LOU v. KRAMER

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

NORMA LOU,

Petitioner-Appellee,

UNPUBLISHED

January 19, 2006

v No. 257808

Berrien Circuit Court

ARTHUR WILLIAM KRAMER,

LC No. 04-001317-PH

Respondent-Appellant.

Before: Zahra, P.J., and Murphy and Neff, JJ.

MEMORANDUM.

Pursuant to MCR 3.709(B)(1), respondent appeals as of right a circuit court order

denying his motion to rescind a personal protection order (PPO), which was obtained by

petitioner, and which prohibited respondent from approaching, following, contacting,

confronting, and threatening petitioner, along with precluding respondent from engaging in

various other “stalking” behaviors. The trial court conducted an evidentiary hearing on

respondent’s motion to rescind the PPO, and the motion was denied, although the PPO was

amended to the extent that respondent was no longer prohibited from “appearing” within

petitioner’s sight; the parties are next door neighbors. The PPO expired under its own terms on

June 29, 2005, and has not been extended. We dismiss the appeal as moot.

“‘An issue is moot if an event has occurred that renders it impossible for the court, if it

should decide in favor of the party, to grant relief.’” City of Warren v Detroit, 261 Mich App

165, 166 n 1; 680 NW2d 57 (2004), quoting Michigan Nat’l Bank v St Paul Fire & Marine InsCo

, 223 Mich App 19, 21; 566 NW2d 7 (1997). A moot issue may be reviewed if the issue is

publicly significant and is likely to recur, yet also is likely to evade judicial review. City ofWarren, supra

at 166 n 1. Because the PPO at issue expired on June 29, 2005, it is impossible

for this Court to rectify the alleged undue restraint on respondent’s actions as a result of the PPO

during the time it was in force. Furthermore, we decline respondent’s invitation to find that the

issues raised are of public significance.1 Moreover, even though petitioner may attempt to

1 We note that nothing in the language of MCL 600.2950a prevents a person from obtaining a

PPO against a neighbor if the neighbor engages in stalking as defined in and prohibited by the

Michigan Penal Code.

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obtain another PPO, new factual circumstances and allegations of harassment, of which we are

not privy, will play a role in that request. Accordingly, this appeal is dismissed as moot.

Appeal dismissed.

/s/ Brian K. Zahra

/s/ William B. Murphy

/s/ Janet T. Neff

RECENT DECISIONS OF THE AUSTRALIAN FAMILY COURT

Frank Bates1

(1) School of Law, University of Newcastle, New south Wales, 2308, Australia

Published online: 27 July 2006

ABSTRACT This article examines some recent decisions of the Family Court of Australia as they relate to matters of private international law in family law matters. Although the notion of forum non conveniens is considered, a major focus remains on the approach of the jurisdiction to the Hague Convention on Civil Aspects of International Child Abduction. In the various issues which have appeared before it, the Family Court of Australia has demonstrated a degree of confusion which suggests that other jurisdictions should be cautious in their dealings with Australia in the areas which the article discusses.
Keywords Australia – conflict of laws – family law

Professor of Law, University of Newcastle (NSW).

OTTEVAERE V. TWEEDLE

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DAWN OTTEVAERE,

Petitioner-Appellee,

UNPUBLISHED

December 20, 2005

v No. 259078

Ingham Circuit Court

ANDREW MICHAEL TWEDDLE,

LC No. 04-001101-PP

Respondent-Appellant.

Before: Fitzgerald, P.J., and O’Connell and Kelly, JJ.

PER CURIAM.

Respondent appeals as of right from the November 12, 2004, criminal contempt order

committing him to thirty days in jail and ordering him to pay $500 for violation of a personal

protection order (PPO). This is one of two cases being heard by this Court involving

respondent’s alleged violation of this PPO.1 As in the other appeal, we affirm.

Petitioner and respondent were divorced after a six-year marriage that produced two

children. Subsequent to their divorce, petitioner alleged that respondent physically threatened

her, made harassing and intimidating phone calls, repeatedly threatened to not return the children

after visitation, and battered her during a visitation exchange. Petitioner sought a PPO, which

was issued after a hearing.

The court issued a PPO that in relevant part prohibited respondent from “stalking as

defined by MCL 750.411h and MCL 750.411i which includes but is not limited to . . . appearing

at petitioner’s work place or residence.”2 Several months later, and after respondent had been

found in contempt in for a prior violation of the PPO, petitioner’s fiancé witnessed respondent

drive slowly past petitioner’s house with the car window rolled down. Respondent’s son who

was playing in the front yard also recognized his father. Petitioner’s house is located in back of a

1 Ottevaere v Tweddle, unpublished opinion per curiam of the Court of Appeals, issued _______

(Docket No. 255776). Docket No. 255776 involves a prior found violation of the PPO, for

which respondent served four days in jail. Id.

2 Docket No. 255776 involves a violation of the PPO’s prohibition against contacting petitioner

by telephone. Id.

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private subdivision with only one entrance, a dead-end that ran within twenty-five yards of

petitioner’s home. After a show-cause hearing, respondent was found to be in criminal contempt

of the PPO.

Respondent argues that the court improperly concluded that he violated the PPO. We

disagree. “A trial court’s findings in a contempt proceeding must be affirmed on appeal if there

is competent evidence to support them. However, the issuance of an order of contempt rests in

the sound discretion of the trial court, and is reviewed only for an abuse of discretion.” Brandt vBrandt, 250 Mich App 68, 73; 645 NW2d 327 (2002) (citations omitted). To support a finding

of criminal contempt, “an alleged contemnor’s ‘willful disregard or disobedience’ of a court

order and a clearly contemptuous act must be proved beyond a reasonable doubt.” In re

Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 714; 624 NW2d 443 (2000), quoting

People v Boynton, 154 Mich App 245, 248, 397 NW2d 191 (1986); see also MCR 3.708(H)(3).

Respondent argues on appeal that the order only prohibited him from statutory stalking,

so the court was required to find beyond a reasonable doubt that he committed a course of

conduct involving two or more instances of harassment before it could hold him in contempt.

However, the court originally granted the PPO because it found that petitioner had established a

course of harassing conduct by respondent. Therefore, any further violation, including

respondent’s arrival at petitioner’s home, would merely add to the established series and

continue the harassment, contrary to both the statute, MCL 750.411h, and the very plain

language of the PPO. The specific restriction against respondent going to petitioner’s home was

also reinforced in the court’s verbal instructions to respondent at the hearing to enter the PPO, so

the trial court correctly found that respondent’s appearance at petitioner’s home on the one

occasion sufficed to constitute contempt.

Respondent also agues that he did not violate the order because petitioner was not at

home and he therefore did not “contact” her. However, the PPO plainly enjoined respondent

from appearing at petitioner’s home without reference to contact. Moreover, applying the

common use of the language employed, people at and around petitioner’s home plainly saw

respondent drive along the dead-end access road within twenty-five yards of her house, so he

“appeared at” her home.

Next, respondent agues that the order is unconstitutionally vague because it is impossible

to tell how near respondent must be to petitioner’s residence before he has appeared “at” her

residence. This argument is also without merit. The language of the PPO was sufficiently clear

to allow respondent to understand that driving within twenty-five yards of petitioner’s home on a

drive with no outlet is close enough to be considered “appearing at” her residence and a violation

of the PPO.

Respondent also argues that the court did not specifically find beyond a reasonable doubt

that respondent intended to violate the PPO. Respondent cites the trial court’s comment during

sentencing that “respondent is apparently, I guess, trying to get as close to the edge of behaviors

as he possibly thinks he might be able to do.” However, respondent omits the second half of the

sentence, where the trial court concludes that respondent “easily can be understood by me to

have stepped over the line and ignored a clear order.” Accordingly, the trial court appropriately

concluded that respondent intentionally violated the plain terms of the PPO. Competent

evidence was presented to prove respondent’s intent to violate the PPO, especially the evidence

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showing that respondent slowly drove by petitioner’s back-lot residence with his window down

on a dead-end access road.

Finally, respondent argues that his thirty-day jail sentence was disproportionately high.

However, because respondent has already served his sentence, the issue is moot. In re Contemptof Dudzinski, 257 Mich App 96, 112; 667 NW2d 68 (2003). In any event, we conclude that the

sentence was proportionate under the circumstances.

Affirmed.

/s/ E. Thomas Fitzgerald

/s/ Peter D. O’Connell

/s/ Kirsten Frank Kelly

GOODING v. GOODING

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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
ALBERT LEE GOODING,
Plaintiff-Appellee,
UNPUBLISHED
January 12, 2006
v No. 254528
Oakland Circuit Court
MARK ANTHONY GOODING,
LC No. 2004-688561-PP
Defendant-Appellant.
Before: O’Connell, P.J., and Smolenski and Talbot, JJ.
PER CURIAM.
Following a bench hearing, defendant was found in criminal contempt for violating a
personal protection order, MCL 600.2950(23). He was committed to jail for ninety-three days,
with credit for seven days served, and ordered to undergo anger management counseling. He
appeals as of right. We reverse and remand. This appeal is being decided without oral argument
pursuant to MCR 7.214(E).
Defendant argues that his due-process rights were violated by the trial court’s failure to
apply the correct standard of proof in his criminal contempt hearing. We agree. Defendant
failed to object to the use of the improper burden of proof standard and otherwise did not
preserve a claim of constitutional error. Therefore, we will not reverse his conviction unless we
find plain error that affected his substantial rights. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999).
During the show cause hearing, the prosecution, in its opening statement and closing
argument, stated that it would prove defendant’s guilt by a preponderance of the evidence. In its
findings of fact, the trial court found “by a preponderance of the evidence that the Respondent
did, in fact, violate the personal protection order.” However, this is a criminal contempt action,
so “[t]he petitioner or the prosecuting attorney has the burden of proving the respondent’s guilt
of criminal contempt beyond a reasonable doubt . . . .” MCR 3.708(H)(3).
It is clear from the record that the trial court did not merely misstate the standard of
proof, but that the incorrect, and lower, standard of proof was used to evaluate the evidence. The
United States Supreme Court has held that the “use of the reasonable-doubt standard is
indispensable to command the respect and confidence of the community in applications of the
criminal law.” In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). The court
made it clear that “the Due Process Clause protects the accused against conviction except upon
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proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged.” Id. Applying the incorrect standard was plain error. Furthermore, using the
preponderance of the evidence standard seriously affected the fairness and integrity of the
proceedings. Carines, supra at 763. Therefore, the error warrants reversal. Id.
Defendant further argues that the charge of violating the personal protection order should
be dismissed with prejudice, because to dismiss without prejudice would subject him to another
hearing on the same charges in violation of the constitutional protection against double jeopardy.
US Const, Am V. Defendant cites no authority and provides no support for this position, and the
failure to apply the correct standard is clearly a trial error. See Burks v United States, 437 US 1,
15-16; 98 S Ct 2141; 57 L Ed 2d 1 (1978).
Reversed and remanded for further proceedings in accordance with this opinion. We do
not retain jurisdiction.
/s/ Peter D. O’Connell
/s/ Michael R. Smolenski
/s/ Michael J. Talbot

OTTOVAERE v. TWEEDLE

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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
DAWN OTTEVAERE,
Petitioner-Appellee,
UNPUBLISHED
December 20, 2005
v No. 255776
Ingham Circuit Court
ANDREW MICHAEL TWEDDLE,
LC No. 04-001101-PP
Respondent-Appellant.
Before: Fitzgerald, P.J., and O’Connell and Kelly, JJ.
PER CURIAM.
Respondent appeals as of right from the April 30, 2004, entry of a personal protection
order (PPO) against him and the May 14, 2004, criminal contempt order sentencing him to four
days in jail for violation of the PPO. This is one of two cases being heard by this Court
involving respondent’s alleged violation of this PPO.1 As in the other appeal, we affirm.
Petitioner and respondent were divorced after a six-year marriage that produced two
children. Subsequent to their divorce, petitioner alleged that respondent physically threatened
her, made harassing and intimidating phone calls, repeatedly threatened to not return the children
after visitation, and battered her during a visitation exchange. Petitioner sought a PPO, and a
hearing on the matter was held during which she testified that her preferred method of
communication with respondent was through e-mail or letters. Respondent testified that he
would like to be able to speak to his children over the phone, but agreed that the parenting time
order did not currently address such contact. Nonetheless, both parties agreed that respondent
should be allowed to talk on the phone with his children during pre-arranged times.
The court issued the PPO, which, among other restrictions, prohibited respondent from
contacting petitioner by telephone, with the exception that “respondent may call children at a
prescheduled time at petitioner’s house.”2 Nonetheless, three days after the PPO was issued and
1 Ottevaere v Tweddle, unpublished opinion per curiam of the Court of Appeals, issued _____
(Docket No. 259078). Docket No. 259078 involves a second violation of the PPO, for which
respondent served thirty days in jail and was fined $500. Id.
2 Docket No. 259078 involves the PPO’s prohibition against appearing at petitioner’s home. Id.
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with no telephone schedule in place, respondent called petitioner’s residence and left the
following message: “Hi, it’s me, Daddy, just calling to talk to Shoey and Baggy. I’ll call back
around seven.” The next day respondent replied to petitioner’s e-mail regarding parenting time
for the July Fourth weekend. A few minutes after sending the e-mail, he called petitioner and
requested to speak to the children. Petitioner contacted the police and a show cause hearing took
place a few weeks later. Respondent testified at the hearing that he misunderstood the PPO and
was merely calling in an attempt to pre-schedule telephone visitation with his children.
Respondent testified that he believed the PPO allowed him to contact petitioner via telephone to
make such arrangements. The court held respondent in criminal contempt for violation of the
PPO and ordered that he serve four days in jail, which respondent served in July 2004.
Upon motion of the parties, the Oakland Circuit Court (which had jurisdiction over
custody and parenting time issues) subsequently issued an order which stated in relevant part, “In
furtherance of the Personal Protection Order entered by the Ingham County Circuit Court[,] . . .
[respondent] . . . shall have telephone contact with the minor children by calling them on
Mondays and Thursdays . . . between 8:00 a.m. and 8:20 a.m. . . . The parties shall not speak to
each other during these telephone calls.”
Respondent first argues that the Ingham Circuit Court erred by failing to contact the
Oakland Circuit Court before issuing the PPO as required by MCR 3.706(C). However,
respondent has failed to provide any evidence demonstrating that the Ingham Circuit Court failed
to comply with the requirements of MCR 3.706(C).3 Therefore, this issue is without merit.
Next, respondent argues that the PPO was so vague that it was impossible to comply
with. We disagree because a reasonable person could easily understand that the phone calls
would violate the order, but respondent nevertheless “refused or neglected to reasonably
endeavor to comply with the order.” Butler v Butler, 80 Mich App 696, 700; 265 NW2d 17
(1978). The language of the PPO clearly indicates that respondent could only call the children at
pre-arranged times. The PPO did not prohibit respondent from contacting petitioner by e-mail or
in writing or even by means of a third-party intermediary. Respondent, in fact, understood the
relevant directives of the PPO. Respondent admitted that he heard petitioner express her
preference for e-mail communication during the hearing to enter the PPO. Respondent also
admitted to knowing that other forms of communication were available to him. And when
pressed by the circuit court about the phone message referencing “Shoey and Baggy,” respondent
stated, “I wanted to leave a message for the children, not Dawn, because I knew I wasn’t
supposed to have a call to Dawn.”
3 Respondent asserts that when the Oakland Circuit Court issued the order to schedule telephone
contact, the presiding judge stated that to the best of his knowledge, the Ingham Circuit Court
never contacted him. The transcript respondent cites has not been provided. In any event, this
transcript is not part of the record of the lower court, in which this issue should have been raised
initially, so respondent fails to substantiate this claim of error. Amorello v Monsanto Corp, 186
Mich App 324, 330; 463 NW2d 487 (1990).
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Next, respondent argues that the trial court erred by failing to apply the proper burden of
proof. We disagree. “A trial court’s findings in a contempt proceeding must be affirmed on
appeal if there is competent evidence to support them. However, the issuance of an order of
contempt rests in the sound discretion of the trial court, and is reviewed only for an abuse of
discretion.” Brandt v Brandt, 250 Mich App 68, 73; 645 NW2d 327 (2002) (citations omitted).
To support a finding of criminal contempt, “an alleged contemnor’s ‘willful disregard or
disobedience’ of a court order and a clearly contemptuous act must be proved beyond a
reasonable doubt.” In re Contempt of Auto Club Ins Ass’n, 243 Mich App 697, 714; 624 NW2d
443 (2000), quoting People v Boynton, 154 Mich App 245, 248, 397 NW2d 191 (1986); see also
MCR 3.708(H)(3). Contrary to respondent’s assertion, there is no indication in the record that
the court disregarded the appropriate burden of proof. The fact that the court reached a
conclusion at odds with respondent’s position does not indicate that the court applied the wrong
burden of proof.
The finding that respondent willfully disregarded the order is supported by competent
evidence. As noted above, the PPO precluded respondent from “contacting the petitioner by
telephone.” This provision was modified by a hand-written note, which provided that
“respondent may call children at a prescheduled time at petitioner’s house.” Nevertheless, only
days after the PPO was issued, respondent called and left a recorded message directed to his
children. He called back the following day, after making acceptable e-mail arrangements
regarding holiday plans, and asked petitioner to put the children on the line. At the time of these
calls, a telephone visitation schedule was not yet in place. Respondent’s excuse that he was
calling to set the schedule was belied by his confessed knowledge that he was not to phone
petitioner, his reference only to his children in his message, his e-mail contact with petitioner the
following day, and his request to speak to the children in the second phone call. Accordingly,
the circuit court’s finding that respondent willfully disregarded and clearly violated the PPO
beyond a reasonable doubt was supported by competent evidence. Brandt, supra.
Next, respondent argues on appeal that the court erred by failing to notify him of certain
matters as required by MCR 3.708(D), including the alleged violation, the right to contest the
violation or plead guilty, and the right to a lawyer. Because respondent failed to preserve this
issue for appeal, he must show plain error affecting his substantial rights. People v Carines, 460
Mich 750, 763-764; 597 NW2d 130 (1999). Any error in this regard did not affect respondent’s
substantial rights and was ultimately harmless. Respondent was clearly aware of the conduct
constituting the violation, his right to an attorney, and his right to contest the charge, because he
appeared at the contempt hearing to contest the charge and brought his attorney who ably argued
the facts and law regarding the particular charge.
Finally, respondent argues that his four-day jail sentence was disproportionately high.
However, respondent has already served his sentence, so the issue is moot. In re Contempt of
Dudzinski, 257 Mich App 96, 112; 667 NW2d 68 (2003). In any event, the sentence was
proportionate under the circumstances.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Peter D. O’Connell
/s/ Kirsten Frank Kelly