CJB v. JCB (In re JCB)

336 Mich.App. 736

971 N.W.2d 705

IN RE JCB.

CJB, Petitioner-Appellee,

v.JCB, Respondent-Appellant.

No. 349975

Court of Appeals of Michigan.

Submitted October 8, 2020, at Grand Rapids.

Decided April 15, 2021, 9:05 a.m.

The Law Office of Ashley Siegel, PLLC (by Ashley Siegel) for respondent.

Before: Letica, P.J., and K. F. Kelly and Redford, JJ.

K. F. Kelly, J. Respondent appeals as of right the order finding him in criminal contempt for violating a personal protection order (PPO). Respondent was sentenced to serve three days in jail and to pay $200 in fines and $600 for court costs and attorney fees. We hold a party must timely challenge a trial court's order denying the motion to terminate a PPO; when a party fails to comply, a review of the validity of the PPO is foreclosed. Additionally, a party may be held in criminal contempt for violating the plain, written conditions delineated in the PPO. Because respondent failed to timely appeal the denial of the motion to terminate the PPO and the trial court found that criminal contempt was proven beyond a reasonable doubt with credible evidence of an assault by respondent upon petitioner, respondent is not entitled to appellate relief. Therefore, finding no errors warranting reversal, we affirm.

I. BASIC FACTS

On July 11, 2017, petitioner filed a request for an ex parte nondomestic PPO against respondent, his neighbor. To obtain the PPO, petitioner filled out a questionnaire that requested information regarding the name of the respondent, the length of the relationship with that person, any threats by the respondent, any verbal statements and physical actions by the respondent, the frequency of the contacts, the dates of the contacts, and if threatened, the impact of those threats on the petitioner. Petitioner wrote that he had been neighbors with the respondent for nearly 15 years. On June 29-30, 2017, petitioner was working in his yard when respondent verbally harassed him. Specifically, respondent yelled out that petitioner was "worthless" and "couldn't get a job." The verbal harassment occurred three to four times a month for the last five to six years. Respondent also engaged in name calling; he referred to petitioner as "stupid" and "uneducated." More troubling, respondent threatened to harm petitioner by coming over to petitioner's property to "kick [his] ass." If petitioner ignored respondent, the physical threats became more pervasive until petitioner went inside his home. Petitioner asserted that he had called 911 on at least 10 occasions, and law enforcement spoke to respondent. However, any change in respondent's behavior only lasted for several days after the police contact. Petitioner repeatedly asked respondent to leave him alone and stop yelling. With regard to the impact of respondent's conduct, petitioner wrote:

I feel afraid to go outside of my house. I am afraid of seeing him, or him seeing me; I never know if he will try to beat me up. I am always nervous to be in my own yard. I feel very frustrated that he continues to bully me.

On July 11, 2017, the trial court signed the ex parte PPO, citing the repeated patterns of threats, and provided that it was immediately enforceable and in effect until July 17, 2019. A deputy served respondent with the PPO on July 18, 2017.

On August 14, 2017, respondent filed a motion to terminate the PPO, asserting that it was "full of untruths." He claimed that petitioner had been arrested and fined for petitioner's assault upon respondent. It was alleged that petitioner blamed respondent for having to pay the fines related to the assault and initiated the PPO as a form of revenge.

On September 6, 2017, the parties appeared at a hearing on respondent's request to terminate the PPO. The trial court questioned petitioner regarding his contacts with respondent. Petitioner reiterated in his testimony that respondent engaged in repeated name calling and threats and that the contacts had been occurring for years. Petitioner admitted that, on one occasion, he was arrested by the police for his interaction with respondent. However, petitioner took measures to avoid respondent. He recently purchased noise-cancelling headphones with a radio feature to prevent him from hearing respondent. Yet in July 2017, respondent threw eggs at petitioner's lawn mower while petitioner was using his trimmer, and he submitted a picture of his lawn mower to support his testimony.

On the contrary, respondent testified that petitioner was not truthful. He denied that the police had been repeatedly called to address neighborly disputes but, rather, only came to respondent's home to serve the PPO. Respondent claimed that petitioner was a "pervert" who came onto his property and peeked into his windows. He acknowledged that the police were called because of petitioner's assault on respondent, but he could not recall the date of the assault because of back pain and a closed head injury. The assault occurred because respondent tried to collect money that he had lent to petitioner. When petitioner did not pay the debt, respondent said he should have known not to "hand it out to a dork that [he would not] get it back from." This caused petitioner to charge at respondent with a pipe. Respondent testified that petitioner was jealous of what respondent had and raised the false allegations against respondent as evidenced by the groundless PPO. Despite referring to petitioner as a "pervert" and "dork" earlier in the hearing, respondent testified that he was college educated and would not engage in name calling. Respondent also claimed that he was poor and would not waste eggs by throwing them at petitioner. In fact, he invited the deputy to come to his home and see that all his eggs were "accounted for."

When asked if he had anything to add, petitioner stated, "Please keep the PPO intact so I can feel a little safer in my yard." The trial court found that it was evident petitioner was afraid of respondent, the court found that respondent was "pretty egregious," and it did not find respondent to be credible. The trial court denied the request to terminate the PPO.

On September 28, 2018, petitioner filed a motion to show cause for respondent's violation of the PPO. Petitioner submitted a written statement, alleging:

On Sunday, Sept. 23, 2018, I was mowing a neighbor's yard. I had just met this neighbor & offered to mow his lawn. I was on a riding lawn mower with noise-cancelling head phones on. Out of the corner of my eye I saw a truck pull in & a man get out.

All of a sudden he walked up to me & punched me on the right cheek, ripped my shirt & scratched me. It was [respondent]—who I have a PPO ... out against.

After violating the PPO by punching me, he drove off. I called 911 & reported the violence. They sent an officer out and he took a report, I have enclosed a copy.

I need to live beside this person & I am so frustrated with his bullying me for years. Things were better after I got the PPO—but now he seems to not respect that order any more[.] Please help me with this situation.

[Respondent] has called 5 various agencies trying to get me in trouble: Township, DEQ, Health Dept., lawyers. Not one of these agencies filed any citations. I would like for him to stop trying to get me in trouble.

After the assault occurred, the police responded to the incident and did record that the sleeve of petitioner's t-shirt was ripped and that he had a scratch under his sleeve. An injury to his face was not recorded as visible. At the time of the assault upon petitioner, he was cutting the grass of David Pillard. Pillard gave a statement to the police that petitioner was cutting his grass when the mower stopped for about 10 minutes. He then heard a knock at the door, and respondent arrived at his home to return DVDs. Pillard advised respondent that petitioner was present and that he should leave. Pillard looked over at petitioner, and he was on the phone. Thus, Pillard's statement did not indicate that he saw a confrontation or assault between the parties. However, Pillard did report that respondent questioned why petitioner was cutting the lawn instead of respondent. When the police contacted respondent, he denied seeing petitioner at the Pillard home that day and denied any assault.

On October 10, 2018, the hearing on the order to show cause for the PPO violation and to find respondent in criminal contempt was adjourned to appoint counsel to represent respondent in light of the fact that respondent was subject to criminal penalties if found in contempt. On November 6, 2018, a hearing was held on the PPO show-cause violation and criminal contempt. Petitioner testified that he was mowing a neighbor's lawn in Gladwin, Michigan, on September 23, 2018, when respondent approached him and grabbed his arm. He testified that respondent then ripped his shirt, scratched his arm, and punched him in the face before walking away to his vehicle, a red Ford Explorer. He acknowledged that he only saw his assailant for a split second and watched the perpetrator walk away. However, petitioner recognized respondent and his vehicle. No one else was outside when these events occurred. Petitioner called the police, and they investigated by conducting interviews, photographing petitioner's ripped shirt and arm scratch, and preparing a report. Petitioner also claimed that respondent called various agencies in an attempt to cause trouble for petitioner, but the agencies did not find any violations or name the complainant. Petitioner added that respondent violated the PPO by yelling at him, and he wanted to feel safe in his yard.

Respondent confirmed that he had gone to Pillard's house that day, but he testified that it was only to return items to Pillard.

Respondent testified that Pillard told him to wait in the car because, unbeknownst to respondent, petitioner was on the property mowing the lawn. Upon learning that petitioner was present, respondent told Pillard that he had to leave before he ever saw p...