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BROWN v. RUDY
Opinion of the Court
Respondent appeals as of right an order denying his motion to terminate the personal protection order (PPO) that was obtained ex parte against him by petitioner, acting through her conservator and limited guardian, Joelle Gurnoe. We reverse and remand for entry of an order granting the motion and for further proceedings consistent with this opinion.
On July 13, 2016, Gurnoe filed a petition for an ex parte domestic relationship PPO on behalf of petitioner as her limited guardian 1 and conservator. Gurnoe asserted that petitioner needed a PPO because she was a vulnerable adult with Alzheimer's and respondent had “exerted control over her and exploited her.” Gurnoe alleged that respondent had been asked to stop, and he did for a while, but then he reinserted himself into petitioner's daily life and had changed passwords on petitioner's online accounts. Gurnoe requested that the PPO prohibit respondent from entering onto petitioner's property, stalking petitioner, and accessing petitioner's online accounts.
The petition for a PPO was supported by Gurnoe's affidavit, which stated, in part, that the order appointing her as petitioner's limited guardian provided for powers that included protecting petitioner “from exploitation and manipulation from others,” including Kathleen Baxter and respondent. Further, Gurnoe averred, respondent “has a history of predatory behavior in his relationship with” petitioner. And respondent was not complying with the directive to cease all contact with petitioner, as evidenced by telephone records and notes found in petitioner's home that petitioner had written referring to respondent. Gurnoe again alleged that respondent had accessed petitioner's online accounts and changed passwords.
The petition for a PPO was also supported by the affidavit of petitioner's son, Soren Windram. His affidavit stated that he was able to monitor petitioner's physical location through an app on her cell phone; the app indicated that she spent on average one to two nights a week at respondent's home. Soren also averred that he had a video chat with petitioner on one occasion in March 2015 while she was at respondent's home and petitioner was drinking a glass of wine and appeared intoxicated although she was an infrequent drinker. The next morning, Soren averred, petitioner broke into tears and said she thought she had sex with respondent and “she felt disgusted and embarrassed.” Soren further stated that respondent had exploited petitioner's disease to alienate her from her family and, specifically, him by telling petitioner that Soren is not a good son, that he does not listen to her, and that he is trying to control her. Accordingly, Soren was in favor of the petition for a PPO against respondent.
On July 14, 2016, the ex parte domestic relationship PPO was issued and remained in effect until July 14, 2021.
On July 25, 2016, respondent filed a motion to terminate the PPO on the ground that false, erroneous, and distorted statements had been made against him, including that he is a predator and that he accessed petitioner's online accounts and changed passwords. Respondent alleged that the petition falsely presumed that petitioner was “so vulnerable as to not have the ability to exercise responsible agency and free will.” And respondent referred to threats made against him by Soren and Gurnoe. Thereafter, the court conducted an evidentiary hearing on respondent's motion to terminate the PPO.
According to the testimony from a three-day evidentiary hearing, respondent and petitioner had met in the 1980s and then were reintroduced to each other by a mutual friend, Kathleen Baxter, in late 2014. At that time, petitioner was planning on going to North Carolina to visit her son, Soren, and respondent also was planning a trip to North Carolina, so they decided to travel there together. A friendship developed, which eventually became a romantic and sexual relationship. Petitioner had significant issues with her short-term memory but was functioning well enough to drive a vehicle and live alone. Respondent is a licensed certified social worker, certified financial planner, and a registered investment advisor. At some point, respondent had become aware that petitioner had substantial assets in a trust and offered his professional financial services, but the offer was rejected by Soren. Respondent never brought the matter up again and had nothing to do with petitioner's finances. There was no evidence that respondent ever received any substantial amount of money or significant gifts from petitioner. During the course of their relationship they spoke on the telephone, took dance lessons, went out to dinner, and took petitioner's dog for walks around the lake. Respondent also introduced petitioner to yoga—and they took classes together—as well as massage therapy; these services were offered by two people that respondent had known for years.
At some point, Soren became concerned about his mother. Petitioner did not come to North Carolina to visit him and his family, and he believed it was because of the company that his mother was keeping. In other words, respondent as well as Baxter and others in petitioner's life were alienating her from him and his family. Soren testified that respondent made disparaging comments about him to petitioner and that those comments were destructive to Soren's relationship with petitioner. He also claimed that pictures he brought to petitioner's house would disappear. Soren testified that petitioner never told him that she felt intimated, threatened, or terrorized by respondent, but Soren felt that her relationship with respondent was emotionally damaging to petitioner. Soren also testified that petitioner began making suicidal statements related to these proceedings against respondent.
Gurnoe also testified that she heard petitioner say multiple times that if respondent were removed from her life, she would have nothing to live for and would kill herself. Gurnoe believed there was a concerted effort to alienate petitioner from Soren and his family who live in North Carolina. In fact, when Soren is discussed by petitioner and her friends, it is all about what Soren is doing behind petitioner's back and petitioner becomes very upset and angry. They have also made disparaging remarks about Gurnoe. And Gurnoe noticed that the passwords on petitioner's Verizon and Comcast accounts were changed, but Gurnoe admitted that she had no evidence that respondent was the person responsible.2
Gurnoe further testified that she had sent respondent a letter in January 2016, about six weeks after she became petitioner's limited guardian, and told him not to have any further contact with petitioner. Respondent did appear to abide by her request, including that no telephone calls were made for a period of time. However, eventually respondent resumed contact with petitioner, so the PPO was obtained. Gurnoe admitted that petitioner “gets violently angry when you talk about [the fact that] he's not allowed to have contact.” However, Gurnoe testified, petitioner “doesn't have the option of choosing to be around people that manipulate her. That right has been taken away from her.”
Respondent testified that he has never manipulated petitioner, that he never changed the passwords on any of petitioner's accounts, and that he never directed anyone to change her passwords. Respondent testified that he was in a consensual relationship, including a sexual relationship, with petitioner because she is “beautiful,” “wonderful,” and “a really, really fine companion.” There was no question that petitioner needed support to function in life. Respondent did not believe that he was stalking petitioner. In fact, telephone records showed that petitioner called him too. He did not harass, threaten, or intimidate petitioner, nor was he benefiting in any way financially from their relationship. In fact, he would be willing to sign a document relinquishing any right to any property or finances of petitioner. He had not influenced her in any negative way and never prevented her from going to North Carolina or from having a good relationship with her family. He simply wanted to be a part of petitioner's life and felt that he could be very helpful to her life and well-being.
Kathleen Baxter testified that respondent was indeed an important part of petitioner's life and that he was an honorable, not a manipulative, man. Baxter had known petitioner for over 40 years, and they called each other “sisters.” Petitioner confided in Baxter that respondent is kind to her, gives her good information, and never tells her what to do. Petitioner wanted respondent in her life, and when she learned about the PPO, petitioner was very irate and tore it up when she saw it. Respondent simply wanted petitioner to have a voice, to be heard, and to be part of the decisions that keep her safe and happy. Despite her short-term memory issues, petitioner had never forgotten about respondent during these proceedings and still talked about him daily.
Petitioner testified that she never asked for a PPO to be taken out against respondent. “He's a wonderful human being, and I like to be able to talk with him, see him.” She said she has fun with him. She characterized him as an “A plus” person. He had never caused her to feel frightened, intimidated, threatened, or in emotional distress. In fact, when she is with him she feels “happy, really happy. And enjoying whatever we're doing.” When petitioner was asked if she told Gurnoe to keep him away, petitioner testified, “Absolutely I didn't—wouldn't want that to occur.” If Gurnoe did that “I'd kick her out of the house and not ever use her as a person at all for—that would be terrible.” Petitioner testified that she would be furious. Later, at the resumed evidentiary hearing, petitioner was again asked if she wanted a PPO against respondent, and she replied: “Heck no. Because he is not—he is not at all mean; he is quite wonderful. It would do me a lot of good to have him more hours doing things with me. He's a gentleman. He's a kind heart. ․ [H]e's an A plus ․ He's great. Best man I've ever met.” As for Soren's claim that she was emotionally distraught after contact with respondent, petitioner testified that she thinks Soren made that up. She did not know why he would, but she would not put it past him.
After the testimony of Soren, Gurnoe, and respondent was received at the evidentiary hearing, respondent moved for a directed verdict, arguing that the statutory grounds required to issue a PPO were not proved by the evidence. Without providing any reasoning at all, the court denied the motion. Following all the testimony, the court held that a guardian was in place to protect petitioner and that the PPO would not be terminated. The basis for the court's ruling was that respondent continued to have contact with petitioner after he had been instructed by Gurnoe not to have contact. Therefore, on October 14, 2016, an order denying the motion to terminate the PPO was entered. Respondent moved for reconsideration, which was denied. This appeal followed.
Respondent first argues that Gurnoe exceeded the scope of her authority as petitioner's limited guardian by seeking a PPO against respondent, who was petitioner's boyfriend, when there was no evidence of manipulation or exploitation.
Issues involving the interpretation of statutes and court rules are reviewed de novo. Hill v. L F Transp., Inc., 277 Mich. App. 500, 507, 746 N.W.2d 118 (2008).
It is undisputed that Gurnoe was appointed petitioner's conservator and limited guardian. The order appointing Gurnoe as petitioner's limited guardian provided for powers that included protecting petitioner from the exploitation and manipulation of others, including respondent. Respondent argues that Gurnoe exceeded her authority as limited guardian because she was appointed under MCL 700.5306 “as a means of providing continuing care and supervision ․” And, respondent argues, filing for a PPO against petitioner's boyfriend does not comport with those limited duties.
To the extent that respondent is challenging whether Gurnoe was properly performing or was breaching her duties as petitioner's limited guardian by seeking a PPO against respondent, respondent has failed to set forth any legal authority establishing his right to raise that challenge in this PPO action. And we could find no such authority. While respondent may challenge whether in fact the PPO should have been issued against him on the ground that the requirements for issuance under MCL 600.2950 were not established, a claim that Gurnoe breached her duties as petitioner's limited guardian by doing so may not be raised by him in this PPO action.
Further, to the extent that respondent is arguing that a personal protection action may not be filed on behalf of an incapacitated person, we reject that claim. MCR 3.703 provides the rules for commencing a personal protection action, and MCR 3.703(F)(1) states, “If the petitioner is a minor or a legally incapacitated individual, the petitioner shall proceed through a next friend.” A “next friend” represents a petitioner under supervision of the trial court; however, when a conservator has already been appointed by the probate court, the conservator may bring such an action on behalf of the incapacitated person. MCL 2.201(E)(1)(a) and (b); see also In re Powell Estate, 160 Mich. App. 704, 713, 408 N.W.2d 525 (1987). Accordingly, Gurnoe was permitted to commence a personal protection action on behalf of petitioner as her conservator.
Next, respondent argues that the circuit court erred when it denied his motion for a directed verdict at the close of petitioner's proofs at the evidentiary hearing or, in the alternative, when it denied his motion to terminate the PPO. We agree.
A PPO constitutes injunctive relief. MCL 600.2950(31)(d). We review decisions to grant or deny injunctive relief, including the decision to deny a respondent's motion to terminate a PPO, for an abuse of discretion. Hayford v. Hayford, 279 Mich. App. 324, 325, 760 N.W.2d 503 (2008). An abuse of discretion occurs when the court's decision falls outside the range of principled outcomes. Id. The circuit court's factual findings underlying its decision are reviewed for clear error, and issues of statutory interpretation are reviewed de novo. Id. A circuit court's decision to deny a motion for a directed verdict is reviewed de novo to determine whether, after the close of the petitioner's proofs, the petitioner had shown a right to relief. Samuel D Begola Servs., Inc. v. Wild Bros., 210 Mich. App. 636, 639, 534 N.W.2d 217 (1995).
A domestic relationship PPO is issued under MCL 600.2950(1), which provides, in pertinent part:
Except as provided in [MCL 600.2950(27) and (28) ], by commencing an independent action to obtain relief under this section ․ an individual may petition the family division of circuit court to enter a personal protection order to restrain or enjoin ․ an individual with whom he or she has or has had a dating relationship ․ from doing 1 or more of the following:
(a) Entering onto premises.
(b) Assaulting, attacking, beating, molesting, or wounding a named individual.
(c) Threatening to kill or physically injure a named individual.
(d) Removing minor children ․
(e) Purchasing or possessing a firearm.
(f) Interfering with petitioner's efforts to remove petitioner's children or personal property from premises ․
(g) Interfering with petitioner at petitioner's place of employment ․
(h) Having access to information in records concerning a minor child ․
(i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h [stalking] and 750.411i [aggravated stalking].
(j) Any of the following ․ with respect to an animal in which petitioner has an ownership interest ․
(k) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.
Under MCL 600.2950(4), a PPO must be issued “if the court 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 burden of establishing reasonable cause to issue a PPO is on the petitioner, who also bears the burden of justifying its continuance at a hearing on a motion to terminate the PPO. Hayford, 279 Mich. App. at 326, 760 N.W.2d 503.
In this case, Gurnoe's petition for an ex parte PPO filed on behalf of petitioner and against respondent stated that a PPO was needed because:
Ms. Windram Brown is a vulnerable adult with Alzheimer's. Mr. Rudy has exerted control over her and exploited her. He has been asked to stop, and did for a while. Now he has changed the passwords on her accounts and has reinserted himself into her daily life. Petitioner is both Co-Guardian and Conservator for Ms. Windram Brown.
As permitted under MCL 600.2950(4)(a), the petition was also supported by the affidavits of Gurnoe and Soren, which were discussed earlier. However, it is unclear what specific violent, threatening, or harassing prohibited act identified in MCL 600.2950(1) Gurnoe claimed respondent committed or may commit against petitioner warranted the issuance of a PPO. See, e.g., Kampf v. Kampf, 237 Mich. App. 377, 385, 603 N.W.2d 295 (1999). Likewise, it is not clear what imminent danger warranted the issuance of an ex parte PPO. See MCL 600.2950(12).
According to Gurnoe and Soren, respondent “exerted control over” petitioner, exploited and manipulated her, had a sexual relationship with her, and had “a history of predatory behavior in his relationship” with her. But not one of these acts is listed in Subsection (1). See MCL 600.2950(4). To the extent that the purported “predatory behavior” can be construed to mean the prohibited conduct of “stalking,” i.e., “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested,” MCL 750.411h(1)(d), no such harassment was identified in either the petition or supporting documents seeking the PPO. Furthermore, Gurnoe was only appointed as petitioner's “limited guardian,” which means that petitioner was found to have some capacity to take care of herself. See MCL 700.5306(3). And Gurnoe was appointed as petitioner's conservator to protect petitioner's finances. MCL 700.5319(1). Nevertheless, the circuit court concluded that there was reasonable cause to believe that respondent committed or would commit one of the violent, threatening, or harassing prohibited acts listed in Subsection (1) and issued the ex parte PPO. See MCL 600.2950(4) and (12); Kampf, 237 Mich. App. at 385, 603 N.W.2d 295.
After respondent moved to terminate the PPO, a three-day evidentiary hearing was conducted. During the course of that hearing, the evidence clearly demonstrated that petitioner's son Soren attributed petitioner's failure to visit or move to North Carolina to the influence, i.e., “manipulation,” of her “circle of friends,” which included petitioner's best friend of over 40 years, Baxter, as well as petitioner's boyfriend, respondent. That petitioner had her own life and her own friends that she enjoyed in Michigan apparently could not have been a reason petitioner chose not to move from her home to North Carolina. Despite the fact that petitioner threatened suicide if she could not continue in her relationship with respondent, Soren was not persuaded; apparently, he believed petitioner's feelings were the product of some “undue influence” by respondent. It was also clear from Soren's testimony that the sexual relationship petitioner had with respondent was repulsive to him and, he testified, to petitioner. After Soren's testimony, however, petitioner accused Soren of lying in an outburst in the courtroom. And when petitioner testified, she was not queried about her sexual relationship with respondent. But when asked if she was emotionally distraught after having had contact with respondent, petitioner testified that Soren made that up and that she would not put it past him to do so. Further, no evidence was presented that petitioner's intimate relations were not consensual. In any case, Soren's testimony did not give rise to reasonable cause to continue the PPO against respondent.
The testimony offered by Gurnoe also did not give rise to reasonable cause to continue the PPO against respondent. Again, petitioner was adjudicated to have some capacity to take care of herself, so Gurnoe was appointed only as a limited guardian. Pursuant to MCL 700.5314, as petitioner's guardian, Gurnoe had the duty to consult with petitioner before making a major decision affecting petitioner. It would seem that seeking a PPO against petitioner's boyfriend—whom petitioner clearly and adamantly cared about—would be such a “major decision.” That is, Gurnoe admitted that petitioner threatened multiple times to kill herself if respondent was removed from her life. And Gurnoe testified that petitioner “gets violently angry when you talk about [the fact that] he's not allowed to have contact.” Apparently, as with Soren, Gurnoe ignored petitioner's sentiments and attributed them to some “undue influence” by respondent rather than petitioner's true feelings for him.
Likewise, Gurnoe considered all of petitioner's “circle of friends” to be threats to petitioner's well-being, including Baxter—who was like a sister to petitioner and had been for over 40 years—petitioner's yoga instructor, petitioner's massage therapist, and respondent. The apparent “threats” to which Gurnoe refers include attempts to alienate petitioner from Soren and his family, the fact that disparaging remarks were made about Gurnoe and were overheard by Gurnoe, and that the passwords on two of petitioner's online accounts were changed—although Gurnoe admitted that she had no idea who changed the passwords despite accusing respondent of doing so in the petition for the PPO. With regard to respondent specifically, Gurnoe's concern was that “he does not recognize [petitioner's] limitations or have a realistic view of what her future will be or what her future costs of care will be.” According to Gurnoe, petitioner has a home in North Carolina, her burial plot is there, and her family is there; therefore, that is where petitioner belongs. The fact that petitioner's “circle of friends” do not promote that objective is apparently considered threatening, manipulative, or exploitive to Gurnoe. In her attempt to achieve the objective of petitioner moving to North Carolina where she “should be,” Gurnoe has taken concerted—and legal—actions to remove all of petitioner's friends and support system from petitioner's life, in effect isolating her, so that petitioner would have no reason not to move to North Carolina.
In any case, Gurnoe's testimony did not support her claims that respondent “exerted control over” petitioner, exploited her, or manipulated her. And there was no “predatory behavior.” While Gurnoe testified about telephone calls respondent made to petitioner, there were also numerous telephone calls petitioner made to respondent. In other words, they mutually sought to speak to each other on the telephone, as friends generally do. Gurnoe's testimony certainly did not give rise to reasonable cause to believe that respondent committed or would commit any of the violent, threatening, or harassing prohibited acts listed in MCL 600.2950(1).
Respondent testified after Gurnoe and then moved for a directed verdict. The circuit court denied the motion without explanation. We conclude that the decision to deny respondent's motion for a directed verdict was erroneous. Petitioner, acting through her limited guardian and conservator, Gurnoe, bore the burden of demonstrating that respondent committed or would commit one or more of the violent, threatening, or harassing prohibited acts listed in MCL 600.2950(1) and wholly failed in that effort. Even if exerting control over, exploiting, and manipulating were considered prohibited acts under Subsection (1), which they are not, the evidence did not establish that respondent engaged in these behaviors. Accordingly, for all the reasons discussed in this opinion, the circuit court erred by denying respondent's motion for a directed verdict because not one of the statutory grounds required to issue a PPO was proved by petitioner's evidence.
Further, the testimony received by the circuit court after it denied respondent's motion for a directed verdict should have given the court even more reason to terminate the PPO. Petitioner's friend of 40 years, Baxter, whom petitioner considered a sister, testified that petitioner had told her repeatedly that respondent is important to her and that she wanted him in her life. Baxter further testified that despite petitioner's short-term memory issues, she has never forgotten about respondent even though they had not been allowed to see each other since the PPO was issued. In fact, petitioner still talked about respondent on a daily basis. The testimony from petitioner herself confirmed that she remembered respondent, sincerely cared about respondent, and held him in the highest regard. Petitioner clearly testified that she wanted to be able to see respondent, talk to respondent, and spend time with respondent. She expressed absolutely no fear or apprehension of any kind with regard to respondent and, in fact, characterized him in the most glowing of terms.
Nevertheless, the circuit court denied respondent's motion to terminate the PPO, holding that the PPO was warranted because respondent defied Gurnoe's instruction not to have contact with petitioner. The circuit court's decision constituted an abuse of discretion. See Hayford, 279 Mich.App. at 325, 760 N.W.2d 503. MCL 600.2950(1) sets forth very specific violent, threatening, and harassing behaviors that warrant the issuance of a PPO. A PPO is not to be sought or issued on a whim or because someone simply does not like someone else and makes reckless statements to support a fiction. And in this case, it was clear that the PPO was sought as a means to control petitioner moreso than to control respondent. In any case, defiance of the instruction of a limited guardian is not a statutory ground to issue a PPO under MCL 600.2950(1). And the evidence wholly failed to establish reasonable cause to believe that respondent committed or would commit any conduct prohibited under MCL 600.2950(1) that would warrant the issuance of a PPO. See MCL 600.2950(4). In light of our resolution of this matter, we need not consider respondent's other argument on appeal. Furthermore, because of the manner in which Gurnoe handled this matter, as well as the antagonistic relationship between Gurnoe and petitioner, we direct the circuit court to consider the removal of Gurnoe as petitioner's guardian. See MCR 7.216(A)(7).
Reversed and remanded for entry of an order granting respondent's motion to terminate the PPO and for further proceedings consistent with this opinion. We do not retain jurisdiction. Respondent is entitled to tax costs as the prevailing party. See MCR 7.219(A).
One of our most treasured rights as adults is the freedom of association: the ability to spend time with whatever group or person we desire. But what happens when we are no longer cognitively able to discern for ourselves who is a friend and who is a foe, even though both may be sweet and endearing? This case is about the propriety of a personal protection order (PPO) issued against respondent, Michael Rudy, to protect petitioner, Kay Windram Brown, from her own vulnerability to manipulation and exploitation due to Alzheimer's disease. At issue is whether the trial court erred by continuing the PPO after hearing three days of testimony from a host of witnesses, including Brown, Rudy, and Brown's coguardian and conservator, Joelle Gurnoe.
In response to the issues Rudy has raised on appeal, the majority concludes that the trial court correctly held that Gurnoe had the requisite legal authority to petition for a PPO on behalf of Brown. On that point I agree. But the majority sides with Rudy on his argument that the trial court should have granted his motion to discontinue the PPO. While I agree that the trial court erred by issuing its October 14, 2016 order, I do so only because the trial court failed to make findings of fact necessary to determine whether Gurnoe, on behalf of Brown, had met her burden of proof in establishing a right to continue the PPO pursuant to MCL 600.2950. A remand is necessary for the trial court to make those factual findings. For this Court to rule in favor of either party on the ultimate question of whether the trial court should have continued the PPO would require wading into witness credibility and fact-finding, neither of which is the proper function of this Court. I dissent from the majority opinion because I would vacate the trial court's order and remand for further proceedings.
I. BASIC FACTS AND PROCEDURAL HISTORY
Kay Brown was 75 years old at the time of the PPO evidentiary hearing. She is a wealthy widow who, while bright and vivacious throughout her lifetime, is suffering from the progressive effects of Alzheimer's disease and has been exploited in the past by others. Michael Rudy was 71 years old at the time of the PPO evidentiary hearing. He holds himself out to be a financial planner, psychotherapist, and psychoanalyst. Rudy and Brown met at some point in the 1980s, but they did not have any significant contact or relationship until they became reacquainted in the fall of 2014 through a woman named Kathleen Baxter. When Rudy gave Brown a ride to North Carolina so that he could attend a conference and she could visit her grandchildren, Rudy discovered documents Brown had brought with her revealing her financial worth. After making several unsuccessful attempts to become her financial advisor, Rudy engaged in a dating relationship with Brown.
Before the instant proceedings commenced, Brown had been made a ward, subject to a limited guardianship, as the result of a December 4, 2015 order in which the trial court found that she was an incapacitated individual. The trial court appointed “Christopher D. Brown and/or Joelle Gurnoe” as limited coguardians for Brown.1 The order provided that the coguardians would only have the following powers: “[l]iving environment,” “medical care,” and to protect Brown “from exploitation and manipulation from others, which includes access of Kathleen Baxter or Michael Rudy” to Brown. On February 1, 2016, the trial court also appointed Gurnoe as Brown's conservator.
Aware that Rudy was spending time with Brown and that he had made several attempts to insinuate himself into her financial affairs—pitching his consulting services to Brown's son, Brown's lawyer, and then to Brown herself when the others had rebuffed his offers to work on Brown's estate monies—Gurnoe arranged a meeting with Rudy in order to assess the situation.2 Following that meeting, Gurnoe sent a letter to Rudy on January 21, 2016. She informed him that she and Christopher had worked closely together to gain a deeper understanding of Brown's “needs and supports, and to make decisions with her safety being a top priority.” Gurnoe continued, “At this time, we respectfully request that you cease all contact with Kay ․” The letter further stated: “We are hopeful that you will respect our wishes as Kay's Guardians. However, if you are unable to seamlessly remove yourself from Kay's life, we will avail ourselves of all legal remedies, including pursuit of a personal protection order or restraining order.” Rudy responded with a letter of his own on February 2, 2016, in which he indicated that “[a]s an act of civil disobedience—I may choose to not comply with your edict and have my case finally heard before a real judge.”
On July 13, 2016, Gurnoe, acting as Brown's next friend, filed a petition for a PPO. The petition contended that Rudy and Brown “have or had a dating relationship” and that a PPO was needed because “Ms. Windram Brown is a vulnerable adult with Alzheimer's. Mr. Rudy has exerted control over her and exploited her. He has been asked to stop, and did for a while. Now he has changed the passwords on her accounts and has reinserted himself into her daily life.” Gurnoe asked the court for a PPO prohibiting Rudy from entering onto the property where Brown lives, stalking her as defined under MCL 750.411h and MCL 750.411i, and accessing Brown's personal accounts online. She requested an ex parte order and accompanied her petition with two affidavits in support, her own and one written by Brown's son Soren Windram. The trial court issued an ex parte PPO on July 14, 2016. On July 25, 2016, Rudy moved to terminate the PPO. He contended that the allegations made against him were “[f]alse, erroneous and distorted.”
At an evidentiary hearing that spanned three days, the trial court took testimony from Gurnoe, Windram, Rudy, Baxter, Brown, Milagros Paredes (telephonically), Fiona Gray (telephonically), and Michele Pingel.3 At the conclusion of the evidentiary hearing, the trial court noted that it had put a professional guardianship in place to protect Brown because she “could not be kept safe by any other options.” The court noted that it was a highly contentious guardianship and that Gurnoe “has not [sic] dog in this fight when she comes in, and she has a background in social work as well.” The trial court noted, and it was undisputed, that Rudy continued to have contact with Brown despite Gurnoe's instructions in January 2016 to stop doing so. The court acknowledged Brown's testimony that she wanted to have contact with Rudy, but the court also noted that Gurnoe had been appointed to protect Brown. Without making any findings of fact on the record, the trial court concluded: “I am not going to terminate the personal protection order. The personal protection order is going to remain in place.”
At the heart of this case is whether the trial court erred by continuing the PPO, which was entered pursuant to MCL 600.2950. MCL 600.2950(1) provides, in pertinent part:
Except as provided in [MCL 600.2950(27) and (28) ], by commencing an independent action to obtain relief under this section, by joining a claim to an action, or by filing a motion in an action in which the petitioner and the individual to be restrained or enjoined are parties, an individual may petition the family division of circuit court to enter a personal protection order to restrain or enjoin a spouse, a former spouse, an individual with whom he or she has had a child in common, an individual with whom he or she has or has had a dating relationship, or an individual residing or having resided in the same household as the petitioner from doing 1 or more of the following:
(a) Entering onto premises.
* * *
(i) Engaging in conduct that is prohibited under section 411h or 411i of the Michigan penal code, 1931 PA 328, MCL 750.411h and 750.411i.
* * *
(k) Any other specific act or conduct that imposes upon or interferes with personal liberty or that causes a reasonable apprehension of violence.
Pursuant to MCL 600.2950(4), the trial court must issue a PPO “if the court 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 petitioner bears the burden of establishing reasonable cause for issuance of a PPO and of establishing a justification for the continuance of a PPO at a hearing on the respondent's motion to terminate the PPO.” Hayford v. Hayford, 279 Mich. App. 324, 326, 760 N.W.2d 503 (2008) (citations omitted). “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).’ ” Pickering v. Pickering, 253 Mich. App. 694, 701, 659 N.W.2d 649 (2002) (alterations in original), quoting MCL 600.2950(4)(a) and (b).
Although the PPO petition sought to enjoin conduct falling under Subdivisions (a), (i), and (k) of MCL 600.2950(1), it appears that the trial court only relied on Subdivision (i) in continuing the PPO following the evidentiary hearing. Furthermore, the parties’ arguments on appeal are only directed at this subdivision. MCL 750.411h(2)5 makes it a crime to engage in “stalking.” MCL 750.411h(1) provides the following pertinent definitions:
(a) “Course of conduct” means a pattern of conduct composed of a series of 2 or more separate noncontinuous acts evidencing a continuity of purpose.
(b) “Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling.
(c) “Harassment” means conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable individual to suffer emotional distress and that actually causes the victim to suffer emotional distress. Harassment does not include constitutionally protected activity or conduct that serves a legitimate purpose.
(d) “Stalking” means a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
(e) “Unconsented contact” means any contact with another individual that is initiated or continued without that individual's consent or in disregard of that individual's expressed desire that the contact be avoided or discontinued. Unconsented contact includes, but is not limited to, any of the following:
(i) Following or appearing within the sight of that individual.
(ii) Approaching or confronting that individual in a public place or on private property.
(iii) Appearing at that individual's workplace or residence.
(iv) Entering onto or remaining on property owned, leased, or occupied by that individual.
(v) Contacting that individual by telephone.
(vi) Sending mail or electronic communications to that individual.
(vii) Placing an object on, or delivering an object to, property owned, leased, or occupied by that individual.
(f) “Victim” means an individual who is the target of a willful course of conduct involving repeated or continuing harassment.
Additionally, MCL 750.411h(4) provides:
In a prosecution for a violation of this section, evidence that the defendant continued to engage in a course of conduct involving repeated unconsented contact with the victim after having been requested by the victim to discontinue the same or a different form of unconsented contact, and to refrain from any further unconsented contact with the victim, gives rise to a rebuttable presumption that the continuation of the course of conduct caused the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.
This Court has stated in the context of supporting a PPO based on harassment or stalking that “[t]here must be evidence of two or more acts of unconsented contact that caused the victim to suffer emotional distress and that would cause a reasonable person to suffer emotional distress.” Hayford, 279 Mich. App. at 330, 760 N.W.2d 503.
In this case, as Brown's limited guardian, Gurnoe had express legal authority to control Rudy's access to Brown for the purpose of protecting Brown.6 It is undisputed that Gurnoe met with Rudy to evaluate his intentions and then instructed him by letter of January 21, 2016, to “cease all contact” with Brown; Gurnoe warned him that failure to comply with her instructions would result in the pursuit of a PPO. It is also undisputed that Rudy engaged in multiple acts of continuing contact with Brown after receiving Gurnoe's letter, and thus, Rudy's repeated interactions with Brown legally amounted to unconsented contacts. However, the trial court made no findings of fact as to whether Rudy's unconsented contact caused Brown to suffer emotional distress and would cause a reasonable person to suffer emotional distress. See id. Those findings would lead to a rebuttable presumption that the continuation of Rudy's course of conduct caused Brown to feel terrorized, frightened, intimidated, threatened, harassed, or molested. MCL 750.411h(4).
As an alternative approach, the trial court could have but did not address whether Rudy's unconsented conduct made Brown “feel terrorized, frightened, intimidated, threatened, harassed, or molested.” See MCL 750.411h(1)(d). Because of Brown's Alzheimer's disease, the operative factual question here is likely whether Rudy's conduct in maintaining a dating relationship with Brown amounted to molestation in light of her capacity to consent. Rudy testified that he engaged in sexual relations with Brown, and the majority appears to accept without question Rudy's self-characterization as Brown's “boyfriend.” However, Gurnoe testified that Brown was “[a]bsolutely not” capable of consenting to sexual intercourse because of the advanced stage of her Alzheimer's disease. Windram testified that Brown told him she felt disgusted after spending the night at Rudy's house and that she began making suicidal comments after Rudy began having sex with her. Gurnoe and Windram testified regarding Brown's emotional outbursts and anxiety associated with Rudy and the actions designed to protect her from him. However, the trial court made no factual findings regarding Brown's capacity to consent to sexual relations and whether Rudy's contacts caused her to feel molested or harassed, or whether she felt harassed by her coguardians’ efforts to protect her—efforts that she perceived as stymieing her personal desires. I appreciate the majority's observation that Gurnoe's appointment as a limited guardian implied that Brown retained some capacity to take care of herself, and I support the notion that Brown and other similarly situated adults should be able to exercise their freedom of association to the extent of their capacities. However, whether Brown has the capacity to consent to the type of relationship Rudy claims they share—and all that this type of relationship implies for the safety and security of a vulnerable adult—involves credibility determinations that the trial court skirted, but did not make, and that this Court should not make. The credibility of the witnesses and the reliability of their testimony are crucial in this case. We are not a fact-finding court, see Bloomfield Twp. v. Kane, 302 Mich. App. 170, 185 n. 10, 839 N.W.2d 505 (2013), and it is not our place to step into the shoes of the trial court on that front. I would vacate the trial court's order and remand for further proceedings to enable the trial court to make findings of fact on the basis of the testimony presented at the evidentiary hearing and to determine whether the facts support petitioner's entitlement to continuation of the PPO.
1. The order appointing a guardian dated December 4, 2015, provided that petitioner was only partially without the capacity to care for herself; therefore, only a limited guardianship was ordered.
2. In fact, petitioner's massage therapist testified that she was there when petitioner was assisted by Verizon in changing her account password. Further, a person who was paid to help petitioner with daily financial matters testified that she had changed the Comcast account password.
1. According to testimony in the record, Christopher is Brown's stepson. Gurnoe is an attorney with professional experience as a guardian and who previously worked as a social worker for senior citizens. She has a law degree from Wayne State University and a bachelor's degree in psychology and sociology from the University of Michigan.
2. At the PPO continuation evidentiary hearing, Gurnoe testified that Rudy showed up at the meeting in a three-piece suit and an “Abe Lincoln” top hat. He brought a stack of materials that he wanted to share with Gurnoe on how she could better understand the dementia process for Brown and how she could learn to work better with her. He also provided Gurnoe with a CD lecture regarding “existential existence.”
3. The trial court heard testimony indicating that either Baxter or Rudy arranged for Gray to provide Brown with personal financial assistance and that Paredes and Pingel—Rudy's massage therapist and yoga instructor, respectively—also provide services to Brown.
4. Subsections (27) and (28) are inapplicable to the circumstances in this case.
5. MCL 750.411i, which defines the crime of aggravated stalking, is not implicated in this case because there is no evidence or argument advanced that there exists any of the additional circumstances listed in MCL 750.411i(2) that are necessary for stalking conduct to constitute aggravated stalking.
6. Because Gurnoe had been granted these powers as limited guardian, Gurnoe was “responsible for the ward's care, custody, and control” with respect to Brown's access to Rudy. MCL 700.5314 (emphasis added). Gurnoe had a duty to act in Brown's best interests to prevent her from being exploited or manipulated. See In re Redd Guardianship, 321 Mich. App. 398, 406-407, 909 N.W.2d 289 (2017); MCL 330.1602(1).
Hoekstra, J., concurred with Cavanagh, P.J.
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Docket No: Docket No. 335923
Decided: March 27, 2018
Court: Court of Appeals of Michigan.
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