Farr v. Searles

Farr v. Searles (2005-563); 180 Vt. 642; 910 A.2d 929

2006 VT 110

[Filed 01-Nov-2006]

                                 ENTRY ORDER

                                 2006 VT 110

                      SUPREME COURT DOCKET NO. 2005-563

                            SEPTEMBER TERM, 2006


  Dawn Farr (Glover)                   }         APPEALED FROM:
                                       }
      v.                               }
                                       }         Rutland Family Court
                                       }
  David Searles                        }
                                       }         DOCKET NO. 229-6-05 RdFa

                                                 Trial Judge: John Liccardi

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendant appeals from a relief-from-abuse order entered in
  the Rutland Family Court by Acting Judge John Liccardi, ordering defendant
  to refrain from abusing plaintiff Dawn Farr, a neighbor with whom defendant
  had been engaged in a long-standing dispute over parking.  Plaintiff
  claimed that defendant ran into her with his van, causing her to fall down.  
  Defendant argues on appeal that plaintiff failed to plead and prove that
  she was a vulnerable adult under the Abuse of Vulnerable Adults statute, 33
  V.S.A. §§ 6901-14, and the trial court failed to find the facts necessary
  to invoke such jurisdiction or make findings required to support a legal
  conclusion that abuse had occurred.  Defendant also contends that the
  acting judge had no authority to try the case without a knowing waiver of
  the right to a constitutional judge.  We vacate the order because we agree
  with defendant that the trial court failed to make any findings on whether
  plaintiff was a vulnerable adult within the meaning of the statute, and the
  evidence on this point was insufficient as a matter of law.  It is
  unnecessary, therefore,  to reach defendant's constitutional question.  

       ¶  2.  Plaintiff claimed that she was a "72 year old vulnerable
  adult as defined by Title 33.  She suffers from infirmities of aging: has
  two bad hips that need replacement and two bad knees.  [She] also suffers
  from congestive heart failure. [She] also lives alone."  The trial court
  stated in its decision that its "job is to determine under the appropriate
  statute whether or not it is more likely than not that abuse or
  exploitation of an elderly person has occurred." (Emphasis added.)  It then 
  concluded that abuse could be defined in numerous ways, that the plaintiff
  was injured by defendant, and that an order would issue. (FN1)
   
       ¶  3.  Although we do not require extensive findings for relief from
  abuse proceedings, the trial court erred when it made no factual findings
  on the evidentiary issues and no findings on the jurisdictional issue of
  whether plaintiff was a vulnerable adult.  Begins v. Begins, 168 Vt. 298,
  301, 721 A.2d 469, 471 (1998) (holding that family court's conclusions will
  not be set aside if supported by findings).  The trial court appears to
  have looked at the former statute, in which a plaintiff could claim the
  protection of the statute if she was "elderly" or over sixty years of age. 
  In 2002, the statute was amended to require that any person claiming
  protection under 33 V.S.A. §§ 6901-14, had to plead and prove that she was
  a "vulnerable adult."  Id. § 6904.

       ¶  4.  "Vulnerable adult" is defined in 33 V.S.A. § 6902(14) and
  numerous subsections.  The only subsection that has any applicability to
  this case is subsection (D)(ii).  Under that subsection, vulnerable adult
  means:

       [A]ny person 18 years of age or older who:

       . . .

       D) regardless of residence or whether any type of service is
    received, is impaired due to . . . infirmities of aging . . .

       [and] (ii) because of the . . . infirmity, the individual has an
    impaired ability to protect himself or herself from abuse,
    neglect, or exploitation.

  Id. § 6902(14)(D)(ii).

       ¶  5.  A mere listing of physical ailments, which many people
  suffer, was not sufficient to establish that plaintiff was unable to
  protect herself from abuse, neglect, or exploitation.  Plaintiff's
  testimony at the hearing was that she could no longer ride her bike, run,
  walk fast, or hike.  The trial court, even if it had chosen to make
  findings, could not have concluded from this evidence that plaintiff was
  unable to protect herself from abuse.  See Begins, 168 Vt. at 301, 721 A.2d 
  at 471 (requiring family court conclusions to be supported by findings
  which are supported by the evidence).  The evidence was to the contrary
  because the factual dispute was whether plaintiff refused to get out of the
  way of the van or whether defendant deliberately hit her.  There was no
  evidence to suggest that, even if the trial court accepted plaintiff's
  version of events, that she could not walk away from the altercation.

       ¶  6.  Therefore, we conclude there was no jurisdiction for an order
  against defendant under the Abuse of Vulnerable Adults statute.  The order
  is vacated and the case dismissed.  
          

                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Ernest W. Gibson III, Associate Justice
                                       (Ret.), Specially Assigned


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                                  Footnotes


FN1.  Defendant filed a motion for a new trial, which was heard by Judge
  David Howard, raising the same issues raised on appeal.  The motion was
  denied.  For the reasons stated in our opinion, the denial was an abuse of
  discretion.  Irving v. Agency of Transp., 172 Vt. 527, 528, 768 A.2d 1286,
  1289 (2001) (providing that review of a trial court's decision on motion
  for new trial is for abuse of discretion).