COMMENTARY: An eye on bottom line - Obtaining economic recovery in civil protection proceedings

By Agenique Smiley

Representing domestic violence victims is strenuous work that requires a great amount of patience, compassion, and attention to detail. 

It is well known that domestic violence has many rippling effects that not only impact the victim’s physical and emotional well-being, but also their financial well-being. 

In order to fully serve the needs and interests of clients who are also victims of domestic violence, attorneys must not only focus on their client’s physical safety, but also their long term financial stability.

Although greatly underutilized, Michigan’s Civil Protection Order Statute, MCL 600.2950, can be an effective tool when seeking economic relief for survivors of domestic violence.

When thinking of Civil Protection Orders, the survivor’s immediate physical safety is often the first thing that springs to mind. However, the true legislative intent behind most state Civil Protection Statutes, including Michigan’s, is to promote the victim’s long-term safety and stability. The bottom line is: a victim’s long term safety strictly depends on their ability to achieve economic security.

Although MCL 600.2950 lacks specific provisions setting forth guidelines under which a party seeking a Personal Protection Order (PPO) can obtain economic relief, Michigan practitioners should not avoid seeking such relief on behalf of their clients.  MCL 600.2950 (1) (j) prohibits “any other specific action or conduct that imposes upon or interferes with personal liberty or that causes reasonable apprehension of violence.” 

An abuser’s withholding of support or interference with a victim’s economic interests is definitely conduct that both imposes upon and interferes with their personal liberty because, without access to funds, the survivor will certainly be exposed to further (and, possibly, irreparable) harm.  Moreover, when MCL 600.2950 (1) (j) is coupled with MCR 3.703 (G), which provides that it is reasonable for a court to assume that “immediate and irreparable injury” could result to a petitioner if the respondent is given notice of petitioner’s intent to obtain a PPO and taken in light of the holding in Pickering v Pickering, which states that an ex-parte PPO is an “injunctive order,” a reasonable argument can be made, upon the showing that the respondent has a history of doing so, that if the court fails to also enjoin respondent from withholding financial support, petitioner will suffer irreparable and immediate harm.

Also, in Powell v Powell, the District of Columbia Court of Appeals held that the court had the authority to grant monetary relief in a Civil Protection Order Proceeding, even though such relief was not specifically provided for in the protection Order Statute.

In making its determination, the court looked to the legislative history of the domestic violence statute and concluded that it was to be read “expansively” and that, in light of that expansive reading and remedial purpose, the court held that the intent of the catch-all provision was to enable the courts to grand individualized solutions, tailored to meet the safety needs of each case.

The court’s holding enabled it to use the catch-all provision to award relief “appropriate to the effective resolution of the matter” and to ensure the long-term safety and independence of the petitioner.

When seeking economic relief in a petition for a Civil Protection Order, the movant has the burden of proving a clear nexus between the abuse and the economic relief sought. 

In order to be effective, the argument must be framed in an analysis of the abuser’s duty and breach; the causation between said breach and the victim’s injuries; and the damages suffered by the victim as a result of their injuries. The petitioner must, first, identify and prove that the abuser had a duty, be it a duty imposed by law to refrain from assault of another individual; the common law/ implied duty of care that one spouse owes to another; or a duty of support, born our of the parties’ actions or agreements made during the marriage.

Secondly, the petitioner must prove that the abuser breached said duty; either by way of the abuse or by their refusal to provide the petitioner with financial support, both during the marriage and now that they have fled the violent situation.

Causation can be a bit more difficult to prove because, here, the petitioner has the burden of producing evidence that their current financial situation and need naturally and directly flows from the abuse suffered at the hands of the respondent.

The difficulty in proving causation lies in the petitioner’s ability to produce evidence thereof. Because Civil Protection Order Hearings are generally held within seven days of the filing of the petition or the respondent’s filing of objections, the petitioner may not, in such a short time, be able to identify and produce evidence linking the abuse to their current financial need. 

In this situation, the petitioner has two options: (1) proceed with the hearing, asking the court to determine the abuser’s liability, leaving the determination of the amount of damages for a later date; or (2) prove the amount of damages via testimony. 

The problem with option two is, of course, the fact that determination of petitioner’s financial need will be left to the court and may not fully enable petitioner to plan for their long-term financial stability and safety. 

In order to avoid the problem presented by option two, petitioner should testify to prior economic harms suffered as a result of respondent’s abuse.

The petitioner must prove a connection between the economic damages currently sought and the past instances of violence. This correlation can be made by brining in proof of lost wages, past medical expenses, expenditures already made to ensure petitioner’s safety and even attorney’s fees. 

It would also be reasonable for petitioner to testify as to anticipated expenses.  Includable anticipated expenses would be any reasonable expenses incurred for the purpose of ensuring petitioner’s future safety such as rent or mortgage payments; transportation costs or car payments; the cost of child care for minor children; and, yes, attorney’s fees.

The point to be made when testifying as to anticipated expenses is that but for the respondent’s actions, petitioner would not incur said expenses. Finally, petitioner must prove that the expenditures already made and all anticipated expenses are a reasonable and foreseeable result of the abuser’s actions.

Although reasonability is determined by the individual facts of each case, advocates should encourage their clients to be realistic. When faced with the opportunity to forge new case law, a court is more prone to deny a request that is perceived as opportunistic.  Foreseeability can be much easier to prove because it would be an unreasonable miscarriage of justice for a court to expect a victim to remain in an abusive environment. Moreover, it is common for a victim of violence who has suffered injuries to seek medical attention.

In order to determine what forms of relief will fully serve a client’s needs and long term well-being, it is important for an advocate to ask questions that will provide a clear picture of the client’s entire situation.

Housing is an important factor in securing long-term safety and security; however, many victims of domestic violence find themselves facing eviction or foreclosure, housing discrimination, and homelessness. Based on this knowledge, it would be reasonable for a petitioner to ask for an award of exclusive use of the home coupled with an order requiring respondent to continue to make the monthly rent or mortgage payments or that the abuser pay for the petitioner to obtain other suitable housing. Unfortunately, one common result of domestic violence is unemployment of the victim caused either indirectly by the victim taking time off or directly by the abuser disrupting the victim’s workplace. No matter the cause, the result is the same and the victim is left being financially dependant on the abuser.

In this situation, the advocate should request spousal support, at least in the amount of the victim’s lost wages, regardless of whether or not the victim is receiving unemployment or other public benefits.  Other forms of relief include use and possession of the family vehicle; payment for the victim’s psychological treatment; the protection of personal property from damage or destruction; the exchange or release of personal property; or even the continued payment of the victim’s cellular phone bill.

MCL 600.2950 does not specifically allow for economic recovery; however, the catch-all provision found in MCL 600.2950 (1) (j) can reasonably be interpreted to allow such relief. The intent of catch-all provisions, including the one found in MCL 600.2950 (1) (j), is to give trial courts the authority to grant individualized solutions, tailored to meet safety needs of each petitioner.  Therefore advocates should use catch-all provisions creatively to obtain an economic recovery that will ultimately ensure the petitioner’s long-term safety; which, of course, is the bottom line.
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Agenique Smiley is a native Michigander and a graduate of Cooley Law School. Smiley is a solo practitioner and her firm, Write to Win PLLC, provides legal research and writing services to attorneys. She also is an adjunct professor at Henry Ford College where she teaches Legal Research and Writing.