions caused ‘a reasonable apprehension of violence’ on” petitioner’s part, leading her to seek the 2013 PPO. She testified that “she was ‘very uncomfortable’ and ‘the instant trauma brain panic just settled in’ when she believed she saw” him near her home in 4/18. But the reality was, as the trial court recognized, she did not show that he “was near her home. To the contrary, respondent presented proof through receipts, witnesses, and a videotape that he was over an hour away when petitioner claims she saw him . . . .” The record clearly showed that they “were no longer in a dating relationship and did not live together.” Both had married other people. At his original sentencing, he “apologized for his actions and had already successfully completed seminars addressing anger resolution and familial relationships." After a 34-month prison term, he was paroled. At the hearing on his motion to terminate the PPO, he “testified that he had no desire to have any contact or communication with petitioner.” He described situations where he avoided contact with her and her family. He “even offered to resume wearing a GPS tether in order to be able to document his whereabouts and to demonstrate his commitment to avoiding contact with petitioner.” The court and the trial court acknowledged her fear that his “past conduct may reoccur; nevertheless, the court must render its decision based on known objective information giving rise to reasonable cause. And, although past is often prologue,” the court recognized that this is not always necessarily so. “The circumstances under which respondent assaulted petitioner in 2013 are vastly different than those that existed in 2018.” Based on the evidence here, “a reasonable person could not reasonably conclude that there was a possibility that respondent would assault petitioner or engage in other specific acts or conduct" that will cause her a reasonable apprehension of violence in the future just because he did so five years before.
Full Text Opinion
State Bar of Michigan
306 Townsend St
Lansing, MI 48933-2012