STATE OF MICHIGAN
COURT OF APPEALS
KEVIN MICHAEL THOMPSON,
September 13, 2012
Lapeer Circuit Court
LC No. 10-042647-DM
MICHELLE LAYNE THOMPSON,
Before: O’CONNELL, P.J., and JANSEN and RIORDAN, JJ.
O’CONNELL, P.J. (dissenting).
I respectfully dissent. I would remand to the trial court to make a finding on the issue of
plaintiff’s competency to enter into the divorce settlement agreement.
“Where a party alleges that his or her consent [to a settlement agreement], while actually
given, was influenced by circumstances of severe stress, the standard to be applied is that of
mental capacity to contract.” Howard v Howard, 134 Mich App 391, 396; 352 NW2d 280
(1984). If severe stress has prevented a party to a property settlement from reasonably
understanding the nature and effect of the settlement, a trial court may consider a motion to set
aside the settlement. See Keyser v Keyser, 182 Mich App 268, 269-270; 451 NW2d 587 (1990).
To determine a party’s mental capacity to contract, courts should apply the following test:
The well-settled 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 he is engaged. However, to
avoid a contract it must appear not only that the person was of unsound mind or
insane when it was made, but that the unsoundness or insanity was of such a
character that he had no reasonable perception of the nature or terms of the
contract. [Howard, 134 Mich App at 396 (citations and internal quotation marks
Here, the trial court failed to make any specific finding on the issue of plaintiff’s mental
capacity to enter into the settlement agreement. Absent such a finding, the court lacked a
sufficient basis for granting plaintiff’s motion for relief from the judgment. Given the evidence
concerning plaintiff’s brain injury, I would remand for a specific finding concerning plaintiff’s
/s/ Peter D. O’Connell