McCormick v. McCormick, Docket Nos. 173328

• Decision Date: 21 February 1997
• Docket Number: 174483,Docket Nos. 173328
• Citation: 562 N.W.2d 504,221 Mich.App. 672
• Parties: Mary G. McCORMICK, Plaintiff-Appellant, v. Edward J. McCORMICK, Defendant-Appellee. Mary G. McCORMICK, Plaintiff-Appellant, v. Edward J. McCORMICK, Defendant-Appellee. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 504

562 N.W.2d 504

221 Mich.App. 672

Mary G. McCORMICK, Plaintiff-Appellant, v. Edward J. McCORMICK, Defendant-Appellee.

Mary G. McCORMICK, Plaintiff-Appellant, v. Edward J. McCORMICK, Defendant-Appellee. (On Remand)

Docket Nos. 173328, 174483.

Court of Appeals of Michigan.

Submitted Nov. 19, 1996, at Detroit.

Decided Feb. 21, 1997, at 9:25 a.m.

Released for Publication April 29, 1997.

[221 Mich.App. 674] Mary McCormick, Livonia, in pro per.

Eric A. Braverman, personal representative of the estate of Edward J. McCormick, Lincoln Park, in pro per.

Before TAYLOR, P.J., and MARKMAN and P.J. CLULO ^*, JJ.

ON REMAND

PER CURIAM.

In Docket No. 174483, plaintiff, Mary G. McCormick, appeals by leave granted pursuant to an order of the Supreme Court, 445 Mich. 860, 519 N.W.2d 156 (1994), a circuit court order reinstating the postappeal proceedings in a divorce action and removing the case to the probate court. In Docket No. 173328, plaintiff appeals as of right the probate court's amended judgment of divorce. We affirm the reinstatement of the postappeal proceedings, but vacate the removal of the action to the probate court as well as the amended judgment of divorce and remand the cases to the circuit court for further proceedings.

I

These consolidated appeals involve a divorce action commenced by plaintiff in 1984. Soon after plaintiff filed for divorce, an ex parte injunctive order was entered prohibiting the transfer of any assets from the parties' bank accounts. Upon entry of the judgment of divorce, an order was entered that enjoined the enforcement of the property settlement provisions of the divorce judgment pending exhaustion of appellate remedies.

Plaintiff then appealed as of right the property and alimony provisions of the divorce judgment. In McCormick v. McCormick, unpublished opinion per curiam of the Court of Appeals, issued September 9, 1991 (Docket No. 102806), this Court reversed in part and remanded to the circuit court for further proceedings regarding various questions. With regard to plaintiff's claim that the circuit court erred in distributing the parties' former marital home, this Court stated:

The real property at issue here was the focal point of a 1976 reconciliation agreement wherein defendant executed a quit claim deed conveying his interest in the property to plaintiff in exchange for her dismissal of her complaint for divorce. That deed is dated July 19, 1976, and was recorded on March 25, 1980. Plaintiff on March 21, 1980, deeded the property to herself, and her three daughters, Linda, Nancy, and Frances, as joint tenants with rights of survivorship. On April 25, 1980, Frances quitclaimed her interest in the property to plaintiff, Linda, and Nancy. Then, on July 26, 1984, the day after plaintiff filed the instant complaint for divorce, Nancy quitclaimed her interest to plaintiff and Linda. Finally, on March 26, 1986, plaintiff quitclaimed her interest to Linda. Plaintiff argues that because neither party owned an interest in the property at the time of the divorce judgment, the court was without jurisdiction to distribute the property.

* * * * * *

In this case, the trial court failed to make findings of fact regarding plaintiff's ownership interest, if any, in the real property. Defendant at trial contested the validity of the reconciliation agreement and plaintiff at trial sought to uphold the transfers. Thus, the trial court must commence with the 1976 reconciliation agreement and, if necessary, work through the various transfers to determine ownership interests in the property. Third parties that so desire should be represented by counsel. Then, after the ownership of the property is determined, the trial court may distribute according to statute any interest held by either party.

In addition, this Court noted:

The next claim made by plaintiff is that the trial court erred in distributing as marital property an award plaintiff received in settlement of a medical malpractice action initiated in 1981.

* * * * * *

The record in this case is not clear as to the extent to which the settlement compensated plaintiff for pain and suffering. Any such portion would be distributable only upon satisfaction of MCL 552.23; MSA 25.103. We therefore remand to the trial court for such a determination. Any portion of the settlement not compensating plaintiff for pain and suffering was properly distributed as part of the marital estate.

This Court also instructed the circuit court to reexamine the alimony award if there was a change in the property award and to consider plaintiff's claims concerning enforcement of alimony. Finally, this Court directed the circuit court "to open proofs to the extent necessary to determine the issues submitted on remand."

On October 24, 1992, Edward J. McCormick died. Shortly thereafter, plaintiff, without any notice to the decedent's estate, petitioned the circuit court to dismiss the postappeal proceeding. On March 15, 1993, an order was entered dismissing the postappeal proceedings and setting aside the injunctive orders pertaining to the bank accounts. After the order of dismissal was entered, plaintiff and her daughter, Linda McCormick, removed the funds from the accounts that were subject to the injunctive orders.

Subsequently, the personal representative of the decedent's estate moved to reinstate the case. After various hearings, the circuit court entered an order reinstating the case and also removed the case to the probate court for resolution of the remanded issues. In addition, plaintiff was ordered to return approximately $21,000 that she took from the bank accounts in violation of the injunctive orders. Following a hearing, plaintiff was jailed on a contempt citation when she refused to return the money. After this Court denied plaintiff's complaint for a writ of habeas corpus, the Supreme Court, treating her complaint for a writ of habeas corpus as an application for leave to appeal, remanded "the case to the circuit court for a new hearing and findings on the question whether the plaintiff has the power to perform the act which would purge her of the contempt as required by M.C.L. § 600.1715; M.S.A. § 27A.1715." McCormick v. Wayne Co. Sheriff, 444 Mich. 891, 511 N.W.2d 685 (1993).

In the meantime, the personal representative petitioned the probate court to remove the postappeal proceedings in the divorce action to the circuit court for the resolution of the property and alimony issues. At a hearing, the probate court, after ruling that it had subject-matter jurisdiction to decide these issues, questioned plaintiff about the funds that she removed from the bank accounts so as to permit her to purge herself of the contempt citation. When plaintiff refused to answer any questions, the probate court declared that it would enter a default judgment against her, awarding the marital home to the estate and deciding the other issues in the estate's favor. Subsequently, the probate court entered an amended judgment of divorce awarding the marital home and bank accounts to the estate because plaintiff refused to purge herself of the contempt, wilfully secreted assets of the marital estate, and violated injunctive orders.

II

Plaintiff first claims that the circuit court lacked jurisdiction to reinstate the postappeal proceedings after the death of Edward McCormick. We disagree. Although a court is without jurisdiction to render a judgment of divorce after the death of one of the parties, Tiedman v. Tiedman, 400 Mich. 571, 255 N.W.2d 632 (1977), plaintiff's marriage was dissolved and the actual divorce was final before Edward McCormick died. Thus, the circuit court had jurisdiction to reinstate the postdivorce action to resolve the issues remanded to the court pursuant to this Court's opinion in McCormick.

Nevertheless, we agree with plaintiff that the circuit court erred in removing the postappeal proceedings in the divorce action to the probate court and that the probate court did not have jurisdiction over the case. First, removal of the case to the probate court exceeded the scope of the remand order. The power of a lower court on remand is to take such action as law and justice require that is not inconsistent with the judgment of the appellate court. People v. Fisher, 449 Mich. 441, 447, 537 N.W.2d 577 (1995); VanderWall v. Midkiff, 186 Mich.App. 191, 196, 463 N.W.2d 219 (1990). In the prior opinion in this matter, this Court instructed the circuit court to make findings of fact, determine the ownership interests in the marital home, and determine the extent to which the settlement award arising from a medical malpractice action compensated plaintiff for pain and suffering so that it could be decided if some portion of the award was distributable as a marital asset. The circuit court was also ordered to reexamine the alimony award if a change in the property award was needed, to consider plaintiff's claims concerning the enforcement of alimony, and "to open proofs to the extent necessary to determine...