Ex-Wife Violated PPO, Properly Found Guilty Of Criminal Contempt
The trial court properly issued a personal protection order (PPO) in this case and correctly held the respondent in contempt, finding that she violated the terms of the PPO, the Michigan Court of Appeals has ruled.
The petitioner in In re Contempt of SK (Docket No. 362557) was the fiancée of the respondent’s ex-husband. The petitioner alleged the respondent stalked, harassed and engaged in threatening conduct against her. The Oakland County Circuit Court issued a nondomestic PPO under MCL 600.2950a based on the respondent’s “repeated and continued harassment” of the petitioner. The respondent filed a motion to terminate the PPO, claiming there was insufficient “reasonable cause” to support it. Thereafter, the petitioner filed two motions for an order to show cause, alleging the respondent had violated the PPO through various social media posts and text messages.
In May 2021, the trial court denied the respondent’s motion to terminate the PPO and found the respondent guilty of criminal contempt for violating the PPO. The respondent was sentenced to 93 days in jail and was ordered to delete all “fake” social media accounts. The trial court also issued an amended nondomestic PPO under MCL 600.2950a. The amended PPO not only continued to prohibit “sending … communications to the petitioner” and “posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s,” but added “[n]o third party contact and no social media contact.”
The petitioner filed a motion for a show cause hearing in May 2022, alleging the respondent violated the PPO by setting up a fake email account and sending a message to the school district that included personal information regarding the Michigan Central Registry that “no one would know.” The trial court again ruled the respondent violated the PPO and, in August 2022, entered an order finding respondent guilty of criminal contempt. The trial court directed the respondent to serve seven days in the Oakland County Jail with 86 days of jail time held in abeyance.
The respondent appealed, challenging the validity of the PPO and its issuance.
The Court of Appeals affirmed.
The trial court “properly issued the PPO based upon respondent’s repeated, unconsented-to contacts,” the Court of Appeals said. Further, “the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that respondent violated the first amended PPO, and the trial court properly found respondent guilty of criminal contempt.”
Judges Mark T. Boonstra, Anica Letica and Kathleen A. Feeney were on the panel that issued the unpublished opinion.
On September 6, 2023, the respondent filed an application for leave to appeal with the Michigan Supreme Court (Docket No. 166085).
Validity Of PPO
On appeal, the Court of Appeals first addressed the respondent’s argument that the trial court improperly entered the PPO under MCL 600.2950 because “there was no domestic relationship between petitioner and respondent and the legal criteria to establish stalking had not been met.”
The record showed the trial court “issued both the initial October 2020 and the first amended September 2021 PPOs under MCL 600.2950a, not MCL 600.2950,” the Court of Appeals explained. “Indeed, the matter was captioned with a PH-suffix, meaning it was a ‘personal protection proceeding[] under MCL 600.2950a whe[re] there is no domestic relationship between the parties and the respondent is not under the age of 18.’ … Thus, there is no merit to respondent’s claim the trial court improperly issued any PPO under MCL 600.2950. Although the August 2022 order entered after the show cause hearing erroneously reflects that respondent was found guilty of criminal contempt for violation of the PPO under MCL 600.2950, this was a mere clerical error … because the September 2021 first amended PPO, underlying the contempt order, was issued under MCL 600.2950a in a case designated as one involving a non-domestic PPO.”
Moreover, because the respondent’s appeal “involves a finding of criminal contempt for violation of the September 2021 first amended PPO, this appeal involves ‘a second proceeding’ and, as such, respondent’s ‘claim in this appeal is a collateral attack on the … PPO, and for this reason alone, the claim fails,’” the Court of Appeals said.
Sufficient Evidence
Next, the Court of Appeals turned to the respondent’s argument that the trial court improperly found her guilty of criminal contempt because there was “insufficient evidence” to demonstrate that she violated the terms of the PPO by allegedly sending e-mails. Alternatively, the respondent argued that, even if if she had sent the e-mails, she could not be found in contempt because the PPO only prohibited contact with petitioner.
When a PPO is violated, a petitioner may file a motion to have the respondent found in contempt of court under MCR 3.708(B)(1), the Court of Appeals observed. “In a criminal contempt proceeding ‘[t]he petitioner or the prosecuting attorney has the burden of proving the respondent’s guilt of criminal contempt beyond a reasonable doubt.’”
Here, the September 2021 first amended PPO prohibited “third party contact,” “social media contact” and “posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium,” pursuant to MCL 750.411s. That statute says:
“(1) A person shall not post a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the victim’s consent, if all of the following apply:
(a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.
(b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.
(c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.”
According to the Court of Appeals, posting a message “means transferring, sending, posting, publishing, disseminating, or otherwise communicating or attempting to transfer, send, post, publish, disseminate, or otherwise communicate information, whether truthful or untruthful, about the victim.”
In the petitioner’s May 2022 motion to show cause, she alleged the respondent posed as an individual named Bill Fauts, claiming to be a grandfather of a child in the petitioner’s class and sent e-mails to school administrators. The initial e-mail said: “A teacher at my grand daughter’s [sic] school at Carpenter Elementary, [petitioner], put the following picture of a birthday card made by a student of hers to [RK]. This was on her public Instagram a few days ago. I have personal knowledge that [RK] is [RK’s full name]. [RK] is on the Central Registry for Michigan Child Abusers and I have concerns about him being inside my grand daughter’s [sic] school. I thought visitors and individuals were thoroughly screen[ed] before being allowed to go into these schools let alone the classrooms if they are not a staff member or parent? It was also my understanding that anyone on the Michigan child abuser central registry is not allowed near any school especially with young children.”
The Court of Appeals held that, viewing the evidence in the light most favorable to the petitioner, the respondent’s conduct violated the PPO. “That PPO expressly banned respondent from posting messages through any electronic medium under MCL 750.411s and third-party contact. By e-mailing the administrators of petitioner’s school, respondent improperly initiated electronic third-party contact expressly banned by the PPO. Contrary to respondent’s assertion, this communication constitutes a violation of the September 2021 first amended PPO because MCL 750.411s applies to third-party communications resulting in unconsented contacts with the victim. … Although respondent denied sending the e-mails, the trial court remarked that it found petitioner’s testimony ‘very credible’ and accorded it great weight. After reviewing the circumstantial evidence, the trial court further found that respondent was responsible for sending the e-mails.”
Because the Court of Appeals “does not weigh the evidence or the credibility of the witnesses, and because the trial court is in a superior position to assess the witnesses’ testimony, we defer to its credibility determinations,” the Court of Appeals said. “Accordingly, the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that respondent violated the first amended PPO … and the trial court properly found respondent guilty of criminal contempt.”
In conclusion, the Court of Appeals affirmed in part and remanded in part, so the trial court could make a “ministerial correction” to its August 2022 order to reflect that it was entered under MCL 600.2950a and not MCL 600.2950.
