SUSAN TKACHIK V FRANK MANDEVILLE JR
Annotate this Case
Download PDF
Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED JULY 27, 2010
STATE OF MICHIGAN
SUPREME COURT
SUSAN TKACHIK, Personal Representative
of the Estate of JANET MANDEVILLE,
Plaintiff-Appellant,
v
No. 138460
FRANK MANDEVILLE, JR.,
Defendant-Appellee.
BEFORE THE ENTIRE BENCH
MARKMAN, J.
This case presents a relatively narrow question, one that is accessible to both the
lay and legal reader: whether a husband who has abandoned his wife for the final 18
months of her life while she was battling cancer, who had no personal contact with her
during this period, and who did not even attend her funeral, should have to contribute his
share of the mortgage, tax, and insurance payments that the wife alone paid during her
final months on real properties that they owned together. In legal terms, the question
becomes whether the doctrine of contribution can be applied between co-tenants in a
tenancy by the entirety where one spouse has willfully abandoned the other before that
spouse’s death and, thus, is not a “surviving spouse.” See MCL 700.2801(2)(e)(i). In
either iteration of the question before this Court, the core issue is the same, and the
inequities in this case are inescapable. Accordingly, the resolution of this case turns
exclusively on whether the firmly established doctrine of contribution can be
appropriately applied on these facts. Because there is no adequate remedy at law for the
harm plaintiff alleges, because no other governing legal or equitable principle precludes
this remedy, and because the relief plaintiff seeks-- when properly understood-- will not
upset the common law of this state, we conclude that the equitable doctrine of
contribution can be appropriately applied in this context. Therefore, we reverse the
judgment of the Court of Appeals and remand to the probate court for proceedings not
inconsistent with this opinion.
I. FACTS AND HISTORY
Janet and Frank Mandeville were married in 1975 and remained so until Janet died
on July 13, 2002, after a battle with breast cancer. The Mandevilles acquired two
properties during their marriage. In 1984, they acquired a marital residence in Macomb
County, and, in 1987, they acquired a parcel of property in Ogemaw County. They
owned both properties as tenants by the entirety.
Accordingly, by the right of
survivorship inherent in a tenancy by the entirety, the marital real properties passed to
Frank upon Janet’s death. Without question, he now owns them in fee simple absolute.
In the last decade of their marriage, Frank Mandeville was often out of the country
for extended periods. Specifically, he was absent for the 18 months preceding Janet’s
2
death. During this period, Frank did not attempt to call Janet or otherwise communicate
with her, even though, as he acknowledged, he knew that she was seriously ill. He did
not attend her funeral. In Frank’s absence, Janet maintained the properties and was
responsible for paying the taxes, insurance, and mortgage. In Frank’s absence, Janet was
cared for by her sister, Susan Tkachik.
In the months before she died, Janet executed a living trust and final will that
disinherited her husband and left everything to her mother, Wanda Tkachik. Janet’s will
stated: “It is my specific intent to give nothing to my husband under this Trust
Agreement. If I am survived by my husband, for the purposes of this Trust Agreement,
he will be deemed to have predeceased me.” In addition, the will named Susan Tkachik
(hereafter Tkachik) the personal representative of the estate. Tkachik now brings this
action in that capacity. Moreover, consistent with Janet’s unequivocal intent to disinherit
her husband in her will, before she died, Janet also transferred her retirement benefits so
that they would not pass to Frank, and she unsuccessfully attempted to defeat the right of
survivorship by transferring her interest in the marital properties by quitclaim deed.
Several months after Janet’s death, Frank Mandeville filed a petition for probate as
well as a complaint seeking to set aside Janet’s will and trust. Tkachik, acting as the
personal representative of her deceased sister’s estate, moved for summary disposition,
arguing that Frank Mandeville should not be considered a surviving spouse because he
had been willfully absent from the marriage for more than a year.1 Applying the clear
1
MCL 700.2801(2) provides, in relevant part:
3
language of MCL 700.2801(2), the probate court ruled that Frank Mandeville was not a
“surviving spouse” and granted plaintiff’s motion in October 2003.
In November 2003, Tkachik filed suit on behalf of the estate in probate court to
effectuate her sister’s intent to disinherit Frank Mandeville completely. Plaintiff sought a
determination that, because defendant was not a “surviving spouse,” the Mandevilles
should be considered tenants in common with regard to their real properties and
defendant should not obtain fee ownership of the properties. The probate court denied
plaintiff’s request, reasoning that the surviving spouse statute is limited in its application
and does not destroy a tenancy by the entirety. Therefore, it properly held that upon
Janet’s death, fee-simple title to the properties had vested in defendant.
Plaintiff amended her complaint to seek contribution from defendant for the
monetary expenses Janet incurred in maintaining the properties before her death. The
probate court granted defendant’s motion for summary disposition on the estate’s
For purposes of parts 1 to 4 of this article and of section 3203, a
surviving spouse does not include any of the following:
* * *
(e) An individual who did any of the following for 1 year or more
before the death of the deceased person:
(i) Was willfully absent from the decedent spouse.
Parts 1 through 4 of Article II of the Estates and Protected Individuals Code (EPIC),
MCL 700.2010 et seq., relate to: (1) intestate succession, (2) spousal elections, (3)
spouses or children not provided for in the will, and (4) exempt property and allowances.
MCL 700.3203 governs priority among persons seeking appointment as a personal
representative.
4
contribution claim. Plaintiff filed a delayed application for leave to appeal in the Court of
Appeals, which was denied for lack of merit on the grounds presented. Tkachik v
Mandeville, unpublished order of the Court of Appeals, entered November 16, 2006
(Docket No. 270253). Initially, plaintiff’s application for leave to appeal in this Court
was also denied. Tkachik v Mandeville, 477 Mich 1057 (2007). However, this Court
granted plaintiff’s motion for reconsideration, and, on reconsideration and in lieu of
granting leave to appeal, remanded the case to the Court of Appeals as on leave granted
to consider “whether a contribution claim against the defendant, based on an unjust
enrichment theory, is appropriate under the facts of the case.” Tkachik v Mandeville, 480
Mich 898 (2007).2
On remand, the Court of Appeals affirmed the probate court’s decision. Tkachik v
Mandeville, 282 Mich App 364, 366; 764 NW2d 318 (2009). The panel reasoned that
defendant had not been unjustly enriched because he had only received “that which was
given to him by operation of law, without any obligation . . . .” Id. at 372. Moreover, the
panel emphasized the fact that Janet was deceased, and stated that it could not enter a
“posthumous divorce” based on “perceived inequities” because “Michigan law does not
recognize such an action.” Id. at 373, 378. Plaintiff again appealed in this Court. We
granted plaintiff’s application for leave to appeal, directing the parties to address the
following issue:
2
The order cited three cases that the parties were directed to consider: Turner v
Turner, 147 Md App 350; 809 A2d 18 (2002); Crawford v Crawford, 293 Md 307; 443
A2d 599 (1982); and Cagan v Cagan, 56 Misc 2d 1045; 291 NYS2d 211 (Sup Ct, 1968).
5
[W]hether, when a husband has abandoned his wife for the year and
a half preceding her death, and the wife alone has made mortgage, tax, and
insurance payments on property held as tenants by the entirety, the wife (or
her estate) may receive contribution for the husband’s share of these
payments. [Tkachik v Mandeville, 485 Mich 853 (2009).]
II. STANDARD OF REVIEW
Plaintiff’s claim sounds in equity, and requires this Court to consider whether the
common law doctrine of contribution is appropriately applied in this context. We hear
and consider equity cases de novo on the record on appeal. Biske v City of Troy, 381
Mich 611, 613; 166 NW2d 453 (1969).
The interpretation and applicability of a
common-law doctrine is also a question that is reviewed de novo. James v Alberts, 464
Mich 12, 14; 626 NW2d 158 (2001). “‘[T]he granting of equitable relief is ordinarily a
matter of grace, and whether a court of equity will exercise its jurisdiction, and the
propriety of affording equitable relief, rests in the sound discretion of the court, to be
exercised according to the circumstances and exigencies of each particular case.’”
Youngs v West, 317 Mich 538, 545; 27 NW2d 88 (1947) (citation omitted).
III. ANALYSIS
Plaintiff asks this Court to exercise its equitable powers. Therefore, this case
requires an understanding of the principles that guide this Court in determining whether
to provide equitable relief, a determination that, in this case, also requires consideration
of the law governing tenancy by the entirety, the doctrine of contribution, and claims for
unjust enrichment.
6
A. EQUITABLE PRINCIPLES
In its sound discretion, this Court may grant equitable relief “[w]here a legal
remedy is not available[.]” Powers v Fisher, 279 Mich 442, 448; 272 NW 737 (1937).
“A remedy at law, in order to preclude a suit in equity, must be complete and ample, and
not doubtful and uncertain . . . .”
Edsell v Briggs, 20 Mich 429, 433 (1870).
Furthermore, to preclude a suit in equity, a remedy at law, “both in respect to its final
relief and its modes of obtaining the relief, must be as effectual as the remedy which
equity would confer under the circumstances . . . .” Powers, 279 Mich at 447, citing 1
Pomeroy Equity Jurisprudence (3d ed), § 280. Equity jurisprudence “‘mold[s] its decrees
to do justice amid all the vicissitudes and intricacies of life.’” Spoon-Shacket Co, Inc v
Oakland Co, 356 Mich 151, 163; 97 NW2d 25 (1959) (citation omitted).
While
legislative action that provides an adequate remedy by statute precludes equitable relief,
the absence of such action does not. This is so because “[e]very equitable right or
interest derives not from a declaration of substantive law, but from the broad and flexible
jurisdiction of courts of equity to afford remedial relief, where justice and good
conscience so dictate.” 30A CJS, Equity, § 93, at 289 (1992). Equity allows “complete
justice” to be done in a case by “adapt[ing] its judgment[s] to the special circumstances
of the case.” 27A Am Jur 2d, Equity, § 2, at 520-521.
B. TENANCY BY THE ENTIRETY
A tenancy by the entirety is a type of concurrent ownership in real property that is
unique to married persons. Field v Steiner, 250 Mich 469, 477; 231 NW 109 (1930). In
Long v Earle, 277 Mich 505, 517; 269 NW 577 (1936), this Court explained that a
7
defining incident of this tenancy under Michigan law is “that one tenant by the entirety
has no interest separable from that of the other” and “has nothing to convey or mortgage
or to which he alone can attach a lien.” Thus, when title to real estate is vested in a
husband and wife by the entirety, separate alienation by one spouse only is barred. Id.
Furthermore, MCL 557.71 states, “a husband and wife shall be equally entitled to the
rents, products, income, or profits, and to the control and management of real or personal
property held by them as tenants by the entirety.”
In addition to these rights, both spouses have a right of survivorship, meaning that,
in the event that one spouse dies, the remaining spouse automatically owns the entire
property. MCL 700.2901(2)(g); Rogers v Rogers, 136 Mich App 125, 134; 356 NW2d
288 (1984). Thus, entireties properties are not part of a decedent spouse’s estate, and the
law of descent and distribution does not apply to property passing to the survivor. Id. at
134-135.
C. CONTRIBUTION AND UNJUST ENRICHMENT
Contribution is an equitable remedy based on principles of natural justice.
Lorimer v Julius Knack Coal Co, 246 Mich 214, 217; 224 NW 362 (1929). In Caldwell v
Fox, 394 Mich 401, 417; 231 NW2d 46 (1975), this Court explained:
The general rule of contribution is that one who is compelled to pay
or satisfy the whole or to bear more than his aliquot share of the common
burden or obligation, upon which several persons are equally liable or
which they are bound to discharge, is entitled to contribution against the
others to obtain from them payment of their respective shares. [Emphasis
added.]
8
This Court has applied the doctrine of contribution between co-contractors. Comstock v
Potter, 191 Mich 629, 637; 158 NW 102 (1916) (“[O]ne who has paid more than his
share of the joint obligation may recover contribution from his co-contractors.”). And, in
Strohm v Koepke, 352 Mich 659, 662-663; 90 NW2d 495 (1958), this Court recognized
the right of equitable contribution for tenants in common. Strohm grounded a co-tenant’s
right to contribution “upon purely equitable considerations,” explaining that “[i]t is
premised upon the simple proposition that equality is equity.” Id. at 662.
Plaintiff predicates her claim for contribution on a theory of unjust enrichment.
Unjust enrichment is defined as the unjust retention of “‘money or benefits which in
justice and equity belong to another.’” McCreary v Shields, 333 Mich 290, 294; 52
NW2d 853 (1952) (citation omitted). “No person is unjustly enriched unless the retention
of the benefit would be unjust.” Buell v Orion State Bank, 327 Mich 43, 56; 41 NW2d
472 (1950). Buell also explained: “‘One is not unjustly enriched . . . by retaining benefits
involuntarily acquired which law and equity give him absolutely without any obligation
on his part to make restitution.’” Id. (citation omitted).
D. APPLICATION
In this case, we must determine: (a) whether defendant was unjustly enriched; and,
if so, (b) whether the doctrine of contribution can be appropriately applied in these
circumstances to prevent his unjust enrichment.
After carefully considering the
governing legal and equitable principles, and after meaningfully engaging with “‘the
circumstances and exigencies of [this] particular case,’” as equity requires, Youngs, 317
Mich at 545 (citation omitted), we answer both questions in the affirmative.
9
1. UNJUST ENRICHMENT
Defendant argues, and the Court of Appeals and the dissents in this Court agree,
that he has not been unjustly enriched because he “has only received that which was
given to him by operation of law, without any obligation . . . .” Tkachik, 282 Mich App
at 372. In support of this conclusion, the Court of Appeals relied on Buell for the
proposition that there can be no unjust enrichment where a person comes into ownership
of property that “‘law and equity give him absolutely without any obligation on his part
to make restitution.’” Buell, 327 Mich at 56 (citation omitted). There are significant
legal and factual flaws in this argument, which we herein reject. As a threshold matter,
this conclusion is based on a misreading of Buell, the primary authority offered in support
of the conclusion that defendant has not been unjustly enriched. The Court of Appeals
and the dissents fail to note what is most obvious in Buell, namely, that its limitation on a
finding of unjust enrichment requires the consideration of both legal and equitable
factors.
Thus, even though by operation of law defendant received the property
“absolutely,” he is still unjustly enriched if he is obligated by equity to make restitution.
Id. Therefore, Buell does not preclude a finding that defendant was unjustly enriched.
Rather, its rule plainly states exactly the contrary-- that a defendant may be held to have
been unjustly enriched if equity demands that he make restitution.
On the facts of this case, we conclude that equity, and the principles of natural
justice embodied therein, call on defendant Frank Mandeville to contribute his share of
the property maintenance costs incurred by his wife Janet Mandeville, who bore these
obligations alone in the 18 months before her death. While defendant was willfully
10
absent from the marriage, and from the marital properties, Janet maintained the properties
and incurred all the necessary expenses. In light of these facts, the Court of Appeals’ and
the dissents’ conclusion that defendant received the properties “without any obligation” is
an oversimplification that is at odds with the realities of this case. Significantly, this
conclusion does not account for what would have happened to the properties had Janet
not made the mortgage, tax, and insurance payments. Janet made those payments to
preserve the undivided interest in the properties that she and her husband shared. Failure
to make these mortgage and tax payments would have resulted in the loss of the
properties to foreclosure. Simply put, but for Janet’s payments, there would be no
property to pass to defendant by operation of law.3 Considering this reality, we are
unable to conclude that defendant received the properties “‘without any obligation on his
part to make restitution.’” Buell, 327 Mich at 56 (citation omitted).
The Court of Appeals’ and the dissents’ contrary conclusion is also based on a
misunderstanding concerning the relief plaintiff requests.
The Court of Appeals
determined that a finding of unjust enrichment “would subvert the protective purpose of
the tenancy by the entirety, as it would permit the state to pierce the marital relationship
and divide property contrary to how the parties chose to hold the property.” Tkachik, 282
Mich App at 376. The flaw in this argument is that plaintiff is not seeking to divide
3
The dissents do not account for this reality in their decisions. Rather, the fact
that defendant now owns the properties only because Janet preserved the couple’s
undivided interest and prevented foreclosure is determinedly overlooked in the dissenting
opinions.
11
marital real property, and the relief she actually seeks will not “subvert” or in any other
way affect the law of tenancies by the entirety. Indeed, plaintiff is legally incompetent to
divide or alter defendant’s interest in the marital properties because, as the parties
acknowledge, defendant already owns the properties in fee simple absolute, as they
passed to him solely and absolutely upon Janet’s death.4 What plaintiff is seeking as the
personal representative of Janet’s estate is contribution for the past monetary expenses
that Janet incurred in maintaining the marital properties while defendant was willfully
absent from Janet and the properties. Thus, the fact that the properties undisputedly
passed to defendant automatically by operation of law does not defeat a finding that
defendant was unjustly enriched or bar a claim for contribution. As the facts here
illustrate, permitting a contribution claim in these circumstances will not interfere with
well-settled principles governing property held in a tenancy by the entirety and
specifically will not affect the unencumbered right of survivorship.5 Janet and Frank
4
In fact, not only is plaintiff legally incompetent to divide the marital real
properties, Janet herself could not have unilaterally divested defendant of his interest in
the properties that they held as tenants by the entirety. Thus, although Janet attempted
diligently before her death to defeat the right of survivorship by transferring her interest
in the properties by quitclaim deed, this deed was ineffectual in nullifying defendant’s
rights in the properties. While Janet’s efforts have no legal significance in regards to
defendant’s ownership of the properties, they do evidence her clear intentions regarding
whether she wanted defendant to benefit from her preservation of the properties, for
which she alone took responsibility in his absence.
5
Justice YOUNG’s dissent states that “[t]his is true only to a certain extent.” Post
at ___. In light of the reality that defendant owns the properties in fee simple absolute, I
fail to see how this is anything but completely true. His dissent itself acknowledges that
this decision “does not alter the actual ownership of the property,” but then argues that
this analysis “force[s] defendant to compensate the estate for the privilege of such
12
Mandeville held their properties as tenants by the entirety; upon Janet’s death, such
properties passed to Frank solely and absolutely, at which point he owned them in fee
simple absolute.
The law of tenancy by the entirety, and specifically the right of
survivorship, has already been given full effect in this case, a result that is unaltered when
Frank is required to pay contribution to plaintiff for past monetary expenses.6
In sum, when the applicable law is understood, and the specific circumstances of
this case are evaluated in the context of a contribution claim, we conclude that defendant
has been unjustly enriched by his retention of “‘money or benefits which in justice and
equity belong to another.’” McCreary, 333 Mich at 294 (citation omitted). Defendant
ownership-- notwithstanding the fact that both the law and the express means by which
the Mandevilles themselves titled their property provide this property to Frank
Mandeville with no conditions whatsoever.” Post at ___. (Emphasis in original.) No
one disputes that under the law of tenancy by the entirety, and specifically by right of
survivorship, defendant took the properties without any conditions or obligations at law.
The open question presented in this case, however, is whether defendant in the instant
circumstances is obligated now by equity to contribute his share of the property
maintenance payments.
6
The analysis and conclusion are the same when the question of whether
defendant is unjustly enriched is viewed through a contractual lens. See Mich Med Serv v
Sharpe, 339 Mich 574, 577; 64 NW2d 713 (1954) (“Enrichment of [a person or entity] is
not unjust if pursuant to the express agreement of the parties, fairly and honestly arrived
at before hand.”). The fact that the properties passed to Frank in accordance with the
agreement the Mandevilles made when taking title as tenants by the entirety does not
preclude a finding that he was unjustly enriched because, once again, plaintiff is not
seeking to affect that contract. Permitting a contribution claim to prevent unjust
enrichment will not interfere with the parties’ freedom to contract. Janet and Frank
contracted to hold the properties by the entirety with a right of survivorship; when
defendant is required to pay contribution to plaintiff, this contract will, notwithstanding,
already have been given full effect: the properties passed to defendant by right of
survivorship, at which point, as now, he held title in fee simple absolute.
13
owns the marital properties only because of Janet’s maintenance payments. Considering
his willful abandonment of Janet, by which she alone became responsible for the
properties, for defendant to retain the monies that preserved these properties and made his
ownership possible would be unjust.
2. ADEQUATE REMEDY
The next consideration is whether the doctrine of contribution can be appropriately
applied in these circumstances to prevent defendant’s unjust enrichment. In making this
determination, the first question to be addressed is whether there is an adequate legal
remedy that precludes this Court from providing equitable relief. Powers, 279 Mich at
447. We conclude that there is not. Although Justice YOUNG claims that “[h]ere Janet
Mandeville had several available remedies that she declined to pursue,” specifically
arguing that Janet could have filed for divorce or separate maintenance, post at ___, one
simply does not need to think too long or too hard about the legal remedies of divorce or
separate maintenance to realize that they are entirely inadequate for several reasons.
First, divorce, and by extension separate maintenance, is an inappropriate remedy for
many people, especially those for whom divorce is religiously or morally objectionable.7
7
By bringing an action for separate maintenance, a spouse is exposed to a
counterclaim and judgment for divorce. See MCL 552.7(2) through (4). Notably, if a
counterclaim for divorce is filed, such judgment is mandatory. MCL 552.7(4)(b)
(providing that “the court shall enter . . . [a] judgment dissolving the bonds of matrimony
if a counterclaim for divorce has been filed”) (emphasis added). Thus, if divorce is an
inappropriate remedy because of a person’s religious or moral beliefs, separate
maintenance is also. Although Justice YOUNG’s dissent does not dispute our
understanding of the procedural workings of an action for separate maintenance set forth
in the statute, it charges that we do not adequately explain why separate maintenance
14
Second, divorce is a disproportionate remedy when compared to the relief actually
sought-- contribution for the past monetary expenses that Janet incurred in maintaining
the properties.8
The Court of Appeals and dissents disagree. They fault Janet for not taking legal
steps to dissolve her marriage and accuse plaintiff of attempting to create a “‘de facto’”
divorce that would “distribute jointly held property” in the absence of such action.
Tkachik, 282 Mich App at 373.
However, this criticism is based on a persistent
misunderstanding about plaintiff’s claim for contribution.
As stated, plaintiff’s
contribution claim will not divide the marital real properties that defendant undisputedly
owns in fee simple absolute.
Thus, the remedy of divorce, which would have both dissolved the Mandevilles’
bonds of marriage and necessitated a division of real property, does not constitute an
adequate remedy at law for the actual, and relatively narrow, relief sought by plaintiff.
As this Court has made clear,
[t]he fact that there is a legal remedy is not the criterion. That legal
remedy, both in respect to its final relief and its modes of obtaining the
relief, must be as effectual as the remedy which equity would confer under
the circumstances . . . . [Powers, 279 Mich at 447.]
constitutes an inadequate legal remedy. Post at ___. We offer exactly such an
explanation in this section. It is that dissent that owes an explanation of its contrary
position to people who have religious or moral objections to divorce.
8
Moreover, one wonders how an action for separate maintenance at this juncture
could be said to be as “effectual” in “its modes of obtaining . . . relief,” Powers, 279
Mich at 447, where, for obvious reasons, neither Janet nor her estate can bring such an
action.
15
Because the “final relief” granted in divorce-- dissolution of the marital bonds and
division of marital property-- is hardly as “effectual” as contribution in recouping the
limited monetary payments at issue, we do not believe that plaintiff’s claim must fail
because, for whatever reason, Janet did not pursue this action in life.9 Divorce would
have been a hugely blunderbuss “remedy” in view of what plaintiff here is actually
seeking, and could only be viewed as equivalently “effectual” if a surgical amputation of
a toe could be viewed as equivalently “effectual” to a podiatrist appointment as a remedy
for an ingrown toenail.
In addition, we do not think that plaintiff’s claim is precluded by the equitable
maxim that “‘[e]quity will not assist a [person] whose condition is attributable only to
9
The same can be said of a claim for separate maintenance. Justice YOUNG’s
dissent argues at length that separate maintenance constituted Janet’s sole remedy in
these circumstances. Specifically, it claims this must be true because that “the standard
that the majority employs-- a breakdown in the marital relationship sufficient to show
that the couple is no longer acting as husband and wife-- is precisely the standard used in
an action for divorce or separate maintenance proceedings.” Post at ___ (emphasis in
original). His dissent misapprehends the standard we employ. While the facts of this
case certainly evidence a breakdown of the marital relationship, satisfying this standard
alone is not what moves us to act in equity. Rather, our decision is based on a factspecific analysis that takes into account the manner in which this marital relationship
broke down, and particularly considers the conduct of defendant as evidence of the nature
and extent of the breakdown. Simply put, marriages may break down in a variety of
ways that would be sufficient to satisfy the general standard used in an action for separate
maintenance or divorce. However, it is defendant’s inequitable conduct, evidencing the
nature of the specific breakdown of this marriage, that satisfies the equitable standard.
Thus, contrary to Justice YOUNG’s dissent, the two standards-- whether a marriage has
broken down sufficiently to grant a judgment for divorce or separate maintenance and
whether equity can be invoked to allow contribution between spouses-- are distinct.
Moreover, regardless of the differences between these standards, separate maintenance is
an inadequate remedy in this case.
16
that want of diligence which may be fairly expected from a reasonable person.’” Powers
v Indiana & Michigan Electric Co, 252 Mich 585, 588; 233 NW 424 (1930) (citation
omitted). To find that Janet was somehow derelict in her legal responsibilities because
she should have done more would be both inaccurate and more than a little unfair. First,
Janet took significant steps in preparation for her death to make clear her intentions that
her husband not receive property when she died. She unequivocally disinherited Frank in
her will; she transferred her retirement benefits so that they would not pass to him; and
she undertook specific efforts to divest him of his interest in the marital real properties
before she died. Second, it should be remembered that she undertook these efforts as she
was preparing for death, receiving treatment for breast cancer, and preserving and
maintaining the two properties at issue by herself. As plaintiff’s counsel explained at oral
argument: “[Janet] did everything possible, including transferring her ERISA benefits,
and her real property, and her estate property, all three buckets of property, to prevent
them from going to her husband at the time-- and unfortunately she passed before she
could take that next step whatever that next step might have been for her.” In light of the
hard realities in this case, we do not think that Janet was derelict in these circumstances
for not doing more in pursuance of her legal responsibilities.10
10
In light of these facts, we are confident that allowing equity to come to Janet’s
aid, even when she did not seek a divorce or bring an action for separate maintenance
while alive, will not upset any legitimate financial arrangement between the Mandevilles.
This record leaves little need to speculate about how Janet felt about the “arrangement”
by which she took sole responsibility for maintaining the properties at the end of her life
after being abandoned by her husband. Again, she unequivocally disinherited him in her
will, transferred her retirement benefits, and attempted to divest him of his interest in the
17
3. CONTRIBUTION AND TENANCY BY THE ENTIRETY
Because divorce and separate maintenance are inappropriate, disproportionate, and
ineffectual remedies, an equitable remedy is necessary because there is no adequate
remedy at law. Powers, 279 Mich at 447. Accordingly, defendant should be liable on a
contribution theory for the payments Janet made in excess of her “aliquot share of the
common burden or obligation . . . .” Caldwell, 394 Mich at 417. Although in Strohm this
Court recognized the application of contribution between co-tenants in common, the
question whether contribution can be applied between co-tenants by the entirety is one of
first impression in this state.
Established equitable principles guide this Court in
determining whether the doctrine of contribution should be extended. We are particularly
mindful that the Court’s equitable powers are “‘to be exercised according to the
circumstances and exigencies of each particular case.’”
Youngs, 317 Mich at 545
(citation omitted).
On these facts, we conclude that the firmly established doctrine of contribution
can be appropriately applied between tenants by the entirety and, therefore, we will
permit plaintiff’s claim for contribution. Equity allows “complete justice” to be done by
“adapt[ing] its judgment[s] to the special circumstances of the case.” 27A Am Jur 2d,
marital real properties. Furthermore, plaintiff-- Janet’s sister, the person who cared for
her in her final months and who is the personal representative of her estate-- is bringing
this action on Janet’s behalf. These facts dispel any fear that, by permitting plaintiff’s
claim for contribution, we are upsetting any arrangement in contravention of Janet’s
intent.
18
Equity, § 2, at 520-521 (1996). Our consideration of the “special circumstances” of this
case leads us to conclude that the following facts are legally sufficient to permit a claim
for contribution between tenants by the entirety: (a) where the decedent spouse has taken
sole responsibility for the property maintenance payments while the other spouse had
absolutely no personal contact with her for at least the last 18 months of her life; (b)
where the other spouse did not attempt once to communicate with the decedent spouse
during this time, even though he acknowledged that he was aware that she was battling
cancer; (c) where the other spouse was disinherited in the decedent spouse’s will; (d)
where the decedent spouse sought diligently, albeit unsuccessfully, to divest the other
spouse of his interest in the real properties before she died; and (e) where the other
spouse was deemed a non-surviving spouse under MCL 700.2801(2)(e)(i).
These
unusual facts cry out for equitable relief so that “complete justice” can be done and give
us assurance that in granting plaintiff’s remedy we are exercising our discretion carefully
and responsibly.11
Defendant, the Court of Appeals, and Justice YOUNG’s dissent raise several
arguments in opposition to our determination that the doctrine of contribution can be
applied appropriately in this case. Their arguments, however, do not consider equity’s
11
As this list of factors makes clear, contrary to Justice YOUNG’s assertion, our
determination that contribution is appropriately applied in this case is based on much
more than an “‘I know it when I see it’” intuition. Post at ___. Rather, it is based on a
consideration of the highly unusual and inequitable circumstances of this case. Justice
YOUNG’s dissent itself acknowledges that the facts of this case are “rare,” post at ___, but
fails to realize that these “rare” facts are precisely what make it appropriate for this Court
to do equity.
19
guiding principles, but rather are grounded on flawed legal analysis and unwarranted
policy concerns.
First, Justice YOUNG’s dissent claims that the surviving spouse
provision bars the relief plaintiff requests because, in its view, plaintiff is asking this
Court to extend the provision in contradiction of its express limitations. We fail to see
how granting plaintiff’s equitable claim would impermissibly “extend” MCL 700.2801,
when this Court is neither interpreting this provision nor acting in pursuance of its
authority.12 Rather, our power to grant equitable relief derives, not from this provision,
but from this Court’s inherent authority to do equity where no adequate remedy at law
exists. Indeed, contribution is available to plaintiff precisely because neither the Estates
and Protected Individuals Code nor any other statute provides, or precludes, the remedy
that plaintiff seeks.
Thus, the fact that MCL 700.2801 is silent with respect to
contribution can hardly be said to defeat plaintiff’s claim. Justice YOUNG’s contrary
position, under which this Court may not grant plaintiff relief because the Legislature did
12
Once more, Justice YOUNG’s dissent fails to recognize that we are not
construing MCL 700.2801 or any other statutory provision in this case. The issue here
only requires this Court to determine whether to exercise its equitable powers where no
statute provides for or precludes such an exercise. It does not require us to give effect to
any statute. For this reason, granting (or failing to grant) equitable relief cannot possibly
contravene “the most basic of judicial interpretative rules.” Post at ___ n 45. It is
important to remember, however, that although this Court is not called upon to interpret
MCL 700.2801, this provision has already been given full and proper effect by the lower
court, a result that is unaltered by this decision. The probate court properly recognized
the provision’s limited applicability to the identified sections of EPIC, which relate to
intestate succession. It thus held that defendant’s status under MCL 700.2801 is
immaterial to his sole ownership of the marital real properties, which passed to him by
the right of survivorship, not by intestate succession. In light of this disposition, the
statutory argument in Justice YOUNG’s dissent is errant from the start.
20
not specify this remedy in the surviving spouse provision, ignores a basic tenet of our
jurisprudence: courts possess an inherent power to afford equitable remedies. These do
not derive from any “declaration of substantive law, but from the broad and flexible
jurisdiction of courts of equity to afford remedial relief where justice and good
conscience so dictate.” 30A CJS, Equity, § 93, at 289 (1992).13
Second, the Court of Appeals below and Justice YOUNG’s dissent distinguish and
dismiss as unpersuasive decisions from other jurisdictions that permit a claim for
contribution between tenants by the entirety, and, thus, lend support to plaintiff’s claim in
the instant case. See, e.g., Crawford, 293 Md 307; Turner, 147 Md App 350; Cagan, 56
Misc 2d 1045. Each of these out-of-state cases ruled that the ordinary presumption that a
spouse’s payments toward real property are considered a gift to the other spouse is
13
For much the same reason, Justice YOUNG’s observation that “the Michigan
Legislature has declined to adopt legislation that would have accomplished statutorily
exactly the changes plaintiff seeks in the common law here” has no bearing on the proper
result in this case. Post at ___ (emphasis in original). By inserting this observation into
its discussion, Justice YOUNG’s dissent misses the critical difference between the
respective duties of a legislative body and a court sitting in equity. While the Legislature
crafts policy for the general public, a court in equity examines “the circumstances and
exigencies of [the] particular case.” Youngs, 317 Mich at 545 (citation omitted). Thus,
simply because, for whatever reason, the Legislature did not adopt a broad, statewide
statutory remedy-- and Justice YOUNG has no greater insight into why this transpired than
anyone else-- does not mean that such a remedy is not appropriate to achieve equity in the
particular circumstances of a case. Concerning Justice YOUNG’s allegation that we have
“fashion[ed] an unprecedented judge-created rule,” post at ___, we can only point out,
first, that the entirety of the common law constitutes the “fashion[ing of] a judge-created
rule,” the dissents’ preferred rule no more and no less than the majority’s; and, second,
that, as a case of genuinely first impression, it is quite certain that, whatever rule prevails,
it will be one without “precedent,” because this is precisely how the common law has
always evolved.
21
inapplicable where the spouses are not living together as husband and wife. Crawford,
293 Md at 311; Turner, 147 Md App at 407; Cagan, 56 Misc 2d at 1049-1050. And
therefore, each of these courts recognized that the doctrine of contribution may be
applicable between tenants by the entirety.
Justice YOUNG’s dissent distinguishes these cases because, in its view, “[t]he
common thread among these cases is that the plaintiffs were able to overcome-- in live
divorce proceedings that sought to partition marital property-- the presumption that
money expended by one party to the divorce to maintain a concurrent estate was not a gift
to his or her spouse.” Post at ___ (emphasis in original).14 While the issues in these outof-state cases undisputedly arise in the context of divorce and separate maintenance
actions, Justice YOUNG’s exclusive focus on this context in his analysis of the central
teaching of these cases is questionable. From the actual language of these authorities, it
seems that each of these cases stands clearly for the proposition that “a tenant by the
entireties is entitled to contribution when he or she makes a payment, after the parties
14
The Court of Appeals rejected the analysis of these cases because it determined
that it was “not applicable in the context of considering whether a decedent’s estate is
entitled to contribution from the surviving spouse . . . .” Tkachik, 282 Mich App at 376.
In focusing on the fact that Janet is deceased, the Court of Appeals implied that, if she
had been living, she might have been entitled to contribution, while her estate would not
be. This implication is inconsistent with MCL 600.2921, which states, “All actions and
claims survive death.” If, under the Court of Appeals’ rationale, Janet could have sought
contribution from defendant while alive, there is no reason why her estate itself should
not also be able to seek contribution. See In re Olney’s Estate, 309 Mich 65, 83; 14
NW2d 574 (1944) (“When the law declares that a cause of action shall survive, it is
equivalent to saying an executor may sue upon it.”) (quotation marks and citations
omitted).
22
discontinue living together as husband and wife, which preserved the property and,
therefore, accrued to the benefit of the co-tenant.” Crawford, 293 Md at 313 (emphasis
added); see also Turner, 147 Md App at 406 (explaining that Crawford “‘permit[s] a
spouse to seek contribution in those instances when married parties were not residing
together and one of them, or the other, had paid a disproportionate amount of the carrying
costs of property’”) (emphasis added; citation omitted).15
When viewed as standing for this core proposition, the persuasive authority from
sister states and the instant case have much in common. Janet and Frank Mandeville had
“discontinue[d] living together as husband and wife.” Crawford, 293 Md at 312. There
was no “showing of an intention to make a gift” on Janet’s part; in fact, the record is
15
Justice YOUNG’s dissent claims that these cases only support our position “when
read out of context and after ignoring [these] decisions’ own internal limitations.” Post
at 23. In response, one can merely invite the readers to peruse these cases for themselves
and judge which of our readings is the more sound. In our judgment, each of these cases
stand clearly for the proposition that a tenant by the entirety may be entitled to
contribution when he or she makes some payment after the spouses discontinue living
together as husband and wife. Crawford, Turner, and Cagan stand for this same
proposition. Thus, Justice YOUNG’s dissent does not present the whole story when it
asserts that this decision renders “Michigan the one place in the common law world
where a tenant by the entirety can now be liable for contribution to his deceased spouse’s
estate.” Post at ___. No state whose courts have addressed this specific proposition has
rejected it. That is, his dissent insists on focusing on the general rule of non-contribution
between tenants by the entirety-- a rule with which we agree-- rather than the exception to
the rule that is the subject of this case, as well as Crawford, Turner, and Cagan. The
reader can determine what is most “disingenuous” in this case, post at ___ n 58-- for the
dissent to include within its supposed consensus states whose judiciaries have never
before addressed the specific issue before this Court, or for this majority to point out the
artificiality of that consensus.
23
replete with evidence to the contrary. Id. at 313. And, Janet made payments that
“preserve[d] the property, and therefore, accrue[d] to the benefit of the co-tenant
[Frank].” Id. Under this analysis, Janet is entitled to contribution. Id.; see also Turner,
147 Md App at 407. While it is certainly possible to distinguish these cases, as the Court
of Appeals and Justice YOUNG have worked hard to do, it is nonetheless difficult to
dismiss them because their logic and reasoning closely resemble those of this case.
These cases provide persuasive authority on which this Court may rely as it exercises its
equitable jurisdiction “to afford remedial relief, where justice and good conscience so
dictate.” 30A CJS, Equity, § 93, at 289 (1992).
Third, the dissent warns that granting plaintiff’s requested relief constitutes a
“sweeping modification of the common law,” post at ___, “represents a sea-change in our
laws governing property,” post at ___, and is the equivalent of recognizing “an action
amounting to posthumous divorce.”
Post at ___.
These concerns are considerably
overwrought, and incorrect, largely because they are grounded in a misapprehension that
the remedy plaintiff seeks will somehow result in the division of marital real property.
However, as has been explained already, contrary to the Court of Appeals’ and Justice
YOUNG’s assertions, there is nothing in the relief sought that would in any way “subvert
the protective purpose of the tenancy by the entirety . . . .” Tkachik, 282 Mich App at
376. In this case, as in every future case, the “protective purpose of the tenancy by the
24
entirety”-- i.e. the unencumbered right of survivorship-- will be given full effect, and the
surviving spouse would own entirety properties in fee simple absolute.16
Moreover, granting plaintiff the monetary compensation she is seeking would not
require a “posthumous divorce.” Indeed, this whole concept of “posthumous divorce” is
inapposite, and in fact seems quite peculiar,17 because granting plaintiff’s claim for
contribution would not require this Court, or any future court, to do anything even
remotely akin to rendering a judgment for divorce. Plaintiff is not asking this Court to
take off anyone’s wedding ring, decide who gets the family heirlooms, or become
involved in any of the hard issues that arise in a divorce, such as child custody, parenting
time, and child and spousal support. And, as we have repeatedly made clear in this
opinion, granting the relief plaintiff seeks will not divide marital real property. Instead, it
will simply require a court to look to the evidence of how much Janet paid in mortgage
payments, taxes, insurance, and other costs to maintain the real properties and then award
an appropriate amount in the form of contribution.
16
Accordingly, we are not persuaded by Justice YOUNG’s overwrought accusation
that this decision “upsets the reliance interests of all Michigan spouses” who have taken
title to property as tenants by the entirety. Post at ___. Not only is this inaccurate
because the right of survivorship is not affected by this decision, but it imputes ludicrous
motives to Michigan spouses. We believe that there are few men and women in
Michigan who get married, and who acquire property as tenants by the entirety, in
reliance on the fact that they can later abandon their spouses and their marital property,
contribute nothing to the maintenance of such property, succeed to the property upon
their spouse’s death, and have no further responsibilities at law or in equity. That is the
only reliance interest that could conceivably be upset by this decision.
17
No more peculiar, however, than Justice YOUNG’s notion that we are “mentally
divorcing” the Mandevilles. Post at ___ n 65.
25
Justice YOUNG’s final, and most overwrought, argument is that our decision
somehow “ignores the fact that marriage has always been recognized in Michigan as a
special relationship” and “transforms this . . . into no more than a mere ‘business
partnership.’” Post at ___. Thus, our decision is “yet another (however well intentioned)
assault on the institution of marriage in our country.” Post at ___. We respectfully
suggest that these arguments would be more aptly directed inwardly.
It is Justice
YOUNG’s dissent that wishes to focus exclusively on the way that property is titled, as if
the Mandevilles were mere business partners whose relationships and mutual obligations
did not extend beyond their real property transactions, in other words, that a tenancy by
the entirety is nothing more than a real property arrangement that is more extra-strongly
binding upon persons who are married than upon all other persons. It is Justice YOUNG’s
dissent that ignores all evidence concerning the realities of a particular marriage, and that
would-- exclusively in the case of married persons-- subordinate all such realities to the
deed itself. Thus, alone among parties to a deed, the realities of the parties’ actual
conduct and relationship, and the demands of fairness and equity, would be irrelevant for
married parties. Under the rule the dissents would adopt, marriage would indeed define a
“special relationship,” but not in a way that honors or respects marriage, but in a way that
disadvantages marriage. Married parties alone would be deprived of resort to equity, no
matter how compelling the circumstances, and alone would be bound by a legal
document, no matter how unfair and inequitable its consequences in a particular
circumstance.
Marriage indeed entails a “special relationship,” because it involves
persons who have vowed to be with their spouse for better or worse, in sickness and in
26
health, and because it gives rise to life-long commitments of a singular nature, not
because it comprises a legal arrangement in which persons are forever to be deprived of
fundamental principles of equity that apply to all other persons. See Strohm, 352 Mich at
662. To say the least, we do not believe it is this opinion that degrades the genuinely
“special relationship” of a marriage, or that treats marriage as tantamount to a mere
“business partnership.” The dissents accord “special” treatment to marriage only in the
sense of imposing “special” disadvantages upon married persons, and by “specially”
depriving such persons of a remedy in equity available to all others.
In sum, the counterarguments presented by defendant, the Court of Appeals, and
the dissents are unavailing. No governing legal principle precludes the remedy plaintiff
seeks, and no policy concern persuades us that granting this remedy will somehow upset
the common law of this state, or produce what Justice YOUNG’s dissent describes as a
“tectonic shift” in our common-law jurisprudence. Post at ___ n 1. Rather, the decision
here is altogether consonant with the “incremental process of common-law adjudication
as a response to the facts presented.” In re Arbitration Between Allstate Ins Co &
Stolarz, 81 NY2d 219, 226; 597 NYS2d 904; 613 NE2d 936 (1993). Therefore, we
decide this case by exercising our equitable powers “‘according to the circumstances and
exigencies of [this] particular case’” where no adequate remedy at law exists. Youngs,
317 Mich at 545 (citation omitted). Significantly, the circumstances and exigencies of
this particular case contain a limiting principle that provides further assurance that we
have properly exercised our discretion in granting equitable relief.
Such limiting
principle is inherent in MCL 700.2801, which sets forth the circumstances in which a
27
spouse is not a “surviving spouse,” namely, where that spouse has been willfully absent
from the decedent spouse for a year or more before the decedent’s passing. As explained,
this provision is not the source of this Court’s power to grant plaintiff relief, for we
possess an inherent power to afford equitable relief in our sound discretion and under
carefully defined circumstances; rather, it merely provides context for when a spouse’s
conduct is so offensive to any “natural sense of justice” that a court may properly act.18
With this limiting principle in place, any fear that permitting a claim for contribution in
18
Justice YOUNG’s dissent is highly critical of our consideration of the survivingspouse provision, but its own analysis of the role of MCL 700.2801 is simply inaccurate.
His dissent treats this provision as controlling, asserting that it precludes this Court from
doing equity because “the Legislature actually has acted in this area through its
enactment of Michigan’s surviving spouse statute.” Post at ___ (emphasis in original).
In view of this assertion, we reiterate that the surviving spouse provision is silent as to
contribution and, thus, neither permits nor precludes this Court from granting this
remedy. The provision is, however, relevant in this case because it is descriptive of the
exact behavior that moves this Court here to act in equity-- defendant willfully
abandoning his wife during the last 18 months of her life. We know of no principle of
statutory construction that bars a court in equity from taking into consideration conduct
that is relevant to the equitable claim simply because the Legislature, in an entirely
different context, has determined that such conduct is sanctionable.
Accordingly, Justice YOUNG need not wonder, “Where, other than in the guts of
the majority, shall we determine how ‘principles of natural justice’ or ‘good conscience’
should direct our decisions?” Post at ___ n 64. If and when a court again encounters
these rare facts, its determination of whether a tenant by the entirety is entitled to
equitable contribution is to be informed by a time-honored and uncontroversial belief
about marriage-- i.e., one spouse should not benefit from the abandonment of the other in
a time of great need. This belief is reflected in community norms, the teachings of
religious traditions, and the non-surviving spouse provision, and, thus, future courts need
not concern themselves with our “guts,” but can direct their decisions to these reliable
guides.
28
the context of a tenancy by the entirety will result in a radical sea-change in the common
law of this state rings hollow.
IV. CONCLUSION
On the facts of this case, and particularly in considering defendant’s willful
absence from his decedent spouse, by which she alone took responsibility for the
properties in the last year and a half of her life, it would be unjust for defendant to retain
the benefit of the monies that preserved these properties and made his eventual sole
ownership possible upon her death.
Because divorce is an inappropriate,
disproportionate, and ineffectual remedy, an equitable remedy is necessary because there
is no adequate remedy at law. Powers, 279 Mich at 447. Accordingly, by extending the
doctrine of contribution to co-tenants by the entirety, defendant is properly held liable for
the payments that his spouse made in excess of her “aliquot share of the common burden
or obligation . . . .” Caldwell, 394 Mich at 417. Thus, consistent with the longstanding
and important principle of our jurisprudence concerning the availability of equitable
relief, we conclude that the doctrine of contribution can be appropriately applied between
tenants by the entirety and that plaintiff’s claim for contribution should be granted.
Accordingly, we reverse the judgment of the Court of Appeals and remand to the probate
court for proceedings not inconsistent with this opinion.
KELLY, C.J., and CAVANAGH and CORRIGAN, JJ., concurred with MARKMAN, J.
29
STATE OF MICHIGAN
SUPREME COURT
SUSAN TKACHIK, Personal Representative
of the Estate of JANET MANDEVILLE,
Plaintiff-Appellant,
v
No. 138460
FRANK MANDEVILLE, JR.,
Defendant-Appellee.
WEAVER, J. (dissenting).
I dissent and agree with Justice YOUNG when he states:
With its decision today, the majority now permits posthumous
collateral attacks on the validity of marriages in this state where neither
spouse has taken the appropriate legal steps to challenge the marriage or the
financial equities of the marriage during life. In doing so, the majority
ignores the perfectly adequate legal remedies that our Legislature created in
specific contemplation of marital disharmony—specifically, an action for
separate maintenance—instead preferring to craft a new remedy recognized
nowhere else in the country. This rule allowing contribution between
tenants by the entireties outside the context of a divorce or separate
maintenance action is not supported by a single case or authority from any
jurisdiction, let alone authority from Michigan. As such, the new rule the
majority creates today is untested and holds unforeseen consequences that
reach much further than the narrow and unassuming decision the majority
believes it has issued in this case. [Emphasis in original.]
In short, the majority’s unrestrained decision today is a huge mistake.
HATHAWAY, J., concurred with WEAVER, J.
STATE OF MICHIGAN
SUPREME COURT
SUSAN TKACHIK, Personal Representative
of the Estate of JANET MANDEVILLE,
Plaintiff-Appellant,
v
No. 138460
FRANK MANDEVILLE, JR.,
Defendant-Appellee.
YOUNG, J. (dissenting).
Because of the danger of unintended consequences and the difficulty that a court
has in assessing them when amending the common law, the Hippocratic admonition to
“first do no harm” is a wise prescription for restraint. It is an admonition that the
majority today unfortunately ignores. Because the tenets of property law at issue here are
among the most settled and uncontroversial in all of our jurisprudence, I vigorously
dissent from the majority’s sweeping modification of the common law in this case.1
1
This Court has on occasion allowed for the development of the common law as
the circumstances and considerations of public policy have warranted, but our commonlaw jurisprudence has been guided by a number of prudential principles. See Robert P.
Young, Jr., A judicial traditionalist confronts the common law, 8 Texas Rev L & Pol 299,
305-310 (2004). Among them has been our attempt to “avoid capricious departures from
bedrock legal rules as such tectonic shifts might produce unforeseen and undesirable
consequences,” id. at 307, a principle that is quite applicable to the present case.
Under the banner of equity, the majority today creates a rule that renders Michigan
the one place in the common law world where a tenant by the entirety can now be liable
for contribution to his deceased spouse’s estate. This distinction is a dubious honor. For
hundreds of years, the tenancy by the entirety with its concomitant right of survivorship
has existed as a means of protecting and fostering marriage, allowing a husband and wife
to manage their property and assign financial equities as they saw fit, free from
interference by third parties.
With its decision today, the majority now permits posthumous collateral attacks on
the validity of marriages in this state where neither spouse has taken the appropriate legal
steps to challenge the marriage or the financial equities of the marriage during life. In
doing so, the majority ignores the perfectly adequate legal remedies that our Legislature
created in specific contemplation of marital disharmony—specifically, an action for
separate maintenance—instead preferring to craft a new remedy recognized nowhere else
in the country. This rule allowing contribution between tenants by the entirety outside
the context of a divorce or separate maintenance action is not supported by a single case
or authority from any jurisdiction, let alone authority from Michigan. As such, the new
rule the majority creates today is untested and holds unforeseen consequences that reach
much further than the narrow and unassuming decision the majority believes it has issued
in this case. Moreover, although in today’s decision the husband is required to make a
contribution on marital property held by the entirety, given the fact that men still
generally contribute more to family assets than women, I fear that the majority’s new rule
may have a disproportionate adverse effect on women in the future.
2
Until today, Michigan law did not recognize the right of contribution between
tenants by the entirety outside the context of the divorce or separation actions, and
accordingly, I believe that Janet Mandeville’s estate does not have a cognizable claim for
contribution to pursue against Frank Mandeville, the defendant.
Simply put, under
Michigan’s settled law, a tenant by the entirety is not unjustly enriched when he takes
sole ownership by operation of law over property that he previously owned with his
spouse. The tenancy by the entirety is a unique incident of marriage. How married
people choose to arrange their finances is varied and entirely a product of their
determination. After a spouse’s death, it is difficult for a court to assess any alleged
inequity in the contributions of the respective spouses that they failed to address during
the marriage itself. Indeed, there is a great danger in authorizing post hoc judicial
inquiries concerning how a husband and wife choose to structure their marriage, as the
majority authorizes in this case. Rights created by a tenancy by the entirety, being
anchored in marriage, are not affected where one spouse makes greater contributions to
acquiring or maintaining the property, and thus no inequities arise that would compel
restitution by a surviving spouse. Where spouses do not avail themselves of the legal
means of disaggregating their interests in property owned by the entirety, the courts
should not be authorized to do so after one spouse dies.
I. PRINCIPLES OF LAW AND EQUITY
Because I believe that the majority’s opinion is contrary to and undermines settled
principles of law and equity, I begin my analysis with an examination of the legal
principles underlying this action.
3
A. THE LAW OF TENANCY BY THE ENTIRETY
Michigan’s law of estates and its rules governing concurrent estates is derived
from the English common law, although much of this law has now been codified by
statute.2 Generally, there are three types of concurrent estates: the tenancy in common,
the joint tenancy, and the tenancy by the entirety.3 The parties do not dispute that the
facts of the instant case and the issues they raise implicate only this last type of estate: the
tenancy by the entirety.
2
See, generally, MCL 554.1 et seq.
3
A tenancy in common, the default and most prevalent form of a concurrent
estate, arises “‘[w]here two or more [persons] hold possession of lands or tenements at
the same time, by several and distinct titles. The quantities of their estate may be
different, their proportionate share of the premises may be unequal, the modes of
acquiring these titles may be unlike, and the only unity between them be that of
possession.’” Fenton v Miller, 94 Mich 204, 214; 53 NW 957 (1892) (citation omitted).
A joint tenancy, by contrast, is a single estate owned by two or more parties and is
characterized by four “unities”: “‘joint tenants have one and the same interest; accru[e]
by one and the same conveyance; commenc[e] at one and the same time; and have the
same possession.’” Kemp v Sutton, 233 Mich 249, 258; 206 NW 366 (1925) (citation
omitted). Michigan law has subsequently abolished the requirements of unities of time
and title. See MCL 565.49. A joint tenancy may create a special right to survivorship in
a tenant following a joint tenant’s death. See Albro v Allen, 434 Mich 271, 274-276; 454
NW2d 85 (1990); In re Renz’ Estate, 338 Mich 347, 356-357; 61 NW2d 148 (1953). Our
law has long recognized that while joint tenancies are not favored, their creation with the
accompanying right of survivorship is nonetheless permitted when expressly created. See
Kemp, 233 Mich at 258; In re Blodgett’s Estate, 197 Mich 455, 461; 163 NW 907 (1917);
see also 3 Comp Laws 1915, § 11562 (“All grants and devises of lands, made to two or
more persons, . . . shall be construed to create estates in common, and not in joint
tenancy, unless expressly declared to be in joint tenancy.”), which has endured as a legal
presumption to the present day and is codified currently at MCL 554.44.
As will be discussed further in greater detail later in this opinion, a tenancy by the
entirety is a unique type of joint tenancy reserved for a married couple.
4
A tenancy by the entirety is a type of concurrent ownership in real property unique
to married persons.4 A tenancy by the entirety represents a legal policy arising from the
English common law whereby a husband and wife each have a sole tenancy in the real
property acquired during the course of the marriage. Like many of our laws, the unique
nature of this estate has a unique presumption: at common law, a husband and wife were
recognized as but one legal person, and thus their ownership of real property reflected
this unique status.5 A conveyance to a husband and wife that shares the unities required
for joint possession6 presumptively creates a tenancy by the entirety unless the
conveyance otherwise explicitly indicates that the parties intend to create a separate type
of estate.7 Consistent with the historical practice, under Michigan law one tenant by the
4
Field v Steiner, 250 Mich 469, 477; 231 NW 109 (1930).
5
Lord Blackstone has been credited with first authoritatively recording the
existence of this concurrent estate. In his ubiquitous Commentaries, Blackstone noted:
And therefore, if an estate in fee be given to a man and his wife, they
are neither properly joint-tenants, nor tenants in common: for husband and
wife being considered as one person in law, they cannot take the estate by
moieties, but both are seised of the entirety, per tout et non per my; the
consequence of which is, that neither the husband nor the wife can dispose
of any part without the assent of the other, but the whole must remain to the
survivor.
2 Blackstone, Commentaries on the Laws of England 182 (R Burn ed, 1783) (1978)
(emphasis added).
6
See, e.g., Kemp, 233 Mich at 258 (noting that the four unities required to form a
joint tenancy are that of interest, title, time, and possession), although the Legislature has
since abolished the necessity of unity of time and title, see MCL 565.49.
7
DeYoung v Mesler, 373 Mich 499, 502-504; 130 NW2d 38 (1964). The use of
the words “tenancy by the entirety” or a derivative of the phrase need not be used to
5
entirety holds no legal interest in the realty separable from that of the other tenant.8
Because of this legal presumption, neither spouse can act unilaterally to convey or
alienate any portion of an interest in the property.9 As this Court has stated: “When the
husband and wife have thus together acquired an unencumbered title to real estate[,] they
have laid up treasures, where, without their concerted action, neither moth, nor rust, nor
thieves, nor creditors, nor anything else but death or the tax gatherer can divest them.”10
In sum, each spousal tenant is vested with the entire title, and thus each tenant
paradoxically holds complete, sole ownership jointly with the other tenant.
The most important feature of a tenancy by the entirety is the right of survivorship.
This right provides that in the event that one spouse dies during the course of the
create the estate; similarly, a tenancy by the entirety will not be created just because the
words are used if not otherwise appropriate. See, e.g., In re Kappler Estate, 418 Mich
237; 341 NW2d 113 (1983) (holding that a conveyance to two unmarried persons with
the words “as tenants by the entireties” was ineffective to create a tenancy by the entirety,
but instead created a tenancy in common).
8
Long v Earle, 277 Mich 505, 517; 269 NW 577 (1936); Vinton v Beamer, 55
Mich 559, 561; 22 NW 40 (1885).
9
Berman v State Land Office Bd, 308 Mich 143, 144; 13 NW2d 238 (1944);
Hubert v Traeder, 139 Mich 69, 70; 102 NW 283 (1905). The one exception to this rule
is statutory: MCL 557.101 allows either spouse to convey to the other spouse his interest
in the property, which thereby terminates the tenancy by the entirety. See also Ash v Ash,
280 Mich 198, 199; 273 NW 446 (1937) (“Defendant could terminate the tenancy by the
entirety by a conveyance of his interest in the land to his wife.”).
10
Way v Root, 174 Mich 418, 427-428; 140 NW 577 (1913). Cf. Benjamin
Franklin, Letter to Jean-Baptiste Le Roy, Nov 18, 1789, reprinted in The Works of
Benjamin Franklin (1817) (“[B]ut in this world, nothing can be said to be certain but
death and taxes.”).
6
marriage, the surviving spouse automatically takes fee simple ownership in the entire
property.11 Thus, this type of property is not a part of the decedent’s estate, and the laws
of descent and distribution do not apply.12
A tenancy by the entirety can only be terminated in limited, specific ways. The
death of one of the tenants, a joint conveyance of the property, a creditor’s action against
both cotenants, or a dissolution of the tenants’ marriage all operate to terminate a tenancy
by the entirety. As stated, the death of one of the tenants automatically passes sole title to
the remaining tenant through the right of survivorship. A conveyance executed by both
tenants transfers title and ownership to new grantees of the property under whatever form
of estate the grantees choose. Consistent with the concept that both cotenants must act to
encumber a tenancy by the entirety, a creditor’s action against both a husband and wife
who have together encumbered their property may terminate the tenancy.13 Finally, in
divorce proceedings after a marriage has been terminated, property held as a tenancy by
the entirety becomes a tenancy in common unless the parties or the court terminating the
marriage provides otherwise.14
11
During this time, as is consistent with divorce
MCL 700.2901(2)(g); see also Speier v Opfer, 73 Mich 35, 38-39; 40 NW 909
(1888).
12
See, e.g., Rogers v Rogers, 136 Mich App 125, 134-135; 356 NW2d 288 (1984).
13
Sanford v Bertrau, 204 Mich 244, 254; 169 NW 880 (1918); see also Estes v
Titus, 481 Mich 573, 580-582; 751 NW2d 493 (2008).
14
MCL 700.2807(1)(b).
7
proceedings generally, the court equitably divides all marital property, including real
property that had been held as a tenancy by the entirety.
B. THE RIGHT OF CONTRIBUTION AND CLAIMS
FOR UNJUST ENRICHMENT
The doctrine of equitable contribution has evolved from the common law and is
“founded on principles of equity and natural justice.”15 It provides that one who pays or
satisfies “the whole or [bears] more than his aliquot share of the common burden or
obligation, upon which several persons are equally liable or which they are bound to
discharge, is entitled to contribution against the others to obtain from them payment of
their respective shares.”16 Thus, where contribution is appropriate to reach an equitable
result, the party seeking contribution may recover the proportionate share from each of
the joint obligors.17
Regarding concurrent estates, claims for contribution are generally available to
cotenants who hold real property as tenants in common or joint tenants.18 As this Court
held in Strohm v Koepke, which acknowledged the right of equitable contribution for
tenants in common, “[t]he doctrine of contribution between cotenants is based upon
15
Lorimer v Julius Knack Coal Co, 246 Mich 214, 217; 224 NW 362 (1929).
16
Caldwell v Fox, 394 Mich 401, 417; 231 NW2d 46 (1975).
17
Id.
18
See, e.g., Wettlaufer v Ames, 133 Mich 201; 94 NW 950 (1903); Reed v Reed,
122 Mich 77, 78-79; 80 NW 996 (1899).
8
purely equitable considerations.”19 However, neither Michigan’s statutory law nor any
decision by this Court or any Michigan court has ever specifically recognized the right of
contribution for a husband and wife who hold their property as a tenancy by the entirety.
Even though a tenancy by the entirety resembles a joint tenancy, a tenancy by the
entirety is not a joint tenancy; rather, it is a type of sole tenancy.20
Our law has
recognized important distinctions among these cotenancies, providing rights and
responsibilities to some but not others. For example, joint tenants and tenants in common
have a statutory right of partition; tenants by the entirety do not.21 Also, joint tenants and
tenants in common may unilaterally convey their property rights for any reason; tenants
by the entirety may not.22 These distinctions and others represent a type of severability
among other concurrent estates not permitted in a tenancy by the entirety.
19
Strohm v Koepke, 352 Mich 659, 662; 90 NW2d 495 (1958). The law of other
jurisdictions is generally in accord. For example, the Restatement of Restitution has long
stated: “Where two persons are tenants in common or joint tenants and one of them has
taken reasonably necessary action for the preservation of the subject matter or of their
common interests, he is entitled to indemnity or contribution . . . .” Restatement
Restitution, § 105(1), p 439 (1937) (emphasis added).
20
Budwit v Herr, 339 Mich 265, 272; 63 NW2d 841 (1954).
21
MCL 600.3304 (“All persons holding lands as joint tenants or as tenants in
common may have those lands partitioned.”); see also 1 Restatement Property, 2d), § 4.5,
comment b, p 229 (1983) (“A tenancy by the entirety creates an indestructible right in the
surviving spouse to own in severalty the entire interest in the property. Compulsory
partition is inconsistent with this characteristic of a tenancy by the entirety and, hence,
compulsory partition is not available with respect to such a tenancy.”).
22
Compare Pellow v Arctic Iron Co, 164 Mich 87; 128 NW 918 (1910), with
Hubert, 139 Mich at 70.
9
This understanding is in accord with the historical tradition of the tenancy by the
entirety, because it has been inextricably tied to marriage.23 At common law, where the
law viewed a married couple as a single legal person, there was no legal need to allow
recovery or contribution by one tenant essentially against himself. By contrast, other
types of cotenancies among nonmarried persons—whether they are two or more relatives,
friends, business partners, or any other combination of individuals who may jointly buy
real property—do not share the bond of marriage, and thus the law allowed mechanisms
for recovery if one party was forced to assume more than his fair share of the costs or if
there was a breakdown in the relationship. Moreover, a tenancy by the entirety already
contained a mechanism for the contingency that a marriage relationship may break down:
separation or divorce expressly allowed the courts to divide equitably property owned by
the tenants.
However, the lack of a specific provision or doctrine of law providing a right of
contribution in a tenancy by the entirety does not necessarily preclude a right of
contribution. In the instant case, plaintiff advances the theory that Frank Mandeville is
liable for contribution to the decedent’s estate on the basis of a theory of unjust
enrichment.
23
See In re Appeal of Lewis, 85 Mich 340; 48 NW 580 (1891).
10
Unjust enrichment is defined as the unjust retention of “‘money or benefits which
in justice and equity belong to another.’”24 The Restatement provides that “[e]ven where
a person has received a benefit from another, he is liable to pay therefor only if the
circumstances of its receipt or retention are such that, as between the two persons, it is
unjust for him to retain it.”25 This Court adopted a similar standard in Buell v Orion State
Bank: “One is not unjustly enriched . . . by retaining benefits involuntarily acquired
which law and equity give him absolutely without any obligation on his part to make
restitution.”26 Thus, there can be no unjust enrichment where a party only receives or
retains that which he already owns by operation of law.
II. APPLICATION
With these principles regarding Michigan’s law of real property and equity in
mind, I turn to the facts of this particular case.
Plaintiff asks this Court to order
contribution from Frank Mandeville to his deceased wife’s estate under two alternative
theories: either by a claim of unjust enrichment, or by extending Michigan property law
24
McCreary v Shields, 333 Mich 290, 294; 52 NW2d 853 (1952), quoting
approvingly Hummel v Hummel, 133 Ohio St 520, 528; 14 NE2d 923 (1938) (emphasis
added).
25
Restatement Restitution, § 1, comment c, p 13 (1937). This Court has
previously quoted approvingly this standard in Dumas v Auto Club Ins Ass’n, 437 Mich
521, 546; 473 NW26 652 (1991) (lead opinion by RILEY, J.).
26
Buell v Orion State Bank, 327 Mich 43, 56; 41 NW2d 472 (1950). This Court
has similarly held that one cannot be unjustly enriched simply as a result of enforcing
private agreements. See, e.g., Mich Med Serv v Sharpe, 339 Mich 574, 577; 64 NW2d
713 (1954) (“It is neither unjust, unfair nor inequitable to give effect to an agreement
which was not induced by mistake, overreaching, fraud[,] or misrepresentation.”).
11
to allow for a claim of contribution in a tenancy by the entirety. The majority has
accepted this request, arguing that if there is no mechanism by which the estate can
recover defendant’s proportionate share for money the decedent expended to maintain the
tenancy’s properties, then defendant will be unjustly enriched by his wife’s maintenance
of the properties before her death.
Contrarily, defendant argues that contribution
designed to prevent unjust enrichment does not apply where a cotenant by the entirety
receives property by the right of survivorship. For the reasons set forth below, I agree
with defendant.
A. NEITHER MICHIGAN LAW NOR PRINCIPLES OF EQUITY
SUPPORT THE MAJORITY’S RULE
In light of the legal doctrines discussed above, defendant here is not unjustly
enriched when he takes full ownership by a right of survivorship to property held as a
tenant by the entirety. And this is true even if one cotenant has contributed more to the
expenses of property ownership within the marriage, which is consistent with how the
cotenants designed their marriage. There simply is no obligation in Michigan for a
cotenant by the entirety to pay interest and expenses to the estate of the deceased cotenant
when fee simple title passes by operation of law. The surviving cotenant, receiving title
by right of survivorship as the parties agreed when titling the property, cannot be unjustly
enriched. Instead, the cotenant by the entireties takes fee ownership to property in which
he already had prior sole, inalienable ownership with his spouse. As this Court stated in
Buell, there can be no unjust enrichment where a person comes into ownership of
property that “‘law and equity give him absolutely without any obligation on his part to
12
make restitution.’”27 Here, by operation of law, Frank Mandeville automatically takes
the properties in fee simple absolute by the right of survivorship inherent in the tenancy
by the entirety, which was exactly the Mandevilles’ intent when they purchased the
properties more than 20 years ago.28 Neither plaintiff nor the majority can persuasively
argue that, in taking full ownership to property he already owns, Frank Mandeville will
retain “money or benefits” that belong to another.
The majority holds otherwise. Through an elaborate formulation, the majority
attempts to rebalance the equities of the Mandevilles’ marriage in order to show that
Frank Mandeville was unjustly enriched because his wife paid certain costs associated
with home ownership for an 18-month period. In the process, the majority has created a
rule that subverts the purpose of the tenancy by the entirety and unnecessarily allows the
state to dissect the marital relationship for the purpose of reassigning equities contrary to
how the parties saw fit to title their property and conduct their marital relationship. More
disturbing, the majority does so notwithstanding the fact that neither Janet nor Frank
27
Buell, 327 Mich at 56 (citation omitted; emphasis added). The majority
criticizes my discussion here as “an oversimplification that is at odds with the realities of
this case,” yet the majority can point to no place in the record nor any legal authority that
establishes an agreement, understanding, or obligation for Frank Mandeville to make
restitution in order to hold fee simple title to the property. This is unsurprising because
the right of survivorship, by its very nature, unconditionally allows Frank Mandeville to
do so without any obligations at law.
28
Moreover, as defendant notes, he takes the property subject to a substantial
mortgage that remains on the property. As a result, the deceased was provided the
benefit of the use of the mortgage principal in her lifetime, yet upon her death the debt
now resides with defendant alone.
13
Mandeville took any legal action while both spouses remained alive that would have
extinguished the tenancy by the entirety that governed the properties at issue here or
rebalanced the equities of their marriage. Indeed, despite Frank Mandeville’s extended
absence, the couple did not consider their marriage over,29 they never sought a divorce or
legal separation, nor did Janet Mandeville file an action for separate maintenance.30
29
See Affidavit of Beverly Furnari, August 13, 2003. After being duly sworn, Ms.
Furnari stated as follows:
1. That she was a close personal friend of Janet Mandeville and had
frequent contact with her during the last few months of her life.
2. That through discussions with Janet Mandeville, she is aware that
neither Janet Mandeville nor Frank Mandeville, Jr. considered their
marriage to be terminated, deserted or abandoned by Frank Mandeville,
Jr.’s extended absence exceeding more than one year prior to the death of
Janet Mandeville.
This evidence is uncontroverted, yet the majority has decided simply to overlook this fact
as inconvenient to its analysis.
30
This is so even though the decedent attempted to divest her spouse of his interest
in properties they owned by the entirety before she died—a fact to which the majority
attaches a great deal of significance. See ante at ___. As was explained to Janet
Mandeville by her counsel at the time she attempted to transfer her interest in the
property by quitclaim deed, the documents drafted to accomplish this intention were
entirely ineffectual to destroy defendant’s rights in the property that Janet Mandeville
owned by the entirety with her husband. See supra at 6 (explaining that one spouse in a
tenancy by the entirety can neither divest the other spouse of his interest or act
unilaterally to alienate the entireties property). Janet Mandeville’s attorney testified at
his deposition that “I explained to Jan that if, in fact, the real estate was owned by the
entireties with her and Frank, that these quit claim deeds would have no validity
whatsoever. That if Frank was alive, they would go to him. . . . She understood, she
nodded. She said, ‘I understand.’” Plaintiff’s attorney again conceded as much at
arguments on this case: “She effectuated a deed which has obviously no legal
significance because its impossible to—for her to transact that.”
14
The majority’s opinion ignores the fact that marriage has always been recognized
in Michigan as a special relationship unlike those involved in other concurrent ownership
relationships. Thus, it is worthy of unique protections that can only be altered upon
formal dissolution in a divorce or modification in a separate maintenance action.
The
majority’s decision transforms this special marital relationship into no more than a mere
“business partnership.” Married couples have the additional options of buying property
as tenants in common or joint tenants. A married couple that enters into a tenancy by the
entirety does so in specific reliance on the unique protections that our common law
affords this form of joint property ownership. Today’s decision eviscerates such reliance
interests but fails to explain why these interests are no longer worthy of protection. The
majority’s decision is yet another (however well intentioned) assault on the institution of
marriage in our country.
The majority states that nothing in its analysis would alter the reality that Frank
Mandeville is the fee simple owner of the properties previously held with his wife, and
that the law of the tenancy by the entirety “has already been given full effect . . . .”31 This
is true only to a certain extent.32 The majority does not alter the actual ownership of the
property, but it does force defendant to compensate the estate for the privilege of such
31
Ante at ___.
32
The fact is, the estate did attempt to divest Frank Mandeville of his property
interest in this property and only raised this contribution claim when that effort failed.
The majority decision today allows this backdoor collateral attack on defendant’s
property rights as the surviving tenant.
15
ownership—notwithstanding the fact that both the law and the express means by which
the Mandevilles themselves titled their property provide this property to Frank
Mandeville with no conditions whatsoever. Thus, the majority cannot deny that it is
today recognizing a new right of contribution that diminishes the property rights of a
surviving tenant by the entirety.
Moreover, contrary to the majority’s argument, this is not an appropriate case in
which to employ this Court’s equitable powers. Equity is customarily employed only
where there is no adequate remedy at law.33
Here, Janet Mandeville had several
available remedies that she declined to pursue. These remedies include filing for divorce
or separate maintenance.34 An action for separate maintenance, for example, would not
require the couple to seek a divorce; instead, a showing that the marriage relationship had
broken down—precisely what plaintiff argues happened in this case—would allow the
trial court to make a determination based on all the circumstances as to how much
financial support would be due to a complainant.35 It could do so on the basis of the
33
Campau v Godfrey, 18 Mich 27 (1869).
34
See MCL 552.6 (divorce) and MCL 552.7 (separate maintenance).
35
See, e.g., Russell v Russell, 75 Mich 572, 572-573; 42 NW 983 (1889)
(affirming an award of financial support from a husband to his wife where the husband
had deserted the marriage). Since the adoption of no-fault divorce in Michigan, fault
need not be shown in an action for separate maintenance; instead, an action showing that
there has been a breakdown in the marriage relationship to the extent that the objects of
matrimony have been destroyed and thus the marriage cannot be preserved is sufficient to
support an award. See MCL 552.7(1).
16
evidence offered by both spouses—something that cannot be done after one of the
spouses has died.
The fact is that a claim for separate maintenance seems to be precisely the remedy
contemplated by our Legislature to provide relief to an aggrieved spouse in this type of
situation. Yet, the majority cannot adequately explain why the already existing action for
separate maintenance is an inadequate legal remedy. Instead, the majority prefers to
create an action for contribution that allows an estate to collaterally attack financial
arrangements made during the course of a valid marriage. The majority states that an
action for divorce or separate maintenance is “inappropriate” and “disproportionate,” and
thus apparently “inadequate.” This is ironic given that the standard that the majority
employs—a breakdown in the marital relationship sufficient to show that the couple is no
longer acting as husband and wife—is precisely the standard used in an action for divorce
or separate maintenance proceedings. I fail to see how the majority can reject this
standard as inadequate as a matter of law while at the same time using it as an equitable
substitute for these supposedly inadequate legal remedies. Although the majority argues
that these remedies are not “as ‘effectual’” as a claim for contribution, that hardly
demonstrates that they are inadequate as a matter of law.36 Although the majority focuses
36
I further fail to see how the majority’s new remedy, which requires one spouse
to sue another in court when demanding contribution, is any more “effectual” than an
action for separate maintenance, even if it “preserves” the marital union—or whatever
may be left of a union between spouses who communicate with each other through
lawsuits.
17
on claims for divorce as “a hugely blunderbuss ‘remedy,’”37 it simply has no answer for
why an action for separate maintenance is inadequate. This flaw in the majority’s
argument not only belies its conclusion that equity should be employed in this case,38 but
also undermines the entire rationale of the majority opinion.
While it would certainly be troubling for courts to attempt to recalibrate the
equities of a marriage after death, the majority’s decision is even more troubling because
it does just that when the parties declined to take available legal action in life. A
longstanding principle of this Court precludes equitable relief to parties who do not fully
pursue the remedies available to them at law.39 Just as Michigan courts are incompetent
The majority also worries that an action for separate maintenance opens the door
for a court to enter a decree of divorce, and that this may be an unacceptable outcome for
those couples who have moral or religious objections to divorce. This concern ignores
what is obvious about such a concern: if a couple has religious objections to divorce, then
by the nature of those objections, the responding spouse would not counterclaim for a
divorce in an action for separate maintenance. In any case, where a couple has decided
no longer to live together as husband and wife but not divorce, an action for contribution
is no more effectual than an action for separate maintenance. The primary difference is
that only the latter was provided for by our Legislature, and only the latter prevents a
spouse from unilaterally requiring a court to rebalance the equities of marital decisions.
37
Ante at ___.
38
The majority quotes Powers v Fisher, 279 Mich 442, 447; 272 NW 737 (1937),
for the proposition that the “legal remedy, both in respect to its final relief and its modes
of obtaining the relief, must be as effectual as the remedy which equity would confer
under the circumstances . . . .” How can separate maintenance possibly be viewed as
inadequate when, if it had been pursued, it would have allowed Janet Mandeville to
acquire the same costs her estate now seeks here, after making virtually an identical legal
showing that the marital relationship had broken down?
39
See Zoellner v Zoellner, 46 Mich 511, 515; 9 NW 831 (1881).
18
to grant a divorce after the death of one of the parties,40 unlike the majority, I believe that
courts are equally incompetent to reassign equities, divide property, or award monetary
contribution concerning marital property owned by the spouses after the death of one as if
a divorce had occurred.
The majority also argues that the Legislature’s enactment of the surviving spouse
provision of the Estates and Protected Individuals Code41 indicates its intent to recognize
that a marital relationship can cease to exist even if it is not officially or legally severed.
This argument is simply a nonstarter. The surviving spouse provision states that, if
certain conditions are met showing a breakdown in a marriage, then a surviving spouse
will not be treated as having survived the decedent.42 However, the provision also
specifically restricts its applicability to issues of intestate succession, spousal elections
and allowances, and priority among persons seeking appointment as personal
I do not, as the majority implies, believe that Janet Mandeville was “derelict” in
pursuing her legal remedies. In many respects, she dutifully and permissibly transferred
her legal interests to beneficiaries other than her husband. This is irrelevant, though, to
whether she pursued an action for separate maintenance—she admittedly did not—which
was the only permissible means for seeking payment from defendant concerning their
marital property owned by the entirety. More important, this does not mean that her
estate should be accorded the extraordinary relief sought here because she could not
otherwise legally transfer her interest in real property.
40
Michigan law provides that a court is without jurisdiction to render a judgment
of divorce, and thereafter distribute property, after the death of a party; in sum, one
cannot judicially terminate a relationship that no longer exists because the death of a
party. Tiedman v Tiedman, 400 Mich 571, 573; 255 NW2d 632 (1977); Zoellner, 46
Mich at 513-514.
41
MCL 700.1101 et seq.
42
MCL 700.2801(2)(e)(i).
19
representatives.43 Thus, the Legislature expressly limited the surviving spouse provision
to specific circumstances involving a deceased spouse, none of which is present here.
Pursuant to well established principles of statutory construction,44 this Court should
decline plaintiff’s request to extend the application of this statute where the Legislature
has expressly limited it.45
43
See MCL 700.2801(2), which provides that its application is only “[f]or
purposes of parts 1 to 4 of this article,” which cover only issues of intestate succession,
spousal elections and allowances, and priority among persons seeking appointment as
personal representatives.
44
See, e.g., Dep’t of Agriculture v Appletree Mktg, LLC, 485 Mich 1, 8; 779
NW2d 237 (2010) (“In interpreting statutory language, this Court’s primary goal is to
give effect to the Legislature’s intent. If the Legislature has clearly expressed its intent in
the language of a statute, that statute must be enforced as written, free of any ‘contrary
judicial gloss.’”) (citation omitted); Miller v Mercy Mem Hosp, 466 Mich 196, 201; 644
NW2d 730 (2002) (stating that when interpreting a statute, “[w]e first review the
language of the statute itself. If it is clear, no further analysis is necessary or allowed to
expand what the Legislature clearly intended to cover.”).
45
This is the most basic of judicial interpretative rules, as members of the majority
have properly recognized in the past. See, e.g., Robertson v DaimlerChrysler Corp, 465
Mich 732, 759 & n 14; 641 NW2d 567 (2002) (opinion by MARKMAN, J.) (noting that
“our judicial role ‘precludes imposing different policy choices than those selected by the
Legislature . . . .’” and stating: “The dissent ‘question[s] whether, under the majority’s
approach, compensability for any mental disabilities would ever exist.’ To say the least,
we respectfully disagree . . . . Compensability would exist where the Legislature has
deemed there to be compensability, and it would not exist where the Legislature has not
deemed there to be compensability. Whether such coverage is too broad or too narrow is
not for us to decide.”); Henry v Dow Chem Co, 473 Mich 63, 102; 701 NW2d 684 (2005)
(opinion by CORRIGAN, J.) (“Equity is indeed an instrument of justice. But when it is
exercised without due regard for the interests of those who are not before the Court, its
invocation can lead to great injustice. It is precisely because a decision in plaintiffs’
favor may have sweeping effects for Michigan’s citizens . . . that we believe this matter
should be handled by those best able to balance these competing interests: the people’s
representatives in the Legislature.”); Stokes v Millen Roofing Co, 466 Mich 660, 675,
677-678; 649 NW2d 371 (2002) (MARKMAN, J., concurring) (noting the unfairness of the
20
Today, however, the majority manufactures an extension of the surviving spouse
provision despite the limitations plainly expressed by the Legislature. The majority
borrows the criteria of the surviving spouse provision as a means of deeming the
Mandevilles’ relationship sufficiently defunct to merit the employment of equity through
a right of contribution while it ignores the limitations that the Legislature specifically
imposed. It stands to reason that any time a spouse qualifies under MCL 700.2801 as a
nonsurviving spouse, the majority would allow the estate of the decedent spouse to seek
contribution for any perceived inequities.
Thus, notwithstanding the majority’s
protestations to the contrary, its theory now results in the wholesale application of the
surviving spouse provision in a new class of cases not otherwise contemplated under the
plain language of the statute. I do not believe it is within a judge’s power to borrow a
limiting principle “inherent” in a statute that specifically excludes the very issue to which
it would be applied and apply it in situations divorced from the statutory scheme and
intent. The general equitable powers of this Court do not increase the judicial power to
rewrite statutes.46
result, which is “highly inequitable,” but otherwise stating that this Court “cannot allow
equity to contravene the clear statutory intent of the Legislature. . . . [I]f such inequitable
results are to be avoided, it is the Legislature that must take action.”).
46
See, e.g., Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378,
406-407; 738 NW2d 664 (2007) (“[I]f courts are free to cast aside a plain statute in the
name of equity, even in such a tragic case as this, then immeasurable damage will be
caused to the separation of powers mandated by our Constitution. Statutes lose their
meaning if ‘an aggrieved party need only convince a willing judge to rewrite the statute
under the name of equity.’ Significantly, such unrestrained use of equity also undermines
consistency and predictability for plaintiffs and defendants alike.”) (citations omitted).
21
B. THE MAJORITY’S NEW RULE IS UNPRECEDENTED
The majority has not cited a single authority from this state or any other that
provides support for its position allowing an action between spouses for contribution
regarding property held as a tenancy by the entirety outside the context of divorce or
separation proceedings. Indeed, no such authority exists. The decisions from other
jurisdictions cited by the majority support its position only when read out of context and
after ignoring those decisions’ own internal limitations. There should be no mistake: the
rule that the majority today creates represents a radical departure from this state’s
jurisprudence.
In Crawford v Crawford, a wife sought contribution for property-related expenses
incurred after the couple had separated but not yet divorced.
At issue was the
presumption that any money paid by one spouse should be considered a gift to the other
spouse, and thus not eligible for contribution in the divorce. Under Maryland law, where
the parties had separated before divorce, “a co-tenant in a tenancy by the entireties is
entitled, to the same extent as a co-tenant in a tenancy in common or joint tenancy is
entitled, to contribution for that spouse’s payment of the carrying charges which preserve
the property.”47 The Maryland Court of Appeals held that absent a showing that the
paying party intended to make a gift, “a tenant by the entireties is entitled to contribution
when he or she makes a payment, after the parties discontinue living together as husband
and wife, which preserves the property and, therefore, accrues to the benefit of the co47
Crawford v Crawford, 293 Md 307, 311; 443 A2d 599 (1982).
22
tenant.”48 In Maryland, where a court finds contribution appropriate for one cotenant in
equitable separation proceedings, that cotenant may receive “Crawford credits.” As a
later decision from the Maryland Court of Special Appeals explained:
A “Crawford Credit” is a credit that one co-tenant, who, after
separation, lays out money to make mortgage payments or other carrying
charges on property held as tenants by the entireties, is usually entitled to
receive, absent an agreement between the parties. Prior to a divorce decree,
the entitlement of a spouse to such credits is an equitable matter and not a
matter of right.[49]
The Maryland Court of Special Appeals later applied this concept in Turner v Turner, a
divorce action that stated that the general law of contribution applies to a tenancy by the
entirety “‘when married parties, owning property jointly, separate.’”50 Crawford, as
applied now when courts issue “Crawford credits,” appears to have become a legal
colloquialism for assigning and balancing equities when dividing property in divorce
proceedings. These decisions are entirely consistent with Maryland’s divorce law and
provide no support for plaintiff’s theory that contribution is appropriate where no divorce
proceeding exists, and certainly not where a spouse has died.
48
Id. at 313. This same principle was applied in the same manner in Turner v
Turner, 147 Md App 350, 406-407; 809 A2d 18 (2002), another Maryland case cited in
this Court’s original remand order.
49
Freedenburg v Freedenburg, 123 Md App 729, 737 n 1; 720 A2d 948 (1998),
citing Crawford, and Broseus v Broseus, 82 Md App 183, 192; 570 A2d 874 (1990)
(emphasis added).
50
Turner, 147 Md App at 406, quoting Baran v Jaskulski, 114 Md App 322, 332;
689 A2d 1283 (1997).
23
Similarly, in Cagan v Cagan, a New York trial court allowed the plaintiff to
recover costs for payments made by one tenant by the entirety in order to maintain the
property and prevent foreclosure following an action for separation.51 In a later case also
from New York, the Supreme Court, Appellate Division, held that the responsibility for
mortgage payments, taxes, and insurance on an entireties property should not be borne
solely by the cotenant who remained in possession after a legal decree of separation was
entered on the grounds of abandonment.52
The common thread among these cases is that the plaintiffs were able to
overcome—in live divorce proceedings that sought to partition marital property—the
presumption that money expended by one party to the divorce to maintain a concurrent
estate was not a gift to his or her spouse.53 In a divorce action, it is necessary to make
equitable divisions of property among the living spouses, and this necessarily includes
what is often a couple’s largest asset: their home. It is an unremarkable proposition that
divorce courts, sitting in equity while dividing marital property, would require
contributions to the spouse who paid more than his share during the divorce process, even
when dealing with a couple who own their home as tenants by the entirety.
51
Cagan v Cagan, 56 Misc 2d 1045, 1049-1050; 291 NYS2d 211 (1968).
52
Sterlace v Sterlace, 52 AD2d 743, 743-744; 382 NYS2d 191 (NY App 1976).
53
States whose laws have this legal presumption apply it in relation to every type
of concurrent estate. In addition to the above cases discussing the presumption in relation
to a tenancy by the entirety, see also Kratzer v Kratzer, 130 Ill App 2d 762, 768-769; 266
NE2d 419 (1971) (tenancy in common); Heinemann v Heinemann, 314 So 2d 220, 221222 (Fla App, 1975) (joint tenancy).
24
And Michigan divorce law is in accord with these principles of law articulated in
other states. Michigan law demands equity in divorce and other domestic relations
proceedings. Statutory law provides that upon an annulment of a marriage, a divorce, or
an order of separate maintenance, a court will divide property “as it shall deem just and
reasonable . . . .”54 A separate statutory provision allows a court to award to either party
a portion of the other’s real and personal property, as well as spousal support, “as the
court considers just and reasonable, after considering the ability of either party to pay and
the character and situation of the parties, and all the other circumstances of the case.”55
In sum, when apportioning marital property in a divorce, Michigan courts must make a
division that, although it need not be equal, must be equitable considering all the
circumstances.56
However, the cases on which the majority relies—discussing the presumption of
gift doctrine among spouses and equity in divorce and separation actions—interpret
concepts that are separate and distinct from those relevant to a tenancy by the entirety
that is automatically terminated upon death. As such, they are wholly inapposite to the
case presently before this Court, and their “logic and reasoning” most certainly do not
54
MCL 552.19.
55
MCL 552.23(1).
56
E.g., McDougal v McDougal, 451 Mich 80, 88; 545 NW2d 357 (1996); Sparks v
Sparks, 440 Mich 141, 149; 485 NW2d 893 (1992) (noting that Michigan’s divorce
“statutes each include an indication that general principles of equity must be
considered”); Reeves v Reeves, 226 Mich App 490, 493; 575 NW2d 1 (1997) (stating that
courts “must strive for an equitable division of increases in marital assets”).
25
“closely resemble” this case, as the majority alleges.57 They present facts and thus legal
decisions involving a living husband and wife in the context of divorce or separation
actions that are being actually litigated for the very purpose of partitioning marital
property. Indeed, the majority recognizes and admits this, stating that “the issues in these
out-of-state cases undisputedly arise in the context of divorce and separate maintenance
actions . . . .”58 Yet, the majority’s argument irresponsibly and imprecisely conflates the
law of contribution as applied in these two separate and distinct contexts. The majority
argues that, because domestic relations and divorce law generally allows claims of
contribution when necessary to produce an equitable result, this should also control when
determining parties’ rights and obligations in managing real property in probate after the
death of a spouse. I strongly disagree.
57
See ante at ___. Certainly those cases share some similar factual situations with
this case—as any divorce or separation case likely will. This does not mean that the legal
principles in those divorce and separation cases should be applied here, where one spouse
is deceased. The majority extracts fragments of sentences from those opinions, showing
how those phrases could be said to be true on the facts of this case by inserting the names
of the parties in this case. In doing so, the majority does precisely what I believe is
improper: it takes cases where courts in the context of divorce or separation proceedings
are reassigning equities and uses them to reassign equities in this case.
58
Ante at ___. The majority also argues that “No state whose courts have
addressed this specific proposition has rejected it.” Ante at ___ n 16. This argument is
disingenuous because no other state has considered the subject matter of this case.
Indeed, in order to gain contribution among tenants by the entirety, every other state
seems to require what this dissent requires: a live case and controversy among living
spouses in a divorce, separation, or separate maintenance proceeding. The majority
extracts a generalized rule from these other cases—which allow contribution in these
limited situations—in support of its unprecedented rule in this case allowing contribution
generally and even after the death of a spouse.
26
It is difficult to apply the principles of these foreign cases after the death of one of
the parties where there has been no divorce (or even any steps taken toward obtaining a
divorce or separate maintenance), and no attempt to dispose of the property with judicial
oversight while the parties remained alive. Contribution related to property held as a
tenancy by the entirety is only available under Michigan law in the context of a divorce,
separation, or separate maintenance proceeding where a court, addressing a breakdown in
the marriage, is forced to balance the equities between the parties. Thus, because Janet
Mandeville could not have sought contribution from defendant while alive because she
did not pursue an action for divorce, separation, or separate maintenance, her estate
likewise cannot pursue such an action.59 The law is pellucidly clear that absent the
destruction of the tenancy by the entirety by one of the legal means previously
described,60 the death of a cotenant by the entirety automatically makes the surviving
spouse the sole owner of the property and simultaneously extinguishes the decedent’s
ownership interest in the property. Thus, by operation of the type of estate chosen by the
Mandevilles and how the Mandevilles chose to structure and maintain their marriage,
there is no entitlement to order contribution in this case.
59
This makes the majority’s reliance on MCL 600.2921 inappropriate where that
provision states that “[a]ll actions and claims survive death” and thereby allows estates to
bring claims on behalf of their decedents. See ante at ___ n 14. Because there is no
cause of action under Michigan law for a tenant by the entirety to seek contribution, MCL
600.2921 cannot save any claim for a decedent’s estate to pursue. To the extent that the
Court of Appeals held contrarily, I believe that it erred; to the extent that the majority
establishes a new right of contribution that may be “saved” by MCL 600.2921, it too errs.
60
See supra at 7-8 (discussing how a tenancy by the entirety can be terminated).
27
C. ALTHOUGH THE COMMON LAW RULE IS EQUITABLE,
THE MAJORITY REJECTS IT IN FAVOR OF A NEW RULE
THAT IS CONTRARY TO THE POLICIES OF THIS STATE
While this Court unquestionably has the authority to modify the common law,61
doing so is a task we approach with the utmost caution,62 and this case is a good
illustration as to why. We are presented here with a set of rules that has been in place and
applied in common law societies since before Michigan became a state. Everyone from
young couples buying their first home to estate planners advising their clients how to
structure their property have relied on these tenets with the justified expectation that the
force of law will protect their choices. The majority’s decision to change the common
law in this case represents a sea-change in our laws governing property and threatens to
upend legitimate financial relationships into which married persons have entered.63
61
See, e.g., Ames v Port Huron Log Driving & Booming Co, 11 Mich 139, 145155 (1863) (opinion by CAMPBELL, J., and opinion by MANNING, J.).
62
See, e.g., Henry, 473 Mich at 89.
63
The majority chalks this discussion up to “unwarranted policy concerns,” ante at
___, but because plaintiff requests that we change the common law of this state, it is
imperative that this Court base its decisions firmly on the now-established laws and
policies of this state. Indeed, the majority’s author has persuasively explained as much:
In identifying the boundaries of public policy, we believe that the
focus of the judiciary must ultimately be upon the policies that, in fact,
have been adopted by the public through our various legal processes, and
are reflected in our state and federal constitutions, our statutes, and the
common law. See Twin City Pipe Line Co v Harding Glass Co, 283 US
353, 357; 51 S Ct 476; 75 L Ed 1112 (1931). The public policy of
Michigan is not merely the equivalent of the personal preferences of a
majority of this Court; rather, such a policy must ultimately be clearly
rooted in the law. There is no other proper means of ascertaining what
28
There is a great danger in authorizing courts to engage in post hoc factual inquiries
concerning how a husband and wife should have decided to structure their marriage, their
finances, and the various equities involved in a lifetime of making choices as a couple
rather than as individuals pursuing separate self-interests. The majority fails to address
the unknown—and perhaps unknowable—implications that accompany its change in the
common law. Beyond recounting the facts of this case, the majority does not discuss
what facts would be legally sufficient for courts to divide marital property equitably after
death. Nor does the majority sufficiently address what would serve as the limiting
principle concerning a contribution claim against the surviving spouse. Moreover, as
previously stated, the majority’s new rule upsets the reliance interests of all Michigan
spouses who have entered into tenancies by the entirety in preference to other forms of
lesser protected joint property relationships. Strangely, but perhaps not unexpectedly, the
majority opinion is silent on its justifications for unsettling these reliance interests.
Instead, the majority rests on the standards set forth by the surviving spouse
provision, inappropriately borrowing its framework to order contribution in this case,
even though the Legislature never intended this provision to be used in such a way. Yet,
where this Court is considering a sweeping change to Michigan’s common law through
constitutes our public policy. [Terrien v Zwit, 467 Mich 56, 66-67; 648
NW2d 602 (2002) (opinion by MARKMAN, J.) (emphasis in original).]
My discussion below sets forth the arguments justifying my belief that the
majority’s change to the common law is not based on the well established legal principles
and policies of this state. That the majority’s decision is contrary to these policies speaks
more to the lack of firm support for its opinion rather than any “flaws” in my discussion.
29
the employment of equity, I believe that the justices certainly owe more consideration
and guidance to future courts than what amounts to the majority’s theory of “I know it
when I see it.” The majority uses the rare facts of this case to change the overarching
principle applicable in all cases; in essence, it uses the exception to rewrite the rule.
In its desire to order contribution for a plaintiff it clearly deems sympathetic, the
majority leaves myriad questions unanswered regarding the scope of this newfound legal
avenue to collaterally attack financial arrangements made in the course of a valid
marriage. Particularly in situations where neither spouse ever asked a court to intervene
in the marital relationship, it is deeply troubling that the majority now allows courts to do
so under the guise of equity after the death of a spouse. This difficulty in allowing estates
to pursue an action for contribution or unjust enrichment after the death of a spouse,
particularly where neither party ever sought separate maintenance, is that doing so risks
upsetting intimate and perfectly legitimate marital arrangements and the law that
heretofore supported such relationships.
This difficulty arises because courts are poorly positioned to make such weighty
decisions after the death of a married party, and especially as here, where the parties
themselves chose not to end their marriage. For example, at least in cases that follow the
historical norm in which men contribute more than their spouses to acquiring and
maintaining family property, the rule adopted by the majority may be turned into a
“sword” to be used against stay-at-home wives and women who earn less than their
husbands. Similarly, I wonder whether the majority would permit a rebalancing of
marital equities any time a husband and wife have discontinued living together, or where
30
there is no showing of an intent to make a gift, or where one spouse in a rocky marriage
takes action that benefits the other spouse—all facts that the majority finds relevant to
rebalance the equities of the Mandevilles’ marriage. Under the majority’s theory, what
would stop disgruntled spouses, third parties, or courts from intervening in the financial
arrangements of marriages wherever “principles of natural justice” and “good conscience
so dictate”?64 And to what extent does the majority allow courts to assess the equities of
a marriage—which may last for decades—in determining the appropriate level for
contribution? Should defendant receive credits or be allowed to counterclaim against a
plaintiff-estate for areas in the marriage where he shared a larger portion of the financial
burden, as he likely would have in a divorce or separate maintenance proceeding? The
majority simply does not—and probably cannot—answer these questions. Because the
method by which spouses arrange their financial circumstances is entirely a product of
their own determination and in accordance with their wishes and values, I would decline
to authorize this type of post hoc judicial inquiry into the equitable nature of those
arrangements that the majority permits—indeed, requires—upon a challenge of this
nature.
Moreover, by accepting plaintiff’s invitation to change our common law, the
majority today creates an unprecedented action akin to allowing a new type of
“posthumous divorce” in this state. As the preceding sections discussing Michigan
64
Where, other than in the guts of the majority, shall we determine how
“principles of natural justice” or “good conscience” should direct our decisions?
31
divorce law and caselaw from our sister states demonstrates, the only method by which a
spouse can normally obtain contribution for property involving a tenancy by the entirety
is when a court is balancing equities concerning property in divorce or separate
maintenance proceedings. That being the case, the majority grants plaintiff the same
relief that Janet Mandeville would have been accorded in a divorce or separation, but
without the benefit of an actual divorce or separation proceeding. And indeed, the
majority treats the Mandevilles’ marriage as sufficiently defunct in order to hold
defendant liable for contribution.
I strongly object to any decision that recognizes an action amounting to
posthumous divorce.65 Following this decision, Michigan courts are now permitted to
determine after a spouse’s death whether a couple’s relationship had broken down in life
in order to reassign equities just as a family court would do in divorce or separate
maintenance proceedings. The facts of this case show that neither Frank nor Janet
Mandeville legally ended their marriage or took the steps that would allow courts to order
contribution while Janet Mandeville was alive. Therefore, courts should not be allowed
to rebalance the equities of a marriage after the death of a party as if there had been a
divorce in order to determine the proper amount for monetary contribution. Recognizing
65
Contrary to the majority’s attempt to disparage this argument as mere frivolity
by stating, for example, that this Court is not taking anyone’s wedding rings, I simply
state that the relief the majority orders in this case amounts to or is tantamount to a
posthumous divorce. Where the majority makes such extraordinary factual findings as
that the Mandevilles had “discontinued living together as husband and wife,” it is hard to
argue that the majority is doing anything other than mentally divorcing the couple in
order to hold defendant liable for contribution.
32
the equivalent of posthumous divorce in this state is an untenable course of action for this
Court to take where the positive law of this state has provided extensive indications that
marriage is to be fostered, preserved, and ended only by judicial intervention at the
request of the spouses themselves.66
I also recognize that the Legislature is better positioned to balance the complex
public policy considerations inherent in plaintiff’s request to allow the recalculation of
equities after death or create a type of posthumous divorce in this state. As this Court has
stated previously: “The responsibility for drawing lines in a society as complex as ours—
of identifying priorities, weighing the relevant considerations and choosing between
66
By allowing post hoc, posthumous judicial inquiries into the equities of a
marriage, the majority’s opinion here is in deep conflict with Michigan’s public policy
favoring marriage. See Van v Zahorik, 460 Mich 320, 332; 597 NW2d 15 (1999);
Wagoner v Wagoner, 128 Mich 635, 638; 87 NW 898 (1901).
The majority’s assertion that its opinion is the one that fosters and preserves
marriage by allowing married couples to pursue actions for contribution is too clever by
half. At its core, our society’s respect for marriage relies on the marital couple itself to
chart its own course and make its own decisions. In return, the marital couple relies on a
set of established principles—legal and otherwise—to ensure that decisions will be given
effect. Unlike the majority, I am not prepared to alter either this reliance or the principles
themselves where one party unilaterally decides that he or she no longer likes the marital
agreement. Ultimately, the majority’s opinion allows plaintiff to obtain relief she
otherwise would not be able to achieve based on the way the decedent and her husband
structured their marriage. How can this possibly be said to preserve marriage or accord
respect to the way a couple structured its marriage? Marriage necessitates mutuality in
decision-making, yet the majority now grants to one spouse the power to invite courts
into the marriage to analyze the decisions and equities as a court would in any normal
business or partnership dispute—and worse still, it apparently allows a spouse to do so
from beyond the grave. This absurd situation underscores the majority’s inability to
recognize this case for what it is: a marriage that arguably faltered in its latter years
because of apparent problems for which there are settled, appropriate, and adequate
remedies in existence that neither spouse in this case pursued.
33
competing alternatives—is the Legislature’s, not the judiciary’s.”67 This principle is even
more important where the requested change in the common law is contrary to a public
policy of the state, as is the case here.68
Further, I note that the Michigan Legislature has declined to adopt legislation that
would have accomplished statutorily exactly the changes plaintiff seeks in the common
law here.69 And as observed earlier, the Legislature actually has acted in this area
through its enactment of Michigan’s surviving spouse statute. However, the Legislature
acted in a highly limited fashion and has not extended the statute’s reach in ways that
would encompass the facts of this case.70 In this regard, the Legislature has already
selected a policy for this state. Nevertheless, the majority apparently has no qualms
extending the common law in a contrary fashion. As previously noted, long-established
principles of statutory construction do not give this Court the authority to do so.
Normally, if the Legislature believes that such a historical principle should be changed, it
67
O’Donnell v State Farm Mut Auto Ins Co, 404 Mich 524, 542; 273 NW2d 829
(1979); see also Henry, 473 Mich at 98 (“[W]hat we as individuals prefer is not
necessarily what we as justices ought to impose upon the people. Our decision in this
case is driven not by a preference for one policy or another, but by our recognition that
we must not impose our will upon the people in matters, such as this one, that require a
delicate balancing of competing societal interests. In our representative democracy, it is
the legislative branch that ought to chart the state’s course through such murky waters.”).
68
See Van, 460 Mich at 333 (“We hold that because the requested extension of the
equitable parent doctrine would affect the state’s public policy in favor of marriage, the
Legislature is clearly the appropriate entity to consider this issue.”).
69
See SB 0062 (2007). The bill, introduced by Senator Judson Gilbert, passed
neither chamber of the Michigan Legislature.
70
See supra at 29-31.
34
is free to do so. Although to date the Legislature has declined to make such a change, the
majority has instead fashioned an unprecedented judge-created rule in contravention of
this state’s public policy.
III. CONCLUSION
There is an old legal adage that “bad facts make bad law.” This phrase has rarely
been as true as on the circumstances giving rise to this case. In its eagerness to provide
relief to a plaintiff it deems sympathetic, the majority today rejects the legal remedies that
were available to that plaintiff, and instead crafts an unprecedented new remedy. In
doing so, the majority extends the law’s equitable reach in new and unique ways,
unsettling centuries of law in this area and implicitly reworking what is the key feature of
a tenancy by the entirety: the unencumbered right of survivorship.
Moreover, by
allowing courts to make post hoc determinations regarding the distribution of equities in
a marriage, the majority’s decision imposes upon the citizenry of Michigan rules that
amount to posthumous divorce under the guise of equity.
And it does so by
inappropriately borrowing the framework from a narrow statute limited in application by
its explicit terms, resulting in the wholesale application of that statute into an area of law
in which it was never intended.
Because the law’s equitable reach is surely not designed to allow the estates of
parties to accomplish after death that which the parties themselves declined to pursue in
life, I dissent from the majority’s decision today. Instead, I believe that plaintiff cannot
present a claim under Michigan law or in equity that would allow the decedent’s estate to
recover contribution from defendant.
Michigan law does not recognize a right of
35
contribution among tenants by the entirety, and thus plaintiff’s claim is not cognizable
under our current law governing real property. Nor, perforce, is her claim justified in
equity on a theory of unjust enrichment. Defendant was not unjustly enriched when, by
operation of law, he took sole ownership of marital property previously held as a tenancy
by the entirety with the decedent. Unlike the majority, I would decline to extend the
common law of this state as plaintiff requests. Michigan’s public policy can provide no
justification for, and is in fact antithetical to, the concept of “common law divorce” or the
notion that courts should recalculate the equities involved in a marriage after a spouse has
passed.
Accordingly, I vigorously dissent.
Robert P. Young, Jr.
36
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.
