Trial Court Correctly Extended PPO On Its Own Motion

The trial court properly extended – on its own motion – the duration of a personal protection order (PPO) after finding the respondent guilty of criminal contempt for violating the PPO, the Michigan Court of Appeals has ruled.

A domestic PPO was issued against the respondent in In re SB (Docket No. 367014) under MCR 600.2950. In finding the respondent guilty of criminal contempt for violating the PPO, the Clinton County Circuit Court pointed to the respondent’s “continuous behavior” and said:

“A pattern of violating this personal protection order by way of intimidation and harassment that … a reasonable person would absolutely find to be intimidating and it would cause them emotional distress. I have – I have no doubts about that. … I find that proof was made beyond a reasonable doubt that [the respondent] is guilty of criminal contempt by violating this personal protection order after going through all of the items that I did and by the totality of the circumstances showing a clear pattern, a clear continuous behavior of intimidat[ion] and harassment[.]”

The Clinton County trial court sentenced the respondent to 93 days in jail for violating the PPO. In addition, the trial court sua sponte (on its own motion) extended the PPO for 10 more months.

The respondent appealed, arguing the trial court:

• denied him due process by applying the wrong standard of proof.

• violated his due process right to present a defense by prohibiting his son from testifying at the contempt hearing.

• abused its discretion by extending the PPO on its own motion.

The Court of Appeals affirmed the trial court’s decision in a published opinion joined by Judge Thomas C. Cameron and Judge Noah P. Hood.

Regarding the standard of proof, “the trial court did not violate respondent’s due process rights or otherwise abuse its discretion by considering the totality of the circumstances and determining that his conduct violated the PPO beyond a reasonable doubt,” the Court of Appeals said.

As to the respondent’s son not testifying, “[w]e conclude that respondent has not shown that the trial court committed plain, outcome-determinative error – as necessary to grant relief for this unpreserved claim – by precluding his son from testifying,” the Court of Appeals wrote.

Regarding the trial court’s sua sponte extension of the PPO, “[w]e … conclude that respondent has not shown that the trial court committed plain, outcome-determinative error under this issue,” the Court of Appeals stated.

Judge Adrienne N. Young wrote a separate concurring opinion. “I invite our Supreme Court to amend the language in the[] court rules to provide greater clarity to the trial courts, or else correct any misunderstanding from this Court,” she said. “As noted in the lead opinion, court rules have been amended in the past to clarify courts’ sua sponte authority to take certain action following a case that decided the issue.”

Standard Of Proof

On appeal, the respondent first claimed the trial court denied him due process by applying an incorrect standard of proof to find him guilty of criminal contempt.

“According to respondent, the court erred by finding him guilty under the totality of the circumstances where it also said it could not find him guilty beyond a reasonable doubt of any of the particular, individual allegations at issue,” the Court of Appeals wrote. “Stated differently, respondent argues that the trial court did not properly apply the ‘beyond a reasonable doubt’ standard in finding him guilty of criminal contempt because it relied on the totality of the circumstances. We conclude that the trial court did not violate respondent’s right to due process or otherwise abuse its discretion by considering the totality of the circumstances and determining that his conduct violated the PPO beyond a reasonable doubt.”

According to the Court of Appeals, the trial court “did not adjudicate respondent’s guilt under an incorrect view of the law by assessing respondent’s conduct from a totality-of-the-circumstances perspective. Nor did it otherwise err in finding, beyond a reasonable doubt and based on the totality of the circumstances, that respondent (1) continued to engage in a willful course of conduct involving repeated or continuing harassment of petitioner that would cause a reasonable person emotional distress, and did cause petitioner emotional distress, in violation of the PPO’s prohibition of stalking, or (2) engaged in ‘a continuous pattern of … interfering in [petitioner’s] daily life one way or another’ in violation of the PPO’s prohibition of engaging in conduct that impaired petitioner’s environment.”

It was appropriate for the trial court to consider the respondent’s continued pattern of “harassing and intimidating conduct” toward the petitioner – that is, the totality of the circumstances – to establish that he violated the PPO, “particularly where the PPO plainly prohibited such conduct,” the Court of Appeals wrote. “Therefore, the trial court did not violate respondent’s right to due process or otherwise abuse its discretion by considering the totality of the circumstances and determining that his conduct violated the PPO beyond a reasonable doubt.”

No Testimony: No Plain Error

The respondent also asserted the trial court violated his right to present a defense by prohibiting his son from testifying at the contempt hearing.

Addressing this argument, the Court of Appeals noted the record did not show that the respondent “ever actually asked the trial court to allow his son to testify at the contempt hearing” after the mother indicated she did not want the son to participate. “Respondent also never provided any offer of proof regarding the son’s testimony, nor any objection to the purported exclusion. Accordingly, the trial court’s alleged error in precluding the son from testifying is neither clear nor obvious from the existing record, i.e., respondent has not shown that the court committed plain error.”

Moreover, “assuming arguendo that the trial court did preclude respondent’s son from testifying – a possibility considering the court’s statements prohibiting the son’s presence in the courtroom – and that it did so in error, respondent has not shown that the error was outcome determinative,” the Court of Appeals said.

The respondent “has not shown that the absence of his son’s testimony affected the outcome of the contempt proceedings, or that he was denied his constitutional right to present his defense,” the Court of Appeals observed. “Therefore, respondent has not established entitlement to appellate relief on this issue.”

PPO Extension Proper

Lastly, the respondent argued the trial court abused its discretion by extending the PPO on its own motion.

“Review of the lower-court record indicates that petitioner did not move the trial court to extend the PPO,” the Court of Appeals pointed out. “Instead, at the contempt hearing, after finding respondent guilty of criminal contempt for violating the PPO and sentencing him to serve 93 days in jail, the trial court proceeded to sua sponte extend the PPO ….”

The Court of Appeals explained that MCR 3.707(B)(1) does not “explicitly provide” courts with the authority to extend a PPO on their own initiative. “Had the drafters intended that the rule permit a court to extend a PPO sua sponte, they could have explicitly said so. … We therefore agree with respondent that the trial court lacked authority under MCR 3.707(B)(1) to extend the PPO sua sponte.”

Therefore, the issue was whether the trial court had the authority to extend the PPO sua sponte under MCR 3.708(H)(5), the Court of Appeals said. “As an initial matter, we are unaware of any Michigan caselaw addressing this question, nor does respondent direct this Court to any such caselaw.” Accordingly, the Court of Appeals examined the plain language of the court rule, emphasizing that MCR 3.708(H)(5) “can be reasonably construed as granting the trial court discretion to impose different or additional stipulations, provisions, qualifications, or prerequisites to the PPO – i.e., to limit or expand the scope of the PPO – when sentencing a respondent for criminal contempt.”

The Court of Appeals then looked at whether the trial court’s order extending the PPO’s expiration date constituted “a different or additional stipulation, provision, qualification or prerequisite” to the PPO. “We conclude it does. … [I]n our view, it is appropriate for the trial court to determine when sentencing a respondent for criminal contempt for violating a PPO what, if any, additional conditions are warranted to adequately protect the petitioner going forward. … [T]his includes the authority to extend a PPO’s effectiveness.”

Interpreting MCR 3.708(H)(5) as allowing the trial court to extend the PPO at sentencing “is reasonable,” the Court of Appeals said, “because the respondent’s guilt has been established, and the trial court has been fully apprised of the situation between the parties such that it can readily evaluate the need to impose ‘other conditions’ to the PPO, such as, in this case, extending its expiration date.”

As a result, “the trial court did not plainly err by extending the duration of the PPO on its own motion, specifically as a condition of sentencing after finding respondent guilty of criminal contempt for violating the PPO,” the Court of Appeals held. “And even assuming the trial court did plainly err by sua sponte extending the PPO’s duration, respondent has not shown how that affected his substantial rights, i.e., any outcome-determinative error. … Respondent does not present any argument that the circumstances did not warrant an extension of the PPO, or that he was prejudiced by the extension; he argues only that the trial court did not follow the appropriate procedure when it sua sponte extended the PPO. Accordingly, on this record, respondent has not established that the court’s sua sponte extension of the PPO constituted plain error that affected his substantial rights, and he is not entitled to appellate relief.”