PF v. JF

336 Mich.App. 118

969 N.W.2d 805

PF, Petitioner-Appellant,

v.JF, Respondent-Appellee.

No. 351461

Court of Appeals of Michigan.

Submitted February 9, 2021, at Detroit.

Decided February 25, 2021, 9:00 a.m.

Lakeshore Legal Aid (by Mireille Phillips and Kathleen Halloran ) and Michigan Advocacy Program (by Emily Jackson Miller ) for petitioner.

Lucido & Manzella, PC, Clinton Township (by Vincenzo Manzella and Angelo Donofrio ) for respondent.

Before: Swartzle, P.J., and Markey and Tukel, JJ.

Markey, J. Petitioner appeals by right the circuit court's order denying her petition for a personal protection order (PPO) that she sought against respondent. The petition cited and relied on six incidents that allegedly justified the issuance of a PPO. The circuit court granted summary disposition in favor of respondent with respect to the initial five incidents, concluding that they could not be the basis for a PPO under the doctrine of res judicata because a circuit court in a neighboring county had already denied petitioner's request for a PPO that was based on those incidents. Petitioner argues that the court erred by applying res judicata. As to the sixth incident, which occurred after the earlier PPO request had been rejected, the circuit court concluded that it did not warrant a PPO under MCL 600.2950. Petitioner contends that the circuit court erred in reaching that conclusion. We reverse and remand for further proceedings.

The parties were married in 1988 and divorced in 2012. Petitioner and respondent have eight children together, only one of whom, a teenage son, remained a minor during the proceedings. Petitioner had physical custody of their son, and the parties shared legal custody. Respondent had not been in contact with the minor child since 2014. In 2017, respondent was convicted of attempted eavesdropping on petitioner, and he was sentenced to two years’ probation that prohibited contact with petitioner. But respondent was released from probation and the no-contact order in 2018.

In September 2019, petitioner filed a PPO petition against respondent in the neighboring St. Clair Circuit Court. Petitioner asserted that there were five incidents involving respondent that occurred in September 2019 and warranted the issuance of a PPO against respondent. Two of the incidents concerned respondent's attendance at the minor child's soccer games, even though respondent did not have direct contact with petitioner or the parties’ son. Additionally, there were two incidents in which respondent drove by petitioner's house after attending the child's soccer games. Respondent alleged that he merely drove by the house to reminisce and did not know whether petitioner even still lived there. The fifth incident regarded a situation in which respondent contacted one of the adult children and asked her to meet with him. The parties’ daughter declined the invitation and asked not to be contacted again, yet respondent subsequently sent her an e-mail. The St. Clair court did not hold a hearing and denied the PPO petition. The court stated that "petitioner has been interviewed, the petitioner's claims are sufficiently without merit, and the action should be dismissed without a hearing." The St. Clair court also reasoned that there was "no contact between the parties" and "no ... evidence of [respondent] being a credible threat[.]"

Three days later, petitioner filed the instant PPO petition against respondent in the Macomb Circuit Court. Petitioner again set forth the five incidents that had been presented to the St. Clair court, along with an additional incident, all of which allegedly warranted a PPO. The additional or sixth incident took place the day after petitioner's first PPO request had been denied and involved respondent's attendance at another soccer game in which the minor child was participating. Respondent took a photograph or video with his cellphone during the sporting event. Petitioner alleged that respondent sat in front of her on the bleachers and snapped a picture of her, flipped her off, and called her a "bitch" in the parking lot. Respondent claimed that he simply took a video of the minor child playing soccer and denied taking or directing any action toward petitioner.

The circuit court denied petitioner's request for an ex parte order. At an evidentiary hearing on the PPO, petitioner argued that respondent's recent stalking conduct and his history of abusive behavior caused petitioner to suffer reasonable apprehension of violence, warranting a PPO under MCL 600.2950. Petitioner testified with respect to the six incidents and a history of physical, verbal, and sexual abuse by respondent throughout their relationship. Additionally, petitioner testified in depth regarding an incident in 2011. According to petitioner, respondent became angry with one of their children and attempted to push the child's head under water in the kitchen sink and sprayed her with the sink's hose as petitioner and another child tried to pull respondent away. When respondent let the child go, respondent started shoving petitioner and both children into kitchen cupboards. Petitioner testified that as respondent was leaving, he picked up a bag of glass bottles and threw them at petitioner, causing them to shatter as they struck her in the head. Respondent also chased one of the children across the yard while shouting expletives. After respondent entered his vehicle, petitioner and her children went into the home and locked the doors. Respondent forgot his glasses and attempted to retrieve them from the house. But no one would unlock a door, so he proceeded to kick in a back door.

At the conclusion of petitioner's testimony, respondent moved to dismiss the case, arguing that petitioner was relying on facts asserted in her first PPO petition that had been rejected, that she was engaging in forum-shopping for a PPO, and that petitioner had not established a reasonable apprehension of violence. Respondent contended that res judicata barred the PPO action. In response, petitioner maintained that the filing of the first PPO petition did not preclude her from filing the second petition in an effort to stay safe. The circuit court denied respondent's motion. The court stated, "I feel like you're making a motion for summary disposition and I'm going to deny it at this point because it's an issue of fact and credibility as to whether or not she felt threatened reasonably or not."

Respondent then took the stand to testify. He denied taking a picture of petitioner, flipping her off, calling her names, or abusing her during their marriage. With regard to the 2011 incident, respondent admitted that "things were getting heated," so he attempted to leave the house. He denied both holding his child's head under water in the kitchen sink and throwing glass bottles at petitioner. Respondent admitted that he sprayed the one child with the kitchen sink hose, but this was only after the children had spit in his face and were disrespectful. Respondent also claimed that the bag of returnable bottles ripped and were thrown when petitioner attempted to grab them away from respondent. Respondent argued that a PPO was not warranted because petitioner's case was barred by res judicata, and that even to the extent that it was not barred, respondent's actions would not have caused a reasonable person to be fearful. At the end of the hearing, the circuit court took the matter under advisement.

The circuit court subsequently issued a written opinion and order denying petitioner's request for a PPO. The court, referring back to respondent's motion to dismiss that was made during the evidentiary hearing, decided it anew, treating it as a motion for summary disposition under MCR 2.116(C)(7) based on res judicata. The circuit court granted the "motion for summary disposition pursuant to MCR 2.116(C)(7) under the theory of res judicata as [to] the initial five incidents contained in the [p]etition."¹ The circuit court then moved on to substantively assess whether the sixth incident, which was not barred by res judicata, supported the issuance of a PPO. The court denied the request for a PPO based solely on the sixth incident, reasoning as follows:

[Respondent's] presence in a public place, where he did not attempt to interact with either Petitioner or the minor child, shows no indication of future harm to Petitioner. Further, although Respondent appeared within Petitioner's sight at the minor child's game on September 18, 2019 [sixth incident], both parties were in a public place from which Respondent has not been banned and he did not take any other prohibited action pursuant to MCL 750.411h which might be considered a course of conduct to satisfy the statutory standard for stalking.

This Court is required to issue a personal protection order only if it determines that there is reasonable cause to believe that the Respondent may commit one or more of the acts listed in MCL 600.2950(1). Petitioner presented no evidence that Respondent has shown any sign of an intent to: ... engag[e] in conduct that is prohibited under MCL 750.411h [ ] or any other ... conduct that imposes upon or interferes with Petitioner's personal liberty or that causes a reasonable apprehension of violence. The Petition's allegations and the testimony offered at the hearing would not cause a fair-minded person of average intelligence to believe that Respondent could commit one of the acts prohibited by MCL 600.2950.

Petitioner now appeals by right.²

On appeal, petitioner first argues that the circuit court erred by granting summary disposition or involuntary dismissal on the basis of res judicata with respect to the initial five incidents described in the PPO petition. Petitioner additionally contends that the circuit court abused its discretion by denying her petition for a PPO in light of the compelling evidence that she presented. "An appellate court reviews de novo a trial court's ruling on a motion for an...