COMMENTARY: The 'Burnett' case makes for a good summer read

By Marie E. Matyjaszek

If you want a drama-filled read involving lawyers, dementia and a sex change, look no further than the recently published Court of Appeals "Burnett" case (with an absurdly long actual case name--In re Estate of Devon Pearl Burnett, Devon Pearl Burnett, by and through her Guardians, Joseph Buxbaum and Beryl Ellen Niles and her conservator and personal representative, Beryl Ellen Niles v Bobbie Eliza Burnett, Court of Appeals Docket No. 309640, April 16, 2013).

The Burnetts were married in the '80s in Ann Arbor and later moved to Pennsylvania. One day Mrs. Burnett decided to visit her daughter, Beryl Niles, in Michigan and never came back (apparently the marriage was not so good at this point).

Mrs. Burnett's kids became her guardians in her advanced age when dementia reared its ugly head, and they filed for divorce on her behalf. Mr. Burnett was not at all pleased about this and filed motions for summary disposition, both of which he lost. A divorce judgment was entered and he subsequently appealed.

Mr. Burnett's first motion seems to hold more merit--he contended that guardians and conservators had no legal right to file a divorce on behalf of an incapacitated individual, and therefore, the divorce complaint had to be dismissed.

Unfortunately for Mr. Burnett, this exact legal issue was already decided in the 2003 case Houghton v Keller, 256 Mich App 336, in which the Court of Appeals held that indeed an incapacitated person's guardian could file a divorce on that person's behalf. To top it off, the Michigan Court Rules give guardians and conservators the legal right to do exactly what Mrs. Burnett's children did, and file for divorce on her behalf. This is why one should do his homework before filing pleadings.

The second motion filed by Mr. Burnett was a bit more of a stretch. He was born a man but decided to undergo gender reassignment surgery and became a woman in 2003, well after the parties were married in 1984. His argument was that since he was now considered a woman, and Michigan law doesn't recognize same-sex marriages, their marriage was not valid so a divorce could not be granted.

On its face this argument seems to lack common sense, and to me it appears that grasping at straws is putting it mildly. The Court of Appeals readily admitted that same-sex marriage is not recognized in Michigan, but here's the obvious problem with Mr. Burnett's argument--at the time the parties entered into the marriage contract in 1984, he was indeed a man and Mrs. Burnett was indeed a woman. Voila, a valid marriage contract which entitled her to a valid divorce years down the road, regardless of his gender at the present time.

My personal opinion was that Mr. Burnett did not have a great case from the start and it's not surprising that he lost his arguments, albeit very interesting ones that make for a good read. Interestingly, Mrs. Burnett died during the course of the case--making me wonder if Mr. Burnett believes in divine intervention.


Marie E. Matyjaszek is an associate attorney at the Law Office of Robert Matyjaszek PLLC in Jackson. Her blog site is: She can be reached at 517-787-0351 or by e-mail at

Published: Fri, Jun 21, 2013