The trial court wrongly denied the respondent’s motion to terminate a personal protection order (PPO) entered against him because “fear alone” is insufficient to justify continuing a PPO, the Michigan Court of Appeals has ruled.

In DU v CU (Docket No. 359622), the respondent and the petitioner were husband and wife at the time the petitioner sought an ex parte PPO. The petitioner alleged that on November 25, 2021 (Thanksgiving Day), she “was absolutely terrified that [the respondent] would kill me and then himself.” The Livingston County Circuit Court granted the PPO and ordered that it remain in effect for one year.

The respondent then filed a motion to terminate the PPO, claiming the petitioner falsely represented that he had threatened to kill himself. The trial court explained that it found the respondent to be credible, but it was “likely” he had threatened to kill himself, which frightened the petitioner. Noting the decision was “a very close call” and that deciding the motion “could have gone either way,” the trial court denied the respondent’s request to terminate the PPO. When denying the motion, the trial court also said, “I think in order to make the Petitioner feel safe during this divorce, I am going to sign an order. I’m continuing the PPO.”

The Court of Appeals reversed, vacated the PPO and remanded the case for the trial court to enter an order granting the respondent’s motion.

“Although we do not second-guess the trial court’s finding that petitioner experienced fear, her fear alone is not sufficient to meet petitioner’s burden to justify continuation of the PPO,” the Court of Appeals wrote. “Nor did petitioner demonstrate reasonable cause to believe that respondent may commit an act prohibited under MCL 600.2950(1) in the future. Accordingly, the trial court abused its discretion by denying respondent’s motion to terminate the PPO.”

Judge Michael F. Gadola and Judge Kristina Robinson Garrett joined the majority opinion. Judge Kathleen A. Feeney issued a separate dissenting opinion.

Burden Not Met

On appeal, the respondent argued the trial court improperly denied his motion to terminate the ex parte PPO. “We agree,” the Court of Appeals said, pointing out that domestic relationship PPOs are governed by MCL 600.2950 and that ex parte PPOs are granted “without notice.”

In its analysis, the Court of Appeals explained that an individual restrained by an ex parte PPO issued under MCL 600.2950(12) can file a motion to modify or rescind the PPO and request a hearing. “When a respondent moves to dissolve a restraining order granted without notice, the petitioner must justify the continuation of the PPO. MCR 3.310(B)(5) provides, in relevant part: … At a hearing on a motion to dissolve a restraining order granted without notice, the burden of justifying continuation of the order is on the applicant for the restraining order whether or not the hearing has been consolidated with a hearing on a motion for a preliminary injunction or an order to show cause.”

Furthermore, MCL 600.2950(4) says a trial court must issue a PPO if it determines there is reasonable cause to believe the person to be restrained may commit an act stated in MCL 600.2950(1), the Court of Appeals said. “The burden of establishing reasonable cause for the issuance of the PPO, and the burden of establishing justification for the court to continue a PPO upon a motion to terminate an ex parte PPO, is upon the person petitioning the court for the PPO.”

Here, the trial court abused its discretion by not “mak[ing] a positive finding of prohibited behavior by respondent before issuing the PPO,” the Court of Appeals said. In addition, the petitioner “did not establish justification for continuing the PPO upon respondent’s motion to terminate the PPO. … The only act alleged against respondent is that he stated that he was going to kill himself. Respondent left the couple’s home on November 25, 2021 because petitioner asked him to give her ‘space.’ Petitioner agreed that respondent did not verbally or physically threaten her in any way, but that she nonetheless became afraid for her own safety because of respondent’s statement. Petitioner testified that she could not remember whether she had been using marijuana at the time of the incident.”

Moreover, in the days leading up to the hearing on the respondent’s motion, he “did not engage in any ‘act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence,’” the Court of Appeals observed. “The only basis found by the trial court to support the PPO was petitioner’s allegation that she became afraid when respondent stated that he was going to kill himself. The trial court found the decision to be ‘a very close call’ whether a PPO was warranted, and that the decision ‘could go either way,’ but concluded that current events in general were frightening and speculated that petitioner might be comforted if a PPO were issued against respondent. The PPO was thus continued not because respondent had engaged in any prohibited conduct, but to allay petitioner’s general fearfulness. The record thus is insufficient to meet petitioner’s burden to justify continuation of the PPO.”

The Court of Appeals also pointed out that the evidence presented by the petitioner was not enough to support a finding of reasonable cause to believe the respondent “might in the future” commit an act prohibited by MCL 600.2950(1). “Here, the only alleged prohibited conduct by respondent was his alleged statement that he would harm himself. The only support for this allegation is petitioner’s uncorroborated testimony that he made this statement.”

Although the trial court found both the petitioner and the respondent credible, it “nonetheless chose to defer to the uncorroborated version of events presented by petitioner, …,” the Court of Appeals concluded. “The trial court’s order is reversed, the PPO is vacated, and this matter is remanded to the trial court, with instructions that the PPO be updated in LEIN as having been rescinded.”

Dissenting Opinion

In her dissent, Judge Feeney noted the petitioner’s request for a PPO “referenced more” than just the November 25, 2021 incident and “gave several examples of behavior that would lead a reasonable person to believe that the respondent may commit one or more of the acts listed in MCL 600.2950(1).”

Although the petitioner’s attorney “attempted to elicit testimony regarding all these events, the trial court refused to consider anything other than the Thanksgiving 2021 event because, in its view, the allegations ‘have to be fairly close in time’ to the PPO application date,” the judge said. “No such limitations exist in the statute or court rules. While the trial court incorrectly limited its consideration to only some of the facts underlying petitioner’s PPO application, I believe that the trial court still made the proper decision to uphold the PPO after examining the entirety of the evidence presented during the 99-minute hearing.”

Further, the petitioner’s attorney “properly argued that the history of violence and respondent’s admission to having a violent temper justified issuance of the PPO, but the trial court, without permitting counsel to elicit evidence on the other allegations, said it had seen and heard more graphic and tragic allegations than what petitioner alleged and ‘would not issue a PPO on the other parts that she brought up,’” Judge Feeney explained. “The trial court recognized, however, that it had to be very careful due to his threats to kill himself.”

At the conclusion of the hearing, the trial court “made some dicta-like comments about wishing respondent could receive a psychological evaluation to make ‘everyone feel more safe. I’m just erring on the side of safety at this time,’” Judge Feeney observed. “When these last comments are read outside the context of the entire hearing, it appears that the trial court is basing its decision on a desire to mollify petitioner. When read as a passing attempt to provide petitioner with some assurances in the light of all testimony, the ‘erring on the side of safety’ comment neither diminishes nor eliminates the court’s findings that respondent’s actions created a reasonable apprehension of violence. And respondent’s statement that he would ‘blow his brains out’ qualified as a threat ‘to kill or injure … a named individual’ per MCL 600.2950(1).”

Therefore, the totality of the circumstances “reveals no abuse of discretion here because an unprejudiced person, considering the facts on which the trial court acted, would say there was justification for the ruling made,” Judge Feeney concluded. “Accordingly, I would uphold the trial court’s order denying respondent’s motion to terminate the PPO.”