DIANNE L HAAS V WILLIAM H HATZAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
DIANNE L. HAAS,
November 13, 2008
Oakland Circuit Court
LC No. 2006-723015-DO
WILLIAM H. HATZ,
Before: Zahra, P.J., and Cavanagh and Meter, JJ.
In this divorce action, defendant appeals as of right from the trial court’s order granting
summary disposition to plaintiff and indicating that there was no genuine issue of material fact
because the prenuptial agreement was unambiguous in requiring that the proceeds of the marital
home be divided evenly. We affirm.
Before marrying, plaintiff and defendant purchased a vacant lot in Novi, where they
planned to construct a new home. The parties entered into a prenuptial agreement on May 14,
1993. Article III of the prenuptial agreement governed distribution of marital property in the
case of divorce. While the agreement stated that the properties of the parties were to be free and
clear of any claims the other party might ordinarily have in the case of divorce, the agreement
specifically excepted the Novi home that the parties intended to build together. The agreement
specified that, in the event of divorce, the home was to be sold and the proceeds were to be
distributed in the following order: to commercial lenders, for mechanics liens/real estate taxes,
for mortgage liens in favor of plaintiff or defendant, and 50/50 between plaintiff and defendant.
Another provision required that either “party shall, upon the request of the other, execute,
acknowledge, and deliver any additional instruments that may be reasonably required to carry the
intention of th[e] Agreement into effect . . . .” The agreement also included an integration
Plaintiff spent $80,000 in helping procure the lot for the marital home. Defendant,
however, spent more than $2,100,000 on the marital home. Neither party ever requested that a
mortgage lien be created in his or her favor before the divorce action was initiated. Plaintiff filed
for divorce on July 12, 2006. The parties attempted mediation unsuccessfully on April 12, 2007.
Defendant presented a mortgage lien in his favor for plaintiff to sign during mediation. Plaintiff
refused to sign the mortgage lien at mediation, and the lien has never been executed or recorded.
Defendant argued below that a genuine issue of material fact existed in that nothing in the
contract stated when or how a party would be entitled to a mortgage lien on the Novi home and
nothing stated what the cutoff date would be for the creation of a lien. Defendant also urged the
trial court to impose an equitable mortgage. The trial court found that defendant had failed to
show that there existed a genuine issue of material fact and granted plaintiff’s motion for
summary disposition. The judgment of divorce ordered that the proceeds of the home sale be
divided evenly after satisfying the normal costs of sale.
An appellate “[c]ourt reviews de novo a trial court's grant or denial of a motion for
summary disposition.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008).
Although the attorney who drafted the prenuptial agreement urged the parties by letter to
enter into mortgages based on their contributions toward the home, the parties never did so.
Moreover, the correspondence of the drafting attorney is barred by the parol evidence rule
because the prenuptial agreement contained a merger clause. See Romska v Opper, 234 Mich
App 512, 516; 594 NW2d 853 (1999). The plain language of the contract did not require either
party to enter into a mortgage for the other party simply because that party contributed toward
the marital home. Defendant argues that the provision of the contract requiring execution of
documents needed to carry out the intention of the contract created a duty for plaintiff to sign a
mortgage lien. We reject this argument because nowhere in the prenuptial agreement is there an
intention expressed to keep separate the funds spent on the marital home.
Defendant’s claim based on an equitable mortgage is likewise without merit.
Defendant’s claim is unlike the typical claim of equitable mortgage. “Most equitable mortgage
cases appear to involve treating what on its face is an absolute conveyance as a mortgage.”
Townsend v Chase Manhattan Mortg Corp, 254 Mich App 133, 138; 657 NW2d 741 (2002).
The present case does not involve a vendor-vendee situation (a conveyance), but rather a vendeevendee situation (a joint contract). Nothing in the record established that plaintiff was simply
intended to be a creditor, as opposed to a joint owner, of the property. Cf., Burns v Stevens, 236
Mich 447, 452-453; 210 NW 483 (1926).
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter