JAN KAY ESTES V JEFF EDWARD TITUS
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STATE OF MICHIGAN
COURT OF APPEALS
JAN KAY ESTES, Personal Representative of the
Estate of DOUGLAS DUANE ESTES,
FOR PUBLICATION
December 21, 2006
9:10 a.m.
Plaintiff-Appellant,
v
No. 261968
Kalamazoo Circuit Court
LC No. 02-000529-NZ
JEFF EDWARD TITUS,
Defendant-Appellee,
Official Reported Version
and
JULIE L. SWABASH, f/k/a JULIE L. TITUS,
Appellee.
Before: O'Connell, P.J., and White and Markey, JJ.
MARKEY, J.
In this wrongful death action, plaintiff appeals by leave granted the trial court's order
denying her motion to add defendant's former spouse as a party for purposes of conducting an
evidentiary hearing to inquire into the fairness of the property division approved in a divorce
judgment entered while this action was pending. Plaintiff argues that, to the extent the marital
property settlement exceeded a fair and equitable division, it was a fraudulent transfer within the
meaning of the Uniform Fraudulent Transfer Act (UFTA), MCL 566.31 et seq. We agree and
reverse.
Two days into the 1990 firearm deer-hunting season, Douglas Estes and another hunter
were found shot to death in the Fulton State Game Area in Kalamazoo County. More than a
decade later, a police cold-case homicide investigation resulted in the arrest and conviction of
defendant Jeff Titus for two counts of first-degree murder. He was sentenced on August 20,
2002, to mandatory life in prison. This Court affirmed defendant's convictions.1
1
People v Titus, unpublished opinion per curiam of the Court of Appeals, issued February 19,
2004 (Docket No. 243642).
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Plaintiff Jan Estes, who was Douglas Estes's wife and is the personal representative of his
estate, filed this wrongful death action, MCL 600.2922, on September 23, 2002.
Julie Titus, defendant's spouse, filed for divorce on November 12, 2002. Kalamazoo
Circuit Judge Patricia N. Conlon entered a divorce judgment dissolving the Tituses' marriage on
March 10, 2003.2 Defendant and Julie agreed on the terms of the divorce judgment, which
awarded Julie custody of the couple's 17-year-old daughter. Regarding defendant's child-support
obligation, the judgment provided:
IT IS FURTHER ORDERED AND ADJUDGED that due to the fact the
Defendant is currently incarcerated in a state prison, has not contributed support
for the minor child preceding or during, nor is it anticipated he will contribute
hereafter, the award of property herein made is intentionally not congruent or
equal and the award of additional property to the Plaintiff is in lieu of his child
support obligation, considering the term of the contemplated incarceration and the
age of the child and, accordingly, no award is made.
Indeed, Julie was awarded substantially all the marital assets.
On March 24, 2003, plaintiff filed a motion under MCR 2.209(A)(3) to intervene in the
divorce proceedings for the purpose of arguing that the property-settlement provisions
constituted a fraud upon defendant's creditors, such as herself, and were inequitable. Judge
Conlon denied the motion on May 19, 2003, without an evidentiary hearing on the merits of
plaintiff 's claims of fraud and inequity. Plaintiff did not appeal this ruling.
On the same day that Judge Conlon denied plaintiff 's motion to intervene in the Titus
divorce proceedings, plaintiff filed a motion in the trial court in this case to enjoin defendant
from transferring, selling, encumbering, or disposing of any marital assets pending the outcome
of the wrongful death action. Plaintiff argued that defendant, in an attempt to avoid any
collection on a potential wrongful death judgment, improperly agreed to transfer almost all his
marital assets to Julie in the divorce proceedings. Plaintiff noted that her motion to intervene in
the divorce proceeding was then pending before the family division of the circuit court, and she
argued that injunctive relief was necessary to ensure that she could collect any judgment arising
from this action. Defendant, acting in propria persona, filed an objection to plaintiff 's motion on
the bases that the property division in the divorce judgment was not an improper transfer of
property and that the trial court lacked the authority to set aside the divorce judgment in a
separate proceeding. The trial court granted plaintiff 's motion for a preliminary injunction,
enjoining defendant from transferring, encumbering, or disposing of any marital assets awarded
to him.
2
Julie Titus remarried after she divorced defendant and is now Julie Swabash. To avoid
confusion, we refer to her by her first name.
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On October 7, 2004, four months after a bench trial, the trial court issued its final opinion
and order in this case. The trial court concluded that defendant was liable for the wrongful death
of plaintiff 's decedent, Douglas Estes. On October 22, 2004, the trial court entered a judgment
against defendant, awarding plaintiff $550,000.
On January 20, 2005, in an attempt to collect her judgment, plaintiff asked the trial court
to subpoena Julie to appear for discovery regarding the marital assets and to show cause why she
should not be made a party to this case pursuant to MCL 600.6128. Plaintiff also requested that
the trial court enjoin Julie from transferring any property that defendant might have an interest in
and conduct a hearing to determine defendant's rights to the marital property. Plaintiff contended
that defendant's transfer of marital property to Julie pursuant to the divorce judgment was
fraudulent with respect to the plaintiff under MCL 566.34 and 566.35 because the property
settlement was made with the actual intent to defraud plaintiff, was made without defendant's
receiving reasonable equivalent value in exchange for the transfer, and was made when
defendant reasonably should have believed that he would incur debts beyond his ability to pay
when they came due. Plaintiff also asserted that the division of the marital property was
inequitable and deprived her of the ability to collect any substantial portion of her judgment.
The trial court issued a restraining order and an order to show cause on January 21, 2005,
requiring Julie to appear at a hearing to be held on February 7, 2005. Specifically, the trial court
issued a subpoena requiring Julie to appear before it and testify regarding assets in her
possession in which defendant had an interest. The court also scheduled the February 7, 2005,
hearing for Julie to show cause why she should not be made a third party to this case. Finally,
the trial court enjoined Julie from transferring, disposing of, or interfering with any property in
which defendant had or might have an interest, pending further order of the court.
Through counsel, Julie filed an answer and memorandum on February 3, 2005, in
response to plaintiff 's motion regarding her. Julie argued that plaintiff lacked standing to file a
motion in the trial court to set aside the divorce judgment, that plaintiff did not timely file her
motion to set aside the judgment, as required by MCR 2.612, and that the trial court had no
authority to overrule the family division of the circuit court in its determination that the divorce
judgment was fair and equitable. Julie requested that the trial court quash the subpoena issued
against her, dismiss the restraining order, and deny plaintiff 's motion to add her as a third party
this action.
The trial court heard arguments of counsel at the scheduled show-cause hearing and
expressed its reasoning regarding plaintiff 's motions from the bench:
In essence, the plaintiff in this case is asserting that the distribution of
property in the divorce case works a fraud on her as a creditor. These claims are
based on a series of statutes cited within the motion, including MCL 566.34 and
566.35, the fraudulent conveyance statute.
* * *
Now the property is divided in what appears to be, based on both the
judgment and arguments here today, an unequal fashion. . . .
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Here, although the defendant in this case and in the divorce may have
voluntarily signed off on the judgment, at least on its face there appears to be
reasons for the unequal distribution authorized by the Court as it relates to the
interests of the parties involved in the divorce case.
And while it was certainly foreseeable that he might have become liable in
an ultimate civil judgment as a result of the death in the case before this Court,
this also appears to be, at least on its face, a reasonable resolution of the marriage
where one person is serving a life sentence and the other is seeking a divorce.
The Court . . . without prejudice . . . dissolves the restraining order,
quashes the subpoena, declines to add Ms. Estes [sic] as a party in this case, as the
Court has not been directed to any case or court rule that—or statute—that would
justify that relief on the facts I've just outlined and declines to authorize further
proceedings against Ms. Estes [sic] as it relates to the assets over which she
attained control through the divorce proceedings.
I'm doing this without prejudice as I'm acting on the information available
to me at this time. While I can understand the so-called equitable level why the
plaintiff would be pursuing this relief, I'm not persuaded at the legal level that this
Court has any authority to, in effect, undo a judgment entered by this court in
another case through another judge; and that's really what I'm being asked to do.
The trial court effectuated its ruling through an order entered on February 16, 2005,
which is the subject of the instant appeal. The order denied plaintiff 's request to add Julie as a
party defendant, dissolved the court's January 21, 2005, restraining order, and quashed the
judgment-creditor discovery subpoena. Plaintiff moved for reconsideration, appending to her
motion the affidavit of an attorney who opined that the Titus divorce judgment was unfair and
inequitable and did not comply with the standards of Michigan law. The court denied the motion
on March 11, 2005, concluding that plaintiff had merely reargued the same issues decided in the
trial court's earlier ruling and, thus, had failed to demonstrate a palpable error justifying relief.
The issues plaintiff presents on appeal address the jurisdiction of the trial court and
statutory interpretation, which are both questions of law that this Court reviews de novo. Wengel
v Wengel, 270 Mich App 86, 91; 714 NW2d 371 (2006); Reed v Reed, 265 Mich App 131, 157;
693 NW2d 825 (2005).
Plaintiff first argues that the trial court erred when it failed to set aside the division of
marital property included in the Tituses' divorce judgment. We disagree. We conclude that the
trial court lacked authority to invoke its equitable powers to set aside or modify the divorce
judgment entered by another circuit judge. MCR 2.613(B).
Plaintiff submits that the trial court erred when it failed to set aside the property-division
portion of the Tituses' divorce judgment on the basis of fraud and equity. Essentially, plaintiff, a
nonparty to the divorce action, argues that the property division in the divorce judgment was
fraudulent and unfair because it awarded Julie substantially all the marital assets and left
defendant with practically no assets against which plaintiff could collect her wrongful death
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judgment. Plaintiff maintains that the trial court should have used its power to invoke equity to
set aside the property division in the divorce judgment. The only authority plaintiff cites to
support her position is Berg v Berg, 336 Mich 284; 57 NW2d 889 (1953). That case addressed a
situation in which a party to a divorce action allegedly concealed assets. The Berg Court opined,
"If a fraud has been perpetrated on the court by concealment of facts affecting the property rights
of the defendant, the court has inherent power to void its decree." Id. at 287. "'There can be no
doubt of the authority of a court of equity to relieve against fraud, even to the extent of setting
aside its own decrees when founded thereon.'" Id. at 288, quoting Raniak v Pokorney, 198 Mich
567, 572; 165 NW 663 (1917).
Plaintiff 's reliance on Berg for the proposition that one circuit judge may modify the
judgment of another circuit judge when fraud is alleged is misplaced. Rather, Berg holds that a
court has the inherent authority to correct one of its own judgments if the judgment was
fraudulently obtained. Berg provides no authority at all for the proposition that a coequal court
may void, vacate, or modify the judgment of another coequal court. Because plaintiff has not
presented any authority to support her position, we need not address the issue further. Prince v
MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999). "[W]here a party fails to cite any
supporting legal authority for its position, the issue is deemed abandoned." Id.
Nevertheless, we find that plaintiff 's argument lacks legal merit. In general, proceedings
in a divorce action are limited to the dissolution of the marriage and ancillary issues. Reed,
supra at 157-158, citing Berg, supra at 288. Thus, the rights or claims of third parties may not
be litigated in a divorce proceeding. Reed, supra at 158. More importantly, MCR 2.613(B)
provides that one judge may not set aside, vacate, or stay the judgment of another judge unless
acting as that judge's authorized successor or substitute or is "otherwise empowered" to act.
A judgment or order may be set aside or vacated, and a proceeding under a
judgment or order may be stayed, only by the judge who entered the judgment or
order, unless that judge is absent or unable to act. If the judge who entered the
judgment or order is absent or unable to act, an order vacating or setting aside the
judgment or order or staying proceedings under the judgment or order may be
entered by a judge otherwise empowered to rule in the matter. [MCR 2.613(B).]
MCR 2.613(B) is the latest codification of the longstanding rule in Michigan that a judge
has no jurisdiction to review, modify, or vacate the judgment of another coequal judge. This
Court discussed the purpose of MCR 2.613(B), and its predecessor, GCR 1963, 529.2, in Huber
v Frankenmuth Mut Ins Co, 160 Mich App 568, 573; 408 NW2d 505 (1987):
The policy behind the rule requiring litigants to appear before the judge
who made the judgment or order is that the original judge is best qualified to rule
on the matter. In addition, such a rule tends to preserve the dignity and stability
of judicial action by preventing unhappy litigants from turning to other trial
judges to have the judgment "reversed" and by preventing "judge shopping."
[Citation omitted.]
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See, also, Dodge v Northrop, 85 Mich 243, 245; 48 NW 505 (1891) ("Courts of concurrent
jurisdiction cannot set aside or modify the orders and decrees of other courts of like
jurisdiction.").
Although plaintiff argues that the trial court erred when it declined to set aside the
property-settlement portion of the divorce judgment with respect to her, MCR 2.613(B) prohibits
a judge from setting aside or vacating a judgment entered by another judge except under the
limited circumstances described in that court rule. Nothing in the record supports a finding that
the trial court could have set aside the divorce judgment that the family division of the circuit
court entered. Plaintiff provides no evidence indicating that the family division judge was absent
or unable to act, nor does she provide evidence indicating that the trial court was otherwise
empowered to make an equitable ruling regarding the terms of the divorce judgment. Applying
MCR 2.613(B), we conclude the trial judge lacked the authority to set aside or modify the
property settlement in the divorce judgment entered by another coequal judge.
Next, plaintiff argues that the trial court erred because she has stated a valid claim under
the UFTA. She asserts that the divorce judgment was only a pretext for the fraudulent transfer of
assets from defendant to Julie in order to prevent plaintiff from collecting her wrongful death
judgment. Plaintiff contends she can prove that the property settlement in the divorce judgment
was itself a fraudulent transfer within the meaning of the UFTA and that the trial court had the
authority to add Julie as a party to this action and to grant appropriate relief under the UFTA if
plaintiff successfully established that the divorce property settlement was a fraudulent transfer.
We agree.
We first reject the trial court's premise that it lacked the authority to, "in effect, undo a
judgment entered by this court in another case through another judge[.]" Although we agree that
MCR 2.613(B) precludes the trial court from modifying the divorce judgment that another court
entered, if the UFTA applies, the trial court has jurisdiction under that act to grant relief with
respect to property that defendant transferred pursuant to the agreed-upon division of marital
property incorporated into the terms of the divorce judgment. Any orders the trial court might
enter under the UFTA would not operate to modify the divorce judgment; they would operate
against persons and property within the trial court's jurisdiction.
Although in granting the divorce judgment the family division of the circuit court
exercised jurisdiction over the Tituses' martial property, it did not thereby gain exclusive
jurisdiction over it. Our Supreme Court discussed the doctrine of prior exclusive jurisdiction
when addressing competing claims by prosecutors in Oakland and Macomb counties to proceed
with a forfeiture of the same property in their respective counties. In re Forfeiture of Certain
Personal Prop, 441 Mich 77; 490 NW2d 322 (1992). The Court observed that the doctrine of
prior exclusive jurisdiction had long been recognized in Michigan. Id. at 85. The doctrine
provides that "once a court has exercised its jurisdiction over an item, other courts 'of co-ordinate
authority' may not interfere with the first court's action." Id. (citation omitted). But the Court
noted that the doctrine "is not without its limits." Id. "For a court to possess 'co-ordinate
authority' the 'two proceedings must be in all respects identical, as to the identity of the parties,
the subject matter involved, the nature of the remedies, and the character of the relief sought.'"
Id., quoting Detroit Trust Co v Manilow, 272 Mich 211, 214-215; 261 NW 303 (1935). Thus, as
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in this case, "[w]here the two proceedings are not identical, there is no conflict of jurisdiction."
In re Forfeiture, supra at 85.
Furthermore, MCR 2.613(B) does not preclude the trial court from granting relief under
the UFTA. In Ocwen Fed Bank, FSB v Int'l Christian Music Ministry, Inc, unpublished opinion
per curiam of the Court of Appeals, issued July 8, 2004 (Docket No. 249081), this Court
considered whether MCR 2.613(B) precluded the St. Clair Circuit Court from granting relief to
the bank in a quiet-title action when the Wayne Circuit Court had entered an order of
conveyance, ironically under the UFTA, to the International Christian Music Ministry, Inc.
(ICMM). The bank held a mortgage in the subject property and, after default, foreclosed.
ICMM claimed that certain transfers to the bank's mortgagor were fraudulent, so it obtained the
order of conveyance in the Wayne Circuit Court. The bank was not made a party to the Wayne
Circuit Court action and did not know of ICMM's interest in the property "until after the
mortgagor's equity of redemption period had ended and [the bank] was attempting to recover the
property." Id., slip op at 2. This Court held that the bank's action to quiet title in the St. Clair
Circuit Court was precluded because "the St. Clair Circuit Court did not have the authority to
render an order from the Wayne Circuit Court null and void contrary to MCR 2.613(B)." Id.,
slip op at 4. But, in reversing this Court, our Supreme Court disagreed. 472 Mich 923 (2005).
The Court observed that the bank "was not a party to the prior action in the Wayne Circuit Court,
and that proceeding did not determine [the] plaintiff 's right to the property." Id. Consequently
the St. Clair Circuit Court judgment quieting title in the bank "did not have the effect of setting
aside or rendering 'null and void' the order of the Wayne Circuit Court. Rather, under the facts
of this case, the St. Clair Circuit Court had plenary authority pursuant to MCL 600.2932 to vest
title in the plaintiff." Id.
Likewise here, plaintiff was not a party to the divorce proceedings, and her right to the
property at issue was not determined. Thus, if the UFTA may be applied to transfers of property
made pursuant to the marital-property division, any orders the trial court might enter to enforce a
ruling in that regard would not contravene MCR 2.613(B) by voiding, nullifying, or setting aside
the divorce judgment.
Plaintiff claims that, to the extent defendant transferred his interests in marital property to
Julie under the divorce judgment in excess of a "fair and equitable" distribution, the transfers of
property were fraudulent under the UFTA. Plaintiff contends that the trial court should have
held an evidentiary hearing to identify the marital assets in which defendant would have had an
interest but for the consent judgment. Whether a transfer of marital property pursuant to a
settlement incorporated in an uncontested divorce judgment may be a fraudulent transfer under
the UFTA with respect to a creditor of the transferring spouse is an issue of first impression in
Michigan. We conclude that it may be a fraudulent transfer.
The first issue in answering this question is whether a divorce judgment may constitute a
"transfer" within the meaning of that term in the UFTA. A panel of this Court in Hubers v
Miller, Canfield, Paddock & Stone, PLC, unpublished opinion per curiam of the Court of
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Appeals, issued April 11, 2006 (Docket No. 258746), addressed a similar question under the
Uniform Fraudulent Conveyance Act (UFCA), former MCL 566.11 to 566.23.3 In Hubers, the
plaintiff sued Donald Ritsema for fraud. The plaintiff attempted to add Ritsema's former spouse,
Lynnette Jach, as a defendant, asserting that the divorce judgment was a fraudulent conveyance
within the meaning of the UFCA because it allowed Jach to retain a condominium that had
always been her sole property. The trial court in the fraud case dismissed the plaintiff 's claims
under the UFCA. The plaintiff 's counsel—Miller, Canfield, Paddock & Stone, PLC—failed to
timely perfect an appeal. The plaintiff then brought a malpractice action against his former
counsel. This Court agreed with the law firm that an appeal would not have been successful
because the condominium was never an asset of Ritsema, the debtor. It had always belonged
solely to Jach. Hubers, supra, slip op at 2-3. The panel observed that, at most, Ritsema had a
potential interest in the condominium because it was a marital asset, but the interest was never
actualized. Id., slip op at 3. Moreover, the panel observed that a divorce judgment would not
affect a "conveyance" as defined in the UFCA: "'every payment of money, assignment, release,
transfer, lease, mortgage or pledge of tangible or intangible property, and also the creation of any
lien or encumbrance.'" Id., quoting former MCL 566.11.
The Hubers panel rejected the plaintiff 's reliance on In re Fordu, 201 F3d 693 (CA 6,
1999), a bankruptcy case that held that a transfer of a marital asset from one spouse to the other
as part of a divorce decree may be a fraudulent transfer under the Ohio version of the UFTA.
Thus, the plaintiff in Hubers cited Fordu for the proposition that a divorce judgment may be a
"conveyance" within the meaning of that term in the UFCA. The Hubers panel distinguished
Fordu both because the spouse in that case relinquished an interest in property and because the
Fordu court applied the expansive, broad, inclusive UFTA definition of "transfer" rather than the
more restricted UFCA definition of "conveyance." Hubers, supra, slip op at 3. We agree that
"transfer" is broadly defined in the UFTA as "every mode, direct or indirect, absolute or
conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an
asset, and includes payment of money, release, lease, and creation of a lien or other
encumbrance." MCL 566.31(l). We also agree with Fordu that a transfer of property from one
spouse to another as part of a property settlement incorporated in a divorce judgment may be a
"transfer" as that term is broadly defined in the UFTA.
MCL 552.401 governs the division of property in a divorce proceeding and states:
The circuit court of this state may include in any decree of divorce or of
separate maintenance entered in the circuit court appropriate provisions awarding
to a party all or a portion of the property, either real or personal, owned by his or
her spouse, as appears to the court to be equitable under all the circumstances of
the case, if it appears from the evidence in the case that the party contributed to
the acquisition, improvement, or accumulation of the property. The decree, upon
becoming final, shall have the same force and effect as a quitclaim deed of the
real estate, if any, or a bill of sale of the personal property, if any, given by the
party's spouse to the party. [MCL 552.401.]
3
1998 PA 434 both repealed the UFCA and enacted the UFTA, effective December 30, 1998.
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A court presiding over an action for divorce has the power to divide the marital property and
award this property to the respective parties in the divorce action. When the judgment is final,
each party is divested of his or her former interest in property awarded to the other pursuant to
the terms of the judgment. By its plain terms, MCL 552.401 describes a "mode" by which the
parties to a divorce "dispos[e] or part[] with an asset or an interest in an asset" with respect to
marital assets. MCL 566.31(l). Consequently, we conclude that because a property division in a
divorce judgment is a mode or method of disposing of or parting with an asset, it may be a
"transfer" within the meaning of MCL 566.31(l).
Our interpretation of the UFTA is consistent with that of courts in other jurisdictions that
have adopted the UFTA. In reviewing caselaw from other jurisdictions, we note that Michigan's
version of the UFTA was adopted without substantive changes from the model UFTA drafted by
the National Conference of Commissioners on Uniform State Laws. See LaBine, Michigan's
adoption of the Uniform Fraudulent Transfer Act: An examination of the changes effected to the
state of fraudulent conveyance law, 45 Wayne L R 1479, 1481 (1999). Oregon and Oklahoma
adopted versions of the UFTA that are substantively identical to the version of the UFTA that
Michigan adopted. Compare MCL 566.31 to 566.42 with Or Rev Stat 95.200 to 95.310 and 24
Okla Stat 112 to 123.
The Oregon Court of Appeals was faced with facts similar to those in the present case in
Greeninger v Cromwell, 140 Or App 241; 915 P2d 479 (1996). The court considered a sexualassault victim's claim that the property division in a stipulated divorce judgment should be set
aside with respect to her because it constituted a fraudulent transfer under Oregon's UFTA. The
defendant, Linwood Cromwell, was convicted of raping the plaintiff and was sentenced to three
years' imprisonment. Id. at 243. In March 1990, after Linwood was convicted, the plaintiff filed
a civil complaint alleging sexual battery. In January 1991, while the civil action was pending,
Doris Cromwell, Linwood's wife, filed for divorce. In May 1991, "a stipulated judgment of
dissolution of marriage that essentially transferred all of Linwood's real and personal property
interests to Doris" was entered in the court in which the divorce action was filed. Id. In June
1992, the plaintiff was awarded $200,000 in damages in her civil action, after she had alleged
"that the stipulated judgment was void as to her under the UFTA because Linwood acted with
the intent to hinder, delay or defraud plaintiff in her efforts to collect a judgment against him."
Id. at 243-244. The Greeninger court concluded that the plaintiff 's claim that the divorce
judgment "constitutes a fraudulent transfer under the UFTA contains allegations that, if proven,
could constitute extrinsic fraud and permit a collateral attack on the . . . judgment." Id. at 246.
The court ruled that, under the circumstances, the broad definition of "transfer" in the UFTA,
and an Oregon court rule, Or R Civ P 71(C), referring to the "inherent power of a court to modify
a judgment within a reasonable time," granted the trial court the authority to provide an
appropriate remedy to a creditor seeking to undo a fraudulent transfer. Greeninger, supra at 246.
Likewise, in Dowell v Dennis, 998 P2d 206, 212-213 (Okla Civ App, 1999), the court
concluded that a creditor could collaterally attack a property division made as part of divorce
decree between a debtor and his spouse on grounds that it was a fraudulent transfer under the
UFTA. Plaintiff Dowell obtained a $300,000 judgment against Kenneth Ray Boyer on
December 8, 1998. Two days later Tex Ann Dennis, Boyer's spouse, filed for divorce. A
divorce decree that included the agreed-upon property division was entered December 30, 1998.
Dowell alleged that the property was transferred under the agreed-upon property division without
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Boyer's receiving a reasonably equivalent value and that Boyer was either insolvent at the time
of the transfers or rendered insolvent as a result. Id. at 207. The Dowell court reviewed both
Greeninger and Glasscock v Citizens Nat'l Bank, 553 SW2d 411 (Tex Civ App, 1977), which
supported the plaintiff 's position. Further, the Dowell court examined whether the plaintiff 's
claim would violate the rule prohibiting a collateral attack on a judgment. Dowell, supra at 211.
From the authorities the court reviewed, it concluded "that a stranger to a judgment may attack
such judgment in a later proceeding on the ground of fraud where the stranger's interests, which
accrued prior to the judgment under attack, have been adversely affected, regardless of whether
such attack is labeled 'collateral' or 'direct.'" Id. at 212. The court therefore ruled that Dowell's
claim came under the fraud exception to the general rule against collateral attacks. Id.
Accordingly, the court held that Dowell's claim was not barred by the collateral-attack rule,
"first, because Dowell was not a party in the divorce proceeding, and second, because he has
alleged that the divorce decree effected a fraudulent transfer affecting his rights which had
accrued prior to the divorce decree." Id. at 212-213.
We also note that California courts interpreting California's version of the UFTA, Cal Civ
Code 3439 to 3439.12, which defines "transfer" the same as Michigan's UFTA,4 have also
upheld a creditor's right to claim that a transfer of a marital asset pursuant to a divorce property
settlement may constitute a fraudulent transfer under the UFTA. See Mejia v Reed, 31 Cal 4th
657; 3 Cal Rptr 3d 390; 74 P3d 166 (2003). The Mejia court observed: "On its face, the UFTA
applies to all transfers. . . . Consequently, most decisions of other states construing parallel
provisions of the UFTA hold that it does apply to marital property transfers, including those in
connection with divorce." Mejia, supra at 664. After analyzing the UFTA further, the Mejia
court concluded that "the UFTA applies to property transfers under [marital-settlement
agreements]." Mejia, supra at 669.
We recognize that the decisions of other jurisdictions regarding the UFTA are not
binding on this Court, but, as noted earlier, they support our conclusion that the definition of
"transfer" within the UFTA is broad enough to include various modes of disposing of assets. In
particular, we conclude that a "transfer" as defined in MCL 566.31(l) may include the division of
marital assets as part of a property-settlement agreement incorporated in an uncontested divorce
judgment.
Of course, the next question is whether plaintiff has alleged sufficient facts to present a
justiciable claim that the martial-property settlement in this case constituted a fraudulent transfer.
MCL 566.34(1) describes the circumstances under which a debtor's transfer of an asset is
considered fraudulent with respect to a creditor:
4
Cal Civ Code 3439.01(i) and MCL 566.31(l) both provide: "'Transfer' means every mode,
direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting
with an asset or an interest in an asset, and includes payment of money, release, lease, and
creation of a lien or other encumbrance."
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A transfer made or obligation incurred by a debtor is fraudulent as to a
creditor, whether the creditor's claim arose before or after the transfer was made
or the obligation was incurred, if the debtor made the transfer or incurred the
obligation in either of the following:
(a) With actual intent to hinder, delay, or defraud any creditor of the
debtor.
(b) Without receiving a reasonably equivalent value in exchange for the
transfer or obligation, and the debtor did either of the following:
(i) Was engaged or was about to engage in a business or a transaction for
which the remaining assets of the debtor were unreasonably small in relation to
the business or transaction.
(ii) Intended to incur, or believed or reasonably should have believed that
he or she would incur, debts beyond his or her ability to pay as they became due.
We initially note that although plaintiff commenced her wrongful death action before Julie filed
for divorce, plaintiff did not obtain her wrongful death judgment until October 2004. Yet MCL
566.34(1) provides that a transfer may be fraudulent regardless of "whether the creditor's claim
arose before or after the transfer was made or the obligation was incurred . . . ." Moreover, MCL
566.31(c) defines a "claim" under the UFTA as including "a right to payment, whether or not the
right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured." Accordingly, although the alleged
fraudulent transfer occurred before plaintiff reduced her wrongful death claim to judgment, the
UFTA does not preclude plaintiff from alleging that she is entitled to relief under the act because
the property settlement incorporated in the divorce judgment included one or more fraudulent
transfers.5
5
MCL 566.35 addresses circumstances in which a creditor's claim arises before the alleged
fraudulent transfer. MCL 566.35 provides:
(1) A transfer made or obligation incurred by a debtor is fraudulent as to a
creditor whose claim arose before the transfer was made or the obligation was
incurred if the debtor made the transfer or incurred the obligation without
receiving a reasonably equivalent value in exchange for the transfer or obligation
and the debtor was insolvent at that time or the debtor became insolvent as a
result of the transfer or obligation.
(2) A transfer made by a debtor is fraudulent as to a creditor whose claim
arose before the transfer was made if the transfer was made to an insider for an
antecedent debt, the debtor was insolvent at that time, and the insider had
reasonable cause to believe that the debtor was insolvent.
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Plaintiff contends that the divorce judgment was a fraudulent transfer under MCL
566.34(1)(a) because defendant transferred his marital assets to Julie with actual intent to hinder,
delay, or defraud plaintiff from collecting her wrongful death judgment. MCL 566.34(2) lists
several factors the trial court may consider in determining if a transfer of an asset was made with
the actual intent to hinder, delay, or defraud a creditor. Plaintiff argues that four statutory factors
apply here. In pertinent part, MCL 566.34(2) provides:
In determining actual intent under subsection (1)(a), consideration may be
given, among other factors, to whether 1 or more of the following occurred:
(a) The transfer or obligation was to an insider.
* * *
(d) Before the transfer was made or obligation was incurred, the debtor
had been sued or threatened with suit.
(e) The transfer was of substantially all of the debtor's assets.
* * *
(i) The debtor was insolvent or became insolvent shortly after the transfer
was made or the obligation was incurred.
Plaintiff argues that these four pertinent statutory factors demonstrate an actual intent to hinder,
delay, or defraud her pursuant to MCL 566.34(1)(a). Plaintiff also argues that the trial court
should have considered evidence establishing these factors and that it should have found that
plaintiff had stated a claim under the UFTA that the property settlement incorporated in the
divorce judgment constituted a fraudulent transfer. Consequently, plaintiff contends that she is
entitled to relief under the act. MCL 556.37; MCL 556.38. We agree that plaintiff has presented
evidence raising a justiciable claim for relief under the UFTA.
MCL 566.34(2)(a) permits a creditor to use evidence that a transfer or obligation was
made to an insider to support a claim that the transfer was made with the actual intent to hinder,
delay, or defraud the creditor. Under MCL 566.31(g)(i)(A) an "insider" may be a relative of the
debtor. A spouse is a relative according to MCL 566.31(k). Therefore, a creditor may use
evidence of a transfer from a debtor to his spouse to support a claim that the transfer was made
with the intent to defraud. Although the contested transfer of assets here concerned the division
of marital property pursuant to a divorce judgment, defendant and Julie were still married when
they agreed to the property settlement that was incorporated into the consent divorce judgment
and that transferred substantially all the marital assets to Julie. Hence, the property settlement
between the divorcing spouses supports plaintiff 's assertion that defendant intended to defraud
plaintiff when he agreed to transfer his interest in the marital assets to Julie.
MCL 566.34(2)(d) permits a creditor to use evidence that the debtor had been sued or
was threatened with a lawsuit before the transfer was made to determine if the debtor made the
transfer with the actual intent to defraud. Julie filed for divorce on November 12, 2002, less than
two months after plaintiff filed her wrongful death complaint. Furthermore, defendant and Julie
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did not agree to the terms of the divorce judgment until after this date, and the family division of
the circuit court did not enter the final divorce judgment until March 10, 2003. So the property
settlement agreement included in the divorce judgment provided for the transfer of virtually all
of defendant's interest in the marital assets to Julie. All of this took place after plaintiff filed the
wrongful death suit and is evidence under subsection 2(d) that defendant actually intended to
defraud plaintiff when he consented to the settlement and the divorce judgment.
Next, MCL 566.34(2)(e) permits a creditor to use evidence that the debtor transferred
substantially all his assets to support an assertion that the transfer was made with the actual intent
to defraud. Plaintiff alleged in her motion requesting that the trial court hold an evidentiary
hearing regarding the extent of defendant's interest in the marital property that Julie was awarded
substantially all the marital assets and that defendant was left with little property of value after
the court entered the divorce judgment. The divorce judgment supports plaintiff 's assertion. It
reveals that Julie received substantially all the marital assets as her separate property. Under
these circumstances, we conclude that plaintiff may use the transfer to Julie of substantially all of
defendant's interest in the marital assets to support her claim that the divorce judgment was a
fraudulent transfer.
Finally, MCL 566.34(2)(i) permits a creditor to introduce evidence indicating that the
debtor was insolvent or became insolvent shortly after the contested transfer to support an
assertion that the debtor made the contested transfer with the actual intent to defraud. Because
defendant was left with few assets after the divorce judgment was finalized yet remained
responsible for several outstanding and potential debts, specifically a judgment in this case, it
appears that defendant became insolvent as a result of the property transfers incorporated in the
divorce judgment. Consequently, plaintiff may use defendant's insolvency to support her
assertion that defendant agreed to the property settlement and the divorce judgment to defraud
his creditors.
MCL 566.34(2) provides that evidence supporting at least one of the listed circumstances
will support a claim that the debtor made a fraudulent transfer with the actual intent to defraud a
creditor. Plaintiff alleged that four of the listed circumstances existed in the present case and that
these circumstances indicated that defendant transferred substantially all his interest in the
marital assets to Julie with the actual intent to prevent plaintiff from collecting her wrongful
death judgment. Accordingly, we conclude that plaintiff sufficiently established a claim for
relief under the UFTA.
In reaching this conclusion, we reject Julie's argument that res judicata bars plaintiff from
asking the trial court to review the division of marital assets in the divorce proceedings. "'Res
judicata bars a subsequent action between the same parties when the evidence or essential facts
are identical.'" Sewell v Clean Cut Mgt, Inc, 463 Mich 569, 575; 621 NW2d 222 (2001) (citation
omitted). Res judicata requires that (1) the prior action was decided on the merits, (2) the decree
in the prior action was a final decision, (3) the matter contested in the second case was or could
have been resolved in the first, and (4) both actions involved the same parties or their privies.
Id.; Peterson Novelties, Inc v City of Berkeley, 259 Mich App 1, 10; 672 NW2d 351 (2003). Res
judicata does not apply here because it is undisputed that plaintiff was not a party to the divorce
proceedings and because the issue whether the division of property in the divorce judgment was
a fraudulent transfer with respect to plaintiff was not litigated in the divorce proceedings.
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We also reject the argument that permitting plaintiff to contest the property division in
the divorce judgment violates the public-policy goal of promoting final decisions in divorce
proceedings and allowing former spouses to "move on with their lives." It is the prerogative of
the Legislature, and not of this Court, to establish public policy through the political process.
Courts are not permitted "to substitute their judgment for that of legislative bodies on . . .
questions of economic and social policy." Muskegon Area Rental Ass'n v Muskegon, 465 Mich
456, 467; 636 NW2d 751 (2001).
Finally, plaintiff argues that the trial court erred by failing to add Julie as a party to this
case. Because plaintiff did not include this issue among the questions presented in her brief on
appeal, as required by MCR 7.212(C)(5), the issue has not been properly preserved on appeal.
Grand Rapids Employees Independent Union v Grand Rapids, 235 Mich App 398, 409-410; 597
NW2d 284 (1999). Nevertheless, this Court may consider an issue raised in a nonconforming
brief when it is one of law and the record is factually sufficient, as is the case here. Van Buren
Charter Twp v Garter Belt, Inc, 258 Mich App 594, 632; 673 NW2d 111 (2003).
Plaintiff argues that the trial court should have added Julie as a party to the supplemental
proceedings in this case, asserting that Julie was the beneficiary of fraudulent transfers from
defendant. MCL 600.6128 provides in pertinent part:
(1) Where it appears to the court that:
(a) The judgment debtor may have an interest in or title to any real
property, and such interest or title is disclaimed by the judgment debtor or
disputed by another person;
(b) The judgment debtor may own or have a right of possession to any
personal property, and such ownership or right of possession is substantially
disputed by another person; or
(c) A third party is indebted to the judgment debtor, and the obligation of
the third party to pay the judgment debtor is disputed; the court may, if the person
or persons claiming adversely is a party to the proceeding, adjudicate the
respective interests of the parties in such debt or real or personal property, and
may determine such property to be wholly or in part the property of a judgment
debtor, or that the debt is owed the judgment debtor.
(2) If the person claiming adversely to the judgment debtor is not a party
to the proceeding, the court shall by show cause order or otherwise cause such
person to be brought in and made a party thereto, and shall set such proceeding
for early hearing.
Before his divorce from Julie, defendant held an interest in or title to the real and
personal property that comprised the entire marital assets. But for the fraudulent transfers, the
family division of the circuit court would likely have made a fair and equitable division of the
marital assets as part of the divorce, and defendant might still own or have a right to possess
certain personal property that was included in the marital estate and might well have an interest
in or title to real property that had been marital property. Because the common meaning of the
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word "may" indicates a possibility, see Mull v Equitable Life Assurance Society of the United
States, 444 Mich 508, 519; 510 NW2d 184 (1994), defendant, as the judgment debtor, "may"
own, have an interest in, title to, or right to possession of a portion of the real and personal
marital property within the meaning of MCL 600.6128(1)(a) and (b). This is because, as
discussed earlier, plaintiff has stated and presented evidence of a justiciable claim under the
UFTA that defendant fraudulently transferred to Julie certain personal and real property pursuant
to the division of marital property in the divorce judgment. If plaintiff 's claims are proved, she
may be entitled to relief regarding property in Julie's possession, including an order voiding
certain transfers of property from defendant to Julie under the divorce judgment. MCL 556.37;
MCL 556.38. Thus, there is a possibility that defendant, the judgment debtor, may still have an
interest in, hold title to, own, or have a right to possess the real or personal property that was
included in the marital estate but was awarded to Julie in the divorce judgment. Moreover,
defendant disclaimed any interest he had in the marital assets when he consented to the divorce
judgment, and Julie disputes plaintiff 's claims that defendant retained any interest in the marital
assets.
Pursuant to MCL 600.6128(2), the trial court was required to make Julie a party to
plaintiff 's supplemental proceedings under the UFTA to determine plaintiff 's and Julie's interests
in the disputed property Julie received from defendant as part of the property settlement
incorporated in the divorce judgment. While Julie is not a party to the wrongful death lawsuit,
she claims that she has the exclusive ownership interest in substantially all the marital assets that
defendant disclaimed pursuant to the consent divorce judgment. Therefore, Julie is a "person
claiming adversely to the judgment debtor" pursuant to MCL 600.6128(2).
We reject Julie's strained construction that the phrase "person claiming adversely to the
judgment debtor" refers to plaintiff, not herself. When interpreting a statute, "we consider both
the plain meaning of the critical word or phrase as well as 'its placement and purpose in the
statutory scheme.'" Sun Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119 (1999)
(citation omitted). Furthermore, "[a]s far as possible, effect should be given to every phrase,
clause, and word in the statute." Id. Here, plaintiff is plainly a "judgment creditor" while
defendant is clearly a "judgment debtor." But both are already parties to these proceedings.
Accordingly, when read in the context of MCL 600.6128(2) and the purpose of MCL 600.6128
and the rest of chapter 61 of the Revised Judicature Act (proceedings supplementary to
judgment) as a whole, the phrase "person claiming adversely to the judgment debtor" can only
refer to a nonparty claiming an interest in property superior to that of the judgment debtor and
judgment creditor.
Moreover, to the extent that the phrase "person claiming adversely to the judgment
debtor" may be considered ambiguous, it should be interpreted in a manner consistent with the
common law. "The language of a statute should be read in light of previously established rules
of the common law, including common-law adjudicatory principles." B & B Investment Group v
Gitler, 229 Mich App 1, 7; 581 NW2d 17 (1998). "Well-settled common-law principles are not
to be abolished by implication, and when an ambiguous statute contravenes common law, it must
be interpreted so that it makes the least change in the common law." Id. Our Supreme Court has
long held that when a creditor attempts to collect a judgment by setting aside a judgment debtor's
fraudulent conveyances of his property to others, "the creditor may make all such parties
defendants . . . ." Hulbert v Detroit Cycle Co, 107 Mich 81, 84; 64 NW 950 (1895). The
-15-
Hulbert Court explained, "It would certainly be a reproach upon equity jurisprudence if a
creditor were compelled to institute a separate suit against each person to whom a debtor has
fraudulently conveyed his property." Id. Accordingly, the common law supports our
interpretation of the statute and also supports our conclusion that the trial court erred by
declining to make Julie a party to plaintiff 's supplemental proceedings under the UFTA.
Finally, we note that the principles concerning joinder of parties set forth in the court
rules instruct that Julie was required to be added as a party defendant to plaintiff 's supplemental
proceedings. MCR 2.205(A), regarding necessary joinder of parties, reads:
Subject to the provisions of [other rules not applicable here], persons
having such interests in the subject matter of an action that their presence in the
action is essential to permit the court to render complete relief must be made
parties and aligned as plaintiffs or defendants in accordance with their respective
interests.
Not only is Julie's joinder necessary to accord her due process while litigating her and plaintiff 's
claims to the disputed property, her presence is also essential to permit the trial court to render
complete relief if plaintiff 's UFTA claim is successful.
We reverse the trial court's February 16, 2005, order that dissolved the January 21, 2005,
restraining order, denied plaintiff 's request for an evidentiary hearing, and denied plaintiff 's
motion to add Julie as a party to plaintiff 's supplemental collection proceedings. We remand for
Julie Swabash to be added to the supplemental proceedings as a party defendant and for the trial
court to conduct further proceedings consistent with this opinion. We do not retain jurisdiction.
White, J., concurred.
/s/ Jane E. Markey
/s/ Helene N. White
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