Lead Opinion
This case presents a relatively narrow question, one that is accessible to both the lay and legal reader: whether a husband who has abandoned his wife for the final 18 months of her life while she was battling cancer, who had no personal contact with her during this period, and who did not even attend her funeral, should have to contribute his share of the mortgage, tax, and insurance payments that the wife alone paid during her final months on real properties that they owned together. In legal terms, the question becomes whether the doctrine of contribution can be applied between co-tenants in a tenancy by the entirety where one spouse has willfully abandoned the other before that spouse’s death and, thus, is not a “surviving spouse.” See MCL 700.2801(2)(e)(i). In either iteration of the question before this Court, the core issue is the same, and the inequities in this case are inescapable. Accordingly, the resolution of this case turns exclusively on whether the firmly established doctrine of contribution can be appropriately applied on these facts. Be
I. PACTS AND HISTORY
Janet and Frank Mandeville were married in 1975 and remained so until Janet died on July 13, 2002, after a battle with breast cancer. The Mandevilles acquired two properties during their marriage. In 1984, they acquired a marital residence in Macomb County, and, in 1987, they acquired a parcel of property in Ogemaw County. They owned both properties as tenants by the entirety. Accordingly, by the right of survivorship inherent in a tenancy by the entirety, the marital real properties passed to Frank upon Janet’s death. Without question, he now owns them in fee simple absolute.
In the last decade of their marriage, Frank Mandeville was often out of the country for extended periods. Specifically, he was absent for the 18 months preceding Janet’s death. During this period, Frank did not attempt to call Janet or otherwise communicate with her, even though, as he acknowledged, he knew that she was seriously ill. He did not attend her funeral. In Frank’s absence, Janet maintained the properties and was responsible for paying the taxes, insurance, and mortgage. In Frank’s absence, Janet was cared for by her sister, Susan Tkachik.
Several months after Janet’s death, Frank Mandeville filed a petition for probate as well as a complaint seeking to set aside Janet’s will and trust. Tkachik, acting as the personal representative of her deceased sister’s estate, moved for summary disposition, arguing that Frank Mandeville should not be considered a surviving spouse because he had been willfully absent from the marriage for more than a year.
In November 2003, Tkachik filed suit on behalf of the estate in probate court to effectuate her sister’s intent to disinherit Frank Mandeville completely. Plaintiff sought a determination that, because defendant was not a “surviving spouse,” the Mandevilles should be considered tenants in common with regard to their real properties and defendant should not obtain fee ownership of the properties. The probate court denied plaintiffs request, reasoning that the surviving spouse statute is limited in its application and does not destroy a tenancy by the entirety. Therefore, it properly held that upon Janet’s death, fee-simple title to the properties had vested in defendant.
Plaintiff amended her complaint to seek contribution from defendant for the monetary expenses Janet incurred in maintaining the properties before her death. The probate court granted defendant’s motion for summary disposition on the estate’s contribution claim. Plaintiff filed a delayed application for leave to appeal in the Court of Appeals, which was denied for lack of merit in the grounds presented. Tkachik v Mandeville, unpublished order of the Court of Appeals, entered November 16, 2006 (Docket No. 270253). Initially, plaintiffs application for leave to appeal in this Court was also denied. Tkachik v Mandeville, 477 Mich 1057 (2007). However, this Court granted plaintiffs motion for reconsideration, and, on reconsideration and in lieu of granting leave to appeal, remanded the case to the
On remand, the Court of Appeals affirmed the probate court’s decision. Tkachik v Mandeville,
[W]hether, when a husband has abandoned his wife for the year and a half preceding her death, and the wife alone has made mortgage, tax, and insurance payments on property held as tenants by the entirety, the wife (or her estate) may receive contribution for the husband’s share of these payments. [Tkachik v Mandeville,485 Mich 853 (2009).]
II. STANDARD OF REVIEW
Plaintiffs claim sounds in equity, and requires this Court to consider whether the common law doctrine of contribution is appropriately applied in this context. We hear and consider equity cases de novo on the record on
III. ANALYSIS
Plaintiff asks this Court to exercise its equitable powers. Therefore, this case requires an understanding of the principles that guide this Court in determining whether to provide equitable relief, a determination that, in this case, also requires consideration of the law governing tenancy by the entirety, the doctrine of contribution, and claims for unjust enrichment.
A. EQUITABLE PRINCIPLES
In its sound discretion, this Court may grant equitable relief “[w]here a legal remedy is not available[.]” Powers v Fisher,
B. TENANCY BY THE ENTIRETY
A tenancy by the entirety is a type of concurrent ownership in real property that is unique to married persons. Field v Steiner,
In addition to these rights, both spouses have a right of survivorship, meaning that, in the event that one spouse dies, the remaining spouse automatically owns
C. CONTRIBUTION AND UNJUST ENRICHMENT
Contribution is an equitable remedy based on principles of natural justice. Lorimer v Julius Knack Coal Co,
The general rule of contribution is that one who is compelled to pay or satisfy the whole or to bear more than his aliquot share of the common burden or obligation, upon which several persons are equally liable or which they are bound to discharge, is entitled to contribution against the others to obtain from them payment of their respective shares. [Emphasis added.]
This Court has applied the doctrine of contribution between co-contractors. Comstock v Potter,
Plaintiff predicates her claim for contribution on a theory of unjust enrichment. Unjust enrichment is defined as the unjust retention of “ ‘money or benefits
D. APPLICATION
In this case, we must determine: (a) whether defendant was unjustly enriched; and, if so, (b) whether the doctrine of contribution can be appropriately applied in these circumstances to prevent his unjust enrichment. After carefully considering the governing legal and equitable principles, and after meaningfully engaging with “ ‘the circumstances and exigencies of [this] particular case,’ ” as equity requires, Youngs,
1. UNJUST ENRICHMENT
Defendant argues, and the Court of Appeals and the dissents in this Court agree, that he has not been unjustly enriched because he “has only received that which was given to him by operation of law, without any obligation ....” Tkachik,
On the facts of this case, we conclude that equity, and the principles of natural justice embodied therein, call on defendant Frank Mandeville to contribute his share of the property maintenance costs incurred by his wife Janet Mandeville, who bore these obligations alone in the 18 months before her death. While defendant was willfully absent from the marriage, and from the marital properties, Janet maintained the properties and incurred all the necessary expenses. In light of these facts, the Court of Appeals’ and the dissents’ conclusion that defendant received the properties “without any obligation” is an oversimplification that is at odds with the realities of this case. Significantly, this conclusion does not account for what would have happened to the properties had Janet not made the mortgage, tax, and insurance payments. Janet made those payments to preserve the undivided interest in the properties that she and her husband shared. Failure to make these mortgage and tax payments would have resulted in the loss of the properties to foreclosure. Simply put, but for
The Court of Appeals’ and the dissents’ contrary conclusion is also based on a misunderstanding concerning the relief plaintiff requests. The Court of Appeals determined that a finding of unjust enrichment “would subvert the protective purpose of the tenancy by the entirety, as it would permit the state to pierce the marital relationship and divide property contrary to how the parties chose to hold the property.” Tkachik,
2. ADEQUATE REMEDY
The next consideration is whether the doctrine of contribution can be appropriately applied in these circumstances to prevent defendant’s unjust enrichment. In making this determination, the first question to be addressed is whether there is an adequate legal remedy that precludes this Court from providing equitable relief. Powers,
The Court of Appeals and dissents disagree. They fault Janet for not taking legal steps to dissolve her marriage and accuse plaintiff of attempting to create a “ ‘de facto’ ” divorce that would “distribute jointly held property” in the absence of such action. Tkachik,
Thus, the remedy of divorce, which would have both dissolved the Mandevilles’ bonds of marriage and necessitated a division of real property, does not constitute an adequate remedy at law for the actual, and relatively narrow, relief sought by plaintiff. As this Court has made clear,
[t]he fact that there is a legal remedy is not the criterion. That legal remedy, both in respect to its final relief and its modes of obtaining the relief, must be as effectual as the remedy which equity would confer under the circumstances .... [Powers,279 Mich at 447 .]
Because the “final relief” granted in divorce— dissolution of the marital bonds and division of marital property — is hardly as “effectual” as contribution in recouping the limited monetary payments at issue, we do not believe that plaintiffs claim must fail because, for whatever reason, Janet did not pursue this action in life.
In addition, we do not think that plaintiffs claim is precluded by the equitable maxim that “ ‘[e]quity will not assist a [person] whose condition is attributable only to that want of diligence which may be fairly expected from a reasonable person.’ ” Powers v Indiana & Mich Electric Co, 252 Mich 585, 588;
3. CONTRIBUTION AND TENANCY BY THE ENTIRETY
Because divorce and separate maintenance are inappropriate, disproportionate, and ineffectual remedies, an equitable remedy is necessary because there is no adequate remedy at law. Powers,
On these facts, we conclude that the firmly established doctrine of contribution can be appropriately applied between tenants by the entirety and, therefore, we will permit plaintiffs claim for contribution. Equity allows “complete justice” to be done by “adapting] its judgment^] to the special circumstances of the case.” 27A Am Jur 2d, Equity, § 2, at 520-521 (1996). Our consideration of the “special circumstances” of this case leads us to conclude that the following facts are legally sufficient to permit a claim for contribution between tenants by the entirety: (a) where the decedent spouse has taken sole responsibility for the property maintenance payments while the other spouse had absolutely no personal contact with her for at least the last 18 months of her life; (b) where the other spouse did not attempt once to communicate with the decedent spouse during this time, even though he acknowledged that he was aware that she was battling cancer; (c) where the other spouse was disinherited in the decedent spouse’s will; (d) where the decedent spouse sought diligently, albeit unsuccessfully, to divest the other spouse of his interest in the real properties before she died; and (e) where the other spouse was deemed a non-surviving spouse under MCL 700.2801(2)(e)(i). These unusual facts cry out for equitable relief so that “complete justice” can be done and give us assurance that in granting plaintiffs remedy we are exercising our discretion carefully and responsibly.
Second, the Court of Appeals below and Justice Young’s dissent distinguish and dismiss as unpersua
Justice Young’s dissent distinguishes these cases because, in its view, “[t]he common thread among these cases is that the plaintiffs were able to overcome — in live divorce proceedings that sought to partition marital property — the presumption that money expended by one party to the divorce to maintain a concurrent estate was not a gift to his or her spouse.” Post at 89-90 (emphasis in original).
When viewed as standing for this core proposition, the persuasive authority from sister states and the
Third, the dissent warns that granting plaintiff’s requested relief constitutes a “sweeping modification of the common law,” post at 68, “represents a sea-change in our laws governing property,” post at 93, and is the equivalent of recognizing “an action amounting to posthumous divorce.” Post at 97. These concerns are considerably overwrought, and incorrect, largely because they are grounded in a misapprehension that the remedy plaintiff seeks will somehow result in the division of marital real property. However, as has been explained already, contrary to the Court of Appeals’ and Justice Young’s assertions, there is nothing in the relief sought that would in any way “subvert the protective purpose of the tenancy by the entirety . . . .” Tkachik,
Moreover, granting plaintiff the monetary compensation she is seeking would not require a “posthumous divorce.” Indeed, this whole concept of “posthumous divorce” is inapposite, and in fact seems quite peculiar,
Justice Young’s final, and most overwrought, argument is that our decision somehow “ignores the fact that
In sum, the counterarguments presented by defendant, the Court of Appeals, and the dissents are unavailing. No governing legal principle precludes the remedy plaintiff seeks, and no policy concern persuades us that granting this remedy will somehow upset the common law of this state, or produce what Justice Young’s dissent describes as a “ ‘tectonic shift’ ” in our common-law jurisprudence. Post at 68 n 1. Rather, the decision here is altogether consonant with the “incremental process of common-law adjudication as a response to the facts presented.” In re Arbitration Between Allstate Ins Co & Stolarz,
IV CONCLUSION
On the facts of this case, and particularly in considering defendant’s willful absence from his decedent spouse, by which she alone took responsibility for the properties in
Notes
MCL 700.2801(2) provides, in relevant part:
For purposes of parts 1 to 4 of this article and of section 3203, a surviving spouse does not include any of the following:
(e) An 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.
The order cited three cases that the parties were directed to consider: Turner v Turner, 147 Md App 350;
The dissents do not account for this reality in their decisions. Rather, the fact that defendant now owns the properties only because Janet preserved the couple’s undivided interest and prevented foreclosure is determinedly overlooked in the dissenting opinions.
In fact, not only is plaintiff legally incompetent to divide the marital real properties, Janet herself could not have unilaterally divested defendant of his interest in the properties that they held as tenants by the entirety. Thus, although Janet attempted diligently before her death to defeat the right of survivorship by transferring her interest in the properties by quitclaim deed, this deed was ineffectual in nullifying defendant’s rights in the properties. While Janet’s efforts have no legal significance in regards to defendant’s ownership of the properties, they
Justice Young’s dissent states that “[t]his is true only to a certain extent.” Post at 81. In light of the reality that defendant owns the properties in fee simple absolute, I fail to see how this is anything but completely true. His dissent itself acknowledges that this decision “does not alter the actual ownership of the property,” but then argues that this analysis “force[s] defendant to compensate the estate for the privilege of such ownership — notwithstanding the fact that both the law and the express means by which the Mandevilles themselves titled their property provide this property to Frank Mandeville with no conditions whatsoever.” Post at 81 (emphasis in original). No one disputes that under the law of tenancy by the entirety, and specifically by right of survivorship, defendant took the properties without any conditions or obligations at law. The open question presented in this case, however, is whether defendant in the instant circumstances is obligated now by equity to contribute his share of the property maintenance payments.
The analysis and conclusion are the same when the question of whether defendant is unjustly enriched is viewed through a contractual
By bringing an action for separate maintenance, a spouse is exposed to a counterclaim and judgment for divorce. See MCL 552.7(2) through (4). Notably, if a counterclaim for divorce is filed, such judgment is mandatory. MCL 552.7(4)(b) (providing that “the court shall enter ... [a] judgment dissolving the bonds of matrimony if a counterclaim for divorce has been filed”) (emphasis added). Thus, if divorce is an inappropriate remedy because of a person’s religious or moral beliefs, separate maintenance is also. Although Justice Young’s dissent does not dispute our understanding of the procedural workings of an action for separate maintenance set forth in the statute, it charges that we do not adequately explain why separate maintenance constitutes an inadequate legal remedy. Post at 82. We offer exactly such an explanation in this section. It is that dissent that owes an explanation of its contrary position to people who have religious or moral objections to divorce.
Moreover, one wonders how an action for separate maintenance at this juncture could be said to be as “effectual” in “its modes of obtaining... relief,” Powers,
The same can be said of a claim for separate maintenance. Justice Young’s dissent argues at length that separate maintenance constituted Janet’s sole remedy in these circumstances. Specifically, it claims this must be true because that “the standard that the majority employs — a breakdown in the marital relationship sufficient to show that the couple is no longer acting as husband and wife — is precisely the standard used in an action for divorce or separate maintenance proceedings.” Post at 83 (emphasis in original). His dissent misapprehends the standard we employ. While the facts of this case certainly evidence a breakdown of the marital relationship, satisfying this standard alone is not what moves us to act in equity. Rather, our decision is based on a fact-specific analysis that takes into account the manner in which this marital relationship broke down, and particularly considers the conduct of defendant as evidence of the nature and extent of the breakdown. Simply put, marriages may break down in a variety of ways that would be sufficient to satisfy the general standard used in an action for separate mainte
In light of these facts, we are confident that allowing equity to come to Janet’s aid, even when she did not seek a divorce or bring an action for separate maintenance while alive, will not upset any legitimate financial arrangement between the Mandevilles. This record leaves little need to speculate about how Janet felt about the “arrangement” by which she took sole responsibility for maintaining the properties at the end of her life after being abandoned by her husband. Again, she unequivocally disinherited him in her will, transferred her retirement benefits, and attempted to divest him of his interest in the marital real properties. Furthermore, plaintiff — Janet’s sister, the person who cared for her in her final months and who is the personal representative of her estate' — is bringing this action on Janet’s behalf. These facts dispel any fear that, by permitting plaintiffs claim for contribution, we are upsetting any arrangement in contravention of Janet’s intent.
As this list of factors makes clear, contrary to Justice Young’s assertion, our determination that contribution is appropriately applied in
Once more, Justice Young’s dissent fails to recognize that we are not construing MCL 700.2801 or any other statutory provision in this case. The issue here only requires this Court to determine whether to exercise its equitable powers where no statute provides for or precludes such an exercise. It does not require us to give effect to any statute. For this reason, granting (or failing to grant) equitable relief cannot possibly contravene “the most basic of judicial interpretative rules.” Post at 86 n 45. It is important to remember, however, that although this Court is not called upon to interpret MCL 700.2801, this provision has already been given full and proper effect by the lower court, a result that is unaltered by this decision. The probate court properly recognized the provision’s limited applicability to the identified sections of EPIC, which relate to intestate succession. It thus held that defendant’s status under MCL 700.2801 is immaterial to his sole ownership of the marital real properties, which passed to him by the right of survivorship, not by intestate succession. In light of this disposition, the statutory argument in Justice Young’s dissent is errant from the start.
For much the same reason, Justice Young’s observation that “the Michigan Legislature has declined to adopt legislation that would have accomplished statutorily exactly the changes plaintiff seeks in the common law here” has no bearing on the proper result in this case. Post at 99 (emphasis in original). By inserting this observation into its discussion, Justice Young’s dissent misses the critical difference between the respective duties of a legislative body and a court sitting in equiiy. While the Legislature crafts policy for the general public, a court in equity examines “the circumstances and exigencies of [the] particular case.” Youngs,
The Court of Appeals rejected the analysis of these cases because it determined that it was “not applicable in the context of considering whether a decedent’s estate is entitled to contribution from the surviving spouse ....” Tkachik,
Justice Young’s dissent claims that these cases only support our position “when read out of context and after ignoring [these] decisions’ own internal limitations.” Post at 87. In response, one can merely invite the readers to peruse these cases for themselves and judge which of our readings is the more sound. In our judgment, each of these cases stand clearly for the proposition that a tenant by the entirety may be entitled to contribution when he or she makes some payment after the spouses discontinue living together as husband and wife. Crawford, Turner, and Cagan stand for this same proposition. Thus, Justice Young’s dissent does not present the whole story when it asserts that this decision “renders Michigan the one place in the common law world where a tenant by the entirety can now be liable for contribution to his deceased spouse’s estate.” Post at 68. No state whose courts have addressed this specific proposition has rejected it. That is, his dissent insists on focusing on the general rule of non-contribution between tenants by the entirety — a rule with which we agree — rather than the exception to the rule that is the subject of this case, as well as Crawford, Turner, and Cagan. The reader can determine what is most “disingenuous” in this case, post at 91 n 58 — for the dissent to include within its supposed consensus states whose judiciaries have never before addressed the specific issue before this Court, or for this majority to point out the artificiality of that consensus.
Accordingly, we are not persuaded by Justice Young’s overwrought accusation that this decision “upsets the reliance interests of all Michigan spouses” who have taken title to property as tenants by the entirety. Post at 94. Not only is this inaccurate because the right of survivorship is not affected by this decision, but it imputes ludicrous motives to Michigan spouses. We believe that there are few men and women in Michigan who get married, and who acquire property as tenants by the entirety, in reliance on the fact that they can later abandon their spouses and their marital property, contribute nothing to the maintenance of such property, succeed to the property upon their spouse’s death, and have no further responsibilities at law or in equity. That is the only reliance interest that could conceivably be upset by this decision.
No more peculiar, however, than Justice Young’s notion that we are “mentally divorcing” the Mandevilles. Post at 97 n 65.
Justice Young’s dissent is highly critical of our consideration of the surviving-spouse provision, but its own analysis of the role of MCL 700.2801 is simply inaccurate. His dissent treats this provision as controlling, asserting that it precludes this Court from doing equity because “the Legislature actually has acted in this area through its enactment of Michigan’s surviving spouse statute.” Post at 99 (emphasis in original). In view of this assertion, we reiterate that the surviving spouse provision is silent as to contribution and, thus, neither permits nor precludes this Court from granting this remedy. The provision is, however, relevant in this case because it is descriptive of the exact behavior that moves this Court here to act in equity — defendant willfully abandoning his wife during the last 18 months of her life. We know of no principle of statutory construction that bars a court in equity from taking into consideration conduct that is relevant to the equitable claim simply because the Legislature, in an entirely different context, has determined that such conduct is sanctionable.
Accordingly, Justice Young need not wonder, “Where, other than in the guts of the majority, shall we determine how ‘principles of natural justice’ or ‘good conscience’ should direct our decisions?” Post at 96 n 64. If and when a court again encounters these rare facts, its determination of whether a tenant by the entirety is entitled to equitable contribution is to be informed by a time-honored and uncontroversial belief about marriage — i.e., one spouse should not benefit from the abandonment of the other in a time of great need. This belief is reflected in community norms, the teachings of religious traditions, and the non-surviving spouse provision, and, thus, future courts need not concern themselves with our “guts,” but can direct their decisions to these reliable guides.
Dissenting Opinion
(dissenting). I dissent and agree with Justice YOUNG when he states:
With its decision today, the majority now permits posthumous collateral attacks on the validity of marriages in this state where neither spouse has taken the appropriate legal steps to challenge the marriage or the financial equities of the marriage during life. In doing so, the majority ignores the perfectly adequate legal remedies that our Legislature created in specific contemplation of marital disharmony — specifically, an action for separate maintenance — instead preferring to craft a new remedy recognized nowhere else in the country. This rule allowing contribution between tenants by the entireties outside the*68 context of a divorce or separate maintenance action is not supported by a single case or authority from any jurisdiction, let alone authority from Michigan. As such, the new rule the majority creates today is untested and holds unforeseen consequences that reach much further than the narrow and unassuming decision the majority believes it has issued in this case. [Emphasis in original.]
In short, the majority’s unrestrained decision today is a huge mistake.
Dissenting Opinion
(dissenting). Because of the danger of unintended consequences and the difficulty that a court has in assessing them when amending the common law, the Hippocratic admonition to “first do no harm” is a wise prescription for restraint. It is an admonition that the majority today unfortunately ignores. Because the tenets of property law at issue here are among the most settled and uncontroversial in all of our jurisprudence, I vigorously dissent from the majority’s sweeping modification of the common law in this case.
Under the banner of equity, the majority today creates a rule that renders Michigan the one place in the common law world where a tenant by the entirety can now be liable for contribution to his deceased spouse’s estate. This distinction is a dubious honor. For hundreds of years, the tenancy by the entirety with its
With its decision today, the majority now permits posthumous collateral attacks on the validity of marriages in this state where neither spouse has taken the appropriate legal steps to challenge the marriage or the financial equities of the marriage during life. In doing so, the majority ignores the perfectly adequate legal remedies that our Legislature created in specific contemplation of marital disharmony — specifically, an action for separate maintenance — instead preferring to craft a new remedy recognized nowhere else in the country. This rule allowing contribution between tenants by the entirety outside the context of a divorce or separate maintenance action is not supported by a single case or authority from any jurisdiction, let alone authority from Michigan. As such, the new rule the majority creates today is untested and holds unforeseen consequences that reach much further than the narrow and unassuming decision the majority believes it has issued in this case. Moreover, although in today’s decision the husband is required to make a contribution on marital property held by the entirety, given the fact that men still generally contribute more to family assets than women, I fear that the majority’s new rule may have a disproportionate adverse effect on women in the future.
Until today, Michigan law did not recognize the right of contribution between tenants by the entirety outside the context of the divorce or separation actions, and accordingly, I believe that Janet Mandeville’s estate does not have a cognizable claim for contribution to
I. PRINCIPLES OF LAW AND EQUITY
Because I believe that the majority’s opinion is contrary to and undermines settled principles of law and equity, I begin my analysis with an examination of the legal principles underlying this action.
A. THE LAW OF TENANCY BY THE ENTIRETY
Michigan’s law of estates and its rules governing concurrent estates is derived from the English common law, although much of this law has now been codified by
A tenancy by the entirety is a type of concurrent ownership in real property unique to married persons.
The most important feature of a tenancy by the entirety is the right of survivorship. This right provides that in the event that one spouse dies during the course of the marriage, the surviving spouse automatically takes fee simple ownership in the entire property.
B. THE RIGHT OF CONTRIBUTION AND CLAIMS FOR UNJUST ENRICHMENT
The doctrine of equitable contribution has evolved from the common law and is “founded on principles of equity and natural justice.”
Regarding concurrent estates, claims for contribution are generally available to cotenants who hold real property as tenants in common or joint tenants.
Even though a tenancy by the entirety resembles a joint tenancy, a tenancy by the entirety is not a joint tenancy; rather, it is a type of sole tenancy.
This understanding is in accord with the historical tradition of the tenancy by the entirety, because it has been inextricably tied to marriage.
Unjust enrichment is defined as the unjust retention of “ ‘money or benefits which in justice and equity belong to another.’ ”
II. application
With these principles regarding Michigan’s law of real property and equity in mind, I turn to the facts of
A. NEITHER MICHIGAN LAW NOR PRINCIPLES OF EQUITY SUPPORT THE MAJORITY’S RULE
In light of the legal doctrines discussed above, defendant here is not unjustly enriched when he takes full ownership by a right of survivorship to property held as a tenant by the entirety. And this is true even if one cotenant has contributed more to the expenses of property ownership within the marriage, which is consistent with how the cotenants designed their marriage. There simply is no obligation in Michigan for a cotenant by the entirety to pay interest and expenses to the estate of the deceased cotenant when fee simple title passes by operation of law. The surviving cotenant, receiving title by right of survivorship as the parties agreed when titling the property, cannot be unjustly enriched. Instead, the cotenant by the entireties takes fee ownership to property in which he already had prior sole, inalienable ownership with his spouse. As this Court stated in Buell, there can be no unjust enrichment
The majority holds otherwise. Through an elaborate formulation, the majority attempts to rebalance the equities of the Mandevilles’ marriage in order to show that Frank Mandeville was unjustly enriched because his wife paid certain costs associated with home ownership for an 18-month period. In the process, the majority has created a rule that subverts the purpose of the tenancy by the entirety and unnecessarily allows the state to dissect the marital relationship for the purpose of reassigning equities contrary to how the parties saw fit to title their property and conduct their marital relationship. More disturbing, the majority does so notwithstanding the fact that neither Janet nor
The majority states that nothing in its analysis would alter the reality that Frank Mandeville is the fee simple owner of the properties previously held with his wife, and that the law of the tenancy by the entirety “has already been given full effect... ,”
Moreover, contrary to the majority’s argument, this is not an appropriate case in which to employ this Court’s equitable powers. Equity is customarily employed only where there is no adequate remedy at law.
The fact is that a claim for separate maintenance seems to be precisely the remedy contemplated by our Legislature to provide relief to an aggrieved spouse in this type of situation. Yet, the majority cannot adequately explain why the already existing action for separate maintenance is an inadequate legal remedy.
While it would certainly be troubling for courts to attempt to recalibrate the equities of a marriage after death, the majority’s decision is even more troubling because it does just that when the parties declined to take available legal action in life. A longstanding principle of this Court precludes equitable relief to parties who do not fully pursue the remedies available to them at law.
The majority also argues that the Legislature’s enactment of the surviving spouse provision of the Estates and Protected Individuals Code
Today, however, the majority manufactures an extension of the surviving spouse provision despite the limitations plainly expressed by the Legislature. The majority borrows the criteria of the surviving spouse provision as a means of deeming the Mandevilles' relationship sufficiently defunct to merit the employment of equity through a right of contribution while it ignores the limitations that the Legislature specifically imposed. It stands to reason that any time a spouse qualifies under MCL 700.2801 as a nonsurviving
B. THE MAJORITY’S NEW RULE IS UNPRECEDENTED
The majority has not cited a single authority from this state or any other that provides support for its position allowing an action between spouses for contribution regarding property held as a tenancy by the entirety outside the context of divorce or separation proceedings. Indeed, no such authority exists. The decisions from other jurisdictions cited by the majority support its position only when read out of context and after ignoring those decisions’ own internal limitations. There should be no mistake: the rule that the majority today creates represents a radical departure from this state’s jurisprudence.
A “Crawford Credit” is a credit that one co-tenant, who, after separation, lays out money to make mortgage payments or other carrying charges on property held as tenants by the entireties, is usually entitled to receive, absent an agreement between the parties. Prior to a divorce decree, the entitlement of a spouse to such credits is an equitable matter and not a matter of right.[49]
Similarly, in Cagan v Cagan, a New York trial court allowed the plaintiff to recover costs for payments made by one tenant by the entirety in order to maintain the property and prevent foreclosure following an action for separation,
The common thread among these cases is that the plaintiffs were able to overcome — in live divorce proceedings that sought to partition marital property — the presumption that money expended by one party to the divorce to maintain a concurrent estate was not a gift to
And Michigan divorce law is in accord with these principles of law articulated in other states. Michigan law demands equity in divorce and other domestic relations proceedings. Statutory law provides that upon an annulment of a marriage, a divorce, or an order of separate maintenance, a court will divide property “as it shall deem just and reasonable. . . .”
It is difficult to apply the principles of these foreign cases after the death of one of the parties where there has been no divorce (or even any steps taken toward obtaining a divorce or separate maintenance), and no attempt to dispose of the property with judicial oversight while the parties remained alive. Contribution related to property held as a tenancy by the entirety is only available under Michigan law in the context of a divorce, separation, or separate maintenance proceeding where a court, addressing a breakdown in the marriage, is forced to balance the equities between the parties. Thus, because Janet Mandeville could not have sought contribution from defendant while alive because she did not pursue an action for divorce, separation, or separate maintenance, her estate likewise cannot pursue such an action.
C. ALTHOUGH THE COMMON LAW RULE IS EQUITABLE, THE MAJORITY REJECTS IT IN FAVOR OF A NEW RULE THAT IS CONTRARY TO THE POLICIES OF THIS STATE
While this Court unquestionably has the authority to modify the common law,
Instead, the majority rests on the standards set forth by the surviving spouse provision, inappropriately borrowing its framework to order contribution in this case, even though the Legislature never intended this provision to be used in such a way. Yet, where this Court is considering a sweeping change to Michigan’s common law through the employment of equity, I believe that the justices certainly owe more consideration and guidance to future courts than what amounts to the majority’s theory of “I know it when I see it.” The majority uses the rare facts of this case to change the overarching principle applicable in all cases; in essence, it uses the exception to rewrite the rule.
In its desire to order contribution for a plaintiff it clearly deems sympathetic, the majority leaves myriad questions unanswered regarding the scope of this new-found legal avenue to collaterally attack financial arrangements made in the course of a valid marriage. Particularly in situations where neither spouse ever asked a court to intervene in the marital relationship, it is deeply troubling that the majority now allows courts to do so under the guise of equity after the death of a spouse. This difficulty in allowing estates to pursue an action for contribution or unjust enrichment after the death of a spouse, particularly where neither party ever sought separate maintenance, is that doing so risks upsetting intimate and perfectly legitimate marital arrangements and the law that heretofore supported such relationships.
This difficulty arises because courts are poorly positioned to make such weighty decisions after the death of a married party, and especially as here, where the
Moreover, by accepting plaintiffs invitation to change our common law, the majority today creates an unprecedented action akin to allowing a new type of “posthumous divorce” in this state. As the preceding sections discussing Michigan divorce law and caselaw from our sister states demonstrates, the only method by which a spouse can normally obtain contribution for property involving a tenancy by the entirety is when a court is balancing equities concerning property in divorce or separate maintenance proceedings. That being the case, the majority grants plaintiff the same relief that Janet Mandeville would have been accorded in a divorce or separation, but without the benefit of an actual divorce or separation proceeding. And indeed, the majority treats the Mandevilles’ marriage as sufficiently defunct in order to hold defendant hable for contribution.
I strongly object to any decision that recognizes an action amounting to posthumous divorce.
I also recognize that the Legislature is better positioned to balance the complex public policy consider
Further, I note that the Michigan Legislature has declined to adopt legislation that would have accomplished statutorily exactly the changes plaintiff seeks in the common law here.
III. CONCLUSION
There is an old legal adage that “bad facts make bad law.” This phrase has rarely been as true as on the circumstances giving rise to this case. In its eagerness to provide relief to a plaintiff it deems sympathetic, the majority today rejects the legal remedies that were available to that plaintiff, and instead crafts an unprecedented new remedy. In doing so, the majority extends the law’s equitable reach in new and unique ways, unsettling centuries of law in this area and implicitly reworking what is the key feature of a tenancy by the entirety: the unencumbered right of survivorship. Moreover, by allowing courts to make post hoc determinations regarding the distribution of equities in a marriage, the majority’s decision imposes upon the citizenry of Michigan rules that amount to posthumous divorce under the guise of equity. And it does so by inappropriately borrowing the framework from a narrow statute limited in application by its explicit terms, resulting in the wholesale application of that statute into an area of law in which it was never intended.
Because the law’s equitable reach is surely not designed to allow the estates of parties to accomplish after
Accordingly, I vigorously dissent.
This Court has on occasion allowed for the development of the common law as the circumstances and considerations of public policy have warranted, but our common-law jurisprudence has been guided by a number of prudential principles. See Robert E Young, Jr., A judicial traditionalist confronts the common law, 8 Texas Rev L & Pol 299, 305-310 (2004). Among them has been our attempt to “avoid capricious departures from bedrock legal rules as such tectonic shifts might produce unforeseen and undesirable consequences,” id. at 307, a principle that is quite applicable to the present case.
See, generally, MCL 554.1 et seq.
A tenancy in common, the default and most prevalent form of a concurrent estate, arises “ ‘[w]here two or more [persons] hold possession of lands or tenements at the same time, by several and distinct titles. The quantities of their estate may be different, their proportionate share of the premises may be unequal, the modes of acquiring these titles may be unlike, and the only unity between them be that of possession.’ ” Fenton v Miller,
A joint tenancy, by contrast, is a single estate owned by two or more parties and is characterized by four “unities”: “ ‘joint tenants have one and the same interest; accru[e] by one and the same conveyance; commenc[e] at one and the same time; and have the same possession.’ ” Kemp v Sutton,
As will be discussed farther in greater detail later in this opinion, a tenancy by the entirety is a unique type of joint tenancy reserved for a married couple.
Field v Steiner,
Lord Blackstone has been credited with first authoritatively recording the existence of this concurrent estate. In his ubiquitous Commentaries, Blackstone noted:
And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my, the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.
2 Blackstone, Commentaries on the Laws of England 182 (R Bum ed, 1783) (1978) (emphasis added).
See, e.g., Kemp,
DeYoung v Mesler,
Long v Earle,
Berman v State Land Office Bd,
Way v Root,
MCL 700.2901(2)(g); see also Speier v Opfer,
See, e.g., Rogers v Rogers,
Sanford v Bertrau,
MCL 700.2807(1)(b).
Lorimer v Julius Knack Coal Co,
Caldwell v Fox,
Id.
See, e.g., Wettlaufer v Ames,
Strohm v Koepke,
Budwit v Herr,
MCL 600.3304 (“All persons holding lands as joint tenants or as tenants in common may have those lands partitioned.”); see also 1 Restatement Property, 2d, § 4.5, comment b, p 229 (1983) (“A tenancy by the entirety creates an indestructible right in the surviving spouse to own in severalty the entire interest in the property. Compulsory partition is inconsistent with this characteristic of a tenancy by the entirety and, hence, compulsory partition is not available with respect to such a tenancy.”).
Compare Pellow v Arctic Iron Co,
See In re Appeal of Lewis,
McCreary v Shields,
Restatement Restitution, § 1, comment c, p 13 (1937). This Court has previously quoted approvingly this standard in Dumas v Auto Club Ins Ass’n,
Buell v Orion State Bank,
Buell,
Moreover, as defendant notes, he takes the property subject to a substantial mortgage that remains on the property. As a result, the deceased was provided the benefit of the use of the mortgage principal in her lifetime, yet upon her death the debt now resides with defendant alone.
See Affidavit of Beverly Furnari, August 13, 2003. After being duly sworn, Ms. Furnari stated as follows:
1. That she was a close personal friend of Janet Mandeville and had frequent contact with her during the last few months of her life.
2. That through discussions with Janet Mandeville, she is aware that neither Janet Mandeville nor Frank Mandeville, Jr. considered their marriage to be terminated, deserted or abandoned by Frank Mandeville, Jr.’s extended absence exceeding more than one year prior to the death of Janet Mandeville.
This evidence is uncontroverted, yet the majority has decided simply to overlook this fact as inconvenient to its analysis.
This is so even though the decedent attempted to divest her spouse of his interest in properties they owned by the entirety before she died — a fact to which the majority attaches a great deal of significance. See ante at 55-56. As was explained to Janet Mandeville by her counsel at the time she attempted to transfer her interest in the property by quitclaim deed, the documents drafted to accomplish this intention were entirely ineffectual to destroy defendant’s rights in the property that Janet Mandeville owned by the entirety with her husband. See supra at 72-73 (explaining that one spouse in a tenancy by the entirety can neither divest the other spouse of his interest or act unilaterally to alienate the entireties property). Janet Mandeville’s attorney testified at his deposition that “I explained to Jan that if, in fact, the real estate was owned by the entireties with her and Frank, that these quit claim deeds would have no validity whatsoever. That if Frank was alive, they would go to him.... She understood, she nodded. She said, ‘I understand.’ ” Plaintiffs attorney again conceded as much at arguments on this case: “She effectuated a deed which has obviously no legal significance because its impossible to — for her to transact that.”
Ante at 51.
The fact is, the estate did attempt to divest Frank Mandeville of his property interest in this property and only raised this contribution claim when that effort failed. The majority decision today allows this backdoor collateral attack on defendant’s property rights as the surviving tenant.
Campau v Godfrey,
See MCL 552.6 (divorce) and MCL 552.7 (separate maintenance).
See, e.g., Russell v Russell,
I further fail to see how the majority’s new remedy, which requires one spouse to sue another in court when demanding contribution, is any more “effectual” than an action for separate maintenance, even if it “preserves” the marital union — or whatever may he left of a union between spouses who communicate with each other through lawsuits.
The majority also worries that an action for separate maintenance opens the door for a court to enter a decree of divorce, and that this may be an unacceptable outcome for those couples who have moral or religious objections to divorce. This concern ignores what is obvious about such a concern: if a couple has religious objections to divorce, then by the nature of those objections, the responding spouse would not counterclaim for a divorce in an action for separate maintenance. In any case, where a couple has decided no longer to live together as husband and wife but not divorce, an action for contribution is no more effectual than an action for separate maintenance. The primary difference is that only the latter was provided for by our Legislature, and only the latter prevents a spouse from unilaterally requiring a court to rebalance the equities of marital decisions.
Ante at 54-55.
The majority quotes Powers v Fisher,
See Zoellner v Zoellner,
I do not, as the majority implies, believe that Janet Mandeville was “derelict” in pursuing her legal remedies. In many respects, she dutifully and permissibly transferred her legal interests to beneficiaries other than her husband. This is irrelevant, though, to whether she pursued an action for separate maintenance — she admittedly did not — which was the only permissible means for seeking payment from defendant concerning their marital property owned by the entirety. More important, this does not mean that her estate should be accorded the extraordinary relief sought here because she could not otherwise legally transfer her interest in real property.
Michigan law provides that a court is without jurisdiction to render a judgment of divorce, and thereafter distribute property after the death of a party; in sum, one cannot judicially terminate a relationship that no longer exists because the death of a party. Tiedman v Tiedman,
MCL 700.1101 et seq.
MCL 700.2801(2)(e)(£).
See MCL 700.2801(2), which provides that its application is only “[f]or purposes of parts 1 to 4 of this article,” which cover only issues of intestate succession, spousal elections and allowances, and priority among persons seeking appointment as personal representatives.
See, e.g., Dep’t of Agriculture v Appletree Mktg, LLC,
This is the most basic of judicial interpretative rules, as members of the majority have properly recognized in the past. See, e.g., Robertson v DaimlerChrysler Corp,
See, e.g., Trentadue v Buckler Automatic Lawn Sprinkler Co,
Crawford v Crawford, 293 Md 307, 311;
Id. at 313. This same principle was applied in the same manner in Turner v Turner, 147 Md App 350, 406-407;
49 Freedenburg v Freedenburg, 123 Md App 729, 737 n 1;
Turner, 147 Md App at 406, quoting Baran v Jaskulski, 114 Md App 322, 332;
Cagan v Cagan,
Sterlace v Sterlace,
States whose laws have this legal presumption apply it in relation to every type of concurrent estate. In addition to the above cases discussing the presumption in relation to a tenancy by the entirety, see also Kratzer v Kratzer, 130 Ill App 2d 762, 768-769;
MCL 552.19.
MCL 552.23(1).
E.g., McDougal v McDougal,
See ante at 62. Certainly those cases share some similar factual situations with this case — as any divorce or separation case likely will. This does not mean that the legal principles in those divorce and separation cases should be applied here, where one spouse is deceased. The majority extracts fragments of sentences from those opinions, showing how those phrases could be said to be true on the facts of this case by inserting the names of the parties in this case. In doing so, the majority does precisely what I believe is improper: it takes cases where courts in the context of divorce or separation proceedings are reassigning equities and uses them to reassign equities in this case.
Ante at 60-61. The majority also argues that “[ri\o state whose courts have addressed this specific proposition has rejected it.” Ante at 61 n 15. This argument is disingenuous because no other state has considered the subject matter of this case. Indeed, in order to gain contribution among tenants by the entirety, every other state seems to require what this dissent requires: a live case and controversy among living spouses in a divorce, separation, or separate maintenance proceeding. The majority extracts a generalized rule from these other cases — -which allow contri
This makes the majority’s reliance on MCL 600.2921 inappropriate where that provision states that “[a]ll actions and claims survive death” and thereby allows estates to bring claims on behalf of their decedents. See ante at 60 n 14. Because there is no cause of action under Michigan law for a tenant by the entirety to seek contribution, MCL 600.2921 cannot save any claim for a decedent’s estate to pursue. To the extent that the Court of Appeals held contrarily, I believe that it erred; to the extent that the majority establishes a new right of contribution that may be "saved” by MCL 600.2921, it too errs.
See page 74 of this opinion (discussing how a tenancy by the entirety can be terminated).
See, e.g., Ames v Port Huron Log Driving & Booming Co,
See, e.g., Henry,
The majority chalks this discussion up to “unwarranted polity concerns,” ante at 58, but because plaintiff requests that we change the
In identifying the boundaries of public policy, we believe that the focus of the judiciary must ultimately be upon the policies that, in fact, have been adopted by the public through our various legal processes, and are reflected in our state and federal constitutions, our statutes, and the common law. See Twin City Pipe Line Co v Harding Glass Co,283 US 353 , 357;51 S Ct 476 ;75 L Ed 1112 (1931). The public policy of Michigan is not merely the equivalent of the personal preferences of a majority of this Court; rather, such a policy must ultimately be clearly rooted in the law. There is no other proper means of ascertaining what constitutes our public policy. [Terrien v Zwit,467 Mich 56 , 66-67;648 NW2d 602 (2002) (opinion by Markman, J.) (emphasis in original).]
My discussion below sets forth the arguments justifying my belief that the majority’s change to the common law is not based on the well established legal principles and policies of this state. That the majority’s decision is contrary to these policies speaks more to the lack of firm support for its opinion rather than any “flaws” in my discussion.
Where, other than in the guts of the majority, shall we determine how “principles of natural justice” or “good conscience” should direct our decisions?
Contrary to the majority’s attempt to disparage this argument as mere frivolity by stating, for example, that this Court is not taking anyone’s wedding rings, I simply state that the relief the majority orders in this case amounts to or is tantamount to a posthumous divorce. Where the majority makes such extraordinary factual findings as that the Mandevilles had “discontinued living together as husband and wife,” it is hard to argue that the majority is doing anything other than mentally divorcing the couple in order to hold defendant liable for contribution.
By allowing post hoc, posthumous judicial inquiries into the equities of a marriage, the majority’s opinion here is in deep conflict with Michigan’s public policy favoring marriage. See Van v Zahorik,
The majority’s assertion that its opinion is the one that fosters and preserves marriage by allowing married couples to pursue actions for contribution is too clever by half. At its core, our society’s respect for marriage relies on the marital couple itself to chart its own course and make its own decisions. In return, the marital couple relies on a set of established principles — legal and otherwise — to ensure that decisions will be given effect. Unlike the majority, I am not prepared to alter either this reliance or the principles themselves where one party unilaterally decides that he or she no longer likes the marital agreement. Ultimately, the majority’s opinion allows plaintiff to obtain relief she otherwise would not be able to achieve based on the way the decedent and her husband structured their marriage. How can this possibly be said to preserve marriage or accord respect to the way a couple structured its marriage? Marriage necessitates mutuality in decision-making, yet the majority now grants to one spouse the power to invite courts into the marriage to analyze the decisions and equities as a court would in any normal business or partnership dispute — and worse still, it apparently allows a spouse to do so from beyond the grave. This absurd situation underscores the majority’s inability to recognize this case for what it is: a marriage that arguably faltered in its latter years because of apparent problems for which there are settled, appropriate, and adequate remedies in existence that neither spouse in this case pursued.
O’Donnell v State Farm Mut Auto Ins Co,
See Van,
See SB 62 (2007). The bill, introduced by Senator Judson Gilbert, passed neither chamber of the Michigan Legislature.
See pages 85-87 of this opinion.