ARM v. KJL

• Decision Date: 14 July 2022
• Docket Number: 357120,358858,358859
• Parties: ARM, Petitioner, v. KJL, Respondent-Appellant. and PEOPLE OF THE STATE OF MICHIGAN, Appellee, ARM, Petitioner-Appellee, v. KJL, Respondent-Appellant. ARM, Petitioner-Appellee, v. KJL, Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

ARM, Petitioner, and PEOPLE OF THE STATE OF MICHIGAN, Appellee,
v.
KJL, Respondent-Appellant.

ARM, Petitioner-Appellee,
v.
KJL, Respondent-Appellant.

ARM, Petitioner-Appellee,
v.
KJL, Respondent-Appellant.

Nos. 357120, 358858, 358859

Court of Appeals of Michigan

July 14, 2022

St. Clair Circuit Court Family Division LC Nos. 16-000741-PP, 20-001291-PP, 16-000741-PP

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Before: CAMERON, P.J., and O'BRIEN and SWARTZLE, JJ.

SWARTZLE, J.

ARM sought and received several domestic personal protection orders (PPO) against KJL. This appeal centers on one PPO issued by the trial court in 2016. We conclude that KJL's conviction for criminal contempt survives his various challenges on appeal, and we further conclude that KJL's claim that his separate sentences were de facto consecutive sentences is moot. While we also find that his claim involving good-time credit is likewise moot, we choose to address it because it has public significance and would likely evade appellate review in future cases. On this latter claim, we agree with KJL that the local sheriff's policy of categorically prohibiting certain offenders from earning good-time credit-i.e., those incarcerated for contempt of court- runs directly contrary to the statute enacted by our Legislature. Accordingly, for the reasons more fully explained below, we affirm in part and reverse in part.

I. BACKGROUND

There is a lengthy history between ARM and KJL. The two share a child, and there was an acrimonious custody battle over the child. Based on allegations of mental and physical domestic violence, ARM obtained and received a PPO against KJL in 2015. The trial court held an evidentiary hearing and found that the PPO had been properly granted and that KJL had violated it; KJL violated the PPO again later that year. The PPO eventually lapsed by its own terms in March 2016.

Immediately thereafter, ARM sought another PPO against KJL, the one at issue in this appeal. ARM made various allegations against KJL, including repeated unwanted contacts with her and her friends and family on social media. The trial court entered the order on March 31, 2016, without a hearing. In addition to other prohibitions not relevant to this appeal, the PPO barred KJL from stalking petitioner, as defined under MCL 750.411h and 750.411i. (The order was subsequently amended to permit contact between the parties at parenting-time exchanges.) KJL moved to terminate the PPO in April 2016, and, after several proceedings, the trial court denied the motion in March 2018. KJL did not argue at that time that the PPO violated his right to free speech, nor did he appeal the trial court's order.

In March 2019, ARM filed a show-cause motion with respect to the present PPO, alleging that KJL used a Facebook profile with the name of his deceased father, "KW", to speak directly to ARM, speak about her with others, tag her in comments, share photographs and posts from her old Facebook account, and post an order from their custody case that included her address. She argued that this conduct violated the PPO.

The trial court held an evidentiary hearing on the matter. During the hearing, ARM offered "Exhibit A" as proof that KJL violated the PPO. Exhibit A consisted of twelve pages of screenshots ARM took on her phone of a Facebook page KJL created called "Justice for O." (O is the child of ARM and KJL.) In the screenshots, "KW" alleged that ARM associated with a sex offender and allowed the offender to interact with O. "KW" also posted screenshots of ARM's old Facebook posts on past Father's Days that expressed love and affection for KJL. Then, on

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page seven of the exhibit, "KW" appeared to tag ARM in a comment, which directly alerted ARM about the post.

When the prosecutor offered to admit Exhibit A into evidence, KJL's attorney asked if the prosecutor was moving to admit "pages one to 12." The prosecutor answered "yes," to which KJL's attorney responded, "I have no objection to that."

ARM testified that she believed KJL wrote the posts purportedly by "KW" because she recognized KJL's writing style and how he used social media. The prosecutor objected on cross examination to questions about page three of the exhibit, prompting the trial court to question whether the post on page three was "one of the things that [ARM]'s asserting as a violation of the PPO." The prosecutor responded that only the posts on pages 8 through 12 were alleged to be direct violations of the order. In light of this explanation, KJL's attorney moved to strike pages one through seven from the record. The prosecutor opposed the motion, reasoning that the earlier pages provided context for the subsequent pages. The trial court agreed with the prosecutor, stating that pages one through seven "may support an interpretation of eight through 12, and it's already part of the record so I'm not going to strike it." KJL's attorney then proceeded to question ARM in detail about the entirety of Exhibit A, including the first seven pages.

After ARM's testimony concluded, the trial court admitted into evidence phone calls KJL made in jail after ARM's show-cause motion was filed. During the calls, KJL discussed with his sister, MC, and at least one other person, various Facebook posts that they should make on the "Justice for O" page. During one of the calls, KJL gave specific instructions about what he wanted posted on the "Justice for O" profile (the "Justice for O" page and profile are two separate Facebook accounts), detailing the post's precise words and even spacing. In a subsequent call, KJL directed a person to "make sure that you're posting in ['KW'] too.... Because . . . that's just going to negate their whole argument that it's me doing it, you know what I mean?" During that same call, KJL gave specific instructions for a post on the "Justice for O" page that included pictures of ARM. MC testified and claimed that she was solely responsible for the "KW" Facebook posts. MC admitted that she discussed the Facebook posts with KJL, but claimed that she never posted a message that KJL requested word-for-word.

KJL's attorney moved to dismiss at the conclusion of the hearing. As part of her response, the prosecutor clarified, "[A]t first the focus really was on pages eight through 12 [of Exhibit A], but through Defense Counsel's questioning he enlightened me that in fact there is a lot more violations than just those in the end of the document." The prosecutor then argued, in relevant part, that the information on page seven of the exhibit...