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FAMILY LAW 78: Trial court denied respondent’s motion to terminate the PPO.

Petitioner and respondent are neighbors with an exceptionally contentious relationship. Petitioner sought an ex parte nondomestic PPO against respondent for what she deemed harassing and intimidating behavior by respondent under MCL 600.2950a(1).

Personal Protection Order

The trial court reviewed and granted petitioner’s request for an ex parte PPO. The order did not include specific findings or reasoning as to why the ex parte PPO was issued by the court, even though judicial findings are statutorily required pursuant to MCL 600.2950a, as well as mandated by MCR 3.705(a)(2).

Procedures of personal protective orders:

(1) The court must rule on a request for an ex parte order within one business day of the filing date of the petition.

(2) If it clearly appears from specific facts shown by verified complaint, written petition, or affidavit that the petitioner is entitled to the relief sought, an ex -4- parte order shall be granted if immediate and irreparable injury, loss, or damage will result from the delay required to effectuate notice or that the notice will itself precipitate adverse action before a personal protection order can be issued. In a proceeding under MCL 600.2950a, the court must state in writing the specific reasons for issuance of the order. A permanent record or memorandum must be made of any nonwritten evidence, argument or other representations made in support of issuance of an ex parte order.

Family Court Referee

Respondent moved to terminate the PPO. Respondent asserted that petitioner’s allegations were false. A proceeding on respondent’s motion to terminate was held with a family court referee, not a trial court judge.

The referee presided over a hearing that was more akin to a family court mediation or alternative dispute resolution, as opposed to a formal court hearing. Other than evaluating credibility, the referee made no other factual findings on the record. At the conclusion of the hearing, the referee denied respondent’s motion to terminate to the PPO.

The trial court entered an order adopting the referee’s denial to terminate the PPO. The order stated, in pertinent part, it is ordered that the Respondent’s Motion to Object or Modify Ex-Parte Personal Protection Order entered by this Court, is denied, and the Personal Protection Order shall stay in place for reasons stated on the record. The order stated that it was based on the referee’s findings and recommendations.

Appeal

On appeal, respondent argues that the trial court failed to comply with the procedures set forth under MCR 3.700 and that the trial court abused its discretion by granting the PPO and denying his motion to terminate the PPO.

The trial court failed to comply with the proper procedure for nondomestic PPO proceedings as required under subchapter 3.700 of the Michigan Court Rules. The PPO in this instance was issued ex parte. Accordingly, respondent was entitled to request a hearing challenging the merits of the PPO.

The trial court failed to afford respondent (as well as petitioner) his procedural due process rights because neither party had notice of the de novo review hearing. The appeal court vacated the trial court’s order denying respondent’s motion to terminate and instructed the trial court to enter an order terminating the PPO forthwith and to amend its procedures to comply with MCR 3.700.

Let Us Put Our Experience to Work for You

We act quickly when allegations of domestic violence are made to file for or contest personal protection orders. At the Plymouth and Ann Arbor law firm of Aldrich Legal Services, our attorneys have the skill and experience you need to address all family law issues that may arise during your divorce

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FAMILY LAW 88: The trial court found that the children did not have an established custodial environment with defendant because, before the separation, he did not have a large role in the children’s lives.

The trial court credited plaintiff’s testimony that, before the parties’ separation, defendant spent minimal time helping to care for the children, so its finding that the children would not have looked to defendant for guidance, discipline, the necessities of life, and parental comfort during that time was not against the great weight of the evidence.

REAL ESTATE 89: RM had not included any language in the deed providing that the property was a joint tenancy with full rights of survivorship, the property instead became a tenancy in common.

RM drafted the deed without seeking counsel and mistakenly believed that, if either she or FK died, the property would fully pass to the surviving tenant. FK’s will provided that if his wife predeceased him—which she did—the personal representative of his estate should sell any residual property that he owned and divide the cash proceeds equally among his surviving children.

FAMILY LAW 83: A trial court can terminate a parent’s rights and permit a stepparent to adopt a child.

A trial court has discretion to terminate a parent’s rights and permit a stepparent to adopt a child when the conditions of MCL 710.51(6) are met. MCL 710.51(6)(b) requires the petitioner to establish that the other parent had the ability to visit, contact, or communicate with the children, and substantially failed or neglected to do so for a period of two years.

PROBATE 53: The trust agreement included an Incontestability Provision.

A settlor’s intent is to be carried out as nearly as possible. Generally, in terrorem clauses are valid and enforceable. However, a provision in a trust that purports to penalize an interested person for contesting the trust or instituting another proceeding relating to the trust shall not be given effect if probable cause exists for instituting a proceeding contesting the trust or another proceeding relating to the trust.

FAMILY LAW 82: Court stated it would terminate the personal protection order (PPO) after the parties present documentation of the initiation of the divorce proceedings.

However, the trial court concluded that these matters should, in fact, be in the province and the jurisdiction of the Family Division and in that respect, having issued a personal protection order, the Court stated it would terminate the personal protection order after the parties present documentation of the initiation of the divorce proceedings.

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