Rao v. Two ( 2024 )

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
RAO, UNPUBLISHED
October 15, 2024
Petitioner-Appellee, 1:25 PM
v No. 366528
Ottawa Circuit Court
TWO, LC No. 22-099508-PP
Respondent-Appellant.
Before: SWARTZLE, P.J. and REDFORD and FEENEY, JJ.
PER CURIAM.
Petitioner obtained a personal protection order (PPO) against her ex-husband. Respondent
moved to terminate the PPO, and the circuit court denied respondent’s motion after a hearing. We
affirm.
Petitioner and respondent were previously married and share three children. Their March
2022 judgement of divorce1 required that respondent’s parenting time be supervised. In November
2022, petitioner petitioned for an ex parte PPO. Petitioner described several incidents as the basis
for her request. In one incident that occurred a few days before petitioner sought the PPO,
respondent’s mother had been supervising respondent’s parenting time when he had a “mental
breakdown” and took one of the children. Petitioner had worked with police to get the child back.
When respondent ultimately returned the child, he walked toward petitioner’s car, “balled his fists
and scowled at” petitioner, then he raised a fist, but petitioner got into her car.
Petitioner further alleged that earlier that month, she would not give respondent her sleds
to use during his parenting time and, during the child exchange, respondent “made a gun with his
hand, pointed at [petitioner’s] head, [and] pretended to shoot.” Respondent then sent petitioner
1
Notably, in the preface to the parties’ judgment of divorce, the trial court stated it “heard trial in
the matter on multiple days. The Defendant appeared for day one of trial and failed to appear for
the subsequent three days of the trial.” Also, plaintiff received sole legal custody and primary
physical custody of the parties’ three children.
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text messages threatening to return to her home to take the sleds, and petitioner put furniture in
front of her door to feel safe.
Petitioner also described an earlier event that took place over Easter weekend in 2022.
Respondent had arrived for parenting time without a supervisor, and petitioner would not let him
take the children. Respondent stated that he was going to take the children. Petitioner went inside
her home and “locked the front door just as he crashed into it.” Respondent “continued to ram
into the door,” and petitioner called 911. Respondent told her that she “was dead” and “would be
sorry.” Officers arrived and told respondent to leave. Petitioner asserted that respondent’s bizarre
actions showed how unpredictable and unstable he was.
On the same day that petitioner filed her petition, the circuit court granted the ex parte PPO.
The order also, presumably erroneously, listed the same date of expiration. Respondent was never
served with the PPO. Respondent attempted to pick up their children several times after this, but
petitioner would not let him. In one incident in December 2022, respondent called the police to
facilitate the exchange, and an officer informed him of the PPO’s existence and verbally advised
him of the PPO’s terms.
In January 2023, the circuit court issued an amended PPO, which provided the same
restrictions, but noted that the expiration date was for November of 2023. Respondent moved to
vacate the PPO in April 2023, alleging that he had not been served and that petitioner had “wrongly
obtained” the ex parte PPO because she had not shown a risk of immediate and irreparable injury.
The circuit court held a hearing on the motion, stating that petitioner had the burden of
establishing the basis for the PPO. Petitioner testified about the incidents described in her petition.
To support his motion, respondent called his father, Timothy O’Hara, to testify. O’Hara
testified that he had never seen respondent endanger his children. O’Hara testified that he was
with respondent when respondent returned his child to petitioner in the November 2022 incident,
and he did not see respondent make any threatening gestures at petitioner. O’Hara acknowledged
that respondent’s back was to him during the exchange.
Respondent also testified, denying the allegations. Respondent raised the issue of not being
served with the PPO, arguing that an officer reading it to him over the phone did not constitute
service, and that the officer did not file proof of service with the court. The circuit court asked
him if the officer had read to him the contents of the PPO. Respondent answered that he did not
hear all of it, and the circuit court asked respondent if he chose not to listen. Respondent
responded, “Well, he could’ve easily handed me a copy. . . .”2 Later, respondent again referred to
when “the police tried to read [him] the PPO”.
The circuit court found that respondent had actual notice of the PPO, but that it was
correcting any service issue by holding the hearing, which gave respondent an opportunity to
2
Given that PPO’s are entered into the Law Enforcement Information Network (LEIN), the police
officer was likely reading the PPO restrictions listed in LEIN, so there would be no “document”
the officer could hand to respondent even if they were speaking face to face.
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challenge the PPO. The circuit court found that petitioner met her burden of proof and denied
respondent’s motion.
Respondent now appeals. Respondent noted in his brief on appeal that he had attorney
assistance in preparing his brief. MRPC 1.2(b)(1) provides that an attorney licensed in Michigan
“may draft or partially draft” a brief without signing it or identifying him- or herself. The
document must, however, include the following statement: “This document was drafted or partially
drafted with the assistance of a lawyer licensed to practice in the State of Michigan, pursuant to
Michigan Rule of Professional Conduct 1.2(b).” MRPC 1.2(b)(1). Although respondent’s brief
did not fully incorporate this statement, respondent otherwise abided by the rule by explaining that
he had received attorney assistance and signing the brief. See MRPC 1.2(b).
Respondent argues that the circuit court erred by denying his motion to vacate the ex parte
PPO when petitioner “wrongly obtained” the PPO and did not serve respondent. This Court
reviews for an abuse of discretion a trial court’s decision on a motion to terminate a PPO. See
Pickering v. Pickering, 253 Mich App 694, 700; 659 NW2d 649 (2002). A trial court abuses its
discretion when it chooses an outcome that falls outside the range of principled outcomes.
Nowacki v Dep’t of Corrections, 319 Mich App 144, 148; 900 NW2d 154 (2017). Additionally,
this Court reviews for clear error a trial court’s findings of fact. Sweebe v Sweebe, 474 Mich 151,
154; 712 NW2d 708 (2006). We review de novo questions of statutory interpretation. Id.Due-process protections apply to proceedings on a motion to terminate a PPO. See CAJ v
KDT, 339 Mich App 459, 468; 984 NW2d 504 (2021). “[A]t a minimum, due process of law
requires that deprivation of life, liberty, or property by adjudication must be preceded by notice
and an opportunity to be heard.” Bonner v City of Brighton, 495 Mich 209, 235; 848 NW2d 380(2014). An “opportunity to be heard ‘must be granted at a meaningful time and in a meaningful
manner.’ ” Id., quoting Armstrong v Manzo, 380 US 545, 552; 85 S Ct 1187; 14 L Ed 62 (1965).
Under MCL 600.2950, a party may petition a court for a PPO against a former spouse.
When “it clearly appears from specific facts shown by a verified complaint, written motion, or
affidavit that immediate and irreparable injury, loss, or damage will result from the delay required
to effectuate notice or that the notice will itself precipitate adverse action before a [PPO] can be
issued,” the court “shall” enter the PPO without notice to the respondent. MCL 600.2950(12).
Further, if a respondent has not yet been served when an officer responds to a call about a violation
of the PPO, the officer shall serve the respondent with the order or inform the respondent about
the PPO. MCL 600.2950(22). The officer must then enter into the Law Enforcement Information
Network that the respondent received actual notice of the PPO and file proof of notice with the
court. Id. See also MCR 3.706(E).
In her petition, petitioner met the burden for an ex parte PPO, describing several incidents
that supported the request and established the risk of immediate or irreparable injury, loss, or
damage. Respondent argues that petitioner did not call the police for protection when denying his
parenting time and showed no injury; however, petitioner asserted in the petition that she had
called police on at least two occasions before seeking the PPO. Regardless, calling the police is
not required to obtain a PPO. Nor was petitioner required to show that an injury had already
occurred. Rather, she properly described several incidences of respondent engaging in threatening
behavior toward her.
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Respondent also argues that petitioner failed to provide an affidavit to support her petition,
but submitting an affidavit is not the sole avenue to obtaining an ex parte PPO. See MCL
600.2950(12). Instead, petitioner could, and did, support her request with her written petition that
detailed several incidences of respondent’s aggressive behavior. The cases on which respondent
relies as support for the affidavit requirement relate to contempt proceedings.
There seems to be no dispute that respondent was not properly served with the PPO, at
least until the officer informed him of it in December 2022. Failure to serve the PPO, however,
does not affect its validity. MCR 3.706(D). Respondent argues that the officer’s notice to him
was not proper because the officer would have needed also to provide him with the physical PPO
and file proof of notification with the court. At the hearing on respondent’s motion, however,
respondent indicated that he did not listen to the officer’s attempt to give him a full description of
the PPO; rather, he had wanted a physical copy of the order. Both the statute and court rule permit
oral notice of PPOs. See MCL 600.2950(22); MCR 3.706(E). Although the record does not
establish that the officer filed proof of the notice with the court, there is no question that respondent
received notice of the PPO in December 2022, whether or not he chose to listen to all of the details.
Crucially, the circuit court addressed the lack of service by holding a full evidentiary
hearing. Therefore, respondent’s argument that he was denied his right to notice and an
opportunity to challenge the PPO is without merit. Petitioner properly bore the burden of proof at
the hearing, see Pickering, 253 Mich App at 697, and she testified about the various incidents that
caused her to petition for the PPO. Respondent also testified and had his father testify in his
defense. Respondent, therefore, had full notice of the allegations against him and an opportunity
to be heard about those allegations. See Bonner, 495 Mich at 235. There is also nothing in the
record to suggest that respondent was ever held in contempt for violating the ex parte PPO, and he
cannot show prejudice when he was given notice of the PPO in December 2022, did not move to
vacate the PPO until April 2023, and was given a full evidentiary hearing to address the PPO.3
Affirmed.
/s/ Brock A. Swartzle
/s/ James Robert Redford
/s/ Kathleen A. Feeney
3
Respondent’s complaints regarding missed parenting time are properly addressed in the divorce
action, not the PPO file. While it appears true that the custody order in the Judgment of Divorce
was not referenced in either PPO, the terms of the PPO did not preclude respondent from
conducting supervised visitation with his children. Thus, the trial court that granted the Judgment
of Divorce can address any denial of parenting time and requests for make-up parenting time as
those issues are not controlled by the PPO.
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