Von Greiff v. Jones-Von Greiff (In re Von Greiff), No. 347254

CourtCourt of Appeal of Michigan (US)
Writing for the CourtGleicher, J.
Citation956 N.W.2d 524,332 Mich.App. 251
Parties IN RE ESTATE OF Hermann A. VON GREIFF. Carla J. Von Greiff, Petitioner-Appellee, v. Anne Jones-Von Greiff, Respondent-Appellant.
Docket NumberNo. 347254
Decision Date23 April 2020

332 Mich.App. 251
956 N.W.2d 524

IN RE ESTATE OF Hermann A. VON GREIFF.

Carla J. Von Greiff, Petitioner-Appellee,
v.
Anne Jones-Von Greiff, Respondent-Appellant.

No. 347254

Court of Appeals of Michigan.

Submitted January 14, 2020, at Grand Rapids.
Decided April 23, 2020, 9:10 a.m.


Barron, Rosenberg, Mayoras & Mayoras, PC (by Jonathan M. Colman ), Troy, for Carla J. Von Greiff.

McDonald & Wolf, PLLC (by William I. McDonald ), Marquette, for Anne Jones-Von Greiff.

Before: Markey, P.J., and Gleicher and M. J. Kelly, JJ.

Gleicher, J.

332 Mich.App. 253

Anne Jones-Von Greiff and Hermann Von Greiff were married for 15 years. During the marriage, Hermann was unfaithful to Anne. The parties argued, sometimes fiercely. On June 1, 2017, after Hermann repeatedly and angrily told Anne to "get out of my fucking house," Anne filed for divorce.

Over the course of the next year, the parties and their lawyers litigated and negotiated the dissolution of the Von Greiff marriage. Hermann stipulated that Anne could reside in the marital home, and he never returned. Hermann died shortly before

956 N.W.2d 526

the divorce judgment was signed—on June 17, 2018, slightly more than a year after the parties separated. Hermann's

332 Mich.App. 254

adult daughter, Carla J. Von Greiff, brought this action seeking to dispossess Anne of her right to inherit as Hermann's surviving spouse.

The probate court ruled that Anne did not qualify as Hermann's surviving spouse because she was "willfully absent" from him for more than a year before his death, citing MCL 700.2801(2)(e)(i ). That statute is inapplicable to the period of time consumed by divorce proceedings. We reverse.

I

Anne and Hermann Von Greiff had a rocky relationship. The couple were previously married and divorced in 2000, but remarried in 2003. Husband and wife sometimes lived separately, as Hermann moved away for extended periods of time to accept various job opportunities. Hermann was often unfaithful. And Hermann suffered from bipolar disorder, making him volatile and difficult to live with. As Hermann grew older, his physical health also declined. In May 2017, Hermann decided to undergo an elective spinal fusion surgery. Anne disagreed that he should undertake the risks of the operation. The couple fought, and Hermann asked Carla to travel to Marquette from Florida to take him for the surgery. Anne described that Hermann said "nasty things" to her during this period, demanded that she leave for the "hundredth time" during a "fierce attack," and told her repeatedly and angrily to "get out of my fucking house." Anne questioned whether Hermann was certain about his decision, and he responded by again ordering Anne out of the home.

Anne did not immediately leave the home, but waited for Carla's arrival. Following Hermann's surgery, he moved to an assisted living facility. In his

332 Mich.App. 255

absence, Anne and Hermann agreed that only Anne would move back into the marital home. Divorce proceedings followed.

A Michigan spouse may seek a divorce without stating a specific cause. "[A] divorce can be sought on the basis that there has been ‘a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved.’ MCL 552.6(1). Nothing more is required." In re Erwin , 503 Mich. 1, 12 n. 5, 921 N.W.2d 308 (2018). Anne filed for divorce on June 1, 2017. Although she did not need to, Anne alleged a cause for the breakup of her marital union: infidelity. During the divorce proceedings, Hermann admitted under oath that he had sexual relations with other women while married to Anne.

The divorce moved slowly. The parties eventually resolved all divorce-related issues but apparently could not agree regarding spousal support. The circuit court issued an opinion and order granting Anne spousal support on May 29, 2018, almost a year after the divorce action had been filed. The table was set for the prompt entry of the divorce judgment.

Unfortunately, the circuit court's spousal-support opinion contained a significant error. The opinion inaccurately asserted that "Plaintiff admitted to infidelity during the marriage"; it should have stated that "Defendant admitted to infidelity during the marriage." Anne filed a motion objecting to this aspect of the order and seeking its correction. But Hermann died before her motion could be heard, the error fixed, and the judgment signed. As of June 17, 2018, the date of Hermann's death, the parties had lived apart for little more than a year. In August 2018, the circuit court issued an order

332 Mich.App. 256

correcting its previous

956 N.W.2d 527

opinion and order to reflect that Hermann had been the unfaithful party.

After Hermann's death, Carla petitioned the probate court under MCL 700.2801(2)(e), seeking a declaration that Anne was not Hermann's surviving spouse. Section 2801(2)(e)(i ) provides that a "surviving spouse" under the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., does not include "[a]n individual who ... [w]as willfully absent from the decedent spouse" for a year or more before the decedent spouse's death. Carla alleged that Anne had been "willfully absent" from Hermann for more than a year before his death.

The probate court conducted an evidentiary hearing on the petition. Anne and Carla testified extensively. The probate court found that Anne had intentionally absented herself from Hermann, physically and emotionally, for more than a year before Hermann died. Therefore, the probate court ruled, Anne did not qualify as Hermann's surviving spouse.

II

Anne now challenges the probate court's determination that she was "willfully absent" and therefore not qualified as a surviving spouse. Generally, we review for clear error a court's factual findings. Erwin , 503 Mich. at 9, 921 N.W.2d 308 (2018). We review de novo a lower court's determination regarding the applicability of a statute. Florence Cement Co. v. Vettraino , 292 Mich. App. 461, 473, 807 N.W.2d 917 (2011).

The evidentiary hearing in this case was unnecessary and the probate court's findings irrelevant, because MCL 700.2801(2)(e) does not apply as a matter of law. Anne did not "willfully absent" herself from Hermann; she sought a divorce and, as many divorcing spouses do,

332 Mich.App. 257

elected to live separately while the matter made its way through the circuit court. Furthermore, Hermann formally stipulated to that living arrangement. Considering a combination of common sense, the common law, and a venerable canon of statutory construction: expressio unius est exclusio alterius , it is clear that the Legislature did not intend to disinherit a spouse whose divorce was in progress but not yet finalized when the other spouse dies.

III

We begin with a review of the common law. Just last term, in In re Erwin , our Supreme Court explored the meaning of MCL 700.2801(2)(e) in considerable detail. This subsection provides that a surviving spouse does not include

[a]n 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.

(ii ) Deserted the decedent spouse.

(iii ) Willfully neglected or refused to provide support for the decedent spouse if required to do so by law. [ MCL 700.2801(2)(e).]

Like Erwin , this case involves Subparagraph (i ): willful absence.

In arriving at the meaning of the phrase "willfully absent," the Erwin Court observed that the three grounds for disinheriting a spouse listed under Subsection (2)(e) are inherently fault-based and rest on intentional spousal misconduct. "Desertion" and "willful neglect" describe deliberate, unilateral choices designed to destroy the objects of matrimony. The Supreme Court explained, " MCL 700.2801(2)(e)(ii ) and (iii ) [addressing desertion and willful neglect] involve

332 Mich.App. 258

intentional acts that bring about a situation of divorce in practice, even when the legal marriage has not been formally dissolved."

956 N.W.2d 528

Erwin , 503 Mich. at 15, 921 N.W.2d 308. Willful absence is somewhat more difficult to parse; one of the questions presented in Erwin was whether the phrase encompassed only physical separation, or "includes consideration of the emotional bonds and connections between spouses." Id. at 6, 921 N.W.2d 308.

The Supreme Court interpreted "willful absence" in accordance with its "context"—its placement alongside the terms "desertion" and "willful neglect." Id. at 15, 921 N.W.2d 308. "A comprehensive review of the statutory scheme confirms that the term ‘willfully absent’ should be interpreted consistently" with the meanings of desertion and...

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1 practice notes
  • In re Greiff, SC 161535
    • United States
    • Supreme Court of Michigan
    • June 10, 2022
    ...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.......
1 cases
  • In re Greiff, SC 161535
    • United States
    • Supreme Court of Michigan
    • June 10, 2022
    ...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.......

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