STEPHANIE DORIS PICKERING V JOHN DAVID PICKERING
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STATE OF MICHIGAN
COURT OF APPEALS
STEPHANIE DORIS PICKERING,
FOR PUBLICATION
November 1, 2002
9:35 a.m.
Petitioner-Appellee,
v
No. 233614
Emmet Circuit Court
LC No. 01-006373-PP
JOHN DAVID PICKERING,
Respondent-Appellant.
Updated Copy
January 31, 2003
Before: Murphy, P.J., and Hood and Murray, JJ.
MURRAY, J.
Respondent John David Pickering appeals as of right an order denying his motion to
rescind a personal protection order (PPO) issued ex parte at the request of petitioner Stephanie
Doris Pickering, respondent's wife. This case requires us to address two issues that confront
circuit courts daily, namely: (1) who has the burden of persuasion in an evidentiary hearing held
on a motion to rescind an ex parte PPO; and (2) whether the facts presented in a husband-wife
dispute occurring amidst divorce proceedings are sufficient to warrant the entry of an ex parte
PPO that removes one of the parties (respondent) from the marital home. For the reasons that
follow, we hold that the party who petitioned for the ex parte PPO has the burden of persuasion
in a hearing held on a motion to rescind and, on the facts of this case, that the entry and
maintenance of the ex parte PPO was proper. Accordingly, we affirm.
I. Facts and Procedural History
This case arises out of a PPO that was issued against respondent on February 15, 2001.
At the time the PPO was entered, petitioner and respondent were residing together in the marital
home, but were in the process of obtaining a divorce. The PPO was issued after an incident in
which respondent threatened to break down a door that petitioner had braced shut with a chair
while she worked on the family computer. After petitioner obtained the ex parte PPO,
respondent filed a motion to rescind.
At the commencement of the hearing, the following colloquy regarding the burden of
proof took place between the court and counsel for both parties:
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Mr. Bosch [respondent's counsel]: Just a procedural matter. Is the court
going to require my client to put on proofs to set aside the PPO or is the Court
going to put the burden of proof on the petitioner?
The Court: What do you think?
Mr. Bosch: My thoughts would be that the petitioner has to prove there's
reasonable cause that the PPO stay in place.
The Court: Mr. Beatty.
Mr. Beatty [petitioner's counsel]: My preference, of course, Your Honor,
would be that the defendant prove that it ought to be dissolved and I was trying to
remember the last hearing we did whether that was the Court's approach or not.
The Court: Well, the PPO is in effect under statute and the respondent
wishes to modify it or terminate, so I think the respondent at least has the burden
of going forward with the evidence. [Emphasis added.]
Each party presented witnesses during the hearing and then made their closing arguments
to the court.
On conclusion of the evidentiary hearing, the trial court denied respondent's motion,
finding that the PPO was justified because reasonable cause existed to believe that respondent
caused petitioner to have a reasonable apprehension of violence. This appeal followed.
II. Burden of Proof
Respondent first argues that the trial court erred in ordering that the burden of proof was
on him, rather than petitioner, to establish the propriety of the PPO. Which party bears the
burden of proof is a question of law that we review de novo on appeal. Kelly v Builders Square,
Inc, 465 Mich 29, 34; 632 NW2d 912 (2001).
We have previously held, consistent with the statutes and the court rules, that a petitioner
bears the burden of proof when seeking to obtain an ex parte PPO. Kampf v Kampf, 237 Mich
App 377, 385; 603 NW2d 295 (1999). However, the question of which party has the burden of
proof in a hearing on a motion to rescind an ex parte PPO is addressed in neither the statute nor
the court rules governing the issuance of PPOs. See MCL 600.2950 and MCR 3.707. However,
the Michigan Court Rules do set forth the procedure for dissolving temporary restraining orders
that were granted without notice:
At a hearing on a motion to dissolve a restraining order granted without
notice, the burden of justifying continuation of the order is on the applicant for
the restraining order whether or not the hearing has been consolidated with a
hearing on a motion for a preliminary injunction or an order to show cause. [MCR
3.310(B)(5) (emphasis added).]
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Clearly an ex parte PPO constitutes a "restraining order granted without notice" under
MCR 3.310(B)(5), because it is issued ex parte and restrains a respondent from committing
certain acts. MCL 600.2950(30). In addition, MCR 3.310 applies to a statutory action for an
injunction "only to the extent that it does not conflict with special procedures prescribed by the
statute or the rules governing the special action." MCR 3.310(I). Because the PPO statute and
court rules are silent on the issue of the burden of proof in a hearing on a motion to rescind or
terminate, the procedures in MCR 3.310(B)(5) do not conflict with the PPO statute or court rules,
and therefore are controlling in this case.
Petitioner argues that MCR 3.310(B)(5) does not apply because the PPO statute is clear
and comprehensive on its face, and it does not specifically state that the court rule applies.
However, it is not necessary for a statute to invoke a court rule to make it applicable. Rather, the
Michigan Court Rules generally govern matters of procedure in all Michigan courts, MCR 1.103,
and the rules in chapter three of the Michigan Court Rules specifically apply in the circuit court.
MCR 3.001. Furthermore, as noted, neither the statute nor the court rules address the allocation
of the burden of proof in a hearing regarding a motion to rescind or terminate a PPO, and hence
MCR 3.310(B)(5) applies by its plain terms. MCR 3.310(I).
In Michigan, "[t]here are two aspects of the 'burden of proof '—the burden of persuasion
and the burden of going forward with the evidence." Satterfield v Grand Rapids Pub Schs Bd of
Ed, 219 Mich App 435, 438; 556 NW2d 888 (1996), quoting Widmayer v Leonard, 422 Mich
280, 290; 373 NW2d 538 (1985). MCR 3.310(B)(5) requires the petitioner to "justify"
continuation of the PPO. Although that term is not defined in the court rule, it is defined
elsewhere as "to prove or show to be just, right, or reasonable." Webster's New Collegiate
Dictionary (1980); Meyer Jewelry Co v Johnson, 229 Mich App 177, 180; 581 NW2d 734
(1998) (resorting to dictionary for definition of undefined word in court rules is appropriate).
Hence, under MCR 3.310(B)(5), the burden placed on the petitioner is the burden of justification,
which in the context of the "burden of proof," means the burden of persuasion.
Accordingly, we hold that under MCR 3.310(B)(5) the burden of justifying continuation
of a PPO granted ex parte is on the applicant for the restraining order. Hence, the petitioner will
have the burden of persuasion in a hearing held on a motion to terminate or modify an ex parte
PPO.
In this case, the trial court specifically ruled that respondent had the "burden of going
forward with the evidence." However, as previously noted, the burden of proof encompasses
two separate concepts. Thus, although the trial court placed the burden of going forward with
the evidence on respondent, it did not place the burden of persuasion on respondent. Satterfield,
supra. See, also, Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 176;
530 NW2d 772 (1995) (recognizing that shifting the burden of going forward with the evidence
does not also shift the burden of persuasion). There is simply no indication in the record that the
trial court placed the burden of persuasion on respondent. Rather, the court heard all the
evidence and specifically held that the evidence established that there was sufficient facts to
justify the earlier entry of the ex parte PPO. Although the trial court did not use precise words
indicating that the evidence "justified" continuation of the PPO, the court concluded that
petitioner had proved through her more credible witnesses that the anger and temperament issues
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that led to the parties' prior incidents were of a continuous nature, thereby providing reasonable
cause to believe that respondent caused petitioner a reasonable apprehension of violence. Thus,
the trial court proceedings did not violate MCR 3.310(B)(5).1
III. Respondent's Motion to Rescind the PPO
Respondent also argues that the trial court erred in denying his motion to set aside the
PPO because the evidence failed to establish reasonable cause to believe that respondent would
commit one or more of the acts referenced in the PPO statute, MCL 600.2950(1).2 We disagree.
A PPO is an injunctive order. MCL 600.2950(30)(c). The granting of injunctive relief is within
the sound discretion of the trial court and will not be reversed on appeal absent an abuse of
discretion. Kernen v Homestead Dev Co, 232 Mich App 503, 509-510; 591 NW2d 369 (1998).
"An abuse of discretion is found only if an unprejudiced person, considering the facts on which
the trial court acted, would say there is no justification or excuse for the ruling made." Ellsworth
v Hotel Corp of America, 236 Mich App 185, 188; 600 NW2d 129 (1999).
The trial court did not abuse its discretion when it denied respondent's motion to rescind
the PPO. Under MCL 600.2950(4), the trial court is required to issue a PPO if it determines that
"there is reasonable cause to believe that the individual to be restrained or enjoined may commit
1 or more of the acts listed in subsection (1)." The acts listed in subsection 1 include "[a]ny
other specific act or conduct that imposes upon or interferes with personal liberty or that causes a
reasonable apprehension of violence." MCL 600.2950(1)(j). In determining whether good cause
exists, the trial court is required to consider "[t]estimony, documents, or other evidence" and
"[w]hether the individual to be restrained . . . has previously committed or threatened to commit
1 or more of the acts listed in subsection (1)." MCL 600.2950(4)(a) and (b). As previously
noted, the burden of proof in obtaining the PPO, as well as the burden of justifying continuance
of the order, is on the applicant for the restraining order. Kampf, supra at 385-386; MCR
3.310(B)(5).
In this case, respondent argues that the trial court erred in failing to set aside the PPO
issued against him on the ground that the conduct alleged by petitioner, which formed the basis
for entry of the PPO, did not rise to the level of conduct necessary to establish "reasonable
cause" for issuance of a PPO. Contrary to respondent's argument, there was testimony presented
at the evidentiary hearing demonstrating reasonable cause to believe that respondent engaged in
conduct that caused petitioner a reasonable apprehension of violence. MCL 600.2950(1)(j).
1
Although the trial court did not offend MCR 3.310(B)(5) by placing the burden of first coming
forward with evidence on respondent, we believe it would be more appropriate in these hearings
to have the petitioner—who has the burden of justification throughout the proceedings—to also
be the party to first come forward with evidence.
2
In reaching our conclusion, we do not consider the February 23, 2001, correspondence from the
Michigan Head Pain and Neurological Institute, which was appended to respondent's brief on
appeal. The trial court sustained petitioner's objection to admission of the exhibit, and thus, the
document is not a part of the lower court record. It therefore cannot be considered by this Court.
Butler v Ramco-Gershenson, Inc, 214 Mich App 521, 526, n 4; 542 NW2d 912 (1995).
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Respondent threatened to break down a door that petitioner had braced shut with a chair. In
doing so, respondent shouted at petitioner with a "rage in his voice," continued to shove the door,
and attempted to dislodge the chair by poking a yardstick under the door, ripping his watch off
his wrist in the process. This conduct left petitioner afraid, "visibly shaken," and "hysterical."
Petitioner also testified regarding other acts of anger and rage exhibited by respondent in the past
that caused her to fear him. The trial court expressly found the testimony of petitioner,
petitioner's brother, and the responding police officer credible, and this Court defers to the trial
court in that determination. Lumley v University of Michigan Bd of Regents, 215 Mich App 125,
135; 544 NW2d 692 (1996). Under these circumstances, we are unable to conclude that the trial
abused its discretion in denying respondent's motion to rescind the PPO.3
Affirmed.
/s/ William B. Murphy
/s/ Harold Hood
/s/ Christopher M. Murray
3
We recognize that the facts of this case present a "close call" regarding whether the PPO should
have been initially entered or continued. It is also true, as the trial court noted, that PPOs can be
inappropriately utilized in a divorce or custody proceeding by parties attempting to obtain some
perceived advantage, such as removing one parent from the home. However, we believe trial
courts are well positioned to determine if a party is acting in such an inappropriate fashion. First,
the trial court is in the best position to determine the credibility of the parties, which will
obviously include the testimony, demeanor, and motive of the petitioner. Second, if a divorce or
custody proceeding already exists when the PPO is filed, the PPO will be assigned to the judge
presiding over the custody or divorce proceeding. MCR 8.111(D)(1). Presumably the judge
who is handling the divorce or custody proceeding will have sufficient knowledge of the parties'
circumstances to determine in most cases whether the petitioner is inappropriately seeking a
tactical advantage by obtaining the PPO. See Brandt v Brandt, 250 Mich App 68, 71-72; 645
NW2d 327 (2002).
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