January 3, 2006
Case Law Development: What Conduct Violates a Protective Order?
The Michigan Court of Appeals decided two cases this past week regarding conduct that violates a protective order. Both cases involve the same divorced couple and the same protective order, but two separate violations of that order. The court in each case held that the conduct complained of did indeed violate the order.
In the first case, Father was convicted of criminal contempt after leaving a message for his children on Mother's answering machine. The protective order, issued after Mother alleged that Father had threatened, beaten and stalked Mother after their divorce, prohibited Father from contacting Mother, but did allow him telephone contact with the children though only at prearranged times. Father had called twice, leaving a message for the children on the answer machine one time and asking Mother to put the children on the phone another. The Michigan Court of Appeals held that the order was clear enough to support a contempt conviction for these phone calls.
Ottevaere v. Tweddle, 2005 Mich. App. LEXIS 3216 (December 20, 2005)
Opinion on the Web at http://www.michbar.org/opinions/appeals/2005/122005/29889.pdf (last visited January 2, 2006 bgf)
Father was also convicted of criminal contempt for driving by Mother's house. The house was on a dead-end street and Mother's fiance and her son both saw Father driving slowly by the house with his car window rolled down. Father argued that the protective 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." The court rejected this argument, holding that "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.
Ottevaere v. Tweddle, 2005 Mich. App. LEXIS 3196 (December 20, 2005)
Opinion on the web at http://www.michbar.org/opinions/appeals/2005/122005/29926.pdf (last visited January 2, 2006 bgf)
Thanks to Michigan Attorney Jeanne Hannah for highlighting these cases on her blog.