Lm v. Bm

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
LM, UNPUBLISHED
June 17, 2021
Petitioner-Appellee,
v No. 352461
Macomb Circuit Court
BM, LC No. 2019-009403-PP
Respondent-Appellant.
Before: GLEICHER, P.J., and CAVANAGH and LETICA, JJ.
PER CURIAM.
Respondent appeals as of right the order denying his motion to terminate a personal
protection order (PPO). On appeal, respondent argues that the trial court erred because petitioner
did not meet her burden of proof, the burden of persuasion was erroneously placed on respondent,
the trial court denied respondent a fair and impartial trial, and the trial court declined to sanction
petitioner. We affirm.
I. BACKGROUND FACTS
This case arises from a domestic-relationship ex parte PPO entered against respondent in
2019, which prohibited him from possessing firearms and obtaining a concealed pistol license
(CPL). The parties were married, but divorced in 2018. At the time this case arose, they had two
minor children, ZM and TM. In May 2018, respondent was arrested and charged with domestic
violence. As a result of the criminal charges, the criminal court imposed a no-contact order
between the parties. Because the parties shared custody of their children, the no-contact order
included a specific exception for communication regarding them.
In October 2019, TM, who was in petitioner’s care, injured his hand late at night and
petitioner took him to the emergency room. Unbeknownst to petitioner, respondent had placed a
tracking application on TM’s phone; consequently, respondent received an alert that TM was at
the hospital. TM was diagnosed with a minor hand injury and discharged from the hospital.
However, in the days after the hospital visit, there were 18 telephone exchanges between
respondent and TM. Petitioner became aware of the tracking application and filed for an ex parte
PPO. In the petition, petitioner alleged respondent was attempting to call her through her children
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and that respondent placed the tracking application on TM’s phone to monitor petitioner’s location.
Petitioner also made other allegations regarding respondent’s purported violent past. The trial
court entered the ex parte PPO. Respondent later moved the trial court to terminate the PPO. The
trial court denied respondent’s first motion to terminate the PPO. Respondent filed another motion
to terminate, which the trial court also rejected. Respondent moved for reconsideration, and the
trial court denied that motion as well. This appeal follows.
II. STANDARD OF REVIEW
A PPO is an injunctive order—therefore, a trial court’s decision whether to issue a PPO is
reviewed for an abuse of discretion. Hayford v Hayford, 279 Mich App 324, 325; 760 NW2d 503
(2008). “An abuse of discretion occurs when the decision resulted in an outcome falling outside
the range of principled outcomes.” Id. “A trial court’s findings of fact are reviewed for clear
error.” Sweebe v Sweebe, 474 Mich 151, 154; 712 NW2d 708 (2006). “A finding is clearly
erroneous where, although there is evidence to support the finding, the reviewing court on the
entire record is left with the definite and firm conviction that a mistake has been made.” Ambs v
Kalamazoo Co Rd Comm, 255 Mich App 637, 652; 662 NW2d 424 (2003). Questions of statutory
interpretation are reviewed de novo. Hayford, 279 Mich App at 325.
Michigan courts construe court rules in the same way that they construe statutes.
Well-established principles guide this Court’s statutory [or court rule] construction
efforts. We begin our analysis by consulting the specific . . . language at issue.
This Court gives effect to the rule maker’s intent as expressed in the court rule’s
terms, giving the words of the rule their plain and ordinary meaning. If the language
poses no ambiguity, this Court need not look outside the rule or construe it, but
need only enforce the rule as written. This Court does not interpret a court rule in
a way that renders any language surplusage. [Kloian v Domino’s Pizza LLC, 273
Mich App 449, 458; 733 NW2d 766 (2006) (quotation marks and citations
omitted).]
III. ENTRY AND CONTINUATION OF THE PPO
Respondent argues that the trial court erred when it concluded there were sufficient facts
to warrant the issuance and continuance of the PPO. We disagree.
A PPO is an injunctive order that is issued by a circuit court. MCL 600.2950(30)(d). “[A]n
ex parte PPO constitutes a ‘restraining order granted without notice’ under MCR 3.310(B)(5),
because it is issued ex parte and restrains a respondent from committing certain acts.” Pickering
v Pickering, 253 Mich App 694, 698; 659 NW2d 649 (2002). “In cases in which an ex parte order
is sought, the petitioner must show that the danger is imminent and that the delay to notify the
respondent is intolerable or in itself dangerous.” Kampf v Kampf, 237 Mich App 377, 385; 603
NW2d 295 (1999).
Respondent presents two arguments—first, that petitioner wrongly “filed under two
statutes regarding Personal Protection Orders,” and second, that the trial court erred in granting
the PPO because the petition alleged unsubstantiated falsehoods. In light of the structure of
respondent’s arguments, our analysis is two-fold. First, we consider whether petitioner indeed
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“filed under two statutes.” Second, we analyze the merits of respondent’s arguments related to
MCL 600.2950 and MCL 600.2950a.
In Michigan, there are two statutes that govern PPOs—MCL 600.2950 and MCL
600.2950a. “The nature of the petitioner’s relationship with the respondent and the respondent’s
acts govern which form of PPO is appropriate.” TM v MZ, 501 Mich 312, 315; 916 NW2d 473
(2018) (quotation marks and citation omitted). MCL 600.2950 addresses PPOs in the context of
domestic relationships, while MCL 600.2950a(1) and (2) address stalking-type and sexual-assault
PPOs, respectively. See TM, 501 Mich at 315-316.
Respondent’s argument on this point is confusing—respondent appears to assume that
because the PPO prohibited him from “stalking as defined under MCL 7500.411h and MCL
750.411i,” petitioner sought a stalking-type PPO under MCL 600.2950a. While the trial court
never explicitly stated that the PPO was granted under MCL 600.2950, “[t]he nature of the
petitioner’s relationship with the respondent and the respondent’s acts govern which form of PPO
is appropriate.” TM, 501 Mich at 315 (quotation marks and citation omitted). Here, it is
undisputed that respondent and petitioner were previously married, have children, and are now
divorced. See MCL 600.2950(1) (providing that a petitioner may file a petition for a PPO against
the petitioner’s “former spouse” or “an individual with whom he or she has had a child in
common . . . .”). Moreover, the petition for the PPO was entitled, “Petition for Personal Protection
Order (Domestic Relationship),” and the trial court’s order granting the PPO was entitled,
“Personal Protection Order (Domestic Relationship).” Because the parties were previously
married and the trial court’s PPO specified a “domestic relationship,” the PPO was a domestic-
relationship PPO under MCL 600.2950.
We turn to the second question of whether the trial court erred in denying respondent’s
motion to terminate the PPO because the petition only alleged unsubstantiated facts, which
respondent asserts were later proven false. With respect to MCL 600.2950, a trial court must issue
a PPO where it finds that “there is reasonable cause to believe that the individual to be restrained
or enjoined may commit 1 or more of the acts listed in subsection (1).” MCL 600.2950(4). These
include, in part:
(a) Entering onto premises.
(b) Assaulting, attacking, beating, molesting, or wounding a named
individual.
(c) Threatening to kill or physically injure a named individual.
(d) Removing minor children from the individual having legal custody of
the children, except as otherwise authorized by a custody or parenting time order
issued by a court of competent jurisdiction.
(e) Purchasing or possessing a firearm.
(f) Interfering with petitioner’s efforts to remove petitioner’s children or
personal property from premises that are solely owned or leased by the individual
to be restrained or enjoined.
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(g) Interfering with petitioner at petitioner’s place of employment or
education or engaging in conduct that impairs petitioner’s employment or
educational relationship or environment.
* * *
(i) Having access to information in records concerning a minor child of both
petitioner and respondent that will inform respondent about the address or
telephone number of petitioner and petitioner’s minor child or about petitioner’s
employment address.
(j) Engaging in conduct that is prohibited under . . . MCL 750.411h and
750.411i.
* * *
(l) Any other specific act or conduct that imposes upon or interferes with
personal liberty or that causes a reasonable apprehension of violence. [MCL
600.2950(1)(a) through (l).]
Relating to MCL 600.2950(a)(j), MCL 750.411h(1) provides these pertinent definitions:
(a) “Course of conduct” means a pattern of conduct composed of a series of
2 or more separate noncontinuous acts evidencing a continuity of purpose.
(b) “Emotional distress” means significant mental suffering or distress that
may, but does not necessarily, require medical or other professional treatment or
counseling.
(c) “Harassment” means conduct directed toward a victim that includes, but
is not limited to, repeated or continuing unconsented contact that would cause a
reasonable individual to suffer emotional distress and that actually causes the victim
to suffer emotional distress. Harassment does not include constitutionally protected
activity or conduct that serves a legitimate purpose.
(d) “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.
(e) “Unconsented contact” means any contact with another individual that
is initiated or continued without that individual’s consent or in disregard of that
individual’s expressed desire that the contact be avoided or discontinued.
Unconsented contact includes, but is not limited to, any of the following:
(i) Following or appearing within the sight of that individual.
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(ii) Approaching or confronting that individual in a public place or on
private property.
(iii) Appearing at that individual’s workplace or residence.
(iv) Entering onto or remaining on property owned, leased, or occupied by
that individual.
(v) Contacting that individual by telephone.
(vi) Sending mail or electronic communications to that individual.
(vii) Placing an object on, or delivering an object to, property owned, leased,
or occupied by that individual.
(f) “Victim” means an individual who is the target of a willful course of
conduct involving repeated or continuing harassment.
“The petitioner bears the burden of establishing reasonable cause for issuance of a PPO
and of establishing a justification for the continuance of a PPO at a hearing on the respondent’s
motion to terminate the PPO.” Hayford, 279 Mich App at 326 (citations omitted). “The trial court
must consider the testimony, documents, and other evidence proffered and whether the respondent
had previously engaged in the listed acts.” Id. Further, the issuance or continuance of a PPO
requires “evidence of two or more acts of unconsented contact that caused the victim to suffer
emotional distress and that would cause a reasonable person to suffer emotional distress.” Id. at
330.
The trial court stated it initially granted the PPO because “[petitioner] convinced me at the
last hearing that she met her burden of proof regarding a reasonable fear for her safety or being
harassed.” Further, the trial court stated that continuing the PPO after the November 25, 2019
hearing on respondent’s motion to terminate was appropriate because:
[The trial court] found that [petitioner’s] testimony that day was more
credible than [respondent’s], as it related to the harassment issue. Furthermore, I
also made comments about whether or not I felt it was appropriate that [respondent
is] using Find My Phone and tracking that phone while in the company of the
[petitioner], that also didn’t feel appropriate or necessary to me. That was another
reason I continued the PPO. Another reason that I continued the PPO is because in
the Petition, it indicated that [petitioner] found bullets in her bedroom and that there
were several fake phone calls . . . .
At the hearing on respondent’s second motion to terminate, the trial court concluded:
I’m not dismissing the [PPO]. I find that [petitioner] met her burden based
on the fact that there were repeated phone calls that day, based on the fact that there
was tracking going on with the phone[;] I’m not changing it. If you can convince
me after a period of time that this all will calm down, I’m happy to revisit the issue.
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Respondent contends this conclusion by the trial court, declining to terminate the PPO, was
erroneous because “[t]here was no hint or threat of any assaultive behavior by” him. To support
this contention, respondent contends the trial court wrongly accepted petitioner’s version of events
over his version. Respondent’s argument is problematic in two ways. First, respondent essentially
asks this Court to engage in a credibility determination on the basis of the testimony presented to
the trial court. The trial court credited petitioner’s testimony over respondent’s testimony.
Because the trial court has the ability to not only hear the testimony, but also to personally observe
the witnesses and evaluate their demeanor, we defer to the trial court for credibility determinations.
See Pickering, 253 Mich App at 702.
Second, under MCL 600.2950(4), it is not necessary that a petitioner prove that certain acts
occurred. Instead, a petitioner must only establish that there is “reasonable cause to believe” the
respondent may commit one of the prohibited acts. Here, the trial court explicitly stated it found
reasonable cause “on the basis of harassment.” Under MCL 750.411h(c), harassment is defined
as “repeated or continuing unconsented contact that would cause a reasonable individual to suffer
emotional distress and that actually causes the victim to suffer emotional distress.”
It is undisputed that there were 18 phone calls between respondent’s phone and TM’s
phone on a particular day, and respondent conceded that he placed the tracking application on
TM’s telephone. Petitioner asserted that by making the phone calls and placing the tracking
application, respondent “is harnessing [sic] me through my children.” While respondent claims
that petitioner is not credible, the trial court properly considered petitioner’s statements in support
of her petition and did not abuse its discretion in deciding to continue the PPO on the basis of its
conclusion that respondent might commit one of the prohibited acts.
Finally, it is not necessary for this Court to consider respondent’s argument that petitioner
failed to prove the elements for antistalking relief under MCL 600.2950a. As noted, the PPO at
issue was entered as a “domestic relationship” PPO under MCL 600.2950, not as a stalking-type
PPO under MCL 600.2950a. Moreover, the trial explained to respondent that the PPO at issue
was not a stalking-type PPO. Consequently, an analysis of the merits of MCL 600.2950a is
unnecessary because that statute does not govern the issues here.
IV. BURDEN OF PERSUASION
Respondent argues the trial court impermissibly placed the burden of persuasion on him to
justify the termination of the PPO. We disagree.
Under MCL 600.2950(13), “[t]he individual restrained or enjoined may file a motion to
modify or rescind the personal protection order and request a hearing under the Michigan court
rules.” Thereafter, “the petitioner [has] the burden of persuasion in a hearing held on a motion to
terminate or modify an ex parte PPO.” Pickering, 253 Mich App at 699. Respondent’s arguments
on appeal are unclear. Respondent appears to believe petitioner’s testimony was insufficient to
satisfy her burden of persuasion, especially in the face of documentary evidence that he believes
contradicts petitioner’s assertions in her verified statement and in her statements on the record.
Respondent’s argument is unavailing for three reasons. First, the statute explicitly allows
for a trial court to accept testimony in finding reasonable cause to enter a PPO. MCL
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600.2950(4)(a) (“In determining whether reasonable causes exists” a trial court “shall consider all
of the following,” including “[t]estimony, documents, or other evidence offered in support of the
request for a personal protection order.”). Thus, it is not error for the trial court to accept testimony
to support the issuance of a PPO.
Second, MCL 600.2950(4) plainly states, “[t]he court shall issue a personal protection
order under this section if the court determines that there is reasonable cause to believe that the
individual to be restrained or enjoined may commit 1 or more of the acts listed in subsection (1).”
(Emphasis added.) “The term ‘shall’ is mandatory.” Ellison v Dep’t of State, 320 Mich App 169,
180; 906 NW2d 221 (2017) (citation omitted). Accordingly, a trial court must enter a PPO, even
where reasonable cause arises solely from a petitioner’s testimony.
Third, the trial court applied the correct burden to its analysis after granting the initial
petition and after respondent’s first motion to terminate. This is evinced by two exchanges
between the trial court and respondent’s attorney:
[Respondent’s Attorney]: I want to also clarify, also a couple things. Last
time we were in Court with regard to case law [sic], Pickering v Pickering, [253
Mich App at 699,] my, it’s not my burden of proof with regard to the, even though
we filed a Petition to Terminate. The petition, the burden of proof and persuasion
is still with the person who asked for the PPO that was entered on an Ex Parte basis.
So, [petitioner] has to indicate to this Court why she believes whatever she filed is
enough to persuade this Court in response to whatever I’ve written in my Brief, and
the documents I’ve provided that the PPO should be continued.
The Court: She did that.
* * *
[Respondent’s Attorney]: So, what, I’m trying to find out when I’m arguing
this, what has she provided, I have not seen what she’s provided that would mag,
make up a clear and convincing case.
The Court: Her testimony.
[Respondent’s Attorney]: Her testimony has provided nothing.
The Court: Was credible and believable.
[Respondent’s Attorney]: So, my client is believable also before the Court,
and I’m credible with regard—
The Court: Okay. We’re not, listen—
[Respondent’s Attorney]: To both cases.
The Court: Not according to me. I’m the finder of fact, not you. Sorry. I
mean, that’s just the reality of the situation. I’m the finder of fact.
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[Respondent’s Attorney]: You, Your Honor, you also—
The Court: I found that her testimony that day was more credible than hers
(sic), as it related to the harassment issue. Furthermore, I also made comments
about whether or not I felt it was appropriate that he’s using Find My Phone and
tracking that phone while in the company of the mother, that also didn’t feel
appropriate or necessary to me. That was another reason that I continued that PPO.
Another reason that I continued the PPO is because in the Petition, it indicated that
she found bullets in her bedroom and that there were several fake phone calls . . . .
Further, the trial court applied the correct burden after respondent’s second motion to
terminate stating:
I find that [petitioner has] met her burden based on the fact that there were
repeated phone calls that day, based on the fact that there was tracking going on
with the phone[;] I’m not changing it. If [respondent] can convince me after a
period of time that this all will calm down, I’m happy to revisit the issue.
On this record, the trial court correctly placed the burden of persuasion on petitioner for the
issuance and continuation of the PPO. Indeed, the trial court reached its decision on respondent’s
second motion to terminate after hearing respondent’s arguments and viewing respondent’s
evidence purporting to support the motion for termination.1
Finally, we note that respondent appears to make a constitutional argument, asserting that
“utilizing an app for locating his son pursuant to MCL 750.411h(1)(c) is [sic] constitutionally
protected activity (raising his son), and serves a legitimate purpose (realizing that his son is located
at a hospital).” “It is not enough for an appellant in his brief simply to . . . assert an error and then
leave it up to this Court to . . . unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position.” Mettler Walloon, LLC v Melrose Twp, 281 Mich
App 184, 220; 761 NW2d 293 (2008). Because respondent failed to provide any legal authority
or present an argument explaining the alleged constitutional violation, respondent has abandoned
this argument on appeal.
V. JUDICIAL BIAS
Respondent argues he is entitled to appellate relief because the trial court’s conduct during
the hearing on his second motion to terminate demonstrated bias and judicial partiality in favor of
petitioner. We disagree.
1
Respondent also alleges that the trial court improperly allocated the burden of persuasion on him
with regard to MCL 600.2950a. As already discussed, the PPO was not issued under that statute,
and is therefore inapplicable to this case.
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A. PRESERVATION AND STANDARD OF REVIEW
To preserve the issue of judicial bias, a party should raise the issue to the trial court. MCR
2.003(D); In re Contempt of Henry, 282 Mich App 656, 679; 765 NW2d 44 (2009) (“Because
appellant moved to disqualify the judge in the trial court, the issue is preserved for appellate
review.”). Respondent claims that his rights to due process were violated because of judicial bias.
However, respondent never raised the issue of judicial bias to the trial court, therefore this issue is
unpreserved. MCR 2.003(D); In re Contempt of Henry, 282 Mich App at 679.2
Generally, “[t]he question whether judicial misconduct denied [a] defendant a fair trial is
a question of constitutional law that this Court reviews de novo.” People v Stevens, 498 Mich 162,
168; 869 NW2d 233 (2015). However, “[o]ur review of . . . unpreserved issues is limited to plain
error.” Hogg v Four Lakes Ass’n, Inc, 307 Mich App 402, 406; 861 NW2d 341 (2014). “To avoid
forfeiture under the plain error rule, three requirements must be met: 1) the error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” Bennett v Russell, 322 Mich App 638, 643; 913 NW2d 364 (2018) (quotation marks and
citation omitted). As to the third requirement, “an error affects substantial rights if it caused
prejudice, i.e., it affected the outcome of the proceedings.” In re Utrera, 281 Mich App 1, 9; 761
NW2d 253 (2008).
B. LAW AND ANALYSIS
Respondent’s arguments are premised on our Supreme Court’s analysis in Stevens, 498
Mich at 168. The Stevens Court considered “the appropriate standard for determining when a trial
judge’s conduct in front of a jury has deprived a party of a fair and impartial trial.” Id. at 164.
Under Stevens, “[a] judge’s conduct pierces [the veil of impartiality] and violates the constitutional
guarantee of a fair trial when, considering the totality of the circumstances, it is reasonably likely
that the judge’s conduct improperly influenced the jury by creating the appearance of advocacy or
partiality against a party.” Id. at 171. Respondent’s reliance on Stevens, however, is misplaced.
The issue presented to the Court in Stevens was whether the trial court violated the criminal
defendant’s right to a fair and impartial jury trial. Id. at 170-171. Stevens considered whether the
trial court’s conduct was sufficiently partial so as to bias the jury in favor of one party and create
a structural error. Id. at 178. This case is different from Stevens in two important ways: it is not a
criminal case and the trial court was the fact-finder. In direct contrast to Stevens, there is no
concern that the trial court’s conduct created bias in the jurors’ minds.
Regardless, “[d]ue process requires that an unbiased and impartial decision-maker hear and
decide a case.” Mitchell v Mitchell, 296 Mich App 513, 523; 823 NW2d 153 (2012). “A trial
judge is presumed unbiased, and the party asserting otherwise has the heavy burden of overcoming
the presumption.” Id. But the presumption is overcome where “ ‘the trial court display[ed] a deep-
seated favoritism or antagonism that would make fair judgment impossible.’ ” Eldred v Ziny, 246
Mich App 142, 152; 631 NW2d 748 (2001) (alteration in original), quoting Cain v Dep’t of
2
We note that while respondent’s counsel appeared to argue against the trial court’s statements
that he committed “grievable” offenses, neither counsel nor respondent explicitly objected to or
made a motion regarding potential judicial bias.
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Corrections, 451 Mich 470, 496; 548 NW2d 210 (1996). A trial court’s “rulings against a litigant,
even if erroneous, do not themselves constitute bias or prejudice sufficient to establish a denial of
due process[.]” In re Susser Estate, 254 Mich App 232, 237; 657 NW2d 147 (2002). “In fact, a
trial judge’s remarks made during trial, which are critical of or hostile to counsel, the parties, or
their cases, ordinarily do not establish disqualifying bias.” Kern v Kern-Koskela, 320 Mich App
212, 232; 905 NW2d 453 (2017) (quotation marks and citation omitted). “Under MCR
2.003(C)(1)(b), the test for determining whether there is an appearance of impropriety is whether
the conduct would create in reasonable minds a perception that the judge’s ability to carry out
judicial responsibilities with integrity, impartiality and competence is impaired.” Id. (quotation
marks and citation omitted).
As an initial matter, we note that respondent has waived some of his allegations of judicial
bias. Although respondent makes several assertions about the trial court’s questioning, respondent
fails to point to any specific statements by the trial court supporting his assertions.3 As already
mentioned, “[i]t is not enough for an appellant in his brief simply to . . . assert an error and then
leave it up to this Court to . . . unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position.” Mettler Walloon, LLC, 281 Mich App at 220.
Thus, some of respondent’s arguments on this point are abandoned.
Respondent did, however, present specific examples of what he alleges was judicial bias—
each of which are addressed in turn. First, respondent argues the trial court was “inflammatory
and inappropriate” when it “accus[ed] counsel for [respondent] of scaring [petitioner] by serving
her personally.” In context, petitioner’s counsel was informing the trial court about respondent
allegedly calling TM and having TM place the call on speakerphone so that respondent could talk
to petitioner. Counsel then pivoted to the issue of respondent’s counsel personally serving
petitioner at her house, while she was in the driveway.4 Respondent’s counsel then launched into
a discussion about his photographing and filming of petitioner:
[Respondent’s Counsel]: I’ll respond to a couple of things. What I wrote
in that Brief has nothing to do what [sic] happened, that was at the District Court
in, in Romeo, when [petitioner] came out and asked for an escort to her car because
3
For example, respondent asserts that the trial court’s “intimidating questions and severe attitude
toward [respondent] was [sic] patently inappropriate.” Specifically, respondent avers that the trial
court questioned him in a manner consistent with “prosecutorial cross-examination, rather than a
mere attempt at clarification.” He believes that the trial court “took an impermissible swipe at
[his] credibility [and] also mischaracterized his testimony.” Respondent also takes issue with the
trial court’s “rapid-fire questioning, and interruptions about a subject that did not require
clarification, [and] served [sic] only to discredit” him. He states that the trial court “believed [it]
could permissibly make substantive points or arguments in the place of counsel for [petitioner]
during [its] questioning . . . .” Finally, he argues against the “imbalance” of the trial court’s
questioning toward respondent and the trial court’s apparent failure to utilize the “standards to be
met for stalking” in its analysis.
4
It is not entirely clear from the record whether the response that respondent’s counsel served on
petitioner was related to this case or the domestic violence case.
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we were standing by our vehicles. I just happened to take a picture of what she did.
But, even that, the Court Officer just looked at me and said—
[Petitioner’s Counsel]: Why do you need to be taking pictures of her?
The Court: You took a picture of her?
[Petitioner]: And a video?
[Petitioner’s Counsel]: And a video being esc—
[Respondent’s Counsel]: I took a picture of her to show what she was doing
with the Court Officer.
The Court: So, are you a witness or an attorney?
[Respondent’s Counsel]: I took it for purposes of my argument with—when
I make an allegation or put something in my [b]rief, I have the picture to show it.
It was at the Courthouse, I showed what was going on.
Trial Court: So, she’s the, she’s the complaining witness in a domestic
violence case and the attorney of record of the Defendant is taking video and
pictures of her as she walks to her car with a Deputy escort?
[Respondent’s Counsel]: No, to show with her, her conduct with regard to
that. She’s afraid of me? No.
The trial court later noted that “[f]or the [respondent’s] attorney to take picture [sic] and recordings
of [petitioner] that, to me, might even be grievable.”5
We disagree with respondent’s assertion that the trial court’s remarks here satisfy the
standard of “deep-seated favoritism or antagonism.” Instead, the trial court’s statements were in
regard to petitioner’s reasonable fear of respondent’s counsel. The trial court even asked petitioner
whether she was afraid of respondent’s counsel, and petitioner said that she was. Instead of
displaying any sympathy or acknowledging that his actions were inappropriate, counsel doubled
down and said that he acted appropriately by photographing and videoing petitioner, who
requested that a court deputy escort her to her vehicle because of respondent’s counsel. Although
respondent asserts that the trial court was unduly biased against him, this exchange shows that the
trial court’s statements were justified and appropriate.
Second, respondent takes issue with the trial court’s reference to the size of the court file
as an example of judicial bias. Specifically, respondent states “[t]he [j]udge, however, encourages
that [petitioner] should be more adversarial and file more motions and complaints with the Friend
5
We note that while respondent’s counsel expresses umbrage at the trial court’s statement that his
actions might have been grievable, counsel freely acknowledged: “I have been grieved many times.
And, I have . . . people wanting to file grievances.”
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of the Court.” Respondent’s argument is misplaced—the trial court’s statement on this point
encouraged respondent to file a grievance with the Friend of the Court when the parties have
parenting time disputes. On this record, respondent does not overcome the presumption that the
trial court acted as fair, impartial decisionmaker when the trial court advised respondent about the
correct process for resolving parenting-time disputes.
Respondent also believes the trial court was biased because it did “not us[e] the standard
for finding anti-assaultive or anti-stalking, the [j]udge made quantum leaps of logic at the request
of [petitioner] that contacting [respondent’s] son constituted stalking!” Again, this does not show
judicial bias. As discussed, a domestic relations PPO may be issued where “there is reasonable
cause to believe that the individual to be restrained or enjoined may commit 1 or more of the acts
listed in subsection (1).” MCL 600.2950(4). Thus, under MCL 600.2950, there is no requirement
that a judge “find” that a respondent stalked or assaulted the protected party—only that there is
“reasonable cause” to believe one of the listed actions may occur. Because respondent’s argument
does not align with the plain language of the statute and because an unfavorable ruling is not
indicative of favoritism or bias, respondent again fails to establish a deep-seated favoritism toward
petitioner so as to overcome the presumption that the trial court acted with impartiality. Eldred,
246 Mich App at 152; In re Susser Estate, 254 Mich App at 237.
Respondent next asserts that judicial bias was shown where the trial court called the
tracking application on TM’s phone “creepy.” The trial court stated, “[i]f I found out that my ex-
husband put trackers on my kids’ phones, I’d be creeped out by that, it’s creepy. And, I, honestly,
if she did that to you, I would say the same thing to her, I don’t like it, it’s invasive.” Again, “a
trial judge’s remarks made during trial, which are critical of or hostile to counsel, the parties, or
their cases, ordinarily do not establish disqualifying bias.” Kern, 320 Mich App at 232 (quotation
marks and citation omitted). Though the trial court’s remarks on this point are “critical” of
respondent’s actions, the trial court’s statement that it “would say the same thing to her,” suggests
that the trial was unbiased in its thinking. And respondent again fails to overcome the presumption
of judicial impartiality.
Finally, respondent appears to present an argument of judicial bias when “the [j]udge took
no action against [petitioner] for taking a loan against a retirement account that was waiting to be
divided in conformity with the Judgment of Divorce.” In making this argument, respondent
essentially asks this Court to consider issues presented in the parties’ tangential divorce case. See
MCR 7.203 (listing the bases for this Court’s jurisdiction). It is inappropriate for this Court to
consider this issue on appeal because only the case involving the PPO, not the divorce case, is
properly before us. In sum, respondent has not established that the trial court displayed “a deep-
seated favoritism or antagonism that would make fair judgment impossible.’ ” Eldred, 246 Mich
App at 152. Consequently, respondent has failed to overcome the presumption that the trial court
acted as a “unbiased and impartial decision-maker.” Mitchell, 296 Mich App at 523.
VI. SANCTIONS
Respondent argues that the trial court abused its discretion when it declined to impose
sanctions against petitioner under MCR 1.109, after he presented what he purports was
contradictory evidence of petitioner’s assertions. We disagree.
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A. PRESERVATION AND STANDARD OF REVIEW
Even though the trial court did not address the issue of sanctions, respondent’s second
motion to terminate the PPO requested that the trial court sanction petitioner because of her alleged
distortion of the facts. Because respondent raised the issue in the trial court, this issue is preserved.
Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010); Hines v
Volkswagen of America, Inc, 265 Mich App 432, 443-444; 695 NW2d 84 (2005).
A trial court’s decision regarding sanctions is reviewed for an abuse of discretion. Kaftan
v Kaftan, 300 Mich App 661, 668; 834 NW2d 657 (2013). “An abuse of discretion occurs when
the trial court’s decision is outside the range of reasonable and principled outcomes.” Souden v
Souden, 303 Mich App 406, 414; 844 NW2d 151 (2013) (quotation marks and citation omitted).
A trial court’s factual findings are reviewed for clear error, and questions of law are reviewed de
novo. Davis v City of Detroit Fin Review Team, 296 Mich App 568, 623; 821 NW2d 896 (2012).
“A decision is clearly erroneous where, although there is evidence to support it, the reviewing
court is left with a definite and firm conviction that a mistake has been made.” 1300 LaFayette
East Coop, Inc v Savoy, 284 Mich App 522, 534; 773 NW2d 57 (2009) (quotation marks and
citation omitted).
B. LAW AND ANALYSIS
In pertinent part, MCR 1.109(E) states:
(5) Effect of Signature. The signature of a person filing a document,
whether or not represented by an attorney, constitutes a certification by the signer
that:
(a) he or she has read the document;
(b) to the best of his or her knowledge, information, and belief formed after
reasonable inquiry, the document is well grounded in fact and is warranted by
existing law or a good-faith argument for the extension, modification, or reversal
of existing law; and
(c) the document is not interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation.
(6) Sanctions for Violation. If a document is signed in violation of this rule,
the court, on the motion of a party or on its own initiative, shall impose upon the
person who signed it, a represented party, or both, an appropriate sanction, which
may include an order to pay to the other party or parties the amount of the
reasonable expenses incurred because of the filing of the document, including
reasonable attorney fees. The court may not assess punitive damages.
(7) Sanctions for Frivolous Claims and Defenses. In addition to sanctions
under this rule, a party pleading a frivolous claim or defense is subject to costs as
provided in MCR 2.625(A)(2). The court may not assess punitive damages.
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Under MCR 2.625(A)(2), “if the court finds on motion of a party that an action or defense was
frivolous, costs shall be awarded as provided by MCL 600.2591.” In turn, MCL 600.2591(3)
states:
(a) “Frivolous” means that at least 1 of the following conditions is met:
(i) The party’s primary purpose in initiating the action or asserting the
defense was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying
that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
Respondent argued in the trial court that sanctions were warranted because petitioner made
a number of unsubstantiated allegations and “[t]he real events of October 3, 2019, have nothing to
do with what was written by the Petitioner in the Sworn Statement.” While the trial court never
made a specific finding regarding respondent’s allegations of frivolity, it did not award respondent
sanctions. On appeal, respondent essentially asks this Court to make a factual finding that the
allegations contained in the petition were frivolous. If we concluded that the record was
insufficient to decide on this basis, this Court would have to remand the case to the trial court for
further factual development. See Loutts v Loutts, 298 Mich App 21, 31; 826 NW2d 152 (2012).
However, we find the factual record is sufficient to show that petitioner’s allegations were not
frivolous, and therefore, it was not an abuse of discretion for the trial court to decline to sanction
petitioner.
As noted, a claim is frivolous if at least one of three conditions is met: (1) where the
petitioner’s purpose is to “harass, embarrass, or injure the prevailing party,” (2) where there is “no
reasonable basis” to believe the alleged facts are true, or (3) where the petitioner’s “legal position
was devoid of arguable legal merit.” MCL 600.2591(3)(a). Respondent’s arguments on this point
are unclear, although it appears his argument involves the first two conditions.
Looking to the first condition, respondent argues that petitioner filed for the PPO because
she “wanted to get [respondent’s] CPL suspended.” Although respondent cites to the timing of
the petition for the PPO in relation to another motion in respondent’s criminal case, respondent
provides no evidentiary support, outside his own conjecture about timing, showing that petitioner’s
purpose in seeking the PPO was simply to suspend respondent’s CPL. By failing to present
evidence showing petitioner “wanted to get [respondent’s] CPL suspended,” respondent fails to
establish the factual predicate necessary to support this argument. Great Lakes Div of Nat’l Steel
Corp v City of Ecorse, 227 Mich App 379, 424; 576 NW2d 667 (1998) (“A party may not leave it
to this Court to search for a factual basis to sustain or reject its position.”). In addition,
respondent’s argument also appears to be premised on the assertion that petitioner made inaccurate
statements about when the pertinent events occurred. But, even if petitioner inaccurately stated
the dates of the events, there were sufficient facts presented, and verified, about what occurred so
as to preclude a finding of frivolousness warranting sanctions.
As to the second condition, respondent appears to take issue with petitioner’s assertion that
he “was calling and txting [sic] my children last night till 12am [sic] this morning.” According to
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respondent, his actions in this regard were that of a “concerned parent.” While we take no position
on whether respondent’s repeated phone calls to TM were out of “concern” for TM’s welfare, we
note that the question before this Court is whether there is a “reasonable basis to believe that the
facts underlying that party’s legal position were in fact true.” MCL 600.2591(3)(a)(ii). Here,
neither petitioner nor respondent dispute the repeated phone calls—what they dispute is the reason
for these phone calls. On this point, the trial court found that petitioner’s testimony “was more
credible” than respondent’s testimony. Again, this Court defers to the trial court on issues of
witness credibility. See Pickering, 253 Mich App at 702.
Petitioner’s allegations were supported by undisputed evidence that respondent placed the
tracking application on TM’s phone, that respondent’s counsel and respondent’s father were taking
photographs and video of petitioner, and that there was a previous domestic violence charge
against respondent. Although respondent asserts that these allegations did not give rise to the level
necessary for charges of stalking or assault, respondent misreads the standard. Again, a petitioner
may obtain a PPO against a domestic partner where “there is reasonable cause to believe that the
individual to be restrained or enjoined may commit 1 or more of the acts listed . . . .” MCL
600.2950(4). Though the evidence may not have shown that respondent’s actions rose to the level
of assault or stalking, the trial court could conclude that it showed petitioner had reasonable cause
to believe respondent would commit one of the listed acts under MCL 600.2950(1). Having
determined that petitioner established reasonable cause for the trial court to issue the PPO,
respondent’s factual allegations in the petition were not frivolous. Accordingly, the trial court did
not abuse its discretion in failing to sanction petitioner.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Mark J. Cavanagh
/s/ Anica Letica
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