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Recent Family Law Decisions

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Recent Family Law Decisions
Issue 30, Winter 2006

Recent Family Law Decisions

by Rebecca Shiemke, MPLP Staff Attorney

 

After many years of no appellate decisions on personal protection proceedings, the Court of Appeals recently issued several unpublished decisions. Those cases are:

Ottevaere v Tweddle
Docket no. 255776 and 259078, decided December 20, 2005 (unpublished)

The Court of Appeals affirmed the trial court's entry of a PPO and a subsequent finding of criminal contempt against respondent for violation of the PPO. The PPO prohibited respondent from contacting petitioner by telephone, with the exception of calling the children at a prescheduled time. Subsequently, respondent telephoned at an unscheduled time to talk to the children. At a show cause hearing, respondent was held in criminal contempt and sentenced to four days in jail.

Respondent argued that the PPO was so vague that it was impossible to comply with. The court of appeals disagreed finding that a reasonable person could easily understand that respondent's telephone calls would violate the order. The language of the PPO clearly indicated that respondent could only call the children at prescheduled times.

Respondent also argued that the trial court failed to apply the proper burden of proof in the contempt hearing. Again, the court of appeals disagreed. To support a finding of criminal contempt, the court must find that respondent willfully disregarded or disobeyed a court order and that the conduct must be proved beyond a reasonable doubt. Here, the court of appeals found that the finding that respondent willfully disregarded the PPO is supported by competent evidence.

In the companion case, docket number 259078, the Court of Appeals affirmed the trial court's second finding of criminal contempt against respondent for violation of the PPO, specifically the prohibition against stalking as defined by statute. Petitioner's fiancé witnessed respondent driving past petitioner's house and respondent was also recognized by respondent's son who was in the yard. This time, respondent was sentence to 30 days in jail and ordered to pay a fine of $500.

The court first rejected respondent's argument that the trial court was required to find that he committed a course of conduct of 2 or more instances of harassment to support a contempt finding. The court of appeals found that the PPO was issued based on a finding of a course of harassing conduct and any violations merely add to the course of conduct and continue the harassment, contrary to the stalking statute, MCL 750.411h and the language of the PPO.

The court of appeals next rejected respondent's argument that the evidence failed to support a finding that he violated the PPO. The court addressed the meaning of appearing at petitioner's home and said, "applying the common use of the language employed, people at and around petitioner's home plainly saw respondent drive along the dead-end access road within twenty-five yards of her house, so he ‘appeared at' her home."


The decisions are available at:
http://www.michbar.org/opinions/appeals/2005/122005/29889.pdf
http://www.michbar.org/opinions/appeals/2005/122005/29926.pdf

Gooding v Gooding
Docket no. 254528, decided January 12, 2006 (unpublished)

The Court of Appeals reversed and remanded the trial court's finding of criminal contempt for respondent's violation of a PPO based on application of the wrong standard of proof. The court held that this was a criminal contempt action and pursuant to MCR 3.708(H)(3) the petitioner or prosecuting attorney has the burden of proving respondent's guilt beyond a reasonable doubt. Here, the record shows that the trial court did not merely misstate the standard of proof, but actually used it to evaluate the evidence.

The decision is available at:
http://www.michbar.org/opinions/appeals/2006/011206/30123.pdf

Lou v Kramer
Docket no. 257808, decided January 19, 2006 (unpublished)

The Court of Appeals dismissed as moot respondent's appeal of the trail court's denial of respondent's motion to rescind a PPO, which was obtained by respondent's neighbor to prohibit stalking behaviors.

The PPO had expired and was not extended, so the court of appeals could not rectify the alleged undue restraint on respondent's actions as a result of the PPO. The issue was moot. Further, the court of appeals refused to find that the issues raised by respondent were of public significance, which would have enabled it to review the issue, even though moot. Here, the statute does not prevent a person from obtaining a PPO against a neighbor to prohibit stalking.

The decision is available at:
http://www.michbar.org/opinions/appeals/2006/011906/30245.pdf


The Michigan Supreme Court issued two recent family law decisions, one addressing the statute of limitations in a felony nonsupport case and the second the requirements of an arbitration hearing. Those cases are:

People v Monaco
Docket no. 126852, decided February 1, 2006

The Supreme Court held that a charge of felony nonsupport under MCL 750.165(1) is subject to the six-year limitations period in MCL 767.24(5) and that a violation of the felony statute does not constitute a continuing offense. The crime of nonsupport is complete at the time the defendant fails to pay the amount ordered at the time ordered.

Justices Kelly and Weaver concurred in the majority's decision regarding application of the statute of limitations, but would have affirmed the court of appeal's finding that nonsupport is a continuing violation.

The decision is available at:
http://www.michbar.org/opinions/supreme/2006/020106/30402.pdf

Miller v Miller
Docket no. 127767, decided December 28, 2005

The Supreme Court held that a formal hearing during arbitration is not required under the Domestic Relations Arbitration Act (DRAA), MCL 600.5070 et seq., overruling a court of appeals decision. The court also held that a court order stipulated to in writing by both parties can satisfy the act's requirement of a written agreement to arbitrate.

Here, the parties stipulated to an order sending all disputed issues in a divorce to arbitration. The parties agreed to a procedure where the arbitrator put the parties in separate rooms and shuttled between them, gathering information and hearing arguments. When plaintiff asked for additional sessions, the arbitrator allowed her to submit written materials. The arbitrator reviewed the materials without a hearing and issued a final binding award. Plaintiff objected, arguing that the arbitrator failed to hold a hearing as required by the act.

The Supreme Court rejected plaintiff's argument, holding that the act "does not require that the formality of a hearing in arbitration proceedings approximate that of a hearing in court. Arbitration is by its nature informal." Thus, in this case, the Court permitted arbitration that approximated mediation.

The decision is available at:
http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/SCT/20051228_S127767_92_miller127767-op.pdf

 


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