In re Estate, Docket No. 309640.
| Decision Date | 16 April 2013 |
| Docket Number | Docket No. 309640. |
| Citation | 300 Mich.App. 489,834 N.W.2d 93 |
| Parties | In re BURNETT ESTATE. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Martin E. Blank, Ann Arbor and Anne Argiroff for plaintiff.
Raymond G. Mullins, Ypsilanti, for defendant.
Before: MURRAY, P.J., and MARKEY and WHITBECK, JJ.
The United States Constitution created a federal government of limited, enumerated powers, and reserved 1 to the states all powers not specifically granted to the federal government. See U.S. Const., art. I, § 8; U.S. Const., Am. X. As eloquently stated by the principal architect of the Constitution when arguing for its ratification by the states, “[t]he powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” The Federalist No. 45, p. 311 (James Madison).
In the exercise of its reserved powers, Michigan has always regulated the marriage relationship.2 This case involves both the definition of marriage established by the people through a direct vote as set forth in our state constitution ( Const. 1963, art. 1, § 25), as well as by the people's representatives as contained in statute ( MCL 551.1). These laws (and others) prohibit recognition of a contract of marriage entered into by two individuals of the same sex. Here, defendant—who had a sex-change operation subsequent to the parties' marriage—argues that under these provisions a Michigan court had no jurisdiction to grant a divorce to the plaintiff because defendant is also now a female. For the reasons that follow, we hold that the circuit court had jurisdiction to enter the divorce judgment, and we therefore affirm.
Plaintiff and defendant were married in Ann Arbor, Michigan on August 30, 1984. In the late 1980s, plaintiff and defendant moved to Philadelphia, Pennsylvania, where they lived together until September 2005. During that month defendant drove plaintiff to Michigan for an extended visit with her daughter, Beryl Ellen Niles. Plaintiff never returned to Philadelphia, and never lived again with defendant.
The underlying divorce action was initiated by plaintiff's children, Niles and her brother Joseph Buxbaum, who also served as plaintiff's guardians.3 Plaintiff was 79 years old and suffering from dementia when the complaint was filed on her behalf. Defendant responded to the complaint and filed a motion for summary disposition, arguing that guardians and conservators lack authority to file a complaint for divorce on behalf of an incapacitated ward. The trial court denied defendant's motion from the bench, concluding that under Michigan caselaw guardians and conservators have authority to file a complaint for divorce.
Defendant subsequently filed a second motion for summary disposition, this time arguing that the trial court did not have jurisdiction to grant a divorce. The basis for defendant's argument was that defendant, who was born a man, underwent gender reassignment surgeryto become a woman in November 2003. As a result, defendant argued, the parties were no longer married because Michigan law only recognized marriage as the union between one man and one woman. And, defendant argued, because the parties were not married the trial court had no jurisdiction to grant a divorce. Defendant further argued that granting a divorce would be an implicit recognition of marriage between individuals of the same gender, which is prohibited under the Michigan Constitution.
The trial court denied defendant's motion, concluding that the parties entered into a valid marriage contract, not a same-sex marriage contract, and that it had the ability to dissolve a marriage that was lawfully entered into in this state. Soon thereafter the court entered a final judgment of divorce, from which defendant now appeals.4
Defendant raises two issues. First, can a guardian or conservator file a complaint for divorce on behalf of the spouse over whom the guardianship or conservatorship is placed? Second, if the complaint was properly filed, did the circuit court have jurisdiction to enter a judgment of divorce between married persons purportedly of the same sex? We address these issues in that order below, and ultimately decide both questions in the affirmative.
Defendant's first dispositive motion, which the trial court denied, challenged the ability of a guardian or conservator to file a complaint for divorce on behalf of an incompetent spouse. This Court reviews de novo a trial court's decision on a motion for summary disposition, Driver v. Naini, 490 Mich. 239, 246, 802 N.W.2d 311 (2011), and reviews issues of statutory and court rule interpretation under the same standard, Bint v. Doe, 274 Mich.App. 232, 234, 732 N.W.2d 156 (2007).
In Houghton v. Keller, 256 Mich.App. 336, 338, 662 N.W.2d 854 (2003), we addressed this precise issue and concluded that “a guardian can bring an action for divorce on behalf of an incompetent spouse.” Defendant acknowledges Houghton but argues that Houghton is either erroneous or otherwise not conclusive on the merits of the issue presented in this case. Specifically, defendant notes that Houghton cited to Smith v. Smith, 125 Mich.App. 164, 335 N.W.2d 657 (1983), which in turn relied on the General Court Rules. Because the General Court Rules have been replaced by the Michigan Court Rules, defendant argues, Houghton cannot control the outcome of this case under the Michigan Court Rules.
For at least two reasons, this argument is without merit. First, Houghton did not solely rely on Smith, as the Court specifically considered the language contained in two Michigan court rules, MCR 3.202(A) and MCR 2.201(E). See Houghton, 256 Mich.App. at 338, 662 N.W.2d 854. Second, although the Smith Court relied on GCR 1963, 722.2 5 for its holding, the Houghton Court properly concluded that several rules within subchapter 3.200 requires the same result reached in Smith.
Subchapter 3.200 is titled “Domestic Relations Actions,” and MCR 3.201(A)(1) provides that subchapter 3.200 applies to actions for divorce, separate maintenance, and the annulment of a marriage. MCR 3.202(A) provides: “Except as provided in subrule (B), minors and incompetent persons may sue and be sued as provided in MCR 2.201.” MCR 2.201(E) pertains to minors and incompetent persons and provides in relevant part as follows:
(1) Representation.
(a) If a minor or incompetent person has a conservator, actions may be brought and must be defended by the conservator on behalf of the minor or incompetent person.
(b) If a minor or incompetent person does not have a conservator to represent the person as plaintiff, the court shall appoint a competent and responsible person to appear as next friend on his or her behalf, and the next friend is responsible for the costs of the action.
(c) If the minor or incompetent person does not have a conservator to represent the person as defendant, the actionmay not proceed until the court appoints a guardian ad litem....
Thus, contrary to defendant's argument, the current court rules specifically allow a guardian or conservator to bring an action for divorce on behalf of a mentally incompetent spouse. See Houghton, 256 Mich.App. at 338, 662 N.W.2d 854 ().
Defendant also argues that MCR 3.202(A) conflicts with MCL 552.11, which provides that “[a]n action for a divorce may be brought by a wife or a husband, and in all cases the respondent may answer the bill without oath or affirmation.” Defendant argues that because MCL 552.11 only refers to a wife and a husband bringing an action for divorce, no one else can do so, even when acting on behalf of one spouse. A similar argument was rejected in Houghton, 256 Mich.App. at 338–339, 662 N.W.2d 854:
Defendant appears to be suggesting that if the Legislature intended to provide for actions by a guardian, the Legislature would have expressly provided for this in MCL 552.6. However, the converse argument can be made that, had the Legislature intended to prohibit actions by guardians on behalf of a spouse, it would have expressly said so in the language of MCL 552.6. Nothing in the language of MCL 552.6 expressly prohibits guardians from filing a complaint for divorce on behalf of a party to the marriage. Defendant has not shown how the language in MCR 3.202(A), providing in relevant part that “incompetent persons may sue and be sued as provided in MCR 2.201,” changes the statutory requirements for divorce.
Defendant further argues that MCR 3.202(A) is unconstitutional because it is in conflict with the statutory requirements of MCL 552.6. However, as noted above, the court rule does not change the statutory provisions pertaining to divorce and, therefore, the premise of defendant's argument fails.
The above reasoning is equally applicable to this case. Had the Legislature intended to prohibit an action by a guardian on behalf of a spouse, it could have expressly said so in the language of MCL 552.11.6Nothing within the language of MCL 552.11 expressly prohibits a guardian or conservator from filing a complaint for divorce on behalf of an incompetent spouse. Consequently, we reject defendant's argument on this issue.
Turning now to the second issue raised by defendant, we must decide whether the trial court properly denied defendant's second motion for summary disposition, which challenged the trial court's authority to enter a divorce judgment. As we have already noted, this Court reviews de novo a trial court's decision on a motion for summary disposition. Driver, 490 Mich. at...
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