By Alan Polack
In an Opinion that runs 29 pages and a dissent that is 36 pages, the Michigan Supreme Court discusses the following issue: whether, when a husband has abandoned his wife for the year and a half preceding her death and the wife alone has made the mortgage, tax and insurance payments on real estate held as tenants by the entirety, the wife’s estate may receive contribution for the husband’s share of these payments.
The case is Tkachik, Personal Representative of the Estate of Janet Mandeville v Frank Mandeville, Jr., Case No. 138460, decided July 27, 2010. The majority ruled that the equitable doctrine of contribution can be appropriately applied in this context.
It should first be noted that this appeal arose from a motion for summary disposition brought by the defendant in the Macomb County Probate Court where the judge, relying on long-established precedent, dismissed the contribution claim as tantamount to a post-death divorce.
Therefore, there are no “facts” on which the Supreme Court relied since there was no trial to establish same. You would never know this from the Opinion since it obviously relies on the “facts” presented by the plaintiff, to wit:
1. The plaintiff’s decedent was dying of cancer;
2. The defendant was absent from the decedent for 18 months (reason unknown);
3. The plaintiff paid taxes, insurance and mortgage on the marital home;
4. The marital home was owned by the parties as tenants by the entireties;
5. The defendant owned the marital home as the surviving tenant by entireties;
6. Although decedent attempted to disinherit defendant, she never initiated divorce or separate maintenance proceedings. Decedent’s plaintiff also initiated a quiet title action to destroy the tenancy by entireties and for contribution.
Based on the above “facts”, the probate judge decided two motions for summary disposition:
a. Defendant was not a surviving spouse pursuant to MCL 2801 (2)(e)(i) as he was “willfully absent”;
b. That this decision did not destroy the tenancy by the entireties as the statute is expressly limited in its application to spousal election, priority as personal representation and intestate succession. The court also ruled that the estate was not entitled to contribution.
The Court of Appeals upheld the probate court on both decisions. The plaintiff obtained leave to appeal to the Supreme Court on the contribution claim.
Justice Markman for the majority went into a detailed discussion of the law of equity, contribution and unjust enrichment.
Justice Markman said “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 cost incurred by his wife, Janet Mandeville, who bore these obligations alone in the 18 months before her death.” He then said “... but for Janet’s payments, there will be no property to pass to defendant by operation of law.”
He went on to say “... the fact that the properties undisputedly passed to defendant automatically by operation of law does not defeat a finding that defendant was unjustly enriched or bar a claim of contribution.”
He concluded that the defendant had been unjustly enriched by his retention of the payments made by his deceased wife because he only owned the marital properties because of the ex-wife’s maintenance payments.
Justice Markman then took up the issue of whether or not an adequate legal remedy existed that would preclude the court from providing equitable relief.
Justice Young in his dissent pointed out that the deceased could have filed for a divorce or separate maintenance which would have provided an adequate legal remedy.
Justice Markman dismissed this argument because divorce or separate maintenance is an inappropriate remedy for many people “... especially those for whom divorce is religiously or morally objectionable.”
He also ruled that divorce would be a disproportionate remedy because it would distribute jointly held property as opposed to simply seeking contribution for past payments on the marital home.
He also said that “divorce would have been a hugely disproportional remedy in view of what plaintiff here is actually seeking, and could only be viewed as equivalently effectual if a surgical amputation of a toe could be viewed as equivalently effectual to a podiatrist appointment as a remedy for an ingrown toenail.”
It should be remembered that although the deceased had ample opportunity to file for divorce, she never made any attempt to do so or expressed any desire for a divorce.
Justice Markman then turned to the issue of contribution, stating that “... the question whether a contribution can be applied between co-tenants by the entirety is one of first impression in this state.”
He concluded that the “firmly established doctrine of contribution can be appropriately applied between tenants by the entirety ...” because it was the right thing to do considering the “special circumstances of this case.” He felt that the unusual “facts” cried out for equitable relief, in effect, making new law.
The rest of the majority Opinion seems to be Justice Markman’s dissent from Justice Young’s dissent. Justice Young’s dissent is even longer than the majority Opinion and he decries “...the majority’s sweeping modification of the common law in this case.”
He points out that “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 for Michigan.”
Justice Young then goes on to provide us with a short treatise on the law of tenancy by the entirety, the right of contribution and claims for unjust enrichment.
Justice Young states that “... there can be no unjust enrichment where a person comes into ownership of property that law and equity give him absolutely without any obligation on his part to make restitution.”
He is clearly troubled by the majority’s precedent which would allow a decedent spouse to seek contribution for any perceived inequities from a spouse who is determined non-surviving under MCL 700.2801.
He states that “the majority’s decision to change the common law in this case represents a sea change in our laws, governing property and threatens to upend legitimate financial relationships into which married persons have entered.”
He strongly objects to the majority decision that “recognizes an action amounting to posthumous divorce.”
Finally, this decision and dissent is very interesting for a number of reasons and I recommend that everyone read both the Opinion and the dissent.
It should be noted that the Mandeville saga has not ended because the case has been remanded to the Macomb County Probate Court to determine whether or not Frank Mandeville should make contribution to his wife’s estate in light of the majority Opinion.
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Alan F. Polack specializes in elder and probate law and practices out of Shelby Township. He is a former president of the Macomb County Probate Bar Association.
