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Brown v. Rudy

Court of Appeals of Michigan

March 27, 2018

KAY WINDRAM BROWN, Petitioner-Appellee,
MICHAEL RUDY, Respondent-Appellant.

          APPROVED FOR PUBLICATION May 15, 2018

          Washtenaw Circuit Court LC No. 16-001730-PP

          Before: Cavanagh, P.J., and Hoekstra and Beckering, JJ.

          CAVANAGH, P.J.

         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 ...

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