IN RE BARKER ESTATE (Per Curiam Opinion)
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
In re Estate of JENNIFER M. BARKER
GARY TABOR, Personal Representative of the
Estate of JENNIFER M. BARKER, and GARY
TABOR, Individually,
UNPUBLISHED
June 23, 2011
Petitioners-Appellees,
v
No. 297289
Macomb Probate Court
LC No. 2003-177431-DE
SUSAN MANETTA,
Respondent-Appellant,
and
MAURICE BARKER,
Respondent.
Before: BORRELLO, P.J., and JANSEN and SAAD, JJ.
PER CURIAM.
Appellant Susan Manetta appeals by right the probate court’s order providing for the
distribution of the wrongful death proceeds. We affirm.
Manetta maintains that the distribution to her, as compared to appellee Gary Tabor, was
grossly inequitable and ignored nearly all of the objective evidence offered during the
evidentiary hearing. Manetta consequently argues that the probate court abused its discretion by
failing to award her more of the wrongful death proceeds. We cannot agree.
Findings of fact made by a probate court sitting without a jury are reviewed for clear
error. In re Bennett Estate, 255 Mich App 545, 549; 662 NW2d 772 (2003). Similarly, a court’s
“decision concerning the distribution of settlement proceeds in a wrongful-death matter is
reviewed for clear error.” Reed v Breton, 279 Mich App 239, 241; 756 NW2d 89 (2008).
-1-
As stated by this Court in McTaggart v Lindsey, 202 Mich App 612, 616; 509 NW2d 881
(1993):
A claim for loss of society and companionship under the wrongful death
act addresses compensation for the destruction of family relationships that results
when one family member dies. The only reasonable means of measuring the
actual destruction caused is to assess the type of relationship the decedent had
with the claimant in terms of objective behavior as indicated by the time and
activity shared and the overall characteristics of the relationship. [Citations
omitted.]
“[N]o precise formula exists for the loss of society and companionship.” May v Grosse Pointe
Park, 122 Mich App 295, 298; 332 NW2d 411 (1982). Those determinations are for the trier of
fact, “and a reviewing court will not arbitrarily substitute its judgment for that of the fact finder.”
Id.
The record reflects that decedent Jennifer Barker had a turbulent history with Manetta,
who was Jennifer’s mother. When Jennifer was 11 years old, she was very unhappy living with
Manetta, and began living with Tabor, her father. Both Manetta and Tabor lived in Warren,
Michigan. Shortly thereafter, Manetta moved to Traverse City, Michigan. Although there were
frequent telephone conversations between Jennifer and Manetta, Jennifer did not see Manetta
often. Jennifer felt abandoned by Manetta because Manetta did not make an effort to see her.
Jennifer’s relationship with Manetta also included frequent disagreements, which continued after
Manetta moved back to the Warren area in 1995. Carol Devnani, an expert in counseling, treated
Jennifer from 1996 through 2003, and it was Devnani’s opinion that Jennifer’s relationship with
Manetta was conflicted and characterized by abandonment issues. Devnani testified that
Jennifer’s relationship with Manetta was difficult for Jennifer, who felt rejected by Manetta.
Hence, although Manetta maintained more contact with Jennifer after Manetta moved back from
Traverse City, Jennifer continued to be unhappy with their relationship.
Tabor testified that he was very close with Jennifer while she was growing up. Devnani
supported Tabor’s testimony in this regard. Devnani also testified that it was her opinion that
Jennifer felt safe with Tabor, Jennifer was attached to Tabor, and Tabor provided Jennifer with
stability. Moreover, Jennifer trusted Tabor, who was Jennifer’s primary “caretaker.” Devnani
further testified that whereas Jennifer’s conflicts with Tabor related to everyday issues,
Jennifer’s conflicts with Manetta were much more severe. Tabor also provided Jennifer with
financial support while Manetta did not.
Based on the record before us, we cannot conclude that the probate court’s findings were
clearly erroneous. In re Bennett Estate, 255 Mich App at 549. Although the record reflects that
Jennifer and Manetta did maintain a relationship, there was evidence to support the distribution
of wrongful death proceeds on the basis of the comparative strength of Manetta’s and Tabor’s
relationships with Jennifer. See In re Claim of Carr, 189 Mich App 234, 238; 471 NW2d 637
(1991) (noting that a trial court’s award of loss of society and companionship is reviewed “to
determine if there is evidence to support the distribution of the estate on the basis of the parties’
relationships to the decedent”). While Jennifer’s death destroyed a healthy, relatively strong
relationship with Tabor, it destroyed a less-established, comparatively weak relationship with
-2-
Manetta. See McTaggart, 202 Mich App at 616. Manetta has not demonstrated that the award
was not fair and equitable in light of the facts of the case. In re Claim of Carr, 189 Mich App at
240-241. We perceive no clear error in the probate court’s distribution of the wrongful-death
settlement proceeds. See Reed, 279 Mich App at 241.
Manetta also argues that Tabor’s recovery should have been limited to the amount sought
in his petition. However, appellant has provided no applicable law to support her position. The
only case to which she refers is Gibeault v Highland Park, 49 Mich App 736, 741; 212 NW2d
818 (1973). But in Gibeault, this Court clearly held that “the trial court did have authority to
award a greater amount of actual damages than plaintiff had requested . . . .” Id. (emphasis
added). An appellant may not merely announce her position and leave it to this Court to discover
and rationalize the basis for the claims; nor may she give issues cursory treatment with little or
no citation to supporting authority. See MCR 7.212(C)(7); Peterson Novelties, Inc v Berkley,
259 Mich App 1, 14; 672 NW2d 351 (2003). We find no merit in appellant’s assertion that
Tabor’s recovery should have been limited to the amount sought in his petition to distribute the
wrongful death proceeds.
Manetta next argues that both the original personal representative and the subsequent
personal representative mismanaged the estate assets by allowing Jennifer’s home to go into
foreclosure. Thus, Manetta argues, the personal representatives’ share of the wrongful death
proceeds should have been reduced. “[T]he existence of a legal duty is a question of law for the
court.” In re Baldwin Trust, 274 Mich App 387, 401; 733 NW2d 419 (2007). In addition, a
probate court’s decision whether to surcharge a personal representative is reviewed for an abuse
of discretion. Id. at 397. “[A] personal representative may be held liable to interested persons
for an improper exercise of his or her powers, or an improper failure to exercise powers, if there
is a breach of fiduciary duty.” Id. at 401; see also MCL 700.3712 and MCL 700.1308.
In this case, Manetta stipulated to an immediate distribution of wrongful death proceeds
to Jennifer’s husband and the original personal representative, Maurice Barker. This amount
notably included $5,000 for the reimbursement of funeral expenses. Manetta has thus waived
her claims against Maurice. See Chapdelaine v Sochocki, 247 Mich App 167, 177; 635 NW2d
339 (2001) (noting that “[a] party cannot stipulate a matter and then argue on appeal that the
resultant action was error”).
Tabor, who was the subsequent personal representative, testified that Jennifer’s house
went into foreclosure before he became the successor personal representative of Jennifer’s estate
and that he “didn’t know anything about it until after [he] was made representative of the estate.”
Based on this record, we find no evidence that Tabor mismanaged the estate assets by allowing
Jennifer’s home to go into foreclosure. Accordingly, we cannot conclude that the probate court
abused its discretion by declining to surcharge Tabor for the loss of equity in Jennifer’s home as
a result of the home going into foreclosure.
Manetta further argues that the settlement should not have been reduced by any payment
to Tabor’s attorney after the petition to approve the settlement and distribute the proceeds was
filed because any active role by Tabor’s attorney after that point would have constituted a
conflict of interest. Manetta cites McTaggart, 202 Mich App 612, in support of her proposition.
We note that this issue is not contained in the statement of questions presented, and is therefore
-3-
waived on appeal. MCR 7.212(C)(5); English v Blue Cross Blue Shield of Mich, 263 Mich App
449, 459; 688 NW2d 523 (2004). At any rate, however, this issue has no merit. Unlike in
McTaggart, the same attorney was not representing the personal representative as a fiduciary and
as a claimant in the present case. McTaggart, 202 Mich App at 618. Also unlike the facts of
McTaggart, the court in this case did not order that Tabor receive the entire amount of the
wrongful death proceeds. Id. Indeed, in this case Tabor requested less than he was ultimately
awarded by the probate court. Quite simply, Manetta has failed to demonstrate that there was a
conflict of interest. Moreover, a review of the record reflects that there were matters in which
the personal representative’s attorney necessarily needed to be involved that occurred after the
petition to approve the settlement and distribute the proceeds was filed. Consequently,
Manetta’s assertion that Tabor’s attorney should not have been paid attorney fees after the date
of the petition lacks merit.
Affirmed.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Henry William Saad
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
