IN RE ESTATE OF DONALD L CRANE
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STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of DONALD L. CRANE, Deceased.
LILIA CRANE,
UNPUBLISHED
March 16, 2010
Petitioner-Appellee,
v
No. 288654
Macomb Probate Court
LC No. 2007-191778-DE
JACK D. CRANE,
Respondent-Appellant,
and
DONALD M. STREHL, Successor Personal
Representative of the Estate of Donald L. Crane,
Deceased,
Appellee.
Before: JANSEN, P.J., and MURRAY and GLEICHER, JJ.
PER CURIAM.
Respondent Jack D. Crane (respondent) appeals by right the probate court’s
determination that he lacked legal standing to challenge the validity of the marriage of his late
brother, decedent Donald L. Crane (the decedent), to petitioner Lilia Crane (petitioner). For the
reasons set forth in this opinion, we affirm.
I
In approximately 2004, the decedent became acquainted with petitioner via the Internet.
Petitioner was a resident of the Republic of Moldova. The decedent exchanged e-mails with
petitioner throughout 2004 and 2005, and ultimately made plans to travel to Moldova to meet
her. In late 2005, petitioner e-mailed the decedent and informed him that she was pregnant with
another man’s child. Nevertheless, the decedent remained undeterred, and traveled to Moldova
to meet petitioner for the first time in March 2006.
-1-
The decedent stayed in Moldova for a short time before returning to the United States.
He then traveled to Moldova for a second time in May 2006. During his second visit to
Moldova, the decedent married petitioner on May 10, 2006. On May 19, 2006, petitioner gave
birth to a son, naming him Vladislav Crane. The decedent thereafter returned to the United
States, but was apparently unable to obtain visas for petitioner and her son. Consequently,
petitioner and her son remained in Moldova.
On September 15, 2007, the decedent died intestate at his home in Macomb County,
Michigan. Respondent filed an application for informal probate in the Macomb Probate Court.
In his filing, respondent informed the court that the decedent had left no surviving spouse and no
children. Respondent was appointed personal representative of the decedent’s estate on
September 21, 2007.
On November 9, 2007, petitioner filed a petition for removal of the personal
representative and for other relief, including a determination of heirs. Petitioner alleged that
respondent had knowingly failed to include her name as the surviving spouse and her son’s name
as the surviving child in his initial filing. Petitioner also alleged that respondent was attempting
to deprive her and her son “of their rightful inheritance.” Petitioner requested that respondent be
removed as personal representative, and asserted that she and her son were the decedent’s legal
heirs. Specifically, she asserted that she was the decedent’s surviving spouse, and that because
her son had been born during the marriage, Vladislav was the decedent’s surviving child.
Petitioner attached copies of a Moldovan marriage certificate and her son’s Moldovan birth
certificate, both accompanied by a certified translation from Romanian into English. The
marriage certificate stated that petitioner had married the decedent in Moldova on May 10, 2006,
and had changed her last name to Crane at that time.1 The birth certificate stated that Vladislav
had been born to petitioner in Moldova on May 19, 2006. It listed the decedent as Vladislav’s
father and petitioner as Vladislav’s mother.
Respondent filed objections to the petition on December 10, 2007, challenging the
validity of the decedent’s marriage to petitioner and contending that Vladislav was not the
decedent’s biological child. In particular, respondent stated that “[i]t is believed the alleged
marriage to Lilia Crane is not valid and thus she is not an heir,” and that “[i]t is believed that
Vladislav Crane is not [the d]ecedent’s child and thus is not an heir.” Respondent maintained
that, as the decedent’s only surviving sibling, he was the decedent’s sole legal heir. However,
respondent did agree that, in light of his objections to petitioner’s petition, it would be
appropriate for the probate court to replace him with a disinterested successor personal
representative. Thereafter, the probate court appointed Donald M. Strehl as successor personal
representative of the estate.
On April 16, 2008, respondent filed objections to the admissibility of the Moldovan
marriage certificate and Moldovan birth certificate.
Although both documents were
accompanied by a certified translation from Romanian into English, respondent argued that
1
According to the marriage certificate, which is contained in the probate court file, petitioner’s
maiden name was Lilia Untila.
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neither document was “self-authenticated as required for admissibility,” and that no ambassador,
consul general, or other consular agent had attested to the genuineness of the signatures of the
alleged Moldovan officials that appeared on the two documents.
Respondent then filed notice of his intent to introduce certain documents into evidence,
all of which purportedly showed that the decedent was not married to petitioner. First,
respondent intended to introduce a “2006-2007 Verification Worksheet,” which the decedent had
apparently submitted in an effort to obtain student financial aid from Stonecliffe College. The
Verification Worksheet included the decedent’s purported signature and was dated March 6,
2007. On the Verification Worksheet, the question “Were you married as of the day you signed
the FAFSA?”2 was answered “No.” Second, respondent intended to introduce the decedent’s
2006 state and federal income tax returns. Although the income tax returns, themselves, were
electronically filed and therefore not signed, the decedent had signed an “IRS e-file Signature
Authorization” on April 16, 2007. Both the state and federal income tax return indicated that the
decedent was “Single.” Respondent contended that these documents would prove that the
decedent was not truly married and that his alleged marriage to petitioner had been a sham.3
Respondent also filed notice of his intent to rely on the domestic relations law of the
Republic of Moldova. Respondent attached English translations of the Moldovan Family Code
and Moldovan Civil Status Law, and requested that the probate court take judicial notice of these
foreign statutes pursuant to MRE 202(b).
Prior to trial, respondent’s counsel informed the probate court that although he had
subpoenaed petitioner, she would not be physically present. As a consequence of petitioner’s
absence, respondent’s counsel asked the court to strike her petition. Petitioner’s counsel pointed
out that respondent had been fully aware that petitioner would not be able to attend trial.
Petitioner’s attorney also suggested that petitioner’s personal presence was strictly unnecessary
because all of the documents and other relevant evidence were in the possession of respondent.
Respondent’s attorney complained that he would not be able to cross-examine petitioner. But
petitioner’s attorney noted that respondent had retained Moldovan counsel, and therefore could
have deposed petitioner in Moldova had he truly wanted to question her. After hearing the
attorneys’ arguments on this issue, the court denied respondent’s request to dismiss the petition.
The court appeared satisfied with the stated reasons for petitioner’s absence, and the matter
proceeded to trial.
Petitioner’s counsel moved for admission of the Moldovan marriage certificate and the
accompanying certified translation of the marriage certificate into English. He argued that the
document was self-authenticating, that it was admissible under the rules of evidence, and that its
2
The acronym “FAFSA” stands for Free Application for Federal Student Aid. Students seeking
federal student aid for college must complete a FAFSA each year. It appears from the probate
court record that the decedent submitted the 2006-2007 Verification Worksheet because he was
interested in the possibility of taking online courses from Stonecliffe College.
3
It appears that neither the 2006-2007 Verification Worksheet nor the 2006 income tax returns
were ever admitted into evidence.
-3-
admission was required by the Hague Convention. Respondent’s counsel objected. The probate
court noted that the Moldovan marriage certificate was accompanied by an apostille4 that
appeared to be regular on its face. After reviewing the document and the relevant rules of
evidence, the probate court ruled that the Moldovan marriage certificate was admissible.
Petitioner’s counsel then moved to admit Vladislav’s Moldovan birth certificate and the
accompanying certified translation of the birth certificate into English. Like the marriage
certificate, the probate court ruled that the birth certificate was admissible.
Petitioner’s counsel next moved to admit the affidavit of Ron Jacobs, who had traveled to
Moldova with the decedent and averred in his affidavit that the decedent had actually married
petitioner in the Republic of Moldova on May 10, 2006. Respondent’s attorney argued that
Jacobs should be required to appear in person, and noted that petitioner had not even subpoenaed
him. Petitioner’s counsel responded that Jacobs was a resident of Oregon and was currently
financially unable to attend trial in Michigan. Petitioner’s counsel observed that although the
Jacobs affidavit had been executed in Oregon, it had been submitted to the probate court and to
respondent more than a year earlier, as an attachment to petitioner’s original petition.
Petitioner’s counsel stated that he did not have the financial resources to fly Jacobs to Michigan
for trial, and asked the court to admit the affidavit in lieu of Jacobs’s live testimony.
Respondent’s attorney suggested that Jacobs was not “unavailable” for purposes of MRE 804,
and argued that he should be given the opportunity to cross-examine Jacobs concerning his
averments. The probate court ultimately admitted the affidavit, but noted that the affidavit “may
carry no weight as far as the Court is concerned . . . .”
Lastly, petitioner’s counsel moved to admit the affidavit of petitioner, together with a
certified translation from Romanian into English. In the affidavit, petitioner averred that she had
married the decedent in Moldova on May 10, 2006, and that her son had been born during the
marriage, on May 19, 2006. Petitioner’s counsel asserted that the affidavit was admissible
pursuant to MRE 804(b)(4)(A) because it related to petitioner’s own personal and family history,
a matter concerning which she had personal knowledge. The court admitted the document, but
noted that it would strike and disregard paragraph 5, which contained nothing more than a
conclusion of law stating that petitioner and her son were the “legal successors . . . of Donald
Crane.”
Petitioner’s counsel again explained that petitioner was unable to attend trial and
requested that she be permitted to testify via telephone.5 Respondent’s counsel objected to
4
The term “apostille” is defined in relevant part by Black’s Law Dictionary (7th ed) as “a
standard certification provided under the Hague Convention for authenticating documents used
in foreign countries.”
5
Petitioner’s counsel explained the reason for petitioner’s absence from trial. He explained that
the local Moldovan officials would not permit petitioner to travel to the United States for the
purpose of testifying because the decedent’s death certificate indicated that petitioner and the
decedent had been divorced. The probate court accepted this explanation. We wish to note that,
despite the fact that the decedent’s death certificate listed his marital status as “Divorced,” there
was absolutely no evidence to suggest that his marriage to petitioner was ever dissolved. Indeed,
the probate court record establishes that upon the decedent’s death, respondent, acting as
(continued…)
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allowing petitioner to testify via telephone. However, the probate court accepted the explanation
given by petitioner’s counsel and ruled that petitioner would be permitted to participate by
telephone. The court stated that it would arrange to have a telephone line and a translator
available. The portion of trial consisting of petitioner’s testimony via telephone was apparently
not transcribed, and is not contained in the probate court record.
On the second day of trial, the probate court questioned the parties concerning whether
respondent even had standing to challenge the validity of the decedent’s marriage to petitioner.
The court observed that the issue of standing would have to be addressed before the conclusion
of the proceedings. Petitioner’s counsel argued that respondent had no standing under Moldovan
law to challenge the validity of the marriage. Respondent’s counsel argued that the issue of
standing should have been raised much earlier in the case, and that any consideration by the
court of respondent’s standing midway through trial was untimely.
The probate court examined the Moldovan domestic relations statutes and observed that it
would take judicial notice of the foreign law. The court noted that under Moldovan law, only
specific enumerated categories of individuals had legal standing to challenge the validity of a
Moldovan marriage. The probate court determined that respondent, as a sibling of one of the
spouses, did not fall not within any of these enumerated categories. Thus, the court concluded
that pursuant to Moldovan law, respondent did not have “standing to bring a request for the
nullification of the marriage.”6 In the absence of any admissible evidence attacking the validity
of the decedent’s marriage to petitioner, the court ruled that petitioner and her son Vladislav
were the decedent’s lawful heirs. Following trial, the probate court entered an order providing
that “[t]he heirs of the deceased are his surviving wife Lilia Crane and the child of the marriage
Vladislav Crane[.]”
II
“Whether a party has standing is a question of law that we review de novo.” Nat’l
Wildlife Fed v Cleveland Cliffs Iron Co, 471 Mich 608, 612; 684 NW2d 800 (2004). We
similarly review de novo the probate court’s application and interpretation of foreign and
international law. See Harkness v Harkness, 227 Mich App 581, 586; 577 NW2d 116 (1998). A
court’s decision to take judicial notice is discretionary, and is therefore reviewed for an abuse of
discretion. MRE 201(c); Freed v Salas, ___ Mich App ___; ___ NW2d ___ (2009).
III
Respondent argues that the probate court erred by ruling that he lacked legal standing to
contest the validity of the decedent’s marriage to petitioner. We disagree. The probate court
(…continued)
informant, knowingly misrepresented to the registrar who prepared the death certificate that the
decedent was divorced.
6
The court also ruled that even if respondent had possessed standing to challenge the marriage,
the decedent’s marriage to petitioner was clearly not a “fictitious marriage” within the meaning
of Moldovan law because a child was born during the marriage and the decedent was listed as
the child’s father on the Moldovan birth certificate.
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properly applied Moldovan law and determined that respondent had no standing to challenge the
validity of the decedent’s marriage to petitioner under the applicable Moldovan statutes.
A
As an initial matter, we find that the probate court properly took judicial notice of the
Moldovan statutes submitted by respondent. The former rule was that the Michigan courts could
not take judicial notice of the law of a foreign nation, and that the existence and substance of
such foreign law had to be proven like any other fact. See, e.g., Daniels v Detroit, Gd Haven &
Milwaukee R Co, 163 Mich 468, 472; 128 NW 797 (1910). But this former rule has been
changed by the Michigan Rules of Evidence, which now provide that Michigan courts may take
judicial notice of the statutes, constitution, and common law of any sister state or territory of the
United States, or of any foreign nation. MRE 202(a). It is true that “[a] judicially noticed fact
must be one ‘capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.’” People v Burt, 89 Mich App 293, 297; 279 NW2d 299
(1979), quoting MRE 201(b)(2). However, both parties agree that the Moldovan statutes
submitted by respondent were genuine and valid, and neither party disputes the accuracy of the
translation of the statutes from Romanian into English. Accordingly, we conclude that the
probate court did not abuse its discretion by taking judicial notice of the Moldovan statutes in
this case.
B
Respondent contends that the probate court violated MCR 2.116(G)(1)(a) by ruling that
he lacked standing to challenge the validity of the decedent’s marriage to petitioner without first
providing him 21 days notice. We question whether MCR 2.116(G)(1)(a) would even apply
here, as the probate court’s consideration of respondent’s standing was not confined to a motion
for summary disposition. But even assuming arguendo that MCR 2.116(G)(1)(a) would
otherwise apply in this context, we note that the issue of standing may be raised at any time, even
sua sponte by the court. Michigan Chiropractic Council v Comm’r of Financial & Ins Services,
475 Mich 363, 371-372, 374; 716 NW2d 561 (2006) (YOUNG, J.). We must therefore reject
respondent’s claim of error in this regard.
C
Respondent also contends that petitioner violated MCR 2.112(J)(3) by failing to provide
timely written notice of her intent to rely on Moldovan law. But this argument is disingenuous
and wholly without merit. We acknowledge that under MCR 2.112(J)(3), “[a] party who intends
to rely on or raise an issue concerning the law of . . . a foreign nation or unit thereof . . . must
give notice of that intention either in his or her pleadings or in a written notice served by the
close of discovery.” However, it was respondent—and not petitioner—who asked the probate
court to take judicial notice of the Moldovan domestic relations statutes in the first instance.
Unlike respondent, petitioner never asked the court to take judicial notice of Moldovan law.
Indeed, petitioner only raised the issue of Moldovan law in response to respondent’s argument,
merely pointing out that the Moldovan statutes in question did not support respondent’s position.
Because it was respondent, himself, who first introduced the issue of Moldovan law, he
necessarily had notice that the issue of Moldovan law would be raised at trial. Thus, petitioner
was not required to comply with the terms of MCR 2.112(J)(3). Zantop Int’l Airlines, Inc v
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Eastern Airlines, 200 Mich App 344, 352; 503 NW2d 915 (1993) (holding that “the purpose of
MCR 2.112 is to give notice” and that “a party that already has notice should not be heard to
complain of a technical violation of the rule”).
D
As noted previously, the probate court applied the Moldovan statutes submitted by
respondent and determined that respondent lacked standing under Moldovan law to attack the
validity of the decedent’s marriage to petitioner. We perceive no error. Unlike marriages
solemnized in sister states, which are generally recognized as valid in this state pursuant to MCL
551.271(1), Michigan has no statute requiring the recognition of marriages celebrated in foreign
nations. Nonetheless, the Michigan courts recognize marriages solemnized in foreign nations as
a matter of comity. It is well settled that Michigan’s law and public policy favor the institution
of marriage, Van v Zahorik, 460 Mich 320, 332; 597 NW2d 15 (1999); Boyce v McKenna, 211
Mich 204, 214; 178 NW 701 (1920), and the Michigan courts have long recognized the validity
of marriages celebrated in foreign countries, provided that those marriages are valid in the nation
of celebration and that they are not antithetical to Michigan’s public policy, see, e.g., id. at 215;
People v Imes, 110 Mich 250, 251; 68 NW 157 (1896); Hutchins v Kimmell, 31 Mich 126, 130131 (1875). The rule in Michigan is that the validity of a foreign marriage must be determined
by reference to the domestic relations law of the country of celebration. Id. at 131; see also
Noble v Noble, 299 Mich 565, 568; 300 NW 885 (1941); In re Osborn’s Estate, 273 Mich 589,
591; 263 NW 880 (1935); 16 Michigan Civil Jurisprudence, Marriage, § 4, p 561. Accordingly,
because the decedent’s marriage to petitioner was celebrated in the Republic of Moldova, we
conclude that the probate court correctly looked to Moldovan law for the purpose of determining
whether respondent had legal standing to attack the validity of the marriage.
Moreover, we reiterate that it was respondent, himself, who first requested that the
probate court apply the domestic relations law of Moldova. Having asked the court to take
judicial notice of and to apply Moldovan law, respondent is now estopped from arguing on
appeal that the application of Moldovan law was erroneous. See Joba Constr Co, Inc v Burns &
Roe Inc, 121 Mich App 615, 629; 329 NW2d 760 (1982). It is well settled that an appellant may
not harbor error as an appellate parachute. In re Gazella, 264 Mich App 668, 679; 692 NW2d
708 (2005).
Article 42 of the Moldovan Family Law, Law No. 1316-XIV, enumerates certain
categories of individuals who have legal standing to challenge the validity of a marriage and to
request a “declaration of marriage nullity.” The Moldovan statute provides that a spouse, the
parents of an underage spouse, or a prosecutor may challenge the validity of a Moldovan
marriage under certain circumstances. In contrast, Moldovan law makes no allowance for a
sibling of a spouse or any other third party to contest the validity of a marriage or request a
declaration of marriage nullity. The express statutory enumeration of specific individuals with
standing to challenge the validity of a Moldovan marriage necessarily implies exclusion of other
individuals, such as third parties in the position of respondent. See Stowers v Wolodzko, 386
Mich 119, 133; 191 NW2d 355 (1971) (observing that, under the principal expressio unius est
exclusio alterius, the “express mention in a statute of one thing implies the exclusion of other
similar things”). On the basis of the Moldovan statutes and accompanying translations submitted
below, we conclude that the probate court did not err by determining that respondent lacked legal
-7-
standing to challenge the decedent’s marriage to petitioner or to request a nullification of the
marriage under Moldovan law.
IV
Respondent argues that, even if he technically lacked standing to attack the validity of the
marriage under Moldovan law, the probate court’s application of Moldovan law in this case
violated his constitutional right to due process. Specifically, he asserts that the court’s use of
Moldovan law to determine that he lacked standing to challenge the marriage impinged his
“fundamental right . . . to inherit property.” But contrary to respondent’s assertions, the right to
inherit property does not rise to the level of a “fundamental” liberty interest for purposes of
substantive due process, and the probate court’s actions are therefore not subject to strict-scrutiny
review. See Washington v Glucksberg, 521 US 702, 719-721; 117 S Ct 2258; 138 L Ed 2d 772
(1997) (enumerating which rights constitute fundamental liberty interests for purposes of
substantive due process). The Moldovan domestic relations law applied by the probate court
simply limits the ability of strangers and third parties to contest the validity of a marriage. As far
as we can discern, the application of such a law does not unduly burden any recognized right
protected by the Due Process Clause. On the contrary, the application of such a law actually
promotes the institution of marriage, which is itself a fundamental liberty interest protected by
substantive due process. Loving v Virginia, 388 US 1, 12; 87 S Ct 1817; 18 L Ed 2d 1010
(1967). Nor can we conclude that the probate court’s application of Moldovan law was
“arbitrary and thus irrational” as suggested by respondent. Cf. Morreale v Dep’t of Community
Health, 272 Mich App 402, 407; 726 NW2d 438 (2007). Indeed, as noted previously, the
validity of foreign marriages in Michigan is always determined by reference to the law of the
country of celebration. Hutchins, 31 Mich at 131. To the extent respondent argues that the
probate court’s application of Moldovan law violated his due process right to inherit property,
his argument must fail.
It appears that respondent may also be attempting to challenge the probate court’s
application of Michigan’s law of intestate succession on due process grounds. After all, whereas
Moldovan law provides the rule of decision concerning respondent’s standing to attack the
validity of the marriage (and concerning the validity of the marriage, itself), Michigan law
provides the rule of decision with respect to the actual determination of heirs in this case.7 See
MCL 700.1301(a). It is true, as respondent points out, that “property” is among the items
specifically protected by the Due Process Clause. However, the right to inherit property is not an
absolute or inherent right—it depends entirely upon the consent of the Legislature and may be
modified or altered by statute. See, e.g., In re Clark’s Estate, 100 Vt 217, 225; 136 A 389
(1927); In re White’s Estate, 208 NY 64, 67; 101 NE 793 (1913). We have no doubt that
Michigan’s intestate succession statutes, which provide that an intestate decedent’s estate should
descend to the surviving spouse and child in a case such as this,8 are rationally related to a
7
Because the decedent was domiciled in Michigan at the time of his death, Michigan’s own
intestate succession statutes provide the rule of decision with respect to the actual determination
of heirs in this case. MCL 700.1301(a).
8
See MCL 700.2102(1)(b); MCL 700.2103(a).
-8-
legitimate government purpose. See Cummins v Robinson Twp, 283 Mich App 677, 701; 770
NW2d 421 (2009).
V
The probate court correctly applied the domestic relations law of Moldova and properly
determined that respondent lacked standing thereunder to attack the validity of the decedent’s
marriage to petitioner. Moreover, the probate court’s actions did not violate respondent’s
constitutional right to due process.
Affirmed. As the prevailing party, petitioner may tax costs pursuant to MCR 7.219.
/s/ Kathleen Jansen
/s/ Christopher M. Murray
/s/ Elizabeth L. Gleicher
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