In re Miltenberger Estate

• Court: Court of Appeal of Michigan
• Writing for the Court: Per Curiam
• Citation: In re Miltenberger Estate, 737 N.W.2d 513, 275 Mich. App. 47 (Mich. App. 2007)
• Decision Date: 27 March 2007
• Docket Number: Docket No. 270716.
• Parties: In re ESTATE of James W. MILTENBERGER, Deceased. Susan Eifler, Personal Representative of the Estate of James W. Miltenberger, Deceased, Appellee, and Sharon Miltenberger, Petitioner-Appellee, v. Sandra Swartz, Respondent-Appellant.

737 N.W.2d 513

275 Mich. App. 47

In re ESTATE of James W. MILTENBERGER, Deceased Susan Eifler, Personal Representative of the Estate of James W. Miltenberger, Deceased, Appellee, and Sharon Miltenberger, Petitioner-Appellee, v. Sandra Swartz, Respondent-Appellant.

Docket No. 270716.

Court of Appeals of Michigan.

Submitted December 4, 2006, at Lansing.

Decided March 27, 2007, at 9:05 a.m.

Released for Publication August 15, 2007.

Mumford, Schubel, Norlander, Macfarlane & Barnett, P.L.L.C. (by Jeffrey A. Schubel), Battle Creek, for the petitioner.

Kreis, Enderle, Callander & Hudgins, P.C. (by J. Ryan Conboy and Michael J. Toth), Kalamazoo, for the respondent.

Before: MARKEY, P.J., and SAAD and WILDER, JJ.

PER CURIAM.

This case presents the question whether the dower statute, MCL 700.2202(2)(c),¹ denies respondent the equal protection of the laws. We hold that it does not.

I

James Miltenberger was married to petitioner, Sharon Miltenberger. Respondent Sandra Swartz, was James's child from a previous marriage. James Miltenberger died in 2004.

Petitioner sought to take her statutory dower interest in certain property her husband owned before his death, MCL 700.2202(2)(c), in lieu of taking under the decedent's will, which left her nothing. Respondent filed a motion for summary disposition under MCR 2.116(C)(8) and (C)(10) in which she challenged the constitutionality of the dower statute on equal protection grounds. Respondent argued that the dower statute discriminated in favor of women and against men. The probate court rejected respondent's constitutional challenge. It reasoned, in pertinent part:

Concerning the constitutionality, this Court is going to reluctantly decline to make dower unconstitutional . . . . I'm going to give deference to the legislature in this particular matter. Number one, I think that certainly dower serves or can be seen to serve an important governmental objective [,] that of protecting widows. I guess anecdotally most property, especially business property, is owned or in the name of men, and I think that one of the reasons for dower is that very inequality which we see sometimes in our society. I believe that still even though it's a changing norm, women, a lot of times, do stay home. They raise the children. The men are the ones who are the professionals or breadwinners in the family, and as part of this, they also are the ones who hold the title to the property. And I think that the legislature certainly can see the fact that a woman stays home and does the important work of raising the family without compensation, without learning a skill otherwise, that she deserves some protection that would not also go to a man.

Again, this is anecdotal evidence, and that's why I have such a reluctance ... to sit here today and declare this statute to be unconstitutional, because quite frankly, . . . it would not hurt my feelings to see dower go. Dower historically has always been here in Michigan, and . . . it was re-adopted when the Estate[s] and Protected Individuals Code [EPIC] was adopted back in nineteen, I believe, ninety-nine. In fact, it was specifically considered because I do not believe that there is any dower in the Uniform Probate Code which was used as a model for EPIC. I know that dower was not submitted as the draft before the legislature by the Probate and Estate Planning Council, which was the major sponsor of that legislation, because I was a member and an officer in that council. I know that, in fact, the adoption of EPIC was delayed until the legislature or certain legislators had dower placed back in that legislation, and then it was adopted.

I believe that this is . . . something which is peculiar to the legislature as elected governmental officials to determine whether or not this is an important government objective to protect widows in our society. Certainly I believe that dower . . . is substantially related to the achievement of that particular objective if there is a determination that widows somehow are in a — a special class that needs this particular protection.

So I am going to, once again, defer to the legislature, and I'm going to decline to declare dower to be unconstitutional . . . .

The probate court denied in part respondent's motion for summary disposition, holding that the dower statute did not violate the equal protection clauses of the United States² and Michigan³ constitutions. Respondent appeals as of right.

II

We review the trial court's ruling on a motion for summary disposition de novo. Kefgen v. Davidson, 241 Mich.App. 611, 616, 617 N.W.2d 351 (2000). Constitutional issues are also reviewed de novo on appeal. Dorman v. Clinton Twp., 269 Mich.App. 638, 644, 714 N.W.2d 350 (2006). Where the parties rely on documentary evidence in support of their arguments, appellate courts proceed under the standards of review applicable to a motion made under MCR 2.116(C)(10). Krass v. Tri-County Security, Inc., 233 Mich.App. 661, 665, 593 N.W.2d 578 (1999). When deciding a motion for summary disposition under MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists. Id. at 667 n. 4, 593 N.W.2d 578. Such materials are to be considered only to the extent that they are admissible in evidence. MCR 2.116(G)(6).

III

In addition to the statutory provisions of MCL 700.2202 and MCL 558.1, the Michigan Constitution recognizes the right of dower. Article 10, § 1, which abolished the disabilities of coverture as to property, provides that "[d]ower may be relinquished or conveyed as provided by law." Const 1963, art 10, § 1. Nevertheless, article 10, § 1 is reviewable for constitutionality "in light of the equal protection guarantees provided under" the United States and Michigan constitutions. See North Ottawa Community Hosp. v. Kieft, 457 Mich. 394, 405, 578 N.W.2d 267 (1998).

With regard to the state constitutional claim, every provision in our constitution "must be interpreted in the light of the document as a whole, and no provision should be construed to nullify or impair another." Lapeer Co. Clerk v. Lapeer Circuit Court, 469 Mich. 146, 156, 665 N.W.2d 452 (2003). All constitutional provisions enjoy equal dignity, and a fundamental rule of construction requires construction of every clause or section of a constitution consistent with its words, to protect and guard its purposes. In re Proposals D & H, 417 Mich. 409, 421, 339 N.W.2d 848 (1983). Accordingly, article 10, § 1 must be read together with the equal protection guarantee in article 1 § 2. See Gentzler v. Smith, 320 Mich. 394, 404, 31 N.W.2d 668 (1948); Nat'l Pride at Work, Inc. v. Governor, 274 Mich.App. 147, 167, 732 N.W.2d 139 (2007). In short, because dower is expressly mentioned in our constitution, the ability of the Legislature to enact the dower statute is enshrined in our constitution. This Court is therefore obliged to read, if possible, article 10, § 1 as consistent with the state Equal Protection Clause, rather than reading them as conflicting with one another.

In Electronic Data Sys. Corp. v. Flint Twp., 253 Mich.App. 538, 551, 656 N.W.2d 215 (2002), this Court outlined the extent of equal protection clause review:

The Equal Protection Clauses of the United States and Michigan Constitutions provide that no person shall be denied the equal protection of the law. US Const, Am XIV; Const 1963, art 1, § 2. The essence of the Equal Protection Clauses is that the government not treat persons differently on account of certain, largely innate, characteristics that do not justify disparate treatment. While the Equal Protection Clauses require that persons in similar circumstances be treated alike, those things which are different in fact or opinion [are not required] to be treated in law as though they were the same. Thus, the Equal Protection Clauses do not prohibit the state from distinguishing between persons, but require that the distinctions that are made not be arbitrary or invidious. [Electronic Data Sys. Corp., supra at 551, 656 N.W.2d 215 (citations and internal quotation marks omitted).]

"[W]hen legislation is challenged as violative of the equal protection guarantee under either constitution, it is subjected to judicial scrutiny to determine whether the goals of the legislation justify the differential treatment it authorizes." Doe v. Dep't of Social Services, 439 Mich. 650, 661-662, 487 N.W.2d 166 (1992). The Court reviews legislation creating classifications based on gender using the intermediate level of scrutiny, under which "a challenged statutory classification will be upheld only if it is substantially related to an important governmental objective." Phillips v. Mirac, Inc., 470 Mich. 415, 433, 685 N.W.2d 174 (2004) (citations omitted).

In Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974), the United States Supreme Court upheld as constitutional a statute conferring financial benefits to widows but not widowers. The Court held that the classification was substantially related to an important governmental objective because it was "reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden." Id. at 353-355.

In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the Court considered the constitutionality of Alabama alimony statutes requiring that husbands, but not wives, pay alimony upon divorce. Id. at 270, 99 S.Ct. 1102. The Court held that the statutes served important governmental objectives, i.e., "assisting needy spouses" and reducing the economic disparity between men and women. Id. at 280, 99 S.Ct. 1102. The legislation, however, was not substantially related to achieving those objectives because in divorce actions in which alimony...