20230221_C359305_34_359305.Opn.Pdf ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re SD.
KLH, UNPUBLISHED
February 21, 2023
Petitioner-Appellee,
v No. 359305
Clare Circuit Court
SD, Family Division
LC No. 21-900082-PH
Respondent-Appellant.
Before: JANSEN, P.J., and REDFORD and YATES, JJ.
PER CURIAM.
Respondent appeals as of right her criminal contempt conviction based on her violation of
a personal protection order (PPO), MCL 600.2950a. The trial court sentenced respondent to serve
45 days in jail. We affirm.
I. BACKGROUND
Petitioner’s husband and respondent share children together, but petitioner and her husband
had full physical custody of the children. Several PPOs were issued against respondent over the
years for both petitioner and her husband because of respondent’s constant harassment in person,
over the phone, and on social media. Respondent was also previously convicted of aggravated
stalking, domestic violence, and contempt for repeatedly violating the PPOs. Petitioner obtained
another PPO against respondent shortly after a prior PPO expired because respondent continued
to harass her and her family, continued to violate the terms of other PPOs, and claimed on social
media that petitioner and petitioner’s husband kidnapped her children. Pursuant to MCL
600.2950a, the trial court entered an ex parte nondomestic PPO that prohibited respondent from
engaging in stalking activities, such as sending electronic communications to petitioner.
After the court entered the PPO, respondent continued to contact petitioner by texting her
phone. On April 8, 2021, and April 12, 2021, petitioner sought a show cause hearing for
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respondent to establish why she should not be held in contempt. Following the hearing, the trial
court declined to hold respondent in contempt because petitioner failed to present evidence that
established beyond a reasonable doubt that respondent violated the PPO by texting her phone.
On April 30, 2021, relevant to this appeal, petitioner moved for entry of an order for
respondent to show cause why she should not be held in contempt, alleging that respondent
violated the PPO again by sending texts to petitioner’s phone while respondent was incarcerated
for violating a previous PPO. Following an adjournment and unsuccessful settlement negotiations,
the court held a hearing to address the motion. At the conclusion of the hearing, the trial court
found beyond a reasonable doubt that respondent violated the PPO, and it found her guilty of
criminal contempt. The court found that respondent contacted petitioner’s phone while
incarcerated and that, although respondent claimed that she believed that she was contacting
petitioner’s husband to organize parenting time with her children, she knew or should have known
that she was contacting petitioner’s phone. This appeal followed.
II. STANDARD OF REVIEW
“We review a trial court’s findings in a contempt proceeding for clear error, and such
findings must be affirmed if there is competent evidence to support them.” In re Kabanuk, 295
Mich App 252, 256; 813 NW2d 348 (2012) (citation omitted). We do “not weigh the evidence or
the credibility of the witnesses in determining whether there is competent evidence to support the
findings. This Court reviews a trial court’s issuance of an order of contempt for an abuse of
discretion.” Id. (citations omitted).
III. ANALYSIS
Respondent argues that petitioner presented insufficient evidence that she violated the
PPO. We disagree.
A court’s power to hold a party in contempt “is inherent in the judiciary as generally
established in Const. 1963, art. 6, § 1.” In re Contempt of Auto Club Ins Ass’n, 243 Mich App
697, 708; 624 NW2d 443 (2000). The Legislature has reinforced this inherent power by codifying
“the common-law power of courts to punish for contempt in MCL 600.1701, et seq.” In re
Contempt of United Stationers Supply Co, 239 Mich App 496, 499; 608 NW2d 105 (2000). An
individual who fails to comply with the terms of a PPO is subject to the trial court’s criminal
contempt powers. MCL 600.2950a(23). For the trial court to have properly found respondent
guilty of criminal contempt, petitioner must have proved beyond a reasonable doubt that
respondent violated the PPO. MCR 3.708(H)(3). The nondomestic PPO issued against respondent
prohibited her from engaging in stalking behavior such as contacting petitioner through the phone.
“ ‘Stalking’ means a willful course of conduct involving repeated or continuing harassment of
another individual that would cause a reasonable person to feel terrorized, frightened, intimidated,
threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened,
intimidated, threatened, harassed, or molested.” MCL 750.411h(1)(d).
The record reflects that respondent continued to send text messages to petitioner’s phone
after the court issued the PPO, despite being asked to stop. While respondent claimed that she
merely inadvertently contacted petitioner because she believed she was contacting petitioner’s
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husband to arrange parenting time with her children, she did not dispute that the phone number
belonged to petitioner or that the contacts actually occurred. Petitioner established that she felt
harassed by respondent’s constant contacts which put a “huge strain” on her and her family. The
record supports the trial court’s conclusion that respondent knew or had every reason to know that
she contacted petitioner’s phone. As an appellate court, we defer to credibility determinations
made by lower courts that had the opportunity to see and hear the witnesses. See In re Contempt
of Henry, 282 Mich App 656, 668; 765 NW2d 44 (2009). The evidence presented by petitioner
sufficed for the trial court to find beyond a reasonable doubt that respondent violated the terms of
her PPO by stalking petitioner. Therefore, the trial court did not clearly err in its findings; nor did
it abuse its discretion by finding respondent guilty of criminal contempt.
Affirmed.
/s/ Kathleen Jansen
/s/ James Robert Redford
/s/ Christopher P. Yates
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