KENNETH R DEYO V VICKI E DEYO
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STATE OF MICHIGAN
COURT OF APPEALS
KENNETH R. DEYO,
UNPUBLISHED
May 25, 2004
Plaintiff-Counterdefendant/Appellant,
v
No. 245210
Livingston Circuit Court
LC No. 01-030982-DM
VICKI E. DEYO,
Defendant-Counterplaintiff/Appellee.
Before: Bandstra, P.J., and Sawyer and Fitzgerald, JJ.
SAWYER, J. (dissenting).
I respectfully dissent.
The “equitable disposition of property is confined to the limits of the applicable statutes.”
Charlton v Charlton, 397 Mich 84, 92; 243 NW2d 261 (1976). Defendant argues, relying on
both Charlton, supra, and Demman v Demman, 195 Mich App 109; 489 NW2d 161 (1992), that
whether an inheritance is included in the valuation of a marital estate is within the trial court’s
discretion and should be based on the circumstances of each case. However, this argument fails
to recognize that each of these cases specifically cite MCL 552.23 and/or MCL 552.401 as
examples of when an inheritance can be included in the marital estate. Charlton, supra, 92-94;
Demman, supra, 112-113. Furthermore, the Supreme Court has recognized that “property
received by a married party as an inheritance, but kept separate from marital property, is deemed
to be separate property not subject to distribution.” Dart v Dart, 460 Mich 573, 584-585; 597
NW2d 82 (1999). Therefore, the trial court did not have the equitable power to include the
inherited assets in the marital estate absent a determination, supported by evidence, that either
MCL 552.23 or MCL 552.401 applied.
A testator is free to dispose of his property as he wishes. MCL 700.1101 et seq.
Plaintiff’s father was, therefore, free to leave his property to unrelated persons or charities.
However, while this statute can be used to support the trial court’s inference that plaintiff’s father
left plaintiff his property in part because of defendant’s care, it also supports the argument that
plaintiff’s father could have specifically included defendant in the inheritance had this been his
reasoning. In the present case, the inherited property that was jointly owned and/or co-managed
by the parties had already been included in the $714,634 marital estate as identified by plaintiff.
There is no evidence in the record that plaintiff would not have inherited his father’s estate
without defendant’s assistance; therefore, I am left with a definite and firm conviction that a
mistake has been made so that the trial court’s determination that defendant contributed to the
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acquisition of the inherited estate is clearly erroneous and would remand for a redetermination of
the marital estate without consideration of the inheritance.
/s/ David H. Sawyer
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