            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS


KIM ANTHONY BURGESS, a legally incapacitated                         UNPUBLISHED
individual, by his conservator and guardian, SCOTT                   March 24, 2020
BURGESS,

               Plaintiff-Appellant,

v                                                                    No. 348068
                                                                     Bay Circuit Court
LINDA LOU BURGESS,                                                   LC No. 17-003022-DO
also known as LINDA LOU WILLIS,

               Defendant-Appellee.


Before: CAMERON, P.J., and SHAPIRO and LETICA, JJ.

PER CURIAM.

         Kim Burgess’s guardian and conservator, Scott Burgess, filed this action for divorce on
Kim’s behalf.1 An amended complaint sought annulment of the marriage. Following a bench trial,
the trial court denied the request for an annulment and entered a final judgment of divorce. On
appeal, plaintiff argues that the trial court erred in denying annulment because Kim was not capable
in law of contracting at the time of the marriage. We agree and reverse.

                                                 I.

       In 2008, Kim and his then wife, Mary Burgess, entered into a separate maintenance
agreement. Kim and defendant Linda Burgess (then Willis) began dating in December 2009 and
moved into together in the spring of 2010. Kim was diagnosed with dementia in 2013. According
to Linda, in 2014 Kim decided that he wanted to marry her. In May 2014, Kim filed a complaint
for divorce from Mary. Eventually the parties in that case reached a settlement agreement, but




1
  As used in this opinion, “plaintiff” refers to the legal arguments taken by Kim through his
guardian.


                                                -1-
there were concerns of the agreement’s validity given Kim’s dementia diagnosis. As a result, in
February 2015, Linda filed a petition for guardianship over Kim.

       At the March 10, 2015 petition hearing, Linda was represented by Kim’s counsel in the
pending divorce action. Counsel explained to the probate court that the guardianship was being
sought primarily to protect the integrity of settlement agreement. Counsel also explained that Kim
and Linda intended to marry, and therefore requested that the court appoint Linda as a limited
guardian only. The probate court engaged with brief colloquies with Kim and Linda regarding the
guardianship. One of Kim’s children, Marcus Burgess, was present and did not oppose the
guardianship or the parties’ intent to marry.2

        The probate court granted the petition, finding clear and convincing evidence that Kim was
impaired to the extent of lacking sufficient understanding or capacity to make or communicate
informed decisions. The court also granted the request for a limited guardianship, finding that
Kim was partially without the capacity to care for himself at that time. Both the order of
guardianship and letters of guardianship provided that Linda was to involve Kim in decisions so
long as he was “stable.” A judgment of divorce was entered in the other case, and Kim and Linda
were married on April 23, 2015.

       In the spring of 2016, Linda moved out of Kim’s home. She testified that Kim’s daughter
made it intolerable for her to continue living there. Before moving out, Linda filed a petition to
be removed as Kim’s guardian, citing an inability to manage his affairs given her issues with his
children. Scott intervened in those proceedings and requested to be appointed his father’s
conservator and guardian. After a hearing, the probate court entered orders removing Linda as
guardian and appointing Scott and his wife as Kim’s co-guardians and Scott as the conservator.

        In January 2017, Scott filed a complaint for divorce on Kim’s behalf as his guardian and
filed an amended complaint requesting annulment of the marriage. The one-day divorce trial was
held in December 2018. At that time, Kim was in an assisted living facility and was treated as an
unavailable witness. Scott and Linda were the primary witnesses.

       The trial court issued an opinion from the bench and found that Kim had sufficient mental
capacity to knowingly and voluntarily enter into the marriage. The court noted that plaintiff had
not provided any authority indicating that a guardian cannot legally marry the ward, and concluded
that Kim decided to marry Linda on his own, i.e., Linda did not make that decision on his behalf
as guardian. Accordingly, the court denied the request for annulment and entered a judgment of
divorce.

                                                II.

        “An action to annul a marriage is equitable in nature,” and we review de novo matters of
equity. Rodenhiser v Duenas, 296 Mich App 268, 271; 818 NW2d 465 (2012). Questions of law
are also reviewed de novo. Hilgendorf v St John Hosp and Med Ctr Corp, 245 Mich App 670,


2
 Kim’s oldest child, Scott, did not receive notice of the petition because it was sent to the wrong
address. He testified that he would have opposed Linda’s appointment as guardian.


                                                -2-
695; 630 NW2d 356 (2001). After a bench trial, we review the trial court’s factual findings for
clear error. Ligon v Detroit, 276 Mich App 120, 124; 739 NW2d 900 (2007).

                                                 III.

         If this case merely concerned the trial court’s factual finding as to Kim’s mental capacity
at the time of the marriage, we would affirm because we see no clear error in that determination.
However, the trial court did not address plaintiff’s legal argument that a person under a
guardianship may not enter into a valid marriage.3 And we agree with plaintiff that Kim’s
adjudication as a legally incapacitated individual before the marriage is dispositive of the
annulment issue.

        Marriage is a civil contract “to which the consent of parties capable in law of contracting
is essential.” MCL 551.2. “If solemnized within this state, a marriage that is prohibited by law
because . . . either party was not capable in law of contracting at the time of solemnization is
absolutely void.” MCL 552.1. “A person is incapable in law of contracting when that person is
mentally incompetent.” Rodenhiser, 296 Mich App at 272. “The test of mental capacity to
contract is whether the person in question possesses sufficient mind to understand in a reasonable
manner the nature and effect of the act in which the person is engaged.” In re Erickson Estate,
202 Mich App 329, 332; 508 NW2d 181 (1993).

         In Rodenhiser, we affirmed the trial court’s finding that the personal representatives of the
wife’s estate failed to overcome the presumption of the marriage’s validity by “clear and definite
proof” showing “that [the wife] was of unsound mind to the extent that she had no reasonable
perception of the nature and effect of the marriage agreement she consummated with [the
husband].” Rodenhiser, 296 Mich App at 273 (quotation marks omitted). That is essentially what
the trial court found in this case. As stated, were that the only question presented by this appeal,
we would affirm. However, in contrast to this case, the wife in Rodenhiser had not been
adjudicated a legally incapacitated person before the marriage and that makes all the difference.

        The Supreme Court has long held that a person adjudged mentally incompetent cannot
enter into a valid contract while under a guardianship. See e.g., Wies v Brandt, 294 Mich 240,
247; 293 NW 773 (1940) (“The presumption is that [the ward] could not make a valid contract
while under guardianship as a mentally incompetent person.”); Gates v Cornnet, 72 Mich 420,
435; 40 NW 740 (1888) (“The law throws its protecting shield around mentally incompetent
persons, from whatever cause, and while in some cases it is permitted them to make contracts so
long as they are not under the restraint of guardianship, these are binding only so far as they rest
upon adequate considerations, and are free from fraud, or overreaching.”) (emphasis added).
Similarly, it is well established that “[c]ontracts made by mentally incompetent persons prior to
adjudication of mental incompetency are not void, but are voidable,” Apfelblat v Nat’l Bank




3
  Although not addressed by the trial court, this issue is preserved because it was raised before the
trial court and pursued on appeal. See Peterman v Dep’t of Natural Resources, 446 Mich 177,
183; 521 NW2d 499 (1994).


                                                 -3-
Wyandotte-Taylor, 158 Mich App 258, 262; 404 NW2d 725 (1987), the implication being that
contracts made after such an adjudication are void.

        The Supreme Court has not addressed the specific issue of a ward’s ability to consent to
marriage. But in May v Leneair, 99 Mich App 209, 212; 297 NW2d 882 (1980), this Court held
that mentally incompetent persons may not enter into a valid marriage. In that case, the wife was
adjudicated as mentally incompetent about five years before the marriage. Her guardian brought
suit, asserting that the marriage was invalid ab initio. Id. This Court first held that someone
adjudicated as mentally incompetent fell within the statute prohibiting marriage of a person
adjudged “insane, feeble-minded or an imbecile” absent a physician’s certificate. Id. at 213-215.
That statute, MCL 551.6, has since been repealed. 2001 PA 9. However, the Court went onto
hold that the marriage was void regardless of that statute given the pre-marriage adjudication:

               Furthermore, the same result, that an adjudication of mental incompetency
       bars a subsequent marriage, obtains independently of the statute.

              In Acacia Mutual Life Ins Co v Jago, 280 Mich 360, 362, 273 NW 599
       (1937), the Supreme Court stated:

               “[W]hile an * * * incompetent is under actual and subsisting guardianship
       of estate, he is conclusively presumed incompetent to make a valid contract * * *.”
       (Emphasis supplied.)

       Marriage is a civil contract to which the consent of parties capable in law of
       contracting is essential. Therefore, an adjudicated mental incompetent cannot enter
       a valid marriage. [May, 99 Mich App at 215 (citations omitted).]

        We are not required to follow May because it was decided before November 1, 1990. See
MCR 7.215(J)(1). But opinions decided before that cutoff date are “nevertheless considered to be
precedent and entitled to significantly greater deference than are unpublished cases.” Woodring v
Phoenix Ins Co, 325 Mich App 108, 114-115; 923 NW2d 607 (2018) (quotation marks and citation
omitted). Further, May’s holding that a person adjudicated mentally incompetent cannot enter into
a valid marriage flows naturally from the Supreme Court caselaw cited above. And we are required
to follow Supreme Court precedent that has not “clearly been overruled or superseded.”
Associated Builders & Contractors v City of Lansing, 499 Mich 177, 191; 880 NW2d 765, 772
(2016).

        There have been changes to the statutory language regarding the grounds for a
guardianship. Namely, until 1979, a guardian could be sought for “insane” persons or those who
were “mentally incompetent.” See e.g., MCL 703.1, repealed by 1978 PA 642. However, with
the enactment of the Revised Probate Code, 1978 PA 642, those terms were replaced by the phrase
“legally incapacitated person.” See e.g., MCL 700.444, repealed by 1998 PA 386. Currently, the
Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., provides that

       [t]he court may appoint a guardian if the court finds by clear and convincing
       evidence both that the individual for whom a guardian is sought is an incapacitated
       individual and that the appointment is necessary as a means of providing continuing



                                               -4-
       care and supervision of the incapacitated individual, with each finding supported
       separately on the record. [MCL 700.5306(1).]

An incapacitated individual is defined “as an individual who is impaired by reason of mental
illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication,
or other cause, not including minority, to the extent of lacking sufficient understanding or capacity
to make or communicate informed decisions.” MCL 700.1105(a). And a “[l]egally incapacitated
individual” is “an individual, other than a minor, for whom a guardian is appointed under this act
or an individual, other than a minor, who has been adjudged by a court to be an incapacitated
individual.” MCL 700.1105(i).

        While we are not aware of any caselaw addressing whether a legally incapacitated
individual may enter into a valid contract, it is difficult to discern why the change in verbiage
should lead to a different result. If anything, the definition of an incapacitated individual person
seems to more directly establish that such a person lacks the mental capacity to contract. That is,
a person adjudged to lacked sufficient understanding or capacity to make or communicate
informed decisions necessarily does not possess sufficient mental capacity to understand the nature
and effect of a contract. See In re Erickson Estate, 202 Mich App at 332. We are also not
persuaded that Kim’s placement under a limited guardianship changes the outcome. Even under
a limited guardianship, Kim was a legally incapacitated individual, see MCL 700.1105(i) and MCL
700.1104(n), and therefore still lacked the capacity to contract in law. And though the court
ordered a limited guardianship, no specific limitations were provided.

        In sum, Supreme Court caselaw is clear that a person adjudged mentally incompetent lacks
the ability to contract while under a guardianship. While there have been changes to the relevant
statutory language, they do not clearly overrule or supersede that caselaw. And in May, 99 Mich
App 209, this Court took the logical step of holding that persons adjudged mentally incompetent
cannot enter into a valid marriage. For those reasons, we hold that the guardianship order entered
before the parties’ marriage conclusively establishes that Kim was not capable in law of
contracting at the time of solemnization and therefore the marriage is absolutely void.

        Given our holding, we need not address plaintiff’s alternative arguments relating to
whether a guardian can legally enter into a marriage with the ward.4 We agree with the trial court,
however, that plaintiff has not presented any dispositive authority on that matter. Plaintiff cites
MCL 700.1214, which provides in pertinent part that “a fiduciary in the fiduciary’s personal
capacity shall not engage in a transaction with the estate that the fiduciary represents . . . .” But
plaintiff does not present any authority indicating that marriage should be considered a
“transaction” as that word is used in EPIC. Plaintiff also argues that there should be a presumption




4
  Plaintiff also argues that Linda committed fraud when she represented in the affidavit for license
to marry that Kim had sufficient mental capacity. However, any allegation of fraud as grounds to
annul the marriage is precluded by MCL 552.2 because the parties voluntarily cohabitated after
the marriage.



                                                 -5-
of undue influence given the fiduciary relationship between the parties.5 Even assuming this
presumption applies in the context of a marriage contract, the trial court found that Linda did not
act improperly in her capacity as guardian and that Kim entered the marriage on his own accord,
i.e., there was no undue influence in this case.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                               /s/ Thomas C. Cameron
                                                               /s/ Douglas B. Shapiro
                                                               /s/ Anica Letica




5
    A presumption of undue influence arises under the following circumstances:

         (1) the existence of a confidential or fiduciary relationship between the grantor and
         a fiduciary, (2) the fiduciary or an interest which he represents benefits from a
         transaction, and (3) the fiduciary had an opportunity to influence the grantor’s
         decision in that transaction. [Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77
         (1976).]



                                                 -6-
