In re Greiff, SC 161535

CourtSupreme Court of Michigan
Writing for the CourtCavanagh, J.
PartiesIn re ESTATE OF HERMANN A. VON GREIFF. v. ANNE JONES-VON GREIFF, Respondent-Appellee. CARLA J. VON GREIFF, Petitioner-Appellant,
Docket NumberSC 161535
Decision Date10 June 2022

In re ESTATE OF HERMANN A. VON GREIFF.

CARLA J. VON GREIFF, Petitioner-Appellant,
v.

ANNE JONES-VON GREIFF, Respondent-Appellee.

No. SC 161535

Supreme Court of Michigan

June 10, 2022


Argued on application for leave to appeal December 9, 2021.

BRIDGET M. MCCORMACK CHIEF JUSTICE JUSTICES BRIDGET M. MCCORMACK BRIAN K. ZAHRA DAVID F. VIVIANO RICHARD H. BERNSTEIN ELIZABETH T. CLEMENT MEGAN K. CAVANAGH ELIZABETH M. WELCH

Syllabus

Carla J. Von Greiff petitioned the Marquette Probate Court under MCL 700.2801(2)(e) of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., seeking a declaration that Anne Jones-Von Greiff was not the surviving spouse of Carla's father, Hermann A. Von Greiff. Anne filed for divorce from Hermann on June 1, 2017. Before the probate court entered the judgment of divorce, however, Hermann died on June 17, 2018. In her petition, Carla asserted that Anne had been willfully absent from Hermann for a year or more before his death and that, therefore, Anne was not entitled to inherit as Hermann's surviving spouse under EPIC. The probate court, Cheryl L. Hill, J., ruled that Anne was not a surviving spouse under MCL 700.2801(2)(e) because she had been intentionally, physically, and emotionally absent from Hermann for more than a year before his death. Anne appealed in the Court of Appeals, Markey, P.J., and Gleicher, J. (M. J. Kelly, J., dissenting), which determined that Anne was not willfully absent under MCL 700.2801(2)(e)(i) because she did not intend to abandon or desert Hermann but was exercising her legal right to seek a divorce and to enforce her rights as a divorcing spouse during the year preceding his death. 332 Mich.App. 251 (2020). The Supreme Court ordered and heard oral argument on whether to grant Carla's application for leave to appeal or take other action. 507 Mich. 904 (2021).

In an opinion by Justice Cavanagh, joined by Chief Justice McCormack and Justices Bernstein, Clement, and Welch, the Supreme Court, in lieu of granting leave to appeal, held:

When a party files an action for divorce and the other spouse subsequently dies before the divorce is finalized, there is a rebuttable presumption that the surviving spouse was not willfully absent from the decedent spouse under MCL 700.2801(2)(e)(i). The challenging party can rebut the presumption by establishing that, under the totality of the circumstances, the surviving spouse's communications with the decedent spouse, prior to their death, were inconsistent with a recognition of the continued existence of the legal marriage. However, if there were spousal communications, whether direct or indirect, during the divorce proceedings that were consistent and made in connection with the legal termination of the marriage, then the surviving spouse was not willfully absent and is entitled to the benefits of a surviving spouse under the statute. In this case, Carla did not sustain her burden to show that Anne was willfully absent given that Anne was
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pursuing the entry of a divorce judgment via communications with the decedent through her attorney. Accordingly, the judgment of the Court of Appeals was affirmed on different grounds

1. Under MCL 700.2801(2)(e)(i), an individual is not a surviving spouse if, for one year or more before the decedent spouse's death, the individual was "willfully absent from the decedent spouse." The burden is on the party challenging a legal spouse's status to show that the spouse was, in fact, "willfully absent from the decedent spouse." In order to establish that the legal spouse was willfully absent, the challenging party must show that, under the totality of the circumstances, (1) there was a complete absence from the decedent spouse, (2) the absence was continuous for at least one year before the spouse's death, and (3) the absence was willful-i.e., that the surviving spouse acted with the specific intent to be away from the decedent spouse for a continuous period of one year or more before the decedent spouse's death.

2. The Court of Appeals majority held that Anne was not willfully absent under MCL 700.2801(2)(e)(i) as a matter of law because she had filed for divorce. This per se rule was unwarranted, given that the phrase "willfully absent from the decedent spouse" does not encompass a categorical rule that precludes a divorcing spouse from losing the benefits of a surviving spouse under the statute. The Court of Appeals majority also erred by relying on MCL 700.2801(3) and the expressio unius est exclusio alterius (express mention in a statute of one thing implies the exclusion of other similar things) canon of statutory interpretation in creating a per se rule. The majority noted that MCL 700.2801(3)(b) provides that, for the purposes of making funeral arrangements, a surviving spouse does not include an individual who is a party to a divorce or annulment proceeding with the decedent spouse at the time of the decedent's death. Therefore, the majority reasoned, in all other contexts, a divorcing spouse is necessarily a surviving spouse. However, MCL 700.2801(3) was enacted after MCL 700.2801(2)(e)(i), and the exclusion in MCL 700.2801(3)(b) of a party to a divorce action from being a surviving spouse for purposes of making funeral arrangements indicates only that the Legislature did not intend to categorically preclude a divorcing spouse from being considered to be a surviving spouse in other contexts. The Court of Appeals majority also erred by relying substantially on the common law of other jurisdictions in interpreting EPIC, which is a comprehensive statutory scheme, and in particular, the "willfully absent" provision, which is unique to Michigan law.

3. The probate court, relying on In re Erwin, 503 Mich. 1 (2018), and evidence that the spouses were not in direct contact and did not see each other for over a year before Hermann's death, concluded that Anne intended to be physically and emotionally absent from Hermann, which resulted in the practical end of the marriage. But Erwin did not limit the court's inquiry to direct contact between spouses. Rather, in holding that physical absence alone was insufficient to establish willful absence, Erwin recognized that "absent" can mean "exhibiting inattentiveness toward another." A person is not exhibiting inattentiveness if they are communicating with a spouse indirectly, such as through their attorney. The record suggested that Anne and Hermann were in frequent contact with each other through their attorneys while litigating the divorce action as they worked out a settlement of everything except spousal support before Hermann died. The fact that the parties were in communication, by itself, did not defeat a finding of willful absence. Rather, a certain type of communication was required to defeat this finding. When one spouse unilaterally and without consideration of the other spouse's desires cuts off all direct or indirect contact with their spouse for over a year, they have taken action inconsistent with the very

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existence of a legal marriage. However, when there has been direct or indirect communication between spouses, the trial court must assess the totality of the circumstances to determine whether the parties' communications were consistent with a recognition that a legal marriage still existed at the time of the decedent spouse's death. In the context of a divorce action, a court should presume that the surviving spouse was not willfully absent. But the trial court must consider the totality of the circumstances in determining willful absence, and the challenging party bears the burden of rebutting the presumption that direct or indirect communications during a divorce proceeding defeat a finding that a spouse was willfully absent.

4. Carla did not sustain her burden to show that Anne was willfully absent notwithstanding her communication with Hermann through their attorneys during the divorce proceeding. There was no evidence that Anne failed to participate to expeditiously resolve the divorce action, and the nearly complete settlement worked out by the parties suggested frequent and detailed communication between Anne and Hermann through their attorneys. Under these circumstances, Anne was not willfully absent from Hermann for more than a year before his death.

Affirmed.

Justice Zahra, joined by Justice Viviano, dissenting, noted that in Erwin the Supreme Court held that a person is willfully absent from their decedent spouse under EPIC if that person engaged in intentional acts that brought about a situation of divorce in practice, even when the legal marriage was not formally dissolved. The probate court applied the "totality of the circumstances" test for willful absence from Erwin and found that Anne was willfully absent from Hermann under MCL 700.2801(2)(e)(i). Justice Zahra opined that the majority unjustifiably altered the Erwin test and created a per se rule with no connection to the statute. The majority concluded that Erwin did not limit the "willfully absent" inquiry to direct contacts between spouses and that communication driven solely by the parties' legal counsel is sufficient to defeat a finding that a spouse was intentionally and completely emotionally absent from the decedent spouse. In so concluding, the majority improperly modified the Erwin test in a manner at odds with a fair and reasonable reading of Erwin. The Erwin test directed the court to ask whether, given the totality of the circumstances, Anne intended to be physically and emotionally absent from Hermann, resulting in a practical end to their marriage. Anne was physically absent from Hermann for 13 months before his death, and communicated with him only through her legal counsel during the divorce proceedings. According to Justice Zahra, this behavior plainly constituted a complete physical and emotional absence that resulted in the practical end of the...

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