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In re Estate of Erwin

Supreme Court of Michigan

July 31, 2018

In re Estate of JAMES ERWIN, SR.,
v.
JACQUELINE E. NASH, BILLY J. ERWIN, DEMARKIUS ERWIN, MAGGIE ERWIN, AND STACY ERWIN OAKES, Appellees. BEATRICE KING, Individually and as Personal Representative of the ESTATE OF JAMES ERWIN, SR., Appellant, In re Estate of JAMES ERWIN, SR., BEATRICE KING, Appellant,
v.
JACQUELINE E. NASH, BILLY J. ERWIN, DEMARKIUS ERWIN, MAGGIE ERWIN, STACY ERWIN OAKES, and DOUGLAS TAYLOR, Appellees.

          Argued April 12, 2018

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         Syllabus

         Beatrice King filed a petition in the Saginaw County Probate Court, seeking to open formal proceedings regarding the estate of her father, James Erwin, Sr., and to be appointed personal representative of the estate; the petition was granted. James had six children from a previous marriage-including Beatrice-when he married Maggie Erwin in 1968. James and Maggie had four children together, during which time they purchased a home in Saginaw. In 1976, Maggie moved out of the house and established a separate residence. James subsequently consented to a support order that provided financial assistance for Maggie and for their four children. In 2010, James and Maggie together sued James's employer to reinstate Maggie's health insurance coverage under his retiree medical benefits. During the proceedings, it was stated that Maggie was in poor health and that if she were to die, the loss to James would be irreparable; James made it clear that he was still married to Maggie and that they had an ongoing relationship. James and Maggie were still legally married when James died intestate in October 2012. Beatrice asked the court to determine whether Maggie was a surviving spouse for purposes of the Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq. Beatrice asserted that Maggie was not a surviving spouse because she had been willfully absent from James for more than one year before his death and that Maggie was therefore ineligible under MCL 700.2801(2)(e)(i) to exercise her rights under EPIC. The court, Nancy L. Thane, J., determined that Maggie was James's surviving spouse for purposes of EPIC, and Beatrice appealed. The Court of Appeals, Hoekstra, P.J., and O'Connell and Murray, JJ., affirmed the probate court's orders in an unpublished per curiam opinion issued May 10, 2016 (Docket Nos. 323387 and 329264). Beatrice sought leave to appeal, and the Supreme Court granted the application. 501 Mich. 872.

         In an opinion by Justice Wilder, joined in full by Chief Justice Markman and Justice Zahra and also joined by Justice Clement (except to the extent the opinion addresses whether evidence of physical absence is needed to support a finding that a spouse was willfully absent), the Supreme Court held:

         An individual is not a surviving spouse for purposes of MCL 700.2801(2)(e)(i) if he or she was "willfully absent" from his or her spouse for the year or more leading up to the spouse's death. In order to be "willfully absent," an individual must have intended to be completely absent from his or her spouse. To determine whether a spouse was completely absent, courts should consider whether, under the totality of the circumstances, the spouse was emotionally and physically absent for the requisite period such that it resulted in a practical end to the marriage. The plain language of the statute does not require that an individual intended to abandon his or her marital rights to be found "willfully absent," only that he or she intended to be completely absent. The burden is on the party challenging an individual's status as a surviving spouse to show that he or she was "willfully absent" from the decedent spouse. In re Peterson Estate, 315 Mich.App. 423 (2016), was overruled to the extent it held that "willfully absent" encompasses only physical absence. In this case, Beatrice's claim failed because it rested solely on the allegation that Maggie was physically absent from James in the year leading up to James's death. Beatrice only presented evidence regarding their physical separation and did not refute evidence suggesting that James and Maggie retained an enduring emotional connection. Accordingly, the probate court did not clearly err by concluding that Maggie was a surviving spouse for purposes of EPIC, and the Court of Appeals correctly affirmed the probate court's order.

         Affirmed.

         Justice Wilder held that an individual is not a surviving spouse for purposes of MCL 700.2801(2)(e)(i) if he or she was "willfully absent" from his or her spouse for the year or more leading up to the spouse's death. In order to be "willfully absent," an individual must have intended to be completely absent from his or her spouse. To determine whether a spouse was completely absent, courts should consider whether, under the totality of the circumstances, the spouse was emotionally and physically absent for the requisite period such that it resulted in a practical end to the marriage. Justice Wilder also expressed the view that complete absence was required, both physical and emotional; physical absence was a necessary prerequisite for a finding of "willful absence" and a showing of emotional absence on its own was insufficient. Finally, Justice Wilder held that the plain language of the statute does not require that an individual intended to abandon his or her marital rights to be found "willfully absent," only that he or she intended to be completely absent. The burden is on the party challenging an individual's status as a surviving spouse to show that he or she was "willfully absent" from the decedent spouse. In re Peterson Estate, 315 Mich.App. 423 (2016), was overruled to the extent it held that "willfully absent" encompasses only physical absence. In this case, Beatrice's claim failed because it rested solely on the allegation that Maggie was physically absent from James in the year leading up to James's death. Beatrice only presented evidence regarding their physical separation and did not refute evidence suggesting that James and Maggie retained an enduring emotional connection. Accordingly, the probate court did not clearly err by concluding that Maggie was a surviving spouse for purposes of EPIC, and the Court of Appeals correctly affirmed the probate court's order.

         Justice Clement, concurring in part, agreed with the majority that the Court of Appeals correctly affirmed the probate court's finding that Maggie was not "willfully absent" from James within the meaning of MCL 700.2801(2)(e)(i) and that the phrase "willfully absent" is broad enough to encompass emotional absence. The facts of the case necessitated resolution of whether the term includes consideration of the emotional bonds and connections between spouses. However, because it was undisputed that Maggie was physically absent from James for one year or more before his death, it was unnecessary for the majority to consider whether the phrase also requires a physical absence.

         Justice Viviano, joined by Justices McCormack and Bernstein, dissenting, disagreed with the majority's analysis of the phrase "willfully absent" in MCL 700.2801(2)(e)(i). In light of the dictionary definition of "absent"-that is, not present, not in company, away-the critical aspect of the phrase is the lack of physical presence. Although there is an alternative definition of absent, "heedless; inattentive to persons present," a lack of physical presence is the more appropriate meaning given its context within the statute and the primary historical sense of the word; the definition on which the majority relied does not fit within the context of Subsection (2)(e)(i) because the provision requires a spouse to be absent for a year or more. Moreover, the definition of "absent" on which the majority relied-that is, "inattentiveness"-did not support its interpretation of the phrase "willfully absent" as encompassing complete emotional absence. Rather, that definition of "absent" on which the majority relied refers to a state of mental distraction and not to any emotional aspect; and, in any event, the majority did not cite any dictionary that combines emotional inattentiveness and physical absence into a single definition of the word "absent." The majority rewrote the statute by knitting together two disparate and inconsistent definitions-effectively choosing a definition that incorporates "all of the above"- instead of choosing the contextually appropriate meaning. Justice Viviano agreed with the majority's statement that the statute does not require proof of an intent to abandon one's marital rights before an individual can be barred from inheriting under MCL 700.2801(2)(e)(i) but did not agree with other statements by the majority that appeared to require an intent to initiate conduct that he or she knows would result in the termination of the marriage. Justice Viviano stated that to be "willfully absent" for purposes of the statute, a spouse must be physically absent as a result of a unilateral decision by that spouse, as opposed to spouses who live apart by mutual choice. Contrary to the majority's interpretation, it does not make linguistic sense to consider, for purposes of Subsection (2)(e)(i), whether the absence was deliberate or intentional because no reasonable person would contend that an unintentional or involuntary separation was what the Legislature was guarding against when it enacted the provision. Reading the MCL 700.2801(2)(e)(i) term "absent" as meaning only physically absent would not render the provision surplusage; instead, although there is overlap between MCL 700.2801(2)(e)(i) (willfully absent) and MCL 700.2801(2)(e)(ii) (desertion), the two provisions are capable of different meanings. The majority's definition, which departed from the plain language of the statute, was not persuasive because the definition imported perceived requirements from certain neighboring provisions into the definition of "willfully absent" and at the same time failed to address other surrounding provisions. Because the record was sparse, Justice Viviano would have remanded the case to the probate court for a determination of whether Maggie was physically absent for one year or more before James's death as a result of Maggie's unilateral decision, considering any evidence bearing on the question.

         BEFORE THE ENTIRE BENCH

          OPINION

          Wilder, J.

         The Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq., governs the distribution of an individual's property at death. Among other reasons, the Legislature enacted it "[t]o promote a speedy and efficient system for liquidating a decedent's estate and making distribution to the decedent's successors." MCL 700.1201. EPIC grants a decedent's surviving spouse certain rights. For example, the surviving spouse of a decedent who dies intestate-that is, without a will- may still take a share of the decedent's property. MCL 700.2202(1). In fact, even if the decedent dies testate- with a will-a surviving spouse may take a share different from that allocated by the will's plain terms. MCL 700.2202(2). However, not every spouse can rely on these rights. For example, a valid divorce or annulment severs such reliance. MCL 700.2801(1). Alternatively, a spouse living in a bigamous relationship at the time of the decedent's death is also excluded. MCL 700.2801(2)(d). Although EPIC anticipates a number of other circumstances, [1] only one is at issue in the instant case: whether the surviving spouse was "willfully absent" from the decedent for more than one year before his death and is therefore ineligible under MCL 700.2801(2)(e)(i) to exercise her rights under EPIC.

         This case turns on the meaning of "willfully absent" as used in MCL 700.2801(2)(e)(i). In the proceeding below, the Court of Appeals concluded that "willful absence for the purposes of the EPIC is a factual question that may concern more than physical proximity," and that a "trial court should determine whether a spouse is willfully absent . . . by considering all the facts and circumstances of the case." In re Erwin Estate, unpublished per curiam opinion of the Court of Appeals, issued May 10, 2016 (Docket Nos. 323387 and 329264), pp 2-3. We granted leave to consider two questions, both of first impression: (1) whether the term "willfully absent" is defined exclusively by physical separation, or whether it includes consideration of the emotional bonds and connections between spouses; and (2) whether MCL 700.2801(2)(e)(i) requires proof that a spouse intends to abandon his or her marital rights. For the reasons now discussed, we affirm.

         I

         The decedent, James Erwin, Sr., had six children from a previous marriage when he married appellee Maggie Erwin in 1968. James and Maggie went on to have four children together, bringing James's total number of children to 10. Several years after their wedding, James and Maggie bought a house in Saginaw. However, although remaining in Saginaw, Maggie moved out and established a separate residence in 1976. She subsequently petitioned James for financial assistance, and James consented to a support order that provided assistance for Maggie and for their children. But the two continued to live apart. There is no indication that they ever lived under the same roof again.

         Decades later, in 2010, James and Maggie joined together as plaintiffs and sued James's employer to reinstate Maggie's health insurance coverage in accordance with his retiree medical benefits. The couple was represented by L. Fallasha Erwin, James's son from his first marriage. During the proceedings, it was stated that Maggie was in poor health and that if she were to die, the loss to James would be irreparable. James made it clear that Maggie was still his wife and that they had an ongoing relationship.

         On October 12, 2012, James died intestate. James and Maggie had never filed for divorce nor had they otherwise formally separated. In the eyes of the law, they very much remained married until the time of James's passing. As testament to this fact, Maggie was listed as James's surviving spouse on his death certificate.

         Following his death, Maggie and James's children proceeded to sort through his estate informally. Yet all was not well with the related but distinct families that James had fathered. Apparently dissatisfied with the communication and cooperation shown by Maggie and her four children, one of James's children from his first marriage, Beatrice King, represented by her attorney-brother, L. Fallasha Erwin, petitioned the probate court to open formal proceedings and to be appointed as the estate's personal representative. On June 12, 2013, eight months after James's death and with no other interested party objecting, the probate court granted Beatrice's petition.[2]

         The probate court proceedings were contentious from the outset, with allegations of deceit and calls for sanctions. Both sides of James's family were involved and filed motions, only one of which is relevant to the case as it currently comes before us. In 2014, Beatrice asked the probate court to determine whether Maggie was a surviving spouse in accordance with EPIC. Beatrice argued, in part, that Maggie was not a surviving spouse under MCL 700.2801(2)(e)(i) because she was "willfully absent" from James in the years leading up to his death. If proved, because James died intestate, Maggie would not be an heir for the purposes of inheritance. She would not be entitled to a share of James's estate.

         On May 31, 2014, the probate court held a hearing on Beatrice's motion, and on July 17, 2014, it decided that motion in Maggie's favor in a written opinion, ruling that Maggie was James's surviving spouse. Beatrice appealed, and the Court of Appeals affirmed the probate court's ruling. We subsequently granted Beatrice's application for leave to appeal, limited to the two questions described earlier.

         II

         We review de novo questions of statutory interpretation. People v Buehler, 477 Mich. 18, 23; 727 N.W.2d 127 (2007). However, any underlying findings of fact are reviewed only for clear error. People v Knight, 473 Mich. 324, 338; 701 N.W.2d 715 (2005); see MCR 2.613(C).

         III

         A

         For the purposes of EPIC, a surviving spouse does not include

[a]n individual who . . . for 1 year or more before the death of the deceased person:
(i) Was willfully absent from the decedent spouse. [MCL 700.2801(2)(e).]

         With this in mind, we turn to the first question: whether the term "willfully absent" is defined exclusively by physical separation, or whether it includes consideration of the emotional bonds and connections between spouses?

         1

         As an initial matter, we note that EPIC does not define the term "willfully absent." Because our goal is to glean legislative intent from the plain meaning of statutory language, Wickens v Oakwood Healthcare Sys, 465 Mich. 53, 60; 631 N.W.2d 686 (2001), the dictionary is our first point of reference to determine the term's significance, People v Morey, 461 Mich. 325, 330; 603 N.W.2d 250 (1999). The common understanding and the traditional legal usage of a term also guide our interpretation. People v Thompson, 477 Mich. 146, 151-152; 730 N.W.2d 708 (2007); see also MCL 8.3a ("All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.").

         MCL 700.2801(2)(e)(i) uses the term "absent" as an adjective to describe a person's conduct in relation to his or her spouse. In this context, "absent" could mean that someone is missing, not present, or, alternatively, that a person is exhibiting inattentiveness toward another. The American Heritage Dictionary (2d ed); Merriam-Webster's Collegiate Dictionary (11th ed).[3] The word "willful," whether or not used as a legal term of art, describes an act that is voluntary, deliberate and intentional. Random House Webster's (2d ed); Black's Law Dictionary (8th ed). But the intent to commit any act does not, by itself, render it "willful." Rather, a "willful" act is one that is taken with the intent to do something specific. Jennings v Southwood, 446 Mich. 125, 140; 521 N.W.2d 230 (1994); cf. People v Beaudin, 417 Mich. 570, 575; 339 N.W.2d 461 (1983) (explaining that a willful act is one committed with the specific intent to bring about the particular result the statute seeks to prohibit).[4] Taken together, these definitions indicate that the phrase "willfully absent," as used in MCL 700.2801(2)(e)(i), requires that the surviving spouse act with the intent to be away from his or her spouse for a continuous period of one year immediately preceding the death.

         However, while the plain language of MCL 700.2801(2)(e)(i) suggests that the term "absent" may refer to physical separation or a lack of emotional support in the form of inattentiveness, it does not tell us specifically whether the term refers exclusively to the physical or whether it includes an emotional element. As such, we turn to neighboring statutory provisions for additional context. See Robinson v City of Lansing, 486 Mich. 1, 15; 782 N.W.2d 171 (2010) ("[I]t is . . . well established that to discern the Legislature's intent, statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole."); Griffith v State Farm Mut Auto Ins Co, 472 Mich. 521, 533; 697 N.W.2d 895 (2005) (noting that the meaning of statutory language, plain or otherwise, always depends on context). With regard to the neighboring provisions, in addition to excluding one who is "willfully absent," the definition of surviving spouse also excludes those

who did any of the following for 1 year or more before the death of the deceased person:
* * *
(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).]

         Taking MCL 700.2801(2)(e)(ii) first, when deployed as a transitive verb, as here, the term "to desert" is commonly used as a synonym for abandon-to forsake or leave someone. The American Heritage Dictionary (2d ed); Merriam-Webster's Collegiate Dictionary (11th ed). This common meaning mirrors the traditional legal usage of the term "desertion" in the context of divorce. In that context, a husband or wife deserted his or her spouse when the husband or wife ceased cohabitation and physically departed without the intent to return. Fanner v Fanner, 326 Mich. 466, 467; 40 N.W.2d 225 (1949); see also People v Dunston, 173 Mich. 368, 373; 138 N.W. 1047 (1912) (noting that, for purposes of the crime of desertion or abandonment, the term "desertion" meant to separate physically without the intent to resume martial relations).[5] Therefore, although in theory an individual could desert a spouse emotionally, the verb's common connotation in conjunction with its traditional legal meaning tells us that MCL 700.2801(2)(e)(ii) most likely uses the term "deserted" to describe a purely physical distance. Accordingly, an individual deserts his or her spouse within the meaning of MCL 700.2801(2)(e)(ii) if he or she physically leaves the marital home with the intent never to return and the spouse dies more than a year later.

         MCL 700.2801(2)(e)(ii) permits us to draw an important inference. If we interpret the word "absent" as used in MCL 700.2801(2)(e)(i) to refer only to physical absence, there would be an almost complete overlap between MCL 700.2801(2)(e)(i) and (ii). That is, an individual who "deserts" his or her spouse in the year or more before the spouse's death will always have been "willfully absent."[6] This would render MCL 700.2801(2)(e)(i) redundant and counsels against equating the term solely with physical absence. Wickens, 465 Mich. at 60.[7]

         Next, we examine MCL 700.2801(2)(e)(iii). A natural reading of that subparagraph indicates that the phrase "to provide support for the decedent spouse if required to do so by law" modifies the verbs "refused" and "neglected." Therefore, an individual is not a surviving spouse within the meaning of MCL 700.2801(2)(e)(iii) if he or she "[w]illfully neglected . . . to provide support for the decedent spouse if required to do so by law," or "refused to provide support for the decedent spouse if required to do so by law."

         Generally, spousal support is mandated by law only in two situations. The first involves divorce. MCL 552.23. However, divorcees are not surviving spouses for the purposes of EPIC. MCL 700.2801(1). As a result, MCL 700.2801(2)(e)(iii) cannot be referring to spousal support following a divorce. See State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich. 142, 146; 644 N.W.2d 715, 717 (2002) ("Courts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory."). That leaves an action for separate maintenance-the second situation in which spousal support can be mandated- which can be filed by an individual based on the same grounds as an action for divorce, MCL 552.7, but in circumstances in which a divorce is not pursued or cannot be obtained.

         As already stated, the word "willfully" refers to an intent to do something specific. "Neglected," on the other hand, means to fail to give the proper attention to something, or otherwise to leave it undone; "refused" simply means to decline to do something. The American Heritage Dictionary (2d ed); Merriam-Webster's Collegiate Dictionary (11th ed). Accordingly, for the purposes of MCL 700.2801(2)(e)(iii), an individual is not a surviving spouse if he or she intentionally fails or flatly refuses to pay legally required separate maintenance for the year or more leading up to his or her spouse's death.

         When viewed side-by-side, it becomes clear that MCL 700.2801(2)(e)(ii) and (iii) are not connected by an individual's physical proximity in relation to his or her spouse, and we cannot therefore infer that MCL 700.2801(2)(e)(i) refers solely to physical absence by its mere association with its neighboring provisions. Cf. People v Jackson, 487 Mich. 783, 791; 790 N.W.2d 340 (2010) (denoting that neighboring statutory provisions should be read in harmony with one another). Yet, another connection does bond these otherwise disparate subsections. Both MCL 700.2801(2)(e)(ii) and (iii) describe acts on behalf of a surviving spouse that for all intents and purposes are inconsistent with the very existence of a legal marriage. This is either by a spouse refusing to provide required support or by simply abandoning the other without an intent to return. In other words, MCL 700.2801(2)(e)(ii) and (iii) involve intentional acts that bring about a situation of divorce in practice, even when the legal marriage has not been formally dissolved. MCL 700.2801(2)(e)(i) should be interpreted with this context in mind. See Madugula v Taub, 496 Mich. 685, 696; 853 N.W.2d 75 (2014) (explaining that statutory provisions must be interpreted in the context of the law as a whole).[8]

         A comprehensive review of the statutory scheme confirms that the term "willfully absent" should be interpreted consistently with this observation. See Jackson, 487 Mich. at 791. Not only is "[a]n individual who is divorced from the decedent or whose marriage to the decedent has been annulled . . . not a surviving spouse" for purposes of EPIC, MCL 700.2801(1), but also "[a]n individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in [Michigan]" is not a surviving spouse," MCL 700.2801(2)(a). And this includes "[a]n individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual." MCL 700.2801(2)(b). These provisions all describe a situation in which, in effect, a spouse has initiated conduct that results in the complete dissolution of his or her marriage, either in fact or in practice. In those circumstances, an individual, even if legally a surviving spouse, cannot avail himself or herself of all the statutory rights inherent with that title.

         Taking all this into consideration, it is clear that the term "willfully absent" cannot be defined exclusively by physical separation. Simply put, there must be something more than a mere physical distance. There are, after all, countless situations in which spouses choose to be physically separated but do not want to interrupt or even weaken their marital relationship. Some married couples are separated by occupation-for example, when a spouse intentionally takes a better job in a neighboring region so that he or she may provide more comfortably for their family-while others are separated by civic duty-like when a member of the armed forces is deployed overseas in service to this nation. But these circumstances alone reveal no desire to destroy or undermine the marriage, and a committed spouse should not forfeit his or her inheritance on the basis of the erroneous assumption that a physical distance prevented the continued pursuit of an otherwise loving and supportive relationship. If two married people decide to live apart but maintain an element of emotional support and contact, courts have no business second-guessing that life decision.

         As a result, when MCL 700.2801(2)(e)(i) is read in this proper context, the following explication becomes clear: willful absence requires consideration of the totality of the circumstances. It presents a factual question for the trial court to answer: whether a spouse's complete absence brought about a practical end to the marriage.[9] The burden is on the party challenging a legal spouse's status to show that the spouse was in fact "willfully absent" for the year or more leading up to the decedent's death. See In re LaFreniere's Estate, 316 Mich. 285, 291; 25 N.W.2d 252 (1946) ("[W]here exceptions to an account are of an affirmative nature . . . the burden of sustaining such exceptions rests on the contestant."). Although an intentional physical absence is necessary to a finding of willful absence, without additional indicia of a ...


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