DAWN OTTEVAERE V ANDREW MICHAEL TWEDDLE
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STATE OF MICHIGAN
COURT OF APPEALS
DAWN OTTEVAERE,
UNPUBLISHED
December 20, 2005
Petitioner-Appellee,
v
No. 255776
Ingham Circuit Court
LC No. 04-001101-PP
ANDREW MICHAEL TWEDDLE,
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Ottevaere v Tweddle, unpublished opinion per curiam of the Court of Appeals, issued _____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
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